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Judgment
AR. Lakshmanan, J.—The tenant is the review petitioner. The landlord T.M. Sulaiman filed a petition under Sections 10(2)(i) and 10(3)(c)
of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, for eviction of the tenant in R.C.O.P. No. 253 of 1985 on the file of the Rent
Controller/District Munsif, Coimbatore, on the ground of wilful default in payment of rent and for additional accommodation. The eviction petition
was resisted by the tenant contending that he had not committed any default in payment of rent and that the requirement of the landlord for
additional accommodation is not bona fide. The learned Rent Controller dismissed the petition against which the legal representatives of the
landlord T.M. Sulaiman, the respondent herein, filed R.C.A. No. 67 of 1989 on the file of the Appellate Authority/Subordinate Judge,
Coimbatore. The learned Appellate Authority has confirmed the findings of the learned Rent Controller insofar as it relates to the requirement of
the premises for additional accommodation but ordered eviction on the ground of wilful default in payment of rent. The civil revision petition was
filed by the tenant against the finding of the learned Appellate Authority.
When the revision came up for final hearing, the learned Counsel for the tenant contended that the tenant has deposited the entire arrears of rent
for the period in question and therefore, there is no wilful default. I verified the original petition. Since there is no endorsement of payment of rent
made in the original petition and since the learned Counsel for the tenant also was not in a position to place before this Court any further proof to
show that the entire arrears was paid on the first hearing date or before the first hearing of the original petition, I rejected the contention of the
tenant on the short ground. In the concluding portion of my judgment, I have observed thus:
I have gone through the orders of the courts below. The authorities below have clearly found on evidence that the petitioner is in arrears and
therefore, is liable to be evicted. It is also contended by the respondent that the petitioner''s subsequent conduct in not paying the rents regularly
every month should also be taken into account in considering the facts of wilful default and in ordering the eviction. It is not the case of the
petitioner that he has been paying the rent regularly every month. In the absence of any proof for payment of arrears of rent on the first hearing date
as argued by the learned Counsel for the petitioner, the petitioner/tenant is not entitled to claim to continue to be in the premises in question. No
other point is argued by both the parties. Therefore, the order of the authority below is confirmed and the civil revision petition is dismissed. No
costs.
To review the above order of mine dated 8.8.1996, the present review application has been filed. This Court admitted the same on 17.10.1996
and ordered notice to the respondents. The respondents are now represented by Mr. V. Manohar.
Mrs. Nalini Chidambaram, learned Senior Counsel appearing for the tenant contended that the tenant has now traced out the old records and
found that he has paid the rent for the period in question by way of two money orders on 30.9.1985, that he has sent a sum of Rs. 1,200
representing the rent from February to September, 1985, that the same was received by the landlord T.N. Sulaiman on 30.10.1985 and that since
the date of receipt of the rent was on 3.10.1985, i.e., prior to the first effective hearing, viz. 10.10.1985, the finding of this Court in the revision
dated 8.8.1996 has to be reconsidered on the basis of the judgment of the Supreme Court reported in Dakaya alias Dakaiyan v. Anjani (1996) 1
L.W. 25 and the judgment of this Court in Sree Ramachandran Vs. Krishnaraj, and that if the principles laid down in those judgments are applied,
the order of eviction is liable to be set aside. It is also stated in the affidavit filed in support of C.M.P. No. 15443 of 1996 that the non-production
of the money order receipts at the earliest point of time was neither wilful nor wanton.
The learned Counsel for the landlords contended that even though the first date of hearing was on 30.8.1985 and the summons were served on
7.8.1985, the tenant has paid the rent only on 3.10.1985 and therefore, he is not entitled to the benefits of the judgments cited by him.
The following dates and particulars are relevant for the purpose of deciding the issue. The particulars were gathered from the original petition.
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Date Particulars
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19.7.1985 The landlord signed the eviction petition.
30.7.1985 The landlord presented the eviction petition in court.
31.7.1985 Notice was ordered by the Rent Controller returnable by
30.8.1985.
30.8.1985 Judge was on Casual Leave. Reposted to 1.10.1985.
1.10.1985 Process not returned. Posted to 10.10.1985.
10.10.1985 Respondent/tenant served. Mr. A.S. Ananthanarayana Iyer
filed Vakalath.
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We are not concerned with the other dates.
As already noticed, along with the review application, C.M.P. No. 15443 of 1996 has been filed to receive the original money order receipts
and the acknowledgment of the money orders as additional documents. They are:
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(i) 30.9.1985 Postal payment receipt for money order of Rs. 1,000.
(ii) 30.9.1985 Postal payment receipt for money order of Rs. 200.
(iii) 3.10.1985 Acknowledgment and receipt of the money order by T.M.
Sulaiman amount of Rs. 1,000.
(iv) 3.10.1985 Acknowledgment and receipt of money order by T.M.
Sulaiman of Rs. 200.
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I have perused the two postal payment receipts and the acknowledgments by T.M. Sulaiman, the original owner. In money order receipt No.
6809 a sum of Rs. 1,000 was sent to T.M. Sulaiman on 30.9.1985 and in money order receipt No. 6810, a sum of Rs. 200 was sent to T.M.
