Mayila vs Muthupalaniappan

M. Karpagavinayagam, J.—Mayila, the petitioner herein is the tenant. Muthupalaniappan, the respondent herein is the landlord.

The landlord filed a petition in R.C.O.P. No. 25 of 1992 of the file of the Rent Controller-cum-District Munsif, Devakottai seeking for eviction

of the tenant on the ground of wilful default in payment of monthly rent. The Rent Controller on taking into consideration oral and documentary

evidence adduced by both sides concluded that the tenant was liable to be evicted on the said ground. Aggrieved by the same, the tenant filed an

appeal before the appellate authority, which in turn confirmed the view of the Rent Controller and dismissed the appeal. On being aggrieved, the

tenant has preferred this revision.

According to the landlord, the respondent herein, the tenant committed wilful default in payment of the rent from December 1991 to June 1992.

According to the petitioner/tenant, immediately on receipt of the notice dated 2.7.1992 the petitioner sent 7 months rent by way of money

order, but the same was returned with an endorsement ""refused to receive"", and as such, there was no Wilful default in payment of rent on the part

of the tenant herein.

Mr. M.A. Swaminathan, the learned Counsel representing the counsel Mr. D. Veerasekaran, appearing for the petitioner, while assailing the

orders of the authorities below, would strenuously contend that both the courts below have failed to consider that the petitioner immediately on

receipt of the demand notice sent the money order for the arrears of rent for 7 months, which was refused to be received by the landlord and that

therefore, it cannot be construed to be a wilful default. Moreover, even according to P.W.1 the tenant used to pay the rental arrears only in lump

sum and as such, the failure to pay arrears of 7 months'' rent, though can be considered to be a default, cannot be construed to be a wilful one.

According to the learned Counsel for the petitioner, unless the default is established to be an intentional, deliberate, calculated and conscious

with the full knowledge of legal consequences, the said default cannot be construed to be a ""wilful default"". In order to substantiate this plea, the

learned Counsel for the petitioner would cite a decision of the Apex Court rendered in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and

Others, and point out that the rental arrears was paid, in pursuance of the notice, then there cannot be any cause of action resorting to the action

under Act, by filing a petition before the Rent Controller.

He would also cited a decision rendered in Shanmuganathan alias Shanmugaraj v. Balasingam 1986 T.L.N.J. 277, in which it is held as follows:

But there is clear proof of the fact that the tenant has made all attempts to pay rent even before the filing of the petition and after issue of 2 months

notice under, Ex.A-7 S. S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, appears to be brought to the notice of both the Rent

Controller and the appellate authority. When the landlord goes on refusing the rent even when the rent was sent in pursuance of the notice under

Ex.A-7 giving the tenant two months time to pay the rent, the tenant could not be said to have committed wilful default.

On the other hand, Mr. AR.L. Sunderasan, the learned Counsel for the respondent/landlord, in support of the impugned orders, would contend

that mere sending of the M.O. after the receipt of notice would not absolve the tenant from the charge of wilful default and that the aspect relating

to the wilful default has got to be taken note of with the various other circumstances.

It is also pointed out that she failed to pay the arrears of 7 months rent within the due date not only before filing the petition for eviction but also

during the pendency of the R.C.O.R and R.C.A. before the authorities concerned. The petitioner/tenant did not make regular payment in spite of

the orders of the courts concerned.

He would also point out that during the pendency of this revision petition before this Court, interim stay was granted by this Court on condition

that the tenant/petitioner herein pays the rent at the rate of Rs. 100 per month. Though the said direction was initially complied with by the tenant

subsequently as usual she committed default in payment of rent from October 1997.

In the light of the rival submissions, I shall go into the merits of the case and the reasonings given by the authorities below.

There is no dispute that the petitioner is the tenant under the respondent. Originally, rent was fixed at Rs. 8 per month which was periodically

enhanced it was finally enhanced to Rs. 60 per month. RW. 1 would admit that he used to receive the rent in lump sum for 4 or 5 months and used

to give receipt for the same.

On the strength of this admission, the learned Counsel for the petitioner would say that when there is a practice that the lump sum amount was

used to be paid, failure to pay the rental arrears for 7 months, cannot be said to be wilful default and more particularly, when the petitioner sent the

amount after the receipt of the notice the petitioner sent M.O. which was returned with an endorsement ""refused to receive"".

