IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.03.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(NPD).No.886 of 2004 V.Sulaiman ... Petitioner/Petitioner Vs. Azeezur Rahman ... Respondent/Respondent Prayer: Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the judgment and decree dated 30.01.2004 made in R.C.A.No.22 of 2002 on the file of Rent Control Appellate Authority, Sub-Court, Udhagamandalam reversing the judgment and decree dated 7.1.2002 and made in R.C.O.P.No.10 of 2001 on the file of District Munsif and Rent Controller, Udhagamandalam. For Petitioner : Mr.B.Ramamurthy For Respondent : Mr.Srinath Sridevan O R D E R The civil revision petitioner/respondent/tenant has filed the present revision petition aggrieved against the orders dated 30.01.2004 in R.C.A.No.22 of 2002 in R.C.O.P.No.10 of 2001 passed by the learned Appellate Authority viz., Sub Judge, Ootacamund. 2.The respondent/appellant/petitioner/landlord has filed a petition against the revision petitioner/respondent/ tenant under Section 10(2) (i) of the Tamil Nadu Buildings (Lease and Rent Control) act, 1960 for wilful default in payment of rent for the period from 01.11.2000 to 31.01.2001 and consequently seeking an order of eviction with a direction to vacate and hand over possession of the petition mentioned premises. 3.After contest the learned Rent Controller viz., learned District Munsif, Ootacamund passed orders in R.C.O.P.No.10 of 2001 on 07.01.2002 dismissing the petition holding that the revision petitioner/tenant has not committed wilful default in payment of rent. https://hcservices.ecourts.gov.in/hcservices/ 4.Aggrieved against the order passed by the learned Rent Controller viz., learned District Munsif, Ootacamund in R.C.O.P.No.10 of 2001, the respondent/appellant/landlord has filed an appeal R.C.A.No.22 of 2002 before the learned Appellate Authority viz., Sub Judge, Ootacamund. 5.The learned Appellate Authority viz., Sub Judge, Ootacamund on 30.01.2004 has allowed the R.C.A.No.22 of 2002 directed the revision petitioner/tenant to hand over vacant possession of the petition building within two months. 6.According to the learned counsel for the revision petitioner/respondent/tenant. The learned Appellate Authority has not taken into consideration of the fact that the revision petitioner/tenant has been paying the rent even without default, during the pendency of the rent control proceedings and that the revision petitioner/tenant has paid the entire arrears as per orders of Honourable Supreme Court at once when the same was brought to his notice which has not been taken note of by the learned Appellate Authority and that in the petition the reason for default has not been assigned and the order of the learned Appellate Authority is based on surmises and that the learned Appellate Authority has erred in passing unnecessary comments on the revision petitioner/tenant and the non consideration of Exs.B.8 and B.9 viz., the record slips pertaining to cheques is fatal to the proceedings and therefore prays for allowing the revision petition. 7.The further pleas of the revision petitioner/tenant are that the learned Appellate Authority erred in holding that the revision petitioner/tenant has not taken steps under Section 8(5) of the Act when in fact the rent was deposited in the proceedings without any delay and that the non consideration of the explanation furnished by the revision petitioner/tenant in regard to the return of cheques through messenger is in correct and that the Appellate Authority has erred in disbelieving the version of the revision petitioner/tenant to the effect that particulars of messenger who returned the cheques have not been furnished. 8.The respondent/landlord in his petition has averred that the revision petitioner/respondent is a tenant in respect of the petition demised premises and has committed default in payment of monthly rent from 01.11.2000 till January 2001 amounting to Rs.1,200/- and that the default is wilful, deliberate and wanton and that the revision petitioner/tenant is having the knowledge of the duty to pay the rent in every month etc. 9.Admittedly, the tenancy is in respect of a non residential building, occupied by the revision petitioner/tenant. https://hcservices.ecourts.gov.in/hcservices/ 10.The revision petitioner/tenant has taken the stand that the rent for the premises was Rs.45/- per month and that the landlord took the eviction proceedings on earlier occasion for alleged wilful default and in Civil Appeal No.8737 of 1995 before the Hon'ble Supreme Court, the revision petitioner/tenant succeeded but the rent was enhanced to Rs.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 a notice claiming wilful default of Rs.13,535/- and that the revision petitioner/tenant gave a suitable reply on 13.01.2000 and sent a demand draft of Rs.13,535/- being the rent at Rs.400/- per month after deducting the rent already paid at Rs.45/- per month till December 1999 and that the respondent/landlord has received the same. 11.The revision petitioner/tenant also pleads that he was paying the monthly rent at Rs.400/- by cheque of Indian Bank, Ootacamund and the same was received by the respondent/landlord and from 01.11.2000 the revision 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 towards rent from November 2000 to April 2001 and that the respondent/landlord received the cheques and the revision petitioner/tenant was under the bona fide belief that the cheques were encashed since the cheques were encashed earlier. 