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M. Meenakshisundaram Vs. S. Venkatesan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 3175 of 1980
Judge
Reported inAIR1981Mad277; (1981)2MLJ288
ActsTamil Nadu Buildings (Lease and Rent control) Act, 1960; Tamil Nadu Buildings (Lease and Rent control) (Amendment) Act, 1973 - Sections 10(2); Evidence Act, 1872 - Sections 114
AppellantM. Meenakshisundaram
RespondentS. Venkatesan
Appellant AdvocateR.G. Raian and ;V. Subramanian, Advs.
Respondent AdvocateN.S. Varadachari, ;C.P. Pattabhiraman and ;K. Pandian, Advs.
Cases ReferredOm Prakash Dahal v. A.
Excerpt:
.....note, it was agreed that out of the interest payable in respect of the promissory note the monthly rent and electricity charges should be adjusted and the landlord should pay the tenant and his wife the balance of interest. further, the tenant's wife had sent letters every month about the adjustment and balance amount payable. the landlord did not send any reply but filed a petition for eviction. the rent controller dismissed the petition for eviction. on appeal an order of eviction was passed. against that order a revision petition was filed in the high court.; the question that arose for consideration were whether (i) an order of eviction can be passed on the ground of wilful default when there is an agreement for adjustment of rents, and (ii) the agreement regarding adjustment..........1. in the course of his cross-examination and he is positively that the accounts relating to the rent payable by the petitioner as well as the interest payable by the respondent to the petitioner and his wife were looked into and the rents were deducted from the interest and thereafter. the sum of rs. 11,200/- was arrived at in respect of which two promissory notes were executed. from the above adrnission of p. w. 1. the existence of the agreement as set up by the petitioner till febrauary1977 has been established.the question is whether this agreement continued to remain in force for the subsequent period also has now to be considered. while. on the one hand. the respondent would assert that the agreement did not continue at all, the petitioner would urge that the agreement continued.....
Judgment:
1. The tenant, who succeeded before the Rent Controller and lost before the Appellate Authority, is the petitoner this civil revision petition. The respondent herein Med. H. R. C. Wo. 1629 of 1978 before 9th Judge, Court of Small Causes, Madras praying for an order of eviction against the Petitioner herein under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, (18 of 1960), as amended by Act 23 of 1973 (hereinafter referred to as the Act), According to the case of the respondent, he is the owner and Iandlord of premises bearing old door No. 11 and new No. 20 Thandavarayan St, Royapettah, Madras and that the Petitioner. who is a tenant in occupation on a monthly rental of Rs. 85 besides electricity charges~ had wilfully defaulted in the payment of rents for the period from March, 1977 to March, 1978. The respondent issued a notice terminating the tenancy calling upon the petitioner to quit and deliver vacant possession of the portion under his occupation, but since the Petitioner did not do so the respondent initiated proceeding for an order of eviction against the petitioner as aforesaid,

2. That application was resisted by the Petitioner herein on the ground that the respondent owed a sum of Rupees 11,200/- as on 27-2-1977 to the petitioner and his wife on two promissory notes of Rs. 5600/- each and that at the time of the execution ~of the promissory notes, it was agreed that out of the interest payable in respect of the promissory note in favour of the petitioner's wife, the monthly rental of Rs. 60/~ and the actual electricity charges payable for every month should be adjusted and the the respondent should pay the petitioner and his wife the balance of interest due under the said promissory note and the entire interest in respect of the Promissory note in favour of the petitioner. The further case of the Petitioner was that every month, letters. had been written by his wife under certificate of posting about the adjustment of rent and electricity charges as well as the balance of interest payable by the respondent to which the respondent did not send any reply but had come forward with the application for eviction as if the petitioner had committed wilful default. The petitioner, therefore, contended that there was no wilful default in the Payment of rents and that the application for eviction should be dismissed.

