Madras High Court
V.S.S. Velayudam vs K. Palanichamy on 16 November, 1987
Equivalent citations: (1988)2MLJ113
ORDER Sivasubramaniam, J.
1. The unsuccessful tenant in R.C.O.P. 14 of 1983 on the file of the Rent Controller (District Munsif) Palani and in the appeal in C.M.A. 15 of 1984 on the file of the appellate authority (Subor-dinate Judge), Dindigul, is the petitioner in this revision petition. The respondent is the landlord.
2. The respondent-landlord filed the petition in R.C.O.P. No. 4 of 1983 for the eviction of the petitioner, on the ground of wilful default in payment of rent and on the ground that he requires the building for his own personal occupation. He contended that the petitioner is a tenant from 21.11.1974 paying a rent at the rate of Rs. 75 per month and the tenant paid an advance of Rs. 5,000. The tenant was not regularly paying the rent, and therefore issued notice on 24.12.1980 through his advocate demanding the arrears of rent and to vacate the premises. Thereafter, the tenant paid a sum of Rs. 600 through his advocate on 11.1.1981. He did not pay the subsequent rent, he paid a sum of Rs. 1,650 towards rent through his advocate to the landlord on various dates, even after adjusting the said amounts, there was arrears for the period of three months till the end of January, 1983. Therefore, according to the landlord the tenant has committed wilful default in paying the rent.
3. The tenant resisted the application contending that he was a tenant ever since 1970 and he has paid a sum of Rs. 5,000 as advance. According to him, he has been regularly paying the rent from 1974 and that he has not committed any wilful default in payment of rent. It is his case, that the petitioner received a sum of Rs. 350 on 15.4.1981 and Rs. 300 on 25.4.1981 towards the rent. The same has been entered in his account books. Taking into consideration of such payment, he claims that he has paid the rent in excess of the actual rent payable by him. It is further contended since the landlord demanded enhanced rent of Rs. 200 per month and further advance of Rs. 5,000 and he has refused to pay the same, the landlord has come forward with this revision petition.
4. The learned Rent Controller held that the tenant has committed wilful default in payment of rent and consequently ordered eviction. So far as the requirement of the premises for own use and occupation of the landlord, he found that there is no bona fides in the said requirement. As against the said order, the tenant preferred an appeal in C.M.A. 15 of 1984 and the appellate authority also confirmed the said finding. Aggrieved against the said judgment the tenant has preferred this revision petition.
5. N.K. Ramaswami, learned Counsel for the petitioner vehemently argued that all the payments made by the tenant have not been credited by landlord, particularly in respect of payments of Rs. 350 on 15-4-1981 and Rs. 300 on 24-4-1981. The tenant has entered the said payments in the account books maintained by him in the regular course of business. According to him, taking advantage of the failure on the part of the tenant to get receipts for the said payments, the landlord is now denying the said payments, and the tenant has paid more than what he has to pay.
6. Mr. R.G. Rajan, learned Counsel for the respondent-landlord pointed out that admittedly the tenant was not regular in payment of rents. It is seen that on several occasions, rents were paid for three or four months at a time. For example Rs. 450 was paid on 21-7-1981, Rs. 300 was paid on 19-11-1981 and another Rs. 300 was paid on 24-4-1982. these facts are not in dispute. The only explanation given by the learned Counsel for the petitioner is that the tenant had paid the rent every month to his advocate in not paying the rent regularly to the landlord. I am unable to appreciate the said contention and there is absolutely no evidence to show that such payments were made to the advocate and moreover, the advocate had not been examined in this case. It is significant to note that this explanation is not given anywhere before the authorities below, and it is for the first time, the tenant has chosen to come forward with such belated explanation for non-payment of rents.
7. The learned Counsel for the petitioner submitted that according to the terms of the lease agreement the landlord was entitled to adjust rents out of the advance of Rs. 5,000 paid by the tenant. Therefore, as and when there was default in payment of rent, the landlord should have adjusted the rent out of the deposit. It is no doubt true, that there is a clause to that aspect in the lease agreement, but I find that the tenant himself did not choose to rely on the said clause relating to adjustment since, according to him he has been regularly paying the rent. But the authorities below have found that rents were paid not regularly but in lump sums. If the contention of the learned Counsel is to be accepted, then there should have been an automatic adjustment of the rent out of the advance and in that case, the tenant would not have chosen to pay the rents. This shows that the landlord has no such unfettered right to adjust the rents out of the advance. Moreover, Section 7(2)(d) of the Tamil Nadu Buildings (Lease and Rent Control) Act which contains the provisions, stating that a landlord can adjust the rents out of the advance, only at the option of the tenant. The landlord has no unfettered right to make any such adjustment without the option being exercised by the tenant. The same view has been expressed by this Court in Balachandran v. Champalal Jain 93 L.W.605 : . The learned Counsel further submits that he has filed application for receipt of certain account books as additional evidence and therefore, the matter may be remanded to the appellate authority for receiving the additional evidence and dispose of the case on merits. I do not this that there are any ground to receive additional documents at this stage. The tenant was fully aware from the beginning that the payment of rents by him were not admitted by the landlord, and therefore, he should have filed the account books at the earlier point of time and in any event where the matter was pending before the appellate authority. When he has chosen to file some account books before the learned Rent Controller, there was no reason why he did not file the other account books. Even if such account books are received as additional evidence at this stage, it will have no evidentiary value. Both the authorities below have concurrently found that the tenant has committed wilful default. I find no ground to interfere with such concurrent finding of the authorities below. Therefore, the revision petition is dismissed. No costs. However, considering the facts that the tenant has been in occupation for considerable time and there will be difficulty in securing alternative accommodation, the learned Counsel for the petitioner requests for reasonable time for eviction. The learned Counsel for the respondent has no objection for granting six months time. Therefore, the petitioner is given six months time to vacate the petition premises and put the landlord in possession of the same.