M.K.Swaminathan vs V.Thangam on 20 August, 2010

[Cites 2, Cited by 4]

Madras High Court

M.K.Swaminathan vs V.Thangam on 20 August, 2010

2.The land lord is the revision petitioner herein. The landlord filed RCOP No.17 of 2003, on the file of the Principal Rent Controller (Principal District Munsif), Tirunelveli, for eviction of the respondent on the ground of wilful default and for owner's occupation.

3.The case of the landlord was that the tenancy is according to the Tamil month and the monthly rent is Rs.600/- and the tenant has committed wilful default in the payment of rent from Avani 2001 and the building is also required for him for doing business and on that ground, the application for eviction was filed.

4.The tenant/respondent contended that the landlord refused to receive the rent for the month of Avani 2001 and therefore, he sent a notice to the landlord on 22.10.2001 requesting the landlord to receive the rent for the month of Avani 2001 and the landlord sent a reply, dated 13.11.2001 stating that the tenant has not paid the rent for the month of Avani, Puratasi and Aippasi 2001 and therefore, he sent Rs.1,800/- representing the three months rent along with re- joiner notice, dated 13.12.2001 and he also sent the rent for Karthikai and Margali 2002 and Thai 2003, by pay order through notice, dated 19.02.2002 and the landlord received those two pay orders and he continued to pay rent in person from Thai 2002 to Margali 2003 and the landlord did not issue any receipt for the same and thereafter, the landlord refused to receive the rent and hence, the tenant sent money order for Thai 2003 and therefore, there is no wilful default on the part of the tenant. It is further contended that the landlord is having other shops in the same area and if the tenant is directed to vacate the premises, he will be put to irreparable hardship and there is a STD booth, which is in the opposite side to the landlord's property which could have been used by the landlords.

5.The learned Rent Controller on the basis of the oral and documentary evidence held that the tenant has committed wilful default in the payment of rent and the building is required for the own occupation of the landlord. Aggrieved by the same, the tenant filed appeal in RCA No.1 of 2005 and the learned Rent Control Appellate Authority held that the tenant has not committed wilful default in the payment of rent and as the landlord was having advance of Rs.10,000/-, the period of default stated in the petition was 17 months and the total rent is payable is Rs.10,200/- after deducting the advance amount only Rs.200/- is payable by the tenant and therefore, the tenant has not committed default in the payment of rent and relied upon the judgement reported in 2004(1) MLJ 76 , 2004(2) MLJ 107 held that the tenant has not committed any wilful default. The Lower Appellate Court also held that the requirement of the landlord is not bona-fide as the land lord is having other buildings in the same area and some of the buildings are lying vacant and no steps were taken to occupy those buildings for his business purpose and hence, there is no bona-fide and allowed the appeal filed by the tenant. Aggrieved by the same, this civil revision is filed by the landlord.

6.Mr.S.Pon Senthil Kumaran, the learned counsel appearing for the revision petitioner submitted that the Lower Appellate Court has committed a serious error in relying upon the judgments cited by the landlords while allowing the appeal holding that there is no wilful default without properly appreciating the Honourable Division Bench judgment of this Court and therefore, the civil revision petition is to be allowed. He further submitted that the tenant cannot dictate as to which building, the landlord has to do his business and it is the prerogative of the landlord to choose his own place for the purpose of doing business and therefore, the Lower Appellate Court ought not to have allowed the appeal on the ground of owners occupation also.

7.Mr.M.Vallinamayam, the learned counsel appearing respondent/tenant submitted that it is not in dispute that the landlord was having Rs.10,000/- with him as advance and as per Act, he is entitled to retain one month rent as advance and therefore, the landlord was having Rs.9,400/- with him and even assuming that the tenant has committed wilful default in the payment of rent, without admitting the same, the alleged arrears of rent should have been adjusted from the amount available with the landlord and in that event, there is no default much less wilful default in the payment of rent.

