MAHABOOB BEE Vs. P D ANDREWS

JUDGEMENT

(1.) THE unsuccessful tenants in R.C.A. 225 of 1984, on the file of the appellate authority (III Judge, Court of Small Causes, Madras) are the petitioners in this revision petition. THE respondents are the landlords.

(2.) THE respondents-landlords filed the eviction petition in R.C.O.P.2621 of 1982 before the learned Rent Controller, (II Judge, Court of Small Causes) Madras, seeking eviction of the tenants on the ground of wilful default, sub-letting and the requirement for their own use by way of additional accommodation. According to the landlords, they purchased the petition premises under Ex.P-1 on 9th March, 1981 and the fact of purchase was intimated to the original tenant orally. It is claimed by them that the tenant has committed wilful default in the payment of rent from November, 1981 to January, 1982, and that he has also sublet the petition premises to respondents 2 to 6 in the eviction petition. THE landlords also claimed possession on the ground that they required the premises by way of additional accommodation. It was resisted by the original tenant on the ground that he had paid the rent to the previous owner upto June, 1981 and that as the rents for the months of July and August, 1981 were refused by the previous owner, he sent a sum of Rs.600 being the rent for the months of July, August and September, 1981, to the present landlords which were received by them. According to him, the landlords were aware of the payment made by him to the original owner for the period upto June, 1981. It was further contended that he has not sublet the building to the respondents 2 to 6 in the eviction petition. THE requirement of the landlords by way of additional accommodation was also denied by the original tenant.

(3.) MR. Mustafa, learned counsel for the petitioners contended that the landlords have not established that the original tenant has committed wilful default in the payment of rent. According to him, after the purchase of the petition premises, no intimation was sent to the original tenant either by the original owner or by the present landlords.In those circumstances, the tenant had paid the rents for April, May and June 1981, to the original owner Mehrunnissa. Thereafter, since she refused to receive the rents, the tenant sent the rents for July and August, 1981 by money order to the original owner which were refused by her. Then the landlords sent a notice Ex.P-3, dated 23.9.1981, to the tenant calling upon him to pay the rent to them. Thereafter, the tenant sent a sum of Rs.600 by money order to the landlords, being the rents for three months, nemely, July, August and September, 1981. This is evidenced . by Ex.R-1 series dated 27.10.1981. After the receipt of the money order, the landlords sent a notice under Ex.P-5, dated 31.10.1981, stating that the tenant was liable to pay rent for the period April, May and June, 1981 also and, therefore, the rents sent for three months alone were appropriated towards the rents payable for the earlier three months. Subsequently, the tenant sent Rs.400 by money order under Ex.R-2, being the rent for two months for October and November, 1981, and another sum of Rs.200 by money order under Ex.R-3 being the rent for December, 1981. Again another money order was sent for a sum of Rs.200 under Ex.R-4 being the rent payable for the month of January, 1982. Thereupon, the landlords issued another notice under Ex.P-7, dated 17.3.1982 stating that the said payments were adjusted towards the earlier arrears of rent and intimating the tenant that he was in arrears of rent for the period from November, 1981 to January, 1982. According to the learned counsel for the petitioners, the tenant sent the rents specifically for the period from July, 1981 to January, 1982 and that in each of the money orders he had specifically indicated the particular month for which the rent was sent. The landlords also received the rents sent by money orders for those months without any protest. However, it was only later on they issued a notice stating that those amounts were received and appropriated towards the arrears of rent for the earlier months. Learned counsel submitted that when the tenant had sent the rents for specific months, it was not open to the landlords to appropriate the same for a different period to suit their own case. In support of this proposition, learned counsel relies on the provisions of Sec.59 of the Contract Act which reads as follows: 'Where a debtor, owing several distinct debts to one person, makes a payment to him, either with express Intimation or under circumstances implying that the payment is to be applied to the discharge of some particular debt, the payment, if accepted, must be applied accordingly'. It is seen that Secs.59 to 61 of the Contract Act prescribed the procedure as to appropriation of payments in cases where a debtor owes several distinct debts to one person and voluntarily makes payments to him. It is well established principle that if a series of separate debts exists between a creditor and a debtor, the debtor may make payment towards any one of them as he may deem fit and if he specifically appropriates the payment to particular debt the creditor is not entitled to accept the payment otherwise than in respect of the debt to which it is so appropriated by the debtor. This was the principle laid down in one of the earlier cases known as CLAYTON'S CASE. According to these principles, if the debtor specifies the application which is to be made of his payment this direction must be followed. Once a creditor chose to accept the payment, he is bound to appropriate the same according to the directions of the debtor. Placing reliance on these principles, learned counsel submits that in this case, the fact, that the tenant had sent the rent for specific months is not in dispute. Therefore, the landlords are not entitled to appropriate those payments towards the arrears of rent accrued for the earlier months. On a plain reading of the provisions of the Contract Act, I find that the said objection is sustainable. However this does not mean that the landlords should be non-suited on this sole ground. According to them, the tenant was in arrears for the months of April, May and June, 1981 and no payments were made either to the original owner or to them. The factum of payment of rents for the said period is now in dispute. Once it is found that the landlord is not entitled to appropriate the subsequent payments to the earlier period, it has to be found whether the tenant had paid the rents for the first three months and whether it will amount to wilful default. This question cannot be decided at this stage, since as the pleadings stand today, the landlords have come forward with a petition on the ground of wilful default for the specific period of November, December, 1981 and January 1982. Therefore, it has become necessary for the landlords to suitably amend the petition so as to correctly mention the period of default and this cannot be done at the revisional stage. It is also seen that though the landlords have claimed possession on the ground that they require the premises for their own use by way of additional accommodation, the question whether they are entitled to claim possession under Sec. 10(3) (a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960 was not seriously argued by the parties nor was it considered by the authorities below.