Komalam Ammal vs Ashoka Cycle and Motor Company

T. Sathiadev, J.—This revision petition is filed as against the order of the Appellate Authority, Tiruchirapalli in C.M.A. No. 29 of 1974. The

landlady has preferred this revision petition. The Rent Controller in H.R.C.O.P. No. 243 of 1972 held in her favour by holding that there has been

a wilful default, in the payment of rents for nearly 33 months and that the tenants had ceased to occupy the premises and therefore are bound to

surrender vacant possession of the premises within 2 months from the date of the order.

The landlady being the petitioner herein, filed the petition claiming that the schedule premises is a non-residential one and it was leased out on

16th June, 1966 in favour of the first respondent, for carrying on a business in cycle spare parts, on a monthly rent of Rs. 150. It is stated further

there in, that till February, 1968, first respondent was carrying on business in cycle spare parts. But afterwards, the landlady was informed that the

business in cycle spare parts is to be carried on in another premises and that the schedule premises will be utilised for the sale of steel furnitures to

which she consented and the name and style of the business is that of the second respondent. This business was also stopped in August, 1969 and

since then the premises had been kept without being used for any purposes and therefore the landlady sent a notice through her advocate under

Ex. A. 9 on 19th May, 1972 to which a reply was received under Ex. A-10 dated 8th July, 1972 along with a cheque for a sum of Rs. 4,950

being the rent payable by the tenants for the period, September, 1969 till date of notice. Hence, she had asked for eviction on the ground of wilful

default and for failure to utilise the premises for the purpose for which it has been leased out.

This claim was opposed by the tenants stating that no doubt the premises had been taken on lease on 16th September, 1966, but after the rent

was paid for the month of September, l969, the landlady had told the tenant that she will receive the amount in lump sum and therefore monthly

rents were not paid for 33 months till the demand notice was received under Ex. A-9 and immediately thereafter the entire rent had been paid and

subsequently the monthly rents are being paid, and therefore, there was no wilful default. About the cessation of business, it was contended that the

premises was being used for the business carried on by the respondents and the claim to the contrary is false.

Mr. B. Raghaviah, learned Counsel for the petitioner landlady, strenuously pleads that the appellate authority had not properly comprehended

about the wilful default, when admittedly for 33 months rent had not been paid by the tenant. Fortunately in this case, there is no dispute about not-

payment of rent for the period in question. The version of the tenants is that after the rent was paid for September, 1969, the landlady had told the

tenants that she will receive the amount in lump sums and hence the rents were not paid on due dates. This claim is stoutly denied by the landlady

and her husband, who has been examined as P.W. 1 and who is said to be a practising lawyer, has stated in his evidence that the property belongs

to his wife, and that he has been looking after the affairs regarding collection of rents, and that both of them reside in the upstairs portion and his

office is also located in the upstairs portion of the premises. He states that at no point of time, either himself or his wife had agreed to receive the

rents in lump sum, and inspite of demands, the rent was not paid for 33 months.

Mr. P. Ragaviah, learned Counsel for the petitioner, by referring to the evidence of P. Ws. 1 and 2 extensively contends that there is no

satisfactory evidence about any agreement to receive the rents in lump sum, and even if it be so, it would not have been for any indefinite period

and the tenants did not say as to what was the agreement about receipt of rents in lump sum. It is not as if the landlady had agreed to receive the

rents once in three months or six months at the end of a year. No such period is whispered by the tenants. Therefore there being an improbability

of an agreement by the landlady to receive the rents in lump sum, the failure to pay rents on demand, will by itself constitute a wilful default. He

relies upon the decision reported in Raju v. Ramasawami Naicker (1954) 2 M.L.J. 51 : 67 L.W. 573 : AIR 1945 Mad. 1016 in support of this

contention. In this case, it will be seen that the period of non-payment is not less than 33 months. The landlady and her husband, who is in

advocate, resids in the upstairs portion. Even though Mr. P. Ragaviah, learned Counsel for the petitioner herein, would contend that it is not for the

landlady to demand the rents and that the entire obligation is only on the tenant to see the landlady and pay the rents on time, the improbability of

the tenants being allowed to be in possession of the property for 33 months without a single demand for payment of rent being made by the

landlady and her husband looms large in this matter. P W. 1 in his evidence states that after receipt of the rent for August, 1969 on 9th September,

