M. Nagarajan vs Selvasubramaniam

This revision is directed against the order of the Appellate Authority (Sub Court, Coimbatore), in R.C.A.No. 18 of 1995 confirming the order

of the Rent Controller, Coimbatore, in R.C.O.P.No.132 of 1992. The tenant is the revision petitioner before this Court.

The landlord filed the petition for eviction contending that he is the owner of the premises in question. The respondent was the tenant on a

monthly rent of Rs.300. He was not regular in the payment of rent in spite demands and he had failed to pay the rent which fell due on 1.12.1991

namely for the month of November, 1999 and all the subsequent rents up to 1.4.1992. By then the arrears of rent had totaled to Rs. 1,500. Since

the tenant was showing supine indifference, the petitioner gave a warning to the respondent on 4.4.1992 that he was going to institute an eviction

proceedings. The tenant by his letter dated 7.4.1992 falsely contended that he was a tenant only under the father of the landlord for the past 20

years on a monthly rent of Rs.90 and that he was sending a sum of Rs.270 towards three months rent from 13.1.1992 to 13.4.1992. The father of

the landlord died on 13.1.1992. The said contentions in the letter were false. His father was not in any way connected with the building and the

property originally belonged to his grandmother and after her death in terms of her will dated 22.6.1977, the property devolved on him absolutely.

At no point of time his father had any right over the property. There was also no basis in the contention that the monthly rent was Rs.90. The

monthly rent was Rs.300 and was also payable on the first of every month and not 13th of the month. The landlord further contended that the

stand taken by the tenant stating that his father was the owner of the building clearly amounted to the denial of the title to the petitioner. The

respondent had thus committed wilful default in payment of rent and had also denied the title to the landlord. Therefore, he had issued a legal notice

dated 11.4.1992 terminating the tenancy. The tenant sent a reply on 24.4.1992 mentioning for the first time that by his letter dated 7.4.1992 he

had sent Pay Order for a sum of Rs.270 and that he will pay the rent only if the landlord was prepared to receive Rs.90 per month as the heir of

his father. The landlord further contended that the allegation that the Pay Order was enclosed for a sum of Rs.270 was false and that no such Pay

Order was sent. On 13.5.1992 the tenant sent a Money Order for Rs.360 alleging that it was the rent for four months and the landlord refused to

receive the same since it was not the correct amount. Therefore, the tenant was liable to be evicted on grounds of wilful default in payment of rent

from November, 1991 till date. The conduct of the tenant also discloses that the tenant was adamantly disputing the title of the landlord.

In the counter filed by the tenant, it was contended that monthly rent was Rs.90 and not Rs.300 as claimed by the landlord. It was not correct to

state that he has failed to pay the rent which fell due on 1.12.1991. He was paying the rent regularly to the father of the landlord who was regularly

receiving the same till his death. The other allegations in the petitions were denied. Since after the demise of his father, the landlord did not receive

the rents and therefore, he had sent the Pay Order drawn on Canara Bank, Mettupalayam Branch, towards three months rent. In the covering

letter he did not mention about the same and the landlord was trying to take advantage of the omission and had deliberately suppressed about the

very receipt of the Pay Order. He had never denied the title of the landlord and he was paying the rent to the landlord regularly and after his

demise he was prepared to pay rent to the respondent as the heir of his father. Therefore, the petition was liable to be dismissed.

The Rent Controller found that the conduct of the tenant amounted to denial of the title and that he was also guilty of default even considering the

rent was Rs.90 per month. The Appellate Authority held that there was no proof for the claim of the landlord that the rent was Rs.300 per month.

But the tenant not having taken steps to pay the rents in a prompt manner he was guilty of default in payment of rent and that he was also guilty of

denial of title.

Learned counsel for the petitioner contends that both the courts have not properly considered the evidence on record and the rulings in the

context of wilful default. Both the courts below have concurrently found that the monthly rent was only Rs.90 and not Rs.300 which exposes utter

lack of bona fides on th part of the landlord. As regards the Pay Order which was sent by the tenant, the Appellate Court had clearly found that

the landlord had received the Pay Order. When the notice was received from the landlord, the tenant had promptly replied under Ex.B.5, the

reasons for not remitting the rental amounts. It is clear that the landlord had no proper understanding with the tenant and therefore, wanted to get

rid of him and had refused to receive the rental amount which necessitated the tenant to send the rental amount by Pay Order. Learned counsel

relies on the judgment of the Supreme Court in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, . Reliance is placed on the

observation that the expression wilful default would mean intentional and deliberate calculated and conscious, with full knowledge of legal

consequences flowing therefrom.

