V.Sulaiman v. Azeezur Rahman

Aggrieved against the order passed by the learned Rent Controllerviz., learned District Munsif, Ootacamund in R.C.O.P.No.10 of 2001, therespondent/appellant/landlord has filed an appeal R.C.A.No.22 of 2002before the learned Appellate Authority viz., Sub Judge, Ootacamund.

The learned Appellate Authority viz., Sub Judge, Ootacamund on30.01.2004 has allowed the R.C.A.No.22 of 2002 directed the revisionpetitioner/tenant to hand over vacant possession of the petitionbuilding within two months.

According to the learned counsel for the revisionpetitioner/respondent/tenant. The learned Appellate Authority has nottaken into consideration of the fact that the revision petitioner/tenanthas been paying the rent even without default, during the pendency ofthe rent control proceedings and that the revision petitioner/tenant haspaid the entire arrears as per orders of Honourable Supreme Court atonce when the same was brought to his notice which has not been takennote of by the learned Appellate Authority and that in the petition thereason for default has not been assigned and the order of the learnedAppellate Authority is based on surmises and that the learned AppellateAuthority has erred in passing unnecessary comments on the revisionpetitioner/tenant and the non consideration of Exs.B.8 and B.9 viz., therecord slips pertaining to cheques is fatal to the proceedings andtherefore prays for allowing the revision petition.

The further pleas of the revision petitioner/tenant are that thelearned Appellate Authority erred in holding that the revisionpetitioner/tenant has not taken steps under Section 8(5) of the Act whenin fact the rent was deposited in the proceedings without any delay andthat the non consideration of the explanation furnished by the revisionpetitioner/tenant in regard to the return of cheques through messengeris in correct and that the Appellate Authority has erred in disbelievingthe version of the revision petitioner/tenant to the effect thatparticulars of messenger who returned the cheques have not beenfurnished.

The respondent/landlord in his petition has averred that therevision petitioner/respondent is a tenant in respect of the petitiondemised premises and has committed default in payment of monthly rentfrom 01.11.2000 till January 2001 amounting to Rs.1,200/- and that thedefault is wilful, deliberate and wanton and that the revisionpetitioner/tenant is having the knowledge of the duty to pay the rent inevery month etc.

Admittedly, the tenancy is in respect of a non residentialbuilding, occupied by the revision petitioner/tenant. https://hcservices.ecourts.gov.in/hcservices/

The revision petitioner/tenant has taken the stand that the rentfor the premises was Rs.45/- per month and that the landlord took theeviction proceedings on earlier occasion for alleged wilful default andin Civil Appeal No.8737 of 1995 before the Hon'ble Supreme Court, therevision petitioner/tenant succeeded but the rent was enhanced toRs.400/- per month by mutual consent from 01.11.1996 as per orders of Hon'ble Supreme Court and on 06.01.2000 the respondent/landlord sent anotice claiming wilful default of Rs.13,535/- and that the revisionpetitioner/tenant gave a suitable reply on 13.01.2000 and sent a demanddraft of Rs.13,535/- being the rent at Rs.400/- per month afterdeducting the rent already paid at Rs.45/- per month till December 1999and that the respondent/landlord has received the same.

The revision petitioner/tenant also pleads that he was payingthe monthly rent at Rs.400/- by cheque of Indian Bank, Ootacamund andthe same was received by the respondent/landlord and from 01.11.2000 therevision petitioner/tenant has paid cheques dated 19.12.2000,10.01.2001, 10.02.2001, 10.03.2001, 10.04.2001 and 10.05.2001 towardsrent from November 2000 to April 2001 and that the respondent/landlordreceived the cheques and the revision petitioner/tenant was under thebona fide belief that the cheques were encashed since the cheques wereencashed earlier.

According to the learned counsel for the revisionpetitioner/tenant, the respondent/landlord has returned the chequesthrough messenger in May 2001 and that the respondent/landlord hasplayed a trick on the revision petitioner/tenant to create a false causeof action and in any event, the revision petitioner/tenant has paid theentire amount of rent for 7 months amounting to Rs.2,800/- on the dateof first hearing and hence, there is no default.

