AVAIZ MUSVEE Vs. B. BALAN

JUDGEMENT

(1.) The revision petitioner is the a landlord in R.C.O.P. No 2408 of 1984 before the Rent Controller (Small Cause Court), Madras. He filed the eviction application against the respondent under Sec. 10 (a) (1) of J Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 alleging that the respondent is a tenant of the petition mentioned premises which is a shop at Door No.9, Siyali Amman Koil Street. Mount Road, Madras on a monthly rental of Rs.85.00. He was not regular in payment of rent. He has committed default In paying the rent for five months from Jan. 1984 to May 1984. The tenant repudiated the allegations and pleaded that he used to pay the rent regularly whenever the landlord came for collection. Sometimes the landlord would make his appearance once in two or three months. He was ready to pay the rent every month The landlord is not in the habit of issuing receipts. When he tendered the rent for the months of Jan. and Feb. 1984 on 10-3-1984, when landlord came to the premises, the latter refused to receive the same. Thereafter he sent a cheque for two months rent by certificate of posting. When he offered the rent the month of March 1984 in person, again the landlord refused to receive the same. So 40-4-1984 he sent a cheque for the rent amount by certificate of posting. Similarly he sent cheques by certificate of posting on 10-5-534 for the month of April and on 10-6-1984 for the month of May. The landlord who relived the cheques did not pass any receipts, with mala fide intention he had not encashed them also. So on 14-7-1984 he sent the rent for the seven months from 1-1-1984 to 31-7-1984 by Money Order. The landlord received the same.

(2.) Learned Rent Controller found that the tenant has committed wilful default in payment of rent and accordingly allowed the application and granted three months time for eviction, the tenant took up the matter in appeal before learned Appellate Authority in R.C.A. No. 906 of 1986 on his file. The appeal was allowed and the order of the Rent Controller was set aside aid R.C.O. P No.2408 of 1984 was dismissed landlord challenges the said order in this revision petition.

(3.) Learned counsel for the revision petitioner submits that both the Courts below have concurrently found that there was wilful default id the part of the tenant in payment of rent. However, the appellate authority has allowed the appeal for the reason that the acceptance of arrears of rent of Rs.595.00 by the landlord on 4-7-1984 absolves the tenant of the default committed by him. We find from the orders of the Court below that the rent for the months of Jan. to May 1984 remained unpaid on the date of the petitions is not in dispute. As per the respondent/tenant, he fell into arrears only because of the refusal by the landlord to receive the rent. Since the landlord was not prepared to receive the rent, on 10-3-1984 he sent two months rent by means of cheque. The tent for the month of March 1984 was also sent by means of a cheque on 10-4-1984. And the cheque sent on 2-7-1984 was in respect of the lent for May 1984. Exs.P.4 and P-7 are the counter-foils of the cheques. However, learned counsel for the revision petitioner points out that there is no reason for the tenant for not sending the cheques by means of registered post with acknowledgment due. Once the tenant found that there was no response from the landlord after sending the first cheque, it is unlikely he would have continued to send the subsequent cheques also through certificate of posting. Besides, the evidence of P.W.2 the Treasurer of Indian Bank, Chinthathiripet Branch discloses that the tenant was having his account with the Bank in the name of Balan, Proprietor, Balan Auto Service. Ex.P.7 is the copy of the Bank accounts of the tenant. And as per this account the tenant was having a bank balance of only Rs. 109.25 in December. 1983. The account remained un-operated from Dec. 1983 to Dec. 1984. Throughout this period the Bank balance remained only at Rs.104.00. Had any cheque been presented during this period, it would have been dishonoured. On the basis of this evidence, learned counsel for the revision petitioner urged that even if the remittance through cheques as claimed by the tenant is true, it is only with mala fide intention and he had no idea of making payments. Besides, the tenant has admitted in cross-examination that on 4-1-1986 he had received a letter from the landlord to send the cheque to the address 129, Creams Road. However, the cheques were sent to 106, Armenian Street, Madras. So the intention of the tenant was that the cheques should not find their way into the hands of the landlord. On these factors both the Courts below have found that deliberately tenant has withheld payment of rent for the period from 1-1-1984 to 31 -5-1984.