(Prayer: Civil Revision Petition filed against the Judgment and Decree, dated 26.08.2009 passed in R.C.A.No.29 of 2008 on the file of the Sub-Court, Poonamallee, confirming the order and decretal order, dated 26.08.2009 passed in R.C.O.P.No.53 of 2000 on the file of the District Munsif-cum-Judicial Magistrate, Ambattur.)

1. This Civil Revision has been preferred, challenging the Judgment and Decree, dated 26.08.2009 made in R.C.A.No.29 of 2008 on the file of the Sub-Court, Poonamallee, confirming the order and decretal order, dated 26.08.2009 made in R.C.O.P.No.53 of 2000 on the file of the District Munsif-cum-Judicial Magistrate, Ambattur.

2. It is seen that R.C.O.P.No.53 of 2006 was filed by the respondent herein, as landlord to direct the petitioner herein to deliver vacant possession of the petition mentioned property to him under Section 10 (2) (i) of the Tamil Nadu Buildings (Lease and Rent Control) Act (herein after referred to as the Act).

3. Learned Rent Controller, by order and decretal order, dated 29.04.2008 allowed the Rent Control Original Petition and two months time was granted to deliver the vacant possession of the petition mentioned property. Aggrieved by which, the petitioner / tenant preferred the Rent Control Appeal in R.C.A.No.29 of 2008 before the learned Rent Control Appellate Authority / Sub-Judge, Poonamallee, Learned Rent Control Appellate Authority, considering the evidence available on record and also the arguments advanced by both the learned counsel, confirming the order and decretal order passed by the learned Rent Controller, dismissed the appeal. Aggrieved by which, the revision has been preferred by the petitioner / tenant.

4. This revision has been preferred by the tenant raising a ground that the appellate authority had erroneously held that the petitioner was examined as petitioner witness and marked Exs.P.1 to P.5. Though the said documents were marked only during cross-examination of D.W.1, subject to the objection and the appellate authority failed to give findings on the objection raised by the appellant. The appellate authority misconstrued that the cheque book was washed away in the flood and the respondent / landlord deposed that the petitioner had not informed the bank that the cheque book was lost in the flood and further stated that the finding of the appellate authority that the respondent / landlord has not issued reply to the letter, dated 04.08.2006 under Ex.P.4 is unwarranted and Ex.P.4 has no relevancy in the case.

5. Learned counsel appearing for the petitioner submitted that the appellate authority has given an erroneous finding that the petitioner / R.W.1 during cross-examination had admitted that rents were paid by cheque for the months of May, June and July 2006 together, contrary to the oral evidence, though the respondent / landlord has not produced any evidence to show that the rents for May, June and July 2007 were paid subsequently and hence, there was wilful default. The finding that the advance amount lying in the hands of the erstwhile landlord, Mr.Rajagopal has to be decided only in the suit in O.S.No.77 of 2006 by the Rent Controller is erroneous. Similarly, the appellate authority has failed to note that in the absence of any notice, prior to the filing of eviction petition, burden of proof lies only on the landlord to prove that the tenant had committed wilful default in payment of rent.

6. Learned counsel appearing for the petitioner submitted that the respondent / landlord was not in the habit of giving receipt for the payment of rent, therefore, the burden of proof lies on the respondent / landlord to show that the petitioner herein had committed any wilful default in payment of rent. Learned counsel for petitioner further contended that during the cross-examination of R.W.1, it was suggested that for May, June and July 2006, monthly rents were not paid, though the cheques were duly encashed by the respondent.

7. It is an admitted fact that the respondent / landlord filed the Rent Control Original Petition, seeking an order of eviction of the petitioner / tenant under Section 10 (2) (i) of the Act on the ground of wilful default in payment of rent. The jural relationship between the petitioner and the respondent as tenant and the landlord is not in dispute in this revision. In order to establish the claim, the respondent / landlord, as petitioner before the Rent Control Court, examined himself as P.W.1, apart from marking Exs.P.1 to P.5. On the side of the revision petitioner / tenant, Director of the revision petitioner / tenant was examined as R.W.1 and Exs.R.1 to R.3 were also marked.

