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Marudachala Udayar Vs. Dhandapani - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1980)1MLJ169
AppellantMarudachala Udayar
RespondentDhandapani
Excerpt:
- .....made for the tenant in case the landlord refuses to receive the rent or evades the receipt of the rent.the receipt of the rent contemplated under sub-section (2) of section 8 must only be in accordance with the provisions of sub-section (1). if the parties choose to adopt any other mode of payment and acknowledgment of the rents, they have to be content with the consequences, beneficial or otherwise, that may follow therefrom. if the tenant proves the payment of the rent by other modes, the court can accept such proof and relieve the tenant from the consequences of section 10 but, where wilful default in the payment of rents is alleged by the landlord and the answer of the tenant is that the landlord never issues receipts for the payment of the rents, the court cannot ignore the.....
Judgment:

S. Nainar Sundaram, J.

1. This revision has been preferred by the landlord under the Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960, hereinafter referred to as the Act. The respondent herein is the tenant under the Act. The landlord sought the eviction of the tenant on two grounds. One is the wilful default in the payment of the rents at the rate of Rs. 25 per month alleged to have been committed by the tenant from March, 1973 to July, 1974. The second ground is that he requires the premises in question for the occupation of his daughter. The petition for eviction was contested by the tenant. According to the tenant, the rate of rent is only Rs. 22.50 per month and he has paid the rents at the rate of Rs. 2250 up to July, 1974, but the landlord never issued any receipts for the payments made by the tenant. The case of the landlord that he requires the premises for the occupation of his daughter was also not accepted by the tenant and such a case of the landlord was characterised as lacking in bona fides. The Rent Controller considered the case of the parties on the materials placed before him and found that the case of the landlord with reference to the requirement of the premises for the occupation of his daughter is not bona fide and the said ground urged for eviction of the tenant was negatived However, on the question of default, the Rent Controller found that the rate of rent is Rs. 22.50 per month and upheld the case of the landlord that there was wilful default committed by the tenant in the payment of the rents. In this view, eviction of the tenant was ordered by the Rent Controller.

2. The tenant preferred an appeal and the Appellate Authority reversed the findings of the Rent Controller on the question of wilful default and dismissed the petition for eviction. Aggrieved by the orders of the Appellate Authority, the landlord has preferred the present revision. Mr. R.N. Kothandaraman learned Counsel for the petitioner would urge that the orders of the Appellate Author it suffers from impropriety, irregularity an incorrectness as well as illegality, in that the scope of the provision of the Act has not been kept in mind by the Appellate Authority and even on the facts placed before the Court, there has been an omission to draw the proper judicial inference therefrom by the Appellate Authority.

3. Mr. K.M. Santhanagopalan, learned Counsel for the respondent, would urge that this Court should not interfere in revision with the findings rendered by the Appellate Authority which according to the learned Counsel, are factual. This submission of the learned Counsel omits to take note of the scope of the powers of revision available to this Court under Section 25 of the Act. it has been repeatedly held by this Court that the powers under Section 25 of the Act are wide enough to warrant interference if the Courts below, even on the admitted facts, chose to draw an improper and a wrong inference which cannot find sustenance by the provisions of the Act.

4. The case of the landlord is that there was a failure by the tenant to pay the rents continuously from March, 1973 to July, 1974. The tenant would urge that he has paid the rents. To test the case of the parties in such a context, the Court should first endeavour to apply the provisions of the very statute under which the proceedings are initiated for eviction. Very salutary provision is incorporated in the Act and that is Section 8. The marginal note to that section speaks about the liability of the landlord to give receipt for the rent or advance. The marginal note, prior to the amendment introduced by Tamil Nadu Act XXIII of 1973, read 'the right of tenant paying rent or advance to receipt'. Prior to the amendment, Sub-section (1) of Section 8 of the Act read as follows:

Every tenant who makes a payment on account of rent or advance shall be entitled to obtain a receipt in the prescribed form for the amount paid duly signed by the landlord or his authorised agent.