3. Before the Rent Controller (9th Judge, Small Cause Court, Madras) the respondent exapanded himself as P. W. 1, and relied on Exs. P. 1 and P, 2, while the petitioner herein examined himself as R. W. 1, and marked Exs. R. I to R. 13. On a consideration of the oral as well as the documentary evidence, the learned Rent Controller found that there was an agreement between the petitioner and the respondent for the adjustment of rent from the interest payable by the respondent in respect of the Promissory note executed by the respondent in favour of the wife of the petitioner. On this conclusion, the Rent Controller held that the petitioner has not committed any wilful default in the payment of monthly rents. Consequent to this finding, the petition for eviction was dismissed. Aggriev'ed by this, the respondent herein preferred an appeal in H. R. A. No. 1538 of 1979, to the appellate authority (6th Judge, Small Cause Court, Madras). The appellate authority held that since there was no written agreement with reference to the adjustment of the rent as well as the electricity charges towards the interest payable by the respondent to the wife of the petitioner, the arrangement set up by the petitioner cannot be accepted. In addition, despite several letters produced by the petitioner and addressed by the wife of the petitioner to the respondent claiming an adjustment of the rent and electricity charges towards the interest payable by the respondent to, the wife of the petitioner, the appellate authority held that there is no Proof to establish that those letters were received by the respondent and therefore, those letters cannot be relied on to establish an agreement as pleaded by the petitioner. On this conclusion, the appellate authority held that the petitioner had committed willful default in a payment of rent and ordered his eviction granting two months time to vacate the premises in question. It is the correctness of this order that is challenged in this civil revision 'petition.

4. What is urged by the learned counsel for the petitioner is that the execution of the two promissory notes by the respondent, one in favour of the wife of the petitioner and another in favour of the petitioner, and the adjustment of the interest thereon by the respondent towards rent and electricity charges Payable by the petitioner not having been disputed till the end of February, 1977, the same agreement continued to remain in force as before even for the -period between March, 1977 to March 1978. And therefore, there is no question of any willful default as such in the payment of rent by the petitioner. On the other hand, the learned counsel for the respondent would strenuously contend that the petitioner has failed to establish the agreement with reference to the adjustment of the interest Payable by the respondent to the petitioner and his wife and therefore, there being no other explanation for the non-payment of the rent for the period in question, the default in such non-payment should be considered only as wilful and therefore, eviction was rightly ordered

5. That there was such an agreement between the petitioner, his wife and the respondent at least upto the end of February, 1977, has been more than established. Ex. R. I is a letter dated 27-21977 written by the respondent herein to the petitioner. Therein, the respondent has referred to the execution of the two promissory notes, one in favour of the petitioner and the other in favour of the Petitioner's wife each for Rupees 5600/-, and the letter further proceeds to state that the sum of Rs. 11.200/was arrived at by mutual discussion and settlement of various interest and other cash payments. It is further stated in Ex. A- 1 that the respondent does not owe the petitioner any other arrant excepting under the promissory notes and that the petitioner also does not owe the respondent any amount towards rental. It is obvious from Ex. R. I that the parties have settled the accounts with reference to the amounts advanced by the petitioner and his wife to the respondent as well as the rental account in respect of the Premises under the occupation of the petitioner upto27-2-1977. This is also admitted by the respondent, examined as P. W. 1. in the course of his cross-examination and he is positively that the accounts relating to the rent payable by the petitioner as well as the interest payable by the respondent to the Petitioner and his wife were Looked into and the rents were deducted from the interest and thereafter. the sum of Rs. 11,200/- was arrived at in respect of which two promissory notes were executed. From the above adrnission of P. W. 1. the existence of the agreement as set up by the petitioner till Febrauary1977 has been established.The question is whether this agreement continued to remain in force for the subsequent period also has now to be considered. While. on the one hand. The respondent would assert that the agreement did not continue at all, the petitioner would urge that the agreement continued to remain in force and that periodical statement of accounts had also been sent by the wife of the petitioner to the respondent, claiming ad ' justment of rents and electricity charges as before from out of the interest amount payable by the respondent to the petitioner and his wife and these letters would establish that the agreement continues even thereafter. The receipt of these letters has been denied by the respondent herein. It is only on the basis of this that the appellate authority proceeded to hold that there is no Proof of any agreement as claimed by the petitioner. Ex. R. 3 is a notice dated 13-71977 the receipt of which has been accepted by the respondent herein in the course of his evidence. In paragraph 4 thereof, the petitioner, while denying the commission of wilful default in the payment of rents from March, 1977 toMay 1977, has also referred to theagreement for the adjustment of the rents as well as electricity charges from out of the amounts Payable by way of interest by the respondent to the wife of the petitioner. P. W. I has admitted the receipt of Ex. R. 3; but he would add that lie did not demur to the same. In addition the petitioner's wife has also written letters

