Madras High Court
K. Chinnathambi Rowther vs K. Shanmugam on 5 November, 2003
Equivalent citations: 2004(1)CTC407, (2004)1MLJ16
Author: Prabha Sridevan
Bench: Prabha Sridevan
ORDER Prabha Sridevan, J.
1. The tenant is the petitioner. The ground on which eviction was sought for is wilful default. Both the Courts held that the tenant had committed wilful default and ordered eviction. Against that this revision petition has been filed.
2. The rent paid is Rs. 150/- per month. The period of default is 01-12-1993 to 08-07-1994 which is the date of the petition. According to the landlord the lease commenced in 1991. Ex-P1 is a pocket notebook in which the payment of rents is recorded and the tenant has signed the same. The landlord also prayed for eviction on the ground of subletting and demolition and reconstruction. But these grounds did not find acceptance with the authorities and therefore, the only point that is argued the ground of wilful default.
3. The tenant pleaded that though he had paid the rents without any default the landlord had failed to issue the receipts. The tenant also pleaded that the landlord is in possession of a sum of Rs. 10,000/- being paid on two dates 17-07-1992 and 20-07-1992 and if this is taken into account there will not be any wilful default. This also was not accepted by the Courts below. No notice was given under Section 10 of the Rent Control Act before filing the eviction petition. This is the factual background against which the revision must be decided.
4. The learned counsel for the petitioner would submit that when Ex-P1, the pocket notebook has been produced from the custody of the landlord, the probability that the pocket notebook recording subsequent payments was also with the landlord and was deliberately suppressed by him cannot be ruled out. According to the learned counsel when no notice had been given by the landlord, the Proviso to Section 10 should have been resorted to and time should have been given by the Controller for payment of the arrears of the rent. For this purpose, the counsel relied on P.M. Punnoose V. K.M. Munneruddin & Ors.(2002 AIR SCW 3663). He submitted that the landlord had deliberately suppressed the pocket notebook in which rents subsequent to 01-12-1993 had been paid. It was also submitted that Exs-R8 and R9, which show the payment of advance, ought not to have been disbelieved by the Court below. Exs-R8 and R9 are ledgers maintained in the course of business and therefore, when they speak of payment of Rs. 5000/- each on 17-07-1990 and 20-07-1990 the payment should have been held to have been proved the ground of wilful default should have been rejected.
5. It is further submitted that had notice been given before the petition and the tenant had still not paid the rent then the Explanation to Section 10 would have come into operation and the default would be considered as wilful. But in this case no notice was given, so it was the duty of the landlord to prove that the default was wilful and when it was not proved the tenant ought to have been given a reasonable time to pay the rent. It was also submitted that the benefit of doubt should have been given to the tenant. It was also submitted that the Courts below appeared to think that non-compliance with Section 8 of the Rent Control Act was fatal to the petitioner's case but Section 8 is only directory and not mandatory. For all these reasons, the learned counsel prayed that the order of eviction must be set aside.
6. The learned counsel for the respondent, on the other hand, submitted that the Rent Control Act does not insist upon issuance of notice and therefore, notice was not mandatory. When an application is filed for eviction on the ground of wilful default it is for the tenant to prove payment of rent. The consequences of not obtaining receipt has been spelt out in Marudachala Udayar V. Dhandapani (1980 I MLJ 169) and it has been held that it is the duty of the tenant to obtain receipts and if the landlord either refuses to receive rent or evades issue of receipt, Section 8 has been introduced to protect the tenant's his own interest. The learned counsel also relied on Damodaran Naicker v. Janaki Ammal (1995 I MLJ 33) and R. Angappan V. A.G. Srinivasan & Others(2003 IV LW 69).
7. The pleadings and the evidence were perused. In the petition it is stated that "he is a tenant from 01-01-1991. For payment of rental, the petitioner is having a pocket notebook in which the respondent would sign for payment of rental." The counter which is also extracted in the orders of the Rent Control authority is as follows:
"Since the petitioner refused to issue receipts for the period of proceeding 1991, the respondent No. 1 was not able to produce the receipts but the respondent conduatable to disprove the contention of the petitioner."
...8. The respondent was regular and in time would keep the book for some time and enter the payment. He used to handover receipt after a weeks' in order to make a false charge the honorable court till date, the respondent has not committed wilful default."
