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K. Mohideen Sahib Vs. theodre Samuel - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1985)2MLJ354
AppellantK. Mohideen Sahib
Respondenttheodre Samuel
Cases ReferredSundaram Pillai S. v. V.R. Pattabiraman
Excerpt:
.....failure to resort to the proceedings under section 8 of the act would not constitute a ground of wilful default and that in any view in the circumstances of the case the default cannot be construed as wilful in view of the principles laid down by the supreme court in the latest pronouncement. 5. the learned rent controller as well as the learned appellate authority have arrived at a finding of wilful default on the ground that even though the petitioner has not been served with the reply notice ex. , held that there is absolutely nothing in the provisions as to where the amount has to be deposited and no procedure has been contemplated and as such the failure to adopt the procedure under section 8 (5) would not constitute wilful default. dhandapani (1980)1mlj169 ,and submitted that the..........(lease and rent control) act (18 of 1960), for eviction of the petitioner herein, on the ground of wilful default. the case of the respondent is that he let out the petition-mentioned premises to the petitioner on a monthly rent of rs. 75/- and that the petitioner has not paid rent from january, 1981 onwards and thus has committed wilful default in payment of rent for the period from january 1981 to june, 1981. it is further alleged that the petitioner in order to cover up his default caused a notice dated 20.6.1981 to be issued to the respondent, on false and untenable grounds calling upon the respondent to specify a bank in which the rents have to be deposited. in reply, the respondent directed the petitioner to deposit the rents in the current account in the grindlays bank, n.s.c......
Judgment:

K.M. Natarajan, J.

1. The unsuccessful tenant is the petitioner. The respondent herein filed a petition for eviction under Section 10 (2) (i) of the Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960), for eviction of the petitioner herein, on the ground of wilful default. The case of the respondent is that he let out the petition-mentioned premises to the petitioner on a monthly rent of Rs. 75/- and that the petitioner has not paid rent from January, 1981 onwards and thus has committed wilful default in payment of rent for the period from January 1981 to June, 1981. It is further alleged that the petitioner in order to cover up his default caused a notice dated 20.6.1981 to be issued to the respondent, on false and untenable grounds calling upon the respondent to specify a Bank in which the rents have to be deposited. In reply, the respondent directed the petitioner to deposit the rents in the Current Account in the Grindlays Bank, N.S.C. Bose Road. But the petitioner has not chosen to deposit the rent in the J Bank. The petitioner herein contended that he has been regularly paying rent, that it was the respondent who refused to receive rent, that the respondent refused to receive the rent sent by money order and that thereafter the petitioner sent a notice to the respondent calling upon him to specify bank. The petitioner has not received the reply notice dated 4.7.1981 alleged to have been sent by the respondent. He has further alleged that the respondent had previously filed an application for eviction on the ground of sub-letting and he was unsuccessful both before the Rent Controller as well as the Appellate Authority and the appeal was disposed of in H.R.A.No. 1275 of 1979. The respondent has also filed a revision-petition against that order contending that the rent is not at Rs. 75/- and he claimed rent at Rs. 150/- from the petitioner and the same is pending; as such, he is not entitled to file a petition for eviction on the ground of wilful default. According to the petitioner, he has deposited the entire arrears of Rs. 525/- on the first date of hearing. On the side of the respondent landlord, he was examined as P.W.1 and Exhibits P-1 to P-5 were marked. On the side of the petitioner-tenant, he himself was examined as R.W.1 and Exhibit R-1 series were marked. The learned Rent Controller held that the respondent herein has established the wilful default in payment of rent and consequently he ordered eviction. On appeal, the learned Appellate Authority confirmed the said order. Hence the aggrieved tenant has preferred this revision.

2. learned Counsel for the petitioner mainly contended that since the respondent refused to receive the rent sent by money order, the petitioner sent a notice to the respondent calling upon him to specify the name of the bank in which he could deposit the rent, that the alleged reply notice was not received, that he deposited the arrears on the first date of hearing, that his failure to resort to the proceedings under Section 8 of the Act would not constitute a ground of wilful default and that in any view in the circumstances of the case the default cannot be construed as wilful in view of the principles laid down by the Supreme Court in the latest pronouncement. According to the learned Counsel for the petitioner, the petitioner is aged about 80 years and that both the authorities had not properly interpreted the meaning of wilful default with reference to the facts of the case.

3. The only question to be considered in this revision is whether on the facts of the case the petitioner has committed wilful default in payment of rent and whether the order passed by the learned Appellate Authority is liable to be set aside.

