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247 paragraphs · 5,924 wordsP. Thangavel, J.—This Civil Revision Petition has been filed by the tenant against the judgment and decree dated 29.1.1999 and made in
R.C.A. No. 751 of 1995 on the file of the learned VIII Judge, Court of Small Causes, Madras, confirming the order and decrials order dated
18.7.1995 and made in R.C.O.P. No. 2542 of 1993, on the file of the learned Rent Controller (XVI Judge. Court of Small Causes), Madras. The
revision petitioner is the tenant under the respondent herein, who is the landlady of the premises described in the Rent Control Petition, on a
monthly rent of Rs. 1,000/-. The respondent herein filed a petition in R.C.O.P. No. 3161 of 1986, for fixation of fair rent and the fair rent was
fixed at Rs. 3429/- by the Rent Controller, on 3.2.1990. An appeal in R.C.A. No. 391 of 1990 was filed by the tenant and the fair rent was
modified and re-fixed at Rs. 2385/- for the period from October 1986 upto April 1991 and, thereafter, at Rs. 2835/- per month. The petition filed
in R.C.O.P No. 422 of 1993, u/s 10(2)(i) of the Tamil Nadu Buildings (Lease and Rem Control) Act, 1960 (hereinafter referred to as ""the Act""),
for arrears of rent, which represents the difference between the contractual rent and the fair rent fixed, as mentioned above, was ordered ex part as
prayed for, thereby evicting the revision petitioner herein, on 30.6.1993, by the Rent Controller, XIV Judge, Court of Small Causes, Madras. The
revision petitioner had paid the fair rent fixed by the Court for the period from 1.12.1992 to 31.5.1993 and thereafter committed wilful default in
the payment of fair rent fixed by the Court for the months of June, July and August 1993. It is on this ground that the respondent herein, as
landlady, filed R.C.O.P. No. 2542 of 1993, for eviction of the revision petitioner from the premises described in the petition.
The revision petitioner, as respondent, resisted the claim made by the landlady, who is the respondent herein, on the following grounds: The rent
for the month of June 1993 was sent by the revision petitioner by means of cheque to the advocate for the respondent herein, on 31.7.1993, but
the same was not encased by the respondent herein. Again, the rent for June 1993 was sent on 8.10.1993 by way of bank draft, which was
received by the respondent. The rent for the month of July 1993 was also sent to the advocate for the respondent herein, on 31.8.1993, but it is
not known as to what had happened to the said payment by cheque. Again, a cheque was sent on 4.10.1993, to the advocate for the respondent
herein and the same was returned as refused. The rent sent for the month of August 1993,on 30.9.1993, by means of cheque, to the advocate for
the respondent herein, was also returned as refused. Again, on 18.10.1993, the rent for the months of July and August, 1993 was sent by cheque
to the respondent herein and the same was received by the respondent herein. The rent for the month of September 1993 was also sent to the
respondent herein by means of cheque on 29.10.1993 and the same was returned as refused. But, the rent sent again for the month of September
1993. on 31.12.1993, by registered post to the respondent herein was received. The rent for the month of October, 1993 was sent to the
respondent herein and the same was received by her. The receipt of rent for the month of November, 1993 has been J accepted by the
respondent herein, by letter dated 20.5.1994. Thereafter, at the request of the respondent herein the rent is being deposited in Bank in the account
of the respondent herein, by the revision petitioner. In the said circumstances. the revision petitioner contended that there is no wilful default in the
payment of rent for the months of June, July and August, 1993 and. therefore, sought for dismissal of the petition filed for eviction.
After considering the submission made on both sides and in the light of the evidence available on record, the learned Rent Controller, XVI
Judge. Court of Small Causes, Madras, has come to the conclusion that the revision petitioner herein, as tenant, has committed wilful default in the
payment of rent and, accordingly, ordered eviction of the revision petitioner from the demised premises. Aggrieved at the said order and decretal
order dated 18.7.1995 and made III R.C.O.P. No. 2542 of 1993, the tenant, as appellant, preferred an appeal in R.C.A. No. 751 of 1995 on
the file of the VIII Judge. Court of Small Causes, Madras. After considering the submissions made on both. sides and in the light of the mater of
evidence available on record, the leaded Rent Control Appellate Authority concurred with the findings of the learned Rent Controller that the
revision petitioner herein, as tenant, has committed with default in payment of rent for a period of three months as mentioned above and.
accordingly, confirmed the order of the learned Rent Controller and dismissed the appeal. Aggrieved at the said judgment and decree dated
29.1.1998 and made in R.C.A. No. 751 of 1995, the tenant, who is the appellant before the Rent Control Appellate Authority, has come forward
with this Civil Revision Petition.
