JUDGMENT
S.T. Kharche, J.
1. The short question that arises for consideration in this petition is whether the petitioner/tenant was in arrears of rent on the date of filing of the application for the period of six months and whether the tenant is habitually in arrears of rent within the meaning of Clause 13(3)(i) and Clause 13(3)(ii) of the C.P. and Berar Letting of Premises and Rent Control Order, 1949 (for short the Rent Control Order).
2. Relevant facts are as under :
The respondent is the owner of the premises in which the petitioner has been inducted as a tenant by virtue of the agreement dated 13.1.1984. The tenant had agreed to pay the rent of Rs. 350/- per month which was subsequently enhanced to Rs, 360/- per month by virtue of the second agreement dated 1.2.1985. The tenant was irregular in payment of rent, the details of which are as under :
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Year Period Amount
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1984 five months 1,750
1985 two months 720
1986 twelve months 4,320
1987 twelve months 4,320
1988 twelve months 4,320
1989 twelve months 4,320
1990 two months till filing of the application 720
Total Rs. 20,470
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The tenant denied that he ever was defaulter in payment of rent. Since the tenant was stated to be in arrears of rent, the landlord filed an application before the Rent Controller seeking permission to determine the tenancy. The Rent Controller passed the order on 16.3.1992 and directed the tenant to deposit the arrears of rent amounting to Rs. 20,470/- within one month from the date of his order, in default granted permission to issue quit notice under Clause 13(1) of the Rent Control Order. The tenant preferred an appeal before the Additional Collector and the Additional Collector confirmed the findings of the Rent Controller so far as the arrears of rent are concerned and remanded the matter to the Rent Controller by order dated 3.8.1992 for passing final order after verifying as to whether the tenant has deposited the amount of arrears within the stipulated period. The Rent Controller, after remand of the matter, considered the contentions of the learned Counsel for the parties and by his order dated 17.9.1992 granted permission for issuance of quit notice, as the tenant had failed to deposit the arrears of rent with the Rent Controller within the stipulated time. Then the tenant carried appeal to the Collector, who dismissed the same on merits by his order dated 4.12.1992. Thereafter the tenant filed review application bearing No. 2/MRC81/92-93. The Collector, on consideration of the facts and circumstances, rejected the review application on 21.5.1993. This order passed by the Collector in review application is under challenge in this petition.
3. Mr. Dubey, learned Counsel, for the tenant contended that the tenant had paid Rs. 2,100/- to the applicant on 30.7.1984 as rent for the period of six months from 1.2.1984 to 30.7.1984. After this, the tenant made another payment of Rs. 1,440/- for a period of four months from 1.2.1985 to 31.5.1985. Then again he made payment of Rs. 1,800/- for a period of five months from 1.6.1985 to 30.10.1985 and the receipts of these payments were also received by him. He contended that the tenant again paid Rs. 1,800/-on 8.11.1988 and Rs. 500/- on one occasion and again Rs. 600/ on the other occasion. The learned Counsel for the tenant contended that the payment of rent by the tenant has been proved on the basis of the entries recorded in the register maintained by the tenant. He contended that the landlord has tacitly admitted that the tenant was paying the amount of rent, intermittently in a consolidated sum which was accepted without any demur or protest and moreover he did not issue any notice calling upon the tenant to pay the rent regularly and suddenly filed an application before the Rent Controller seeking permission to issue quite notice.