After the amendment, it reads as follows:

Every landlord who receives any payment towards rent or advance shall issue a receipt duly signed by him for the actual amount of rent or advance received by him,

Sub-sections (2) to (5) of Section 8 have remained the same except for a minor change in the proviso to Sub-section (2) in that for the words 'three miles', the words 'five kilometres' have been substituted by the Tamil Nadu Amendment Act XXIII of 1973. The implications of the provisions will be better appreciated if they stand extracted as below.

2. Where a landlord refuses to accept, or evades the receipt of any rent lawfully payable to him by a tenant in respect of any building, the tenant may, by notice in writing, require the landlord to specify within ten days from the date of receipt of the notice by him a bank into which the rent may be deposited by the tenant to the credit of the landlord:

Provided that such bank shall be one situated in the city, town or village in which the building is situated or if there is no such bank in such city, town or village, within five kilometres of the limits thereof.

Explanation: It shall be open to the landlord to specify from time to time by a written notice to the tenant and subject to the proviso aforesaid, a bank different from the one already specified by him under this sub-section.

3. If the landlord specifies a bank as aforesaid, the tenant shall deposit the rent in the bank and shall continue to deposit in it any rent which may subsequently become due in respect of the building.

4. If the landlord does not specify a bank as aforesaid, the tenant shall remit the rent to the landlord by money order, after deducting the money order commission.

5, If the landlord refuses to receive the rent remitted by money order under subsection (4), the tenant may deposit the rent before the Controller and continue to deposit with him any rent which may subsequently become due in respect of the building.

5. If the landlord refuses to accept or evades the receipt of rents, the tenant is given a system of remedies which he can resort to under the said provisions. If the landlord refuses to accept the rent or evades the receipt of the rent, it is not as if the tenant is left in the lurch. The machinery provided by sub-sections (2) to (5) can always be worked out. The resort to and the working of the remedies provided by these sub-sections must definitely have a purpose to serve. Under Section 10 of the Act, the landlord is given the right to evict a tenant on the contingencies set out therein and one such contingency is the default. which must be wilful, committed by the tenant in the payment of the rents. How the rents paid should be receipted is provided for in Section 8 of the Act. The landlord is enjoined to issue a receipt for the payment of the rents or advance. There is ample safeguard made for the tenant in case the landlord refuses to receive the rent or evades the receipt of the rent.

The receipt of the rent contemplated under Sub-section (2) of Section 8 must only be in accordance with the provisions of Sub-section (1). If the parties choose to adopt any other mode of payment and acknowledgment of the rents, they have to be content with the consequences, beneficial or otherwise, that may follow therefrom. If the tenant proves the payment of the rent by other modes, the Court can accept such proof and relieve the tenant from the consequences of Section 10 But, where wilful default in the payment of rents is alleged by the landlord and the answer of the tenant is that the landlord never issues receipts for the payment of the rents, the Court cannot ignore the implications of Section 8 and assess the controversy with out reference to such implications. 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.

6. Coming to the facts of the present case, proof of payment of rents is lacking and the matter is left to the sphere of presumptions and in ferences. I find that the reasonings given by the Appellate Authority are patently unsustainable. The delay on the part of the landlord to claim the arrears is being taken as a factor against him. Such a factor cannot, in the instant case, be taken for negativing the case of the landlord when he seeks eviction of the tenant on the ground of arrears of rent, especially when proof of the payment of arrears is lacking. The Appellate Authority has not appreciated and applied the implications of the provisions of Section 8 of the Act when it chose to assess the case of the tenant that inspite of the payments of the rents, the landlord omitted to issue the receipts As stated above, the tenant takes the risk if he fails to retort to the remedies available to him under Section 8 of the Act in case there is an omission on the part of the landlord to issue receipts for the rents paid, and in the absence of proof of payment, of the rents by any other then the receipts of the tenant cannot escape the consequence or eviction on the ground of default. The facto taken into consideration by the Appellate Authority are improper and there is an ommission on the part of the Appellate Authority to conform to the principles underlying the provisions of the Act. In this view, I am inclined to interfere in revision. Accordingly, this revision is allowed and the orders of the Appellate Authority are set aside and those of the Rent Controller are restored. There will be no order as to costs.

7. However, the tenant will have six months time to vacate and the learned Counsel for the petitioner has no objection for the grant of such time.


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