The respondent/landlord in his evidence as P.W.1 has deposedthat the revision petitioner/tenant will send crossed cheque throughpost towards rent and that from November 2000 onwards he has not paidthe monthly rent and it is in correct to state that the seven monthsrent was sent through cheques which was alleged to have been returned, thereafter through a messenger and after filing the earlier rent controlpetition, there is no talking relationship between him and the revisionpetitioner/tenant and because of that the revision petitioner/tenantsent the rent through post.

The respondent/landlord as P.W.1 in his cross examination hasstated that the revision petitioner/tenant paid a sum of Rs.13,535/-towards rent till December 1999 and thereafter the revisionpetitioner/tenant is sending the monthly rent of Rs.400/- through IndianBank cheque and that before filing of the petition he has not issuednotice regarding the arrears of rent to the revision petitioner/tenantand it is wrong to state that 'the revision petitioner/tenant has sent https://hcservices.ecourts.gov.in/hcservices/ the monthly rent through cheque and that was not encashed and returnedand thereafter a petition was filed with false reasons'.

R.W.1, the revision petitioner/tenant in his evidence has statedthat after sending a draft of Rs.13,535/-, being the rent till December1999 is sending the monthly rent to the respondent/landlord throughcheques of Indian Bank, Ootacamund Branch and that the respondent/landlord has received the rent till October 2000 through cheques andthat he has paid the November 2000 rent through cheque on 19.10.2000 andthat he has paid the December 2000 rent through cheque dated 10.01.2001and similarly for January 2001 rent he paid the same through cheque on10.02.2001 and for 2001 February rent, he has paid through cheque10.03.2001 and for March 2001 rent, he has paid the same through chequeon 10.04.2001 and likewise monthly rent for April has been paid on10.05.2001 through cheque and within 10 days from 10.05.2001 these sixcheques were not encashed and the same was given to his son by theP.W.1/landlord and they are Exs.B.2 to B.7 and Exs.B.8 and B.9 are therecord slips of cheques and that the respondent/landlord has not senthim notice prior to the filing of the rent control petition and that hehas paid Rs.2,800/- on the date of first hearing to therespondent/landlord.

The learned counsel for the revision petitioner/ tenant contendsthat the respondent/landlord has received the cheques sent by therevision petitioner/tenant and that the revision petitioner was underthe bona fide impression that the said cheques were encashed since theearlier cheques were encashed and in any event, there is no wilfuldefault committed by the revision petitioner/tenant inasmuch as he haspaid the seven months entire rent of Rs.2,800/- on the first hearingdate of the petition.

In support of the proposition that there has been no default inthe instant case the learned counsel for the revision petitioner/tenantcited 1999 (II) CTC 215 Sivanraj V. Essakkimuthu, wherein it is observedas follows: "Tamil Nadu Buildings (Lease and Rent Control) Act, 1960,Section 7 & 10(2)(i) – Wilful default – Land Lord obtainingrental advance of more than one month rent – Advance amountexceeding one month rent is liable to be adjusted towardsfurther rent due – Realising this, Land Lord sent excessadvance amount to tenant by Bank draft – Tenant returned draft– Land lord is bound to adjust amount of advance towards rentdue from tenant and in such situation, tenant cannot be heldguilty of wilful default – No eviction can be ordered onground of wilful default in payment of rent".

He also relied on 2003-4-L.W.-671, 672 P.M.Punnoose V.K.M.Munneruddin and others wherein the Hon'ble Supreme Court has held asfollows: https://hcservices.ecourts.gov.in/hcservices/ "Tamil Nadu Buildings (Lease and Rent Control) Act, 1960,Section 10(2)(i) – Wilful default – Appellant has always madean effort at paying or tendering the rent – Delay or default, if any, attributable is bona fide and cannot be held to bewilful. Principal controversy centred around payment of rent forone month and the appellant to be on the safer side hadtendered the amount with the written statement- Explanation tosub-section (2) to Section 10 of the Act enacts a rule ofevidence – Landlord is not prevented from initiatingproceedings for eviction on the ground of default under Section 10(2)(i) without serving a notice under theexplanation, but it is for the landlord to make out a case ofwilful default – Present case is not a case of the landlord-respondents having served a notice of demand on the appellantand therefore the question of holding the appellant wilfuldefaulter by reference to the explanation does not arise".