Ex. R. 8 dated 7-12-1977, Ex. R. 4 dated 6-2-1978, Ex. R. 6 dated 17-3-1978 Ex. R. 10 dated 3-5-1978 and Ex. R. 12

dated 12-7-1978 under certificates of posting Ex. R. 9. R. 5, R. 7, R. 11 and R. 13. In Ex. R. 8. the wife of the petitioner has claimed a sum of Rs. 5,600/- towards principal and Rs. 359-80, towards accrued interest after adjustment of the rent, water charges as well as electricity charges for the months of October and November 1977. In Ex. R. 4, dated 6-2-1978, the wife of the petitioner rejects to the writing of Ex. R. 8, dated 742-1977 and expresses her regret that the respondent had not sent the receipts after the adjustment of the eleetricity charges, water charges and rent.Ex. R. 4 also states that as on 31-1-1978-1 the respondent owed the wife of- the petitioner a sum of As. 5,666/- towards principal and Rs, 442-15 towards interest after adjustment of the amounts for rent, water charges and electricity charges. Under Ex. R. 4 the respondent is further called upon to immediatelv provide the receipts for the adjustments made and also to arrange to pay back the amounts due by the respondents to the wife of the Petitioner within aweek's time. Ex. R. 6 dated 17-3-1978 refers to the total silence and inaction on the part of the respondent to the prior letters written by the wife of the petitioner and that letter, a statement of account commencing from March, 1977 to February, 1978 in relation to the interest payable on the amount of Rupees 5,600/- advanced by the wife of the Petitioner and the adjustment of the rent, electricity charges etc, from out of the interest payable and making a claim for the balance of Rs. 485-05 towards interest as well as the principal amount of R5. 5,600/-. Under Ex. R. 10 dated 3-5-1978. the wife of the petitioner again writes to the respondent herein and finds fault with the respondent for not having had even the courtesy to acknowledge the letters and a reference is made therein to the adjustment of the rent and electricity charges from out of the interest payable and winds up with a demand against the respondent in a sum of Rs. 566-65 towards interest and a sum of Rs. 5600 towards principal. Again, under Ex. R. 12, the wife of the petitioner writes to state that after adjusting the electricity charges and rent for the months of May and June, 1978 from out of the interest payable by the respondent tothe petitioner's wife, a sum of Rs. 652-80 is due towards interest apart from the principal of Rs. 5600. A perusal of the contents of the documents referred to above makes it clear beyond doubt that the arrangement which was admittedly in force till February, 1977 continued even thereafter as otherwise, there is no reason why the wife of the petitioner should have written several letters to the respondent showing the adjustment of the rent and electricity charges as against the interest Payable by the respondent to her and claiming the balance of the interest as well as Principal sum of Rs. 5600. The respondent would conveniently state that none of these letters had been received by him and therefore. the contents of the letters cannot be relied upon to prove the agreement setup by the petitioner. As stated earlier. all these letters had been sent under certificates of posting. Under S. 114 (f) of the Indian Evidence Act, the Court may presume that the common course of business has been followed in particular cases and that letters containing the correct address of the respondent posted should have normally reached him. It is significant I that the respondent has not questioned - the correctness of the address. given in all these letters and the certificates of posting. Under these circumstances, the petitioner can invoke the Presumption that letters which has been Proved to have been posted and Posted to the right. address have. in fact. been received by the addressee. In Aburubammal v. Official Assignee, Madras ILR 47 Mad 215: 45 Mad LJ 817: (AIR 1924 Mad 214) a Division Bench consisting of Schewab C. J. and Krishnan J. laid the principle in such cases in the following terms:-

"The evidence is that that letter was posted and it is quite clear that it was so posted because a certificate from the post office to. that effect is produced before the court. It is suggested by the learned Judge that it is possible that that letter was not delivered to the insolvent and that it is possible that, although not delivered, it did not come back to the dead letter office. through what the learned Judge speaks of as the vagaries of the Madras post; but the insolvent was called as a witness and he did not deny the receipt of that letter, though, it is true he was not asked whether he had received it or not; and I fail to see how the learned Judge was justified in coming to the conclusion an that evidence that it had not been received, because the presumption is that a letter which is proved to be Posted and posted to the right address is in fact received by the recipient."

