T MANICKAM Vs. AYYANAR COFFEE AND CO

JUDGEMENT

(1.) THE petitioner is the tenant under the respondent. THE respondent filed R. C. O. P. No. 62 of 1986 on the file of the Rent Controller, tuticorin to evict the petitioner herein on the ground of wilful default in payment of rent and for owner's occupation. THE rent Controller by his order dated 6. 3. 1989 ordered eviction only on the ground of wilful default. So far as the requirement of the landlord for owner occupation is concerned, the Rent Controller negatived the claim of the respondent. As against this order of the Rent Controller, the petitioner preferred an appeal in R. C. A. No. 15 of 1989 on the file of the Rent Control appellate Authority, Tuticorin who confirmed the order of the Rent Controller and dismissed the appeal in and by his judgment dated 27. 2. 1992. Aggrieved by the same the present revision has been filed.

(2.) MR. T. R. Rajagopalan, the learned senior counsel and additional Advocate General on behalf of the petitioner contended that the respondent has stated in the petition that the petitioner has committed default in paying the rent from February, 1985 to June, 1986. But however admittedly the arrears had been paid before the first hearing of the petition that is on 11. 8. 1986. Hence in view of the judgment reported in Jabbar v. Abdul Bari, (1997)2 M. L. J. 181, the petitioner cannot be said to have committed any wilful default. Hence, the eviction petition ought to have been dismissed. But both the authorities below have concurrently found that the petitioner committed default in the payment of rents, subsequently to the filing of the petition, for ten months and on 18. 6. 1987 the arrears of rent for 10 months had been paid to the respondent herein and this will amount to wilful default and ordered eviction. Both the authorities are not correct in finding that the default committed by the petitioner during the pendency of the proceedings would amount to wilful default. Further the learned senior counsel contended that the door No. 143 is not in existence and as such the petition is liable to be dismissed.

(3.) SO far as the question of non-existence of the door no. 143 is concerned there seems to be some confusion in the door numbers. In the first counter filed on 11. 4. 1987, the petitioner did not raise any objection with regard to the existence of the door number. But however an additional counter has been filed on 7. 2. 1989 wherein, it is stated that there is no building as door number 143. In the cross-examination of his evidence he admitted that Exs. P-7 to P-14 relates to the receipt issued for payment of rent in respect of door No. 143. But however he explained saying that it is a mistake. R. W. 2 the Revenue Inspector of the Tuticorin Municipality has also stated in his cross-examination that Exs. P-16 to P-21 relates to the payment of water tax to door Nos. 142 to 146. He also admitted that the tax receipts refer to door nos. 142 to 146. The respondent did not produce any lease deed to identify the leased property. It is his case that he has taken a row of shops with vacant site and perhaps that may be the reason for the confusion in the door number. Whatever it may be it is the case of the petitioner that he has paid the rent and there is no arrears on the date of the first hearing of the R. C. O. P. If that be so, he might not have paid the rent for the tenanted property. The lower appellate authority has rightly found in paragraph 8 of his order that the petitioner is the tenant in respect of door No. 143 and the door No. 143 is in existence in view of the several documents referred to therein and as such the plea of the petitioner that the door number 143 is not in existence cannot be accepted. As there is no illegality or infirmity in the finding of both the trial as well as the lower appellate authority, their orders are confirmed. The civil revision petition is dismissed. .