Alagumani vs K. Shanmughum and Others

Pratap Singh, J.—This civil revision petition is directed against the judgment in R.C.A. No. 1032 of 1986 on the file of Appellate Authority

(VIII Judge, Court of Small Causes, Madras), in which the learned Appellate Authority has confirmed the order of the Rent Controller in

R.C.O.P. No. 2710 of 1984 on the file of Rent Controller (IX Judge, Court of Small Causes, Madras).

Short facts are: The respondents had filed petition for eviction on the ground of wilful default in payment of rent for the period from 1.10.1983

to 30.6.1984. That was resisted by the revision petitioner. After enquiry, the learned Rent Controller found that there was wilful default in payment

of rent and had ordered eviction. Aggrieved by the same, the tenant had filed R.C.A. No. 1032 of 1986 and having failed there also, has come

forward with this revision.

Mr. Narayanaswamy, the learned Counsel appearing for the revision petitioner, would submit that at the time of the earlier R.C.O.P. against the

very same tenant for eviction on the ground of requirement for demolition and reconstruction, there was arrears of rent for the period of two

months and subsequently on 14.2.1984, the tenant, sent the rent by money order and it was refused. So the tenant did not send any rent by money

order, knowing fully well that it would be refused and in those circumstances though there was default in payment of rent, it cannot be construed as

''wilful default''. He would further submit that the courts below had not considered this aspect of the case in its proper perspective and had come to

an erroneous finding. Per contra, Mr. Sundar, the learned Counsel appearing for the respondents, would submit that subsequent to Ex.R-1, the

tenant continued to fail to pay the rent upto August, 1984 and then this R.C.O.P. was filed and even after the filing of the petition and after the

tenant entered appearance through lawyer, he did not choose to pay the rent and paid rent only six months later and this conduct on the part of the

tenant would go to show the default was only ''wilful''.

I have carefully considered the submissions made by the learned Counsels. Ex.R-1 dated 14.2.1984 is the refused money order coupon. Rent

for four months was sent by money order and it was refused. This petition for eviction was filed only on 8.8.1984. A period of nearly six months

had elapsed in between. The tenant had not chosen to sent the rent during that period. It is not in dispute that even after filing of the petition and

advocate entered appearance he did not pay the rent. Only after the lapse of six months, he paid the rent. In those circumstances, the question that

falls for consideration is whether in those circumstances, the default committed by him is to be wilful or otherwise. In this regard Mr.

Narayanaswamy relies upon Siluvaimani Ammal Vs. Thangiah Nadar,

Under the Madras Buildings (Lease and Rent Control) Act, 1949 where a landlord refuses to receive or evades the receipt of the rent payable by

a tenant, if is open to the tenant to resort to the provisions of Section 6-A of the Act which provides a special machinery for such cases. The

section no doubt provides that the tenant should first call upon the landlord to specify a bank in which the rents could be deposited. But if a tenant

without complying with that clause resorts to the next clause viz., Sub-section (4) of Section 6-A and sends the rent by money order, which is

refused by the landlord, failure to continue to tender subsequent monthly rents by money order will not constitute wilful default within the meaning

of Section 7(2) Proviso of the Act.

That ruling was rendered under the Madras Buildings Act, 1949. It is not seen from the short notes as for how long after refusal of the first money

order, the tenant did not continue to tender the rent by money order. It cannot be that once the money order was refused, the tenant can remain

idle without payment of rent and say there is no wilful default in payment of rent. The liability to pay the rent accrues on the expiry of every month.

To consider whether the default is wilful or otherwise, there cannot the any hard and fast standard or rule. It is to be determined on the facts of

each and every case. In this case, earlier a petition was filed for eviction on the ground of requirement for demolition and reconstruction and that at

that time, there was arrears of rent for two months. Thereafter, the tenant had sent rent by money order for four months. There was refusal to

receive the rent. Even after the filing of the petition, he had not paid the rent. This conduct cannot be ignored. The totality of the circumstances

would lead to the conclusion that default in payment of rent was wilful. Hence, I am unable to hold contra, on the facts of this case. I am unable to

subscribe to the theory that once rent was refused by the landlord, for all to come, the tenant can remain idle and keep quiet without payment of

rent and still contend that there was no wilful default in payment of rent. Taking that view of the matter, I am unable to accept the submission of

Mr. Narayanaswamy and consequently this civil revision petition fails and shall stand dismissed.