Pappu Reddiar vs T.K. Murugesa Udayar

This Revision is filed by the landlord under the Rent Control Act. He filed H.R.C.O.P. No. 3 of 1984, on the file of the Rent Controller (District

Munsif), Turaiyur, for eviction of the respondent herein, on the ground that he committed wilful default in payment of rent, and also on the ground

that the building is required for his own occupation.

It is averred in the petition that rent is payable at the rate of Rs. 75/- per mensem on or before the 5th of every succeeding month according to

English calendar. According to the landlord, in spite of the contract between the parties, the tenant failed to pay rent from 1-4-1984 wilfully and

wantonly. It is further averred in the petition that the petitioner has no other residential premises than the petition mentioned building, and that the

same is required for his personal convenience.

In the counter statement filed by the respondent, it is stated that he began to occupy the building from 1974 on a monthly rent of Rs. 50/-. Later,

in the year 1975, a fresh agreement came into existence and as per that, respondent was liable to pay Rs. 75/-per month as rent, on or before the

5th of every succeeding English month. The respondent was a contractual tenant till 30-6-1979 and thereafter became a statutory tenant, and he is

entitled to the benefits of the Act. The respondent denies the allegation that he wilfully failed to pay rent from 1-4-1984 in spite of repeated

demands by petitioner. According to him, though he was ready to pay rent every month, the petitioner used to receive the rent in lump sum right

from the beginning of the tenancy from the year 1974, as can be seen from the receipts issued by the petitioner''s agent. According to the

respondent, the petitioner''s agent wanted the respondent to pay Rs. 100/- as rent from April, 1984, and for this also, the respondent agreed. But,

for reasons best known to them, they refused to receive the rent from the respondent. Therefore, the respondent sent the rent through money

order, which the petitioner refused to receive. According to the respondent, there was no wilful default. Regarding personal occupation, it is said

that the petitioner is a permanent resident of Perumalpalayam Village, and that he has no intention to reside at Turaiyur. The respondent would say

that the alleged requirement is only a ruse to evict him from the demised premises.

Before the Rent Controller, petitioner examined himself as P.W. 1 and marked Exs. A-1 to A-6 on his side, and the respondent examined

himself as R. W. 1 and marked Exs. R-1 to R-2 in support of his case.

After evaluating the entire evidence, the Rent Controller came to the conclusion that the tenant committed wilful default in paying the rent, and

that the building is also bona fide required by the landlord for his own occupation. The petition was allowed, and the respondent was give two

months'' time to vacate the premises.

The tenant preferred B.C.A. No. 34 of 1986. The Appellate Authority reversed the finding of the Rent Controller. If found that the landlord was

not entitled to get eviction on both the grounds. It said that when it was the habit of the petitioner (landlord) to receive rent in a lump sum, the

respondent (tenant) cannot be said to have committed wilful default. It also said that even though the suit notice was issued in 1979, eviction

petition was filed only in 1984, and this shows that the tenant might not have committed wilful default and that the conduct of the landlord also

shows that he acquiesced the tenant paying the rent belatedly. In so far as the claim for eviction on the ground of own use is concerned, the

Appellate Authority held that the claim was not bona fide. It was based on the ground that the petitioner wants a residential premises to be used for

non-residential purpose, and that the same is not mentioned in the eviction petition. It has said that when he was examined, he deposed that he

wanted the building for his textiles business, which is not the reason mentioned in the eviction petition or in the notice. The Appellate Authority,

therefore, held that the claim was not bona fide and accordingly dismissed the eviction petition. It is against the judgment of the Appellate

Authority, the landlord has filed this Revision Petition.

Learned counsel for the petitioner took me through the entire evidence in this case and wanted me to interfere and allow eviction on both

grounds.

In so far as the question whether the petitioner is entitled to get an order of eviction on the ground that the tenant had committed wilful default, it

is better to take into account the pleadings itself and thereafter refer to the evidence in this case. In paragraph 4 of the petition, it is said :

The respondent took lease of the premises for his residence. The lease is according io English calendar beginning from 1st of every English month

and ending with the last date of the same month. The rent is payable on or before 5th of every succeeding month. The monthly rent in Rs. 75/-. The

rent is payable by every month and in default the respondent is liable to be evicted from the premises.

In paragraph 5, it is said thus :---

The respondent knows fully that he is liable to pay the rent every month without fail. In spite of this the respondent has failed to pay the rent from

1-4-1984 wilfully and wantonly. In spite of repeated demands made by the petitioner, the respondent refused to pay the rent.....

The above averments are answered in paragraphs 3 and 4 of the counter statement. The relevant portions of those paragraphs read thus:--

It is true the petition mentioned building belongs to the petitioner. The same was leased to respondent in the year 1974 for a monthly rent of Rs.

50/-. Later in 1976, a fresh agreement came into existence and as per the same, respondent is liable to pay Rs. 75/- per month of every

succeeding month. The respondent was a contractual tenant till 30-6-1979 and thereafter became statutory tenant and he is entitled to the benefits

of the Act.

The allegation that the respondent has wilfully failed to pay the rent from 1-4-84 in spite of repeated demands by petitioner is not correct. Though

respondent was ready to pay the rent every month, petitioner used to receive the rent in lump sum right from the beginning of the tenancy from the

year 1974. The above fact will be amply borne out from the receipts issued by petitioner''s agent. Petitioner''s agent wanted the respondent to pay

Rs. 100/- as rent from April, 1984. For this also, respondent was willing to pay. In spife of respondent paying the rent; the same was not accepted

by the petitioner or his agent for reasons known to them only.....

