Hatim and Co., Represented by Its Partners HussaIn and ors. Vs. Radhakrishnan and ors. - Court Judgment

Excerpt:
- orderp. thangavel, j.1. these civil revision petitions have been filed by the tenants, as revision petitioners, against the common judgment and decrees dated 17.4.2000 and made in r.c.a.nos. 1005 of 1993 and 1006 of 1993 on the file of the vii judge, court of small causes, madras, confirming the common order and decretal order, dated 22.3.1993 and made in r.c.o.p.nos. 1472 of 1989 and 1473 of 1989 on the file of the xiv judge, court of small causes, madras.2. the brief facts that are necessary for the disposal of these civil revision petitions are as follows: smt. lajja bai is the owner of the shops bearing nos. 3 and 5 described in the petitions in r.c.o.p.nos. 1472 and 1473 of 1989, on the file of the rent control court and the said shops were let out to h. hatim and co., and a.k. hussain & co., on a monthly rent of rs. 200 each. the tenants, who are the revision petitioners herein, had failed to pay rent to the landlady, who is represented by the respondents herein, as legal representatives, on her death and, therefore, the landlady filed petitions for eviction, in r.c.o.p.nos. 1562 and 1732 of 1985, against the tenants, who are the respondents in r.c.o.p.nos. 1472 and 1473 of 1989 on the file of the rent controller, madras, for the default committed by them in the payment of rent from 16.1.1984 to 31.3.1985 and 1.4.1983 to 31.3.1985, respectively. during the pendency of the abovesaid earlier rent control proceedings, the landlady filed petitions in m.p.nos. 744 and 745 of 1986 in the respective rent control petitions, under section 11(4) of the tamil nadu buildings (lease and rent control) act, 1960 (hereinafter referred to as the act), for stopping the further proceedings unless the arrears of rent are either deposited or paid to the landlady. as per the direction of the court in the earlier proceedings, the revision petitioners herein, as respondents in the earlier proceedings, paid rs. 3,200 and rs. 2,400, at the rate of rs. 200 and rs. 150 per month, for the period from june, 1985 to september, 1986. though rent was not paid by the revision petitioners for the period from april, 1985 to february, 1989 before filing of the petitions for eviction on the ground of wilful default, in view of the payment made in the earlier proceedings for the period from june, 1985 to september, 1986, the revision petitioners, as respondents, have committed wilful default in payment of rent for the period from october, 1986 upto the date of filing of these petitions. it is on this ground that the land lady smt. lajja bai, sought for eviction of the tenants, who are the revision petitioners herein, from the shops under their occupation, as described in the respective petitions.3. the revision petitioners herein, who are the respondents in the respective rent control petitions, resisted the claim made by the landlady, on the following grounds: tmt. lajja bai is the owner of the shops under the occupation of the revision petitioners, who are the respondents in the respective petitions and the respondents in r.c.o.p.nos. 1472 and 1473 of 1989, are paying monthly rent of rs. 200 and rs. 150 per month and not rs. 200 per month, as claimed from the respondent in r.c.o.p.no. 1473 of 1989. the landlady, as petitioners, filed petitions in rc.o.p.nos. 1562 and 1732 of 1985 for eviction on the ground of wilful default in the payment of rent for the period from 16.1.1984 to 31.3.1985 and 1.4.1983 to 31.3.1985, but the same was denied by the respective tenants in the said petitions. the said petitions for eviction on the ground of wilful default are pending. the rent tendered by the respective tenants, who are the revision petitioners herein, to the landlady, was refused to be received and particularly, the rent paid by the tenant in r.c.o.p.no. 1473 of 1989 was not received, claiming the rent at the rate of rs. 200 per month, instead of rs. 150 per month. for the rents sent regularly every month, the landlady has not issued receipts. the respondents in each of the rent control petitions, who are the revision petitioners, had deposited rent for the period from june, 1985 to september, 1986 in the earlier proceedings as the said amounts were admitted to be arrears. the landlady, who had accepted the rents sent for the period from september, 1986 to july, 1988 along with lawyer's notice, had also accepted the rent sent every month for the subsequent period. in the petition filed for fixation of fair rent by the landlady in r.c.o.p.nos. 1854 and 1855 of 1985 on the file of the xiv judge, court of small causes, madras, the fair rent was fixed at rs. 446 and rs. 458 per month for the tenants in r.c.o.p.nos. 1472 and 1473 of 1989, respectively, with effect from 1.5.1985. towards the difference in contractual rent and the fair rent fixed by the competent court, the tenants in r.c.o.p.nos. 1472 and 1473 of 1989 paid rs. 13,932 and rs. 15,954, respectively, and such payment has been made only from october, 1989. the respondents in r.c.o.p.nos. 1472 and 1473 of 1989 had sent the arrears for the period from september, 1986 to june, 1989, at rs. 200 and rs. 150 per month on 18.7.1989, along with advance of one month's rent and the same was received by the landlady. therefore, the respondents in both the petitions contended that they have not committed wilful default in the payment of rent and, accordingly, sought for dismissal of both the petitions.4. after considering the submissions made by both sides in both petitions referred to above and in the light of the oral and documentary evidence available on record, in the common enquiry, the learned rent controller has come to the conclusion that the tenants in both the petitions, who are the revision petitioners herein, have committed wilful default in the payment of rent and, accordingly, allowed the petitions. aggrieved at the common order and decretal order dated 22.3.1993 and made in r.c.o.p.nos. 1472 and 1473 of 1989 on the file of the xiv judge, court of small causes, madras, the tenants in the respective petitions, as appellants, filed appeals in r.c.a.nos. 1005 and 1006 of 1993, on the file of the rent control appellate authority, vii judge, court of small causes, madras. after considering the submissions made on both sides and in the light of the evidence available on record in both the appeals, the learned vii judge, court of small causes, madras, confirmed the conclusion arrived at by the learned rent controller and dismissed the appeals referred to above. aggrieved at the said common judgment and decrees dated 17.4.2000 and made in r.c.a.nos. 1005 and 1006 of 1993, the tenants, who are the appellants in these appeals, as revision petitioners, have filed these civil revision petitions.5. both the rent control petitions and rent control appeals were heard together by the learned rent controller as well as the rent control appellate authority, respectively, at the request of both the parties and the same request is made before this court also for hearing the civil revision petitions together. therefore, both the civil revision petitions are heard together and disposed of by this common order.6. admittedly, smt. lajja bai is the owner of the premises bearing