Madras High Court
K.M. Muneeruddin And 4 Others vs P.M. Punnoose on 28 January, 2000
Equivalent citations: 2000(2)CTC577
ORDER
1. The matter arises under the Rent Control Act. The owners are the revision petitioners. The eviction of the respondent/tenant was sought on the ground of wilful default in the payment of rent from 1.11.1988 to 31.3.1989. The allegations in the petition are to the effect that the respondent had not been regular in the payment of monthly rents, that he used to send rent by money order without mentioning the month for which the rent was sent and that this he did inspite of protest and the lawyer notice dated 1.2.1989 and therefore he has liable to be evicted. The petition was filed on 17.4.1989.
2. The counter of the respondent among other things stated that he had been regularly sending the rents by money order to the first petitioner by specifying the months, that he sent the money order till the end of 31.8.1988, that even though the rent in respect of the property payable only in the subsequent months, he used to sometimes send the rent for one particular month in that month itself due to preoccupation in his business and frequent trips to Kerala because of the health of his wife who was taking treatment in Kottayam and Vellore where the respondent's brothers and other close relatives were residing, that sometimes he was forced to go to Kottayam and Vellore for more than a month for the purpose of taking treatment for his wife who is suffering from kidney problem, that for November and December, 1988 he sent the rent by money order to the first petitioner and the same was received duly, that the acknowledgment of the money order received by the first petitioner on 31.12.1988 for Rs.400 was available with him while the money order acknowledgment received by him for the other month was missing and he had not been able to trace it and therefore on the date he filed the counter he was paying Rs.400 once again for the dispute month solely with a view of safeguard his tenancy, that he was obliged, to be out of Madras in.
January and February, 1989 due to his wife's illness and therefore he sent the rents for January, 1989 by money order on 1.3.1989, but the same was refused to be received by the first petitioner, that again he sent two money orders on 31.3.1989, one for the month of February, 1989 and the other for the month of March, 1989, but the said money orders were refused to be received by the first petitioner. Therefore, he sent a D.D. dated 12.4.1989 together with a letter dated 12.4.1989 for Rs.1,200 being the rents for January, February and March, 1989, but the registered cover of the said notice was deliberated evaded to be received and the same was returned, that the respondent caused to send another notice dated 12.6.1989 to the first petitioner together with a cheque for Rs.2,000 dated 14.6.1989 being the rents for five months from January, 1989 to May, 1989, that the first petitioner had received the same and encashed the cheque and that he had not committed any default, much less wilful default in the payment of rents.
3. The learned Rent Controller accepted the case of the revision petitioner that the respondent had committed wilful default in the payment of rent and therefore he was liable to be evicted. However, on appeal by the respondent in R.C.A.No.451 of 1991 the learned Seventh Small Causes Judge, Madras, allowed the appeal holding that the respondent had not committed wilful default and therefore not liable to be evicted. The learned Appellate Authority set aside the order of eviction.
4. As against this the present civil revision petition has been filed.
5. Mr. A. Venkatesan for Mr.S. Suresh Kumar; learned counsel for the landlord/revision petitioner, submitted that the respondent had not been prompt in the payment of rent, that the Appellate Authority had given undue importance to facts which were not pleaded or argued before the Rent Controller, that the tenant had not proved his case that he paid the rent for the default period 1.11.1988 to 31.3.1989 and that the mere fact that at some later point of time the tenant paid rent for the default period would not absolve him and it would still be wilful default. The learned counsel further submitted that the Appellate Authority clearly erred in placing reliance on Exs.R.5 to R.9 being money order coupons overlooking that they did not mention the months for which they were meant and that in fact, they did not relate to the period of default at all. The learned counsel further submitted that the Appellate Authority was not justified in saying that the landlord had refused to receive the rent on the basis of Ex.R.10 as the same had absolutely no connection with the period of default having been sent on 12.4.1989 which was not in issue in the rent control proceedings. The persistent conduct of the tenant in sending money orders without specifying the months or period for which they were sent had added to the confusion in the matter and had been done deliberately to mislead the Court. In any event, according to the learned counsel, the Appellant Authority was in error in holding that the subsequent payment would nullify the effect of default. The learned Counsel also placed reliance on Ex.R.4 dated 12.6.1989 sent by the tenant to the landlord, which would clearly prove the default committed by the tenant.