12.According to the learned counsel for the revision petitioner/tenant, the respondent/landlord has returned the cheques through messenger in May 2001 and that the respondent/landlord has played a trick on the revision petitioner/tenant to create a false cause of action and in any event, the revision petitioner/tenant has paid the entire amount of rent for 7 months amounting to Rs.2,800/- on the date of first hearing and hence, there is no default. 13.The respondent/landlord in his evidence as P.W.1 has deposed that the revision petitioner/tenant will send crossed cheque through post towards rent and that from November 2000 onwards he has not paid the monthly rent and it is in correct to state that the seven months rent was sent through cheques which was alleged to have been returned, thereafter through a messenger and after filing the earlier rent control petition, there is no talking relationship between him and the revision petitioner/tenant and because of that the revision petitioner/tenant sent the rent through post. 14.The respondent/landlord as P.W.1 in his cross examination has stated that the revision petitioner/tenant paid a sum of Rs.13,535/- towards rent till December 1999 and thereafter the revision petitioner/tenant is sending the monthly rent of Rs.400/- through Indian Bank cheque and that before filing of the petition he has not issued notice regarding the arrears of rent to the revision petitioner/tenant and 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 returned and thereafter a petition was filed with false reasons'. 15.R.W.1, the revision petitioner/tenant in his evidence has stated that after sending a draft of Rs.13,535/-, being the rent till December 1999 is sending the monthly rent to the respondent/landlord through cheques of Indian Bank, Ootacamund Branch and that the respondent/ landlord has received the rent till October 2000 through cheques and that he has paid the November 2000 rent through cheque on 19.10.2000 and that he has paid the December 2000 rent through cheque dated 10.01.2001 and similarly for January 2001 rent he paid the same through cheque on 10.02.2001 and for 2001 February rent, he has paid through cheque 10.03.2001 and for March 2001 rent, he has paid the same through cheque on 10.04.2001 and likewise monthly rent for April has been paid on 10.05.2001 through cheque and within 10 days from 10.05.2001 these six cheques were not encashed and the same was given to his son by the P.W.1/landlord and they are Exs.B.2 to B.7 and Exs.B.8 and B.9 are the record slips of cheques and that the respondent/landlord has not sent him notice prior to the filing of the rent control petition and that he has paid Rs.2,800/- on the date of first hearing to the respondent/landlord. 16.The learned counsel for the revision petitioner/ tenant contends that the respondent/landlord has received the cheques sent by the revision petitioner/tenant and that the revision petitioner was under the bona fide impression that the said cheques were encashed since the earlier cheques were encashed and in any event, there is no wilful default committed by the revision petitioner/tenant inasmuch as he has paid the seven months entire rent of Rs.2,800/- on the first hearing date of the petition. 17.In support of the proposition that there has been no default in the instant case the learned counsel for the revision petitioner/tenant cited 1999 (II) CTC 215 Sivanraj V. Essakkimuthu, wherein it is observed as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Section 7 & 10(2)(i) – Wilful default – Land Lord obtaining rental advance of more than one month rent – Advance amount exceeding one month rent is liable to be adjusted towards further rent due – Realising this, Land Lord sent excess advance amount to tenant by Bank draft – Tenant returned draft – Land lord is bound to adjust amount of advance towards rent due from tenant and in such situation, tenant cannot be held guilty of wilful default – No eviction can be ordered on ground of wilful default in payment of rent". 18.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 as follows: https://hcservices.ecourts.gov.in/hcservices/ "Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Section 10(2)(i) – Wilful default – Appellant has always made an effort at paying or tendering the rent – Delay or default, if any, attributable is bona fide and cannot be held to be wilful. Principal controversy centred around payment of rent for one month and the appellant to be on the safer side had tendered the amount with the written statement- Explanation to sub-section (2) to Section 10 of the Act enacts a rule of evidence – Landlord is not prevented from initiating proceedings for eviction on the ground of default under Section 10(2)(i) without serving a notice under the explanation, but it is for the landlord to make out a case of wilful default – Present case is not a case of the landlord- respondents having served a notice of demand on the appellant and therefore the question of holding the appellant wilful defaulter by reference to the explanation does not arise". 19.The learned counsel for the revision petitioner relied on yet another 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 default accompanied by a particular state of mind which cannot be directly proved but has to be inferred from the entire complex of circumstances. Though the fact that the tenant put forward a false explanation may not contribute per se a justification for an inference that the default was wilful, it is certainly a relevant circumstance to decide whether the default is wilful or not. It is ordinarily for the tenant to explain why he delayed payment of rent and if the explanation is false it is at least one 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 the default on the landlord would virtually defeat the provisions enabling eviction on this ground. A prior eviction petition years ago on the ground of default which was compromised upon an undertaking by the tenant to pay enhanced rent, cannot be a basis to draw an inference that a subsequent default was wilful". 