The learned counsel for the revision petitioner relied on yetanother decision 1963 (2) M.L.J. Short Notes 43, 44 Ramachandran V.Kumaraswamy, wherein it is held as follows: "Madras Buildings (Lease and Rent Control) Act (XVIII of 1960),section to 10(2)- Wilful default. Wilful default or intentional default is a defaultaccompanied by a particular state of mind which cannot bedirectly proved but has to be inferred from the entire complexof circumstances. Though the fact that the tenant put forward afalse explanation may not contribute per se a justification foran inference that the default was wilful, it is certainly arelevant circumstance to decide whether the default is wilfulor not. It is ordinarily for the tenant to explain why he delayedpayment of rent and if the explanation is false it is at leastone circumstance which could be considered, along with others, in arriving at the conclusion whether the default was wilful, or not. Throwing the burden of proof of the wilfulness of thedefault on the landlord would virtually defeat the provisionsenabling eviction on this ground. A prior eviction petitionyears ago on the ground of default which was compromised uponan undertaking by the tenant to pay enhanced rent, cannot be abasis to draw an inference that a subsequent default waswilful".

Attention of this Court is also drawn to the decision 1984 (II)M.L.J. Page 121 at page 124, K.Raju V. Gilford Hilkish V. it is held asfollows: "It is not in dispute that immediately after the landlord filedthe eviction petition, the tenant deposited the entire rentswhich had not been received by the landlord and in fact refused https://hcservices.ecourts.gov.in/hcservices/ to be received by the landlord. Thus the tenant has proved hisbona fides in the accumulation of the rent for 11 months at thetime of the filing of the eviction petition as well as the maafide intention of the lanlord. It was held in Basappa V.Jumnadoss (1979) 1 M.L.J. 317, that though a practice of thetenant paying rent once in two months and the landlordreceiving the same without demur cannot be pleaded so as toescape a petition for eviction on the ground of wilful default, yet that particular circumstances in a particular case cancertainly be a ground for the tenant to set up a case thatthere was no wilful or contumacious conduct on his part toavoid the payment of rent.

According to the learned counsel for the respondent/ landlordthat the revision petitioner/tenant has committed default in payment ofmonthly rent for the period from 01.11.2000 to 31.01.2001 amounting toRs.1,200/- in all and therefore, the revision petitioner/tenant isliable to be evicted from the petition premises. The learned counsel for https://hcservices.ecourts.gov.in/hcservices/ the respondent/landlord relied on 2007(2) CTC 127 V.Kannadasan V.K.Swaminatha Pathar (died) and others, whereunder it is held as follows: "Words and Pharases – Wilful default – Meaning of – Wilfuldefault during pendency of eviction proceedings – Thougheviction proceedings relates to wilful default for subsequentperiod – Conduct of tenant not paying rent during pendency ofproceeding can also be taken into account to determinationwhether tenant committed wilful default".

He also pressed into service 2007 (2) CTC 472 J.V.Bhoopalan V.Rajamanickammal and others, wherein it is laid down as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (18of 1960), Section 10(2)(i) – Wilful Default – Tenant allegingthat landlord refused to receive rent and that he was forcedto deposit rent in Court – Courts below ordered evictionholding that conduct of tenant amounted to wilful default andthat tenant did not prove that landlord refused to receiverent and that even deposits were not made as and when due –Held, tenant should meticulously follow procedure enumeratedunder Section 8 to deposit rent – Tenant is not entitled tobenefits under Act if he does not follow procedure to depositrent".