6. Per contra, Mrs. Nalini Chidarnbaram for Mrs. S. Silambanan, learned Counsel for the respondent, submitted that on abundant materials the Appellate Authority had found that there was no default much less wilful default in the payment of rent, that the only month for which there was if at all default was November, 1988 and on 6.9.1990 the hearing dated of the R.C.O.P., a sum of Rs.400 was paid and therefore, by virtue of Sundaram Pillai's case, it must be held that there was no wilful default in the payment of rent by the tenant.
7. There is no dispute with, regard to the rent which is Rs.400 per month. Let us try to analyse the whole thing by reference to the various exhibits. Ex.R.2 is a money order coupon bearing dated 2.8.1988, under which a sum of Rs.400 had been sent to the landlord by the tenant. However, it does not specify the month for which it was sent. Exs.R.3, R.4, R.6 an R.1 are respectively dated 20,8,1988, 20.9.1988, 25.10.1988 and 13.12.1988. Under these coupons rents had been sent on the various dates, but without specifying the months for which they were sent. However, the contention Of the landlord is that rent for November, 1988 had not been paid. As regards Ex.R.5 dated 31.12.1988, it is a money order coupon of Rs.400 and according to the learned counsel for the tenant, it represented rent for December, 1988. However, Ex.P.3 letter dated 1.2.1989 from the landlord's counsel it is seen that it was appropriated for October, 1988. Thereafter, for more than two months there is no money order produced to show payment of rent. On 1.3.1989 under Ex.R.7 the money order sent for Rs.400 had been returned. So also Exs.R.8 and R.9 each for Rs.400 and sent on 31,3.1989 had been returned by the landlord. At the risk of repetition it Has to be mentioned that hone of the money order coupons mention the months for which each money order was being sent, receipt of Ex.P.3 letter is denied by the tenant and it is also complained that proof of service was not produced by the landlord inspite of specific question put during cross- examination. Ex.P.3 further stales that the landlord is not liable to pay Rs.3468.50 towards taxes and that money orders sent do not refer to the months to enable the petitioner to keep correct account. As already noticed, Ex.P.3 further states that the rent sent in December, 1988 related to October, 1988 and it had been appropriated for October, 1988. Thereafter, on 12.4.1989 under cover of Ex.R.10 the respondent/tenant sent a D.D. for Rs.1200 purporting to represent the rents for January to March, 1989. Under Ex.R.11 the letter and the D.D. were returned and on 17.4.1989 the landlord filed the eviction petition alleging wilful default in the payment of rent for November and December, 1988. On 12.6.1989 a cheque for Rs.2,000 was sent as an enclosure to Ex.P.4 = Ex.R.12 and this cheque was accepted by the landlord. The first hearing of the R.C.O.P. was on 23.6.1989. No doubt, the tenant had not been served with the summons in the proceedings and the Court was ordering fresh summons to the respondent/tenant.
8. On 3.10.1989 the landlord sent a letter to the respondent stating that non-payment of taxes would amount to default and that the amounts paid till 31.12.1988 had been adjusted upto October, 1988 and subsequent payment of Rs.2,000 and two money orders of Rs.400 each had been adjusted from November, 1988 to May, 1989. After receipt of the notice Ex.P.5 the respondent/tenant condescended to received the court notice, appear, file vakalat through counsel and keeping on taking time for filing counter. A perusal of the endorsements made in the R.C.O.P. would show how successfully the tenant had been evading notice and at a particular stage had to appear through counsel and from 26.10.1989 the matter was being adjourned till 25.6.1990 for filing counter, on which date the respondent was given time to file counter till 9.8.1990. Even on 9.8.1990 counter was not filed and he was given time till 6.9.1990 to file counter with petition. It was on 6.9.1990 he paid Rs.400 to the counsel for the landlord in Court purporting to represent the rent for the month of October, 1988 as according to him, the receipt of rent for the month of October, 1988 was missing. The counsel for the petitioner made endorsement for receipt of Rs.400 without prejudice on 6.9.1990. The matter was successfully dragged on till 20.2.1991 and on 21.2.1991 eviction order was passed granting two months time to the respondent/tenant to evict.
