Bookmark
PDF
Share
CaseIQ

S. Pandian Petitioner In Both C.R.Ps v. A.G Velayudham In Both C.R.Ps

Madras High Court

Jun 16, 2006

Judgment

Subsequent
References

CaseIQ

Important Paras

Please sign up to view Important Paras.

Smart Summary (Beta)

Structured Summary of the Opinion (Common Order)

Factual and Procedural Background

The respondent/landlord filed R.C.O.P. No. 2077/2003 seeking eviction of the tenant (the revision petitioner) from the premises on the ground of wilful default in payment of monthly rents for the period August 2003 to October 2003. The tenant denied wilful default, contending that rent was paid for August and September 2003 but receipts were not issued, and that the rent for October 2003 was refused by the landlord when offered; the tenant sent a Money Order for October which was also refused, and subsequently served a notice requesting the landlord to specify a bank account for deposits. The tenant also filed R.C.O.P. No. 2269/2003 seeking to deposit the refused rent for October 2003 and future rents.

The learned Rent Controller conducted a common trial and, by order dated 22.03.2004, allowed the landlord's RCOP No. 2077/2003 (eviction) and dismissed the tenant's RCOP No. 2269/2003 (deposit petition). The tenant appealed to the Rent Control Appellate Authority in R.C.A. Nos. 505 and 506 of 2004; by a common judgment dated 23.11.2005 the Appellate Authority dismissed those appeals, confirming the Rent Controller's order. The tenant filed the present Civil Revision Petitions against that concurrent judgment. The court heard counsel for both sides, reviewed the documents, and pronounced its common order dismissing the revision petitions.

Legal Issues Presented

Whether the tenant had paid the rents for the months of August and September 2003 (the central factual dispute underlying the eviction claim).
Whether the tenant complied with Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (the Act) when attempting to deposit rent that the landlord purportedly refused—specifically, whether the procedural steps required before remitting rent by Money Order and before depositing rent with the Rent Controller were followed, and thus whether the tenant's petition under Section 8(5) was maintainable.

Arguments of the Parties

Revision Petitioner (Tenant)

The tenant asserted that rent for August and September 2003 had been paid but the landlord failed to issue receipts.
For October 2003, the tenant maintained that the landlord refused to accept the rent when it was offered; the tenant then sent a Money Order which the landlord refused and subsequently issued a legal notice requesting specification of a bank account so rent could be deposited.
The tenant contended that when rent control proceedings were pending, monthly rents were paid, and therefore there was no wilful default; the tenant argued his conduct consistently demonstrated a willingness to pay rent whereas the landlord habitually failed to issue receipts and sometimes refused to accept payment.
The tenant prayed that the Appellate Authority's order confirming eviction be set aside.

Respondent (Landlord)

The landlord's counsel submitted that rent for August and September 2003 was not paid and therefore the tenant was guilty of supine indifference to payment of rent.
The landlord maintained that the evidence before the authorities clearly established the tenant's default, and that the revisional court should not disturb the concurrent findings below.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court identified the sole dispute as whether the tenant had paid rents for August and September 2003. It noted the following key factual and evidentiary points relied upon in the courts below and by the Appellate Authority:

It was admitted by the tenant that receipts had been issued by the landlord up to July 2003 and that the landlord normally issues receipts when rent is paid. The tenant's claim of payment for August and September 2003 thus required proof notwithstanding the landlord's practice of issuing receipts.
The Rent Controller and the Appellate Authority relied on Ex.P7, which is the plaint in O.S. No. 4580/2003 (a suit filed by the tenant seeking an injunction). In paragraph 6 of that plaint the tenant stated that on 5.9.2003 when he tendered rent for August 2003 the landlord refused to accept it. The court treated this statement in the plaint as contradictory to the tenant's later claim in rent control proceedings that the rent for August and September 2003 had been paid and receipts not issued. The Rent Controller disbelieved the tenant's version and concluded wilful default had been established; the Appellate Authority accepted that conclusion.
The court emphasized the statutory procedure under Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for situations where a landlord refuses to accept or evades receipt of rent: (1) the tenant must serve a written notice requiring the landlord to specify a bank within ten days; (2) if a bank is specified, the tenant must deposit rent there; (3) if no bank is specified, the tenant must remit rent by Money Order after deduction of commission; and (4) only if the Money Order is refused may the tenant deposit rent before the Controller and continue to do so for subsequent rents. The opinion reproduced Section 8 in full and analyzed the mandatory sequence of steps.
The court found that the tenant did not follow the statutory sequence: the tenant sent a Money Order on 21.11.2003 and immediately thereafter (23.11.2003) served a legal notice asking the landlord to specify a bank. The tenant's own notice admitted the Money Order had not been received by the landlord. Thus the tenant did not first serve notice and await the landlord's specification of a bank; instead, he reversed or compressed the steps and failed to verify whether the Money Order had been accepted before proceeding to other remedies.
On the basis that the tenant had not meticulously followed the procedure prescribed by Section 8 before attempting to deposit the rent with the Rent Controller, the court concluded that the petition under Section 8(5) was not maintainable.
Finally, the court noted that where two statutory authorities (the Rent Controller and the Appellate Authority) have concurrently arrived at a conclusion based on the evidence adduced, the revisional court should not interfere in the absence of illegality or perversity. No such illegality or perversity was shown.