On the side of respondent/landlord reliance is placed on thedecision 2000-1-L.W.474 Majestic Leather ware V. Govind Chetty, wherebyand whereunder it is observed as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act, (18 of1960), S.10(2)(i) and S.25 – Wilful default – Statutoryobligation on the part of tenant to pay rent every monthpunctually – Effect of default – Circumstances and conduct oftenant in not being in the habit of paying rent on the duedate, can make out that the default is wilful. Act does not require notice to be given before filingeviction petition. Plea by tenant of refusal to receive by landlord – Remedyopen to tenant not availed of – Effect".

To rebut the plea of there is no cause of action, the learnedcounsel for the respondent/landlord invited the attention of this Courtto the decision 1999 (III) CTC 577 Ramalatchumi Ammal V. T.Jeevanatham, wherein it is held as follows: "Code of Civil Procedure, 1908, Order 8 Rule 6A – Counter claim– Plaintiff filing suit for specific performance based onagreement dated 22.1.1992 – Defendant who is owner of suitproperty filing written statement denying execution ofagreement dated 22.1.1992 – Defendant filing application in1997 seeking permission to file counter claim for declaringagreement dated 22.1.1992 void and that plaintiff hadtrespassed into suit property on 21.7.1997 and sought recovery https://hcservices.ecourts.gov.in/hcservices/ of possession – Application for such permission was rejected bytrial Court – Period of limitation of three years was barred in1997 as agreement was dated 22.1.1992 – Alleged trespass cameinto being on 21.7.1997 long after written statement was filedand hence counter claim in regard to recovery of possession notmaintainable – Counter claim in respect of one relief is barredby limitation and another relief is not maintainable as causeof action arose after filing of written statement – Cause ofaction in existence as on date of filing written statementalone can be subject matter of counter claim – Civil revisionpetition dismissed and permission sough cannot be granted".

The learned counsel for the respondent/landlord contends in thecase on had that the revision petitioner/ tenant has not resorted to theremedy under Section 8 of Tamil Nadu Buildings (Lease and Rent Control)Act, (18 of 1960) and cited 2001-3-L.W.792 N.Janakiraman V.C.B.Radhakrishnan, wherein it is held as follows: "It is not required under S.10 that landlord should givenotice – If landlord gives notice claiming arrears of rent hehas to wait for 2 months, and in that event only, failure topay after expiry of months will constitute wilful default –Landlord need not prove anything else to establish wilfuldefault. If the landlord refused to receive rent and he demandedenhanced rent, tenant should have issued notice ascontemplated under S.8 and deposited the Rent before RentController. Rent is payable as and when due and it is obligation oftenant to pay the rent and in case of failure to pay, he is adefaulter – Mere fact that tenant has deposited arrears ofrent in a Civil Court will not amount to a valid tender. Failure of tenant in not resorting to S.8 and his filingsuit for injunction and depositing 6 months rent after 6months, that too at Rs.300/- per month (when rent andamenities payable is Rs.650/-) per month – Conduct, held, isnothing but wilful default".

On the plea that the burden is on the revision petitioner/tenantto establish that he has not committed wilful default, the learnedcounsel for the respondent/ landlord cited 2000-1-L.W.600 S.SubramaniaPillai V. D.Thenmohan, wherein it is laid down as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act, (18 of1960), Ss.10(2)(i) and S.25, and Evidence Act, S.114 – Wilfuldefault – When landlord alleges that rent has not been paid itis for tenant to prove that he has paid it, and he hasdischarged his statutory obligations – Mere swearing by tenantthat he has paid rent is not sufficient – Burden is on him tosubstantiate the same – Merely because tenant happens to be https://hcservices.ecourts.gov.in/hcservices/ advocate, authorities below have twisted the law against thelandlord. Failure by tenant to produce diary or pass book given tohim by landlord wherein entries are made as and when rent ispaid – Person in possession of best evidence ought to produceit whether it is demanded or not – Presumption drawn underS.114".

