Ramala Ramaiah died per L.Rs. vs Moostiala Narasimha Rao

K.B. Siddappa, J.—This revision is filed against the order dated 22-10-1991 in R.A. No. 339 of 1987 on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad. The landlord filed rent case on the ground of wilful default for the period from 1-2-1978 to 31-7-1980. Admittedly the monthly rent is Rs. 23/-.

On behalf of the petitioner, P.Ws. 1 and 2 were examined and no Exhibits were marked. The respondent-tenant examined R.Ws. 1 and 2 and got marked Exhibits R-1 to R-7. Ex. R-1 is the rent receipt for Rs. 267/- dated 28-9-1978 for the period from 1-10-1974 to 18-5-1975, Ex. R-2 is the rent receipt for Rs. 216/- dated 28-9-1978 for the period from 19-9-1975 to 30-6-1976, Ex. R-3 is dated 8-12-1978 for Rs. 69/- paid for the period from 11-10-1976 to 31-12-1976, Ex. R-4 dated 10-11-1978 is the receipt for Rs. 69/- paid for the period 1-7-1976 to 30-9-76, Ex. R-5 dated 19-8-1979 is the receipt for Rs. 299/- for the period from 1-7-1977 to 31-1-1978, Ex.R-6 dated 29-10-1980 is the receipt for payment of Rs. 500/- and Ex. R-7 dated 12-5-1981 is the receipt for payment of Rs. 300/-.

Both the Courts held that the burden to pay the rents regularly is on the tenant. If he failed to do so, that would amount to wilful default. The mere fact that the landlord received the rents irregularly as indicated above is not sufficient to come to the conclusion that they agreed for irregular payment of rent. Consequently, it allowed the petition and ordered eviction of the tenant.

The learned counsel for the petitioner submitted that when the tenant paid rents at irregular intervals as indicated above, it should be inferred that the landlords consented to receive the rents at irregular intervals. The landlords all of a sudden changed the mode and without issuing notice to pay the rents regularly have filed the eviction petition.

In this case, admittedly no notice is given to the tenant alerting him to pay the rent every month regularly. The landlords lulled the tenant in the belief that things are alright. Therefore, in the instant case, no ground is made for wilful default. In support of his contention, the learned counsel for the petitioner relied upon the judgment of this Court in Mrs. A.J.D'' Souza v. Dr. C.K. Govind Rao 1990(2)ALT 51 wherein it was held.

"While considering the non-payment of rent for a particular period, Ramaswamy, J., (as he then was) observed in Dr. T.S. Kumar v. Smt. K. Lakshmi Bai (C.R.P. 326/85 dt. 8-7-1986 (unreported) that non-payment of rent for a particular period cannot be construed to be wilful default. In that case the default is only for one month and the learned Judge found that by no stretch of imagination it can be construed to be wilful default on the part of the tenant it has been observed by this Court that generally the landlords decline to receive the rents for two or three months with a view to make it a ground in the eviction petition. Default for one or two months. just prior to the filing of the eviction petition has to be viewed very cautiously. The statutory right given to the tenant cannot lightly be taken away on account of the confusion created by the landlord in not receiving the rents just one or two months prior to the filing of the petition. The lower appellate Court has taken into consideration the fact of payment of the rent by the end of the succeeding month. If no period has been stipulated in the agreement, it has to be paid atleast by the end of the succeeding month. While considering a case that a monthly tenant is under an obligation to pay the rent from month to month, the Supreme Court in S.P. Deshmukh Vs. Shah Nihal Chand Waghajibai Gujarati, observed as follows:

''Normally, a monthly tenentis under an obligation to pay the rent from month to month but this obligation is subject to a contract to the contrary. Such a contract need not be reflected in a formal document and can be spelt out from the conduct of the parties spread over a fairly long period of time. The evidence in the case, which was believed by the two tribunals of fact, shows that the tenant has been paying rent at an interval of 3 or 4 months, which the landlord has been willingly accepting and always without even so much as a murmer. The land lord never complained of any irregularity on the part of the tenant in paying rent and indeed the tenant was not in arrears of a paisa when the present proceedings for his eviction were commenced by the landlord.

Applying the same ratio, as is already found by this Court, from the receipts that have been filed, the course of conduct that has been admitted by the landlord in receiving the rents once in two months and no notice having been issued by the landlord at any time complaining against the irregular payment of rent, it must be held that the tenant has not committed any wilful default and the landlord failed to prove that the tenant has committed any wilful default in payment of rent. It therefore follows that the finding of the lower appellate Court that the tenant has committed wilful default has to be set aside and that of the trial Court affirmed.".

The learned counsel for the petitioner also relied upon the judgment of the Supreme Court in Rashik Lal and Others Vs. Shah Gokuldas, wherein it was held

"We do not see any reason for holding that unless the rent was paid and accepted at a fixed period of interval, no such implied agreement can be inferred. In the S.P. Deshmukh Vs. Shah Nihal Chand Waghajibai Gujarati, the rent had been paid at the varying interval of 3 or 4 months. The crucial test appears to be the conduct of the landlord in receiving the rent offered belatedly. If he receives the same under a protest and warns the tenant to be regular in payment in the future, he cannot be assumed to have agreed to a modified agreement in this regard. But if he, without any objection and without letting the tenant know his thought process, continues to receive rent at intervals of several months, he cannot be allowed to spring a surprise on the tenant by suddenly starting a proceeding for eviction. Having lulled the tenant in the belief that things were all right, the landlord was under a duty to serve him with a notice demanding regular payment, if he wished to insist upon it. In the case before us there was no objection whatsoever, raised on behalf of the landlord against the delayed payments. We, therefore, hold that the High Court was not right in reserving the concurrent finding of the two Courts below. Accordingly the impugned judgment is set aside, that of Resident Deputy Collector is restored and the appeal is allowed with costs throughout. Before closing, however, we would like to observe that in view of the attitude of the parties disclosed in the present case the appellant should hereafter pay the rent regularly in the succeeding month failing which he may be liable to be adjudged a habitual defaulter.".

I see considerable force in the submission made by the learned counsel for the petitioner. Exs. R-1 to R-5 are prior to the filing of the rent case. They are paid at irregular intervals and they are received without murmur by the landlord. I have seen the originals of Exs. R-l to R-5. The rents were received without any protest reserving his right for eviction etc. The conduct of the landlord certainly lulled the tenant in the belief that he could pay the rents irregularly. Exs. R-6 and R-7 are subsequent to the filing of the case. There is endorsement to the effect that the amounts were received subject to the eviction petition. Such kind of endorsements are not found in Exs. R-l to R-5. If the landlord wants to change his conductor does not want to give any concession to the tenant and insists that the rents should be paid regularly on monthly basis, he should have given notice of his intention to the tenant as held in Rashik Lal''s case (2 supra). In this case, admittedly before filing the case, the landlord did not give such notice alerting the tenant to pay rents regularly. In the absence of that, the tenant is justified in believing that the old conduct of receiving the rents irregularly is continued. In such case, the tenant cannot be termed as wilful defaulter. The ratio of the above judgments is fully applicable in this case. The lower Courts did not examine this aspect of the case and wrongly came to the conclusion that the tenant has committed wilful default. Consequently, the order under revision is set aside and the revision petition is allowed, but in the circumstances without costs.