Madras High Court
M.K. Sankaran vs S. Birlasekaran And Another on 21 November, 1997
Equivalent citations: 1998(3)CTC56, (1998)IIIMLJ45
ORDER
1. The tenant who suffered an order of eviction before the authorities below has filed the above revision.
2. The landlords/petitioner filed R.C.O.P.No.381 of 1981 under Sections 10(2)(i) and 14(l)(b) of the Act 18 of 1960. According to them, the rent was at Rs.220 per month and the tenant respondent paid an advance of Rs.1,000. The landlords got the property in question by virtue of a registered partition deed dated 12.11.1980 entered into between the landlords and their brothers. According to them, the tenant has paid rent irregularly till the end of September, 1980 and failed to pay the subsequent months rent despite the repeated demands made by the landlords through their agents, and the arrears of rent was Rs.1,760 for the period from October, 1980 to the end of May, 1981. On that basis they came forward with the plea that the tenant had committed wilful default in payment of rent. They also wanted the premises in question for demolition and reconstruction. The tenant contested the eviction petition by filing a detailed counter. The learned Rent Controller, Principal District Munsif, Madurai accepting the case of the landlords ordered eviction on both the grounds. The tenant filed an appeal in R.C.A.No.145 of 1990 on the file of the learned appellate authority/Principal Sub-Judge, Madurai, who rejected the case of the landlords regarding their requirement under Section 4(1)(b) of the Act, but concurred with the findings of the Rent Controller on the ground of wilful default and found that the tenant had committed default wilfully. Aggrieved against the same the tenant petitioner has filed the above revision.
3. The above eviction petition was filed on the basis that the tenant had defaulted in payment of rent to the tune Rs.1,760 for the period from October, 1980 to the end of May, 1981. The tenant in his counter in para 6 has stated that up to end of June 1980 the rent was paid to the original owner, M/s. Sivasamy Nadar and Sons and since nobody had turned up to collect the rent for five months from 1.7.1980 to 30.11.1980 the tenant had sent the same by cheque to the original owner towards the rent for the said period. The cheque was returned by Sivasamy Nadar and Sons with the covering letter informing that the suit property had fallen to the share of the landlords (respondents herein) as per the terms of the partition deed Ex.A-3. Immediately the tenant sent a cheque for Rs.1,100 to the respondents with the request to encash the same and credit the same towards the rent payable for five months, namely July to November, 1980. But the respondents returned the cheque stating that they have no bank account and asked the tenant to remit the same by money order. Meanwhile according to the tenant the Corporation officials made a demand to pay the property tax and thereafter the tenant contacted the landlords regarding the payment of tax and as advised by them the tenant sent a money order towards three months rent and retained the balance amount for the purpose of paying the property tax. Thus a sum of Rs.660 was sent by money order towards the rent for July to September, 1980. Thereafter he paid a sum of Rs.975.44 under Ex.B-9, towards property tax, and the balance amount of Rs.124.56 was sent by money order under Ex.B-10. But the same had been refused to be received by the landlords and so the petitioner\tenant sent a notice dated 11.5.1981 under Ex.B-12 requesting the landlords to specify a bank into which the rent may be deposited. To the said notice, the landlords respondents sent a reply on 9.6.1981, marked as Ex.A-33. The rent of Rs.564.56 up to the end of April, 1981 was sent by money order on 14.5.1981 which was also refused to be received by the landlords. The tenant filed R.C.O.P.No.356 of 1981 under Sec. 8(5) of the Act to deposit the rent.