The fact remains that the respondent herein is the owner of the property described in the rent control petition filed for eviction against the
revision petitioner, who is the tenant, on a monthly rent of Rs. 1,000/-. The eviction petition has been filed on the ground of wilful default in the
payment of rent for the month of June. July and August 1993. The fact also remains that even before the filing of the above said petition on the
ground of wilful default, the respondent herein, as petitioner, filed a petition in R.C.O.P. No. 316I of 1996 on the file of the Rent Controller, Court
of Small Causes, Madras for fixation of fair rent and fair rent was fixed at Rs. 3429/- per month from October 1986, by order dated 3.2.1990. It
is not in dispute that the tenant, who is the revision petitioner, preferred an appeal in R.C.A. No. 391 of 1990 against the fixation of fair rent at Rs.
3429/- per month by the learned Rent Controller and in that Rem Control Appeal, the fair rent fixed by the Rem Controller was modified and it
was re-fixed at Rs. 2863/- per month, from October 1986 to April 1991 and, thereafter at Rs. 2385/- per month Admittedly, the revision
petitioner herein filed a revision in C.R.P. No. 1723 of 1993 against the fair rent fixed in R.C.A. No. 391 of 1990 on the file of the Rent Control
Appellate Authority, Madras, and on 9.2.1998. the judgment and decree passed by the Rent Control Appellate Authority in R.C.A. No. 391 of
1990 was set aside and the matter was remanded back to the Rent Controller, for fixation of fair rent in the light of the observation made in the
Revision Petition, by the High Court of Madras, Admittedly, the said fair rent petition is still pending without fair rent being fixed yet for the
demised property.
It is relevant to point out that there was one another Rent Control Proceedings by the respondent herein against the revision petitioner, in
R.C.O.P. No. 422 of 1993. for eviction, on ground of wilful default. The above said eviction petition was filed against the revision petitioner
herein, as tenant, for the alleged wilful default committed by not paying the difference between the fair rent fixed and the contractual rent for the
demised premises, The fact also remains that the revision petitioner herein, who was respondent in that rent Control proceedings, remained ex
parte and eviction was ordered. It is not in dispute that the revision petitioner filed a petition in M.P. No. 647 of 1993 for setting aside the ex parte
order of eviction passed in R.C.O.P. No. 422 of 1993 on the file of the Rent Control Court, Madras and the said petition met with a dismissal. An
appeal was filed before the Rent Control Appellate Authority in R.C.A. No. 723 of 1994, in which the ex parte order of eviction passed by the
Rent Controller in R.C.O.P. No. 422 of 1993 was stayed on condition of deposit of Rs. 75,000/- by the revision petitioner herein. Aggrieved at
the order passed by the learned Rent Court Appellate Authority, the revision petitioner herein, filed C.R.P. No. 75 of 1995 questioning the
correctness of the above said conditional order and the same was set aside by a learned single Judge of this High Court stating that the revision
petitioner cannot be directed to deposit the sum of Rs. 75,000/- will not arise.
A perusal of the averments in the petition in R.C.O.P. No. 2542 of 1993 would disclose that the revision petitioner herein has paid the fair rent
fixed by the appellate authority at Rs. 2385/- per month for the period from 1.12.1992 to 31.3.1993, but had not paid the fair rent fixed at Rs.
