Venkataramanasamy vs S. Sethuraman

P. Thangavel, J.—This Civil Revision Petition has been filed by the tenant as revision petitioner against the judgment and decree dated

20.4.1999 and made in R.C.A. No. 60 of 1996 on the file of learned Rent Control Appellate Authority (Principal Subordinate Judge),

Coimbatore, reversing the order and decretal order dated 30.4.1996 and made in R.C.O.P. No. 43 of 1995 on the file of the learned Rent

Controller (District Munsif), Mettupalayam, so far as it relates to wilful default in payment of rent and for own use and occupation, but confirming

the order of the learned Rent Controller with regard to act of waste.

The facts that are necessary for disposal of the Civil Revision Petition are as follows:- The respondent herein is the owner of the premises

described in the Rent Control Original Petition and the revision petitioner is the tenant of the above said premises on a monthly rent of Rs. 500/-.

The rent is payable on or before 3rd of every succeeding calendar month. The revision petitioner was very irregular in payment of rent in spite of

repeated demands and used to pay rent once in 3 or 4 months in lump sum in spite of objection raised by the respondent herein. The revision

petitioner started tendering rent by mail transfer from 1.2.1985. After adjusting the amount paid towards of rent by mail transfer upto November,

1992, there is a balance of Rs. 24,000/- towards the rent payable upto 3.12.1992. The revision petitioner has committed wilful default in payment

of rent. The revision petitioner has also put up construction on the eastern portion of the demised premises without the permission of the

respondent herein and therefore, he has committed act of waste. The respondent herein was employed in M/s. South India Viscose Limited,

Sirumugai and he was in occupation of quarters allotted by the said company. The respondent herein resigned his job and vacated the quarters

allotted to him. The respondent herein is in occupation of a lease-hold premises owned by one Appachi Chettiar, Mettupalayam on a monthly rent

of Rs. 1,000/- and by paying advance of Rs. 5,000/- to the respondent herein. Owning no other building in Mettupalayam, the respondent herein

requires the demised building for his own use and occupation. It is on these grounds, the respondent herein, as petitioner has sought for eviction of

the revision petitioner from the demised premises.

The revision petitioner as respondent before the Rent Control Court has resisted the claim made by the respondent herein as petitioner on the

following grounds:- The revision petitioner is the tenant of the demised premises under the respondent herein on a monthly rent of Rs. 500/-. The

revision petitioner has paid an advance of Rs. 6,000/- at the time of entering into a lease agreement for a period of two years from 15.5.1983.

After the expiry of period of two years, the revision petitioner is in possession and enjoyment of the demised premises as a tenant holding over.

For the rent paid by the revision petitioner to the respondent herein, no receipt was issued. The respondent herein had also not come to collect rent

for 4 months and therefore, he sent the rent by mail transfer on 5.11.1986. For the subsequent payment of the monthly rent by cash, the

respondent herein has not issued receipt. In order to have record for payment of rent, the revision petitioner has started sending rent by mail

transfer to the respondent herein. The said payment of rent by mail transfer was received without any protest. The revision petitioner is not in

arrears of rent to an extent of Rs. 24,000/-. There is no arrears of rent. The revision petitioner has not committed wilful default in payment of rent.

This revision petitioner has not put up any unauthorised construction on the eastern portion of the demised premises as alleged by the respondent

herein. The revision petitioner has not committed act of waste. The requirement of the demised premises for own use and occupation on the

ground that he has vacated the quarters allotted to him as an employee of M/s. South India Viscose Limited, Sirumugai, is not correct. The

respondent herein has to prove that he is in possession of a rental premises on a monthly rent of Rs. 1,000/- and with an advance of Rs. 5,000/- at

Mettupalayam. The respondent herein has attempted to take possession of the demised premises by force and therefore, the revision petitioner has

filed a suit in O.S. No. 1162 of 1989 on the file of the District Munsif, Coimbatore and obtained an order of injunction. This petition has been filed

only at the instigation of one T.S.Natarajan to lease the said property for higher rent. It is on these grounds, the revision petitioner as respondent

has sought for dismissal of the petition.

The point for determination is whether there are grounds to interfere with the judgment and decree passed by the learned Rent Control

Appellate Authority (Principal Subordinate Judge), Coimbatore in ordering eviction on the ground of wilful default and for own use and

occupation.

