THE HONOURABLE MR v. A.K.Jambulinga Mudaliar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 26.12.2007CORAM:THE HONOURABLE MR.JUSTICE M.VENUGOPALC.R.P.(NPD).No.739 of 2004Nagarajan... PetitionerVs.A.K.Jambulinga Mudaliar... RespondentPrayer: Petition filed under Section 115 of the Code of CivilProcedure, against the judgment and decree dated 26.2.2004 made inRCA.No.18 of 1999 on the file of Subordinate Judge, Vellore,reversing the judgment and decree dated 27.7.1999 made in RCOPNo.36 of 1993 on the file of Rent Controller (Principal DistrictMunsif), Vellore.For Petitioner: Mrs.Emily VenkatesanFor Respondent: Mr.V.ChandrasekarO R D E RThe civil revision petitioner is the respondent/tenant inR.C.O.P.No.36 of 1993 on the file of the learned Rent Controller,Vellore.2.The civil revision petitioner/tenant is the respondent inR.C.A.No.18 of 1999 on the file of learned sub Judge, Vellore.3.The landlady, deceased Andalammal filed R.C.O.P.No.36 of1993 on the file of learned Rent Controller, Vellore under Section10(20(1) and 10(3)(a)(iii) under Tamil Nadu Buildings (Lease andRent Control) Act, 1960 (Tamil Nadu Act XVIII of 1960). The learnedRent Controller, Vellore in R.C.O.P.No.36 of 1993 while passingorders on 27.7.1999 has come to the conclusion that the civilrevision petitioner/tenant has not committed wilful defaultdeliberately and answered the said point in favour of the tenant.4.Before the learned Appellate Authority viz., the Sub Judge,Vellore, the deceased Andalammal preferred R.C.A.No.18 of 1999 asappellant and after her death, her legal heir, second appellant wasimpleaded as the appellant. https://hcservices.ecourts.gov.in/hcservices/

5.The learned Appellate Authority viz., Sub Judge, Vellore hasallowed the R.C.A.No.18 of 1999 on 26.02.2004 by setting aside theorder and decretal order of the learned Rent Controller, Velloreand allowed the RCOP petition on the ground of wilful default inpayment of rent and dismissed the RCOP petition in other respectsand granted three months time for eviction.6.According to the learned counsel for the civil revisionpetitioner, the learned Appellate Authority erred in coming to theconclusion that the civil revision petitioner/tenant committeddefault in payment of rent and that the learned Appellate Authorityviz., Sub Judge, Vellore also failed to notice that the usualpractice followed by the landlady was to collect the rents once ina while and as such, the question of wilful default does not arise.7.It is the further case of the civil revision petitioner thatentire arrears of rent were deposited soon after the receipt ofnotice, on the first hearing of the matter and that the landladycollect rents through her agent once in three months and the agentused to visit according to his convenience and there was no supineindifference in payment of rents.8.P.W.1 Thiru.Jambulingam, son of the deceased landladyTmt.Andalammal in his evidence has deposed that the civil revisionpetitioner/tenant was not proper in regard to the payment of rentand that there is a default in payment of monthly rent fromSeptember 1991 till the issuance of notice Ex.A.1 and Ex.A2 is theReply Notice and that for 10 months there is non payment of rent.P.W.1 Thiru.A.K.Jambulingam in his evidence has further stated thatthe civil revision petitioner/tenant paid in August 1993Rs.6,000/-, being the 20 months rent and the present month rent wasnot paid on 10th and that it was paid today.9.R.W.1 Thiru.Nagarajan (civil revision petitioner/tenant) inhis evidence has stated that he received the Ex.A.1-Notice and inthat notice it was stated that 10 months rent is due and that hegave reply notice and that he was not aware as to when he paid thelumpsum rent.10.Ex.A.1 is the legal notice dated 22.9.1992 issued on behalfof deceased landlady Andalammal addressed to the civil revisionpetitioner/tenant. In the said notice, it is specifically mentionedthat for about 25 years, the civil revision petitioner/tenant isoccupying the premises on an oral agreement, agreeing to payRs.350/- per month as rent payable by 10th of every succeedingEnglish calendar month and that he has committed default in paymentof rent for the past 10 months. In