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K. Venugopal Vs. P.S. Doyal Prasad - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1970)1MLJ60
AppellantK. Venugopal
RespondentP.S. Doyal Prasad
Excerpt:
- - such adjustment is out of place where in a case like this, the tenant is liable to pay rent at the commencement of every months it may also be noted in this connection that exhibit p-1 does not show that the petitioner paid any amount by way of advance rent......p-1 amounts to payment of more than one month's rent in advance as he is required to pay every month rent in advance. the fallacy underlying this argument is apparent. the amount payable by way of advance, as contemplated under section 7, is distinct from the rent which a tenant, as in the instant case, is liable to pay for every month. the amount paid by way of advance is to be kept by the landlord to be adjusted or to be refunded to the tenant on the termination of the tenancy. but what a tenant, as the petitioner in this case, is liable to pay is rent for each month though the rent is paid before the expiry of the month. therefore such a payment cannot be termed as advance within the meaning of section 7. if the rent is paid on the first of every month, the liability of the tenant.....
Judgment:

K.S. Palaniswamy, J.

1. This revision has been filed under Section 25 of the Madras Buildings (Lease and Rent Control) Act, 1960, (hereinafter referred to as the Act) by the tenant of a non-residential building against the order of eviction passed by the Rent Controller, Madras and affirmed on appeal by the appellate authority on the ground that he had committed wilful default in the payment of rent at the rate of Rs. 25 per month from 1st June, 1964 to 28th February, 1966. The premises in question originally belonged to one Rathna Bai, to whom the petitioner had executed the latter Exhibit P-1 on 1st March, 1957 agreeing to pay the rent in advance by the first of every month. The respondent-landlord purchased the premises from Rathna Bai, and thereafter, the petitioner made an endorsement of Exhibit P-1 on 1st July, 1963 agreeing to pay rent at the rate of Rs. '25 per month as against Rs. 20 payable previously under the terms contained therein. Alleging that the petitioner had committed wilful default in the payment of rent for the months of April, to May, 1964, the respondent applied for eviction of the petitioner in H.R.C. No. 2733 of 1964 on the file of the Rent Controller, Madras. The Rent Controller found that there was wilful default in the payment of rent for the month of April, 1964 and directed eviction. Against that order, the tenant-petitioner : filed H.R.A. No. 223 of 1965 on the file of the Court of Small Causes, Madras. The Appellate Authority reveresed the decision of the Rent Controller and held that the default was not wilful. In that view, the petition for eviction was dismissed. That order was passed on 28th August, 1965. The respondent alleged in the petition, out of which this revision has arisen, that the petitioner committed wilful default from 1st June, 1964 to 28th February, 1966. The petitioner contended that he tendered the rent by money order, that the tender was refused by the respondent and that he had not committed default. The Rent Controller held that under the terms of the lease, the rent was payable by the first of every month for that month, that the tenders made by the petitioner was informed of his defaulty by notice, that in spite of such reminder, he committed default and' that therefore the default was wilful. He held that from 1st June, 1964 to 28th February, 1966 the petitioner committed wilful default. In the appeal preferred by the tenant, the appellate authority agreed with the Rent Controller and dismissed it.

2. Mr. Balasubramaniam, appearing for the petitioner, contended that the terms agreed upon by the petitioner under Exhibit P-1 are not in accordance with the provisions of the Act, that what was stipulated was payment of advance rent and that in as much as such a stipulation runs during the entire period of tenancy it is invalid. He developed his argument by contending that under the provisions of the Act, the landlord is entitled to claim only one month's rent as advance and that the contract between the parties as evidenced by Exhibit P-1 violates that mandatory provision, I am convinced that though this argument is ingenious, it is devoid of substance. Section 10 (2) (i) of the Act fixes the time for payment of the rent. According to that section, the tenant is liable to pay or tender the rent due by him in respect of the building within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable. This provision contemplates an agreement between the landlord and tenant as regards the time for payment of the rent. There is nothing to show that such time for payment should be only after the expiry of the month for which rent is payable. Parties may stipulate for payment of the rent on the first of the month for which rent is payable or during the period of the month for which the rent is payable or at the end of that particular month. If any date is fixed, the tenant is Bound to pay the rent within 15 days there after. The Legislature had made provision for a case where there is no such agreement between the parties 'as regards the date of payment. In such a case, the rent is payable by the last day of the month next following that for which rent is payable. The question is whether in a case where the agreement between the parties is for payment of the rent on the first of the month for which rent is payable, such a stipulation can be said to violate the provisions off the Act. Section 7 of the Act gives power to the landlord to receive or stipulate for payment of an amount not exceeding one month's rent by way of advance. Reliance 1 is placed, upon this provision on behalf of the petitioner in support of the argument that what is required to be paid by the petitioner under the terms of Exhibit P-1 amounts to payment of more than one month's rent in advance as he is required to pay every month rent in advance. The fallacy underlying this argument is apparent. The amount payable by way of advance, as contemplated under Section 7, is distinct from the rent which a tenant, as in the instant case, is liable to pay for every month. The amount paid by way of advance is to be kept by the landlord to be adjusted or to be refunded to the tenant on the termination of the tenancy. But what a tenant, as the petitioner in this case, is liable to pay is rent for each month though the rent is paid before the expiry of the month. Therefore such a payment cannot be termed as advance within the meaning of Section 7. If the rent is paid on the first of every month, the liability of the tenant to pay rent for that particular month is discharged, and his liability arises only on the first of the next following month for payment of' the rent for the following month. He is not entitled to say that what he had paid on the 1st of the previous month is advance and that he is not liable to pay rent for the subsequent month. In Section 7 of the Act, the Legislature has specifically-provided for adjustment of the advance. Such adjustment is out of place where in a case like this, the tenant is liable to pay rent at the commencement of every months It may also be noted in this connection that Exhibit P-1 does not show that the petitioner paid any amount by way of advance rent. That is obviously the reason- why the parties stipulated that the petitioner should pay every month's rent in advance on the first of that particular month. I therefore reject the contention urged on behalf of the petitioner that the stipulation in Exhibit P-1i for payment of rent in advance on the first of every month violates the provisions of the Act.

3. In as much as the rent is payable as per Exhibit P-1 on the first of every, month for that month, the rent should be paid before the 15th of every month according to Section 10 of the Act. Exhibit R-3 series are six money order coupons sent by the petitioner tenant and refused by the respondent-landlord. They cover the period from September, 1965 to February, 1966. Those remittances were made after the due date. On 1st November, 1965, the respondent landlord issued the notice, Exhibit R-1 to the petitioner reminding him of his liability to pay the rent on the first of every month of and telling him that he was constantly committing, default, In spite of that notice and in spite of the prior eviction petition filed by these respondent, the petitioner violated the undertaking given in Exhibit P-1 did not pay or tender the rent within time. The period of such default was indeed long and the (only inference possible is that the default was wilful. Both the Courts below were, therefore, right in holding that the petitioner committed wilful default.

4. In the result, the petition fails and is dismissed With costs. The petitioner is given two months' to vacate.


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