2863/-per month for the period from October 1986 to April 1991 and Rs. 2385/- per month from 1.5.1991 to 31.11.1992. Even according to
the respondent herein, a suit in O.S. No. 11467 of 1992 was filed by her against the revision petitioner, on 19.2.1993, on the file of the City Civil
Court, Madras for recovery of the difference in the fair rent fixed by the appellate authority and the contractual rent and the same is pending. It is
also evident from the pleadings in the petition that the revision petitioner herein has neglected to pay the fair rent fixed by the Court for the months
of June, July and August 1993, amounting to Rs. 7155/-. Therefore, it is evident from the above said pleadings that the revision petitioner has paid
fair rent to the respondent herein at the rate of Rs. 2385/- for the period from 1.12.1992 to May 1993 and at the contractual rate of Rs. 1000/-
per month prior to 1.12.1992.
The learned counsel for the revision petitioner contends that the revision petitioner has not committed wilful default in payment of rent for the
months of June, July and August 1993, as claimed by the respondent herein. The learned counsel for the respondent herein contends contra to it.
The fact remains that the revision petitioner, whose statutory obligation is to pay the rent regularly every month, has to pay or tender the rent for
the premises under his occupation, within 15 days after the expiry of the time fixed in the agreement of tenancy, and the absence of any such
agreement in writing, by the last day of in month next following that. In this case there is no agreement of tenancy between the respondent herein
and the revision petitioner in writing. Therefore, the revision petitioner is bound to pay or tender rent, in any event, by the last day of the month next
following the month for which rent payable. If that is taken into consideration the rent payable for the month of June 1998 by the revision petitioner
to the respondent; herein should be paid on or before 31.7.1993. In this case, the rent has been sent by cheque by the revision petitioner, to the
respondent herein, on 31.7.1993, by post, and the same was received and presented for collection on 4.8.1993. The above said cheque was
dishonoured on 25.8.1993. The fact remains that the revision petitioner herein has sent a bank draft towards the rent for the month of June 1993,
to the respondent herein, by registered post on 8.10.1993 and the same was received. The above said circumstances would disclose that there
was no tender or payment of rent for the month of June. 1993 as contemplated under the Act.
According to the revision petition the rent for the month of July 1993 was sent to Mr. Asif Ali. who was said to be the advocate for the
respondent herein on 31.8.1993, by means of cheque in ordinary post. The fact of sending such cheque by the revision petitioner to the above said
advocate Thiru Asif Ali was denied by the respondent herein. There is no material the side of the revision petitioner to establish the fact of sending
a cheque towards the rent for the month of July 1993 on 13.8.1993 by post. It is the admitted case of the revision petitioner that he sent another
cheque towards the rent for the month of July 1993 on 4.10.1993 by registered post with acknowledgement due, to the alleged advocate for the
respondent herein, but the same was refused and returned. According to the learned counsel for the respondent herein. Thiru Asif Ali was no
longer an advocate for the respondent herein after 30.6 1993, when the petition in R.C.O.P. No. 422 of 1993 on the file of the Rent Controller,
Court of Small Causes, Madras, was disposed of. It is not known as to why the revision petitioner sent the rent by means of cheque for the month
of July 1993 by Registered Post to Thiru Asif Ali, who was no longer an advocate on 4.10.1993 instead of sending it to the respondent herein.
Therefore, the factum of sending rent for the month of July 1993 by Registered Post to Thiru Asif Ali. Advocate cannot be held to be valid tender
and, in any event it cannot be complying with the requirement of the provisions of the Act.
