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Khivraj Chordia Vs. G. Maniklal Bhattad - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 857 of 1964
Judge
Reported inAIR1966Mad67
ActsMadras Buildings (Lease and Rent Control) Act, 1960 - Sections 25; Code of Civil Procedure (CPC), 1908 - Sections 13(3) and 115; Patiala and East Punjab States Union Urban Rent Restriction Ordinance; Rent Restriction Act - 15(5); ;Delhi and Ajmer Rent control Act - Sections 34 and 35
AppellantKhivraj Chordia
RespondentG. Maniklal Bhattad
Cases ReferredIn Shajehan Saheb v. Yakub Khan Saheb
Excerpt:
madras buildings (lease and rent control) act (xviii of 1960), section 25--revision section--powers of high court to interfere with questions of fact--section compared with section 115, civil procedure code (act v of 1908) regarding similar powers--wilful default--what is ; a landlord filed an eviction petition against his tenant on the ground, among others, that the tenant had committed wilful default in the payment of rent for eighteen months from march 1961 to september 1962. during the enquiry the default was restricted to only one month, namely, march 1961. the tenant assent the rent for march 1961 by money order on 9th may 1961, on the alleged refusal of the landlord to receive the same when the tenant tendered it in person.; the rent controller held that the tenant was guilty of.....(1) the tenant has preferred this revision petition under s. 25 of the madras buildings (lease and rent control) act of 1960 (hereinafter referred to as the act). the respondent who is the landlord filed a petition for the eviction of the tenant on the ground that the tenant was guilty of wilful default in the payment of rent for 18 months from march 1961 to september 1962, that the respondent required the premises, which is a car shed, for his own use and occupation to keep his car, which he had been garaging in a rented shed and that the tenant, having taken the premises as a car shed for garaging his car, was putting it to a different use, storing his goods for umbrella business. both the rent controller as well as the appellate authority held that the landlord had not made out a case.....
Judgment:
(1) The tenant has preferred this revision petition under S. 25 of the Madras Buildings (Lease and Rent Control) Act of 1960 (hereinafter referred to as the Act). The respondent who is the landlord filed a petition for the eviction of the tenant on the ground that the tenant was guilty of wilful default in the payment of rent for 18 months from March 1961 to September 1962, that the respondent required the premises, which is a car shed, for his own use and occupation to keep his car, which he had been garaging in a rented shed and that the tenant, having taken the premises as a car shed for garaging his car, was putting it to a different use, storing his goods for umbrella business. Both the Rent Controller as well as the appellate authority held that the landlord had not made out a case for evicting the tenant on the two later grounds. They concurrently held that the property was not leased for the express purpose of being used as a garage, that the tenant had been using the premises for his business purposes only, that the landlord did not require the premises for garaging his car, as the latter had several garages of his own and that, as a matter of fact, certain garages belonging to the landlord, had become vacant and were available for his use, but yet he did not make use of any of them which had fallen vacant. On the question of wilful default, both the Rent Controller as well as the appellate authority decided against the tenant and ordered eviction; this is the only question that survives for decision in the revision petition.

(2) The Rent Controller found that the tenant was guilty of wilful default in the payment of rent for the month of March 1961, and ordered eviction. It may be mentioned that the rent for the month of March 1961 must have been paid by 30-4-1961, and the rent was sent on 9-5-1961, by money order and it was returned, evidently because the landlord declined to receive it, with the result the delay was less than two weeks. On appeal, the appellate authority took the view that the tenant was guilty of wilful default in the payment of rent not only for the month of March 1961, but for subsequent months also. Learned counsel for the petitioner (tenant), at the outset, contended that the appellate authority ought not to have considered the question of wilful default for the subsequent months and should have confined itself to the question of default in the payment of rent for the month of March 1961. He urged that even though in the petition the landlord relied upon the default in the payment of rent for 18 months from March 1961 to September 1962, in the course of the enquiry and the arguments before the Rent Controller, the parties confined and restricted themselves to the question of wilful default in the payment of rent for the month of March 1961 alone. In this connection, learned counsel drew my attention to the evidence adduced on both sides as well as to the discussion of the question in the order of the Rent Controller. He also contended that because the appellate authority had exceeded its jurisdiction and acted with material irregularity in embarking upon the investigation of an aspect which was really not in issue between the parties and the parties therefore did not focus their attention and adduce evidence touching that question, the petitioner has raised this objection in the forefront in the memo of revision petition filed in this court. There is considerable force in this contention, and I am satisfied that the parties confined and restricted themselves to the question of wilful default in the payment of rent for the month of March 1961 only, and that the Rent Controller, therefore, deliberately did not express any opinion regarding the alleged default in the payment of rent for months following.

