Madras High Court
S. Sahabudeen Represented By His Power ... vs Muniammal on 31 March, 1994
Equivalent citations: (1994)2MLJ264
JUDGMENT Srinivasan, J.
1. This is a petition filed by the tenant against the Order of eviction passed by the appellate authority, viz. VIII Judge, Court of Small Causes, Madras. The appellate authority has reversed the Order of the Rent Controller, XI Judge, Court of Small Causes, Madras, dismissing the petition for eviction filed by the respondent/landlady.
2. The only ground of eviction is wilful default in payment of rent for the period from June, 1983 to September, 1984. The agreed rent is Rs. 145 per mensum. It is not in dispute that the landlady had received a sum of Rs. 3,000 by way of advance to be returned at the time of vacating the premises after the expiration of the tenancy. The tenant contended that he was paying rent regularly from the inception of the tenancy and also for the period of question. According to him, the landlady used to issue receipts every month and she did so upto May, 1983, but she stopped issuing receipts from June, 1983, though rent was being paid regularly, the landlady wanted the tenant to pay a sum of Rs. 10,000 byway of advance in order to meet her commitments, as the tenant failed to pay the said sum, the landlady took advantage of the non-issue of rental receipts and filed the petition for eviction on the ground of wilful default, the rent was sent by Money Order in October, 1984, but the same was refused to be received by the landlady.
3. In the evidence, the landlady deposed that she used to jive receipts for payment of rent and as no rent was paid for the period in question, viz., June, 1983 to September, 1984, receipts were not issued. She issued a notice on 19.9.1984 calling upon the tenant to pay the rent, but, he did not receive the notice. It returned unserved. According to her, after the filing of the petition the rent was paid to her counsel. On the date of evidence, there was arrears of five months of rent. In cross-examination, the landlady said that there was an agreement of lease and the monthly rent was Rs. 125 at the inception. A sum of Rs. 30,000 was paid by way of advance which was to be returned to the tenant at the time of his vacating the premises. She received a sum of Rs. 1,000 as further advance. It was to be deducted in the monthly rent at the rate of Rs. 50 per mensem. Thus a sum of Rs. 700 had been deducted already and a balance of Rs. 300 was payable by her. In 1984 she performed her daugther's marriage. She did not demand a sum of Rs. 10,000 as advance from the tenant. A suggestion is made to her that she did not issue receipts and was delaying such issue in spite of payment of rent from July, 1983 to September, 1984 and she has denied that suggestion. She also denied the suggestion that she refused to receive rent for October sent by Money Order. She also denied the further suggestion that there was no arrears of rent.
4. The tenant has given evidence as follows: The monthly rent is Rs. 145 He has paid rent from June, 1983 to September, 1984. The landlady gave receipt for the month of June, but for the subsequent period she did not give any receipt. When demand was made for receipt, she said she would issue the same. The rent for October, 1984 was sent by Money Order. It was returned. He had asked for the receipts for the prior period. He had been paying rent through the advocate from October, 1984 onwards. He gave a loan of Rs. 1,000 in 1983. The landlady demanded Rs. 10,000 by way of loan in 1984 for her daugther's marriage. He did not pay the same. Taking advantage of non-issue of receipts, she has filed the petition on a false pretext. There is no arrears of rent. No notice was received by him demanding arrears of rent. In the cross examination, the tenant admitted that the landlady was issuing receipts from the inception of tenancy and he used to sign in the counterfoils. He admits the signatures found in the counterfoils. He admits that the address found in Ex. A-2, returned cover, is his address. He denied the suggestion that he sent the rent by Money Order after the filing of the petition. He has also stated that a sum of Rs. 700 has been deducted from out of the loan amount of Rs. 1,000. According to him, there is no arrears of rent and there is no wilful default
5. The Rent Controller relied on the following circumstances for holding that the tenant has not committed wilful default. (1) The landlady has been depending only on the rent from the petition premises, as evident from her having borrowed Rs. 1,000 from the tenant and received Rs. 3,000 by way of advance. (2) She has not taken any action for nearly 14 months for recovery of rent. (3) She issued a notice only after a year. If there had been default, she would have issued notice immediately. On the aforesaid circumstances, the Rent Controller accepted the evidence of the tenant and held that there was no wilful default.