The petitioner, who is the respondent herein, was examined as P.W.1 and one Jagannathan was examined as P.W.2 apart from marking Exs.A-

1 to A-7 on the side of the respondent herein. The revision petitioner, who is the respondent before the Rent Control Court was examined as

R.W.1, while one K.M. Subramaniam and R. Kandasamy were examined as R.Ws.2 and 3 respectively. Exs.B-1 to B-9 were marked on the

side of the revision petitioner before the Rent Control Court.

Admittedly, the premises described in the Rent Control Original Petition belongs to the respondent herein and the revision petitioner has

occupied the said premises on a monthly rent of Rs. 500/- for a period of two years from 15.5.1993. The fact also remains that the revision

petitioner continued to occupy the demised premises as tenant holding over on the said monthly rent. According to the respondent herein, the

revision petitioner was not regular in payment of rent from 1.2.1985 and had started to tender monthly rent by mail transfer from 1.2.1985. It is

also the case of the respondent herein that after adjusting the rent tendered by mail transfer upto November, 1992, there is a balance of Rs.

24,000/- as arrears of rent due from the revision petitioner.

The learned counsel appearing for the revision petitioner contends that the respondent herein was not in the habit of coming and collecting the

rent every month, that for the rent paid he had not issued receipt, that the rent due for a period of four months was sent by mail transfer to the

respondent herein on 5.11.1986, that the said amount was received without any protest, that there was payment of rent by cash for which no

receipt was issued and that therefore, the revision petitioner used to send the rent thereafter by mail transfer alone to the respondent herein.

Therefore, the learned counsel appearing for the revision petitioner contends that the revision petitioner has not committed wilful default in payment

of rent.

It is evident from the stand taken by the respondent herein that a sum of Rs. 24,000/- was due as on 3.12.1992, since the rent has to be paid by

3rd of succeeding month. The respondent has alleged irregularity in payment of rent by the revision petitioner only from 1.2.1985, but not default in

payment of rent from 1.2.1985. It is evident that cash was also paid towards rent by the revision petitioner before starting sending rent by mail

transfer with effect from 1.2.1985. Of course, the respondent herein had admitted that he had issued no receipt for payment made as there was no

demand for issue of receipt by the revision petitioner. There is no specific pleadings as to when the rent was paid by the revision petitioner to the

respondent herein and as to when the receipt was not issued for such payment. If there was no issue of receipt for the payment of rent by the

revision petitioner, the revision petitioner is not without any remedy. The revision petitioner ought to have resorted to Section 8(5) of the Tamil

Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as ""the Act""), to deposit the rent in Court, immediately after refusal of

the respondent herein to issue receipt.

In Marudachala Udayar Vs. Dhandapani, , a learned single Judge of this Court has held as follows:-

Where wilful default in payment of rents is alleged by the landlord and the answer of the tenant is that the landlord never issued receipts for the

payment of rents, the Court cannot ignore the implications of section 8 and assess the controversy without reference to such implication. In the

absence of proof of payment of rents, it will not be in consonance with the provisions of the Act to presume that the tenant must have paid the rents

and the landlord must have declined to issue the receipt.

Following the above said decision, a learned single Judge of this Court in N. Damodaran Naicker and Another Vs. Janaki Ammal, has held as

follows:-

Where wilful default in payment of rents is alleged by the landlord and the answer of the tenant is that the landlords never issued receipts for the

payment of rents, in Marudachala Udayar Vs. Dhandapani, Nainanr Sundaram, J. has pointed out that to test the case of the parties in such a

context, the court should first endeavour to apply the provisions of the very statute under which the proceedings are initiated for eviction. Very

salutary provision is incorporated in the Act and that is Section 8. u/s 8(1) of the Act, every landlord who receives any payment towards rent or

advance shall issue a receipt duly signed by him for the actual amount of rent or advance received by him. And Sub-section(2) requires where a

landlord refuses to accept, or evades the receipt of any rent lawfully payable to him by a tenant in respect of any building, the tenant has to issue a

notice in writing to the landlord to specify within ten days from the date of receipt of the notice by him a bank into which the rent may be deposited

by the tenant to the credit of the landlord. Under Sub-section(3), if the landlord specifies a bank as aforesaid, the tenant shall deposit the rent in the

bank and shall continue to deposit in it any rent which may subsequently become due in respect of the building. If the landlord does not specify a

bank as aforesaid under Sub-section(4), the tenant can remit the rent to the landlord by money order, after deducting the money order

commission. So, if the landlord refuses to accept or evades the receipt of rent, the tenant is given a system of remedy which he can resort to under

the said provision. The machinery provided by Sub-sections (2) to (5) can always be worked out. How the rents paid should be receipted is

provided for in Section 8 of the Act.