Sulaiman on the same day. T.M. Sulaiman''s name is shown in the column ''payee'' in both the receipts. T.M. Sulaiman has received both the
money orders on 3.10.1985. Therefore, accepting the explanation of the tenant for their non-production earlier, C.M.P. No. 15443 of 1996 is
ordered and the additional documents filed are marked as Exs. R-1 to R-4 on the side of the tenant.
Mr. V. Manohar, learned Counsel for the respondents/landlords contended that the payment received on 3.10.1985 cannot be construed as the
payment either on the first hearing, viz., on 30.8.1985 or on the next adjourned hearing date i.e., on 1.10.1985 and that even though the tenant
was served with summons on 7.8.1985, he has not paid the arrears of rent either on 30.8.1985 or on 1.10.1985 and as such, he is not entitled to
the indulgence of this Court.
I am unable to agree with the above contention of the learned Counsel for the respondents. As already noticed, on 30.8.1985, there was no
sitting of the court and the Judicial Officer was on casual leave. So, the matter was posted to 1.10.1985. On 1.10.1985, as per the court records,
since the process was not returned, the matter was adjourned to 10.10.1985. In the meanwhile, the tenant has sent two money orders on
30.9.1985, itself, which were received by the original landlord on 3.10.1985, i.e., prior to the first effective hearing viz., 10.10.1985, on which
date the court has made an endorsement on the original petition that the tenant is served and Mr. A.G. Ananthanarayana Iyer filed vakalath for the
tenant. Therefore, when the money order was sent on 30.9.1985, i.e., before the date of hearing on 1.10.1985, it should be construed only as the
payment made prior to the first hearing. As already noticed, the money orders were also received by the landlord on 3.10.1985 before the
effective hearing of the matter on 10.10.1985 on which date alone the Rent Controller sat in court.
In the decision reported in Abdul Hameed v. M. Sultan Abdul Kader (1996) 2 L.W. 525 though the default was for 12 months, immediately
on the filing of the petition, the entire arrears had been deposited by the tenant even at the first instance without the trial court granting any
reasonable time. This important fact was not taken note of by the Appellate Authority. This Court, in revision, set aside the order of eviction
passed by the Appellate Authority.
In the decision reported in V. Krishna Mudaliar v. Lakshmi Animal (1996) 2 L.W. 467 the tenant in fact, deposited the rent immediately after
the ejectment suit was filed by the landlord. It was contended that the default in the payment of rent by the tenant, if any, was not wilful and as
such, he was entitled to the benefits of the proviso to Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act. Accepting the
contention of the tenant, the Supreme Court held that keeping in view the peculiar facts and circumstances of the case, the default in the payment of
rent on the part of the tenant was not wilful since, admittedly, the appellant/tenant had deposited the rent in the court of the Rent Controller within
one month of the institution of the application.
In the decision reported in Sree Ramachandran Vs. Krishnaraj, , the tenant sent the arrears of rent by money order even before the receipt of
summons in the eviction petition. This Court has held that no order of eviction could be made against the tenant on the ground of wilful default in
payment of rent and set aside the order of eviction passed against the tenant.
The decision reported in Selvaraj v. Meenakshi Bai 1996 T.L.N.J. 407, is a case of eviction on the ground of wilful default in payment of rent
for two months. The rent due for two months was paid after the filing of the eviction petition. This Court held that there is no wilful default and that
the tenant is not liable to be evicted.
As already noticed, the tenant has shown sufficient cause for not filing the documents, which are now filed as additional documents, earlier.
This apart, the main revision itself was dismissed by this Court only on the ground that the tenant could not file any proof of payment of arrears of
rent. Now that the proof has been filed, there is no reason for rejecting the genuine case of the tenant. Therefore, my order dated 8.8.1996 in
C.R.P. No. 2698 of 1991 ordering eviction on the ground of wilful default is liable to be set aside since the tenant has paid the entire arrears
before the effective date of hearing, viz., 10.10.1985 by way of two money orders. The money order receipts clearly show that a sum of Rs.
1,200 has been received by the original landlord on 3.10.1985 itself. Therefore, applying the proviso to Section 10(2)(i) of the Tamil Nadu
Buildings (Lease and Rent Control) Act and the judgments of the Supreme Court and that of this Court referred to supra, I hold that since the
tenant has paid the entire arrears before the effective date of the first hearing, there is no wilful default committed by him. This Court has to
reconsider its judgment dated 8.8.1996 since the tenant has paid the entire arrears before the date of the effective hearing on 10.10.1985 and the
proof of the same is filed only now along with the review application as additional evidence. As rightly pointed out by the learned senior counsel
appearing for the tenant, in the interest of justice, the order in C.R.P. No. 2698 of 1991, dated 8.8.1996 is liable to be reconsidered and
accordingly, on a reconsideration of the entire materials placed before me including the additional documents now filed in this Court, I have no
hesitation in setting aside my earlier order in C.R.P. No. 2698 of 1991 dated 8.8.1996.
For the foregoing reasons, the review application is allowed as prayed for and my order dated 8.8.1996 in C.R.P. No. 2698 of 1991 is set
aside. C.M.P. No. 15443 of 1996 is ordered and the documents filed by the tenant are marked as Exs. R-1 to R-4. C.M.P. No. 14052 of 1996
is dismissed as longer necessary.