I am unable to accept the contention of learned counsel for the respondent that because the point framed by the Rent Controller included the question of default for the later months also, the appellate authority would have jurisdiction to consider the broader question as well. I have no doubt whatsoever that if counsel for the landlord and the tenant had argued and stressed the point as to wilful default in the payment for the later months, surely the Rent Controller would have made some reference to that argument and also given his findings thereon in his order. But in more places than one, the Rent controller discusses and gives his finding only with regard to wilful default in the payment of rent for the month of March 1961. The matter was put thus by the Rent Controller;

"From Ex. B.2 series it is clear that the rents for the months of March and April 1961 were sent by M. O. To the petitioner only in May 1961. So there was default in payment of rent for the month of March 1961. There is no satisfactory explanation for the default in the payment of rent for March 1961. It is also significant to note that the respondent had sent Rs. 90 towards the rent of March and April 1961, at the rate of Rs. 45 per month, though there is no evidence to show that the petitioner wanted enhanced rent of Rs. 45 as against the rent or Rs. 20-62 per month. On the evidence on records, I hold that there was wilful default on the part of the respondent in payment of the rent for March 1961. The respondent is, therefore, liable to be evicted on the ground of wilful default in payment of rent for March 1961."

In the face of this finding it is futile to argue that the parties were at issue on the wider question of default in the payment of rent for the later months also. The trend of the evidence adduced by the parties also confirms this view. The result, therefore, is that the finding of the appellate authority on the question of default in the payment of rent for the months of April 1961 to September 1962, cannot be accepted and has to be set aside.

(3) I shall now take up the question of default in the payment of rent for March 1961. The findings of the courts below are wrong and cannot be sustained as they have failed to apply their mind to the crucial question arising for decision, and have further misdirected themselves in their perspective of approach. Learned counsel for the respondent urged that the question whether the tenant is guilty of wilful default in the payment of rent is essentially a question of fact, and that when there was evidence adduced before the Rent Controller, which evidence had been accepted both by the Rent Controller and the appellate authority, I should not interfere with the finding in revision under S. 25 of the Act. He drew my attention to some of the decisions of this court and the decisions of the Supreme Court in House Rent Control legislations of other States which have dealt with the limitations of the powers of revision of the High Court or the District Court when dealing with revisions against orders of the appellate authority. It is unnecessary to refer to those decisions in detail as the principles are well settled. The power of revision under S. 25 of the Act is conferred expressly for the purpose of enabling the court of revision to satisfy itself "as to the legality or regularity or propriety of the order passed in the proceeding and also pass such orders in reference thereto as the court may think fit"

As the Supreme Court has pointed out in Moti Ram v. Suraj Bhan, , (a case arising under the East Punjab Urban Rent

Restriction Act of 1949) the power of revision is in striking contrast to the High Court's power of revision under S. 115 C. P. C. The power conferred under the Rent Control Act is not confined to mere questions of jurisdiction or mere irregularities committed by the Rent Control Authorities, but the powers are much wider. At the same time, it must be borne in mind that the power of revision cannot be equated with the appellate jurisdiction empowering the court of revision to interfere with decisions on plain questions of fact. The terms "legality, regularity and propriety" are well understood terms denoting well recognised grounds of judicial interference by the courts of revision. These words are undoubtedly wide enough to cover both questions of law and questions of fact, where the authority has overlooked an important piece of evidence or its reasonings and findings are based upon erroneous assumptions, or it failed to consider the scope of the requirement of a particular statutory provision. It is not possible to formulate or classify the circumstances under which the court of revision can exercise its powers to interfere on questions of fact.

