C. Pandithurai Vs. Jaithoon Bibi - Court Judgment

Excerpt:
- ordersomasundaram, j.1. the respondent in r.c.o.p. no. 3 of 1987 on the file of the rent controller (district munsif), madurai town is the petitioner in this civil revision petition. the petitioner in the said r.c.o.p. is the respondent herein. for the sake of convenience the parties are referred to in this order as per the nomenclature given to them in the r.c.o.p.2. the petitioner filed r.c.o.p. no. 3 of 1987 against the respondent for eviction under section 10(2)(1) of the tamil nadu buildings (lease and rent control) act xviii of 1960. the case of the petitioner in the above mentioned r.c.o.p. is as follows : the petitioner is the owner of the petition mentioned premises. the respondent is the tenant on a monthly rent of rs. 75. the respondent committed wilful default in payment of rent for 17 months for the period from 17.11.1979 to 12.4.1981 and on the date of the filing of the petition for eviction, the arrears of rent due from the respondent comes to rs. 1,275. the respondent sent two months' rent viz., for the months of purattasi and aipasi of rowthri year by money order in december, 1980. since the respondent was in arrears for several months the petitioner refused to receive the money order and sent a letter to the respondent on 18.12.1980 stating the reason for refusing to receive the money order.3. the respondent resisted the application for eviction contending that he is not at all in arrears of rent. he was in arrears only for the months of aipasi and karthigai of rowthri year and sent the rent for the months referred to above in december, 1980. but, the petitioner refused to receive the money order. in january, 1981 there was a panchayat in which the petitioner's son received the arrears of rent and, therefore, he has not committed any default much less wilful default in payment of the rent to the petitioner.4. the rent controller, on a consideration of the entire evidence on record, found that the respondent committed wilful default in the payment of rent. consequently the rent controller allowed the petition r.co.p. no. 3 of 1987 and ordered eviction. as against the judgment of the rent controller the respendent filed an appeal, r.c.a. no. 16 of 1989 before the appellate authority (sub-court, madurai). the appellate authority confirmed the findings of the rent controller and dismissed the rent control appeal. aggrieved by the orders of the appellate authority the respondent has preferred the present civil revision petition.5. mr. chinnachamy, learned counsel for the respondent would contend that the petitioner has not issued any notice demanding arrears of rent as contemplated in the explanation to proviso to section 10(2) of the act before filing the petition for eviction, and, when such a notice was not issued by the petitioner, it cannot be said that the respondent committed wilful default in the payment of rent. according to the learned counsel for the respondent, when the landlady in this case has not issued any notice demanding the arrears of rent as contemplated in the explanation to the proviso to section 10(2) of the act, the tenant cannot be said to have committed wilful default in the payment of rent. i am unable to accept the contention of the learned counsel for the respondent. in ramasami reddiar v. periamuthu nadar 93 l.w. 577 explanation to the proviso to section 10(2) was expressly considered by this court and in the said decision ratnam, j., has observed as follows:a reading of theexplanation indicates that it is not exhaustive of all cases of wilful default, but it specifies only one instance where the default should be construed as wilful. if a tenant does not pay the rents at all for a considerable time and the landlord files a petition for an order of eviction on the basis that the tenant had committed wilful default without issuing any notice, then, in the absence of any other explanation by the tenant, the default should be construed as wilful inspite of the fact that the landlord had not chosen to issue a notice to the tenant claiming the rents. in this view, i hold that counsel for the petitioner cannot be of any assistance to him'. this view of ratnam, j., was approved by the supreme court in s. sundaram v. r. pattabiraman : 1985crilj796 the supreme court in the above decision has held that where no notice as required by the explanation is given to the tenant, the controller or the court can certainly examine the question whether the default has been wilful and to such a case the explanation would have no application. in view of the above said position of law, the contention of the-learned counsel for the respondent that the tenant cannot be said to have committed wilful default in the payment of rent, when the landlady failed to issue a notice demanding the arrears of rent as contemplated in explanation to the proviso to section 10(2) of the act cannot be countenanced.6. the evidence in this case discloses that the respondent committed wilful default in the payment of rent. the case of the petitioner is that the rent payable is rs. 75 p.m. and the respondent committed wilful default in the payment of rent for 17 months from 17.11.1979 to 12.4.1981. the case of the respondent is that he sent the arrears of rent for the months of october, and november, 1980, by money order in december, 1980. the same was refused by the petitioner in january, 1981. then there was a panchayat and before the panchayatdars the respondent paid the entire arrears of rent and, therefore, he has not committed any default much less wilful default in the payment of rent. if really the respondent has paid the entire arrears of rent before the panchayatdars, the respondent could have certainly obtained a receipt for the same from the petitioner. none of the panchayatdars except the brother of the respondent was examined, to speak about the panchayat. the case of the respondent in the counter is that the panchayat was held in january, 1981 and at that time the respondent has paid 7 months' rent toward the arrears. the respondent has sent the rent for the months of october and november, 1980 only in december, 1980. in january, 1981 the panchayat was convened. it is not explained by the respondent on what basis the respondent paid 7 months' rent at the time of panchayat held in 1981. therefore, the case of the respondent that he paid the entire arrears of rent before the panchayatdars cannot be accepted. when the respondent sent the rents for the months of october and november, 1980 by money order, the petitioner refused to receive the same because the respondent was in arrears not for just two months but for several months. the petitioner has also written a letter ex.a-1 stating the reasons for refusing to receive the amount. that apart, during the pendency of the proceedings before the rent controller the petitioner filed an application, i.a. no. 399 of 1983 under section 11(4) of the act stating that the respondent has to pay a sum of rs. 1,575 towards the arrears of rent. the rent controller allowed i.a. no. 399 of 1983 and thereafter the respondent paid the said sum of rs. 1,575 to the petitioner. the payment of rent by the respondent pursuant to the orders passed on an application filed under section 11(4) would not relieve the respondent of the charge of wilful default. the respondent having defaulted in payment of rent for 17 months and not paying the same even after the filing of the petition for eviction and waiting for the landlady to file an application under section 11(4) of the act clearly go to show that the conduct of the tenant amounts to supine indifference and there is no doubt whatever that the default is wilful. in these circumstances, the rent controller as well as the appellate authority on the basis of the evidence on record rightly held that the respondent committed wilful default in payment of rent. there is no infirmity in the findings of the authorities below. there are no merits in the civil revision petition and the civil revision petition is liable to be dismissed. accordingly, the civil revision petition is dismissed. no costs.7. at this juncture, mr. chinnachamy, learned counsel for the respondent requests one year time for the tenant (respondent) to vacate the premises. taking into consideration the fact that the respondent is carrying on business in the petition mentioned premises, the respondent-tenant is granted nine (9) months' time to vacate the premises on condition that the respondent files an affidavit within three weeks from today undertaking to vacate the premises after the expiry of the period of nine months granted as above and on further condition that the respondent pays the entire arrears of rent within 8 weeks from today and continues to pay the rent till he vacates the premises.