The Honourable Apex Court in E. Palanisamy Vs. Palanisamy (D) by Lrs. and Others, while dealing with the procedures to be followed by a

tenant u/s 8 of the Act, it was held that benefits conferred under the statutory provisions of the Act will be available and enjoyed only if such

provisions are strictly complied with and procedure prescribed is followed step by step. It is also held that an earlier step is a precondition which

must be fulfilled before the next step can be taken. Where appellant tenant had applied for and received permission from the Rent Controller to

deposit rent in Court u/s 8(5) of the Act, but had not taken earlier steps of (i) requiring the land lord to furnish the name of bank where rent could

be deposited and (ii) on refusal of landlord sending of rent by money order under Sections 8(3) and (4), according to the Honourable Apex Court,

the High Court was right in ordering eviction of the tenant on the ground of default in payment of rent.

In this case, the revision petitioner has not chosen to follow the procedure prescribed u/s 8(5) of the Act to deposit the rent in Court on the

alleged refusal of the landlord to receive the alleged payment of rent and therefore he cannot be heard to say that he has paid the rent and the

landlord refused to issue receipt and hence, he had sent the rent by mail transfer. There is no proof for payment of rent on the side of the revision

petitioner, while there is denial of payment of rent by the respondent herein.

The revision petitioner has specifically stated in paragraph 6 of the counter that 4 months rent was not collected by the respondent herein and

therefore he had sent the above said 4 months rent by mail transfer as on 5.11.1986. Even if the stand taken by the revision petitioner as

mentioned above is taken into consideration, it is evident that he had paid the rent by mail transfer only upto October, 1986 and thereafter he

claimed to have paid the rent by cash for which the respondent herein refused to issue receipts. As already pointed out, if there is any refusal to

issue receipt for the payment of rent, he ought to have resorted to Section 8(5) of the Act and without resorting to such procedure, he cannot be

heard to say that he has paid the rent by cash and the respondent herein refused to issue receipt therefor. It is because of the alleged refusal of the

respondent herein to issue receipt for the rent paid by the revision petitioner to the respondent herein, the revision petitioner has admittedly started

sending rent by mail transfer thereafter as seen in Ex.B-4 series. There is no dispute after sending the rent by mail transfer on 5.11.1986, the rent

was sent only on 7.7.1987 to an extent of Rs. 1,000/- by second mail transfer. Subsequently, he had sent rent by mail transfer on 4.5.1989,

12.12.1989, 15.2.1990, 12.7.1990, 1.11.1990, 8.7.1991, 16.2.1992, 24.2.1992, 2.3.1992, 18.4.1992, 13.8.1992 and 22.10.1992 totalling to

a sum of Rs. 24,500/- including the mail transfer of Rs. 1,000/- on 7.7.1987. The rent payable by the revision petitioner from 1.11.1986 to

November, 1992 works out to Rs. 36,500/- at the rate of Rs. 500/- per month. The rent actually paid by mail transfer for the above said period

by the revision petitioner to the respondent herein is Rs. 24,500/-. The respondent herein has to pay a sum of Rs. 12,000/- towards arrears of rent

even according to his admission made in the pleadings in the counter. The sum of Rs. 12,000/- represents the rent for 24 months. The period

available between 1.11.1986 and 31.4.1987, the date after which the rent was paid by mail transfer on 7.7.1987 for two months, will cover only

six months period. If at all, the revision petitioner has paid rent by cash, it should be only for the above said six months and not for 24 months as

pointed out above. The above said facts would disclose that the revision petitioner has not come forward with true facts with regard to the

payment of rent. There is clear default in payment of rent and the non-payment of rent for the default period, viz., to an extent of Rs. 19,500/-

accrued as difference between both sides will certainly amount to wilful default as rightly concluded by the learned Rent Control appellate

Authority. Therefore, this Court finds no reason to interfere with the finding of the first Appellate Court that the revision petitioner, who was very

irregular in payment of rent and whose statutory obligation is to pay the rent every month to the respondent herein, has committed wilful default in

payment of rent.

Admittedly, the respondent herein was working as Additional Plant Superintendent in Rayon Textile Section, South India Viscose Limited,

Sirumugai and he tendered his resignation by means of a letter dated 22.12.1992 as seen in Ex.A-4, a letter sent by M/s. South India Viscose

Limited to the respondent herein. The letter of resignation was accepted and the respondent herein was agreed to be relieved with effect from

31.12.1992. The fact remains that the respondent herein was occupying the quarters allotted by the said company and he had surrendered the

same to the above said company on relieving from the said company. According to the respondent herein, he is residing as a tenant in door No.