It will be seen that the Supreme Court in , affirmed the decision of the High Court reversing the concurrent findings reached by the Rent Control authorities, as the latter had misdirected themselves in the consideration of the crucial question. The Supreme Court put the matter thus at p. 658:

"There is one more point which remains to be considered. Mr. Bindra has argued that the High Court was in error in coming to its own conclusion as to whether the requirement of S. 13(3) (a) (iii) has been satisfied. As we have already pointed out, the finding of the Rent Controller and the appellate authority was that the claim made by respondent 1 that the required the shop for the purpose of reconstruction was not bona fide. The High Court has reversed this conclusion and Mr. Bindra challenges the correctness or the propriety of the said conclusion. The revisional power conferred upon the High Court under S. 15(5) is wider than that conferred by S. 115 C. P. C. Under S. 15(5) the High Court has jurisdiction to examine the legality or propriety of the order under revision and that would clearly justify the examination of the propriety or the legality of the finding made by the authorities in the present case about the requirement of the landlord under S. 13(3) (a) (iii)."

Learned counsel for the respondent relied upon the following observations of Rajagopala Aiyangar J. In C. R. P. 1420 of 1954, (Mad) extracted by Rajamannar C. J. in Sasivarna Thevar v. Ponnu, 1957-1 Mad LJ 158:

"The only proper way of defining the relative jurisdiction of the appellate and revisional authorities constituted under the Madras Buildings (Lease and Rent Control) Act, is to hold that while and appellate authority is entitled to examine every question of fact and law dealt with in, or arising out of, an order of the Rent Controller, a revisional authority, while undoubtedly can interfere with questions of law, where the Rent Control Act or any provision has been misconstrued, cannot normally interfere with finding of facts unless (a) there were no other materials on which such a finding could be based; or (b) the finding has been reached by a consideration of irrelevant or inadmissible matter; or (c) it is so perverse that no reasonable person could have reached that conclusion; or (d) the finding has been reached by an erroneous understanding of the law applicable to the matter. To hold that a revisional authority could interfere with findings of fact of an appellate authority without regard to these limitations would be to convert a revision into a regular appeal and to obliterate the distinction between appeals and revisions which the Act has taken care to provide."

It will be seen that even the judgment states that the court of revision will not ordinarily interfere with the findings of fact. But if it satisfies the conditions of S. 25 as indicated in the judgment of the Supreme Court referred to earlier, this court will have certainly jurisdiction, though in one sense the question may be a question of fact. In this connection reference may be also made to a recent judgment of the Supreme Court in Meta Ram v. Jiwan Lal, which arose under Patiala and East Punjab States

Union Urban Rent Restriction Ordinance. The following observations at p. 502 lend support to the view that the court of revision will have power to interfere with the concurrent findings, if they are found to be erroneous:

"The two Tribunals below had gone into the matter thoroughly, and had agreed that the landlord had neither the means to reconstruct the building nor had be made any attempt to face cross-examination as a party. They were also of the opinion that the building was in a good state and did not need to be pulled down or reconstructed. With such clear findings, one would expect that a revising court, however wide its powers may be, would at least, go into the question over again, if it was going to depart from this unanimous conclusion. It is hardly necessary to go into the question of the extent of the powers of the High Court Under S. 15(5) of the Rent Restriction Act. They have been adverted to in the ruling of this court, above mentioned. They do not, however, include the power to reverse concurrent findings, without showing how these findings are erroneous."

In a later case in Hari Shankar v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698, dealing with Delhi and Ajmer Rent control Act, the Supreme Court has pointed out that under S. 35 of that Act, wider powers have been conferred upon the High Court while exercising its revision in striking contrast to the limited jurisdiction under S. 115 C. P. C. The Court observed as follows:

"But the question that arises in the appeal is one deeper than a mere appraisal of the evidence. It is whether the High Court in the exercise of its revisional power is entitled to reassess the value of the evidence and to substitute its own conclusions of fact in place of those reached by the court below. This question requires an examination of the powers of revision conferred on the High Court by S. 35 of the Act. That section is one of common occurrence in Acts dealing with some special kinds of rights and remedies to enforce them Section 35 is undoubtedly worded in general terms, but it does not create a right to have the case reheard, as was supposed by the learned judge. Section 35 follows S. 34; but the second sub-section of that section says that no second appeal shall lie.

The distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Civil Procedure Code. The power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case has been decided according to law. Under S. 115 C. P. Code, the High Court's powers are limited to see whether in a case decided, there has been assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of the jurisdiction. The right, there, is confined to jurisdiction and jurisdiction alone. In other Acts, the power is not so limited, and the High Court is enabled to call for the record of a case to satisfy itself that the decision therein is according to law and to pass such orders in relation to the case, as it thinks fit.

"The phrase "according to law" refers to the decision as a whole, and is not be equated to error of law or of fact simpliciter. It refers to the overall decision, which must be according to law which it would not be, if there is a miscarriage of justice due to a mistake of law. The section is thus framed to confer larger powers than the powers to correct error of jurisdiction to which S. 115 is limited. But it must not be overlooked that the section in spite of its apparent width of language where it confers a power on the High Court to pass such orders as the High Court may think fit is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is "according to law". It stands to reason that if it was considered necessary that there should be a rehearing, a right of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal."

(4) The reasoning contained in these observations may not apply in all its force to the powers of revision conferred under S. 25, where the words are not "according to law" but "legality, regularity or propriety". I am therefore, unable to agree with the contention of the learned counsel for the respondent that under S. 25 of the Act, the High court will have no jurisdiction to interfere with a finding of fact, whatever may be the circumstances and however erroneous it may be, Section 25 cannot be equated to S. 100 C. P. C. I prefer to adopt the following test indicated by Raghava Rao J. in Govindarajulu Chetti v. Balasundara Naicker, 1953-1 Mad LJ (SN) 33, where the learned judge has put the matter thus, at p. 34:

"If an order can be held to be improper on the evidence on record the High Court will be doing the right thing in setting aside the order of the court below. If the improbabilities, which induced the court below to reject the positive evidence where to be eschewed or excluded from consideration and there is no further ground exigible from the expressed reasoning of the court below or from the rest of the record to justify the order passed by it, the High Court can interfere in revision."

The same view has been taken in Kanchana Keshava Rao v. Kosuri Subbaraju, 1956 Andh WR 85: (AIR 1957 Andh Pra 55).

(5) I shall now consider whether the tenant is guilty of wilful default in the payment of rent for the month of March 1961, especially when he has sent the rent by money order within ten days, which was refused by the landlord. Whether default in the payment or rent by a tenant is wilful or not is a mixed question of fact and law, and a finding has to be arrived at on the facts coupled with the legal inference drawn from the facts. (Vide Vemuri Ethirajamma v. Raghavulu Setti, 1956 Andh WR 1079). There is no presumption that every default is a wilful default, and it is only if it is proved that the default to pay rent was wilful that the tenant can be evicted. (Vide Muthukumaraswami Chettiar v. Sri Pathaleswarar Devasthanam, 1955-1 Mad LJ (SN) 54).

(6) Before I proceed further, it is necessary to refer to the note of warning and the statement of law contained in the decision of Rajagopala Aiyangar J. in Kuppuswami Iyear v. Harinarayanachari, 69 Mad LW 72. In that case the petition for eviction was filed on the 18th of May 1963 on the ground that the tenant had not paid the rent for two months. But the tenant appeared before the Rent Controller and paid the arrears. The District Judge in revision held that the mere fact that, the delay was only a short period of two months was not sufficient to hold that there had been no wilful default, and that the tenant had not made out any reasons or circumstances which would prevent the default being considered wilful. In emphasising the significance of the amendment of 1951, requiring wilful default in the payment of rent, as a necessary condition for eviction, the learned Judge put the matter thus:

"I shall approach the order of the District Judge in the light of these principles. The question whether the default is wilful involves the determination of the state of mind of the tenant and is thus primarily a question of fact. Of course, this has to be gathered from the circumstances as no direct evidence is possible in regard to this matter. But in considering it one has to take note of the fact that the condition that the default in the payment of rent should be "wilful" has been introduced by way of amendment in the place of a provision which permitted eviction on mere default. Therefore, if there are circumstances from which it can be gathered that there was really no intention deliberately to withhold the payment, I am of opinion that there cannot be any wilful default which is necessary to constitute a ground for eviction under the Act as now amended. In other words, the distinction has to be drawn between mere failure to pay and a wilful default in payment. If any other construction were adopted it would be tantamount to saying that the amendment effected by Act VIII of 1951 has not achieved any purpose."