shop nos. 3 and 5 and the said shops were leased out to hatim & co., and hussain & co., for rs. 150 and rs. 200 per month respectively. the rent claimed at the rate of rs. 200 per month from hatim & co., was set at rest by the court below by fixing the rent payable only at rs. 150 per month. admittedly, the landlady had initiated eviction proceedings in r.c.o.p.nos. 1562 of 1985 and 1732 of 1985 for non payment of rent by the revision petitioners in c.r.p.nos. 3045 and 3046 of 2000 for the period from 16.1.1984 to 31.3.1985 and 1.4.1983 to 31.3.1985 and during the pendency of the above said proceedings, the landlady filed petitions in m.r.nos. 744 and 745 of 1986, under section 11(4) of the act for a direction to the revision petitioners herein to deposit the arrears of rent due during the pendency of the said proceedings or to stop further proceedings by not permitting the revision petitioners herein to contest the above said rent control petitions and, in that proceedings, the revision petitioners in c.r.p.no. 3045 of 2000 and 3046 of 2000 were directed to deposit arrears of rent of rs. 3200 and rs. 2400 for the period from june, 1985 to september, 1986 and the said amounts were deposited by the revision petitioners herein as per the direction of the court. in view of the deposits of arrears of rent by both the revision petitioners, as tenants in the respective petitions were in arrears with effect from october, 1986 upto date, even though they have committed default in the payment of rent from april, 1985 to february, 1988, after institution of the earlier proceedings mentioned above. in view of the said position, the contentions raised by the learned counsel for the revision petitioners that the period from which the rent was not paid by the respective petitioners have not been specifically pleaded in the respective petitions by the landlady, cannot be sustained. it is relevant to point out that the rent control petitions in r.c.o.p.nos. 1472 and 1473 of 1989 were filed by the landlady against the revision petitioners herein on 12.6.1989 and these revision petitioners have admittedly sent the arrears of rent for the period from october, 1986 to june, 1989, inclusive of one month's advance, only on 18.7.1989 by post and the same was received subsequently, viz., 21.6.1989, when the said petitions were posted for hearing before the rent controller. the admission made as mentioned above would clearly go to show that the revision petitioners herein have not paid arrears of rent for the period from october, 1986 to june, 1989, even though the landlady had already filed petitions in r.c.o.r.nos. 1562 and 1732 of 1985 for eviction on the ground of nonpayment of rent for the periods from 16.1.1984 to 31.3.1985 and 1.4.1983 to 31.3.1985 respectively. it is also relevant to point out that the landlady has filed petitions in r.c.o.r.nos. 1854 and 1855 of 1985 for fixation of fair rent for the premises under the occupation of the revision petitioners in c.r.p.nos. 3045 and 3046 of 2000 and fair rent was fixed at rs. 458 and rs. 446 per month for the revision petitioners in c.r.p.nos. 3045 and 3046 of 2000 respectively with effect from 1.5.1985. it is the admitted case of the revision petitioners that they have paid the difference in contractual rent of rs. 13,932 and 15,954 only for the period from october 1989, even though the difference in contractual rent and fair rent has to be paid with effect from 1.5.1985. there is also arrears from the revision petitioners, but that is not the subject-matter of the revision now under consideration.7. the question that arises now for consideration before this court, is whether the non-payment of the rent by the revision petitioners for the period from october, 1986 to june, 1989 and sending the same only on 18.7.1989 will not amount to wilful default in payment of rent by them.8. the learned counsel for the revision petitioners contends that the landlady is living in the first floor while the shops are in the ground floor and that, therefore, the rent was paid by pay order every month personally, but the same was not accepted, at least for 23 months. it is also contended by the learned counsel for the revision petitioners that the above said 23 pay orders were sent by each of the revision petitioners on 9.8.1988, along with a lawyer's notice for the period from september, 1986 to july, 1988, but, it is not known as to why the revision petitioners have not chosen to produce the notice dated 9.8.1988 sent by them to the advocate for the landlady. in the reply sent under ex.r-9, dated 2.9.1988, the landlady has specifically stated that the pay orders were not tendered or rent paid every month and that the allegations of tendering of pay orders every month to the landlady and the refusal of the same are not true. in the counter, the revision petitioners have stated that they have sent the rent by pay order from september, 1986 to july, 1988, along with lawyer's notice and the same has been accepted by the landlady. it is contrary to the averments in the notice ex.r-9. it is also pleaded in the counter that the rent for the subsequent months were regularly sent and the same was received by the landlady regularly. to establish that the rent was sent regularly, the learned counsel for the revision petitioners relied on ex.r-11, dated 16.6.1987, the notice sent by the landlady to the counsel for the revision petitioners. a perusal of ex.r-11 would disclose that the revision petitioners have sent letters along with drafts on 12.5.1987 and 5.6.1987 and the same were returned. the reason given for returning the drafts sent by the revision petitioners, by the landlady, was that the revision petitioners in c.r.p.nos. 3045 of 2000 and 3046 of 2000 are in arrears for the period from june, 1985 and january, 1984, respectively, till 16.6.1987 and, therefore, the drafts sent for the abovesaid two months were returned. the abovesaid document ex.r-11 will not help the revision petitioners to establish that rent was sent every month by draft by them to the landlady. but, on the other hand, they were in arrears from june, 1985 and january, 1984, till the issue of reply notice dated 16.6.1987. if the submission made by the learned counsel for the revision petitioners across the bar that the revision petitioners used to pay pay orders only personally is considered, the averments made in the abovesaid notices will lead to infer that they are creating records by sending drafts once for a month or two to the landlady without paying the arrears of rent for years together before sending such drafts by post. there is absolutely no documentary evidence on the side of the revision petitioners to show that the rent for the demised premises were tendered by the revision petitioners to the landlady every month and the same was refused by her. there is also no acceptable oral evidence except the interested testimony of hatim, one of the partners of both the companies referred to above, to establish the tendering of rent every month by both the tenants to the landlady.9. the learned counsel for the revision petitioners pointed out that one bansilal, examined on the side of the landlady, as p.w.1, has admitted the payment of rent every month. the witness has been cross-examined not only with regard