T.K. Govindarajulu Naidu vs B. Dhanraj

Ratnam, J.—The landlord is the petitioner in this civil, revision petition. He his the owner of premises bearing old door No. 4 (New No. 5).

Old Slaughter House St, Choolai Madras 7. The respondent is in occupation of that premises as a tenant under the petitioner on a monthly rent of

Rs. 75/- payable on the first of the succeeding month. The respondent, according to the Petitioner is a chronic defaulter in the payment of rents. In

1978, the respondent was in arrears and a notice was sent to him demanding the arrears and only then the arrears were paid. The respondent was

also warned against irregular payment of rent and though the petitioner insisted on prompt payment of rents, it did not have any effect on the

respondent. Again, the respondent did not pay the rent for the period from August 1978 to May 1979 i.e. for a period of about ten months. The,

default in the payment of rents, according to the case of the petitioner, was only willful. A notice dated 28-7-1979 were issued to the respondent;

but the respondent evaded service. On the ground that the petitioner had thus committed willful default in the payment of rents for period

mentioned above the petitioner filed H.R. C. 1744 of 1979 under S. 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act (18 of

1960) as amended by Act 23 of 1973 (here in after called as the Act), praying for an order of eviction.

In his counter them respondent, while admitting the tenancy, stated that at the inception of the tenancy, the rent was only Rs. 45/- per month and

he had been regularly paying the rents. Owing to the scarcity of Aluminium metal, the respondent claimed that he could not run the factory and the

petitioner, who had been gradually increasing the rent, demanded enhanced rent at the rate of Rs. 100/- per month and since the respondent

refused to pay the rent demanded by the petitioner. The petitioner was evading to receive the rents. The respondent also pleaded that as and when

his bills were paid by the wholesale merchants to whom. he had supplied articles, he used to pay lump sum amounts as rent to the petitioner. The

wilful default attributed to the, respondent was denied by him. The illness of his family members, one after another, was put forth by the respondent

as the reason for the delay in the payment of rents. The respondent also, pleaded that on account of the financial difficulties, there was some delay

in making payments and that cannot be construed to be wilful default. The respondent referred to the proceedings. In execution taken by the

petitioner in respect of the ex parte order of eviction obtained and the tender of rents by him and the acceptance of the same on 28-7-1979 by the

petitioner and stated that on account to, of such payments, there was no willful default The notice sent by the petitioner was not evaded to be

received by the respondent according to him. An objection was also raised that since no notice as per the provisions of the Act and the Transfer of

Property Act bad been issued, the Rent Controller''s court had no Jurisdiction to entertain the application for eviction.

Before the Rent Controller, (12th. Judge, Court of Small Causes) Madras, on behalf of the petitioner Exs. P1 to P3 were marked and the

petitioner was examined as P.W. 1. While on behalf of the respondents Exs R1 and R.2, were filed and the respondent examined himself, as R.W.

On a consideration of the oral as well as the documentary evidence the Rent Controller, found that the respondent bad been totally indifferent in

meeting his obligation to pay the rents to the petitioner for the last three years and particularly for the period in respect of which the petition had

been filed and that such gross indifference would undoubtedly amount to wilful default in the payment of rent''s. On that conclusion, an order for

eviction was passed against the respondent. Aggrieved by that the respondent preferred an appeal in H.R. A. 1169 of 1981 to the appellate

authority. (4th Judge, Court of Small Causes), Madras. The appellant authority was of the view that though there was no evidence that the

petitioner had requested the respondent to make lump sum payments of rent yet the respondent had been making such payments once in few

months for some years and they had also been received, by the petitioner and, therefore, the non-payment of rents by the respondent for the

period in question cannot be construed to be wilful default. On this reasoning, the appellate authority did not countenance the plea of the petitioner

that an order of eviction should be passed against the respondent for willful default in the payment of rents. In the result, the appeal was allowed

and the eviction it is correctness of this order that is challenged in this civil revision petition. filed by the petitioner was dismissed. It is correctness of

this order that is challenged in this civil revision petition.

Thus, the only question that arises for consideration in this civil revision petition is whether the respondent had committed wilful default in the

payment of rents for the period in question as claimed by the petitioner. Admittedly, the respondent had not paid the rents for the period in

question every month. The excuses for such non-payment given by the respondent are many even is admitted by him in the course of his cross-

examination as R. W. 1. Firstly, he said that on account of the illness of the family members one after another, there was the respondent has made

delay in the payment of rents, No evidence relating to that has been made available by the respondent. The respondent as the reason for non-

payment pleaded financial difficulties. Even with reference to this, the respondent was unable to place any acceptable evidence. On the other hand,

his evidence discloses that he had been disbursing wages either weekly or monthly and, therefore, this explanation trotted out by the respondent is

unacceptable. Again, the attempted to say that they were refused by the petitioner. Here again, there is absolutely no acceptable evidence to show

that the respondent made any such tender. Thus, the three reasons for the non-payment of the rents for the period in question attempted to be

given by the respondent have not been substantiated at all.

