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M. Nagalinga Josiar Vs. the Trust for Buildings, - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 761 of 1971
Judge
Reported inAIR1973Mad270
AppellantM. Nagalinga Josiar
RespondentThe Trust for Buildings, ;t.K.S.P. Arunachalam and ors.
Cases ReferredLingambhotla Subbayya v. The Subordinate Judge
Excerpt:
- .....and the court of revision have upheld the plea of the respondent that the petitioner had committed willful default in payment of the rent.2. the rent receipts filed in this case show that the petitioner had been irregular in the payment of rents and that there has been a delay of two to three months on several occasions. on 22-4-1969 the respondent issued a notice exhibit a-1 determining the tenancy and complaining of arrears of rent for three months. on 12-5-1969 the petitioner sent a money order for three months' rent but it was refused. it is unnecessary to refer to the subsequent money orders.3. on these facts the rent controller was reluctant to uphold the plea of willful default; but the appellate court and the court of revision have accepted that this is a case of willful.....
Judgment:

1. The tenant has filed this revision petition and he is aggrieved that the appellate Court and the court of revision have upheld the plea of the respondent that the petitioner had committed willful default in payment of the rent.

2. The rent receipts filed in this case show that the petitioner had been irregular in the payment of rents and that there has been a delay of two to three months on several occasions. On 22-4-1969 the respondent issued a notice Exhibit A-1 determining the tenancy and complaining of arrears of rent for three months. On 12-5-1969 the petitioner sent a money order for three months' rent but it was refused. It is unnecessary to refer to the subsequent money orders.

3. On these facts the Rent Controller was reluctant to uphold the plea of willful default; but the appellate Court and the Court of Revision have accepted that this is a case of willful default.

4. The learned counsel for the petitioner relies on the decision of Venkatadri, J. in Mahaboob Bibi v. Ambrose, : (1964)1MLJ260 in which the learned Judge has held that it cannot be said that there was any willful default in payment when the tenant, on coming to know of the application filed by the landlord, rushes to Court and pays the amount due.

5. As against this decision, the learned counsel for the respondent relies on the decision of another Single Judge, Anantanarayanan, C. J. in Nagarathinam Pillai v. Mahadevier, (1970) 83 MLW 12 in which the learned Judge has held that the fact that the tenant deposited the rent subsequently and quite early, after the inception of the proceedings, may serve to extenuate his default, in the sense that he might be now granted a reasonable time for vacating the premises, but that it is not a ground that the law can recognize for holding that a tenant who deposits such rent is not guilty of 'willful default' with regard to the period of default preceding the petition for eviction. The learned Judge has further observed that it was very clear from the Act that there is no condonation on the part of the landlord, merely because he takes the rents deposited into Court. I agree with this decision.

6. The learned counsel for the petitioner has also referred to a decision of Rajagopala Ayyangar, J. in Raju v. Ramaswami Naicker, : AIR1954Mad1016 in which the learned Judge has stated that, where the case of the tenant was that there was an agreement to pay rent once in four months, it is impossible to see how there can be any default in the payment of it before the stipulated time had arrived. (No agreement to pay rent in two or 3 months has been set under Section in this case and this case is not therefore relevant for our purpose). On behalf of the respondent a decision of a Division Bench of this Court in Lingambhotla Subbayya v. The Subordinate Judge, Vijayawada, : AIR1951Mad864a has been referred to, where the learned Judges have observed that the Courts below went wrong in refusing to uphold the plea of willful default is a case where the tenant proved that by long practice the house owner did not insist on regular monthly payment of rent and that there cannot be an agreement under which the rent is payable at irregular intervals though the landlord may not have been insisting on regular payments and was accepting without protest the arrears of rent which had accumulated and that when he chooses to apply under Section 7 of the Act, he will be entitled to an order of eviction, if he proves that the tenant has not paid or tendered the rent by the last day of the month next following that for which the rent is payable.

7. I am bound by the Bench decision and I am clear that the fact that landlord in this case had been lenient on previous occasions in accepting the rent at irregular intervals does not necessarily show that he had condoned the delay. The fact that on receipt of the notice of termination, the petitioner sent the rent for three months by money order may be one of the circumstances for consideration in determining whether there is willful default but it cannot be the sole consideration or the conclusive test in the case. The fact remains that the petitioner has been chronic defaulter in the payment of the rents, and I am unable to say under the circumstances that the default in the payment of rents for 3 months is not willful.

8. In the result the petition is dismissed, but in the circumstances, without costs. The petitioner is allowed six months' time for vacating the premises but on condition that he deposits into the Rent Control Court all the proved arrears till this date within a month from today, failing which, he will be evicted forthwith.

9. Petition dismissed.


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