Admittedly the tenant did not pay rent from April, 1984, and we find that the same was paid only as per Ex. B-2 and Ex. B-3 dated 23-11-

1984. That was after a reply notice was issued by the petitioner (landlord) to the respondent (tenant) on 15-11-1984, as evidenced by Ex. R-6.

Even in the year 1979, as evidenced by Ex. A-2, the respondent was informed that he has committed default in paying rent, and only thereafter

rent was paid as per Ex. B-1. A receipt was also given by the petitioner to the respondent. Even though in the counter statement, it is said that it

was the habit of the petitioner to receive the rent in a lump sum, there is also a specific statement therein that as per agreement entered into in the

year 1976, respondent (tenant) is liable to pay Rs. 75/- per month as rent regularly and that the same is payable on or before the 5th of every

succeeding English month. So, there is an obligation on the part of the tenant to tender the rent regularly in accordance with the contract between

the parties. The tenant cannot explain the default by saying that the petitioner''s agent used to collect the rent only in a lump sum. The said

explanation also cannot be accepted for a moment for the following reason. It is stated in the counter that from April, 1984, petitioner''s agent

wanted the respondent to pay a sum of Rs. 100/- as rent. It is said tnat the respondent also agreed for the same. If the relationship between the

parties was so cordial, the explanation in the counter-statement that the petitioner refused to accept the same when it was tendered cannot be true.

So, such an explanation given in the counter-statement cannot be accepted for a moment. When there is a contract between the parties in regard to

payment of rent, unless the tenant shows that (he same was given a goby 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. According to me, the reason mentioned by the respondent for not paying the rent in time cannot toe accepted.

In this connection, it is worthwhile to refer to the decision reported in (1984) 97 MLW 212 (Journal Section) (Dhanraj Bai (Dhanraj B. Shah) v.

N. Srinivasalu). A similar question came for consideraiion, and a learned Judge of this Court has held thus:-

Held, 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 an agreement to pay rent at irregular intervals so as to save the tenant from

being guilty of wilful default.

First of all, in the instant case no such plea was specifically taken. From his own statement it is amply borne out that the tenant has not pleaded any

agreement to pay the rent at irregular intervals. On the other hand, what is pleaded is that the landlord used to collect the rent as and when he

needed the money. Secondly, the default was admittedly occasional because the tenant was out of station, but not because the landlord did not call

on the tenant. Above all the tenant has specifically complained that the landlord is expecting more rent from time to time. This will clearly indicate

that there is no cordiality between the parties. In such an event it is highly unsafe to infer any agreement permitting the tenant to pay rent once in a

way. None of the citations quoted above, therefore, come to the rescue of the tenant before me. If there is no agreement, the default as rightly

found by both the Courts below, is nothing but wilful.

In (1994) 2 MLW 524 (Mohamed Rowther v. S. S. Rajalinga Raja), this Court held thus :--

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.....

Likewise, in Seshachala Chettiar (Deceased) and Another Vs. Duraiammal, , this Court held thus:

''''When the landlady sent notices to the tenant calling on him to pay the arrears of rent, it is not open to the tenant to say that he could pay the

arrears of rent in lump sum. Even if there was any such practice between the landlady and the tenant, that practice would cease to operate after the

landlady sent a notice to the tenant calling upon him to pay the arrears of rent in time.....

The contention that the habit of the landlord is to receive the rent in lump sum cannot stand especially when the tenant in this case has stated

that he has become a statutory tenant. If he says that he is a statutory tenant, there is a statutory obligation on his part to pay the rent in time, and

that too in terms of the contract. S. 10(2)(i) of the Rent Control Act provides that the tenant will be a defaulter if he did not pay or tender the rent

due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the

absence of any such agreement, by the last day of the month next following that for which the rent is payable. If the tenant claims protection under

the Statute, naturally he has to comply with the provisions of S. 10(2)(i) of the Act as well. I do not find any justification on the part of the tenant in

accumulating the rent and paying the same in a lump sum. The custom or habit pleaded by the tenant is not true, and I am of the view that Ex.B-3

will not prove the same.

The Appellate Authority has held that as per Ex. A-3, it is clear that the landlord used to receive rent in lucid intervals. We must know that

Ex.A-3 though dated 17-3-1985, i.e., after the institution of the proceedings, that relates to a period of 1974-75. I do not think that Ex. A-3 will in

any way support the case of the tenant, especially when a fresh rental arrangement has been entered into in 1976, stipulating the time and the date

on or before which the payment of rent should be made. The Appellate Authority has also justified the action of the tenant on the ground that even

though in 1979 suit notice was issued, as per Ex.A-1, the landlord did collect the rent even thereafter. According to me, the tenant cannot take

advantage of such conduct on the part of the landlord. It only shows that the tenant used to pay rent only after demand was made by the landlord.

It only exhibits that he is a chronic defaulter in paying rent. I hold that the tenant is liable to be evicted on the ground that he has committed wilful

default in paying rent.

In regard to the claim that the building is required by the landlord for his own occupation, I have to confirm the finding of the Appellate

Authority. In the eviction petition, it is said that the petitioner has no residential building of his own other than the schedule building and he wants the

schedule building for his personal convenience. But when he was examined, he has said that he wants to make use of the same for his textile

business. The inconsistency in the version given by the landlord during his evidence shows his lack of good faith in putting forward such a claim.

Therefore, the finding of the Appellate Authority in that regard has to be upheld,

In the result, I set aside the judgment of the Appellate Authority in part and allow this revision to this extent, namely, that the landlord is entitled

to get eviction on the ground that the tenant has committed wilful default in paying rent. The landlord is also entitled to get costs of this revision

petition.

Petition partly allowed.