M.K. Sankaran vs S. Birlasekaran and another

The tenant who suffered an order of eviction before the authorities below has filed the above revision.

The landlords/petitioner filed R.C.O.P.No.381 of 1981 under Sections 10(2)(i) and 14(l)(b) of the Act 18 of 1960. According to them, the rent

was at Rs.220 per month and the tenant respondent paid an advance of Rs.1,000. The landlords got the property in question by virtue of a

registered partition deed dated 12.11.1980 entered into between the landlords and their brothers. According to them, the tenant has paid rent

irregularly till the end of September, 1980 and failed to pay the subsequent months rent despite the repeated demands made by the landlords

through their agents, and the arrears of rent was Rs.1,760 for the period from October, 1980 to the end of May, 1981. On that basis they came

forward with the plea that the tenant had committed wilful default in payment of rent. They also wanted the premises in question for demolition and

reconstruction. The tenant contested the eviction petition by filing a detailed counter. The learned Rent Controller, Principal District Munsif,

Madurai accepting the case of the landlords ordered eviction on both the grounds. The tenant filed an appeal in R.C.A.No.145 of 1990 on the file

of the learned appellate authority/Principal Sub-Judge, Madurai, who rejected the case of the landlords regarding their requirement u/s 4(1)(b) of

the Act, but concurred with the findings of the Rent Controller on the ground of wilful default and found that the tenant had committed default

wilfully. Aggrieved against the same the tenant petitioner has filed the above revision.

The above eviction petition was filed on the basis that the tenant had defaulted in payment of rent to the tune Rs.1,760 for the period from

October, 1980 to the end of May, 1981. The tenant in his counter in para 6 has stated that up to end of June 1980 the rent was paid to the original

owner, M/s. Sivasamy Nadar and Sons and since nobody had turned up to collect the rent for five months from 1.7.1980 to 30.11.1980 the

tenant had sent the same by cheque to the original owner towards the rent for the said period. The cheque was returned by Sivasamy Nadar and

Sons with the covering letter informing that the suit property had fallen to the share of the landlords (respondents herein) as per the terms of the

partition deed Ex.A-3. Immediately the tenant sent a cheque for Rs.1,100 to the respondents with the request to encash the same and credit the

same towards the rent payable for five months, namely July to November, 1980. But the respondents returned the cheque stating that they have no

bank account and asked the tenant to remit the same by money order. Meanwhile according to the tenant the Corporation officials made a demand

to pay the property tax and thereafter the tenant contacted the landlords regarding the payment of tax and as advised by them the tenant sent a

money order towards three months rent and retained the balance amount for the purpose of paying the property tax. Thus a sum of Rs.660 was

sent by money order towards the rent for July to September, 1980. Thereafter he paid a sum of Rs.975.44 under Ex.B-9, towards property tax,

and the balance amount of Rs.124.56 was sent by money order under Ex.B-10. But the same had been refused to be received by the landlords

and so the petitioner\tenant sent a notice dated 11.5.1981 under Ex.B-12 requesting the landlords to specify a bank into which the rent may be

deposited. To the said notice, the landlords respondents sent a reply on 9.6.1981, marked as Ex.A-33. The rent of Rs.564.56 up to the end of

April, 1981 was sent by money order on 14.5.1981 which was also refused to be received by the landlords. The tenant filed R.C.O.P.No.356 of

1981 under Sec. 8(5) of the Act to deposit the rent.