to the present rent control proceedings, but also with regard to the earlier proceedings referred to above and also the subsequent payments made after filing of these petitions every month. it is in such cross-examination, the witness examined on the side of the landlady, has made such statement and that will not help the revision petitioners to establish that the rent was tendered every month before filing of the eviction proceedings by the landlady, for the period referred to above. if really the revision petitioners had! tendered the pay orders and the landlady had refused to receive the same, they would have opted to approach the court, initiating proceedings under section 8(5) of the act to deposit the rent after issuing notice to the landlady to name the bank and after sending the rent by money order to the landlady. they have not chosen to do so for years together. no valid or acceptable reasons were given by the revision petitioners for not paying the rent continuously for the period from october, 1986 till the date of filing of the petitions for eviction, by the landlady, against the revision petitioners herein.10. the learned counsel for the revision petitioners contended that non-filing of the petition under section 8(5) of the act will not lead to hold that the revision petitioners have committed wilful default in payment of rent. in support of such contention, the learned counsel for the re-vision petitioners relied on the decision reported in tamil nadu motors v. m. lakshmi : (1999)3mlj29 , wherein karpagavinayagam, j. has held as follows:.on the question of wilful default in payment of arrears of rent, it is settled law that mere default cannot be taken to be wilful. 'wilful default' implies a conscious or volitional failure to discharge obligations laid down by law on a tenant, which also includes a supine indifference to those obligations. in deciding the element of 'wilful default', each case will have to be judged on its own merits.it is also settled law that it is the duty of the tenant to pay the rent regularly every month as enjoined in the statute without expecting any demand from the landlady in that regard. if he finds that the landlady is evading the receiving of rent, procedure had been prescribed under section 8 of the act to issue notice to the landlady to name the bank and if she does not name the bank, the tenant has to file an application before the rent controller for permission to deposit the rent. the omission to avail of the procedure under section 8 would certainly entitle the landlady to seek eviction for wilful default.the principles laid down in the case cited above would help the landlady to seek eviction on the ground of wilful default in view of the non-filing of the petition under section 8(5) of the act and it will not in any way help the revision petitioners herein in any respect.11. the learned counsel for the revision petitioners on the decision of the apex court reported in krishna mudaliar v. lakshmi ammal (1996) 2 l. w.467, are not deemed to have committed wilful default in payment of rent, since they have sent the rent to the landlady on 18.7.1989, even though the eviction petitions were filed against the petitioners on 12.6.1989. in that case, the landlord filed a suit for recovery of possession of the property from the tenant alleging him as a trespasser and refused to receive the rent tendered or paid by the said tenant. the suit was dismissed holding that the tenant is not a trespasser and he is only a tenant. thereafter, the landlord filed a petition for eviction on the ground of wilful default in the payment of rent for nearly four years during which the civil suit was pending. the tenant had taken a stand that the landlord had refused to receive the rent paid by him by filing a suit in the civil court stating that he was a trespasser and after dismissal of the said civil suit in which he was declared as a tenant, the landlord had initiated the rent control proceedings and, therefore, he had not committed wilful default in payment of rent. that was acceptable to the rent control court and the tenant was permitted to deposit the rent within one month from the date of filing of the eviction petition. when the matter went to the apex court, it was held that the tenant had not committed wilful default. the facts and circumstances of this case is not similar to the facts and circumstances of the case on hand and, therefore, the case cited above will not help the revision petitioners to establish that they have not committed wilful default in payment of rent.12. the learned counsel for the revision petitioners relied on the decision of the apex court reported in c. chandramohan v. sengottaiyan : [2000]1scr16 and contended that the landlady has not right to maintain the rent control petitions, since specific period of default was not mentioned in the petitions filed against these revision petitioners. the apex court has held that if the eviction petition is not containing averments with regard to specific period during which the tenant committed default in payment of rent, eviction cannot be ordered relying on the averments in the notices exchanged between the parties, prior to the filing of the petition. this decision will have no application, since it has been specifically stated in the pleadings in the petitions that the revision petitioners are in arrears for the period from october, 1986 to upto date, after taking into consideration the deposit made by both the revision petitioners in the petition filed under section 11(4) of the act in the earlier proceedings in r.c.o.p.nos. l562 of 1985 and 1732 of 1985, even though there was default in payment of rent for the period from april, 1985 to february 1989, before making the abovesaid payments.13. the learned counsel for the revision petitioners relied on the decision reported in choridia automobiles v. s. moosa and ors. : [2000]1scr16 , wherein the apex court was pleased to hold that 'wilful default' means conscious or deliberate defiance, along with an intention not to pay rent. in this case, the revision petitioners have not paid the rent for the period from october, 1986 to 1989 inspite of earlier proceedings initiated against them for nonpayment of rent as mentioned above. the non-payment of rent for the period referred to above will have to be held as deliberate defiance along with an intention not to pay rent and, therefore, the above decision will also have no application to the facts and circumstances of this case.14. the learned counsel for the revision petitioners relied on a decision reported in durgai ammal v. r.t. mani (1989) 1 l.w. 155 and contended that the rent control proceedings initiated against the revision petitioners by filing these petitions during the pendency of the earlier proceedings in r.c.o.p.nos. 1562 of 1985 and 1732 of 1985 for eviction against the revision petitioners on the ground of wilful default are not maintainable. it is relevant to point out that the eviction petitions against the revision petitioners were filed as mentioned above for the period from 16.1.1984 to 31.3.1985 and 1.4.1983 to 31.3.1985. ofcourse, in the decision referred to above, a division bench of this court has held as follows:.if during the rent control proceedings, the tenant does