On the abovesaid facts the tenant came forward with the plea that he has not committed any default much less wilful default. The Rent Controller disbelieved the case of the tenant that he contacted the landlords over phone and they had instructed him to retain the amount for the purpose of paying the property tax, and on the basis of the said findings, the Rent Controller came to the conclusion that the payment of property tax by the tenant is only a voluntary one. On the basis of the above finding the Rent Controller ordered eviction. The appellate authority also rejected the case of the tenant regarding the conversation between the landlords and tenant and came to the conclusion that the property tax was paid without the permission of the landlords and the tenant cannot take advantage of the same. The appellate authority also has given importance to the fact that the tenant has paid the amount towards property tax without the permission of the landlords, and in the light of the ratio laid down by this Court and the Apex Court in Jagannatha Chettiar v. R. Swarnambal, 1984 (2) M.L.J. 6 : 97 L.W. 182, Mrs. Manoranjitham v. Mrs. T.S. Gangabai, 1991 (2) L.W. 203 and Bhoja v. Rameshwar Agarwala, confirmed the findings of the Rent Controller.
4. From the above discussion, and the findings of the authorities below, it will be clear that the default alleged is only with respect to the amount retained by the tenant for payment of property tax. Though the authorities below found that the tenant has committed default with respect to the payment of the said amount, there is no discussion at all by the authorities below, whether such default cannot be construed as wilful unless it is proved that such default is due to supine indifference on the part of the tenant.
5. In this case even on the admitted facts, the tenant has taken immediate and necessary steps to pay the rent throughout and even before retaining the amount for payment of property tax the tenant had sent the entire amount of Rs.1,100 towards the rent for July to November, 1980 by way of cheque. Having sent the said amount twice towards five months rent the authorities below should have assessed the intention of the tenant and what is the necessity for him to retain the amount of Rs.1,100 the rent payable for the months of October to December, 1980 and January and February, 1981. It is stated in the eviction petition that the tenant is a chronic defaulter. But that has not been established before the authorities below. On the other hand the tenant had established that there was no arrears of rent up to the end of June, 1980 and thereafter the tenant took earnest steps to pay the rent. Relying on the attitude of the landlords in returning the cheque tendered saying that they are not having any bank account, the learned counsel has submitted that the landlords somehow wanted to create a ground for eviction and that is why, knowing that they can encash the cheque, they returned the cheque, asking the tenant to send the same by money order. The learned counsel appearing for the landlords respondent has submitted that since the tenant used to send the rent by money order, the landlords refused to receive the cheque. But, unfortunately, that was not the reason mentioned in the letter sent by the landlords to the tenant, enclosing the cheque. It is not in dispute that the tenant received a notice from the Corporation and he paid the said amount of Rs.975.44 (out of sum of Rs.1,100) which had also been paid towards property tax under Ex. B-9 and the balance amount of Rs.124.56 was sent by the tenant to the landlords by way of money order, which was refused to be received by the landlords.
6. The authorities below have come to the conclusion that since the landlords had paid the amount towards property tax, the question of paying the same by the tenant would not arise. The authorities below did not appreciate the fact that the tenant has paid the amount towards property tax without the knowledge of payment of the same by the landlords; It is not the case of the landlords also that the tenant paid the property tax knowing fully that they had paid the said tax. So, such a finding of the authorities below cannot be sustained.
7. The authorities below relied on the decision of the court reported in Jagannatha Chettiar v. R. Swarnambal, 1984 (2) M.L.J. 6 : 97 L.W. 182 and Mrs. Manoranjitham v. Mrs.T.S. Gangabai, 1991 (2) L.W. 203, to hold that since the payment of the amount towards property tax by the tenant is a voluntary one, the same cannot shift him from the consequences of non-payment of rent. In Jagannatha Chettiar v. R. Swarnambal, 1984 (2) M.L.J. 6 : 97 L.W. 182, Rathinam, J., as he then was has held as follows:
"In the ordinary course of events, even if a demand notice for property tax or water tax had been received by the tenant it was the duty of the tenant to have brought it to the notice of the landlord and only thereafter the tenant should have acted in accordance with the directions given by the landlord or as a prudent occupier of the property, if she was driven to adopt that course. In this case, the evidence does not disclose that the tenant informed the landlord about the receipt of the demand notice and that there was a direction by the landlord that the tenant should pay the property and water taxes and adjust the same out of the rents. In the absence of any such direction or understanding, any payments made by the tenant would only be in the nature of a voluntary payment and would not in any manner bind the landlord nor would it give rise to any right in the tenant for an adjustment of those amounts against the rents payable. Considered in that light, the property and the water taxes claimed to have been paid by the tenant in this case would partake the character of only voluntary payments. It may be that the tenant can recover those amounts in accordance with Section. 375 of the Madras City Municipal Corporation Act or by other modes, but that would not shield her from the consequences of non-payment of rents for nearly a period of 11 months without any justification at all. Inasmuch as on the facts and in the circumstances of this case, the payments stated to have been made by the tenant have been held to be voluntary, those payments cannot be pleaded as an answer to the prayer for an order of eviction on the ground of wilful default".