On the abovesaid facts the tenant came forward with the plea that he has not committed any default much less wilful default. The Rent Controller

disbelieved the case of the tenant that he contacted the landlords over phone and they had instructed him to retain the amount for the purpose of

paying the property tax, and on the basis of the said findings, the Rent Controller came to the conclusion that the payment of property tax by the

tenant is only a voluntary one. On the basis of the above finding the Rent Controller ordered eviction. The appellate authority also rejected the case

of the tenant regarding the conversation between the landlords and tenant and came to the conclusion that the property tax was paid without the

permission of the landlords and the tenant cannot take advantage of the same. The appellate authority also has given importance to the fact that the

tenant has paid the amount towards property tax without the permission of the landlords, and in the light of the ratio laid down by this Court and

the Apex Court in R. Jagannatha Chettiar Vs. Swarnambal, , Mrs. Manoranjitham v. Mrs. T.S. Gangabai, 1991 (2) L.W. 203 and Bhoja alias

Bhoja Ram Gupta Vs. Rameshwar Agarwala and others, confirmed the findings of the Rent Controller.

From the above discussion, and the findings of the authorities below, it will be clear that the default alleged is only with respect to the amount

retained by the tenant for payment of property tax. Though the authorities below found that the tenant has committed default with respect to the

payment of the said amount, there is no discussion at all by the authorities below, whether such default cannot be construed as wilful unless it is

proved that such default is due to supine indifference on the part of the tenant.

In this case even on the admitted facts, the tenant has taken immediate and necessary steps to pay the rent throughout and even before retaining

the amount for payment of property tax the tenant had sent the entire amount of Rs.1,100 towards the rent for July to November, 1980 by way of

cheque. Having sent the said amount twice towards five months rent the authorities below should have assessed the intention of the tenant and what

is the necessity for him to retain the amount of Rs.1,100 the rent payable for the months of October to December, 1980 and January and

February, 1981. It is stated in the eviction petition that the tenant is a chronic defaulter. But that has not been established before the authorities

below. On the other hand the tenant had established that there was no arrears of rent up to the end of June, 1980 and thereafter the tenant took

earnest steps to pay the rent. Relying on the attitude of the landlords in returning the cheque tendered saying that they are not having any bank

account, the learned counsel has submitted that the landlords somehow wanted to create a ground for eviction and that is why, knowing that they

can encash the cheque, they returned the cheque, asking the tenant to send the same by money order. The learned counsel appearing for the

landlords respondent has submitted that since the tenant used to send the rent by money order, the landlords refused to receive the cheque. But,

unfortunately, that was not the reason mentioned in the letter sent by the landlords to the tenant, enclosing the cheque. It is not in dispute that the

tenant received a notice from the Corporation and he paid the said amount of Rs.975.44 (out of sum of Rs.1,100) which had also been paid

towards property tax under Ex. B-9 and the balance amount of Rs.124.56 was sent by the tenant to the landlords by way of money order, which

was refused to be received by the landlords.

The authorities below have come to the conclusion that since the landlords had paid the amount towards property tax, the question of paying the

same by the tenant would not arise. The authorities below did not appreciate the fact that the tenant has paid the amount towards property tax

without the knowledge of payment of the same by the landlords; It is not the case of the landlords also that the tenant paid the property tax

knowing fully that they had paid the said tax. So, such a finding of the authorities below cannot be sustained.

The authorities below relied on the decision of the court reported in R. Jagannatha Chettiar Vs. Swarnambal, and Mrs. Manoranjitham v.

Mrs.T.S. Gangabai, 1991 (2) L.W. 203, to hold that since the payment of the amount towards property tax by the tenant is a voluntary one, the

same cannot shift him from the consequences of non-payment of rent. In R. Jagannatha Chettiar Vs. Swarnambal, , Rathinam, J., as he then was

has held as follows:

