KOUSALYA Vs. BALASUNDARAM

JUDGEMENT

(1.) THE tenant in R.C.O.P. No. 1969 of 1998 on the file of the Rent Controller, Madras and appellant in R.C.A. No. 551 of 1991 on the file of the Appellate Authority, Madras is the revision petitioner. THE respondent is the landlord in that proceedings. It may be noticed here that the revision petitioner is the sister of the respondent. Eviction was sought for on three grounds namely wilful default in payment of rent, denial of title, and owner's occupation of a non-residential building. THE Rent Controller rejected the request of the landlord on the ground of owner's occupation. However he chose to grant the relief under the other two grounds. THE tenant appealed in R.C.A. No. 551 of 1991 against the order of eviction granted on the two grounds. THE landlord also appealed in R.C.A. No. 171 of 1992 against the dismissal of the petition on the ground of owner's occupation. Both the appeals were disposed of by a common judgment. THE Appellate Authority dismissed the landlord's appeal. THE Appellate Authority in the tenant's appeal, reversed the finding of the Rent Controller on the ground of default but however affirmed the finding of the Rent Controller on the ground of denial of title. Hence the present revision before this Court against the judgment in her appeal.

(2.) I heard Dr. G. Krishnarnurthy, learned counsel for the petitioner and Mr. A.C. Chandrasekar, learned counsel appearing for the respondent. Even at the outset, the learned counsel for the respondent would contend that though he had filed a revision against the order of the Appellate Authority (the fact remains that the landlord had not filed any revision against the judgment in R.C.A. No. 171 of 1992 and likewise, the landlord had also not filed any revision against the order in R.C.A. No. 551 of 1992 against the findings rendered by the Appellate Authority on the ground of default, thereby reversing the order of the Rent Controller on that issue) yet, in view of the long line of decisions of this Court that even without filing a revision, the landlord would be entitled to argue in the revision filed by the tenant on points held against the landlord, he intends arguing. In view of the precedents on this point available in this Court, the landlord's counsel is permitted to argue on the finding of the Appellate Authority on the ground of wilful default. At the same time, the learned counsel for the respondent very clearly stated that he is not addressing any arguments on the ground seeking eviction on the ground of owner's occupation of a non-residential building on which the landlord had been non suited concurrently.

(3.) THE returned money order coupon Ex. R-3 reached the tenant on 24.2.1988. However he came to file the petition for deposit only on 27.7.1988 If really the tenant was anxious to discharge her obligation to pay the rent, the tenant should not have waited for such a long period of five months. THE Rent Controller found this aspect against the tenant. However the Appellate Authority, being guided by Ex. R-3 followed by Ex. P-3 notice and the filing of the deposit petition, proceeded to hold that the tenant was taking all steps to pay the rent and therefore she cannot be held to be guilty of wilful default in the payment of rent. This appears to be a conclusion reached on an improper appreciation of the material on record. It may be true that the tenant had discharged her obligation in paying the rent for the month of January 1988, which had been refused. But what the tenant had been doing after that is the question which has to be taken into account to decide whether the tenant is guilty of wilful default in paying the rent or not. As already noticed, Ex. R-3 reached the tenant on 24.2.1988. She gave the notice, asking the landlord to name a bank on 26.2.1988, which met with reply dated 14.3.1988. But thereafter she did not take any further action immediately and she came to file R.C.O.P. No. 2201 of 1988 only on 8.8.1988. This conduct on the part of the tenant in waiting for such a long time arid paying the sum of Rs. 7,400/- only on 21.2.1991 is a clear indication of the mind of the tenant that she is not willing to pay the rent. This aspect had escaped the attention of the learned Appellate Authority. Dr. G. Krishnamurthy, learned counsel for the petitioner, brought to my notice the judgment of the Honourable Supreme Court of India in S. Sundaram v. V.R. Pattabiraman (AIR 1985 SC 582) to hold that in all cases of wilful default, the landlord is under a legal obligation to give a notice demanding rent and if such a notice is not issued, the landlord cannot be given the relief of eviction on the ground of wilful default. This submission appears to be not correct. THE law is not that the landlord should necessarily issue a notice demanding rent before the filing of the eviction petition seeking eviction on the ground of wilful default. What is stated in the judgment is that if the landlord chooses to give a notice and the rent remained unpaid for the period of two months after the receipt of such notice, under the statute, a presumption is created that the default is wilful. Beyond that, the judgment does not say anything else in this regard. THE other judgment brought to my notice by the learned counsel for the petitioner is in Mohideen Sahib v. THEodre Samuel (1985 2 MLJ 355) to contend that failure to resort to Section 8 of the said Act would not by itself mean that the tenant is guilty of wilful default in the payment of rent. In this case the tenant had already resorted to filing of the petition under Section 8 of the said Act but on the facts I have found mat the default is wilful. Under these circumstances, I am of the opinion that the finding of the Appellate Authority that the tenant is guilty of denying title which is not bona fide , cannot be sustained and it is accordingly set aside. At the same time, this Court is also of the opinion that the finding of the Appellate Authority that the tenant is not guilty of wilful default in the payment of rent is opposed to evidence on record and it cannot be sustained. Accordingly the finding rendered by the Appellate Authority on wilful default is set aside.