6. On appeal, the appellate authority has relief on certain circumstances, Firstly, the notice issued by the landlady has returned to her unserved. The endorsement thereon shows that there was no such person and in fact the endorsement is not clear. The endorsement presents a strange picture which cannot be accepted. Secondly, the landlady had been issuing receipts regularly acknowledging the receipt of rent. The fact that there is no receipt for the period in question shows that no rent would have been paid for that period. Thirdly, the observation of the Rent Controller that the landlady was depending only on the rent from the petition premises for her livelihood is not correct. Fourthly, the advance amount was never sought to be adjusted by the tenant and therefore his nonpayment of rent is wilful. Consequently, the appellate authority ordered eviction.
7. Learned Counsel for the petitioner contends that the appellate authority has committed some factual errors and therefore his findings are unsustainable. It is submitted by him that the appellate authority has erroneously construed the plea of the tenant that the landlady never issued receipt for payment of rent. According to learned Counsel, the only plea of the tenant was that though receipt was being issued upto June, 1983 it was not issued only for the subsequent period in question. Secondly, according to learned Counsel, the appellate authority is in error in thinking that the landlady had deposed that she refused to accept the Money Order, because the rent was sent only for October, 1984 and not for the prior period. There is no such version in the evidence of the landlady.
8. Neither of the circumstances pointed out by learned Counsel for the petitioner would vitiate the finding of the appellate authority. The appellate authority has considered the entire evidence on record and come to the conclusion that the default of the tenant for the period in question is wilful. There is no clear pleading on the part of the tenant as to why receipt was not issued suddenly from June, 1983. There is no dispute that she had been regularly issuing receipts, as evident from Ex. A-1. Unless there had been a valid reason, the landlady would not have stopped issuing receipts and the tenant would not have gone without taking receipt in acknowledgement of payment of rent. Learned Counsel submits that the parties had developed so much of confidence in each other that the tenant did not want a receipt for payment of rent from June, 1983 onwards. This cannot be accepted, in view of the fact that a specific suggestion is made to the landlady, when she was in the box, that she was deliberately delaying the issue of receipts inspite of demand by the tenant therefor. In his evidence also the tenant has said that he had been repeatedly asking for receipt, but she had not issued the same in spite of assuring him that she would do so.
9. There is also no explanation on the part of the tenant as to why he sent the rent suddenly by Money Order in October, 1984. It is not his case that when he tendered the rent, in person, as he used to do all along, the landlady refused to accept it and therefore he had to resort to Money Order. If the case of the tenant is true that he had been continuously paying the rent for the period in question, viz. June, 1983 to September, 1984, he would have tendered the rent for October, 1984, as usual, in person and not send the same by Money, Order. In the absence of any explanation for the sudden change in the mode of payment, the case of the tenant cannot be accepted to be true.
10. In any event, it is for the appellate authority to consider the evidence and come to the conclusion on the facts. I do not find any impropriety or incorrectness or illegality in the order of the appellate authority as regards the finding of fact. In the circumstances, I affirm the finding that the tenant has committed default in payment of rent for the period from June, 1983 to September, 1984 for which there is no explanation at all on the part of the tenant. The tenant's case that he paid the rent for that period is found to be false and therefore the default must be construed as wilful.
11. It is next contended by learned Counsel for the petitioner that the admitted fact that the landlady had received an advance of Rs. 3,000 and a loan amount of Rs. 1,000 out of which a sum of Rs. 700 had been adjusted towards the rent and there is a balance of Rs. 3,300 will go to show that there is no wilful default on the part of the tenant. It is contended as a matter of law that when the landlady is having a balance amount of Rs. 3,300 out of the loan amount given to her, she cannot claim that the tenant has committed wilful default in payment of rent. Reliance is placed upon a judgment of the Supreme Court in Modem Hotel, Gudur v. K. Radhakrishnan and the judgment of Bellie, J. in Nazimuddin v. Narasimha Rao . In the former case, the Supreme Court considered the provisions of Section 7 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. There was an amount of Rs. 5,000 taken byway of advance which was to be repaid at the time of vacating the premises. The Supreme Court observed that when the landlord had an amount of Rs. 5,000 on tenant's account with him which amount he was holding for years without paying interest and against the statutory bar, there could be no justification for granting a decree of eviction on the plea of arrears of rent. It is seen from the facts of that case that the Supreme Court had another reason for coming to that conclusion. In paragraph 11 of the judgment it is pointed out that the second contention advanced before the Bench was equally weighty. That was on the footing that the tease was for a period of thirty years which was to expire only in September, 1999 and therefore the contractual tenancy was subsisting under the provisions of the Transfer of Property Act and there could not be any eviction from such a tenancy. Apart from that, the Supreme Court has not considered any of the judgments of this Court which had taken the view that a tenant cannot escape the consequences of wilful default, unless he has made a request for adjustment of the advance amount as against the rent. Those decisions of this Court have not been overruled by the Supreme Court in that case.
