N. Sivathanu Pillai vs R. Subramaniam

M. Karpagavinayagam, J.—Sivathanu Pillai, the petitioner herein, is the tenant, Subramaniam, the respondent herein, is the landlord.

Though the eviction petition was filed by the landlord/the respondent herein against the tenant/the petitioner herein, on the ground of own use

and on the ground of wilful default, the Rent Controller rejected the first ground, but allowed the petition on the ground of wilful default. In the

meantime, the tenant/the petitioner herein filed a petition before the Rent Controller u/s 8(v) of the Tamilnadu Buildings (Lease and Rent Control)

Act for deposit of rent in the court and the same was dismissed by the Rent Controller.

The tenant challenging the order of eviction on the ground of wilful default and the order of dismissal of the petition u/s 8(v) of the Act, filed

appeals before the appellate authority, which in turn dismissed both the appeals. The petitioner, however, did not choose to challenge the order of

dismissal of the petition to deposit the rent u/s 8(v) of the Act before this Court, but has only chosen to file the present revision as against the

confirmation of the order of eviction.

The learned Counsel appearing for the petitioner would submit that the materials available on record would not show that there is wilful default

on the part of the petitioner/tenant in making payment of rent, inasmuch as the petitioner, immediately on receipt of notice sent the arrears of rent to

the landlord by M.O. which was refused and returned by the landlord on two occasions. Thereafter, the petitioner sent a notice to the landlord to

specify the bank to deposit the rent and as there was no response, the petitioner, filed a petition to deposit the rent u/s 8(v) of the Act and as such,

the conclusion arrived at by both the authorities below, despite the genuine efforts taken by the petitioner to make the payment of rent cannot be

said to be based on correct reasonings.

On the other hand, the learned Counsel appearing for the respondent/landlord would state that there was arrears of rent for 19 months and after

notice demanding arrears of rent for 19 months, only two months arrears was sent and so it was returned and that in the absence of any

explanation for the non-payment of rent for 19 months arrears, the authorities below have correctly concluded that there is a wilful default on the

part of the petitioner, who is liable to be evicted.

I have carefully considered the submissions made by the counsel on either side.

According to the landlord, there is arrears of rent from June 1986 to January 1988. Even as per Exs.R-2 to R-5 produced on the side of the

tenant, the rents from 15.5.1983 to 14.6.1986 were paid by the tenant to the landlord.

According to the tenant, the rents for the further period were paid and the receipts were written in some other book, which was kept by the

landlord, who did not return the same to the tenant after making the endorsement. But, the original receipt book which contains Exs.R-2 to R-5

would reveal that there are blank pages. Therefore, there was no necessity for having another book for making endorsement with reference to the

receipt of rents for further period. According to the tenant, the said second receipt book contains the endorsement relating to the payment of rents

for subsequent period. As such, the tenant alone has to establish the said aspect by producing the book.

The tenant would state that the said book was handed over to the landlord by one Thangappan, his agent, for getting the endorsement regarding

the receipt of the rents. But the said Thangappan was not examined. Therefore, in the absence of any material to show that there was no arrears of

rent from June 1986 to January 1988, it cannot be said that the tenant''s plea that there is no wilful default is acceptable.

As a matter of fact, this aspect had been dealt with by both the authorities below in detail and the plea of the tenant had rightly been rejected. It

is also made clear as observed in the judgment of the authorities below that the ledgers which were maintained by the person conducting the

business for the production of the same to the Government Officials for the purpose of assessment of tax have not been produced in order to show

that the rental arrears for the other period have been paid to the landlord.

The learned Counsel for the petitioner would cite the decisions in Durgai Ammal v. R.T. Mani (1989) 1 L.W. 155 and Dakya alias Dakian v.

Anjani (1996) 1 L. W. 25, in order to support his contention. The said decisions would not be applicable to this case, since in those cases the

entire amount of arrears was tendered before institution of the petition. But, in the instant case, the case of the landlord is that the entire arrears

were neither sent nor deposited.

The learned Counsel for the respondent/landlord would cite the decisions in (1) Thayammal v. K. Subramnaiam (1989) 1 M.L.J. 407; (2) C.

Thangaswamy Nadar Vs. Pappa and Others, , wherein it is held that when there is no explanation for not paying the rent for the entire period, the

tenant is said to be committed wilful default.

On a careful consideration of the materials found in this case, I find that the conclusion arrived at by the authorities below is correct. Moreover,

when the authorities below have rendered a concurrent finding on the question of wilful default taking into consideration of the factual details,

especially when they have exercised their jurisdiction in accordance with law, I am of the view that there is no merit in this revision.

In the result, the revision is dismissed, as devoid of merits. No costs.

After the pronouncement of the order, learned Counsel for the petitioner requested for some time to vacate the premises. Learned Counsel for

the respondent consented for five months'' time. Therefore, the petitioner is directed to vacate the premises and handover possession to the

landlord, the respondent herein, within five months i.e., on or before 11.11.1999. To that effect the petitioner shall file an affidavit of undertaking

before this Court within four weeks from today.