Judgment:
ORDER

Somasundaram, J.

1. The respondent in R.C.O.P. No. 3 of 1987 on the file of the Rent Controller (District Munsif), Madurai Town is the petitioner in this civil revision petition. The petitioner in the said R.C.O.P. is the respondent herein. For the sake of convenience the parties are referred to in this order as per the nomenclature given to them in the R.C.O.P.

2. The petitioner filed R.C.O.P. No. 3 of 1987 against the respondent for eviction under Section 10(2)(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960. The case of the petitioner in the above mentioned R.C.O.P. is as follows : The petitioner is the owner of the petition mentioned premises. The respondent is the tenant on a monthly rent of Rs. 75. The respondent committed wilful default in payment of rent for 17 months for the period from 17.11.1979 to 12.4.1981 and on the date of the filing of the petition for eviction, the arrears of rent due from the respondent comes to Rs. 1,275. The respondent sent two months' rent viz., for the months of Purattasi and Aipasi of Rowthri year by money order in December, 1980. Since the respondent was in arrears for several months the petitioner refused to receive the money order and sent a letter to the respondent on 18.12.1980 stating the reason for refusing to receive the money order.

3. The respondent resisted the application for eviction contending that he is not at all in arrears of rent. He was in arrears only for the months of Aipasi and Karthigai of Rowthri year and sent the rent for the months referred to above in December, 1980. But, the petitioner refused to receive the money order. In January, 1981 there was a panchayat in which the petitioner's son received the arrears of rent and, therefore, he has not committed any default much less wilful default in payment of the rent to the petitioner.

4. The Rent Controller, on a consideration of the entire evidence on record, found that the respondent committed wilful default in the payment of rent. Consequently the Rent Controller allowed the petition R.CO.P. No. 3 of 1987 and ordered eviction. As against the judgment of the Rent Controller the respendent filed an appeal, R.C.A. No. 16 of 1989 before the Appellate Authority (Sub-Court, Madurai). The Appellate Authority confirmed the findings of the Rent Controller and dismissed the Rent Control Appeal. Aggrieved by the orders of the Appellate Authority the respondent has preferred the present civil revision petition.