8. It is seen that P.W.1 has deposed that on 12.05.2006, he purchased the property from the erstwhile owner of the property and the respondent was a tenant under the said landlord. He has also admitted that the petitioner had paid Rs.1,50,000/- towards rental advance to the previous landlord and that the petitioner had to pay monthly rent from May 2006 to him, being the landlord. According to him, the petitioner / tenant paid monthly rents, by way of cheque, hence, he did not issue any receipt for the same. According to him, for 9 months rent, the petitioner paid cheque and that the erstwhile landlord did not paid any amount received from the petitioner to the respondent, towards rental advance and he further said that the advance amount paid was between himself and the tenant. According to him, there was arrears of rent payable by the petitioner / tenant to the erstwhile landlord, Rajagopal. As advance amount was adjusted towards arrears of rent, he did not pay any amount to the respondent herein towards the rent. According to him, the erstwhile landlord, Rajagopal gave the information in writing to the respondent and that was not marked as a document. Admittedly, the respondent / landlord had not filed any petition under Section 11 (4) of the Act, seeking an order directing the tenant to deposit the rent into the Court.

9. It is seen that P.W.1 has deposed that the petitioner / tenant had paid only 9 months rent, out of the 14 months arrears of rent payable by him. R.W.1, who deposed evidence on the side of the revision petitioner / tenant had deposed that there was rental agreement between the petitioner herein and the erstwhile landlord, Rajagopal. As per the agreement, a sum of Rs.1,50,000/- was given as advance and the monthly rent was Rs.1,50,000/-. However, the agreement was not marked as a document. It was also known to R.W.1 that the property was sold by the erstwhile landlord to the respondent herein. R.W.1 has also admitted that the respondent, after purchasing the property from the erstwhile landlord intimated the same to the petitioner herein and there was attornment of tenancy and on 06.06.2006, the petitioner sent a letter, Ex.P.2 to the respondent. Ex.P.3 is the letter sent by the previous landlord to the petitioner / tenant, wherein he had asked the tenant to pay the rent to the respondent, being the subsequent landlord, accordingly, the rent was paid by the revision petitioner to the respondent, by way of cheque. R.W.1 has deposed that there is evidence for the payment of rent to the respondent, by way of cheque. R.W.1 has also admitted that Ex.P.4, letter sent by the respondent / landlord was received by him.

10. Learned counsel appearing for the respondent / landlord submitted that even during the pendency of the R.C.O.P, the rent was not paid regularly by the petitioner / tenant. R.W.1 has deposed in his cross-examinatin that the cheque in No.437224 was received on 03.08.2006, though the other cheque No.437223 was issued in the subsequent month on 03.09.2006. The reply by R.W.1 is that the cheques were not issued in order, since certain post-dated cheques were issued to some of the customers. It is seen from the evidence that Cheque No.451793, dated 03.10.2006 was encashed on 27.11.2006, similarly, Cheque bearing No.474285, dated 03.11.2006 was encashed on 25.01.2007 and the Cheque, dated 03.12.2006, bearing No.475300 was encashed only on 25.11.2007 and he did not know whether the Cheque, dated 03.01.2007 bearing No.463549 was encashed by the respondent or not. The Cheque No.463525, dated 03.02.2007, Cheque No.463534, dated 03.03.2007, Cheque No.463580, dated 03.04.2007 were encashed only on 04.06.2007. Similarly, the other two cheques, dated 03.05.2007 and 03.06.2007 were not encashed.

11. It was argued on behalf of the revision petitioner / tenant that the cheques were sent on various dates, however, the respondent / landlord encashed the cheques, subsequently to his convenience. However, in the cross-examination, R.W.1 has admitted that on 12.05.2006, the respondent purchased the property and for May, June and July 2006, the rent was sent on 31.07.2006. It is seen that prior to 10.08.2006, no cheque issued by the petitioner was encashed by the respondent. The petitioner, as R.W.1 has deposed that due to the flood, the records relating to November, December 2007 were destroyed, hence, supporting documents could not be produced. It is seen that Ex.P.3, dated 22.05.2006 notice of attornment of tenancy was sent by the previous landlord, Rajagopalan to the revision petitioner / tenant, that was received by the petitioner. Ex.P.4 is the letter, dated 04.08.2006 sent by the respondent herein to the revision petitioner, whereby the respondent herein had asked the petitioner to shift his business to another premises, so as to solve the problem.

12. Learned counsel appearing for the revision petitioner submitted that the intention of the respondent / landlord was only to evict the petitioner / tenant from the premises. Per contra, it was contended by the learned counsel appearing for the petitioner that even as per the letter, dated 04.08.2006, marked as Ex.P.4, the respondent / landlord has specifically stated that the petitioner was not paying the rent for the premises in spite of the fact that his purchase of the premises was already intimated to the petitioner.