9. Mr. A. Venkatesan, learned counsel submitted that there was no payment made in November, 1988 proved by the tenant and equally for December, 1988 and the counter says that the tenant was paying Rs.400 for November, 1988 once again as the tenant did not have acknowledgment available with him and that this payment was being made twice over solely with a view to safeguard his tenancy. This was on 6.9.1990. From the above Mr. Venkatesan, learned counsel, submitted that there had been wilful default in the payment of rent and the Appellant Authority was in error in setting aside the order of eviction passed.
10. The learned counsel relied on the following decisions in support of his contention:
The first decision in Nagarathanam Pillai v. Mahadever, 1969 (II) MLJ 492. Dealing with the meaning of the expressing wilful default Anantharayan, Chief Justice, held that.
"It implies a conscious or volitional failure to discharge obligations laid down by law on a tenant, which also includes a supine indifference to those obligations. Naturally enough, each case will have to be judged on its merits and the case may be different where the default has occurred with regard to a single month. But where it occurs with regard to several months it is difficult to accept the argument that the default was not wilful.
Neither the fact that the tenant deposited the rent subsequent and quite early after the inception of eviction proceedings, nor the fact that the landlord had advance rent with him is a ground for holding that the tenant was not guilty of 'wilful default'. There is no condonation on the part of the landlord merely because he takes the rents deposited into Court."
No doubt, the position as envisaged by the learned Chief Justice with regard to advance rent available with the landlord cannot be stated to be good law any more. However, with regard to deposit of rent subsequently the position is that it will not absolve the tenant of his obligation to pay the rent promptly and without default. Admittedly, in the instant case, there was default in the payment of rent for November, 1988 and this was paid only on 6.9.1990 in Court when the tenant chose to file the counter. Absolutely no explanation is forthcoming from the tenant for not paying the rent for November, 1988 when it became due by December, 31. He also had not substantiated that he was paying the rent for the disputed month once over. He has to thank himself for that particularly when he chose to send money order without specifying the period for which it was meant.
11. The next case relied on by the learned counsel is the one reported in The Nilgris Co-operative Marketing Society rep. by its Secretary etc., v. C.T. Uthandi, 1998 (II) MLJ 745 where the learned Judge, after referring to a number of authorities has observed that, "the payment of entire arrears of rent on receipt of summons on date fixed for appearance of tenant in Court does not absolve him of his disqualification referred."
The learned Judge referred to several cases on this point. In Deluxe Road Lines v. P.K. Palani Chetty, 1992 (1) LW 262 it has been held as follows:
"Unexplained default is undoubtedly wilful-burden on tenant to plead and prove circumstances under which he failed to pay rent as required by statute. Obligation to pay rent is not merely contractual, but it is also statutory. When once it is found that the tenant is guilty of wilful default, there is no discretion left with the Court."
12. The learned Judge referred to and distinguished the following decisions:
(1) Abdul Hameed v. M. Sultan Abdul Kader, 1996 TLNJ 339; (2) A.M.A. Jabbar v. T.S. Abdur Bari and two others, 1997 (2) LW 616 and (3) V. Krishna Mudaliar v. Lakshmi Ammal, by saying that in all those cases it was held that, "if the tenant paid the rent, which was in arrears, immediately after filing of the eviction petition at any time before the first hearing, it cannot be said that the tenant had committed wilful default."
The learned Judge also observed as follows:
" I am yet to come across a case, where the tenant was relieved of the disqualification, which he has suffered, to continue any more in the occupation of the buiding, on the mere fact of paying the rent pending proceeding without there being any acceptable explanation for non-payment of the same as and when it became due. There cannot be any hard and fast rule to that effect, because, if that is the position in law, then there can never be an order of eviction on the ground of wilful default, if the tenant, who had been indifferent all along in paying the rent, suddenly becoming wiser and paying the rent after the Rent Control petition was filed. That does not appear to be the tread of the decisions referred to above."
