Michael Mary vs Ramesh

S. Sardar Zackria Hussain, J.—The unsuccessful tenant has filed this revision.

The revision is directed against the eviction order by the Rent Controller on the ground of willful default in payment of rent for the months of

November and December 2000 and January 2001, as confirmed by the Rent Control Appellate Authority.

The respondent filed the Rent Control Petition on the ground of wilful default in payment of rent for the months of November and December

2000 and January 2001, in respect of the petition non-residential premises.

The petition was resisted by the tenant that he actually paid the rent for the months of November and December 2000 on 22/1/2001 to the

landlord at his shop ""Gopal Jewellery, Bharathi Street"" in the presence of Prakash, Sakthi Rayappa and one Asban and for the month of January

2001, he paid the rent on 12/2/2001 in the presence of Prakash and Asban. The petitioner did not issue any receipts and assured that the receipt

will be issued after the receipt book is printed. Therefore, in the said circumstances, he has not committed wilful default in payment of rent, as

claimed by the landlord for the months of November and December 2000 and January 2001.

Before the Rent Controller, the landlord examined himself as P.W.1 and one Arumugam as P.W.2 and marked Exs.A.1 to A.3 on the side of

the landlord and the tenant examined as R.W.1 and one Prakash was examined as R.W.2 and marked Exs. B.1 to B.7.

The learned counsel for the tenant/revision petitioner argued that the tenant actually paid the rent for the months of November and December

2000 on 22/1/2001 and also the rent for the month of January 2001 on 12/2/2001 in the presence of Prakash and Asban and the landlord assured

to issue receipt after the receipt book is printed. A lawyer notice was issued under Ex.A.2 dated 13/2/2001, for which the tenant replied under

Ex.B.2 on 26/2/2001 and the case of the tenant was not accepted by the Rent Controller. On considering such oral and documetnary evidence,

the learned Rent Controller found that the tenant has committed wilful default in paymen tof rent for the months of November and December 2000

and January 2001 and accordingly ordered eviction. The appeal filed by the tenant was dismissed by the learned Rent Control Appellate Authority

confirming the eviction order. That judgment is challenged in this Civil Revision Petition by the tenant.

The learned counsel further argued that admittedly Rs.4,000/- was paid by way of advance and the rent is being paid Rs.1,000/- p.m.

Therefore, since the landlord is entitled to collect only one month rent by way of advance, the excess amount of Rs.3,000/- has to be adjusted

towards the rent payable for the months of November and December 2000 and January 2001. In support of the said contention, the learned

counsel has relied on the decisions reported in

(1). Modern Hotel, Gudur, Represented by M.N. Narayanan Vs. K. Radhakrishnaiah and Others,

(2). Mahalingam Vs. Pichaiammal, (2000) II M.L.J 202

(3). Perumal Vs. Boyot Selvacarassou, Power Agent Boyot Virappin, .

Though the tenant in the reply notice and in the counter has stated that he paid a sum of Rs.20,000/- by way of advance it is not supported by

evidence. Further, it is clearly admitted by the landlord in the Rent Control Petition that the tenant paid Rs.4,000/- by way of advance, in which

case the landlord is having an excess amount of Rs.3,000/-, in that he is entitled to collect only one month rent as advance and the excess amount

of Rs. 3,000/- is to be adjusted towards ernt payable for the months of November and December 2000 and January 2001.

In the decision reported in Modern Hotel, Gudur, Represented by M.N. Narayanan Vs. K. Radhakrishnaiah and Others, , it is held as

When the landlord had Rs.5,000/- on tenant''s account with him as advance amount which he was holding for years without paying interest and

against the clear statutory bar there could be no justification for granting a there could be no justification for granting a decree of eviction on the

plea of arrears of rent. In view of the fact that the stipulation that the amount would be refundable at the end of the tenants is null and void u/s 7(3)

of the Act, the amount became payable to the tenant immediately and the landlord with Rs.5,000/- of the tenant was in default for a smaller amount

by not paying the rent for some months.

In the case reported in (2). MAHALINGAM Vs. PICHAIAMMAL (2000) II M.L.J 202, it is held as

In view of the law declared by the Honourable Supreme Court, it has to be held that landlady has no cause of action to file application for eviction

on the ground that tenant has committed default in paying rent. As stated earlier, landlady has taken advance of 60 months rent, though law permits

to take advance of only one month rent. Excess advance is liable to be adjusted in the rent payable by tenant as and when becomes due even

without any demand from tenant. If that be so, landlord cannot expect payment of rent for the alleged period of default. If landlord cannot demand

any rent for that period, notice issued by her intimating default also will be invalid and of no legal consequence. On the date when notice was

issued, no rent was due nor payable by tenant. If notice issued is invalid merely because tenant did not pay rent within a period of two months, he

also cannot be deemed as defaulter. Appellate authority has not taken into consideration the above legal position while confirming the order of

eviction.

In another decision reported in (3). Perumal Vs. Boyot Selvacarassou, Power Agent Boyot Virappin, , it is held as

Once the landlord gave a notice to the tenant claiming the rent in arrears, he should have waited for a period of two months from the date of

service of notice and it is only on non-payment or non-tender of rent within the period of two months that the landlord could have initiated the

proceedings for eviction o the ground of wilful default and then it would have been for the tenant to satisfy the Rent Controller that in spite of non-

payment of rent for a period of two months from the date of service of notice, he was not a defaulter for reasons stated by him. In the present

case, there is the additional fact that before the initiation of the proceedings for eviction, the factum of the tenant having deposited the rent in the

Court though in the proceedings which has stood terminated, was brought to the notice of the landlord and the landlord having initiated the

proceeding for eviction withdrew the amount of rent and on the date when he sought for withdrawal, a period of two months from the date of

notice had not expired. In such circumstances, in view of the law laid down in the case of S. Sundaram Pillai and Others Vs. `R. Pattabiraman and

Others, , the tenant cannot be held to be a willful defaulter.

Since admittedly the landlord is holding Rs.3,000/- in excess by way of advance and it has to be adjusted in the rents payable by the tenant for

the months of November and December 2000 and January 2001, it cannot be said that the tenant has committed default in payment of rent for the

months of November and December 2000 and January 2001 and it cannot be construed as willful. In that view, the Rent Controller as well as the

Rent Control Appellate Authority has recorded perverse finding that the tenant has committed wilful default in payment of rent for the months of

November and December 2000 and January 2001 and as such the finding of the Rent Control Appellate Authority has to be interfered with. In

view of the fact that the default in payment of rent for the months of November and December 2000 and January 2001, cannot be construed as

willful, since the excess amount of Rs.3,000/- has to be adjusted towards the rent for the months of November and December 2000 and January

2001.

In the result, the above Civil Revision Petition is allowed. The judgment and decree of the Rent Control Appellate Authority are set aside.