As per the Rent Control Act statute, it is the primordial dutyof the tenant to pay the rent regularly every month without exceptingthe landlord to demand the same from the tenant. As matter of fact, thetenant is not to commit any default in this regard. In fact, the settledlaw is that the landlord need not demand rent from the tenant. In 1979(I) M.L.J. at page 317 at 318 Pasappa V. Jamnadas, it is held that 'itshould be so conspicuous to reasonable man that the tenants attitude wasnothing but supine in difference and that the purposive evasivenessresulting in his recalcitrance.

It is useful to refer to the decision 1987 TLNJ page 125 at 130Lakshmi Bai V. Gita Bai Natwarlal and Another, wherein it is observedthat 'while ordering eviction on the ground of wilful default, the totaland cumulative effect of all the circumstances should be taken intoaccount and not any particular feature in isolation, to decide whetherthe default is wilful or mere default'.

The tenure of the decision in 1985 AIR Supreme Court at page 585is to the effect that mere proof of default may not necessarily lead toan inference of wilful default. However, whether the default isdeliberate or otherwise is a matter to be arrived at on the facts andcircumstances of a particular case.

In (1996) 2 MLJ 579 Abdul Amid V. M.Sultan Abdul Kadar, it isheld that 'when the tenant pays the entire arrears of rent, as on dateof the petition along with the counter statement on the very firsthearing of the case it will not amount to wilful default'.

It cannot be gainsaid that the aspect of depositing the arrearsof rent at the first hearing of the case whether it will amount towilful default or not will certainly depend on the facts of each caseand certainly the explanation projected by the tenant necessarily has tobe taken into consideration in solving the question.

In 1999-1-M.L.J. 401 Eswara Rao.T. V. N.W.Ansari, it iscontended that the tenant deposited the rent at the first hearing andthat therefore, the default cannot be construed as wilful. It is alsoheld in the above decision that such deposit has to be construed alongwith other factors to decide whether the default is wilful or not. Inthe above decision it is held as follows: https://hcservices.ecourts.gov.in/hcservices/ "Merely because tenant deposits arrears of rent on first dateof hearing, it cannot be said that landlord cannot sustainpetition for eviction if it is otherwise established that thetenant has committed wilful default in payment of rent".

In (2001) 1 C.T.C. Pandian.K.S. V. G.Rukmani Bai, it is observedthat 'when once the eviction petition had been filed, there is noquestion of landlord losing his right to pursue the same notwithstandingthe fact whether the tenant had deposited or was willing to deposit thearrears of rent at the first hearing of the petition'.

In Nilgiris Co-operative Marketing Society, etc. V. C.T.Uthandi,(1998) 2 M.L.J. at page 745, it is held that 'mere payment of rent afterthe petition is filed without offering satisfactory explanation for thenon payment cannot be accepted by way of defence'.

In 1994 (1) M.L.J. at page 516 at page 518 Karra Kondamma V.Karra Nagamma, it is observed that 'discretion of the rent controller tocondone the delay in payment of arrears of rent by the tenant is muchwider than when a notice issued in accordance with the explanation to Sec. 10(2) of the Act and that the discretion to condone the delay inpayment of arrears has to be exercised by the Rent Controller and the Appellate Authority specified under the Act'.36.In AIR 1985 Supreme Court 582 S.Sundaram Pillai V.V.R.Pattabiraman at page 589, it is observed as follows: "Before, however, going into this question further, let usfind out the real meaning and content of the word 'wilful' orthe words 'wilful default'. In the book 'A Dictionary of Law'by L.B.Curzon, at page 361 the words 'wilful' and wilfuldefault' have been defined thus:'Wilful' – Deliberate conduct of a person who is a freeagent, knows what he is doing and intends to do what he isdoing.'Wilful default' – Either a consciousness of negligenceor breach of duty, or a recklessness in the performance of aduty.