20.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 as follows: "It is not in dispute that immediately after the landlord filed the eviction petition, the tenant deposited the entire rents which 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 his bona fides in the accumulation of the rent for 11 months at the time of the filing of the eviction petition as well as the maa fide intention of the lanlord. It was held in Basappa V. Jumnadoss (1979) 1 M.L.J. 317, that though a practice of the tenant paying rent once in two months and the landlord receiving the same without demur cannot be pleaded so as to escape a petition for eviction on the ground of wilful default, yet that particular circumstances in a particular case can certainly be a ground for the tenant to set up a case that there was no wilful or contumacious conduct on his part to avoid the payment of rent. In this case, there was absolutely no contumacious conduct or supine indifference on the part of the tenant in the payment of the rent. It is the landlord who had been refusing to receive the rent with the mala fide intention of finding out a ground for unreasonably evicting the tenant. Therefore, the nonpayment of rent by the tenant in this case cannot be deemed as wilful default in the payment, of rent. In Ramaswamy Pathar V. Thiagaraja Chettiar (19830 1 M.L.J. 114, it was held that where the landlord allowed the rents to get accumulated and received in lump sum whenever needed and filed eviction petition after sending a sudden lawyer notice, having kept quiet for 16 months even though the landlord was occupying a shop of his own very near the demised building, there was no wilful default on the part of the tenant, since the tenant paid the entire rent after receipt of notice. It is only to curb unreasonable eviction of tenants by greedy landlords that the Rent Control Act has been enacted by the Legislature. Therefore, if the landlords are allowed to evict tenants by refusing to receive the rent even after they were sent by money order for setting up a plea of wilful default in the payment of rent, such intendment of the enactment will automatically get defeated. In Komalm Ammal v. Ashoka Cycle and Motor Company (1980) 1 M.L.J. 194, it was held that where the landlady had agreed to receive the rents in a lump sum and when the entire arrears were paid immediately after receipt of notice of eviction, when the landlady was living only in the upstairs of the demised premises, the delay in the payment of rent cannot be construed as wilful default. On the above sound principles laid down in the several judicial decisions, it has to be held in this case that there is absolutely no sort of wilful default on the part of the tenant". 21.According to the learned counsel for the respondent/ landlord that the revision petitioner/tenant has committed default in payment of monthly rent for the period from 01.11.2000 to 31.01.2001 amounting to Rs.1,200/- in all and therefore, the revision petitioner/tenant is liable 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 – Wilful default during pendency of eviction proceedings – Though eviction proceedings relates to wilful default for subsequent period – Conduct of tenant not paying rent during pendency of proceeding can also be taken into account to determination whether tenant committed wilful default". 22.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 (18 of 1960), Section 10(2)(i) – Wilful Default – Tenant alleging that landlord refused to receive rent and that he was forced to deposit rent in Court – Courts below ordered eviction holding that conduct of tenant amounted to wilful default and that tenant did not prove that landlord refused to receive rent and that even deposits were not made as and when due – Held, tenant should meticulously follow procedure enumerated under Section 8 to deposit rent – Tenant is not entitled to benefits under Act if he does not follow procedure to deposit rent". 23.On the side of respondent/landlord reliance is placed on the decision 2000-1-L.W.474 Majestic Leather ware V. Govind Chetty, whereby and whereunder it is observed as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act, (18 of 1960), S.10(2)(i) and S.25 – Wilful default – Statutory obligation on the part of tenant to pay rent every month punctually – Effect of default – Circumstances and conduct of tenant in not being in the habit of paying rent on the due date, can make out that the default is wilful. Act does not require notice to be given before filing eviction petition. Plea by tenant of refusal to receive by landlord – Remedy open to tenant not availed of – Effect". 24.To rebut the plea of there is no cause of action, the learned counsel for the respondent/landlord invited the attention of this Court to 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 on agreement dated 22.1.1992 – Defendant who is owner of suit property filing written statement denying execution of agreement dated 22.1.1992 – Defendant filing application in 1997 seeking permission to file counter claim for declaring agreement dated 22.1.1992 void and that plaintiff had trespassed into suit property on 21.7.1997 and sought recovery https://hcservices.ecourts.gov.in/hcservices/ of possession – Application for such permission was rejected by trial Court – Period of limitation of three years was barred in 1997 as agreement was dated 22.1.1992 – Alleged trespass came into being on 21.7.1997 long after written statement was filed and hence counter claim in regard to recovery of possession not maintainable – Counter claim in respect of one relief is barred by limitation and another relief is not maintainable as cause of action arose after filing of written statement – Cause of action in existence as on date of filing written statement alone can be subject matter of counter claim – Civil revision petition dismissed and permission sough cannot be granted". 