1969 he made the demand for the rents payable for the months of September to November, 1969 and that the rents were not paid. He had not

sent any notice of demand. He admits that for the period of December, 1969, till issue of notice under Exhibit A-19 he had never made any

demand for rents. It is this inaction on the part of the landlady''s husband, who is quite conversant with the ingredients which would result in ''wilful

default'' and the right to get an order of eviction, leads to the conclusion that the version of the tenants that the first respondent had been told by the

landlady that she would receive the rents in lump sum is quite probable. Even in the decision relied upon by Mr. P. Ragavaiah learned Counsel for

the petitioner, the learned Judge has held that a debtor can hardly, be said to be wilful in repayment when the creditor doss not display any anxiety

in collecting his dues. If there is an agreement to pay rents at a particular time, it is impossible to see how there can be any default in the payment of

it, before the stipulated time has arrived, In that case, it was held:

It is also noteworthy that the landlord has not filed a single written demand by him for the rent which was in arrear. A debtor can hardly be said to

be wilful in repayment when the creditor does not display any anxiety in collecting his dues.

In this case no anxiety had been displayed by the landlady in the matter of collecting the rent dues. The circumstances, the admission made by

P.W. 1, the fact that the landlady and her husband (an advocate) are residing in the upstairs portion of the premises and there being no evidence to

show that any demand had been made for payment of rents, all lead to the irresistible conclusion that the landlady and her husband have agreed to

receive the rents in a lump sum as and when they require. That is what R.W. 1 deposes by stating:

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In this view, the appellate authority was perfectly correct in holding that the conduct of the landlady and the circumstances above stated, show that

there has been no wilful default in payment of rents for the period of thirty three mouths in question.

The premises was closed from 4th September, 1969. It is stated that the premises was let on lease only for the purpose of the cycle shop and

subsequently, apart from failure to pay the rents, the premises also had been kept closed. To rebut this claim the tenants had marked several

documents and in particular the appellate authority had taken Ex B-40 to B-47 into account, which show that business was being carried on during

the period in question and the sales tax monthly returns and invoices show that the tenants were carrying on business. Sales tax returns produced

do not bear the seal of the department and hence cannot be acted upon.

Mr. Ragavaiah, learned Counsel referred to Ex. B-41 and pleads that there is no entry in that exhibit about the suit premises and that in other

exhibits, the number regarding the suit premises has been interpolated, and hence they cannot be relied upon. He also refers to the petition filed by

the landlady demanding the tenants to produce the electricity consumption bills, bill books, day books and assessment orders and ledgers

belonging to the tenants, but inspite of it, they have not been produced Regarding Electricity bills, landlady residing in upstairs portion, could have

easily proved by summoning the records of the Electricity Department to show that the schedule premises did not utilise any electricity during the

relevant period but she had not done so. When the sales tax returns and invoices have been produced, still it is not be claimed that all the books

kept by the tenants regarding their business should be produced in a proceeding like this, wherein the limited aspect to be considered in whether

the premises was used by the tenant or not. The claim made by the landlady that the premises was locked without being used, is not supported by

the other independent evidence. She could have examined the neighbours of the property, which she has avoided. It is admitted that though

originally the premises has been given for carrying on trade in cycle spare parts, later on with the consent of the landlady, business in steel furniture

was started. The tenants have get another premises which is 16 shops away. In cases like this, it is not uncommon for the commercial community

to have more than one premises, one for storing the materials and utilising the other premises as show room etc. When the evidence adduced by

the landlady is insufficient, it will not be open to her to remark that, because certain books of accounts and other ledgers demanded by her had not

been produced in the proceedings, adverse conclusion should be drawn against the tenants. The decision reported in Sastha v. Subramania Pillai

(2972) T.L.N.J. 438, for the proposition as to whether the conduct of the landlady will amount to waiver, has been relied upon. But that decision

can hare no application to the facts of this case.

In this case, it has been satisfactorily made out that the landlady had agreed to receive the rents in a lump sum and when she has so agreed, in a

petition filed under Act XVIII of 1960, she cannot contend that mere non-payment of rent on being established, it will have to be construed as a

wilful default. Therefore the appellate authority was in order in rejecting both the contentions and in turn dismissing the petition filed for eviction.

Therefore this civil revision petition is dismissed. No costs.

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