Ramaswamy Pathar vs Thiagaraja Chettiar

Fakkir Mohammed, J.—The revision petition has been filed by the tenant against the order of the Appellate Authority, namely, the Subordinate Judge, Mayuram dated 19th March 1981 in Civil Miscellaneous Appeal No 107 of 1980, allowing the appeal preferred by the landlord against the order of dismissal of Rent Control Original Petition No. 19 of 1980 by the Rent Controller (District Munsif) Mayuram, dated 9th September 1980. The landlord had filed Rent Control Original Petition No. 19 of 1980 u/s 10(2)(1) of Act XVII of 1960, on the ground of wilful default by the tenant in paying the arrears of rent of Rs. 320 at the rate of Rs. 20 per month from 1st December 1978 till the end of 31st March 1980. The defence railed by the tenant was that the landlord used to receive the rents in lump sum once in six months or once in a year as he had requested the tenant to allow the rents to accumulate and pay the same in lump sum so that it would serve a substantial purpose, and that the tenant has been in occupation since 1960 though a renewal lease deed was executed on 2nd September 1971. The learned Rent Controller has upheld the plea of the tenant relying upon the evidence of P.W. 1 to say that the tenant used to pay the rents once in two months or four months after demand was made by P.W. 1 and that therefore, there was no wilful default on the part of the tenant. On appeal the learned Subordinate Judge has relied upon M. Nagalinga Josiar v. Trust for Building Punniyanpan Nadarl and Subbayya v. The Subordinate Judge2 and found that even though the tenant had pleaded that the landlord used to receive the rent once in a six months or once in a year, the tenant has not produced any ketchayat to prove such plea, and that the tenant has committed wilful default since he had not paid the arrears of rent for nearly 16 months.

The learned Counsel for the Petitioner has argued that the tenant is also occupying a shop about two or three shops away from the shop of the landlord, that if there was no custom of receiving the rent once in three months or four months or one year, the landlord would have taken immediate steps to evict the tenant, and that under the Explanation to Section 10(2)(i) the presumption of wilful default cannot be raised since the tenant has immediately remitted the entire arrears of rent Rs. 340 on receipt of the lawyer notices, along with the original of exhibit A2 reply notice. In support of such argument, he has relied upon the belated lawyer notice served by the landlord after having kept quiet for about 16 months. But the learned Counsel for the landlord was lenient, It cannot be said that he was receiving the rents in lump sum.

Admittedly, the tenant has been in occupation from 1960. The fact that the tenant has been paying rents in lump sum is also admitted. In the present case, before the issue of lawyer''s notice the landlord who was occupying a shop of his own very near the dismissed premises has kept quiet for 16 months and then sent the lawyers'' notice. The landlord has admitted both in chief examination and cross examination that the tenant used to pay the rents once in two or four months or six months. In between 1960 and 5th April 1980 there was no notice at all by the landlord to the tenant. The landlord is doing jewellery business and the tenant is also doing goldsmith business. It is not as though the landlord is depending upon the rent paid by the tenant. The shop is situated at Thirumanjana Veedhi Bazaar, Koranad at Mayuram. It is used for business people to get the rent accumulated as savings. If the landlord was particular about the stipulation in the lease deed for the payment of rent every month, he would not have allowed to keep the rents accumulated for being paid whenever the landlord went and demanded.

It can be understood if the landlord was away from the building and the tenant made delay in the payment of rent, that there is possibility of wilful default on the part of the tenant. Here the landlord who is a businessman would not have allowed the tenant to commit default constantly, unless he had not allowed the tenant to pay the rent in lump sum. It is in such a contingently that has been considered in Komalam Ammal v. Ashoka Cycle and Motor Company. Here, the presumption of wilful default cannot be made since the tenant has paid the entire amount immediately after receipt of the notice explaining his stand. In the circumstances, the conclusion of the Rent Controller that there was no wilful default is quite correct and the decision of the Appellate Authority is not correct. Therefore, the order of the Appellate Authority is set aside. The revision petition is allowed, but in the circumstances, without costs and the order of the learned Rent Controller is upheld.