(7) In the present case there were materials before the court in the shape of the evidence of the tenant's illness as well as the alertness with which he paid the rent immediately the notice went to him which though not conclusive was certainly evidence negativing "wilfulness" in the default. If, there were materials on which the conclusion of the Rent Controller could be based and that finding was not disturbed by the appellate authority, I hold that the learned District Judge was not justified in setting aside that order.

(8) The decisions of this court have repeatedly pointed out that there is a clear difference in law between default and wilful default and that non-payment of rent within the time specified by the Act, though would amount to default, cannot by itself be treated as wilful default, and that if the rent was paid after the expiry of the time in the following month within a short time thereafter, the default cannot be said to be wilful to warrant the punishment of eviction. In Rangaraju v. Parthsarathi, 1964-1 Mad LJ 12, Venkatadri J. Observed that to hold that a tenant is guilty of wilful default in the payment of arrears of rent it must be proved beyond doubt that he had exhibited supine indifference and callousness, that a delay of a few days will not amount to wilful default and that the fact that the tenant put forward a false defence at the time of the hearing of the petition would not be sufficient to hold the default wilful.

The learned Judge has again taken the same view in a latter decision in Mahabool Bibi v. Ambrose, 1964-1 Mad LJ 260 emphasising the distinction between default and wilful default observing that there should be proof of supine indifference and carelessness on the part of the tenant in the payment of rent and that a short delay would not make the default wilful. In Ramachandran v. Kumaraswamy, 76 Mad LW 569, the same view has been taken by Anantanarayanan J. where the rent which should have been paid by the end of August 1958, was paid only on the 27th September 1958 (a delay of 27 days) along with the rent for the month of August. The learned Judge, applying the principle of the decision of Rajagopala Aiyangar J. referred to earlier, observed that wilful default was a state of mind or intention which must be inferred from the totality of circumstances and that mere default by itself would not amount to wilful default. In Shajehan Saheb v. Yakub Khan Saheb, 1962-1 Andh WR 205, the petition for eviction was filed on the ground of arrears of rent for two months. The tenant deposited the arrears into court and it was held that the delay of two months by itself would not make out wilful default.

(9) Keeping in mind the main object of the enactment, namely prevention of unreasonable eviction of tenants, the principle that emerges from the several decisions is that for default to be regarded as wilful default, the conduct of the tenant should be such as to lead to the inference that his omission was a conscious violation of his obligation to pay the rent or reckless indifference. If the default was due to accident or inadvertence or erroneous of false sense of security based upon the conduct of the landlord himself, the default cannot be said to be wilful default. It is not possible to lay down any hard and fast rule applicable to all cases. But the basic and essential distinction between mere default and wilful default should be borne in mind and the totality and cumulative effect of all the circumstances should be taken into account and not any particular feature of the case in isolation. In certain cases the prior conduct of the tenant consisting of chronic defaults taken along with a totally false and reckless plea of discharge or any other wholly untenable plea may amount to wilful default. But at the same time, certain pleas raised by the tenant, but negatived by the court on assessment of the evidence adduced by the landlord and the tenant, may constituted proof of bona fides on the part of the tenant, as to rule out any theory of wilful default.

In my opinion, so long as the defence version or explanation of the tenant as to why there was delay in the payment of rent has not been ruled out or rejected as utterly worthless or wholly false, and if his case was one which required consideration in the hands of the court involving and necessitating a proper appraisal of the evidence adduced on both sides, in such a setting of the case, it must be held that the default would not be wilful default. In cases, where the evidence mainly consists of the interested testimony of the landlord and the tenant on either side, the court should not lightly and readily prefer the evidence of one party to the other ignoring the probabilities of the case and the prior conduct and actings of the parties.

