M SALEM Vs. JOSEPHINE MARY

JUDGEMENT

(1.) The tenant has filed these revisions. Originally, the respondent filed for eviction on five grounds viz., wilfuldefault, sub-letting, acts of waste, change of user and denial of title. The respondent did not press the grounds of subletting and change of user. The Rent Controller granted eviction on the remaining three grounds viz., wilful default, acts of waste and denial of title. The Appellate Authority confirmed the order of eviction only on the ground of wilful default and denial of title. The arguments advanced by the counsel were only on the ground of wilful default, and acts of waste.

(2.) The quantum of rent itself is in dispute. According to the petitioner, the rent payable is Rs.1,500/-. According to the respondent, it is Rs.2,000/-. The period of default is from September 1997 to January, 1998. Admittedly, the respondent has received an advance of Rs.35,000/-. It is the case of the petitioner that originally, at the commencement of the tenancy, which is 15.2.1989, the rent was fixed at Rs.1,000/-. Thereafter, on 5.6.1992, it was increased to Rs.1,200/-. In March 1996, it was increased to Rs.1,500/-. According to the petitioner, thereafter, there was no increase. But according to the respondent, subsequently, it was increased to Rs.2,000/-.

(3.) Learned counsel for the petitioner would submit except Ex.A5, which is a xerox copy of two sheets in a book, there is nothing to show that Rs.2,000/- was the rent that was agreed to be paid by the petitioner. Learned counsel would submit that when the document itself is inadmissible in evidence, the rent cannot be fixed as Rs.2000/-. It was also submitted that, in the petition filed in the HRCOP, it has been stated that the hand book, which was the evidence of receipt of rents, was left in the custody of the respondent, and it was for the respondent to produce the hand book. Production of xerox copies of two sheets was not acceptable. Therefore, rent payable is only Rs.1,500/-. Learned counsel pointed out to Ex.A9 which is the notice issued by the petitioner in which he has referred to the refusal on the part of the respondent to receive the rent, wherein the respondent had also been called upon to disclose his bank account in any of the nationalised banks. Soon, thereafter, this petition was filed and during the pendency of the RCOP, the entire arrears had been deposited and was continued to be paid. Therefore, according to the learned counsel for the petitioner, there was no default muchless wilful default. Reliance was placed on (2000)II MLJ 202 (Mahalingam v. Pichaiammal) wherein it was held that the landlord is permitted to take only one month's rent as advance. The learned counsel contends that retention of Rs.35,000/- paid as advance was improper and that sum ought to have been adjusted towards the arrears of rent.