In the said case the notice was only a demand notice for payment of property tax for the second half year, and on the basis of the said notice the learned Judge came to the conclusion that in the absence of any direction or understanding in payment of the same made by the tenant, it would only be in the nature of voluntary payment and would not in any way bind the landlord nor would give rise to any right in the tenant for an adjustment of those amounts against the rent payable.
8. In Mrs. Manoranjitham v. Mrs.T.S. Gangabai, 1991 (2) L.W. 203, Venkataswami, J., as he then was, followed the abovesaid decision and held that if any payment was made voluntary the same could not be adjusted from the rent payable. In the said case also the learned Judge found that there was nothing on record to show that the sum of Rs.1,400 was paid only towards property tax to the premises in question and on that basis the learned Judge came to the conclusion that the tenant cannot take advantage of the alleged payment of property tax.
9. The learned counsel appearing for the respondents/landlords has further relied on the decision in Govindarqju v. Krishnan, 1995 (1) M.L.J. 254 and in Jayems Engineering Co. Ltd., v. M.A.A. Wahab and four others, 1992 (2) L.W. 448. In the said decisions, the payments were made either after issue of notice by the landlord or pending proceedings. Hence, the learned Judge rejected the case of the tenant to take advantage of the said payment. So, the said decisions would not apply to the facts of the present case.
10. In the present case, it is not the case of the landlords that only after receipt of the notice or payment of the property tax made by them the tenant had. paid such amount. To prove that the payment of tax is not a voluntary payment but only to avoid distraint proceedings, the tenant filed the property tax demand notice Ex.N.7, which was addressed to the tenant. In the said notice it is specifically stated that if the property tax is not paid within 15 days from the date of the notice, warrant would be issued for the distraint of any movable found on the premises. So, only on the basis of the said notice the tenant had paid the said amount under Ex.B.9. In view of the above, it cannot be said that the payment of the amount is voluntary. The authorities below have not appreciated the fact that the tenant has paid the tax only because of the compulsion made in the said notice issued by the Corporation and not voluntarily. Only because of the fact that the landlords had paid the tax amount on 10.3.1981 under Ex.A.91, it cannot be said that the tenant has paid the said amount voluntarily. Even if the landlords had paid the amount of tax it has to be adjusted towards the next half-year. Hence, I find that the payment of the said amount of tax under compulsion cannot be said as voluntary payment.
11. Though the tenant sent the balance amount of Rs.124.56 by money order, the landlords had refused to receive the same. Even assuming that the said amount is not paid, the landlords can adjust the same out of the amount paid by the tenant as advance, of Rs.1,000 and the landlords are bound to refund the excess amount of advance paid by the tenant to the landlords, as held by the Apex Court in K. Narasimha Rao v. T.M. Nasimuddin Ahmed, .
12. As discussed earlier, the authorities below have not applied their mind to the facts of the case to find out whether the tenant had committed any wilful default in payment of rent. In view of the same, and also in view of the above discussion, the orders of the authorities below cannot be sustained, and the tenant would not certainly be a defaulter is payment of rent. Hence the order of eviction passed by the authorities below in set aside. This revision is allowed accordingly. No, costs. Consequently, C.M.P. No.1193 of 1994 is closed.