No doubt, it is true that immediately on receipt of the notice the act of sending the money order would only show that there was an attempt to

pay the amount of rental arrears. But, this alone cannot be taken to hold that the said attempt was a genuine one in the facts and circumstance of

the case. The duty of the tenant is, as held by this Court, to pay the rent amount regularly as and when the demand is made.

It is the case of the tenant that in the instant case, the landlord did not use to demand the rental arrears for each and every month and whenever

he asked, the tenant used to give it in lump sum.

It is contended by the learned Counsel for the petitioner that the very same petitioner was allowed to make lump sum payment once in 4 or 5

months and the very fact that the landlord would accept and issue receipts for the same would imply that there is an agreement.

This contention is, in my view, lacks substance. In view of the demand made by P.W.1, the tenant used to make lump sum payment whenever

there is demand. Since there was no demand for every month, she did not pay the monthly rent. This would show that there is no such agreement

with regard to the payment of rental arrears in lump sum.

In these circumstances, an observation made by this Court in a decision rendered in G.R. Ragupathy v. Dr .K. Sankar (1996) 2 L.W. 494 is

quite relevant which is as follows:

If the contract was to pay the monthly rent only once in a year, nothing prevented the parties from providing the same is the contract itself. But in

Ex.A-6 it is said that the monthly rent has to be paid every month in advance. From his own showing, it is clear that the tenant was not paying the

rent in time, and the landlord was compelled to receive the rent as and when he paid the same. The silence of the eviction/petitioner (landlord) has

been exploited by the tenant, petitioner herein.

While dealing with this aspect, this Court in Pappu Reddiar v. T.K. Murugesa Udayar (1996) 1 M.L.J. 403 would observe as follows:

When there is a contract between the parties in regard to payment of rent, unless the tenant shows that the same was given and a different contract

was entered into, any default in payment of rent can only be presumed as wilful. It is for the tenant to explain before court that the delay in payment

was not wilful or for reasons which would satisfy the conscience of the court.

Yet another decision of this Court, when a similar question came up for consideration made in Dhanraj B. Shah v. N. Srinivasalu 97L.W.212

would hold as follows:

I must point out that it is for the court to ascertain whether the default is wilful or not solely depending upon the facts in each case. I am not

prepared to subscribe to the view that in every case, where the landlord had accepted rents at irregular intervals without demur, such conduct on

the part of the landlord would invariably lead to the presumption of agreement to pay rent at irregular intervals so as to save the tenant from being

guilty of wilful default.

While referring to the duty of the tenant to pay the rent regularly even without the demand from the landlord, this Court would hold in

Mohamed Rowther v. S.S. Rajalinga Raja and two Ors. (1994) 2 L. W. 524 as follows:

It is settled law that it is the duty of the tenant to pay the rent regularly every month as enjoined in the statute without expecting any demand from

the landlord in that regard.

In the instant case, the explanation of the tenant for making delayed payment by the tenant is that there was no demand. Though the Apex

Court held in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, , that when the amount has been paid before the filing of the

application there was no cause of action, this Court while referring to the said decision rendered in Mohamed Rowther Vs. S.S. Rajalinga Raja

and Others, distinguished by saying as follows:

All that the tenant deposes as explanation for the delayed payment every month is that the landlord did not demand it and hence he did not pay.

But, it is settled law that it is the duty of the tenant to pay the rent regularly every month as enjoined in the statute without expecting any demand

from the landlord in that regard. The above deposition clearly shows that for every month there was delayed payment.

In the instant case, admittedly before the filing of the application, no amount was paid, no amount sent by M.O. was received by the landlord.

It is the case of the tenant that on receipt of notice on 2.7.1992, immediately she sent the money order. But when the money order was returned

with an endorsement ''refused to receive'' she has not taken steps to send a notice asking the landlord to name the bank to deposit the arrears of

rent. Even after the receipt of the said notice, the petitioner immediately should approach the court for deposit of rent u/s 8(5) of the Tamil Nadu

Buildings (Lease and Rent Control) Act which was not admittedly done in this case.

In the light of the above factual position and the materials available on record and the settled principles of law as laid down in the decisions

cited supra, I am of the view that the finding given by the authorities is correct as such, it does not call for any interference of this Court, as held by

the decisions rendered in Kulsumbai Mulla Jeewajee Vs. Madras Marine Private Limited, and in K. Dharmaraj Vs. A. Narasimhalu and Another, .

Consequently, this revision, which has no merit is liable to be dismissed. Accordingly, this revision is dismissed. No costs. Consequently,

C.M.P. Nos. 1646 and 10493 of 1996 are closed.