25.The learned counsel for the respondent/landlord contends in the case on had that the revision petitioner/ tenant has not resorted to the remedy 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 give notice – If landlord gives notice claiming arrears of rent he has to wait for 2 months, and in that event only, failure to pay after expiry of months will constitute wilful default – Landlord need not prove anything else to establish wilful default. If the landlord refused to receive rent and he demanded enhanced rent, tenant should have issued notice as contemplated under S.8 and deposited the Rent before Rent Controller. Rent is payable as and when due and it is obligation of tenant to pay the rent and in case of failure to pay, he is a defaulter – Mere fact that tenant has deposited arrears of rent in a Civil Court will not amount to a valid tender. Failure of tenant in not resorting to S.8 and his filing suit for injunction and depositing 6 months rent after 6 months, that too at Rs.300/- per month (when rent and amenities payable is Rs.650/-) per month – Conduct, held, is nothing but wilful default". 26.On the plea that the burden is on the revision petitioner/tenant to establish that he has not committed wilful default, the learned counsel for the respondent/ landlord cited 2000-1-L.W.600 S.Subramania Pillai V. D.Thenmohan, wherein it is laid down as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act, (18 of 1960), Ss.10(2)(i) and S.25, and Evidence Act, S.114 – Wilful default – When landlord alleges that rent has not been paid it is for tenant to prove that he has paid it, and he has discharged his statutory obligations – Mere swearing by tenant that he has paid rent is not sufficient – Burden is on him to substantiate the same – Merely because tenant happens to be https://hcservices.ecourts.gov.in/hcservices/ advocate, authorities below have twisted the law against the landlord. Failure by tenant to produce diary or pass book given to him by landlord wherein entries are made as and when rent is paid – Person in possession of best evidence ought to produce it whether it is demanded or not – Presumption drawn under S.114". 27.As per the Rent Control Act statute, it is the primordial duty of the tenant to pay the rent regularly every month without excepting the landlord to demand the same from the tenant. As matter of fact, the tenant is not to commit any default in this regard. In fact, the settled law 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 'it should be so conspicuous to reasonable man that the tenants attitude was nothing but supine in difference and that the purposive evasiveness resulting in his recalcitrance. 28.It is useful to refer to the decision 1987 TLNJ page 125 at 130 Lakshmi Bai V. Gita Bai Natwarlal and Another, wherein it is observed that 'while ordering eviction on the ground of wilful default, the total and cumulative effect of all the circumstances should be taken into account and not any particular feature in isolation, to decide whether the default is wilful or mere default'. 29.The tenure of the decision in 1985 AIR Supreme Court at page 585 is to the effect that mere proof of default may not necessarily lead to an inference of wilful default. However, whether the default is deliberate or otherwise is a matter to be arrived at on the facts and circumstances of a particular case. 30.In (1996) 2 MLJ 579 Abdul Amid V. M.Sultan Abdul Kadar, it is held that 'when the tenant pays the entire arrears of rent, as on date of the petition along with the counter statement on the very first hearing of the case it will not amount to wilful default'. 31.It cannot be gainsaid that the aspect of depositing the arrears of rent at the first hearing of the case whether it will amount to wilful default or not will certainly depend on the facts of each case and certainly the explanation projected by the tenant necessarily has to be taken into consideration in solving the question. 32.In 1999-1-M.L.J. 401 Eswara Rao.T. V. N.W.Ansari, it is contended that the tenant deposited the rent at the first hearing and that therefore, the default cannot be construed as wilful. It is also held in the above decision that such deposit has to be construed along with other factors to decide whether the default is wilful or not. In the above decision it is held as follows: https://hcservices.ecourts.gov.in/hcservices/ "Merely because tenant deposits arrears of rent on first date of hearing, it cannot be said that landlord cannot sustain petition for eviction if it is otherwise established that the tenant has committed wilful default in payment of rent". 33.In (2001) 1 C.T.C. Pandian.K.S. V. G.Rukmani Bai, it is observed that 'when once the eviction petition had been filed, there is no question of landlord losing his right to pursue the same notwithstanding the fact whether the tenant had deposited or was willing to deposit the arrears of rent at the first hearing of the petition'. 34.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 after the petition is filed without offering satisfactory explanation for the non payment cannot be accepted by way of defence'. 35.In 1994 (1) M.L.J. at page 516 at page 518 Karra Kondamma V.