13. Learned counsel appearing for the revision petitioner drew the attention of this Court to Ex.R.2 and submitted that the rents paid by the petitioner was duly encashed by the respondent . On the contrary, it was pointed out by the learned counsel for the respondent that as per the bank statement obtained from the Federal Bank, Ltd., on 05.06.2007, marked as Ex.R.2, it is seen that cheques issued in the name of Sasikumar was encashed for Rs.15,000/- each and the three cheques, bearing Nos. 4632535, 463534 and 463550 on 04.06.2007. Similarly, another two cheques bearing Nos. 474300, 474285 issued in the name of K.Sasikumar were encashed only on 25.01.2007.

14. As contended by the learned counsel appearing for the revision petitioner, when there is no notice prior to the filing of the R.C.O.P, seeking eviction on the ground of wilful default, the landlord has to establish the arrears of rent when the defence is that the landlord is not in the habit of issuing receipt for payment of rent. It is also not in dispute that even without a notice being sent prior to the filing of the R.C.O.P, the same could be filed and it would not be a bar in maintaining the R.C.O.P.

15. In the instant case, learned counsel appearing for the petitioner submitted that there was no wilful default in paying the rent prior to the filing of the R.C.O.P and also drew the attention of this Court to the findings of the learned Rent Controller to that effect. As contended by the learned counsel for the revision petitioner, there could be possibility for the landlord in presenting the cheques on a particular date within the period of validity, based on which, the Court cannot presume that all the cheques were sent on a particular date, together to the respondent / landlord. It is seen that the cheques contained different dates, hence, subject to the convenience of the respondent / landlord, cheques could have been encashed from the bank. In the absence of any other evidence, it cannot be presumed that the petitioner / tenant had sent three cheques bearing different dates in a single cover. Even if it so, the respondent / landlord could have stated the same by way of notice to the revision petitioner.

16. It is argued on the side of the respondent / landlord that in the Rent Control matters, if there is any default in payment of rent, even during the pendency of the R.C.O.P, R.C.A or Revision, that could be construed only as a wilful default.

17. In the instant case, the petitioner / tenant had to pay rental arrears from May 2007 till March 2010. According to the learned counsel for the respondent / landlord, it was computed at Rs.5,25,000/-. According to the learned counsel appearing for the tenant, an amount of Rs.1,50,000/- was already paid to the earlier landlord and that was to be adjusted towards the arrears of rent claimed by the landlord. Considering the aforesaid facts and circumstances, this Court directed the petitioner / tenant to pay a sum of Rs.2,50,000/- towards the rental arrears without prejudice to the claim of both the parties. It is seen from the records that the petitioner / tenant paid only a sum of Rs.1,00,000/-, by way of Demand Draft towards the arrears of rent, for which the learned counsel for the respondent / landlord has made an endorsement. The arrears of rent claimed by the respondent / landlord subsequent to the filing of the R.C.O.P and the order passed by this Court and the part payment of Rs.1,00,000/- by the petitioner / tenant towards arrears of rent.

18. In order to enlighten the legal aspects, the following decisions were relied on by both the learned counsel :

1. Speedline Agencies vs. T.Stanes & Co., Ltd., 2010 (5) MLJ 962 (SC)

2. Omer Bin Salam Askari vs. Dr.Yousuf, 1998 (2) ALT 486

3. K.Narasimharao vs. T.M.Nasimuddin Ahmed, 1996 (II) CTC 78

4. Voora Mahalakshmamma vs. Veera Reddy, 1994 (2) MLJ 383 [LQ/MadHC/1994/68]

5. Chandrasekar vs. M.Lalitha, 2010 (7) MLJ 348

6. Collector of Madras, The vs. A.N.Gajendran, 1998-2-LW 49

7. V.Dinesh Kumar vs. Dr.Indira Bai, 2007 (2) MLJ 976

19. In Speedline Agencies vs. T.Stanes & Co., Ltd., reported in 2010 (5) MLJ 962 (SC), the Honble Apex Court has held that delay in disposal of the revision petition should not prejudice the vested rights of the landlord under the decree of the Rent Controller confirmed by the Appellate Authority.

20. In B.Anraj Pipada vs. Umayal, reported in 1998 (3) LW 159, this Court has held as follows :

"The conduct of the tenant in not paying the rent regularly during the pendency of the proceedings will amount to wilful default and such subsequent conduct of the tenant can be taken into consideration in deciding the matter. In the light of the above principles, it is clear that the petitioner has committed wilful default not only prior to the filing of the R.C.O.P, but also during the subsistence of the proceedings before the Rent Controller, the Appellate Authority as well as before this Court. "Hence, I do not see any valid reason to differ from the orders of the courts below."