Holding and Implications

Holding: The Revision Petitions are dismissed. The court found no merit in the petitions and held that the tenant had failed to follow the procedure under Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, rendering the petition under Section 8(5) not maintainable. C.M.P. No. 3126/2006 was also dismissed.

Direct consequences and orders:

The dismissal of the revision petitions leaves intact the common orders of the Rent Controller (dated 22.03.2004) and the Appellate Authority (dated 23.11.2005) which ordered eviction on the ground of wilful default.
The court granted the tenant three months from the date of the order to vacate and hand over vacant possession to the landlord, on condition that the tenant files an affidavit of undertaking to that effect within seven days and serves a copy on the landlord's counsel.
The matter was posted for 29.06.2006 as indicated in the order.

No broader legal implications or new precedent were articulated in the opinion; the court limited itself to upholding the concurrent factual and legal findings below and enforcing the statutory procedural requirements of Section 8.

Judge: S. Rajeswaran, J.

Show all summary ...

COMMON ORDER

These Revision Petitions have been filed by the petitioner against the common judgment dated 23.11.2005 rendered in R.C.A No. 505 and 506 of 2004 on the file of the learned VII Court of Small Causes, Chennai, confirming the common order in R.C.O.P No. 2077 2269/2003, on the file of the XIV Court of Small Causes, Chennai.

2. The tenant is the revision petitioner in both the Civil Revision Petitions, filed against the common judgment made by the Rent Control Appellate Authority in R.C.A Nos. 505 and 506 of 2004. The respondent/landlord filed R.C.O.P No. 2077/2003 for evicting the revision petitioner from petition schedule premises on the ground that the tenant committed wilful default in payment of monthly rents from August 2003 to October 2003. The tenant filed a counter affidavit denying any wilfull default and contended that the rent was already paid for the month of August and September 2003 but the landlord did not issue any receipt for the rents. For the month of October 2003, the landlord refused to receive the rent when the rent was offered by him and therefore he sent a Money Order which was also refused by the landlord. Thereafter he issued a legal notice calling upon the landlord to specify a bank account so that he can deposit in the bank. Without specifying the bank account, RCOP has been filed by the landlord and before the Rent Controller, he remitted the rent for the month of October to December 2003 and the same was received by the learned counsel for the landlord. In such circumstances, there was no default at all as per the tenant.

3. The tenant has also filed RCOP No. 2269/2003 to deposit the refused rent for the month of October 2003 and also the future rents in respect of the petition premises.

4. The learned Rent Controller conducted a common trialand passed an order on 22.3.2004 allowing the RCOP No. 2077/03 for eviction on the ground of wilful default filed by the landlord and dismissing the RCOP No. 2269/03 filed by the tenant. Aggrieved by the common order passed by the Rent Controller dated 22.3.2004, the tenant filed two appeals in RCA Nos. 505 and 506 of 2004. The learned Appellate Authority also by a common judgment dated 23.11.2005 dismissed the appeals and hence the tenant has filed the above Revision Petitions against the concurrent common judgment.

5. Heard the learned counsel for the petitioner as well as the learned counsel for the respondent. I have also perused the documents filed in support of their submissions.

6. Learned counsel for the Revision Petitioner submitted that it is a case of non-issue of receipt by the landlord even after receiving the payments from the tenant for the months of August and September 2003. Insofar as the rent for October 2003 is concerned, it was refused by the landlord and therefore steps have been taken by the tenant to deposit the same in accordance with the Rent Control Act. When the rent control proceedings were pending, the monthly rents were paid then and there and as such there is no default at all. Learned counsel pointed out that if the totality of the entire facts are taken into consideration, it would prove that the conduct of the tenant is always to pay the rent and it is the landlord who is in the habit of not issuing any receipt for the rent paid and not accepting the rent when it is attempted to be paid. Thus learned counsel for the revision petitioner prays for setting aside the order of the Appellate Authority, confirming the order of the Rent Controller.

7. Per contra, learned counsel for the respondent/landlord submitted that even now the rent for the months of August and September 2003 were not paid and therefore the tenant is guilty of supine indifference in the payment of rent which fact has been clearly established before the authorities below and this court in its revisional jurisdiction need not disturb the same.

8. The only dispute in the present case is whether the petitioner/tenant has paid the rents for the months of August and September 2003.

9. It is admitted by the tenant that the landlord is in the habit of issuing receipts whenever the rent is being paid. It is also admitted that receipt was given by the landlord for the rent paid up to the month of July 2003. The tenant's further case is that for the month of August and September 2003, even though the rent was paid by him, the landlord did not issue receipts for the same. But the landlord refuted the statement and contended that rent was paid only up to July 2003 and no rent was paid thereafter.