Ex.A.2-Reply Notice dated01.10.1992 issued on behalf of the revision petitioner/tenant, itis inter-alia mentioned that the present rent is Rs.300/- per monthand not Rs.350/- as alleged in the notice and that the landlady https://hcservices.ecourts.gov.in/hcservices/ Andalammal used to come personally collect the rent as and when shechooses and some times she may send word through her son or grandson to collect the rent and municipal taxes due and payable for theproperty was not paid by the landlady and occupier a notice wasissued to the civil revision petitioner/tenant and that the civilrevision petitioner/tenant sent word to the landlady to pay thetaxes due to Municipality.11.Ex.A.2-Reply Notice dated 01.10.1992 also states that on03.04.1992 the landlady sent word through her grand son Velmuruganto pay the rent for the month November 1991 and directed the civilrevision petitioner/tenant to keep the subsequent rents so that shewill come and received the same in lumpsum for payment of municipaltax to the site in occupation of the civil revisionpetitioner/tenant and other adjoining properties and that the civilrevision petitioner is prepared to pay the rent due and payablefrom 01.12.1991 till 30.09.1992 in all 10 months rent Rs.3000/- byway of demand draft etc. Ex.A.3 dated 11.10.1993 is the lawyersnotice issued by the deceaseed Andalammal addressed to the civilrevision petitioner/tenant. In this notice, it is categoricallymentioned that the monthly rent is Rs.300/- and the tenancy isagreeing to English Calendar. Ex.A.4 is the reply notice ofAdvocate issued on behalf of the civil revision petitioner/tenantaddressed to the deceased landlady's Advocate.12.It is to be noted that "Wilful Default has to decided onaccount of the conscious default of the tenant to pay rent withoutany discernible justification which the Rent Controller can acceptas taking away the element of Wilfulness". Admittedly, the term'Wilful Default' is employed by the statute with a clear purpose.13.In the decision 1973 TLNJ page 1 between Kesavan V. VincentPillai, it is observed that "however much the tenant has paid theamount subsequently the default committed by him cannot be cured".14.In 1984 (1) MLJ page 251 at special Page 252 (AssociatedTraders and Engineers Limited V. Alamelu Ammal), it is held that"the tenant deducted the amount spent for repairs carried outwithout consent from landlord amounts to wilful default".15.In 1987 (2) MLJ page 50 at special page 54 (Surajmal Sowcarand sons V. Arokia Mary), it is observed that "the tenant payingground rent and municipal tax will not enable him to claim title tothe superstructure – Denial not bona-fide and default is wilful".16.It is not out of place to point out that in 1995(1) MLJ 288(Seshachala Chettiar (decd.) and another V. Duraiammal) it is heldthat "it is not open to the tenant to set off a plea that thepractice was to pay only lump sum payments. Even if such a practice https://hcservices.ecourts.gov.in/hcservices/ is there, once a landlord issues a notice demanding arrears ofrent, then such practice would come to an end. Hence, the tenantnot paying for a period of six months held to be wilful".17.In 1996(2) L.W. 494 (G.R.Ragupathy V. Dr.K.Shankar, etc.)it is observed that "in a petition for eviction under Section 10(2)(i), the tenant raised a plea that the landlord agree to receive,or was in the habit of receiving lump sum rent, or once in a year.The High Court did not accept the plea and held that the same waswithout good faith and that the silence of the landlord wasexploited by the tenant. The conduct of the tenant will be veryrelevant in such cases".18.The arrears of rent is from 01.11.1991 till 20.09.1992, Inthe instant case on hand, rental receipts were not issued for thepayment of rents made by the civil revision petitioner/tenant. As amatter of fact, in Ex.A.2 reply notice dated 01.10.1992, it iscategorically stated that "my client is prepared to pay the rentsdue and payable from 01.12.1991 till 30.09.1992 for 10 monthsamounting to Rs.3000/- by way of Demand Draft."19.The specific stand of the civil revision petitioner/tenantis that Municipal taxes due and payable for the petition