K. Karuppiah vs B. Kubendran

A.C. Arumugaperumal Adityan, J.—This revision has been directed against the Judgment in RCA No. 209 of 2002 on the file of VIII

Judge(Rent Control Appellate Authority) Court of Small Causes, Chennai which had arisen out of an order in R.C.O.P. No. 1005 of 1999 on the

file of XI Judge(Rent Controller) Court of Small Causes, Chennai. The unsuccessful tenant before the Courts below is the revision petitioner

herein.

The tenant had filed R.C.O.P. No. 887 of 1999 u/s 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act (Hereinafter referred to as

Act"") before the XI Judge (Rent Controller) Court of Small Causes, Chennai. The said O.P. Was dismissed by the learned Rent Controller

against which there was no appeal or revision preferred.

R.C.O.P. No. 1005 of 1999 was filed u/s 10(2)(i) of the Act on the ground that the tenant had committed default in payment of monthly rent of

Rs. 175/- from April 1996 to March 1999. The tenant had agreed to vacate and hand over the possession of the petition schedule building on or

before 1.4.1998 but has not vacated the premises. During December 1998, the tenant had sent the rent through money order. The said amount

was adjusted towards the arrears of rent for the period from April 1996 to March 1999. For the notice sent by the tenant dated 18.1.1999, the

landlord had sent a suitable reply dated 27.1.1999. The tenant/respondent had committed wilful default in payment of rent for the period from

1.4.1996 to 31.3.1999. Hence, the petition.

The respondent in his counter would contend that the tenant had paid the rent without committing any default. The tenant had paid the rent to the

previous landlord regularly. Since the tenant had refused to vacate and hand over the petition schedule building to the landlord in the year 1998, the

landlord had refused to receive the rent tendered by the tenant in the month of January 1999. Thereafter from January 1999, the tenant is paying

the rent through money order. Even though, the landlord had received the rent for the month of January 1999 sent by the tenant by money order,

he had refused to receive the same for February 1999. Hence the tenant had filed a petition u/s 8(5) of the Act in R.C.O.P. No. 887 of 1999. The

landlord is not in the habit of issuing receipt for the rent paid by the tenant. Hence the petition is liable to be dismissed.

Before the learned Rent Controller, the petitioner has examined himself as P.W.1 and exhibited Exs P1 to P11. On the side of the respondent,

the respondent was examined as R.W.1 and Ex R1 was marked. After scanning the evidence both oral and documentary, the learned Rent

Controller had allowed R.C.O.P. No. 1005 of 1999 thereby ordering eviction giving a month''s time for the tenant to vacate and hand over the

vacant possession of the petition schedule building and also dismissed R.C.O.P. No. 887 of 1999 filed by the tenant u/s 8(5) of the Act.

Aggrieved by the findings of the learned Rent Controller in R.C.O.P. No. 1005 of 1999, the tenant had preferred RCA No. 209 of 2000 before

the learned Rent Control Appellate Authority(VII Judge), Court of Small Causes, Chennai. Finding no material to interfere with the findings of the

Rent Controller, the learned Rent Control Appellate Authority has dismissed R.C.A. No. 209 of 2002 which necessitated the tenant to approach

this Court by way of this revision.

Now the points for determination in this revision are

a) Whether the receipt of arrears of rent for the month of February 1999 by the landlord will absolve the tenant from considering him as a wilful

defaulter in payment of rent for the period from April 1996 to January 1999?

b) Whether the Judgment of the learned Rent Control Appellate Authority in RCA. No. 209 of 2002 is liable to be set aside for the reasons stated

in the memorandum of appeal?

Heard the learned Counsel appearing for the revision petitioner as well as the learned Counsel appearing for the respondent and considered

their respective submissions.

Point No. 1:

According to the learned Counsel appearing for the landlord/respondent, even after the filing of R.C.O.P. No. 1005 of 1999, the tenant had not

paid the admitted rent of Rs. 175/- per mensum for the petition schedule building regularly. According to the tenant, there was no arrears of rent

for the petition schedule building upto January 1999 and the rent due for January 1999 was sent by money order under Ex R1 but the same was

refused by the landlord and hence it was contended on behalf of the tenant/revision petitioner that the tenant had not committed wilful default in

payment of rent.

Per contra, it is the case of the landlord that the tenant is a chronic defaulter in payment of rent and the rent is due from April 1996 to March

1999 and only in January 2002, 35 months rental arrears amounting to Rs. 6,125/- was paid by the tenant which was received by the counsel for

the landlord.

The learned Counsel appearing for the respondent relying on a decision reported in The Nilgiris Co-operative Marketing Society Vs. C.T.