In 1976 T.L.N.J. at page 72 Thaiyalnayagi Ammal and others V.Ayyamma Chettiar, it is inter alia observed that 'In this case, when the landlord refused to receive the rentswhich was sent by the tenant by money order, the tenant thoughtthat in order to preserve her bonafides she could deposit therents in a Post Office, clearly demonstrating that she was atall times ready and willing to pay the rents to the landlord, and that she had to deposit the same in the Post Office SavingBank Account on account of recalcitrance of the landlord. Forfrom proving any willingness to avoid the obligation to pay https://hcservices.ecourts.gov.in/hcservices/ rent, the course adopted by the tenant establishes herbonafides. No doubt, she did not adopt the procedure prescribedunder Section 8(2) of the Act. As already stated, this is onlyoptional and not mandatory. In these circumstances, I am unableto agree with the appellate authority that this is a case wherethe tenant should be deemed to have committed wilful default inthe payment or tendering of the rents. Far from it, the tenant, in my view, has respected law and her obligation, by depositingmonthly rents in a Post Office, thus proving that she was atall times willing to pay the rents to the landlord. As has beenalready observed on many occasions, in situations like this, unless an element of indifference, which is wanton anddeliberate besides being designed, is provable and proved inthe attitude of the tenant, it cannot be said that all defaultsmade in the payment of rent are to be automaticallycharacterised as wilful defaults. I do not agree with thefinding of the appellate Court, in which a materialirregularity is patent, that the petitioner tenant hascommitted wilful default in the payment of rent".

In 1999 T.L.N.J. at page 56 R.Srinivasan V. V.Thangaraju and Another, it is observed as follows: "Tamil Nadu Buildings (Lease and Rent Control Act, 1960 asamended) – S.10(2)(i) – Tenant – Rent tendered regularly –Unjustified refusal by Landlord – Amount deposited in Bank –Eviction Petition filed – Tenant withdraws amount deposited –Paid in Court – Action not wilful default".

In 1989-1-L.W. at page 155 at 156 Durgai Ammal V. R.T.Mani, itis held that "We find that the finding of the Appellate Authority that thetenant committed wilful default in payment of rent is wrong andhence that finding has to be set aside. S.8 provides that incase the landlord refuses to receive rent tendered by thetenant the tenant can call upon the landlord to name a bankwhere he can deposit it and if he fails to do so the tenant cansend it by money order and if even that money order is notreceived, the tenant can deposit the rent before the RentController. But it is nowhere stated that if the tenant doesnot do so it will amount to wilful default. When a landlordrefuses to receive the rent sent by the tenant it is his fault. He cannot subsequently say that the tenant has not exercisedhis right given under S.8, and, therefore, he must be taken tohave committed wilful default. Similarly, if the tenant has notdeposited the rent before the Rent Controller in case of bonafide doubt as to the person who is entitled to receive the rentand the person concerned does not help to remove the doubt ofthe tenant, the tenant cannot be said to have committed wilfuldefault in payment of rent". https://hcservices.ecourts.gov.in/hcservices/

In 80 L.W. at page 27 S.Chinnaswami Chettiar V. Syed Gurukkal, it is held as follows: "With regard to 'wilful default', there appears to be afrequent misconception that this means malicious default, ordefault, with the intention to deprive the landlord of hisrent. But that is not the law; the tenant cannot evade hisobligation in law to pay rent month by month, because thelandlord accepted payments of accumulated rent, whenever thelandlord came. The landlord cannot be penalised for acceptingsuch payments of rent as the tenant chose to make for thesimple reason that, otherwise, the landlord would not getsatisfaction even to this extent. That does not imply anywaiver or estoppel. The factor of 'wilful default' will includeany gross indifference to the obligation imposed by the law onthe tenant under a monthly tenancy. It is only where thedefault has occurred, though the tenant was bona fide andattempting to fulfil his obligations. Owing to cause entirelybeyond the tenant's control, that the tenant could be held nothave committed 'wilful default".