According to the learned counsel for the revision petitioner, the rent for the month of August 1993 was sent by cheque to the above said
advocate Thiru Asif Ali, instead of the respondent herein, by registered post with acknowledgement due on 30.9.1993. The above said registered
post was returned refused, according to the revision petitioner, As already pointed out, Thiru Asif Ali was no longer an advocate for the
respondent herein, after 30.6.1993 Therefore, sending rent to the above said advocate cannot be complying with the requirements of the
provisions of the Act. Admittedly, the revision petitioner again sent rent for the months of July and August, 1993 by means of cheque on
18.10.1993 directly to the respondent herein by registered post and the same was received by the respondent herein. It is evident from the above
said admitted facts that the rents for the month of July and August 1993 were not tendered or paid to the respondent herein as mentioned in the
provisions of the Act. It is also relevant to point out that all the above said tender or payment of rent by the revision petitioner to the respondent
herein was after filing of the petition in R.C.O.P. No. 2542 of 1993 for eviction on the ground of wilful default on 1.10.1993. The learned counsel
for the respondent herein contends, relying on the proviso to Section 10, that if the Controller is satisfied that the tenant''s default to pay or tender
rent was not wilful, he may, notwithstanding anything contained in Section 11 give the tenant a reasonable time, not exceeding 15 days, to pay or
tender the rent due by him to the landlord up to the date of such payment or tender and on such payment or tender, the application shall be
rejected. In this case, the Rent Controller can avail the proviso to Section 10 referred to above only after satisfying himself as to whether the
default committed by the revision petition in payment of rent to the respondent herein was not wilful and not earlier to it. Such a conclusion cannot
be arrived at by the Rent Controller, without giving opportunities to both sides, on the mere averments made in the petition as well as in the counter
filed by the parties concerned. Therefore, the contention raised by the learned counsel for the revision petitioner in that respect cannot be
sustained.
The nonpayment of rent for the months of June, July and August 1993, as contemplated u/s 10(2) (i) of the Act, is clear wilful default unless the
revision petitioner satisfies the Court that the non-payment of rent for the above said period was not intentional, deliberate, calculated and
conscious with full knowledge of legal consequences flowing therefrom.
The Apex Court, in Sundaram Pillai and others v. R. Pattibiraman and others 98 L.W. 49 and S. Sundaram Pillai and Others Vs. `R.
Pattabiraman and Others, , has held as to what is ""willful default"". According to the Apex Court, default in order to be wilful must be intentional,
deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom"". It is in the light of the decision of the Apex
Court, the default committed by the revision petitioner for the period mentioned above has to be decided as to whether it is wilful or not.
A Division Bench of this Court in J. Visalakshi Ammal v. T.B. Sathyanarayanan (1996-2-L.W. 849) has held as follows:
We are firmly of the view that the difference of the amount between the fair rent fixed and the agreed rent is the arrears of rent for the building, and
it becomes payable when the order fixing the fair rent becomes final, and the same shall have to be paid within 15 days from the last day of the
tenancy month, failing which, it would be open to the landlord to issue notice calling upon the tenant to pay the arrears of rent. In the event of the
tenant failing to pay the arrears of rent pursuant to the notice, it would be open to the landlord to institute a proceeding for eviction on the ground
falling u/s 10(2) (i) of the Act. It is not necessary for the landlord to go to a Civil Court to recover such arrears of rent... the fair rent fixed becomes
effective from the date of application and it becomes payable on the date the order fixing the fair rent is passed by the Rent Controller, unless the
said order is challenged in appeal and thereafter in revision: and in such event, when the order becomes final.
It is evident from the decision referred to above that the difference between the contractual rent and the fair rent has to be paid, after it becomes
payable, when the order fixing the fair rent becomes final. In this case, even though there was fixation of fair rent in R.C.O.P.No. 3161 of 1986.
initiated by the respondent herein against the revision petitioner, the said fixation of fair rent was set aside by the High Court in C.R.P. No. 1723 of
1993 on 9.2.1998. Since the fair rent fixed by the Court below and modified by the Rent Control Appellant authority was completely set aside and
the matter was remanded back to the rent controller to fix the fair rent, by order dated 9.2.1998 and is pending yet, there is no fixation of fair rent
with regard to the demised property as on today. The learned counsel for the respondent herein contends that fair rent was fixed by the Rent
Controller, modified by the Rent Control Appellate Authority and the same was pending in C.R.P. No. 1723 of 1993 filed by the revision
petitioner herein, while the revision petitioner has committed wilful default in payment of rent for the month of June, July and August 1993: that this
High Court, in the above said revision petition had not stayed the order passed by the Rent Control Appellate Authority re-fixing the fair rent, after
modifying the fair rent fixed by the Rent Controller and that, therefore setting aside of the orders of the Court below, by the High Court on
9.2.1998 cannot be a ground to contend that the revision petitioner has not committed wilful default in payment of rent, if the payment made by the
revision petitioner, at the rate of fair rent fixed by the Court below is taken into consideration.
