G.Krishnamurthy v. S.K.Balasundaram

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 12.07.2007CoramThe Honourable Mr. Justice M. CHOCKALINGAMC.R.P.NPD.Nos.1095 and 1096 of 2006andM.P.Nos.1 & 2 of 2007 in C.R.P.NPD.No.1095/06G.Krishnamurthy ... Petitioner in both CRPs/Tenant..vs..S.K.Balasundaram ... Respondent in both CRPs/LandlordCivil Revision Petitions against the orders anddecreetal orders dated 13.04.2006 in RCA Nos.846 of 2002 and 133of 2004 respectively on the file of the VII Small Causes Court(Appellate Authority), chennai, confirming the orders anddecreetal orders dated 29.08.2002 and 08.01.2004 in RCOPNos.406 of 2001 and 1265 of 2003 respectively on the file of XIVJudge Court of Small Causes, Madras.For Petitioner : Mr.T.Viswanatharao For Respondent : Mr.A.V.ArunO R D E RThis order shall govern the two C.R.P.NPD.Nos.1095 and 1096of 2006 which challenge two Judgments of the Rent ControlAppellate Authority, VII Court of Small Causes made inR.C.A.Nos.846 of 2002 and 133 of 2004 respectively. These twoRCAs arose from two orders of the Rent Controller viz., XIVCourt of Small Causes made in R.C.O.P.Nos.406 of 2001 and 1265of 2003 respectively. The first R.C.O.P.No.406 of 2001 wasfiled by the landlord seeking eviction on the ground of willfuldefault. The second R.C.O.P.No.1265 of 2003 was filed by thetenant seeking deposit of the rental arrears in Court. The RentController while ordering eviction in the first RCOP, dismissedthe second RCOP. Aggrieved against the said orders, the tenantpreferred appeals referred to above and has suffered dismissalof those appeals, against which these two revisions have beenbrought forth by the tenant. https://hcservices.ecourts.gov.in/hcservices/

2. The Court heard the learned counsel on either side.3. Concededly, the respondent herein is the owner of theproperty mentioned in the rental applications, which is situateat Door No.80, Bazaar Road, Saidapet, Madras. The revisionpetitioner would contend that originally he was paying rent atRs.450/-. There were originally proceedings which culminated bythe orders of the Apex Court, where the rent was fixed atRs.600/- p.m. and thereafter he undertook to make payment atRs.600/- p.m. The landlord tenant relationship is an admittedfact. Originally, the revision petitioner/tenant filedR.C.O.P.No.361 of 1998 for depositing all the rental arrears inCourt and there it was agreed by the parties that thepetitioner/tenant should make the payment directly and therespondent/landlord should also receive and pass on receipts.With that understanding the said R.C.O.P.No.361 of 1998 wasclosed. While the matter stood thus, the landlord filedR.C.O.P.No.406 of 2001 alleging there was willful default inmakinig payment of rental from October 2000 to January 2001 andthus he had committed willful default in payment of rental andthere was no tender at all. Under such circumstances,considering the willful default, he was liable to be evictedfrom the premises. The said petition was resisted to by therevision petitioner/tenant stating that from the month ofOctober 2000, for every month, he was making tender, but thesame was being evaded. Under such circumstances, there arose anecessity for sending it by money order and the money ordercoupons were returned "not found". While the matter stood thus,the landlord has rushed to the Court by filing R.C.O.P.No.406 of2001 on the ground of willful default, but it was not so andhence that petition was to be dismissed. While the firstR.C.O.P.No.406 of 2001 was pending in the Court, the tenantfiled R.C.O.P.No.1265 of 2003 for depositing the rents fromMarch 2003 to July 2003. That petition was also contested bystating that there was no need for making such a petition,pending the proceedings. Both the petitions were taken up forenquiry by the Rent Controller and on enquiry the petition madeby the landlord was allowed and eviction was ordered and theother petition filed by the tenant was dismissed. Aggrievedagainst those orders, two appeals were preferred by the tenant,which also met the same fate. Hence, the tenant brought forththe present Civil Revision Petitions before this Court.4. Advancing the arguments on behalf of the revisionpetitioner/tenant, the learned counsel would submit that in theinstant case, the whole case of the landlord was that there wasdefault in payment of rental from October 2000 to January 2001,for a period of four months. But, in respect of those fourmonths period, money order coupons were produced before the https://hcservices.ecourts.gov.in/hcservices/ Court which would clearly indicate that he has exercised morecare in sending the rent through money order. In the givencase, it is averred even in the counter clearly. The tenanthas been examined as R.W.1, wherein he has categorically statedthat rental amounts were tendered, but there was evasion on thepart of the landlord. Under such circumstances, he wascompelled to send it by money order and even the money ordercoupons are produced, which would clearly indicate "not found"and that would further indicate the evasion and thus there wasno default much less willful default. But even after observingthat