5. Mr. Chinnachamy, learned Counsel for the respondent would contend that the petitioner has not issued any notice demanding arrears of rent as contemplated in the Explanation to Proviso to Section 10(2) of the Act before filing the petition for eviction, and, when such a notice was not issued by the petitioner, it cannot be said that the respondent committed wilful default in the payment of rent. According to the learned Counsel for the respondent, when the landlady in this case has not issued any notice demanding the arrears of rent as contemplated in the Explanation to the Proviso to Section 10(2) of the Act, the tenant cannot be said to have committed wilful default in the payment of rent. I am unable to accept the contention of the learned Counsel for the respondent. In Ramasami Reddiar v. Periamuthu Nadar 93 L.W. 577 Explanation to the Proviso to Section 10(2) was expressly considered by this Court and in the said decision Ratnam, J., has observed as follows:

A reading of theExplanation indicates that it is not exhaustive of all cases of wilful default, but it specifies only one instance where the default should be construed as wilful. If a tenant does not pay the rents at all for a considerable time and the landlord files a petition for an order of eviction on the basis that the tenant had committed wilful default without issuing any notice, then, in the absence of any other explanation by the tenant, the default should be construed as wilful inspite of the fact that the landlord had not chosen to issue a notice to the tenant claiming the rents. In this view, I hold that counsel for the petitioner cannot be of any assistance to him'. This view of Ratnam, J., was approved by the Supreme Court in S. Sundaram v. R. Pattabiraman : 1985CriLJ796 The Supreme Court in the above decision has held that where no notice as required by the Explanation is given to the tenant, the Controller or the Court can certainly examine the question whether the default has been wilful and to such a case the Explanation would have no application. In view of the above said position of law, the contention of the-learned Counsel for the respondent that the tenant cannot be said to have committed wilful default in the payment of rent, when the landlady failed to issue a notice demanding the arrears of rent as contemplated in Explanation to the Proviso to Section 10(2) of the Act cannot be countenanced.

6. The evidence in this case discloses that the respondent committed wilful default in the payment of rent. The case of the petitioner is that the rent payable is Rs. 75 p.m. and the respondent committed wilful default in the payment of rent for 17 months from 17.11.1979 to 12.4.1981. The case of the respondent is that he sent the arrears of rent for the months of October, and November, 1980, by money order in December, 1980. The same was refused by the petitioner in January, 1981. Then there was a panchayat and before the panchayatdars the respondent paid the entire arrears of rent and, therefore, he has not committed any default much less wilful default in the payment of rent. If really the respondent has paid the entire arrears of rent before the panchayatdars, the respondent could have certainly obtained a receipt for the same from the petitioner. None of the panchayatdars except the brother of the respondent was examined, to speak about the panchayat. The case of the respondent in the counter is that the panchayat was held in January, 1981 and at that time the respondent has paid 7 months' rent toward the arrears. The respondent has sent the rent for the months of October and November, 1980 only in December, 1980. In January, 1981 the panchayat was convened. It is not explained by the respondent on what basis the respondent paid 7 months' rent at the time of panchayat held in 1981. Therefore, the case of the respondent that he paid the entire arrears of rent before the panchayatdars cannot be accepted. When the respondent sent the rents for the months of October and November, 1980 by money order, the petitioner refused to receive the same because the respondent was in arrears not for just two months but for several months. The petitioner has also written a letter Ex.A-1 stating the reasons for refusing to receive the amount. That apart, during the pendency of the proceedings before the Rent Controller the petitioner filed an application, I.A. No. 399 of 1983 under Section 11(4) of the Act stating that the respondent has to pay a sum of Rs. 1,575 towards the arrears of rent. The Rent Controller allowed I.A. No. 399 of 1983 and thereafter the respondent paid the said sum of Rs. 1,575 to the petitioner. The payment of rent by the respondent pursuant to the orders passed on an application filed under Section 11(4) would not relieve the respondent of the charge of wilful default. The respondent having defaulted in payment of rent for 17 months and not paying the same even after the filing of the petition for eviction and waiting for the landlady to file an application under Section 11(4) of the Act clearly go to show that the conduct of the tenant amounts to supine indifference and there is no doubt whatever that the default is wilful. In these circumstances, the Rent Controller as well as the Appellate Authority on the basis of the evidence on record rightly held that the respondent committed wilful default in payment of rent. There is no infirmity in the findings of the authorities below. There are no merits in the civil revision petition and the civil revision petition is liable to be dismissed. Accordingly, the civil revision petition is dismissed. No costs.

7. At this juncture, Mr. Chinnachamy, learned Counsel for the respondent requests one year time for the tenant (respondent) to vacate the premises. Taking into consideration the fact that the respondent is carrying on business in the petition mentioned premises, the respondent-tenant is granted nine (9) months' time to vacate the premises on condition that the respondent files an affidavit within three weeks from today undertaking to vacate the premises after the expiry of the period of nine months granted as above and on further condition that the respondent pays the entire arrears of rent within 8 weeks from today and continues to pay the rent till he vacates the premises.