4. It is the admitted case of both the parties that the respondent herein has filed a petition for eviction on the ground of sub-letting and the same was dismissed. He preferred an appeal H.R.A.No. 1275 of 1979 and the same was dismissed. In the above proceedings, the respondent contended that the rate of rent was Rs. 150/-. But, it was held that the rate of rent was only Rs. 75/- per month. The respondent has filed a revision against the order passed by the Appellate Authority and the same is pending. It is established that the petitioner has sent rent by money order from January 1981 onwards and that the respondent has refused to receive the same. It is only the petitioner who has issued a notice under Exhibit P-1 on 20.6.1981 calling upon the respondent to specify the name of the bank for depositing the rent in the account of the respondent. But even though the respondent contended that he sent a reply under Exhibit P-2 to the petitioner, it was held by the Rent Controller and the Appellate Authority that it was not established that the said notice was served on the petitioner. The petitioner has produced Exhibit R-1 series to show that he had sent rent by money order for the disputed period. Even in Exhibit P-1 notice he has mentioned about the fact of sending the rent for January, February and March 1981 by money order and the respondent refusing to receive the same.

5. The learned Rent Controller as well as the learned Appellate Authority have arrived at a finding of wilful default on the ground that even though the petitioner has not been served with the reply notice Ex.P-2, he ought to have resorted to the procedure contemplated under Section 8 (5) of the Tamil Nadu Buildings (Lease and Rent Control) Act and remitted the rent in Court and further there is no concrete evidence to show that the petitioner sent rent by money order for April, May and June 1981 and as such it is a case of wilful default on the part of the petitioner. It is seen from the judgments of the Courts below that the last leaf of Exhibit P-1 series shows that a sum of Rs. 150/- was sent and the date is not legible and as such both the Courts have come to the conclusion that the petitioner has not established conclusively that he had sent rent for the later period of April, May and June 1981 also by money order. In the instant case, admittedly the petitioner has paid the entire arrears for the petition-mentioned default period even on the first hearing date. learned Counsel for the petitioner drew my attention to the decision reported in Soundarapandian Nadar v. A.S. Madaswamy Mudaliar (1982) 95 L.W. 107, wherein Singaravelu, J., held that the procedure prescribed under Section 8 (2) of the Act is only optional and not mandatory and the non-adoption of the procedure does not constitute wilful default. In the above quoted case, the rent sent by money order was repeatedly refused by the landlord and thereupon the tenant, deposited the rent in bank account opened in his name. Yet another decision brought to my notice is Abdul Majeeth v. Masiammal 1981 T.L.N.J. 315, wherein Sengottuvelan, J., held that there is absolutely nothing in the provisions as to where the amount has to be deposited and no procedure has been contemplated and as such the failure to adopt the procedure under Section 8 (5) would not constitute wilful default. On the other hand, the learned Counsel for the respondent drew my attention to the decision reported in Marudachala Udayar v. Dhandapani : (1980)1MLJ169 , and submitted that the failure to resort to Section 8 (1) to (5) would constitute wilful default. The facts involved in the said case are quite different and in the above quoted case it was held by Nainar Sundaram, J., that in the absence of proof of payment of rents, it will not be in consonance with the provisions of the Act to presume that the tenant must have paid the rents and the landlord must have declined to issue the receipts. In the circumstances, it was held that the tenant cannot be heard to say that the landlord never issued receipts for the payment of rents and the Court cannot ignore the implications of Section 8 and assess the controversy without reference to such implication. I am in entire agreement with the view expressed by Singaravelu, J., and Sengottuvelan, 3., in the above quoted cases regarding the failure to resort to the procedure contemplated under Section 8 (5). learned Counsel for the petitioner brought to my notice to latest decision rendered by the Supreme Court in Sundaram Pillai S. v. V.R. Pattabiraman : [1985]2SCR643 , on the question of wilful default. Their Lordships of the Supreme Court held:

Thus, consensus of the meaning of the words 'wilful default' appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, will full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to above.

In the light of the principles laid down in the above quoted decisions, it cannot be said that the petitioner has committed wilful default in payment of rent. I find much force in the contention of the learned Counsel for the petitioner. In view of the fact that the petitioner had sent the rent by money order and that the same was refused by the landlord repeatedly and in view of the fact that he has issued a notice calling upon the respondent to specify the name of the bank into which the rent has to be deposited and immediately after receipt of the notice, he deposited the entire arrears, it cannot be said that the petitioner has committed wilful default in payment of rent. Both the Courts below have not properly appreciated the principles enunciated by Their Lordships in the latest Supreme Court case to the facts of the instant case and the same has resulted in the order of eviction. For the reasons already set out I am of the view that the order of eviction passed by the authorities below is not sustainable and is liable to be set aside.

6. In the result, the revision is allowed, the order of both the authorities below is set aside and the eviction petition is dismissed. No order as to costs.


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