In 1985 T.L.N.J. at page 178 at 180 K.Mohideen Sahib V. TheodoreSamuvel, it is inter alia observed that"... In view of the fact that the petitioner had sent the rentby money order and that the same was refused by the landlordrepeatedly and in view of the fact that he has issued a noticecalling upon the respondent to specify the name of the Bankinto which the rent has to be deposited and immediately afterreceipt of the notice, he deposited the entire arrears, itcannot be said that the petitioner has committed wilful defaultin payment of rent. Both the Courts below have not properlyappreciated the principles enunciated by Their Lordships in thelatest Supreme Court case to the facts of the instant case andthe same has resulted in the order of eviction. For the reasonsalready set out I am of the view that the order of evictionpassed by the authorities below is not sustainable and isliable to be set aside. In the result, the revision is allowed. The order of both the authorities below is set aside and theeviction petition is dismissed".

In 1995 (II) CTC 540 V.Krishna Mudaliar V. Lakshmi Ammal, the Hon'ble Supreme Court has observed as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act, 1960,Section 10(2)(i) – Wilful Default in payment of rent – Tenantinducted into premises by predecessor in title of Landlord –Landlord filing suit for declaration and ejectment againsttenant alleging that tenant surrendered possession of premisesto him and later on trespassed into property – Suit dismissedas also appeal – Landlord demanding arrears of rent from date https://hcservices.ecourts.gov.in/hcservices/ of purchase by issue of notice – Tenant sending reply statingthat Landlord refused to accept him as tenant and accept renttill ejectment suit was dismissed by Civil Court – Tenantdepositing entire arrears of rent before Rent Controller afterejectment application filed by Landlord – Non payment of rentis not wilful and tenant cannot be evicted".

As far as the present case is concerned, the learned AppellateAuthority viz., learned District Munsif, Ootacamund in the orders dated07.01.2002 in R.C.O.P.No.10 of 2001 has observed that "as per Exs.B.2 toB.7-Cheques the revision petitioner/tenant has remitted the monthly rentto the respondent/landlord without default". It is also the furtherconclusion of the learned Rent Controller that "inasmuch as the revisionpetitioner/tenant has paid the 7 months arrears of rent amounting ofRs.2,800/- in Court to the respondent/landlord and thereafter, since therevision petitioner/tenant has paid every month to therespondent/landlord without default, there cannot be any wilful defaultin payment of rent has alleged by the respondent/landlord.

However, the learned Appellate Authority in his orders dated30.01.2004 in R.C.A.No.22 of 2002 has stated that "the learned RentController has not assigned reasons in regard to the plea of therespondent/landlord that Exs.B.2 to B.7-Cheques were filled up on asingle day and the same was presented by the revision petitioner/tenant".

Moreover, the learned Appellate Authority in paragraph 18 of hisorder has observed that Exs.B.2 to B.7-Cheques are self createddocuments and they cannot be linked with the respondent/landlord. Thelearned Appellate Authority in his order has also stated that eventhough the revision petitioner/tenant has known about the non encashmentof cheques by the respondent/landlord if he had been diligent then hewould have lodged a complaint in the Police Station in this regard andfurther in its absence shows his callousness and negligence.

The learned Appellate Authority has also stated that therevision petitioner/tenant could have atleast issued a notice and takenfurther action as per Section 8(5) of the Act. Furthermore, he has alsoopined that the revision petitioner/tenant has filled up the cheque bookand there is no connection between the cheques and the respondent/landlord even as a conduit pipe and therefore, only an attempt has beenmade by the revision petitioner/tenant in this regard.

It is to be pointed out that in regard to the alleged nonencashment of cheques by the respondent/landlord there is no hard andfast rule that a police compliant should be lodged or the same isnecessary, in the considered opinion of this Court. https://hcservices.ecourts.gov.in/hcservices/

It cannot be lost sight of the fact that till October 2000, themonthly rent which was sent through cheque by the revisionpetitioner/tenant was received by the respondent/landlord. Therespondent/landlord as P.W.1 in his evidence has specifically statedthat after filing of the rent control petition, there is no talkingrelationship between him and the revision petitioner/tenant.