not pay rent, the landlord can file an application in that respect before the controller and the controller on his satisfaction will terminate the proceedings and direct the tenant to put the landlord in possession of the premises. thus, in the act a special machinery has been provided to deal with nonpayment of rent by the tenant during pendency of the rent control proceedings. the landlord in disregard of or bypassing this provision cannot institute a fresh proceeding on the ground on non-payment of rent.but, the learned counsel for the respondents in these revision petitions has brought to the notice of this court the decision reported in perumal v. muthuswami (1962) 1 m.l.j. 218, wherein a full bench of this court, consisting of ramachandra iyer, c.j., veeraswami and srinivasan, jj., has held as follows:.under the proviso to section 10(7) of the present act (xviii of 1960) though the language used is not quite clear, a landlord can file an application complaining of default for subsequent months during the pendency of an application on the ground of default in payment of rent for earlier months. the word other grounds in the proviso must relate to the necessary grounds other than those which form the subject-matter of the previous petition.15. it is relevant to point out that in the decision reported in (1989) 1 l.w. 155, referred to above, the full bench decision had not been brought to the notice of the learned judges of the division bench and, therefore, such a conclusion has been arrived at by the division bench. with respect, this court prefers to follow the decision of the full bench in preference to the division bench ruling.16. it has also been held by this court in chekka ramaniah and anr. v. s. mariappan and anr. : (1993)1mlj406 and g. neella alias neela george v. m.r. chandra bai and anr. : (1994)1mlj193 following the full bench decision, referred to above, that the landlord can file an application, complaining of default for subsequent months, during the pendency of the application on the ground of default in payment of rent for the earlier months.17. in view of the decisions referred to above, the contention raised by the revision petitioners that the present petition filed by the landlady cannot be maintained, cannot be sustained.18. the learned counsel for the revision petitioners again relied on the decision reported in kumud kumar v. central bank of india and anr. (2000) 3 m.l.j. 86 and contended that the present petitions filed by the landlady is not maintainable. in that case, the landlady filed a suit for possession, damages and mesne profits and the suit was decreed against the defendants. the appeal filed by the aggrieved party was allowed on the ground that the notice under section 106 of the transfer of property act was not issued. aggrieved at the said judgment passed by the high court, the landlady filed an appeal in the supreme court. after filing of the appeal in the supreme court, the landlady gave notice under section 106 of the transfer of property act and again filed a suit for possession and mesne profits. that suit was decreed by the trial court. it is under the said circumstances, the apex court was pleased to hold that the appeal filed before the supreme court cannot be allowed to be prosecuted, holding that it is settled law that a litigant cannot be allowed to prosecute two remedies simultaneously. the decision rendered by the honourable apex court in the circumstances of that case will have no application to the facts and circumstances of this case to hold that the petitions filed by the landlady against the revision petitioners are not maintainable.19. the learned counsel for the respondents herein, who are the legal representatives of the landlady smt. lajja bai, brought to the notice of this court the decision reported in t. easwara rao v. m.e. ansari : (1999)imlj401 . in that case, k. govindarajan, j has held as follows:.the deposit of the amount on the first hearing date of the case may be taken into consideration only along with other factors to decide whether the tenant's action in committing default in payment of rent due to his supine indifference or not.in this case, the revision petitioners, inspite of the initiation of the eviction proceedings on the ground of wilful default against them by the landlady previously and pending disposal of the said petitions have committed default in payment of rent for the period from october, 1986 to the date of filing of the present petitions in the year 1989. the nonpayment of rent will certainly amount to supine indifference on the part of the revision petitioners and, therefore, the decision referred to above will help the respondents herein to seek eviction on the ground of wilful default in payment of rent by the revision petitioners.20. in vasantha leela v. vadivelu chettiar : 1998(3)ctc467 , raman, j. has held as follows:.therefore, it is clear from the above circumstances that the tenant ought to have been diligent in payment of the rent as proceedings have been pending between the parties with reference to the property and his eviction from the property. the tenant ought to have been careful and scrupulous in adhering to his duties as a tenant. the foremost duty of the tenant is to pay the rent in time. therefore, in the context of the litigations that went on between the parties and default committed by the tenant has to be construed as wilful default. the tenant was aware of the legal consequences of his omission to pay rent. therefore, he ought to have been more careful. inspite of it he has not chosen to pay the rent which would only indicate that he has been supinely indifferent and callous in attitude. therefore, any default committed by the tenant in this context can be nothing but wilful default within the meaning of the act.if the decisions referred to above by the learned counsel for the respondents herein are taken note of, it is clear that the default committed by the revision petitioners in the payment of rent for the period from october, 1986 to the date of filing of these petitions, even during the pendency of the earlier proceedings for eviction initiated by the landlady, against the revision petitioners, on the ground of wilful default, will certainly amount to wilful default. the courts below have concurrently found on facts that the revision petitioners have committed wilful default in the payment of rent.21. in south india corporation agencies ltd. v. chandrakanth c. bandani : 1998(3)ctc467 , govindarajan, j., has held that unless there is a perversity in the matter of appreciation of evidence by the authorities below, the revisional court exercising jurisdiction under section 25 of the act will not interfere with the concurrent finding. there is absolutely nothing to show that there is perversity in the appreciation of evidence by the authorities below, while arriving at the concurrent findings in these matters. therefore, this court has no reason to interfere with the concurrent findings rendered by the courts below.22. in fine, c.r.p.nos. 3045 and 3046 of 2000 are dismissed and the judgment and decree passed by the rent control appellate authority are confirmed. the respondents herein are entitled to cost in each of these petitions, payable by the revision petitioners.