those money order coupons were taken and they were perused,the Appellate Court has also affirmed the order of the RentController recording willful default which cannot be sustainedand in the instant case when there was a relationship betweenthe parties concerned, there was no other go except by sendingthe rents through money orders. It is true that there was anunderstanding between the parties concerned that payment must bemade directly in the earlier R.C.O.P.No.361 of 1998. But itdoes not mean that the rents should be tendered in person. Itcan also be made through money orders and it has been done, butevaded by the opposite party. Under such circumstances, thetenant cannot be found fault, thereby he either avoided orcommitted default, much less willful default. Under suchcircumstance, the petition seeking eviction should have beendismissed.5. Added further the counsel that when there was rentalpayment every month, when the matter is pending, there wasrefusal to receive the rents. There arose the necessity firstfor sending the rents through money order for a period of tenmonths. Since it was continuously refused, there arose thenecessity for filing R.C.O.P.No.1265 of 2003 for depositing therents from March 2003 to July 2003. Under such circumstances,the totality of the facts and circumstances of the case wouldclearly indicate that there was no default much less willfuldefault. As the tenant has taken all steps for making payment,when there was evasion on the part of the landlord, he could notbe blamed for any default on the part the tenant. In support ofhis contention, the learned counsel relied on the decision ofthe Apex Court in the case of Dr.Brahmanand vs. Kaushalya Deviand another reported in AIR 1977 Supreme Court 1198. 6. In answer to the above contentions, the learned counselfor the respondent would submit that both the authorities haveconcurrently found that there was willful default. It is truethat the period for which the default was committed was fromOctober 2000 to January 2001, for a period of four months. Inthe instant case, originally a petition was filed wherein it wasunderstood between the parties to the effect that monthly rental https://hcservices.ecourts.gov.in/hcservices/ must be paid directly. However, no direct payment was made ortendered. Sending the rents by money order by the tenant whenproceedings are pending is not the one of what is expected underthe provisions of the Act. When there was refusal or evasion,he should have immediately sent a notice and following the same,if the contentions of the notice are not followed, thereafter hecan send it by money order and even then if there was refusal,he can go before the Court. In the instant case, there was notender or refusal or evasion, but he has made payment withoutany notice, by money order. All the money order couponsproduced before the Court would clearly indicate that there wasno evasion at all as the authority below has not been satisfiedwith the same. There was no tender as expected of him earlier,which would indicate the indifferent attitude on the part of thetenant and it is also quite evident from the filingR.C.O.P.No.1265 of 2003 for depositing the rental pendingR.C.O.P.No.406 of 2001 for eviction. Added circumstances isthat even those amounts during the pendency of the proceedingsR.C.O.P., R.C.A. and also revision, have not been properly made.As such the contention that every month rent was tendered butrefused to be received cannot be accepted. If there was anyrefusal like that, it should have been brought to the notice ofthe Court immediately, but not so. Pending the proceedings, therents ought to have been paid to the credit of R.C.O.P andR.C.A by the tenant into the Court. Instead, the tenant hastaken another RCOP which is now pending in the lower Court. Thiswould go to show the indifferent and recalcitrant attitude onthe part of the tenant. Under such circumstances, the orders ofthe authorities below have got to be sustained.7. The Court paid the anxious consideration on thesubmissions made by the learned counsel on either side.8. The gist of the case of the landlord before the Courtsbelow was that there was willful default committed by the tenantfrom October 2000 to January 2001, for a period of four months.Ordinarily, in a given case one month rental arrears can beconstrued as willful default and the arrears of rent for numberof months can be construed as not willful. But thecircumstances have got to be taken into consideration indeciding whether a particular arrears made is willful or not.In the instant case, it is an admitted position that originallythe tenant filed R.C.O.P.No.361 of 1998, wherein it wasunderstood between the parties and also orders were passed tothe effect that thereafter the tenant must pay the rentaldirectly and thus it would make clear that thereafter it shouldhave been made directly. At this juncture, it is to be pointedout that thereafter rents have been paid directly and for theperiod from October 2000 to January 2001, according to the https://hcservices.ecourts.gov.in/hcservices/ tenant, he made tenders, but it was evaded and on that evasionhe sent