12. Moreover, there is an earlier judgment of the Supreme Court in Nand Lal v. Ganesh Prasad , wherein the very question has been considered and a contrary view has been expressed. In that case, the Supreme Court has said that without the tenant calling upon the landlord to adjust the excess payments towards arrears of rent, he cannot seek such a right in the suit filed by the landlord by way of defence in the suit for eviction. The Bench has considered an earlier judgment of the Supreme Court and pointed out that it will have no bearing on the question before them. The judgment in Nand Lal's case A.I.R. 1989 S.C. 1821, has not at all been referred to in the later case decided by the Supreme Court in Modem Hotel, Gudur v. K. Radhakrishnan
13. Learned Counsel for the petitioner placed reliance on another judgment of the Supreme Court, again arising under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, in Krent Swamp Machine Tools Limited v. Smt. Kanta Bai J.T. (1994) 1 S.C. 211. In that case, under the lease deed, the tenant was required to deposit Rs. 10,000 with the landladies. A suit for eviction was filed by the landladies on the ground of arrears of rent. The court held that there is no necessity on the part of the tenant to require the landladies to adjust or to make a specific request for adjusting the rent as against the advance paid. In that view the Bench held that there was no wilful default. The Bench relied on the earlier judgment of the Supreme Court in Modem Hotel, Gudur v. K. Radhakrishnan . In that case also there is no reference whatever to the judgments of this Court taking a different view. In that situation, it cannot be considered that the view taken by this Court all along has been reversed by the Supreme Court.
14. In so far as this Court is concerned, it has been consistently held that unless the tenant has called upon the landlord to make an adjustment of the advance amount as against the rent, he cannot escape the consequences of wilful default in payment of rent. A Division Bench of this Court in Navaneethammal, In re. , held that the tenant who committed wilful default in payment of rent, in order to invoke the provisions of Sub-section (c) of Section 6 of the Act, as it stood then, should have exercised the option and called upon the landlord to make the adjustment and the mere fact that the landlord had with him an advance rent does not mean that the tenant has not committed default within the meaning of Section 7(2) of the Act. That decision of the Bench has been followed in several cases subsequently in this Court. Suffice it to refer to the following decisions : Panduranga Rao v. D. Gopala Rao , Balachandran v. Champlal Jain and Venkataraman v. Aravamuthan . A similar view has been taken by Ratnam, J., in P.S. Venkatarajan v. T.A. Govindarajan . In that case, learned Judge has referred to the judgments of the Supreme Court in Modem Hotel, Gudur v. K. Radhakrishnan , as well as Nand Lal v. Ganesh Prasad and also the earlier judgments of this Court. Learned Judge reiterated the position that without exercising an option for adjustment, the tenant cannot claim that the advance amount in the hands of the landlord would be more than adequate to cover the arrears of rent on the basis of which eviction is sought.
15. In view of the aforesaid judgments and particularly the judgment of the Division Bench, which is binding on me, the view taken by Bellie, J. in Nazimuddin v. Narasimha Rao , is not good law as the learned single Judge is bound by the judgment of a Division Bench, which has not been considered or overruled by the Supreme Court. The decision of Ratnam, J. was cited before Bellie, J. but, however, he took the view that the ruling in Modern Hotel Gudur v. K. Radhakrishnan , would cover the situation. The learned Judge (Bellie, J.) has overlooked the view expressed by this Court consistently in all the earlier cases and so long as the view taken by a Division Bench of this Court has not been overruled or declared as bad law by the Supreme Court, it is binding on me and I do not agree with the view taken by Bellie, J. particularly in view of the ruling in Nand Lal v. Ganesh Prasad .
16. In the circumstances, I am of opinion that the petitioner herein is guilty of wilful default and the appellate authority is right in giving such a finding. Hence the revision petition fails and is dismissed. There will be no order as to costs.