FAROOK TEXTILES Vs. S M KAMALATCHI

JUDGEMENT

(1.) THE courts below have ordered eviction on the ground of wilful default in payment of rent. According to the respondent, the tenant had not paid rent from December, 1981 till the filing of the petition for eviction. THE petitioner raised a plea that he was a tenant under the previous owner, the husband of the respondent herein and when rent was sent by cheque, the previous owner refused to accept the same and the tenant filed a petition for deposit of rent into court, which was numbered as R. C. O. P. No. 181 of 1982 and an order was passed On 19. 4. 1982 directing deposit of rent into court. According to the petitioner, he was depositing as per that order continuously in that proceeding and therefore, there was no default or wilful default on his part. THE courts below have negatived the contention of the petitioner herein. THE courts below have found that the previous owner Krishnamachary died on 27. 3. 1992. Even before an order was passed in R. C. O. P. No. 181 of 1982 filed by the petitioner herein and that inspite of the fact that the previous landlord has died, the petitioner herein obtained an order of depositing the amounts in the said r. C. O. P. and continued to de-positin those proceedings. Later, the petitioner herein claimed that he had received a notice from some other person not to pay the rent to the present respondent and therefore, he did not pay the same to her. THEre was a suit filed by the present respondent in O. S. No. 9 of 1983 to establish her title and a decree was passed in her favour. THE petitioner herein was a party to that suit. Even after the filing of the suit he chose to continue to deposit the rent taking the stand that he will act according to the decree of the court which would be ultimately passed in the suit. In the present proceedings, the contention of the tenant was that he was not aware of the death of Krishnamachary, when an order was passed in R. C. O. P. No. 181 of 1982. THE courts below have found on the evidence that he was quite aware of the death. THE courts below have relied on the admission made by the petitioner in o. S. No. 9 of 1983 in his deposition and that he came to know of the death of krishnamachary from the newspaper. In the present proceedings, the petitioner attempted to say that he did not know to read Tamil and he did not read newspaper and he was not aware of the death of the prior landlord. That version has been rightly disbelieved by the courts below. In the circumstances, the courts below have come to the conclusion that the petitioner wilfully refrained from paying rent to the respondent and instead deposited the rent in a proceeding in which he obtained an order by suppressing the factum of death of the prior landlord. In those circumstances, there can be no doubt whatever that the tenant is guilty of wilful default.

(2.) LEARNED counsel for the petitioner contends that p. W. 1, the brother of the respondent had admitted in his evidence that in o. S. No. 9 of 1983 there was an averment in the plaint to the effect that the petitioner herein had deposited rent in court, P. W. 1 has also stated in the same evidence that he came to know of the deposit of rent by R. W. 1 only during the course of the present proceedings. LEARNED counsel for the petitioner submitted that P. W. 1 has not spoken the truth, in view of the above version given by him. There is no merit. in this contention, P. W. 1 has stated only what has been stated in the plaint in O. S. No. 9 of 1983 that the petitioner herein was depositing rent in the court. That does not mean that he admits that he knows the deposit of rent in R. C. O. P. No. 181 of 1982. Further, learned counsel for the petitioner relies upon the deposition of P. W. 1 to the effect that he received notice on behalf of deceased Krishnamachary in R. C. O. P. No. 181 of 1982 on 16. 3. 1982 and learned counsel contends that the respondent was fully aware of the proceedings in R. C. O. P. No. 181 of 1982 and also deposit of rent in the said proceedings. According to learned counsel for the petitioner it is for the respondent to take steps to withdraw rent from the court in R. C. O. P. No. 181 of 1982 aware of the proceedings in R. C. O. P. No. 181 of 1982 and there is no default on his part as long as he continued to make deposit. There is absolutely no substance in the above contention. Once it is found that the petitioner was aware of the death of the prior i landlord and inspite of the same, suppressed the fact and fraudulently obtained an order from the Rent Controller for deposit of rent, that itself shows that he was clearly guilty of wilful default. In such circumstances, the petitioner cannot place any reliance on the failure of the respondents to withdraw the rent from the court deposit. We are only concerned with the question of wilful default on the part of the tenant. The act enjoins a duty on the tenant to tender or to pay the rent. In the absence of such tender or payment of the rent by the tenant, the tenant is guilty of default. The facts of the case clearly make out wilful default on the part of the petitioner herein. Reliance is placed by learned counsel for the petitioner in Thaiyal Nayaki v. Ayyavu Chettiar, (1976)1 M. L. J. 15 (S. N. ). It was found in that case that the tenant opened an account in a post-office and deposited the rents for every month, when the landlord rejected the money order sent by him. It was held that in those circumstances, the tenant was not guilty of wilful default.

(3.) LEARNED counsel for the petitioner invites my attention to the judgment in A. S. Pandurangan Chettiar v. C. S. R. Bashyam, (1991)2 l. W. 628. Cheques which were sent to the landlord have not been encashed by him. The tenant, therefore, deposited the rent in the Savings Bank account in his own name. There was no notice by the landlord demanding arrears of rent. In those circumstances, the court held that there was no wilful default on the part of the tenant.