The learned counsel for the revision petitioner has brought to the notice of this Court the decision of the Apex Court, reported in M/s. Variety
Emporium v. V.R.M. Mohd. Ibrahim Naina (98 L.W. 25) to contend contra to the submission made by the learned counsel appearing for the
respondent herein. In that case, the landlord had filed a petition for eviction of the tenants from four nonresidential shops and three residential
premises in the first floor and eviction was ordered by the Rent Controller. The same was confirmed by the Appellate Authority. Some of the
tenants alone filed revision to the High Court. Similarly revisions were also filed by the landlord before the High Court. In these cases, the High
Court passed orders in the Civil Revision petition, without taking note of the subsequent events and, therefore the tenants took the matter to the
Hon''ble Apex Court. The Hon''ble Supreme Court was pleased to allow the matter in appeal, preferred by the tenants, on the ground that the
High Court had omitted to take note of the subsequent events.
The Apex Court in Sales Tax Officer, Kanpur and Others Vs. Union of India (UOI) and Others, has taken similar view that the subsequent
events have to be taken note of to mould the relief according to the subsequent events.
The decisions of the Apex Court referred above would lend support to conclude that the subsequent events in this Rent Control proceedings
can be taken note of to mould the relief sought for by the parties to the proceedings. The fact of setting aside of the fair rent fixed by the Rent
Controller and as modified by the Rent Control Appellate Authority with regard to the demised premises in the proceedings initiated by the
respondent herein against the revision petitioner can be taken note of as subsequent event to decide whether the revision petitioner herein has to
pay contractual rent or fair rent fixed by the competent authority and also to decide whether there was any arrears of rent because of the said
fixation of fair rent in the said proceedings. In this case, there is no fair rent fixed so far subsequent to the orders passed by the High Court in
C.R.P. No. 1723 of 1993 dated 9.2.1998 and the question of payment of rent at the rate of fair rent by the revision petitioner to the respondent
herein does not arise.
A perusal of proviso to Section 7 of the Act would disclose that where before the fixation or relaxation of the fair rent, rent has been paid in
excess there of, the refund, or adjustment shall be limited to the amount paid in excess for the period commencing on the date of the application by
the tenant or landlord under subsection (1) to Section 4 or sub-section (3) of Section 5, as the case my be, and ending with date of such fixation or
relaxation. If the revision petitioner has paid any amount in excess of the contractual rate of rent to the respondent herein, before the fixation or
relaxation of fair rent in the proceedings initiated by the respondent herein, as petitioner, against the revision petitioner, as respondent, the revision
petitioner is entitled to have the above said amount refunded to him or adjusted towards the amount payable to the respondent herein.
Of-course, the learned counsel for the respondent has brought to the notice of this Court the decision of the Apex Court reported in K.
Narasimha Rao v. T.M. Nasimuddin Ahmed (1996-2-L.W. 159) wherein the Apex Court was pleased to hold that the tenant has an enforceable
right to recover the excess amount of advance paid by him from the landlord or to have it adjusted for his benefit in case landlord fails to discharge
his obligation of refunding that amount. The said principle has been laid down in connection with payment of advance for more than one month''s
rent. But the fact in this case is different from the one referred to above. In any event, the excess payment, if any, made by the revision petitioner to
the respondent herein before the filing of the Rent Control petition for eviction of the revision petitioner on 1.10.1993 either has to be refunded, or,
the revision petitioner has to ask for adjustment of the excess payment of such amount towards arrears of rent, if any in view of the subsequent
development of setting aside of the order fixing fair rent, by the Rent Control Appellate authority in R.C.A. No. 391 by the order of the High Court
in C.R.P. No. 1723 of 1993.