Judgment:
ORDER

P. Thangavel, J.

1. These civil revision petitions have been filed by the tenants, as revision petitioners, against the common judgment and decrees dated 17.4.2000 and made in R.C.A.Nos. 1005 of 1993 and 1006 of 1993 on the file of the VII Judge, Court of Small Causes, Madras, confirming the common order and decretal order, dated 22.3.1993 and made in R.C.O.P.Nos. 1472 of 1989 and 1473 of 1989 on the file of the XIV Judge, Court of Small Causes, Madras.

2. The brief facts that are necessary for the disposal of these civil revision petitions are as follows: Smt. Lajja Bai is the owner of the shops bearing Nos. 3 and 5 described in the petitions in R.C.O.P.Nos. 1472 and 1473 of 1989, on the file of the Rent Control Court and the said shops were let out to H. Hatim and Co., and A.K. Hussain & Co., on a monthly rent of Rs. 200 each. The tenants, who are the revision petitioners herein, had failed to pay rent to the landlady, who is represented by the respondents herein, as legal representatives, on her death and, therefore, the landlady filed petitions for eviction, in R.C.O.P.Nos. 1562 and 1732 of 1985, against the tenants, who are the respondents in R.C.O.P.Nos. 1472 and 1473 of 1989 on the file of the Rent Controller, Madras, for the default committed by them in the payment of rent from 16.1.1984 to 31.3.1985 and 1.4.1983 to 31.3.1985, respectively. During the pendency of the abovesaid earlier rent control proceedings, the landlady filed petitions in M.P.Nos. 744 and 745 of 1986 in the respective rent control petitions, under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act), for stopping the further proceedings unless the arrears of rent are either deposited or paid to the landlady. As per the direction of the court in the earlier proceedings, the revision petitioners herein, as respondents in the earlier proceedings, paid Rs. 3,200 and Rs. 2,400, at the rate of Rs. 200 and Rs. 150 per month, for the period from June, 1985 to September, 1986. Though rent was not paid by the revision petitioners for the period from April, 1985 to February, 1989 before filing of the petitions for eviction on the ground of wilful default, in view of the payment made in the earlier proceedings for the period from June, 1985 to September, 1986, the revision petitioners, as respondents, have committed wilful default in payment of rent for the period from October, 1986 upto the date of filing of these petitions. It is on this ground that the land lady Smt. Lajja Bai, sought for eviction of the tenants, who are the revision petitioners herein, from the shops under their occupation, as described in the respective petitions.

3. The revision petitioners herein, who are the respondents in the respective rent control petitions, resisted the claim made by the landlady, on the following grounds: Tmt. Lajja Bai is the owner of the shops under the occupation of the revision petitioners, who are the respondents in the respective petitions and the respondents in R.C.O.P.Nos. 1472 and 1473 of 1989, are paying monthly rent of Rs. 200 and Rs. 150 per month and not Rs. 200 per month, as claimed from the respondent in R.C.O.P.No. 1473 of 1989. The landlady, as petitioners, filed petitions in RC.O.P.Nos. 1562 and 1732 of 1985 for eviction on the ground of wilful default in the payment of rent for the period from 16.1.1984 to 31.3.1985 and 1.4.1983 to 31.3.1985, but the same was denied by the respective tenants in the said petitions. The said petitions for eviction on the ground of wilful default are pending. The rent tendered by the respective tenants, who are the revision petitioners herein, to the landlady, was refused to be received and particularly, the rent paid by the tenant in R.C.O.P.No. 1473 of 1989 was not received, claiming the rent at the rate of Rs. 200 per month, instead of Rs. 150 per month. For the rents sent regularly every month, the landlady has not issued receipts. The respondents in each of the rent control petitions, who are the revision petitioners, had deposited rent for the period from June, 1985 to September, 1986 in the earlier proceedings as the said amounts were admitted to be arrears. The landlady, who had accepted the rents sent for the period from September, 1986 to July, 1988 along with lawyer's notice, had also accepted the rent sent every month for the subsequent period. In the petition filed for fixation of fair rent by the landlady in R.C.O.P.Nos. 1854 and 1855 of 1985 on the file of the XIV Judge, Court of Small Causes, Madras, the fair rent was fixed at Rs. 446 and Rs. 458 per month for the tenants in R.C.O.P.Nos. 1472 and 1473 of 1989, respectively, with effect from 1.5.1985. Towards the difference in contractual rent and the fair rent fixed by the competent court, the tenants in R.C.O.P.Nos. 1472 and 1473 of 1989 paid Rs. 13,932 and Rs. 15,954, respectively, and such payment has been made only from October, 1989. The respondents in R.C.O.P.Nos. 1472 and 1473 of 1989 had sent the arrears for the period from September, 1986 to June, 1989, at Rs. 200 and Rs. 150 per month on 18.7.1989, along with advance of one month's rent and the same was received by the landlady. Therefore, the respondents in both the petitions contended that they have not committed wilful default in the payment of rent and, accordingly, sought for dismissal of both the petitions.

4. After considering the submissions made by both sides in both petitions referred to above and in the light of the oral and documentary evidence available on record, in the common enquiry, the learned Rent Controller has come to the conclusion that the tenants in both the petitions, who are the revision petitioners herein, have committed wilful default in the payment of rent and, accordingly, allowed the petitions. Aggrieved at the common order and decretal order dated 22.3.1993 and made in R.C.O.P.Nos. 1472 and 1473 of 1989 on the file of the XIV Judge, Court of Small Causes, Madras, the tenants in the respective petitions, as appellants, filed appeals in R.C.A.Nos. 1005 and 1006 of 1993, on the file of the Rent Control Appellate Authority, VII Judge, Court of Small Causes, Madras. After considering the submissions made on both sides and in the light of the evidence available on record in both the appeals, the learned VII Judge, Court of Small Causes, Madras, confirmed the conclusion arrived at by the learned Rent Controller and dismissed the appeals referred to above. Aggrieved at the said common judgment and decrees dated 17.4.2000 and made in R.C.A.Nos. 1005 and 1006 of 1993, the tenants, who are the appellants in these appeals, as revision petitioners, have filed these civil revision petitions.

5. Both the rent control petitions and rent control appeals were heard together by the learned Rent Controller as well as the Rent Control Appellate Authority, respectively, at the request of both the parties and the same request is made before this Court also for hearing the civil revision petitions together. Therefore, both the civil revision petitions are heard together and disposed of by this common order.