it by money orders and they were all returned as "notfound". Now at this juncture, the procedure that has beenfollowed would clearly indicate the indifferent attitude on thepart of the tenant for more reasons than one. While it wasunderstood in the earlier R.C.O.P. for making payment directlyand it has been followed for number of months, there could notbe any impediment for making the payment directly from October2000 to January 2001. Consequently, if there was any evasion,the next step what is available under the provisions of the Actis to issue a notice there for, stating the reasons and if therewas any further refusal, then he could have brought to thenotice of the Court. In the instant case, though the tenant hasgiven evidence to the effect that the house of the parties arenearby, he would not have felt any difficulty in tendering itdirectly. But he has not done so and now sending it by way ofmoney order was not the one step expected for tendering thesame.9. Now the contention putforth by the learned counsel forthe revision petitioner is that the understanding that heshould make payment directly as found in the earlier order madein R.C.O.P.No.361 of 2001, does not mean that it was to be paidperson to person. That contention cannot be countenanced assuch. At that point of time there was no necessity for makingthe payment by way of money order in so far as the period fromOctober 2000 to January 2001, when earlier payment was madedirectly following the earlier order for number of months.Therefore the contention that there was tender, but it wasevaded and thereafter money orders were sent and it was alsoreturned as 'not found', cannot be factually or legallysustainable since as stated above it was not so. Therefore,under the circumstances, even for those four months rental, theCourt is of the considered opinion that it should be clearlytermed only as willful default. Added circumstances is thateven at the time of the pending proceedings in R.C.O.P.No.406 of2001, there was a payment at a time for 10 months' arrears inCourt, which has been acceded to by both the authorities below.Now the contention that every month payment was made but it wasrefused by other side cannot be accepted for the simple reasonthat when a case was brought forth before the Court on theground of willful default and when there was rental arrearstendered and if refusal was made, he could have produced all thefacts before the authority below and suitable orders would havebeen obtained, but not done so. Adding circumstances is thateven pending RCA and CRP, the amounts have not been paid.Therefore, it is quite clear that it has not been paidregularly. The crowning circumstance is that pending RCOP foreviction in R.C.O.P.No.406 of 2001, that too on the ground of https://hcservices.ecourts.gov.in/hcservices/ willful default, the tenant has gone to the extent of filingR.C.O.P.No.1265 of 2003 for depositing the arrears of rentalfrom March 2003 to July 2003. It would be quite evident thatpending proceedings in Court he made payment for some periodbefore the authority concerned, and for the rest of the period,he goes by way of another RCOP. All would go to show thedeliberate attitude on the part of the tenant in not making thepayment. It is needless to state that in a given case, theCourt has to take into consideration the subsequent conduct ofthe tenant in not making the payments regularly in a case ofwillful default. The settled position is that it has to beconstrued as willful default and the circumstances noticed bythe Court would clearly indicate the conduct of the tenant whichin the opinion of the Court is indifferent, evasive andrecalcitrant, which would suffice for sustaining the order ofeviction. Accordingly, it is sustained and both the CivilRevision Petitions are dismissed. No costs. Consequently,connected miscellaneous petitions are closed.10. Pending two Civil Revision Petitions, making deposit ofrental arrears by way of another RCOP cannot be countenanced.Under such circumstances, the said RCOP comes to an end by anorder of this Court for eviction. As a result, the said RCOPrequires an order of dismissal and accordingly, it is dismissed.11. At this juncture, the learned counsel for the revisionpetitioner would submit that the tenant is running a groceryshop for more than 5 decades and he has to find a suitableaccommodation to run his business and therefore sufficient timemay be granted. The Court heard the learned counsel for therespondent/landlord on the above submissions. Taking intoconsideration the facts and circumstances of the case, the Courtfeels that 9 months time has got to be given to vacate andhandover possession enabling the tenant to shift his place to asuitable accommodation and accordingly it is granted. He has tofile an affidavit of undertaking within a period of two weeks.Sd/Asst.Registrar/true copy/Sub Asst.Registrarrg https://hcservices.ecourts.gov.in/hcservices/ To1. VII Small Causes Court, Chennai2. XIV Court, Small Causes, Madras.+2ccs to M/s.A.V.Arun, Advocate Sr 42810+2ccs to Mr.T.Viswantha Rao, Advocate Sr 42354, 42353AKR (CO)km/7.8.C.R.P.NPD.Nos.1095 and 1096 of 2006