A. Soundarapadian Nadar vs S. Madasamy Mudaliar and Another

T.N. Singaravelu, J.—This is a revision petition directed against the order of eviction passed by the Rent Controller and confirmed by the

Appellate Authority. The respondent-landlords filed the petition for eviction of the petitioner-tenant on three grounds, namely, wilful default in

payment of rent, subletting the premises and requirement for their own use and occupation. The Rent Controller accepted the plea that there was

wilful default, but rejected the other two grounds and ordered eviction on the first ground. The Appellate Authority has confirmed the finding with

reference to willful default and dismissed the appeal preferred by the tenant. Hence the revision.

The point that arises for consideration is whether the tenant has committed wilful default in payment of rent. The rent for the premises is Rs. 1 75

per mensem and the tenancy commenced on 1st June, 1974. It is common ground that the tenant paid a heavy advance of Rs. 5,240 and later, a

sum of Rs. 2,000 out of the advance Was repaid for the purpose of electrification and making improvements in respect of the building. It was a

greed that the balance was to be adjusted at the rate of Rs. 50/- per mensem in the rent and the tenant was able to pay only Rs. 125 per mensem

as rent after such adjustment. Accordingly from 10th June, 1974, a sum of Rs. 50 has been adjusted in the rent, payable. These facts are not in

dispute.

3.It is urged by the landlords that tie tenant failed to pay rent from 1st December, 1976, and that the default is wilful. Admittedly, the rent was

regularly paid till April, 1976 and, on the own showing of the landlords, the rent from December, 1976 has not been paid. The defence of the

tenant is this: Under Exhibit B-1 money order receipt he sent rent for the month of June, 1976 but the landlords refused the same. Then, the tenant

sent the rents for Kay, June and July, 1976, by money order under Exhibit B-3 which was also refused. Thereupon, the tenant sent the rent for

May, 1976 till August, 1976, by money order under Exhibit B-4, which was also refused. However, the landlords chose to accept one money

order sent under Exhibt B-5. Later, the tenant sent the rent for December, 1976 and January, 1977 by money order and the same was not vide;

Exhibit B-7 which is the money order coupon for the remittances of rent for the months from December, 1976 to May, 1977. This was also

refused, Exhibit B-9 shows that the rent for the period June to August, 1977 was also tendered and it was not accepted.

Thus, it is urged on behalf of the tenant that the tenant thereafter deposited the monthly rent in the Canara Bank from September, 1977 onwards

and he had produced the pass book for perusal before the Appellate Court. The request for reception of the pass bock as additional evidence was

rejected on a technical ground, since there was no proper application for receiving the same. However, the Appellate Authority seems to have

perused the pass book during the course of arguments, but did not choose to receive the same as additional evidence. The said pass book was

referred to in this Court also, though it is not marked. Learned Counsel for the tenant urged that this document will clinch the matter and establish

that there is no wilful default on the part of the tenant. There is some force in this argument.

Learned Counsel for the landlords contended that even if the pass book is allowed to be received in evidence, it will only show that the tenant

has been depositing the rents in Canara Bank in his own name and not in the name of the landlords. In other words, it is urged that this is not

sufficient compliance of Section 8 of Act (XVIII of 1960). In reply, learned Counsel for the tenant placed before me a ruling of this Court in

Thriyal Nayoki v. Ayyivu Chetiar (1976) 1 M.L.J. 15 and contended that the tenant has substantially complied with the requirements of law and

therefore it is enough for the purpose of holding that there is no wilful default. This short notes case is very apposite to the facts of our case. In that

case, the tenant sent the rent by money order which was refused by the landlord. The tenant thereafter made another remittance by money order

which was also rejected. Thereupon, for the subsequent months, the tenant opened an account in the post-office and deposited the rent every

month, but the tenant did not adopt the procedure prescribed by Section 8(2) of the Act. On these facts, Ramaprasada Rao, J., as he then was,

held that the non-adoption of the procedure prescribed u/s 8(2) of the Act does not throw any light upon want of bona fides of the tenant and that,

far from proving any wilfulness to avoid the obligation to pay rent, the course adopted by the tenant established her bona fides. It was further

observed in that case, that the procedure prescribed u/s 8(2) of the Act is only optional and not mandatory and that the tenant has respected the

law and her obligation by depositing monthly rents in a Post Office, thus proving that she was at all times willing to pay the rents to the landlord. In

the result, the eviction petition was dismissed holding that the default was not wilful. In the present case also, the tenant has been remitting rents by

money orders month after month and finally resorted to deposit the amount in the bank when the landlords refused to receive the money orders; of

course, he had deposited the money in his own name. However, if the pass book is received in evidence, it will certainly throw further light on the

question whether the default was wilful or otherwise.

Learned Counsel for the tenant therefore requests that the matter may be remanded to the Rent Controller for receiving the pass book as

additional evidence. I am satisfied that, on the facts and in the circumstances of the case, a further opportunity can be given to the tenant to prove

his bona fide. But then, the reception of additional evidence, namely the pass book, should be only on terms, since the tenant bad sufficient

opportunity to produce the same before the Rent Controller and he did not take diligent steps to have it marked, though he has produced the same

before the Appellate Authority. In this view of the matter I direct the tenant to pay Rs. 150 (Rupees One hundred and fifty only) as costs to the

other side before exhibiting the pass book as additional evidence before the Rent Controller.

One other factor deserves mention. It is noticed that the landlords put forward three grounds for eviction out of which two grounds, namely,

subletting, the requirement of the premises for demolition and reconstruction, have been knocked out, and the Rent Controller has observed that

those two grounds are frivolous and untenable. This only indicates that the landlords had put forward even far-fetched grounds for evicting the

tenant. Be that as it may, there is only one ground now before us namely wilful default in payment of rent, and an important piece of evidence viz.,

the pass book has not been exhibited or received in evidence.

The result of my discussion is, the order of eviction passed by the lower Courts is set aside land the matter is remanded back to the Rent

Controller for the purpose of receiving the pass book as additional evidence on application by the tenant and on his paying costs of Rs. 150 to the

landlords before the Rent Control Court. Both parties will be at liberty to let in evidence on this limited aspect and the matter will be disposed of

according to law. The revision petition is ordered accordingly. No costs.

The Rent Controller will take up the matter and dispose it of expeditiously, preferably within three months from the date of receipt of the

records.