In the ordinary course of events, even if a demand notice for property tax or water tax had been received by the tenant it was the duty of the

tenant to have brought it to the notice of the landlord and only thereafter the tenant should have acted in accordance with the directions given by

the landlord or as a prudent occupier of the property, if she was driven to adopt that course. In this case, the evidence does not disclose that the

tenant informed the landlord about the receipt of the demand notice and that there was a direction by the landlord that the tenant should pay the

property and water taxes and adjust the same out of the rents. In the absence of any such direction or understanding, any payments made by the

tenant would only be in the nature of a voluntary payment and would not in any manner bind the landlord nor would it give rise to any right in the

tenant for an adjustment of those amounts against the rents payable. Considered in that light, the property and the water taxes claimed to have

been paid by the tenant in this case would partake the character of only voluntary payments. It may be that the tenant can recover those amounts in

accordance with Section. 375 of the Madras City Municipal Corporation Act or by other modes, but that would not shield her from the

consequences of non-payment of rents for nearly a period of 11 months without any justification at all. Inasmuch as on the facts and in the

circumstances of this case, the payments stated to have been made by the tenant have been held to be voluntary, those payments cannot be

pleaded as an answer to the prayer for an order of eviction on the ground of wilful default"".

In the said case the notice was only a demand notice for payment of property tax for the second half year, and on the basis of the said notice the

learned Judge came to the conclusion that in the absence of any direction or understanding in payment of the same made by the tenant, it would

only be in the nature of voluntary payment and would not in any way bind the landlord nor would give rise to any right in the tenant for an

adjustment of those amounts against the rent payable.

In Mrs. Manoranjitham v. Mrs.T.S. Gangabai, 1991 (2) L.W. 203, Venkataswami, J., as he then was, followed the abovesaid decision and

held that if any payment was made voluntary the same could not be adjusted from the rent payable. In the said case also the learned Judge found

that there was nothing on record to show that the sum of Rs.1,400 was paid only towards property tax to the premises in question and on that

basis the learned Judge came to the conclusion that the tenant cannot take advantage of the alleged payment of property tax.

The learned counsel appearing for the respondents/landlords has further relied on the decision in P. Govindaraju Vs. S.P. Krishnan and Others,

and in Jayems Engineering Co. Ltd., v. M.A.A. Wahab and four others, 1992 (2) L.W. 448. In the said decisions, the payments were made either

after issue of notice by the landlord or pending proceedings. Hence, the learned Judge rejected the case of the tenant to take advantage of the said

payment. So, the said decisions would not apply to the facts of the present case.

In the present case, it is not the case of the landlords that only after receipt of the notice or payment of the property tax made by them the

tenant had. paid such amount. To prove that the payment of tax is not a voluntary payment but only to avoid distraint proceedings, the tenant filed

the property tax demand notice Ex.N.7, which was addressed to the tenant. In the said notice it is specifically stated that if the property tax is not

paid within 15 days from the date of the notice, warrant would be issued for the distraint of any movable found on the premises. So, only on the

basis of the said notice the tenant had paid the said amount under Ex.B.9. In view of the above, it cannot be said that the payment of the amount is

voluntary. The authorities below have not appreciated the fact that the tenant has paid the tax only because of the compulsion made in the said

notice issued by the Corporation and not voluntarily. Only because of the fact that the landlords had paid the tax amount on 10.3.1981 under

Ex.A.91, it cannot be said that the tenant has paid the said amount voluntarily. Even if the landlords had paid the amount of tax it has to be

adjusted towards the next half-year. Hence, I find that the payment of the said amount of tax under compulsion cannot be said as voluntary

payment.

Though the tenant sent the balance amount of Rs.124.56 by money order, the landlords had refused to receive the same. Even assuming that

the said amount is not paid, the landlords can adjust the same out of the amount paid by the tenant as advance, of Rs.1,000 and the landlords are

bound to refund the excess amount of advance paid by the tenant to the landlords, as held by the Apex Court in K. Narasimha Rao Vs. T.M.

Nasimuddin Ahmed, .

As discussed earlier, the authorities below have not applied their mind to the facts of the case to find out whether the tenant had committed any

wilful default in payment of rent. In view of the same, and also in view of the above discussion, the orders of the authorities below cannot be

sustained, and the tenant would not certainly be a defaulter is payment of rent. Hence the order of eviction passed by the authorities below in set

aside. This revision is allowed accordingly. No, costs. Consequently, C.M.P. No.1193 of 1994 is closed.