In the instant case on hand, it is quite evident that there is ahonest misunderstanding between the revision petitioner/tenant and therespondent/landlord. As a matter of fact, the discussion by the learnedAppellate Authority in regard to the conduct of the revisionpetitioner/tenant is not only unnecessary but also not germane to theissue on hand. It is relevant to point out that Section 8 of the TamilNadu Buildings (Lease and Rent Control) Act, 1960 is only an enablingprovision and at best it is only an optional and not a mandatory one. Therefore, not taking to recourse under Section 8 of the Act by therevision petitioner/tenant in the case on hand, on the facts andcircumstances does not amount to wilful default, in the consideredopinion of this Court. Moreover, the respondent/ landlord has receivedthe monthly rent sent through cheques till October 2000 and therefore, the version of the revision petitioner/tenant that he was under theimpression that the respondent/landlord will encash the cheques sent byhim towards rent is certainly a bona fide and genuine reason, in theconsidered opinion of this Court.

However, there is no convincing proof in this case in regard tothe return of 6 cheques by the respondent/ landlord to the revisionpetitioner/tenant. No doubt, the revision petitioner/tenant is under anobligation to pay the monthly rent to the respondent/landlord withoutany default. In the case before us, the revision petitioner/tenant hasbeen in the habit of sending monthly rent through cheques till October2000 and therefore, the sending of cheques by the revisionpetitioner/tenant can only be ascribed as a bona fide attempt to fulfilhis obligations and sooner or later when six cheques were returned, nottaking steps by the revision petitioner/tenant cannot be construed to bean action of supine indifference in regard to the payment of monthlyrent by him, in the considered of this Court. In fact, therespondent/landlord has accepted the cheques sent by the revisionpetitioner/tenant till October 2000 without any demur, which factor willcertainly weigh in favour of the revision petitioner/tenant, though aplea is taken by the revision petitioner/tenant that therespondent/landlord is interested to vacate the revisionpetitioner/tenant from the demised premises.

As far as the present case is concerned, the revisionpetitioner/tenant has paid a sum of Rs.2,800/- being the seven monthsarrears of rent on the first hearing date of the rent control petitionon 12.06.2001 through his counsel to the respondent/landlord's counsel https://hcservices.ecourts.gov.in/hcservices/ and thereafter, every month rent has been paid by the revisionpetitioner/tenant to the respondent/landlord's counsel till the disposalof the petition. The payment of arrears of seven months rent amountingto Rs.2,800/- in Court is payment to the respondent/landlord directly, which will certainly absolve the tenant of his obligation and his act inthis regard does not amount to wilful default, in the considered opinionof this Court. In fact, the sending of cheques by the revisionpetitioner/tenant and the same alleged to be returned by therespondent/landlord cannot render the act of tenant guilty of wilfuldefault. Though on the side of revision petitioner/tenant a plea istaken that no notice was issued under Section 10 of Tamil Nadu Buildings(Lease and Rent Control) Act, 1960, it is made clear that no such priornotice is required to be given by the respondent/landlord as per law.

In the light of the detailed discussions mentioned supra and onconsideration of available materials and evidence on record and takingnote of the fact that the revision petitioner/tenant has paid thearrears of 7 months rent amounting to Rs.2,800/- on the date of firsthearing of rent control petition before the learned Rent Controller, this Court inevitably comes to the conclusion that the civil revisionpetitioner/tenant is discharged from his liability of wilful default andin that view of the matter, allows the Civil Revision Petition topromote substantial cause of justice. Resultantly, the order passed bythe learned Appellate Authority viz., learned Sub Judge, Ootacamund inR.C.A.No.22 of 2002 dated 30.01.2004 is hereby set aside. The orderpassed by the learned Rent Controller viz., learned District Munsif, Ootacamund in R.C.O.P.No.10 of 2001 dated 07.01.2002 is confirmed forthe reasons assigned in this revision. Considering the facts andcircumstances of the case, the parties are directed to bear their owncosts. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarsglTo1.The Rent Contoller The District Munsif Court, Ootacamund. https://hcservices.ecourts.gov.in/hcservices/

The Rent Control Appellate Authority The Sub Judge, Ootacamund.

The Section Officer,V.R.Section, High Court, MadrasC.R.P.(NPD).No.886 of 2004 ASM(CO)RVL 20.03.2008