8.The learned counsel appearing for the respondent further submitted that the landlord refused to receive the rent for Avani 2001 and therefore, the tenant has issued a notice requesting the landlord to receive the amount and the tenant also sent a pay order along with reply notice, dated 13.12.2001, which represented the rent for Avani, Puratasi and Aippasi 2001 and thereafter, by another notice, he sent three months rent, which represented the rents for Karthigai 2001, Margali 2002 and Thai 2002 and thereafter, rent was paid in person and for the month of Thai 2003, the landlord refused to receive the rent with the intention of vacating the tenant and all these would prove that there is no wilful default on the part of the tenant. The learned counsel appearing for the respondent further submitted that admittedly, the landlord is having some other buildings in the same area and some of the buildings are lying vacant and the landlord has not occupied and considering all these aspects, the Lower Appellate Court rightly allowed the appeal filed by the tenant and therefore, the judgment and decree of the Lower Appellate Court need not be interfered with.

9.I have given my anxious consideration to the submission made both the counsels.

10.In this case, the wilful default committed by the tenant, according to the landlord, is from Avani 2001 to Thai 2003 for a period of 17 months.

11.The defence of the tenant was that the rent for Avani, Puratasi and Ayppasi 2001 sent by postal order along with notice, dated 13.12.2001, Ex.R5 and the rent for Avani 2001 sent by money order, which was received as evident by Ex.R4 and rent for subsequent months for a period of 3 months was sent on 19.02.2002 as evident by Ex.R7 and on 17.02.2003, the tenant has sent rent for Thai 2003 and that was refused and the same was evident by Ex.R9 and therefore, there is no wilful default on the part of the tenant. Admittedly, the building is a non residential one and the rent is fixed Rs.600/- per month and the payment of rent till Adi 2001 was not in dispute. Therefore, we will have to see whether the tenant has committed wilful default in the payment of rent from Avani 2001 to Margali 2003.

12.It it is seen from Ex.R4 that rent for Avani 2001 was offered and that was not received by the landlord. It is stated by the tenant that on 13.12.2001, he sent rent for three months viz., Avani, Puratasi Ayppasi 2001 through pay order along with reply notice Ex.R5and that was received by the landlord, but the landlord disputed the receipt of pay order alleged to have been sent along with reply notice, Ex.R5, dated 13.12.2001. No-doubt Ex.R6, is the acknowledgement signed by the landlord for having received the notice, dated 13.12.2001 sent by the tenant. When the landlord disputed that he has not received the pay order for three months alleged to have been sent by the tenant along with reply notice, dated 13.12.2001, it is the duty of the tenant to prove the same.

13.It is also seen from Ex.R7 that the tenant could not have sent the rent for Avani, Puratasi and Ayppasi 2001 along with Ex.R5. Under Ex.R7, the tenant sent a notice, which was, dated 19.02.2002 and it was alleged in the notice that the rent of Rs.1,800/- representing the rents for Avani, Puratasi and Ayppasi 2001 was sent along with the notice by pay order. If really the tenant has sent a postal order for all these three months, under Ex.R5, dated 13.12.2001, there is no need for him to send the rent for the same periods under Ex.R7. The landlord disputed the receipt of pay order under Ex.R5 and even then, no attempt was made by the tenant to prove that the pay order sent by him was en-cashed by the landlord by producing evidence from the bank. Therefore, though the tenant has stated that he has paid the rent for the month of Avani, puratasi and ayppasi 2001, except the notices no proofs were produced by the tenant for having sent the rent for all three months and on the contrary, Ex.R7 makes it clear that the rents for those 3 months were not paid through Ex.R5.