Reference is also made to the judgment in M.K. Sankaran Vs. S. Birlasekaran and another, . K. Govindarajan, J. held that mere default would

not amount to wilful default and that the wilful default in payment of rent would become wilful only if it was due to supine indifference on the part of

the tenant. The conduct of the landlord returning the cheque stating that they do not have Bank account and directing the tenant to send the amount

by Money Order, would mean that the tenant was not guilty of wilful default.

It is next contended that the finding of the courts below on the question of wilful default was not based on any evidence and by ignoring evidence

on record and that hence such a finding was liable to be set aside u/s 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act. Reliance is

placed on the judgment of the Supreme Court in C. Chandramohan Vs. Sengottaiyan (Dead) By Lrs. and Others, . In this case, it was held that

wilful default to pay or tender the rent was a mixed question of law and fact and the High Court can interfere with such finding and reverse the

same if the findings recorded by the Courts below were illegal or perverse.

On the question of denial of title, learned counsel states that the tenant was under the bona fide impression that the property belonged to the

father of the respondent. When it was reported to him, that the respondent was the real successor in interest, the tenant had rightly agreed to pay

the rent to the respondent as the heir of the original owner. Therefore, there was no wilful or wanton denial of title. The tenant had entertained a

bona fide doubt. Since the dispute arose over the quantum of rent, the tenant had clearly stated that he was ready to pay the rent if the respondent

was prepared to accept Rs.90 as monthly rent.

Learned counsel for the respondent states that there was absolutely no dispute over the fact that the tenant was in default of at least the rent for

one month namely, November, 1991. The findings of the courts below as regards the default were concurrent. There was no denial by the tenant

as regards the default of the rent due to November, 1991. Even in respect of the following three months, there was no justification the conduct of

the tenant in having paid the rent for over three months.

Learned counsel also refers to the judgment of the Supreme Court in Sarla Ahuja Vs. United India Insurance Company Limited, , in support of

his contention that in exercising the revisional power u/s 25B of the Delhi Rent Control Act, the revisional power was only supervisory in nature

and it was not permissible for the High Court to come to a different finding of fact.

Reference was made to the judgment of K. Govindarajan, J. in T. Easwara Rao Vs. N.E. Ansari(decd) and six others, , in support of his

contention that mere attempt to send the rent by Money Order or Pay Order without taking further steps to deposit the rent into court as provided

u/s 8 would amount wilful default.

Further reference is made to the judgment in Murugan v. Arunagiri, 1999 (I) M.L.J. 154. In that case, it was held that when once default was

admitted, it was for the tenant to prove that the default was neither wilful nor wanton and that he was not aware of the legal consequences arising

therefrom. According to the learned counsel, in the present case, the tenant had not denied the failure to pay the rent for the month of November,

1991 and therefore, the said ruling would apply to the facts of this case. Further reference is made to the judgment in K.M. Muneeruddin and 4

others Vs. P.M. Punnoose, . In that case also, the learned judge held that the mere attempt to send the rent by Money Order without taking steps

to deposit as provided u/s 8(5) of the Act would constitute wilful default. If the tenant admits default he has to prove that it is not wilful.

I have considered the submissions of both sides. I would take up the issue of denial of title by the tenant. On this issue, both the courts below

had rendered the finding against the tenant without much discussion after their finding that the tenant was guilty of default. It is true that the tenant

had initially raised a contention that it was only father of the respondent who was the owner. This stand had apparently been taken as a result of his

having paid the rent only to his father up to the date of his death. Subsequently, when he was told that the property belonged only to grandmother

of the respondent, and that he had succeeded to the property under a will, the tenant has promptly agreed to remit the rent to the respondent as the

legal heir, but had laid a condition that he would be do so only at the rate of Rs.90 per month. This was due to the fact that there was a

controversy between the parties as to whether the rent was Rs.300 of Rs.90 per month. The tenant had admitted that Kuttiammal was the original

owner, but did not know to whom she had bequeathed the property. Therefore, I am unable to attach much importance to the initial reaction of the

tenant which he gave up later even before the filing of the eviction petition. Both the Courts below have also not devoted proper discussion of the

issue and hence I am inclined to hold that the landlord had not made out a proper case of denial of title by the tenant.

