Itty Achamma vs Kochuthuppu Ittiavira

Vithayathil, J

The second Defendant is the Appellant. The appeal relates to an order in execution. The suit was for recovery of possession of property on the basis of a lease and for, arrears of rent. The Defendants contended that the lease was irredeemable. That contention was accepted by the trial Court, and in the decree passed on 25-3-1944 the prayer for recovery of possession was disallowed. Both parties appealed from that decree and the District Court disposed of both the appeals on 17-7-1945 holding that the property was redeemable and giving the Plaintiff a decree for recovery of possession of the property with arrears of rent and future rent. The case was remanded to the trial Court for the trial of issues relating to value of improvements; and other matters which had not been considered by that Court. The second appeal filed in the High Court from this decision was dismissed on 31-11-1123. Subsequently the trial Court passed its final decree on 15-12-1949. The value of improvements was found to be Rs. 220-12-6. In appeal filed by the second Defendant from this decree the District Court enhanced the value of improvements by Rs. 215. The District Court decision was on 21-8-1951. Even before the appeal was disposed of the decree-holder filed an execution petition on 17-6-1950 for recovery of possession of the property and for realisation of arrears of rent after setting off the value of improvements. Notice was issued to the Defendants on this petition. Subsequently, execution was stayed by the order of the District Court. The present execution petition was filed on 28-3-1952 for recovery of possession of property and for realisation of arrears of rent and future rent after setting off value of improvements. Notice was ordered to the Defendant with regard to the prayer for set off Notices were served by affixture as Defendants 1 and 2 refused to accept the same. No objections were filed with regard to the prayer for set off and on 28-5-1952 the Court allowed the set off and posted the execution petition to 5-6-1952 for further steps. On that day the Court ordered delivery of property to be effected on 20-6-1952 and notice of delivery to be returned turned unserved and that issued to the second Defendant was served by affixture as she refused to accept the same on 17-6-1952 fresh notice was ordered to the first Defendant to be returned on 20-6-1952 and delivery was adjourned to 23-6-1952. On 18-6-1952 the second Defendant applied for chalan to deposit the rent for the years 1950, 1951 and 1952. Chalan was ordered to be issued on 20-6-1052, and the amount was deposited on 20-6-1952. On the same day, the second Defendant filed objection to delivery of possession of the property claiming the benefit of Act 8 of 1950. On 2-7-1952 the second Defendant on the ground that there was wilful and unjustifiable default on her part in paying the rent of the property which accrued due after the commencement of Act 8 of 1950. In appeal filed by the second Defendant from this order the District Court also took the same view. Hence this second appeal.

The only question for consideration in this second appeal is whether there has been wilful default on the part of the second Defendant in paying the rent of the property that accrued due after the commencement of Act 8 of 1950. Reliance is placed by the Appellant on the Full Bench decision of this Court in-''Sanku Krishnan v. Hari Prabhu Govinda Prabhu AIR 1952 TC 333 (FB) (A). What was held in that case is this:

We, therefore, hold that even if it is found that the tenant has not paid the rent that accrued due after the commencement of the Act on the due date the Court has discretion to refuse to order delivery of possession of the holding. This discretion will certainly have to be exercised in a judicial manner, Ordinarily the Court will not order delivery of possession of the holding if the tenant pays the rent before delivery is ordered. But in exceptional cases the Court may order delivery even if the rent is tendered or paid before delivery is ordered. The question for consideration in such cases will be ''whether there has been wilful and unjustifiable default on the part of the tenant in paying the rent. As a rule of practice, it may be stated that only in cases in which a demand for rent has been made by the landlord or notice has been given to the tenant by the Court to show cause why delivery of possession of the holding should not be ordered, and the tenant without any lawful excuse fails to pay the rent, that it can be held that the tenant has failed to pay the rent of the holding as contemplated by the proviso. We wish however to make it clear that this is only a rule of practice that may be adopted by the Courts, and that the question is primarily one of discretion to be exercised by the Courts in a judicial manner.

In this case both the Courts below have found that there has been wilful and unjustifiable default on the part of the second Defendant in paying the rent of the holding that accrued due after the commencement of the Act. I find no reason to disagree with the Courts below on this question. Even in the execution petition filed on 17-6-1950, the decree-holder had applied for delivery of possession of property and also for realisation of rent that had accrued due till that date. The Defendants refused to accept the notice issued on this execution petition. Further notices relating to execution had also to be served by affixture as the Defendant refused to accept the same. When the properties of the Defendants came for sale the first Defendant entered appearance on 23-12-1950 and applied for adjournment of the sale. This sale was subsequently stopped on 28-7-1951 as per stay order issued by the District Court. On the execution petition dated 28-3-1952 in which the decree-holder applied for delivery of possession of property and for setting off the value of improvements against arrears of rent notices were issued to the Defendants. They refused to accept these notices also. On 5-6-1952 the Court ordered delivery of property to be effected on 20-6-1952 and notice of delivery was issued to the Defendants. The second Defendant again refused to accept the notice while the notice of the first Defendant was returned unserved. On 17-8-1952 to which date the notice was ordered to he returned no objection was filed by this second Defendant. It was only on 18-6-1952 that she applied for chalan for depositing the rent that accrued due after the commencement of the Act and the amount was deposited only on 20-6-1952. It will thus be seen that the rent that accrued due after the commencement of the Act was deposited by the second Defendant long after the decree-holder demanded the same through Court and after the Court ordered delivery of property. The second Defendant has no case that the endorsement of the process-server that she refused to accept the notice of delivery is false. She has also no case that the notice issued on the execution petition dated 17-6-1950 was not taken to her. In the circumstances, there is no justification for her not paying the rent earlier. As observed by the learned Munsiff, the lessee was enjoying the property without paying any rent for the last 25 years. This is clearly a case in which there has been wilful and unjustifiable default on the part of the lessee in paying the rent. The Courts below have exercised their discretion properly in ordering delivery of the property.

The second appeal is, therefore, dismissed with costs.