14.Further, the tenant has pleaded that from Thai 2002, he was paying the rents in person to the landlord and the landlord did not issue any receipt. When the relationship between the landlord and the tenant has strained and the landlord refused to receive the rent, the story now pleaded by the tenant that he was paying rent to the landlord in person and the landlord received the same without issuing receipt cannot be accepted. Therefore, it is proved by the landlord that the tenant has committed wilful default in the payment of rent from Masi 2002 to Thai 2003 and the conduct of the tenant in not paying the rent regularly and sending notices without enclosing pay order, but stating in the notices that pay order was sent representing the rent would prove that the tenant with the intention of cheating the landlord deliberately committed default in the payment of rent and the default committed by the tenant is nothing but wilful. The trial Court, after considering all these aspects, has rightly come to the conclusion that the tenant has committed wilful default in the payment of rent and the Lower Appellate Court, without considering Exs.R4 to R9 came to the erroneous conclusion that the landlord was having Rs.10,000/- as advance and that amount could have been used towards arrears to be payable to the tenant and therefore, the tenant has not committed any wilful default. According to me, the finding of the First Appellate Court holding that the landlord should have adjusted on the advance amount towards arrears of rent and in that event, there is no wilful default is also not correct. As rightly submitted by the learned counsel appearing for the revision petitioner that our High Court consistently held that in the absence of any request by the tenant to adjust the rent from advance, it is not open to the tenant to contend that he has not committed wilful default and the landlord ought to have adjusted the rent from the advance amount. In the judgment reported in 1994(2) MLJ 264, in the case of S.Sahabudeen represented by is power of attorney, S.Mohameed Mansoor vs. Muniammal, the learned Judge after referring to the Honourable Supreme Court judgment reported in AIR 1988 S.C.1821, in the case of Nand Lal vs. Ganesh Prasad, held that unless the tenant has called upon the landlord to adjust the excess payments toward arrears of rent, he cannot escape the consequences of wilful default in the payment of rent. The learned Judge also relied on the Division Bench of this Court reported in 1950(2) MLJ 579, in Navaneethammal, In re., case to arrive at the conclusion.

15.In the judgment reported in 1999(2) MLJ 68, in the case of K.Nanjappan vs. V.K.Janaki, the learned Judge discussed the case law on this aspect and held that unless the tenant called upon the landlord to adjust the advance against the arrears, he cannot escape the consequences of wilful default. Further in this case, the conduct of the tenant should also prove that the default is nothing but wilful. As stated supra, without sending pay order along with Ex.R5, the tenant has claimed that rent for 3 months representing Avani, Puratasi to Ayppasi 2001 was paid. Further, even after the relationship was strained , he claimed to have paid the rent in person without getting receipt. These conduct on the part of the tenant would lead only to the conclusion that he has committed wilful default, even though the landlord had the advance with him.

Therefore, the finding of the Lower Appellate Court that the landlord ought to have adjusted the amount from the advance and therefore, there is no wilful default in the payment of rent cannot be accepted. Hence, I hold that the tenant has committed wilful default in the payment of rent and the finding of the Lower Appellate Court is reversed.

16.In so far, the requirement of the landlord on the ground of owners occupation, I concurred with the findings expressed by the Lower Appellate Court.

17.Admittedly, the landlord was owning several buildings in the same area and some of the buildings were lying vacant during the pendency of the proceedings and no attempt was made by the landlord to occupy the said premises for his business. Even though, the tenant cannot dictate the landlord which building is to be occupied when some other buildings are lying vacant and no explanation was given by the landlord for not occupying those buildings, the bona-fide of the landlord has to be doubted and that only lead to the presumption that the requirement of the landlord is not bona-fide and the tenant is not liable to be evicted on that ground. Therefore, the landlord is not entitled to evict the tenant on the ground of owners' occupation. However, having regard to the finding that the tenant has committed wilful default in the payment of rent, the fair and decreetal order of the Rent Control Appellate Authority is set aside and the order of the Rent Controller is restored and this civil revision petition is allowed and the tenant is granted three months' time for eviction, on condition of filing an undertaking of affidavit in the trial Court within a period of 15 days from the date of receipt of the copy of the order that he would vacate and hand over vacant possession on the expiry of the 3 months period and continue to pay rent without default. With the above observation, this civil revision petition is allowed. Consequently, connected Miscellaneous Petition is closed. No costs.

er To

1.The Principal Rent Controller, Tirunelvelli.

2.The Rent Control Appellate Authority, Tirunelveli.

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