149/C1, Mettupalayam owned by one Appachi Chettiar on a monthly rent of Rs. 1,000/- and with an advance of Rs. 5,000/-. It is also the case of

the respondent herein that he has no other building of his own in Mettupalayam and therefore, the demised premises is required for his own use and

occupation. The revision petitioner, who has denied the fact of living in a rented premises by the respondent herein at Mettupalayam, would

contend that the respondent herein is in occupation of his own house in Rayon Nagar of Sirumugai and that therefore, the requirement of the

demised premises for own use and occupation is not bona fide. In support of such contention, the learned counsel appearing for the revision

petitioner has brought to the notice of the Court about the non-mentioning of the requirement of the demised premises for own use and occupation

in the notice sent under Ex.A-1 dated 7.12.1992. According to the learned counsel for the revision petitioner, mentioning the requirement of the

demised premises for own use and occupation under Ex. A-2 dated 12.2.1993 is only an after thought and therefore a reply was sent as seen in

Ex.A-3 dated 20.12.1992. As already pointed out, the respondent herein has tendered a resignation only on 22.12.1992 and the resignation was

accepted with effect from 31.12.1992 and the same was communicated by a letter dated 23.12.1992 as seen in Ex.A-4. It is before that date

Ex.A-1 notice was sent and therefore, the respondent herein may not have an opportunity by mentioning the requirement of the demised premises

for own use and occupation in the letter sent under Ex.A-1 dated 7.12.1992. Therefore, the contention raised by the learned counsel appearing for

the revision petitioner as mentioned above will be without any merits.

A perusal of the petition filed for eviction would disclose that the respondent herein had shown that he is residing at Door No.149/C1 Murugan

Illam, Madhaiyan Nagar, Mettupalayam-641301. The said fact has not been denied in the counter filed by the revision petitioner as respondent in

the said petition. The son of Appachi Chettiar, was examined as P.W.2 before the Rent Control Court. P.W.2 would state that he is the son of

Appachi Chettiar and Pappammal, who are the owners of the house bearing Door No. 149/C1, Murugan Illam, Madhaiyan Nagar,

Mettupalayam-641301. He would also state that the respondent herein is in occupation of the above said house as tenant on a monthly rent of Rs.

1,000/- with an advance of Rs. 5000/-. The revision petitioner was examined as R.W.1 and he would admit during cross-examination that he had

sent the rent to the respondent herein from 16.12.1992 to the house bearing Door No. 149/C1 Murugan Illam, Madhaiyan Nagar, Mettupalayam

and continued to send the rent to the above said address of the respondent herein. The above said admission would also disclose that the revision

petitioner himself has admitted that the respondent herein is residing in the rented premises referred to above owned by Appachi Chettiar and his

wife Pappammal. It is not the case of the revision petitioner that the respondent herein is having any other building in Mettupalayam except the

house owned by him in Rayon Nagar in Sirumugai, which is 9 kilo metres away from Mettupalayam town as seen from the report of the Advocate

Commissioner Ex.C-1. It is for the respondent herein to decide as to which building he wants for his own use and occupation and it is not for the

tenant to dictate as to the building in which the landlord should live.

In Ragavendra Kumar Vs. Firm Prem Machinary and Co., , the Honourable Apex Court was pleased to hold as follows:-

The learned single Judge of High Court while formulating the first substantial question of law proceeded on the basis that the plaintiff landlord

admitted that there were a number of plots, shops and houses in his possession. It is true that the plaintiff landlord in his evidence stated that there

were a number of other shops and houses belonging to him but he made a categorical statement that his said houses and shops were not vacant

and that the suit premises was suitable for his business purpose. It is a settled position of law that the landlord is the best judge of his requirement

for residential or business purpose and he has got complete freedom in the matter.

The principle laid down by the Honourable Apex Court in the case cited above will lend support to the above finding of this Court. If the facts

considered above are taken into consideration, there is no reason to interfere with the conclusion arrived at by the learned Rent Control Appellate

Authority that the requirement of the demised premises by the respondent herein is bona fide. In view of the foregoing reasons, this Court finds no

merits in the Civil Revision Petition.

In fine, the judgment and decree of the learned Rent Control Appellate Authority are confirmed and the Civil Revision Petition is dismissed. No

costs. In view of the dismissal of the main Civil Revision Petition, the petition in C.M.P. No. 8136 of 1999, if pending, is ordered to be closed.

Time for vacating the premises three months.