The learned counsel for the revision petitioner has brought to the notice of this Court, the memo of calculation and additional grounds filed
before the Rent Control Appellate Authority to consider the subsequent event of setting aside of the fair rent fixed by the Rent Control Appellate
Authority, by the High Court of Judicature, Madras, as mentioned above. The claim made by the revision petitioner to receive additional ground
has been allowed, after contest, by the Rent Control Appellate Authority and the same was not questioned before the High Court of Judicature
Madras. A perusal of the memo of calculation filed by the revision petitioner before the Rent Control Appellate Authority would disclose that a
sum of Rs. 84,000/- has to be paid at the contractual rate of Rs. 1000/- per month for a period of 84 months from October 1986 to September
1993. If that be so, a sum of Rs. 80,000/- has to be paid towards contractual rent for the period from October 1986 to May 1993. for a period of
80 months. In the said memo of calculation, it is shown that a sum of Rs. 97,850/- has been actually paid for the period of 84 months from
October 1986 to September 1993. It is relevant to point out that even according to the responded herein, in the petition filed for eviction. the
revision petitioner has paid at Rs. 2385/- the fair rent per month which was subsequently set aside, for the period from 1.12.1992 to 31.3.1993
and continued to pay up to May 1993, but there was default in payment of rent at fair rent rate for the period from June 1993 to August 1993. If
that is taken into consideration, the rent actually paid by the revision petitioner to the respondent herein for the period from October 1987 to
September 1993 will work out to Rs. 88,328/-. If that be so, there should have been excess payment of about Rs.8400/- up to May 1993 as per
memo of calculation. The rent payable for the months of June. July and August 1993 will work out to Rs. 3,000/- at contractual rate and the said
amount can be adjusted by the revision petitioner herein from the amount due from the respondent herein. In that case, it cannot'' be held that there
is default in payment of: rent by the revision petitioner to the respondent herein. Even if the pleadings it the petition filed by the respondent herein
are taken into consideration, the revision petitioner has paid rent at the rate of Rs. 2385/- for the period from 1.12.1992 to 31.3.1993 and,
thereafter, the revision petitioner should have paid at the same rates. It is claimed that the revision petitioner has defaulted to pay rent at fair rent
rate for the months of June, July and August 1993 to an extent of Rs. 7155/- (at Rs. 2385/- per month. There is excess payment of Rs. 1385/-
every month, since the contractual rate of rent payable by the revision-petitioner to the respondent was only Rs. 1000/- during the period upto
31.5.1993. The excess payment from 1.12.1992 to 31.5.1993, will work out to Rs. 8,298/-. Even according to the averments in the petition,
there is excess payment of about Rs. 8300/-. If a sum of Rs. 3,000/- towards three months referred to above at the contractual rate of interest is
adjusted, then even there is surplus amount in the hands of the respondent herein out of the amount paid towards rent by the revision petitioner. If
the payment of rent by the revision petitioner to the respondent herein in excess is taken into consideration in the light of the order of the High
Court setting aside the fair rent fixed by the Courts below in connection with the demised property, it cannot be said that any amount is due
towards rent for the months of June, July and August, 1993. Therefore, it cannot be held that the revision petitioner has committed wilful default in
the payment of rent to the respondent herein as decided in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, referred to above.
The learned counsel for the respondent herein relied upon the decision reported in K. Murugappa Chettiar Vs. C. Balasundaram Chetty and
Another, 397(1)). In that case, the tenant had committed default in payment of rent. The landlord had initiated eviction proceedings against the
tenant and during the pendency of the said proceedings, the tenant had filed another petition for fixation of fair rent and in that proceedings, fair rent
was fixed lesser than the contractual rate of rent. It was contended on behalf of the tenant that excess amount paid by the tenant, which was
worked out in a subsequent proceedings had to be adjusted for the default already committed and the same was not accepted by the Court.
In Padmakar v. Madhukar (1995) 2 SCC 537) the tenant had filed a petition for fixation of fair rent without even paying the admitted rent
during the pendency of the application. Since the tenant had not even paid the contractual rent for the period in question, it was held that the tenant
was a habitual defaulter. The cases cited above will have no application to the facts and circumstances of this case.
In P. Subbiah v. Gopalakrishna Naidu (2000 (1) MU 632), it has been held by a learned single Judge of this Court, following the decision
reported in Visalakshmi Ammal v. Satyanarayana (1996 (2) L.W. 849), that failure to pay the difference between the fair rent and the agreed rent
will attract the provisions relating to wilful default unless the tenant shows sufficient cause to the contrary. In this case, there is no fixation of fair rent
by Court, till this day, to apply the principle laid down in this case.