8. It is a little difficult to understand what is meant by these averments in the counter. One presumes that the allegation in the counter is that the petitioner refused to issue receipts for the period preceding 1991. Ex-P1 shows that an account book has been maintained from 01-01-1991 to 30-11-1993. As far as the averment in paragraph No.8 is concerned perhaps what the respondent means is that he was regular in payment of rent, and that he would keep the pocketbook for sometime, enter the payments and hand it over to the petitioner after a week's time. Ex-P1 shows that the understanding between the parties is also set down in the first pages of the pocketbook and it reads thus:
@khjk; xd;Wf;F thlif U:gha; 150-? U:gha; E}w;wp Ik;gJ ngrp 01?01?1991 $dthp Kjy; bjhHpy; elj;jp tUfpwhh;/@
9. Therefore, it is difficult to believe the petitioner's case in the counter that the agreement did not start in the year 1991 but that he has been a tenant for more than thirty years, in the absence of acceptable evidence to that effect.
10. P.W.1 has stated that the building was let out on 01-01-1991 and that the respondent would enter the payment of rent in Ex-P1 and then give it to him. This is in conformity with paragraph No.8 of the counter extracted above. In the chief examination, P.W.1, has denied that the petitioner was a tenant for thirty years. In the cross-examination he has denied that there is any other book except Ex-P1. It has also been suggested to P.W.1 that he has taken away Ex-P1 and filed the application on the ground of wilful default. He has denied that there is any book recording payment of rent after December 1993. He has stated that if there is any such record in the petitioner's own account-book those entries cannot be accepted and they have been created for the purpose of the case.
11. R.W.1, the petitioner has denied that the tenancy commenced from 1991. He claimed he had paid an advance of Rs. 5000/- in July 1992 and Rs. 5000/- again in August 1992, but for that he did not obtain any receipts. There is also no receipt for payment of rents. He has stated that for payment of rent, entry would be made in one book and that is Ex-P1. In cross-examination, he has stated that the book showing payment of rent from 01-12-1993 to July 1994 is with the respondent. As regards the accounts, he has stated that the accounts are maintained by an Accountant and it runs as follows, @ehd; fzf;Fg;gps;]s itj;J fzf;F vGJfpnwd;/@
12. In 1995 I MLJ 33 (cited supra) this Court held that where wilful default in payment of rent is alleged and the answer of the tenant is that the landlord never issues receipts, the Court cannot ignore the implications of Section 8 and it was held that in the absence of proof of payment of rents it will not be correct to presume that the tenant must have paid the rents and the landlord must have declined to issue receipts.
13. In 2003 LW 69(cited supra) also it was held that taking recourse to proceedings under Section 8(5) without following the proper procedure would show that the default amount to supine indifference.
14. In (cited supra) it was argued that if there is substantial compliance with Section 8 in as much as the arrears rent stand deposited in Court a strict or technical view ought not to be taken. The Supreme Court declined to accept this argument.
"We are unable to accept this contention advanced on behalf of the appellant by the learned counsel. The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters. The statute contains express provisions. It prescribes various steps, which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh V. Ganpat Lal and M. Bhaskar V. J. Venkatarama Naidu . "
Therefore, it is clear that when the statute contains specific provision equity has no place.
15. In the grounds of appeal filed by the petitioner herein before the Appellate Authority, the focus seems to be more on the question of whether it is not the duty of the landlord to pass receipts. The petitioner had claimed that though admittedly the payments have been made the pocket notebook in the custody of the respondent and the respondent had not passed receipts as per law. Before the appellate authority, which is the final Court of fact there is no whisper that there was another notebook in which entries are made for payment of rents after 12th December. The arguments made by the learned counsel before this Court though attractive cannot be accepted. Both in the evidence and in the pleadings no such statement is made. The petitioner wants this Court to accept the statement made in his evidence that the payment of rent is recorded in the pocket notebook to mean that it is in another pocketbook. Both the respondent and the petitioner admit that after the rents are paid every month the pocketbook would be given to the petitioner who would make the entry and return it to the respondent. This seems to be a peculiar practice since it is the landlord who should have acknowledged receipt of payment but the practice between the parties was for the tenant to record payment of rent. It is admitted by both the parties that this has been the practice and it is this, Ex-P1 the only record to show that payment has been made from 01-01-1991 and the record stops with July 1994. In Ex-P1, the entries have been made serially and naturally and there is no room to believe otherwise.
