P. Rayen vs Seyed Ali Fathima

V. Bakthavatsalu, J.—The tenant who lost before the Rent Controller and Appellate Authority is the revision petitioner herein. The

respondent filed R.C.O.P. for eviction under Sections 10(2)(i) and 14(1)(b)of the Act 18 of 1960.

The case of the petitioner is as follows:

The petition mentioned building belongs to the petitioner. The respondent is the tenant on monthly rent of Rs. 500. The respondent paid rent; upto

the end of December, 1990 and thereafter, he has wilfully defaulted to pay the rent inspite of repeated demands. The respondent is in arrears of

rent from January, 1991 to 1992 for seventeen months to the tune of Rs. 8,500. Further, the petition mentioned building is required for immediate

purpose of demolition and to erect a new building on the site. The building is an old one. It requires immediate demolition. Besides, the petitioner

wants to augment the income by putting up a new building. The petitioner undertake that the work of demolishing of the building will be

commenced not later than one month an shall be completed before the expiry of three months from the date she recovers the possession of the

entire building. Therefore, this petition is filed directing the respondent to vacate the petition mentioned building.

The case of the respondent is as follows: The petition is not maintainable; neither the petitioner nor his agent was demanding the rent. In fact, the

petition mentioned building is situate at the end of her building, only after crossing five buildings, the respondent would be able to reach his building.

The respondent requested the petitioner to keep vacant of the pathway for free access. The petitioner did not do so. Originally, the rent was Rs.

180 which has been raised to Rs. 360 and then to Rs. 500. The respondent has paid the entire rent to the petitioner a/gent. The petitioner agent

was dragging the tenant. The claim of vacant possession by the petitioner is not bona fide. The landlady is not going to demolish the building. The

petitioner issued a notice on 8.9.1991 and has filed R.C.O.P. only in the month of June, 1992. If the petition mentioned building is to be

demolished for new construction, the equal aged other shop also requires same treatment. In fact, the petitioner was demanding the enhanced rent

from all the tenants.

Before the Rent Controller, the petitioner''s agent and the respondent were examined and document Exs.R-1 to R-3 were marked. On a

consideration of oral and documentary evidence, the Rent Controller has given a finding that the respondent-tenant has committed wilful default in

the payment of rent; but the Rent Controller did not accept the case of the petitioner that she requires the building for immediate demolition and

reconstruction and therefore the eviction petition on the above ground, was not allowed. Ultimately, the Rent Controller has passed an order for

eviction of the tenant from the premises by giving one month time. Aggrieved by the said order of the Rent Controller, the tenant preferred an

appeal in R.C.A. No. 9 of 1995. The Appellate Authority confirmed the findings of the Rent Controller and dismissed the appeal. Aggrieved by

the said findings of the Appellate Authority, the tenant has filed this revision.

The following contentions are raised by the tenant in the revision. The lower Appellate Authority has not discussed the merits and demerits of the

evidence and case of the parties. On the other hand, the Appellate Authority haws simply confirmed the order of the Rent Controller. The Courts

below failed to note that the landlord was in a habit of receiving the rent in lump sum. The petitioner has been paying the rent, but the agent of the

respondent was delaying in issuing the receipts. The meaning of the term ""wilful default"" has not been properly considered by the Courts below.

On the other hand, the learned Counsel for the respondent landlord contended that the tenant even after having received the notice issued by the

landlord failed to pay the rent and that the conduct of the tenant in paying the rent only after filing of the R.C.O.P. will only show that the tenant

exhibited supine indifference in paying the rent. The reason given by the Courts below for negativing the claim of the landlord for demolition and

reconstruction of the building cannot be sustained in view of the judgment of the Apex Court and that therefore, the tenant is liable to be evicted on

the ground that the landlord requires the building for demolition and reconstruction.