In M/s. Prakash Pharmacy, rep. by its partners and others v. C. Thirupurasundari and Another (1998 TLNJ 165= 1998-3-L.W. 363), it has
been held that if fair rent has been fixed lower than the rate at which rent was paid by the tenant to the landlord, the tenant has got a right to get
refund of the excess amount paid, pending revision before the High Court, with regard to the fair rent proceedings. It seems the said decision is not
in line with the principle laid down by the Division Bench of this Court in (1996 (2) L.W. 849) as to when the fair rent proceedings will come to an
end.
In Gopalasamy, T and another v. R. Ranganathan and others (2000-2-L.W. 699), it has been held that if the intention of the tenant is that the
rent should not reach the landlord on the due date, or if the deposit is made not in accordance with law, the same will amount to wilful default. It
has also been held that payment with intent to see that the landlord does not receive it in time will also amount to wilful default.
In P. Vasuvaithiar v. R.M. Rangoo Chettiar (2000-2-L.W. 708), a learned single Judge of this Court has held that if the tenant had paid only
four months rent out of 20 months rent and if he takes a false stand that he has paid the entire rent for the period of 20 months, the intention of the
tenant is not bona fide and he should be termed as ""willful defaulter"".
In Mranalini B. Shah and Another Vs. Bapalal Mohanlal Shah, it has been held that where the tenant persistently commits defaults in payment
of monthly rent, the Court has no discretion to grant him protection u/s 12(3) (b) of the Tenancy Act, even if he pays off the whole arrears of rent
by the time of pronouncement of judgment.
In A. Mohan and others v. TMT. Komalam Ammal and others (2000 (1) MLJ 62), a learned single Judge of this Court has held that if a
tenant pays rent for the months of July and August alone out of the rent due for the months of June, July and August 1987, the failure to pay the
rent for the month of June and the conduct of the tenant will show the supine indifference.
In K.M. Muneeruddin and 4 others v. P.M. Punnoose 2000 (II) CTC 577), a learned single Judge of this Court has held that the conduct of
the tenant attempting to send rent by money order, without taking steps to deposit rent in Court, after asking the landlord to specify the name of the
Bank to deposit, rent by issue of notice, will constitute wilful default.
The decisions cited above will have no application to the facts and circumstances of this case and, therefore, the said decisions will not
advance the case of the respondent herein in any respect.
The learned counsel for the respondent herein finally relied on the decision reported to Majestice Leatherware v. Govinda Chetty (1999 (III)
CTC 199= 2001-1-L.W.474) wherein a learned single Judge of this High Court has held that concurrent finding given by the authorities below
cannot be interfered with by the High Court, sitting in revision, unless there is irregularity or illegality or impropriety in the order of the authorities
below. In this case, the Courts below have failed to take into consideration the availability of evidence with regard to the excess payment made
and the setting aside of the fair rent fixed by the Rent Controller and as modified by the Rent Control Appellate Authority by the High Court on
9.2.3998 in C.R.P. No. 1723 of 1993, even after it was brought to the notice of the Rent Control Appellate Authority by raising additional
ground, which was admitted by the Rent Control Appellate Authority himself after contest. The Rent Control Appellate Authority has also
committed a mistake in not taking into consideration the reported decision of a Division Bench of this Court in J. Visalakshi Ammal v. T.B.
Sathyanarayanan (1996-2-L.W.-849). It can be termed to be an illegality or impropriety in passing judgment and decree by the Rent Control
Appellate Authority. Therefore, this Court has got every right to interfere with the conclusion arrived at by the learned Rent Control Appellate
Authority in order to render justice to the aggrieved party before this Court.
In view of the foregoing reasons, this Court is not able to agree with the conclusion arrived at by the Rent Control Appellate Authority in
confirming the order of eviction passed by the Rent Controller on the ground of wilful default in payment of rent for the months of June, July and
August, 1993. Accordingly, the judgment and decree passed by the learned Rent Control Appellate Authority are set aside. In fine, the Civil
Revision Petition is allowed and the Judgment and Decree passed by the learned Rent Control Appellate Authority are set aside. In the
circumstances of this case, both parties are directed to bear their own costs.