(10) In the instant case, the petitioner became a tenant in 1942, and was paying a monthly rent of Rs. 15 but some years later it was enhanced to Rs. 20-62 per month. The tenant's case was that in March 1961 the landlord wanted an increase in the rent at Rs. 45 per month which was agreed to by the tenant, that the tenant had gone on a pilgrimage for two months thereafter and returned in the first week of May, that when a sum of Rs. 90 was tendered to the landlord representing the rent for March and April, at the rate of Rs. 45 per month, the same was refused and that thereupon the said sum of Rs. 90 was sent by money order on 9-5-1961, which again was not accepted by the landlord. In June 1961, the tenant wanted the landlord to specify the Bank to deposit the monthly rent. The money order coupons which have been marked as Ex. B.2 series, contain the statement of the tenant's case. On the other hand, the case of the landlord was that there was no such agreement whatsoever for enhancement of rent, nor any tender of the sum of Rs. 90 was made as contended by the tenant. On the question of wilful default, the landlord was examined on his side, while the tenant's agent was examined on the side of the tenant.

It is common ground that the landlord is a very rich person and a big financier. The Rent Controller after discussion of the rival versions of the parties regarding the agreement of March 1961 for enhanced rent and the tender of Rs. 90 rejected the case of the tenant and ordered eviction without pausing to consider whether the default was wilful. The ultimate conclusion of the Rent Controller has already been extracted earlier in this judgment, from which it would be clear that he has made no effort to focus his mind on the distinction between default and wilful default and whether the instant case satisfied and tests pointed out in the several decisions referred to earlier. The approach of the appellate authority is even worse. In paragraph 6 of its judgment it merely discusses the truth of the rival versions regarding the agreement of March 1961 for enhanced rent and the tender of Rs. 90. There is no discussion on the question of wilful default, but it merely affirms the decision of the Rent Controller. In winding up the discussion in paragraph 6, this is what it has stated.

"Similarly, the evidence of R. W. 1 that he contacted the respondent herein in May 1961 for paying rent of April 1961 and that the petitioner claimed enhanced rent of Rs. 60 is not reliable. The learned Rent Controller has discussed in detail with regard to this aspect in para 4 of the order and given a finding to the effect that there was wilful default in the payment of rent for March 1961. I find no sufficient grounds to interfere with the finding."

(11) The result therefore is that we are thrown back upon the reasonings and the conclusion of the Rent Controller. The record also shows that from May 1961 the tenant has been making every conceivable effort to pay the rent to the landlord, but the latter was creating every obstacle. Several money orders were refused, attempts on the part of the tenant to know the bank in which he could deposit the rents proved futile, and when a sum or Rs. 371-16 was sent to the landlord, by money order representing the rents for March 1961 on 31-8-1962, that was also refused by the landlord. The following are the endorsements in the money order coupons, Ex. R-2 series.

9-5-1961: (1) I have been your tenant in godown at Rs. 26-10-0 for the past 18 years. You have been receiving rent once in 2 or 3 months and not every month. In March 1961 you demanded a rent of Rs. 45 per month and I agreed to pay the same. I went on pilgrimage and returned only a few days ago. I have been informed that rent of Rs. 45 for March and April was tendered to you and you evaded to receive the same. Yesterday I sent Rs. 90 being rent due by you evaded to receive the same. So I have sent by M. O.

June 1961: (2) I regret to note that you refused to receive the rent sent by money order. I am sending herewith Rs. 45 being the rent for May 1961. If you refuse to receive the same, I will deposit the same in bank. I call upon you to specify a bank in which I may deposit the monthly rent to your credit. In default of your doing so I will deduct the M. O. commission and send the balance by M. O. Please note that there is no wilful default on my part."

(12) When the tenant promptly sent a notice on 9-5-1961 (after the money order for Rs. 90 was refused), setting forth his case about the agreement of March 1961 for enhanced rent at Rs. 45 per month, there was no immediate reply from the landlord. Surely, if the defence version was false, the landlord would have immediately protested by sending a reply. The Rent Controller has totally ignored this important setting and background of the case, especially when the evidence consists of interested testimony on either side.