6. Again in Raiendran v. Revenue Divisional and Land Acquisition Officer, 'Sivakasi, Ramanathapuram, 1968-2 Mad LJ 302 Ramakrishnan J. had occasion to apply the aforesaid Principle to proceedings under the Land Acquisition Act. After referring to the decision inAburubammal v. Oacial Assignee. Madras ILR 47 Mad 215: 45 Mad LJ 817: (AIR 1924 Mad 214) the learned Judge 'proceed6d to state as follows -

"It is clear from the Bench decision abovementioned, that the same principle is also reiterated there namely that before the presumption could be drawn there must be Proof . that the letter . has been actually Posted, The certificate issued. by the post office which is called a 'certificate of posting' may be one of the items of proof in that connection. When a letter is sent by registered post, then also the post office gives a certificate of posting,.but it is in a different form. in addition to the certificate of Posting there was evidence in Aburubanunal v. Official Assignee, ILR 47 Mad 215: 45 Mad LJ 817: (AIR 1924 Mad 214) cited above that the letter, was actually posted, and the data adduced in that case were considered sufficient to prove actual posting. In such circumstances, the presumption that the recipient duly received the letter would follow."

7. In Smt. Kanak Lata Ghose v. Arnal Kumar Ghose. it has been held that the certificates having been given by the postal authorities in the ordinary course of business must be presumed t o be genuine. unless the presumption is rebutted by cogent proof and that the contents of the certificates must be presumed to be true, unless they were proved to be false, and therefore. the letters. duly established to have been posted according to the tenor of certificates must be presumed to have been received by the addressee. It as also been further pointed out there in that though the recipient might have denied the receipt of the letters, yet such a denial is insufficient to rebut the presumption, particularly in the light of all other facts as well as the conduct of

the parties. In the present case, the respondent has no doubt stated that he did not receive the letters sent by the wife of the Petitioner to him. But the respondent certainly cannot be expected to admit the receipt of these letters 'as such an admission would be against his interest and naturally, therefore, he denies the receipt of these letters. The conduct of the respondent in having accepted the existence of the agreement up to 1977 and his total inaction on receipt of Ex, R. 3, where the adjustment of the rent and the electricity charges from out of the interest payable by the respondent has also been set out. Clearly establish that the denial of the receipt of these letter by the respondent is not acceptable and no importance whatever can be attached _t6 it. in Om Prakash Dahal v. A. IL Shroff. Delhi 1973 Ren CJ 149 it has been laid down that the presumption under S. 114(f) of the Evidences Act to the effect that a letter sent by Post under certificate of posting was delivered to the addressee can normally be availed of unless there are circumstances in a particular case to show that the common course of business was not followed and that something extraordinary happened which prevented the common course of business being followed. In the present case, the respondent has not placed any material to show that anything happened which prevented the letters written by the wife of the petitioner reaching him. Under these circumstances. the conclusion is irresistible that the respondent received all the letters written by the wife of the petitioner and that there letters clearly establish the subsistence of an agreement for adjustment of the rent as well as electricity charges front out of the interest payable by lum to the wide of the petitioner even after February 1977 and therefore, there cannot be any wilful default in the payment of rents for the period between March. 1977 and March, 1978, as claimed the respondent In view of this conclusion, the order of the appellate authority directing the eviction of the pleder cannot be sustained and has therefore to be sat aside. The result is. the civil revision petition is allowed and the application for eviction filed by the respondent in IL R. C. No. 1029 of 1978 will stand dismissed. No costs.

8. Revision allowed.


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