The Rent Controller has given a finding that after issue of notice by the landlord, the tenant paid the arrears in lump sum and that he has

committed wilful default, R. W, 1, the tenant has admitted in his evidence that he received a notice dated 8.5.1991 i.e., Ex.R-1. He has also

admitted that the rent due for four months was subsisting on the date of Ex.R-1 notice. Even though the above notice was issued in the year 1991,

R.C.O.P. is filed in the year 1992 i.e., on 2.7.1992. R.W. 1, the tenant has also admitted that four months rent mentioned in Ex.R-1 notice and

also the subsequent rent was deposited in Court only after 2.7.1992. He has also admitted that as per the agreement, he is liable to pay the rent

every month. Explanation to Section 10(2) of the Act states that default to pay or tender rent shall be construed as wilful, if the default by the

tenant in the payment or tender of rent continues after the issue of two months notice by the landlord claiming the rent. In this case, on the date of

issue of notice, rent due for four months was subsisting. R.W.1 did not issue any reply to the above notice nor did he tender the rent within two

months after receipt of the above notice. In the above circumstances, the non payment of rent even after receiving the notice has to be held to be

wilful. The very fact that R.W.1 paid the rent mentioned in the notice and also along with subsequent arrears only after filing R.C.O.P. will clearly

show that the non-payment of rent by R.W.1 is nothing but wilful.

It is pointed out by the learned Counsel for the revision petitioner that R.W. 1 the agent of the petitioner used to receive the rent in lump sum

and that he would not receive the monthly rent and that therefore, the non payment of rent cannot be said to be wilful. It is contended by the tenant

that the petitioner or his agent never demanded any rent. It is not open to the tenant now to contend that the petitioner''s agent failed to receive the

rent every month regularly and that therefore he has not committed any wilful default. It is contended by the learned Counsel for the respondent

that it is the duty of the tenant to tender rent. To substantiate the said contention, he also relies upon a decision in Venkiduswami Pillai, M.V. and

ten others v. S. Swaminatha Rao (1996) 2 L.W. 752, wherein it is held that it is the duty of the tenant to pay the rent regularly every month on the

due date and that the landlord need not chase the tenant to get monthly rent. To the same effect, is the decision of our High Court in Mohamed

Rowther Vs. S.S. Rajalinga Raja and Others, . If really there is any truth in the case of R.W.1 that the petitioner and his agent failed to receive the

rent in every month, R.W.1 would have definitely replied to Ex.R-1 notice. Therefore, I an unable to accept the explanation trotted out by the

tenant for non payment of the rent. I hold that the Rent Controller is justified in holding that the tenant has committed wilful default. I see no ground

no interfere with the finding of the Rent Controller, which was confirmed by the Appellate Authority that the tenant has committed wilful default.

The Rent Controller has given a finding that the landlord has not filed any plan for putting up construction or license issued by the Municipality.

The Rent Controller also relies upon the evidence of P.W.1 the landlord/Agent that the building is not in a dilapidated condition. The Rent

Controller for coming to the above conclusion has relied upon a decision in Hussain Lorry Booking Service v. A. Sirajudeen (1991) 2 M.L.J. 48.

The learned Counsel for the respondent relied upon a decision in Sherwood Educational Society Vs. Abid Namazie and Others, . It has been held

in the above decision that the statute does not say that only if the approved plan is filed before Court, eviction could be ordered. It is further held

that it is not the intention of the landlord that has to be considered, but the proof must be, the genuineness of the claim. The question whether the

building is required for immediate demolition and reconstruction would depend upon facts of each case. The Rent Controller has given a finding on

appreciation of oral evidence of the landlord. The Rent Controller has given a finding that P.W.1 has stated that she would get additional income if

the building is demolished and reconstructed. The Rent Controller has also on a consideration of the admission of P.W.1 held that the building is

not in a dilapidated condition and that the petitioner has not taken any steps for appointment of a Commissioner to note down the physical features

of the building. Thus, it is clear that the Rent Controller has negatived the claim of the landlord on other grounds also. The Rent Controller has

given sufficient reasons for negativing the claim of the landlord. Therefore, I see no reason to differ from the findings of the Rent Controller. I hold

that the petitioner failed to prove that she requires the building for demolition and reconstruction. Hence, I hold that the findings of the Rent

Controller and the Appellate Authority on this aspect of the case have to be confirmed.

The learned Counsel for the revision petitioner contended that the Appellate Authority without assigning any reason for its conclusion, has

simply confirmed the order of the Rent Controller and that therefore, the order passed by the Appellate Authority is liable to be set aside. The fact

that the Appellate Authority has passed a cryptic order cannot be a ground to allow the revision as the findings rendered by the Rent Controller

were supported by the materials and legal evidence. I hold that the order passed by the Appellate Authority is not liable to be set aside for the

simple reason that the Appellate Authority has not discussed the evidence and merits of the case. I hold that there are no merit in the revision.

In the result, the civil revision petition is dismissed. The order of the Rent Controller as affirmed by the Appellate Authority is confirmed. No

costs. Consequently, connected C.M.R is also dismissed.