16. In 2003 AIR SCW 3663(cited supra) the question was what was the period for which the tenant was in arrears and whether the amount paid in December which was claimed by the tenant who have been paid for the month of November could have been appropriated for the landlord for the month of October. In that case, the Rent Controller had recorded that the rent was being paid or the money orders tendered soon after the purchase of the property and the dispute centered on payment for the month of October. Therefore, in that case, there was a bona fide dispute for the quantum of arrears as well and therefore, the Supreme Court held that the Rent Controller ought to have expressed his direction as per Proviso to Section 10(2)(i).
"Provided that in any case falling under clause (i) if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may, notwithstanding anything in Section 11, give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him to the landlord up to the date of such payment or tender and on such payment or tender, the application shall be rejected."
17. It is clear that if the default is not wilful the Controller may exercise its discretion to give the tenant a reasonable time. The exercise of discretion is not called for if the landlord makes out a case of wilful default. It is explained in the judgment that while the tenant in that case, could not be held a defaulter by reference to the Explanation, it was still open to the landlord to plead wilful default.
18. In that case, there appears to have been a bona fide dispute as to the quantum of arrears and as to the exact number of months for which the liability to pay rent came to be extinguished. In those circumstances, the Supreme Court came to the conclusion considering the totality of the conduct of the tenant/appellant that it was clear that he had always made an effort to pay the rents and the delay was bona fide and not wilful. The Supreme Court also referred to M. Bhaskar V. Venkatarama Naidu and held that there the question centered around Section 8 and factually even after the petition had been filed, the tenant did not think of offering the rent to the landlords.
19. In this case, the appellate authority has found that even after the petition has been filed the arrears of rent was not paid by the tenant. Here the admission is, that the pocketbook would be given to the tenant and he would make the entry and return it to the landlord. The petitioner has neither proved that there was another pocketbook besides ex-P1 nor that the respondent took back the said other book and refused to return. In fact his evidence is that the respondent would record the payment of rents in one book and it is Ex-P1.
@kDjhuh; ,lk; thlif brYj;jpajw;F kDjhuh; xU nehl;L g[j;jfj;jpy; tut[ itj;Jf; bfhLj;jhh;/ me;j nehl;L g[j;jfk; vf;/gp?1/@
20. The law casts a duty on the tenant to receive receipts and if the landlord refuses to issue receipts, the tenant is protected by the provisions of Section 8. As regards the so-called entries in Exs-R8 and R9 the petitioner's admission is that his Accountant would maintain the accounts. But the Accountant is not examined. Apart from the self-serving entries in the account-book there is no other evidence. It is unbelievable that a person who is carrying on business would part with Rs. 10,000/- (Rupees ten thousand only) without obtaining any receipt. It is difficult to believe the case of the petitioner that apart from his own account he has no other evidence to prove the payment of a sum of Rs. 10,000/-.
21. To sum up, there is neither pleading nor evidence that besides Ex-P1 there was another book in which the payment of rents for the period subsequent to 08-07-1994 was recorded, Ex-P1 has been admitted as the book in which the entries of payment of rent were made, the petitioner has not produced receipts nor has he resorted to proceedings under Section 8 of the Act, the petitioner did not pay the arrears even after the RCOP was filed, the payment of advance of Rs. 10,000/- has not been proved, there is no receipt for the same, the Accountant, who maintained the accounts as per Ex-R8 and R9 has not been examined and except for the evidence of R.W.1, there is no proof of payment of rent or advance.
22. For all the above reasons, the Courts below came rightly to the conclusion that the landlord had proved that default was wilful. Furthermore, the petitioner in this case, had not paid the arrears of rent even after the RCOP was filed and therefore, such a person cannot complain that, had he been given 15 days' time he would have paid the rent. In any event since the Rent Controller was satisfied that the default was wilful the Proviso did not come into play and there was no occasion for him to give the tenant an opportunity to pay the amount in arrears.
23. The civil revision petition is therefore, dismissed. No costs. The connected miscellaneous petition is also dismissed.