mentionedproperty by the deceased landlady Andalammal was not paid and thatoccupier notice was issued to the civil revision petitioner/tenantand that the civil revision petitioner/tenant sent word to thelandlady to pay the due taxes to the municipality and that on03.04.1992 the landlady sent word through her grandson Velmuruganto pay the rent for the month of November 1991 and directed thecivil revision petitioner/tenant to keep the subsequent rents sothat she will come and receive the same in lump sum for payment ofthe municipal tax to the site in occupation of the civil revisionpetitioner/tenant, etc. The grandson Velmurugan was not examined aswitness in the Rent Control Proceedings.20.The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960visualises a duty cast on the tenant to tender the rents. In theabsence of such a tender, the tenant is squarely held to havecommitted wilful default. It is pertinent to mention that irregularpayments or lump sum payments would only show that the tenant hascommitted wilful default as per decision 1994 (1) MLJ page 510(K.N.Gunalan V. C.Santhalingam).21.In 1983 (1) MLJ at page 52 special page 53 (Rajeswari V.Vasumai Lalchand), it is held that "subsequent payment is neithersufficient excuse nor can relieve the tenant from the charge ofWilful Default committed prior to filing eviction petition filedunder this Section". As far as the present case is concerned exceptthe Ipsi Dixi of R.W.1 Nagarajan that the grandson of landlady https://hcservices.ecourts.gov.in/hcservices/ Andalammal viz., Velmurugan and one Sathiyanarayana have receivedthe 4 months rent, there is no acceptable and satisfactory evidenceon the side of civil revision petitioner/tenant to indicate thatthe grandson Velmurugan and another Sathiyanarayana have receivedthe 4 months rent and as such, the plea of the civil revisionpetitioner/tenant that grandson Velmurugan used to collect rent onbehalf of the landlady deceased Andalammal is not accepted by thisCourt. In general, there cannot be any presumption as to thepayment of rent by a tenant and it is the duty of the tenant toprove payment, in the considered opinion of this Court. Even thepayment of municipal taxes due will not exonerate the tenant fromthe plea of wilful default. In that view, the plea of the civilrevision petitioner/tenant, the landlady deceased Andalammaldirected him to keep the subsequent rents so that she will come andreceive the lump sum for payment of municipal tax to the site inhis occupation is not accepted by this Court. Moreover, the paymentof tax voluntarily will not enable the tenant to plead adjustmentin the rents and it constitutes wilful default as per decision 1991(2) L.W. Page 203 at 205 (Mrs.Manoranjitham V. Mrs.T.G.Gangabai).It cannot be gainsaid that the civil revision petitioner/tenanthaving paid the arrears of rent after filing of the RCOP petitionand that he was also paying the monthly rents subsequently to therespondent/petitioner cannot enure to the benefit of the civilrevision petitioner/tenant, in the considered opinion of thisCourt.22.In view of the detailed discussions and on carefulexamination of available materials on record and in considerationof evidence on record and looking at from any angle, this Courtcomes to inescapable conclusion that the civil revisionpetitioner/tenant has committed wilful default in the instant casein regard to the payment of monthly rent for a period of 10 monthsin question and in that view of the matter, the civil revisionpetition fails and the same is hereby dismissed to preventaberration of justice. The order of the learned Appellate Authoritydated 26.02.2004 made in R.C.A.No.18 of 1999 is confirmed for thereasons subscribed in this revision. Three months time is grantedfor eviction from the date of receipt of a copy of this order.Considering the facts and circumstances of the case, the partiesare directed to bear their own costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Subordinate Judge, Vellore. 2.The Principal District Munsif, Vellore.one cc to Mr.T.R.Rajaraman, advocate SR.No.76144one cc to Mr.K.V.Anantha Krushnan, advocate SR.No.76111 C.R.P.(NPD).No.739 of 2004sky/11/1