6. Admittedly, Smt. Lajja Bai is the owner of the premises bearing shop Nos. 3 and 5 and the said shops were leased out to Hatim & Co., and Hussain & Co., for Rs. 150 and Rs. 200 per month respectively. The rent claimed at the rate of Rs. 200 per month from Hatim & Co., was set at rest by the Court below by fixing the rent payable only at Rs. 150 per month. Admittedly, the landlady had initiated eviction proceedings in R.C.O.P.Nos. 1562 of 1985 and 1732 of 1985 for non payment of rent by the revision petitioners in C.R.P.Nos. 3045 and 3046 of 2000 for the period from 16.1.1984 to 31.3.1985 and 1.4.1983 to 31.3.1985 and during the pendency of the above said proceedings, the landlady filed petitions in M.R.Nos. 744 and 745 of 1986, under Section 11(4) of the Act for a direction to the revision petitioners herein to deposit the arrears of rent due during the pendency of the said proceedings or to stop further proceedings by not permitting the revision petitioners herein to contest the above said rent control petitions and, in that proceedings, the revision petitioners in C.R.P.No. 3045 of 2000 and 3046 of 2000 were directed to deposit arrears of rent of Rs. 3200 and Rs. 2400 for the period from June, 1985 to September, 1986 and the said amounts were deposited by the revision petitioners herein as per the direction of the court. In view of the deposits of arrears of rent by both the revision petitioners, as tenants in the respective petitions were in arrears with effect from October, 1986 upto date, even though they have committed default in the payment of rent from April, 1985 to February, 1988, after institution of the earlier proceedings mentioned above. In view of the said position, the contentions raised by the learned Counsel for the revision petitioners that the period from which the rent was not paid by the respective petitioners have not been specifically pleaded in the respective petitions by the landlady, cannot be sustained. It is relevant to point out that the rent control petitions in R.C.O.P.Nos. 1472 and 1473 of 1989 were filed by the landlady against the revision petitioners herein on 12.6.1989 and these revision petitioners have admittedly sent the arrears of rent for the period from October, 1986 to June, 1989, inclusive of one month's advance, only on 18.7.1989 by post and the same was received subsequently, viz., 21.6.1989, when the said petitions were posted for hearing before the Rent Controller. The admission made as mentioned above would clearly go to show that the revision petitioners herein have not paid arrears of rent for the period from October, 1986 to June, 1989, even though the landlady had already filed petitions in R.C.O.R.Nos. 1562 and 1732 of 1985 for eviction on the ground of nonpayment of rent for the periods from 16.1.1984 to 31.3.1985 and 1.4.1983 to 31.3.1985 respectively. It is also relevant to point out that the landlady has filed petitions in R.C.O.R.Nos. 1854 and 1855 of 1985 for fixation of fair rent for the premises under the occupation of the revision petitioners in C.R.P.Nos. 3045 and 3046 of 2000 and fair rent was fixed at Rs. 458 and Rs. 446 per month for the revision petitioners in C.R.P.Nos. 3045 and 3046 of 2000 respectively with effect from 1.5.1985. It is the admitted case of the revision petitioners that they have paid the difference in contractual rent of Rs. 13,932 and 15,954 only for the period from October 1989, even though the difference in contractual rent and fair rent has to be paid with effect from 1.5.1985. There is also arrears from the revision petitioners, but that is not the subject-matter of the revision now under consideration.

7. The question that arises now for consideration before this Court, is whether the non-payment of the rent by the revision petitioners for the period from October, 1986 to June, 1989 and sending the same only on 18.7.1989 will not amount to wilful default in payment of rent by them.

8. The learned Counsel for the revision petitioners contends that the landlady is living in the first floor while the shops are in the ground floor and that, therefore, the rent was paid by pay order every month personally, but the same was not accepted, at least for 23 months. It is also contended by the learned Counsel for the revision petitioners that the above said 23 pay orders were sent by each of the revision petitioners on 9.8.1988, along with a lawyer's notice for the period from September, 1986 to July, 1988, but, it is not known as to why the revision petitioners have not chosen to produce the notice dated 9.8.1988 sent by them to the advocate for the landlady. In the reply sent under Ex.R-9, dated 2.9.1988, the landlady has specifically stated that the pay orders were not tendered or rent paid every month and that the allegations of tendering of pay orders every month to the landlady and the refusal of the same are not true. In the counter, the revision petitioners have stated that they have sent the rent by pay order from September, 1986 to July, 1988, along with lawyer's notice and the same has been accepted by the landlady. It is contrary to the averments in the notice Ex.R-9. It is also pleaded in the counter that the rent for the subsequent months were regularly sent and the same was received by the landlady regularly. To establish that the rent was sent regularly, the learned Counsel for the revision petitioners relied on Ex.R-11, dated 16.6.1987, the notice sent by the landlady to the counsel for the revision petitioners. A perusal of Ex.R-11 would disclose that the revision petitioners have sent letters along with drafts on 12.5.1987 and 5.6.1987 and the same were returned. The reason given for returning the drafts sent by the revision petitioners, by the landlady, was that the revision petitioners in C.R.P.Nos. 3045 of 2000 and 3046 of 2000 are in arrears for the period from June, 1985 and January, 1984, respectively, till 16.6.1987 and, therefore, the drafts sent for the abovesaid two months were returned. The abovesaid document Ex.R-11 will not help the revision petitioners to establish that rent was sent every month by Draft by them to the landlady. But, on the other hand, they were in arrears from June, 1985 and January, 1984, till the issue of reply notice dated 16.6.1987. If the submission made by the learned Counsel for the revision petitioners across the Bar that the revision petitioners used to pay pay orders only personally is considered, the averments made in the abovesaid notices will lead to infer that they are creating records by sending drafts once for a month or two to the landlady without paying the arrears of rent for years together before sending such drafts by post. There is absolutely no documentary evidence on the side of the revision petitioners to show that the rent for the demised premises were tendered by the revision petitioners to the landlady every month and the same was refused by her. There is also no acceptable oral evidence except the interested testimony of Hatim, one of the partners of both the companies referred to above, to establish the tendering of rent every month by both the tenants to the landlady.