That leaves for consideration whether the payment of rents in lump sums by the respondent and the acceptance thereof by the petitioner, has

been made out. The petitioner. in the course of his evidence as P. W. 1, has stated that even for an earlier period viz. from October 1977 to April

1979, the respondent had not paid the rents regularly which necessitates the issue of a notice under Ex. P. The respondent and only thereafter I

paid the rent. The evidence of P. W. 1 is to the effect that even if demanded, the respondent never paid the rent and that the petitioner did not

receive accumulated rents, P. W. 1 would, however, accept that the respondent was paying the rents regularly for the first three years and only

thereafter defaulted and started paying the rents irregularly but that the petitioner complaining about such payments sent no notice. In the course of

the cross examination of P. W 1, he had reiterated that despite the demands, the respondent did not pay the rents. On the other hand, the

respondent as R. W. 1 would say that the practice was to accumulate the rents for two or three months and then pay the amount to tile petitioner.

In his cross examination R. W. 1 would admit that he promised to Pay the rent on payment of bills and that his bills used to be paid once in two or

three months. Thus, the irregular payment of rents mainly rests upon the evidence of R. W. 1 but there are certain circumstances which would

render the lump sum payment of rents by the respondent improbable and unacceptable as well the respondent had admitted that he used to

disburse wages to seven or eight persons who were working under him either every week or every month. That would show that the respondent

should have had sufficient moneys and in spite of it he had not paid the rent to the petitioner. Apart from this, P. W. 1''s evidence clearly

establishes that in spite of demands made by the petitioner, the respondent did not pay the rents for nearly three years. It is therefore obvious that

in spite of demands made by the petitioner, the respondent did not pay the rents though he was in a position to do so. P. W. 1 has further refuted

having received the rents in a lump sum. There is no acceptance and clinching evidence on behalf of the respondent to establish that a practice had

been in existence by which the rents were Paid in lump sums by the respondent irregularly and were accepted by the petitioner.

Earlier, it had been noticed how the petitioner had made a demand against the respondent for the payment of rents for the period from October

1977 to April 1978. This was under Ex. P. 3. There is no dispute that the respondent on 26-5-1978 as seen from the postal acknowledgment had

received this. In that notice, the petitioner has clearly stated that the respondent is a tenant of the premises on a monthly rent of Rs, 75/- according

to English calendar month and that he had neither paid nor tendered the rents for the period from 1-10-1977 to 30-4-78 and such non-payment

would be wilful. Whatever might have been the position prior to Ex. P. 3, the petitioner had reiterated once again the terms of the tenancy as a

monthly tenancy an the payment of Rs. 75/- per month in Ex. P. 3 and had attributed to the respondent wilful default in the payment of rents from

October, 1977 to April 1978. Thus, under Ex. P. 3 admittedly received by the respondent, he had been informed that the rent is payable every

month. The respondent sent no reply to Ex. P. 3. If the respondent had really been making lump sum payment of rents as now claimed by him, one

would have expected him to have said so in a reply to Ex. P. 3. That was not so done. It is therefore manifest that the case of payment of rents in a

lump sum and the receipt thereof is a clear afterthought. The appellate authority unfortunately has not made any reference whatever to Ex P. 3

dated 22-5-1978 and not drawn the inferences therefrom.

The position that emerges, therefore, is that at least on and from 26-5-1978, the respondent was made aware that the rents should be paid at

the rate of Rs. 75/- every month. Even so the respondent had not paid the rents every month. Such non-payment of rents by the respondent even

after having been reminded that the rent is payable monthly cannot be anything but supine in difference in the matter of discharge of his obligation in

paying rents. The application for eviction in this case was filed on 2-7-1979, but only on 28-7-1979. The respondent had paid the arrears as seen

from the receipt Ex. P. 1. The payment by the respondent subsequent to the initiation of the proceedings for eviction cannot be of any avail as by

such payment, the wilful default committed earlier by the respondent giving rise to a cause of action to the petitioner to seek an order for eviction

against the respondent earn be wiped out or erased. That payment is of no consequence. It is thus seen, on a consideration of the evidence that no

arrangement for payment of rents in lump sum by the respondent receipt thereof by the petitioner had been made out. On the contrary the

petitioner had reminded the respondent about the nature of the tenancy as a monthly tenancy according to English calendar month and the rent also

being payable monthly and in spite of it, the respondent has not chosen to make the payment of rent regularly. Under those circumstances, the non-

payment of the rents by the respondent for the period in question would be without any justifiable excuse and can be attributed only to a total

indifference on his part in the matter of payment of rent for the premises in his tenancy occupation. The appellate authority was therefore in error in

holding contra. Consequently, the order of the appellate authority is set aside and that of the Rent Controller is restored. This civil revision petition

is allowed with costs throughout.

The learned counsel for the respondent submitted that the respondent had been in occupation of the premises for many years past and that in the

event of an order of eviction being passed against him, he ought to be given reasonable time to vacate the premises in his occupation and

surrendering vacant possession of the same to the petitioner. The learned counsel for the petitioner agreed to grant the respondent six months time

to enable him to secure other accommodation and surrender the premises now in his occupation. Accordingly the respondent is granted six months

time to vacate and hand over vacant possession of the premises in his occupation to the petitioner, but this will be subject to the respondent filing

an affidavit of undertaking to that effect within one week from today failing which the order of eviction can be enforced forthwith.

Revision allowed.