As far as the question of wilful default is concerned, it is true that the landlord says that the rent was Rs.300 per month and according to the

tenant the rent was Rs.90. Both the courts below had concurrently held that there was no evidence to substantiate the claim of the landlord and

had proceeded to consider that the rent was only Rs.90. But that alone cannot result in totally discrediting the location of the default. It cannot be

disputed that even though the landlord may claim a higher rate of rent as the actual agreed rent, it is still open to the court to analyse the evidence

and hold that the actual agreed rent was something lesser and proceeded to consider whether there was any default of agreed rent or not.

It is also true that the approach of the Appellate Authority in having arrived at Rs.90 as monthly rent based on assessment of his own as to

what would be the reasonable rent, is not correct. No doubt, both the parties had not produced convincing evidence to show that what was the

actual agreed rent. But the court cannot also tried to find out what would be the reasonable rent and to proceed further to consider whether the

said amount had been paid without any default. Such an approach would unduly affect either the landlord or the tenant in any given case. The Act

deals only with two types of rents namely, agreed rent and fair rent. If no fair rent had been fixed, then agreed rent would be the rent payable.

Nonetheless both the Courts have proceeded on an assumption that only Rs. 90 was payable as rent and that even so, the tenant was guilty of

default.

I have considered the evidence in the context of wilful default. It is true that there was a bona fide doubt in the mind of the tenant as regards

whether the respondent was the landlord entitled to receive the rent and also a dispute over the quantum of monthly rent. The question is whether

the tenant would be held guilty of the default even assuming that the monthly rent was Rs.90.

As regards the rent due towards November, 1991, I am unable to sustain the contention of the learned counsel for the respondent that the

tenant had admitted his default. It is true that in the reply notice dated 24.4.1992 (Ex.B.7), the tenant had not made the specific denial. But both in

the counter and in the evidence, the tenant had positively denied default of rent due for November, 1991. Yet the following circumstances would

belie the contention of the tenant.

(i) Non-production of the receipt in Ex. A.7. He says that he has documentary evidence to prove of payment of rent, but no receipt was filed.

(ii) No denial in Ex.A.7.

(iii) Subsequent payment by Pay Order relates only to the months of December, 1991 and subsequent months.

Therefore, I am inclined to hold that the default in payment of rent due towards the month of November, 1991, is clearly established.

Even in respect of the following months, it is true that there was a controversy over the quantum of rent and the landlord had refused to receive

the rent. But as regards the tender of the rent, it is unbelievable that the tenant would have approached the respondent on 14.1.1992, just the day

after the death of father of the respondent. This fact had neither been stated in Ex.B.7 nor in the counter by the tenant. The tenant has also admitted

that there was no material to show that for each month. The rent was payable only on the 13th of the following month, the due date as pleaded by

the tenant is rather unusual and he has failed to establish the same by proper evidence.

If there was any controversy over the factum of rent, the tenant should have taken steps either to deposit the rent or should have taken steps to

file a petition for fixation of fair rent. He cannot sleep over and be indifferent for more than three months and send the rent for three months by Pay

Order subsequently. For the succeeding month also he did not take any such steps, but again sent the total amount by Money Order which was

refused by the landlord. It is admitted by the tenant that from the beginning the landlord had refused to receive the rent at the rate of Rs.90 and his

subsequent sending Money Orders four times, had also been returned by the landlord. Therefore, the tenant should have taken steps if he had

bona fide intention to pay the rents properly, either u/s 8(5) of the Act of should have filed a petition for fixation of fair rent if according to him, the

demand of Rs.300 was not justified.

It is also seen that the tenant has pleaded a Panchayat which was denied by the respondent. Apart from the fact that the tenant did not raise

any such plea in his counter, he has also not examined any witness on his side to prove the said Panchayat.

Therefore, for all the aforesaid reasons, there is no justification to interfere with the concurrent finding of both the courts below and also

considering that the learned Rent Controller had the advantage of watching the demeanor of the witnesses.

In the result, though I have set aside the finding with reference to the denial of title. I am inclined to confirm the findings as regards the default.

There are no merits in the above revision and the same is dismissed. No costs.

Learned counsel for the petitioner requests time for vacating the premises. The petitioner is granted four months time from today (11.7.2001)

to vacate the premises, subject to filing of an affidavit of undertaking within two weeks from today. The tenant is also directed to pay arrears if any,

within the said period of two weeks.