9. The learned Counsel for the revision petitioners pointed out that one Bansilal, examined on the side of the landlady, as P.W.1, has admitted the payment of rent every month. The witness has been cross-examined not only with regard to the present rent control proceedings, but also with regard to the earlier proceedings referred to above and also the subsequent payments made after filing of these petitions every month. It is in such cross-examination, the witness examined on the side of the landlady, has made such statement and that will not help the revision petitioners to establish that the rent was tendered every month before filing of the eviction proceedings by the landlady, for the period referred to above. If really the revision petitioners had! tendered the pay orders and the landlady had refused to receive the same, they would have opted to approach the court, initiating proceedings under Section 8(5) of the Act to deposit the rent after issuing notice to the landlady to name the bank and after sending the rent by money order to the landlady. They have not chosen to do so for years together. No valid or acceptable reasons were given by the revision petitioners for not paying the rent continuously for the period from October, 1986 till the date of filing of the petitions for eviction, by the landlady, against the revision petitioners herein.

10. The learned Counsel for the revision petitioners contended that non-filing of the petition under Section 8(5) of the Act will not lead to hold that the revision petitioners have committed wilful default in payment of rent. In support of such contention, the learned Counsel for the re-vision petitioners relied on the decision reported in Tamil Nadu Motors v. M. Lakshmi : (1999)3MLJ29 , wherein Karpagavinayagam, J. has held as follows:.On the question of wilful default in payment of arrears of rent, it is settled law that mere default cannot be taken to be wilful. 'Wilful default' implies a conscious or volitional failure to discharge obligations laid down by law on a tenant, which also includes a supine indifference to those obligations. In deciding the element of 'wilful default', each case will have to be judged on its own merits.

It is also settled law that it is the duty of the tenant to pay the rent regularly every month as enjoined in the statute without expecting any demand from the landlady in that regard. If he finds that the landlady is evading the receiving of rent, procedure had been prescribed under Section 8 of the Act to issue notice to the landlady to name the bank and if she does not name the bank, the tenant has to file an application before the Rent Controller for permission to deposit the rent. The omission to avail of the procedure under Section 8 would certainly entitle the landlady to seek eviction for wilful default.

The principles laid down in the case cited above would help the landlady to seek eviction on the ground of wilful default in view of the non-filing of the petition under Section 8(5) of the Act and it will not in any way help the revision petitioners herein in any respect.

11. The learned Counsel for the revision petitioners on the decision of the Apex Court reported in Krishna Mudaliar v. Lakshmi Ammal (1996) 2 L. W.467, are not deemed to have committed wilful default in payment of rent, since they have sent the rent to the landlady on 18.7.1989, even though the eviction petitions were filed against the petitioners on 12.6.1989. In that case, the landlord filed a suit for recovery of possession of the property from the tenant alleging him as a trespasser and refused to receive the rent tendered or paid by the said tenant. The suit was dismissed holding that the tenant is not a trespasser and he is only a tenant. Thereafter, the landlord filed a petition for eviction on the ground of wilful default in the payment of rent for nearly four years during which the civil suit was pending. The tenant had taken a stand that the landlord had refused to receive the rent paid by him by filing a suit in the civil court stating that he was a trespasser and after dismissal of the said civil suit in which he was declared as a tenant, the landlord had initiated the rent control proceedings and, therefore, he had not committed wilful default in payment of rent. That was acceptable to the Rent Control Court and the tenant was permitted to deposit the rent within one month from the date of filing of the eviction petition. When the matter went to the Apex Court, it was held that the tenant had not committed wilful default. The facts and circumstances of this case is not similar to the facts and circumstances of the case on hand and, therefore, the case cited above will not help the revision petitioners to establish that they have not committed wilful default in payment of rent.

12. The learned Counsel for the revision petitioners relied on the decision of the Apex Court reported in C. Chandramohan v. Sengottaiyan : [2000]1SCR16 and contended that the landlady has not right to maintain the rent control petitions, since specific period of default was not mentioned in the petitions filed against these revision petitioners. The Apex Court has held that if the eviction petition is not containing averments with regard to specific period during which the tenant committed default in payment of rent, eviction cannot be ordered relying on the averments in the notices exchanged between the parties, prior to the filing of the petition. This decision will have no application, since it has been specifically stated in the pleadings in the petitions that the revision petitioners are in arrears for the period from October, 1986 to upto date, after taking into consideration the deposit made by both the revision petitioners in the petition filed under Section 11(4) of the Act in the earlier proceedings in R.C.O.P.Nos. l562 of 1985 and 1732 of 1985, even though there was default in payment of rent for the period from April, 1985 to February 1989, before making the abovesaid payments.

13. The learned Counsel for the revision petitioners relied on the decision reported in Choridia Automobiles v. S. Moosa and Ors. : [2000]1SCR16 , wherein the Apex Court was pleased to hold that 'wilful default' means conscious or deliberate defiance, along with an intention not to pay rent. In this case, the revision petitioners have not paid the rent for the period from October, 1986 to 1989 inspite of earlier proceedings initiated against them for nonpayment of rent as mentioned above. The non-payment of rent for the period referred to above will have to be held as deliberate defiance along with an intention not to pay rent and, therefore, the above decision will also have no application to the facts and circumstances of this case.

14. The learned Counsel for the revision petitioners relied on a decision reported in Durgai Ammal v. R.T. Mani (1989) 1 L.W. 155 and contended that the rent Control proceedings initiated against the revision petitioners by filing these petitions during the pendency of the earlier proceedings in R.C.O.P.Nos. 1562 of 1985 and 1732 of 1985 for eviction against the revision petitioners on the ground of wilful default are not maintainable. It is relevant to point out that the eviction petitions against the revision petitioners were filed as mentioned above for the period from 16.1.1984 to 31.3.1985 and 1.4.1983 to 31.3.1985. Ofcourse, in the decision referred to above, a Division Bench of this Court has held as follows:.if during the rent control proceedings, the tenant does not pay rent, the landlord can file an application in that respect before the controller and the controller on his satisfaction will terminate the proceedings and direct the tenant to put the landlord in possession of the premises. Thus, in the Act a special machinery has been provided to deal with nonpayment of rent by the tenant during pendency of the rent control proceedings. The landlord in disregard of or bypassing this provision cannot institute a fresh proceeding on the ground on non-payment of rent.