10. The Rent Controller disbelieved the statement of the tenant that the rent was paid for these two months by relying on Ex.P7 which is a plaint filed in O.S No. 4580/2003. This suit was filed by the tenant seeking an injunction against the landlord. In para 6 of the plaint, the tenant stated that on 5.9.2003 when the tenant as plaintiff tendered the rent for the month of August 03 the landlord as defendant refused to accept the same. Therefore, even according to the tenant, the rent for the month of August 2003 was refused by the landlord. But in the rent control proceedings, the tenant claimed that he had paid the rent for the months of August and September 2003 and after receiving the same the landlord did not issue any receipt. This contradictory statement was taken note of by the Rent Controller to come to a conclusion that the tenant committed willful default. The Appellate Authority also relied on Ex.P7 (plaint) to come to a conclusion that the tenant has committed willful default as he has miserably failed to establish that the rent for the defaulting period has been paid by him.

11. When the two authorities under the Rent Control Act have come to a conclusion, on the basis of the evidence let in before them that the tenant has committed willful default, it may not be proper for this court sitting in revision to interfere with the findings of the courts below in the absence of any illegality or perversity.

12. Whenever the landlord refused to issue any receipt for the rent paid by the tenant, it is open to the tenant to take recourse to Sec. 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act 18/1960 (hereinafter called ‘the Act’). In the present case, the tenant claimed that when he paid the rent for the month of October 03, the same was refused by the landlord. In such circumstances, he should have meticulously followed the procedure enumerated under Sec. 8 of the Act. But the tenant has straight away sent the rent by Money Order and without even waiting to see whether the Money Order has been accepted or not, he sent a legal notice dated 23.11.2003 which was; marked as Ex.P1 calling upon the landlord to specify a bank account. This, in my view, is contrary to the provisions enumerated under Sec. 8 of the Act. Section 8 of the Act is extracted as under: —

“8. Landlord liable to give receipt for rent or advance: — (1) Every landlord who receives any payment towards rent or advance shall issue a receipt duly signed by him for the actual amount of rent or advance received by him.

(2) Where a landlord refuses to accept, or evades the receipt of, any rent lawfully payable to him by a tenant in respect of any building, the tenant may, by notice in writing, require the landlord to specify within ten days from the date of receipt of the notice by him, a bank into which the rent may be deposited by the tenant to the credit of the landlord.

Provided that such bank shall be one situated in the city, town or village in which the building is situated or if there is no such bank in such city, town or village, within five kilometres of the limits thereof.

Explanation: — It shall be open to the landlord to specify from time to time by a written notice to the tenant and subject to the proviso aforesaid, a bank different from the one already specified by him under this subsection.

(3) If the landlord specifies a bank as aforesaid, the tenant shall deposit the rent in the bank and shall continue to deposit in it any rent which may subsequently become due in respect of the building.

(4) If the landlord does not specify a bank as aforesaid, the tenant shall remit the rent to the landlord by Money Order, after deducting the money order commission.

(5) If the landlord refused to receive the rent remitted by Money Order under subsection (4), the tenant may deposit the rent before the Controller and continue to deposit with him any rent which may subsequently become due in respect of the building.”

13. From the above provision of the Act, it is very clear that the tenant has to send a notice in writing requiring the landlord to specify the bank and only if the bank is not specified by the landlord, the tenant shall remit the rent by Money Order. Even when the Money Order is refused, then only the tenant may deposit the rent before the Rent Controller.

14. Here the tenant has straight away sent the Money Order on 21.11.03 and immediately sent the legal notice dated 23.11.03 calling upon the landlord to specify the bank account. The tenant has clearly admitted in the notice dated 23.11.03 that the Money Order sent by him was not yet received by the landlord. From this, it is very clear that the revision petitioner has not followed the procedure contemplated under Sec. 8 of the Act to make out a case to deposit the rent before the Rent Controller. When the tenant initiates proceedings under Sec. 8 of the Act, the same should be in accordance with law. Otherwise he cannot escape from the liability of being evicted. When the procedure to be followed prior to filing of the petition under Sec. 8 of the Act is not resorted to by the tenant, the petition under Sec. 8(5) of the Act is not maintainable.

15. In the light of the above, I do not find any merits in the Revision Petitions and therefore the same are dismissed. No costs. C.M.P No. 3126/2006 is also dismissed.

S. Rajeswaran, J.

After pronouncement of the order today, the learned counsel for the tenant/petitioner seeks time for the tenant to vacate the premises and hand over vacant possession. Accordingly, three months time is granted to the tenant/petitioner from today to vacate and hand over the vacant possession of the premises in question to the respondent/landlord on condition that the tenant/petitioner files an affidavit of undertaking to this effect within a period of seven days from today, after serving a copy of the same to the learned counsel for the respondent/landlord.

Post the matter on 29.06.2006

VCJ/VCS