(13) Secondly, it is wholly conceivable and un-understandable that the tenant, if really, he was guilty of default in the payment of rent for the month of March 1961, would send Rs. 90 with a view to escape the consequence of wilful default. After all, the delay was of nine days and it is enough if the tenant had sent two months' rent i.e., Rs. 41.24. According to the decisions, that would have been sufficient compliance, and there would not have been any question of wilful default. Why should the tenant not only tack on a case of agreement for enhanced rent, but also continue to tender the rent at the rate namely, Rs. 45 per month, for 18 months? I see considerable force in the argument of the learned counsel for the petitioner that a delay of nine days will not entail such a serious consequence as to induce the tenant to invent a false and artificial story of enhanced rent at more than the twice agreed rate and also continue to tender the same for over one and a half year. The background again has been completely overlooked by the Rent Controller.

Further on a reading of the order of the Rent Controller, I find that it is vitiated by a misconception and misreading of the evidence of R. W. 1, the agent of the tenant. The Rent Controller disbelieves the evidence of this witness on the ground that if according to the tenant the agreement for enhanced rent had taken place in March 1961, the agent would not have tendered in April a sum of Rs. 20.62 as rent. But the Rent Controller failed to notice that in cross-examination R. W. 1 has stated that the agreement for enhancement of rent was between the landlord and the tenant and that at that time the agent was not present. Naturally, in ignorance, the agent of the tenant had tendered Rs. 20.62 in the month of April. If the evidence is properly read as a whole, it will be seen that there is no discrepancy whatsoever between the endorsements in the money order receipts, Ex. R.2 series and the oral evidence of R.W. 1. The appellate authority has summed up the position at page 34, committing the same mistake:

"If the version in the M. O. Coupon Ex. R. 2 series to the effect that the agreement was effected in March 1961 for enhanced rent is taken as correct, it is not known why R. W. 1 who is the agent of the appellant herein contacted the petitioner who is the respondent here in May and April 1961 and offered to pay a rent of Rs. 20.62 only. The circumstances indicate that the version of the appellant regarding the agreement to pay enhanced rent is only a device to cover up the default in arrears made wilfully."

In more places than one the Rent Controller says that "there is absolutely no evidence to show that the petitioner demanded any enhanced rent of Rs. 45 for the car-shed in question..... It is also significant to note that the respondent had sent Rs. 90 towards the rent of March and April 1961, at the rate of Rs. 45 per month, though there is no evidence to show that the petitioner wanted enhanced rent of Rs. 45 as against the rent of Rs. 20.62 per month." This statement is clearly wrong. There is undoubted evidence of R. W. 1, the agent of the tenant, corroborated by the conducted of the tenant in sending money orders, making protests by a registered notice even at the outset. The Rent Controller was clearly in error in saying that there was no evidence. If the Rent Controller menat it was no evidence because it was interested, applying the same standards it should have seen that the sole interested testimony of the landlord was no better and the petition for eviction should have been rejected for want of evidence.

(14) For correctly assessing the relative value of the oral evidence of the landlord and the agent of the tenant, the Rent Controller has not taken into account, that, with regard to the other points in controversy, the landlord has proved himself to be a deliberate liar, and spoken several falsehoods. The Rent Controller has found that the landlord had even brought into existence the letter, Ex. P.8, alleged to have been written by P. W. 2, for the purpose of bolstering up his false case that P. W. 2 wanted the landlord to vacate and hand over possession of the godown. This was resorted to with a view to make out a case that the landlord of the respondent required the premises for garaging his car. I have no hesitation in holding that the finding of the Rent Controller, affirmed by the appellate authority, that the tenant was guilty of wilful default, is clearly erroneous and perverse, and cannot possibly be supported. The main background and the probabilities of the case have been ignored, the oral evidence has been misread and misunderstood, and the necessary inference flowing from the conduct of the tenant has been ignored. Above all, there has been a total failure to keep in mind the essential distinction between default and wilful default especially when the delay is only about ten days.

(15) For all these reasons, the revision petition is allowed, and the order of the appellate authority, confirming the order of the Rent Controller, is set aside, The petition for eviction filed by the landlord is accordingly dismissed, with costs throughout.

(16) Revision allowed.


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