21. In T.Easwara Rao vs. N.E.Ansari (decd) and six others, reported in 1999 (1) CTC 221 [LQ/MadHC/1998/1578] , this Court has held as follows :

"The submission of the learned counsel for the petitioner is that if a tenant had deposited on the effective date of hearing, the default cannot be construed as wilful, whatever may be the period of default. I find it difficult to accept the said submission. Under the said Act, only to presume wilful default in payment of rent. Explanation to Section 10 (2) (i) has been introduced. So, if the submission of the learned counsel is accepted it amounts to rewriting the provision of the Act. Such a presumption as suggested by the learned counsel cannot be arrived at, merely because after three years if a tenant deposits or pays the rent on the first hearing date without any valid reason. For example if a tenant did not pay any rent inspite or two months notice. Under Explanation to section 10 (2) (i) of the Act, then the legal presumption is wilful and the landlord need not further establish the same. Even in this case, if the tenant deposits or pays the rent on the first effective date of hearing, can it be said Explanation to section 10 (2) (i) of the Act cannot be applied. So, merely because the tenant pays or deposits the arrears of rent on the first hearing date, it cannot be said that the landlord cannot sustain the petition, if otherwise it is established that the tenant had committed wilful default in payment of rent."

22. In V.Dinesh Kumar vs. Dr.Indira Bai, reported in 2007 (2) MLJ 976, this Court has held that the tenant has statutory duty to pay rent without demand from landlord and that the tenant has no right to accumulate the rent and pay in lumpsum, even after filing of the R.C.O.P, tenant should be irregular in payment of rent. When relationship between landlord and tenant was constrained and eviction petition being filed, during pendency of eviction petition, tenant is expected to pay rent regularly and if he failed to pay, such, conduct of tenant, clearly amounts to wilful default, hence, order of eviction on ground of wilful default is confirmed.

23. In the instant case, the respondent / landlord had filed R.C.O.P, on the ground of wilful default in payment of rent for the period 12.05.2006 to 22.09.2006 at the rate of Rs.1,50,000/- per month. The respondent / landlord purchased the property from the erstwhile landlord only on 12.05.2006 and admittedly, there was an advance amount of Rs.1,50,000/- with the erstwhile landlord, Rajagopal, with regard to the same, the suit is pending between the parties, hence, the petitioner / tenant is expected to pay the rent only from the date of attornment of tenancy between the respondent / landlord and the petitioner / tenant.

24. It is seen that the respondent / landlord had sent Ex.P.2, letter, dated 06.06.2006 towards payment of rent. Earlier by notice, dated 22.05.2006 marked as Ex.P.3, the erstwhile landlord had sent a notice for attornment of tenancy. It is seen that cheque, dated 03.07.2006 with the covering letter was sent to the respondent / landlord, as per Ex.R.1. The respondent / landlord has not issued any notice, prior to the filing of the R.C.O.P, intimating the arrears of rent and his intention of filing the R.C.O.P, in case of non-compliance of the demand.

25. As contended by the learned counsel appearing for the revision petitioner, as the R.C.O.P was filed without prior notice to the petitioner / tenant by the subsequent purchaser, the respondent herein, the burden is upon him to establish the arrears of rent. Though the respondent had purchased the property only on 12.05.2006, for the months of May, June and also for July, cheques were issued. However, subsequent rents were not paid by the petitioner, therefore, I could find no error in the order passed by the learned Rent Controller and the Judgment of the Appellate Authority, confirming the order passed by the Rent Controller. In a Rent Control matter, if there is arrears of rent during the pendency of the R.C.O.P or R.C.A or Revision, that would also attract Section 10 (2) (i) of the Act. In the instant case, admittedly, as per the calculation memo filed by the respondent / landlord, the arrears of rent was Rs.5,25,000/- and that was disputed by the learned counsel for the petitioner / tenant.

26. Considering the advanced amount of Rs.1,50,000/- paid to the earlier landlord, this Court directed the petitioner to pay Rs.2,50,000/- without prejudice to the claim of both the parties. By order, dated 11.08.2010, it is seen that the petitioner / tenant had paid only Rs.1,00,000/-, for which an endorsement was made by the learned counsel for the respondent and therefore, it is clear that there is a wilful default on the part of the petitioner / tenant during the pendency of the Rent Control proceedings, as contemplated under Section 10 (2) (i) of the Act.

27. On the aforesaid circumstances, I could find no error, irregularity or illegality in the impugned order of eviction passed by the learned Rent Control Appellate Authority, confirming the order of the learned Rent Controller, and accordingly, this Civil Revision Petition is liable to be dismissed.

28. In the result, confirming the Judgment and Decree passed by the learned Rent Control Appellate Authority, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petitions are also dismissed. The revision petitioner is directed to vacate and hand over the possession of the premises, within three months from the date of this order. However, no order as to costs.