PURANDARA VITTAL Vs. RADHA BAI

JUDGEMENT

(1.) The revi sion petitioner is the tenant in R.C.O.P. No. 3943 of 1983 on the file of the 10th Court of Small Causes, Madras (Rent Controller) and the appellant in R.C.A. No. 246 of 1989 on the file of the 7th Court of Small Causes. 'Madras (Appellate Authority). The respondents are the petitioners in the rent control petition and the respondents in the appeal. Eviction was sought for in this rent control petition by the respondents on two grounds namely, wilful default in the payment of the rent and for different user. There were two connected rent control petitions namely R.C.O.P. No. 3338 of 1984 between the same parties for eviction on the ground of owner's occupation (Residential) and demolition and reconstruction and R.C.O.P. No 4097 of 1984, for 'fixation of fair rent. In R.C.O.P. No. 3338 of 1984 the relief based on demolition and reconstruction was given up. The finding on the owner's occupation went against the landlord. In R.C.O.P. No. 4097 of 1984, the fair rent was fixed at Rs, 507 per month. However in this revision, we are not concerned with R.C.O.P. No. 3338 of 1984 and R.C.O.P. No. 4097 of 1984. As far as R.C.O.P. No. 3493 of 1983 is concerned, the learned Rent Controller ordered eviction on the ground of wilful default and rejected on the ground of different user. The rejection of the rent control. petition on the ground of different user had not been challenged by the landlord in any appeal or even before this court. The order of eviction on the ground of wilful default was sustained by the appellate authority. Hence the present revision. In this revision, the learned counsel on both sides advanced arguments only on the ground of wilful default on which eviction was ordered

(2.) I heard Mr. T.V. Krishnamachari, learned counsel appearing for the revision petitioner and Mr. M.S. Umapathy, learned counsel appearing for the respondents. It appears that one Rajamanickam Mudaliar was the owner of the subject property. He died in the year 1979. On his death his "Will" came into operation and thus the subject property devolved upon his children. Thus Radha.Bai Ammal, S.E. Easwari, S.E. Ambashankar, S.E. Jothishankar and Dr. S.E. Siva Shankar carne to the co-owners of the property. The tenant appears to have been the tenant in the subject property even from the year 1974 on a monthly rent of Rs. 30, which was subsequently increased to Rs. 50 p.m. from July, 1979. There was a family partition by a registered instrument dated 19.11.83 in and by which the subject property came to be allotted to the second respondent in this revision. In this order, the parties to this proceeding will hereinafter be referred to as the landlords and tenant.

(3.) The landlords filed an application for eviction in R.C.O.P. No. 3493 of 1983 alleging that the rent for the subject property is Rs. 400 p.m. and that the tenant had not paid the rent from March, 1983 to May, 1983, in spite of repeated demands. I am confining in this order only to the facts relating to the conduct of wilful default attributed to the tenant. The defence would go to show that the tenant was not in arrears of rent and that he had been regularly sending the rent to S.E. Ambashankar, one of the co-owners and that he had been refusing consistently. Therefore the tenant contended that though there was a default, yet it cannot be said that he has committed wilful default in the payment of the rent. The learned Rent Controller upheld the claim of the landlords and ordered eviction as already stated, which order was affirmed in appeal. Mr. T.V. Krishnamachari, learned counsel appearing for the revision petitioner contended that the default period complained of in this case is from March, 1983 to May, 1983, both months inclusive and the tenant had established in this case that he had been sending the rent to one of the co owners which he had refused and therefore when a valid tender made by the tenant was refused, the landlords cannot be allowed to come and complain that the tenant had committed wilful default in the payment of the rent. According to him, on the facts and circumstances of this case the payment of rent for the period complained of in the rent control petition stands fully established, though the tender was not accepted by the landlords. Therefore the learned counsel for the revision petitioner argued that both the Rent Controller and the Appellate Authority have made an erroneous approach to the point in issue, which resulted in miscarriage of justice. Mr. M.S. Umapathy, learned counsel appearing for the respondents contended that the tender of the rent for the relevant period as put forward by the tenant is not established at all. Even assuming that the tender of the rent had been made out, yet it had been made to a person who has no authority, to receive and therefore, it cannot be said that it is a valid tender. In any event, even if the rent tendered have been refused, it is the duty of the tenant to see that the landlords are paid the rent which they are entitled to collect, which has not been done in this case. According to the learned counsel, it is seen from the additional counter statement of the tenant that S.E. Ambashankar was not to be seen as he was not available from April, 1983 onwards. Therefore the tenant could not have sent the rent to him and yet if he had chosen to sent the same to S.E. Ambashankar, it only exposes his conduct towards his discharge of the obligations in the payment of the rent to the landlords. The learned counsel for the landlords also contended that the tenant had even denied the landlord-tenant relationship and he set up right in himself under the Tamil Nadu City Tenant's Protection Act and therefore his conduct in not paying the rent has to be necessarily inferred as wilful