Uthandi, would contend that the tenant shall not allow the rent to accumulate for several months and thereafter if he pays in one lumpsum the

arrears, that will not absolve him from considering him as a wilful defaulter in payment of rent. The exact observation on which reliance was placed

by the learned Counsel appearing for the respondent in The Nilgiris Co-operative Marketing Society Vs. C.T. Uthandi, runs as follows:

No question whatsoever had been asked to the landlord, while he was in the witness box about the existing practice of the rent being allowed to

accumulate in the hands of the tenant and then being paid by the tenant when it is demanded by the landlord. It appears in the evidence of P.W.1

that the rent for the period commencing from February 1988, which is complained of in the present petition, was paid by the tenant, by way of

cheque dated 5.12.1988 to his counsel on 8.12.1988 which is the date fixed in the summons for the appearance of the tenant. It is clear in this

case that the tenant has not established his case of the tenant being allowed by the landlord to be accumulated in his hands and then making the

payment whenever the demand is made. The tenant in his evidence as R.W.1 has not given any evidence with regard to the practice of the landlord

in allowing the rent to accumulate and then receiving it in lump sum. Therefore, it appears to my mind in a crystal clear manner that the tenant has

come forward with the false explanation and therefore, he does not deserve any indulgence.

The same proposition of law has been reiterated in B. Anraj Pipada v. V. Umayal 1998 3 L.W.159 as follows:

When the eviction proceedings have been initiated on the ground of wilful default, one would expect the tenant to pay the rent regularly every

month at least after the initiation of the proceedings. When the tenant has failed to pay the rent regularly even during the pendency of the

proceedings, then there is no doubt that his conduct in paying the rent as he likes, will amount to wilful default.

Even though R.C.O.P. No. 1005 of 1999 was filed in the year 1999 there is no material placed before the Rent Controller that even during the

pendency of R.C.O.P. No. 1005 of 1999, the tenant had paid the rent for the petition schedule building to the landlord without committing any

default. Supine in difference of a tenant in payment of rent is to be taken note of in a petition filed u/s 10(2)(i) of the Act in favour of the landlord as

laid down in K.N. Gunalan represented by his power agent K.N. Gunalan represented by his power agent Parimelazhagan and Another Vs. C.

Santhalingam, as follows:

The course of conduct as seen will show that the tenant had been supinely indifferent in the matter of payment of rent. The fact that he has been

irregular in making payment raising a false plea that he used to pay only in lumpsum once in a few months will show that he has committed default

wilfully.

Relying on various decisions like The Nilgiris Co-operative Marketing Society Vs. C.T. Uthandi, , B. Anraj Pipada v. V. Umayal 1998 3

L.W. 159, M/Balu v. K. Jawahar 2000(1) MLJ 535, P. Vasuvaithiar v. R.M. Rangoo Chettiar 2000(2) L.W.708 , Raminder Singh Sethi v. D.

Vijayarangam 2002(4) SCC 675 and R. Murugan Vs. M.O.M. Abubucker, , this Court has held that the subsequent conduct of the tenant is to be

taken into consideration while deciding the question whether he had committed default wilfully and is liable to be evicted u/s 10(2)(i) of the Act. In

the case on hand, it was contended on behalf of the revision petitioner that the tenant had paid the rent due for the month of April 1996 to January

1999, but there was no material placed before the learned Rent Controller to substantiate the same. As I have observed earlier even after the filing

of R.C.O.P. No. 1005 of 1999 by the present landlord, the tenant has not filed any piece of evidence to show that he was regular in payment of

the admitted rent to the landlord for the petition schedule building. Both the Courts below have concurrently held that the revision petitioner/tenant

had committed wilful default in payment of rent and is liable to be evicted u/s 10(2)(i) of the Act. Unless it is shown that the findings of the lower

Court are perverse in nature and have failed to consider the materials placed before them, this Court cannot interfere with the concurrent findings

of the Courts below. There is absolutely no material placed before this Court to show that the Courts below have rendered a finding perverse in

nature and that they failed to consider the material placed before them and arrived at a conclusion that the tenant had committed wilful default in

payment of rent. The fact that the arrears of rent paid in the month of January 2002 amounting to Rs. 6,125/- was adjusted towards 35 months

rent is not a ground for the tenant to claim that he has not committed default wilfully, since the landlord had subsequently received the rent in

January 2002. Point No. 1 is answered accordingly.

Point No. 2:

In view of my discussions and findings in the earlier paragraph, I do not find any reason to interfere with the findings of the learned Rent Control

Appellate Authority in RCA No. 209 of 2002 on the file of XI Judge Court of Small Causes, Chennai.

In fine, this civil revision petition is dismissed confirming the Judgement of the learned Rent Control Appellate Authority in RCA No. 209 of

2002 on the file of XI Judge Court of Small Causes, Chennai. Time for vacating the premises by the tenant is two months from today. No costs.