13. In the Instant case, it has already been noticed that the tenant successfully evaded service of notice and only when the matter reached a saturation point he condescended to file a counter and paid Rs.400 purporting to be the rent for the defaulted month.
14. In T. Easwara Rao v. N.E. Ansari (dead) and six others, it has been held by Govindarajan, J. that, "mere attempt to send, rent by money order without taking further steps to deposit rent into Court under Section 8 would amount to wilful default."
15. From the dates and events, in the instant case it would be evident that on 1.3.1989, 31.3.1989 and also on 31.3.1989 the landlord teturned the money orders sent. Thereafter, on 12.4.1989 the tenant sent a D.D. for Rs.1200 representing the rent for the months January to March 1989 which was also refused. The tenant ought to have taken steps under section 8(5) of the Act after calling upon the landlord to specify the bank in which the rent could be deposited. The tenant did not take any steps in this direction at all. In my view, a clear Case has been made out for eviction on the ground of wilful default by the tenant. It is also clear from the dates and events that the tenant did not deposit the rent for the defaulted month on the first date of hearing. In fact, for that defaulted month he had taken more than a year and it was not on the first date of hearing that he paid the rent and it cannot be stated that it would not amount to wilful default.
16. In C.K.R. Murugan v. T.S. Arunagiri and another, 1992 (1) L.W. 100 S.S. Subramani, J. has held that, "once default is admitted, it is for the tenant to prove that he has not committed wilful default"
and as pointed out by the learned Judge, unless the tenant has a case that he was prevented from discharging contractual or statutory obligations, the presumption of wilful default is automatic. In the case before the learned Judge, the conduct of the tenant showed that he wanted to harass the landlord and he did not want to pay rent as and when it became due and only when he knew that eviction petition was filed, he thought of paying the amount and that too, not in full discharge of the arrears.
17. In the instant case, the Appellate Authority has clearly overlooked that the tenant had committed wilful default and has glossed over the same by treating it lightly and observing that there had been some delay in sending the rent and the same had been admitted by the tenant, but the fact that he had sent the rents for November, and December, 1988 and January and February, 1989 by money order under Exs.R.5 to R.9 would show that the default was not wilful. The Appellate Authority was clearly in error in overlooking that once the tenant had admitted default and in the instant case, in the counter itself there is an admission that he had offered to pay the rent for the defaulted month on the date he filed the counter it was for the tenant to prove that the default was neither wilful nor wanton or deliberate. The acceptance of the cheque for Rs.2,000 sent on 12.6.1989 by the landlord would not erase the default on the part of the tenant.
18. In M.S. Premchand v. K. Karuppiah Nadar and, others, 1999 (3) LW 562 Karpagavinayagam, J. has also subscribed to the view that mere payment of arrears pursuant to order of Court passed under Section 11(4) without offering acceptable evidence for delayed payment would not obsolve the tenant from the disqualification he has suffered already.
19. As against these decisions, the learned Counsel relied on the judgment in A.M.A. Jabbar v. T.S. Abdul Bari and two others, 1997 (2) LW 616 which was referred to by R. Balasubramanian, J. in The Nilgris Co-operative Marketing Society Etc. case, 1998 (II) MLJ 745. In this case, the order of eviction confirmed, in the civil revision petition was reviewed by AR. Lakshmanan, J. when additional evidence was produced in the review in the shape of money order receipts containing acknowledgements by the landlord for receiving the money order amounts. In my view, this decision has no application to the facts of the present case. The undisputed position is that on the date the counter was filed on 6.9.1990 the tenant had admitted that there was omission to pay rent for the disputed month, viz. November, 1988 and that he was tendering the same, though, according to him, he had already paid it and was paying it once over.
20. In view of the discussion above, the landlord has clearly made out a case against the tenant on the ground of wilful default and the tenant has not discharged the onus on him that the default was not wilful, deliberate or wanton. The civil revision petition is allowed. The order of the Appellate Authority is set aside and that of the Rent Controller restored. The tenant/respondent will have six months time to quit and deliver vacant possession of the property, subject to his filing an affidavit of undertaking with the usual default clause within a period of two weeks from today. There will be no order as to costs.