But, the learned Counsel for the respondents in these revision petitions has brought to the notice of this Court the decision reported in Perumal v. Muthuswami (1962) 1 M.L.J. 218, wherein a Full Bench of this Court, consisting of Ramachandra Iyer, C.J., Veeraswami and Srinivasan, JJ., has held as follows:.Under the proviso to Section 10(7) of the present Act (XVIII of 1960) though the language used is not quite clear, a landlord can file an application complaining of default for subsequent months during the pendency of an application on the ground of default in payment of rent for earlier months. The word other grounds in the Proviso must relate to the necessary grounds other than those which form the subject-matter of the previous petition.

15. It is relevant to point out that in the decision reported in (1989) 1 L.W. 155, referred to above, the Full Bench decision had not been brought to the notice of the learned Judges of the Division Bench and, therefore, such a conclusion has been arrived at by the Division Bench. With respect, this Court prefers to follow the decision of the Full Bench in preference to the Division Bench ruling.

16. It has also been held by this Court in Chekka Ramaniah and Anr. v. S. Mariappan and Anr. : (1993)1MLJ406 and G. Neella alias Neela George v. M.R. Chandra Bai and Anr. : (1994)1MLJ193 following the Full Bench decision, referred to above, that the landlord can file an application, complaining of default for subsequent months, during the pendency of the application on the ground of default in payment of rent for the earlier months.

17. In view of the decisions referred to above, the contention raised by the revision petitioners that the present petition filed by the landlady cannot be maintained, cannot be sustained.

18. The learned Counsel for the revision petitioners again relied on the decision reported in Kumud Kumar v. Central Bank of India and Anr. (2000) 3 M.L.J. 86 and contended that the present petitions filed by the landlady is not maintainable. In that case, the landlady filed a suit for possession, damages and mesne profits and the suit was decreed against the defendants. The appeal filed by the aggrieved party was allowed on the ground that the notice under Section 106 of the Transfer of Property Act was not issued. Aggrieved at the said judgment passed by the High Court, the landlady filed an appeal in the Supreme Court. After filing of the appeal in the Supreme Court, the landlady gave notice under Section 106 of the Transfer of Property Act and again filed a suit for possession and mesne profits. That suit was decreed by the trial Court. It is under the said circumstances, the Apex Court was pleased to hold that the appeal filed before the Supreme Court cannot be allowed to be prosecuted, holding that it is settled law that a litigant cannot be allowed to prosecute two remedies simultaneously. The decision rendered by the Honourable Apex Court in the circumstances of that case will have no application to the facts and circumstances of this case to hold that the petitions filed by the landlady against the revision petitioners are not maintainable.

19. The learned Counsel for the respondents herein, who are the legal representatives of the landlady Smt. Lajja Bai, brought to the notice of this Court the decision reported in T. Easwara Rao v. M.E. Ansari : (1999)IMLJ401 . In that case, K. Govindarajan, J has held as follows:.The deposit of the amount on the first hearing date of the case may be taken into consideration only along with other factors to decide whether the tenant's action in committing default in payment of rent due to his supine indifference or not.

In this case, the revision petitioners, inspite of the initiation of the eviction proceedings on the ground of wilful default against them by the landlady previously and pending disposal of the said petitions have committed default in payment of rent for the period from October, 1986 to the date of filing of the present petitions in the year 1989. The nonpayment of rent will certainly amount to supine indifference on the part of the revision petitioners and, therefore, the decision referred to above will help the respondents herein to seek eviction on the ground of wilful default in payment of rent by the revision petitioners.

20. In Vasantha Leela v. Vadivelu Chettiar : 1998(3)CTC467 , Raman, J. has held as follows:.Therefore, it is clear from the above circumstances that the tenant ought to have been diligent in payment of the rent as proceedings have been pending between the parties with reference to the property and his eviction from the property. The tenant ought to have been careful and scrupulous in adhering to his duties as a tenant. The foremost duty of the tenant is to pay the rent in time. Therefore, in the context of the litigations that went on between the parties and default committed by the tenant has to be construed as wilful default. The tenant was aware of the legal consequences of his omission to pay rent. Therefore, he ought to have been more careful. Inspite of it he has not chosen to pay the rent which would only indicate that he has been supinely indifferent and callous in attitude. Therefore, any default committed by the tenant in this context can be nothing but wilful default within the meaning of the act.

If the decisions referred to above by the learned Counsel for the respondents herein are taken note of, it is clear that the default committed by the revision petitioners in the payment of rent for the period from October, 1986 to the date of filing of these petitions, even during the pendency of the earlier proceedings for eviction initiated by the landlady, against the revision petitioners, on the ground of wilful default, will certainly amount to wilful default. The courts below have concurrently found on facts that the revision petitioners have committed wilful default in the payment of rent.

21. In South India Corporation Agencies Ltd. v. Chandrakanth C. Bandani : 1998(3)CTC467 , Govindarajan, J., has held that unless there is a perversity in the matter of appreciation of evidence by the authorities below, the revisional court exercising jurisdiction under Section 25 of the Act will not interfere with the concurrent finding. There is absolutely nothing to show that there is perversity in the appreciation of evidence by the authorities below, while arriving at the concurrent findings in these matters. Therefore, this Court has no reason to interfere with the concurrent findings rendered by the courts below.

22. In fine, C.R.P.Nos. 3045 and 3046 of 2000 are dismissed and the judgment and decree passed by the Rent Control Appellate Authority are confirmed. The respondents herein are entitled to cost in each of these petitions, payable by the revision petitioners.