4. Mr. Dubey contended that the landlord has acquiesced in the practice of payment which was paid intermittently. He further contended that the burden was upon the landlord to prove that the tenant was in arrears of rent within the meaning of Clause 13(3)(i) and that he was a habitual defaulter within the meaning of Clause 13(3)(ii) of the Rent Control Order. The learned Counsel further contended that the landlord had already received the amount of rent up to February, 1990 and, therefore, the question does not arise as to upon whom the burden to prove lies. He contended that in such circumstances the order passed by the Collector in review application cannot be sustained in law. In support of this submission he relied on the decision of Supreme Court in the case of Rashik Lai and Ors. v. Shah Gokuldas Waghajibhat
5. Mrs. Sirpurkar, learned Counsel, for the landlord contended that the evidence of the parties clearly establish that the tenant was in arrears of rent as shown in the application and, therefore, the Rent Controller rightly directed the tenant to deposit the amount of Rs. 20,470/- by his order dated 16.3.1992. She pointed out that the Additional Collector remanded the matter to the Rent Controller only to verify as to whether the tenant had deposited the arrears of rent with the Rent Controller within the stipulated time and for passing the final order in view of Clause 13(3)(i) and 13(3)(ii) of the Rent Control Order. He contended that there is a concurrent findings of both the Courts below holding that the tenant was in arrears of rent and was a habitual defaulter and, therefore, the Collector was perfectly justified in rejecting the review application on 21.5.1993. She contended that in such circumstances no interference into the order passed by the Collector in review application is warranted and the writ petition is liable to be dismissed.
6. I have given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. It is necessary to reproduce Clause 13(3)(i) and 13(3)(ii) of the Rent Control Order, which read thus :
13(3). if alter hearing the parties the Controller is satisfied,-
(i) that on the date of filing the application the tenant was in arrears of rent for any aggregate period of [six months] and that he failed to deposit with the Controller the amount of arrears [along with simple interest at the rate of nine per cent per annum] ordered to be deposited by the Controller within such time as may be fixed by him;
(ii) that the tenant is habitually in arrears with the rent; or
7. In Rashik Lai’s case. 1989 Mh. L.J. 207 (cited supra), it has been held by the Supreme Court that admittedly the accumulated rents were accepted by the landlord without any objection at any point of time and the tenant had no occasion to assume that the landlord was aggrieved by the manner in which the rents were being paid. It cannot be held that unless the rent was paid and accepted at fixed period of interval, no implied agreement in the matter of payment of rent can be inferred. The crucial test is the conduct of the landlord in receiving the rent offered delayedly. If he receives the rent under a protest and warns the tenant to be regular in payment in future, he cannot be assumed to have agreed to a modified agreement in that regard. But if he without any objection and without letting the tenant know his thought process continues to receive the rent at intervals of several months, he cannot be allowed to spring a surprise on the tenant by suddenly starting a proceeding for eviction. Having lulled the tenant in the belief that things were all right, the landlord was under a duty serve him with a notice demanding regular payment if he wished to insist upon it. There was no objection whatsoever raised by the landlord against the delayed payments. The High Court, therefore, was not right in reversing the concurrent findings of the two Courts below.
8. In the present case, it is not in dispute that the tenant was inducted in the premises in the year 1984 by virtue of the agreement dated 13.1.1984 on the agreed rent, of Rs. 350/- per month. It is also true that the landlord appears to have accepted the lump sum payment in instilments after the period of two months, six months etc. It is also clear from the order of the Rent Controller dated 16.3.1992 that a conditional order was passed directing the tenant to deposit arrears of rent of Rs. 20,470/- within one month and in default permission for issuing quit notice under Clause 13(1) of the Rent Control Order was granted. The tenant instead of depositing this amount with the Rent Controller had carried appeal to the Additional Collector, who on hearing the parties observed that the Rent Controller directed to pay arrears of rent within a stipulated period and the Rent Controller has to pass a consequential order depending upon the deposit or failure to deposit the arrears of rent. In view of these observations, the Additional Collector remanded the matter to the Rent Controller and thereafter on 17,9.1992 the Rent Controller passed the order wherein it has been clearly observed that the issue whether the tenant was in arrears of rent was considered separately and it was found that the tenant was in arrears of rent and this point was considered under the grounds provided by Clause 13(3)(i) of the Rent Control Order and the tenant was directed to deposit arrears of Rs. 20,470/- within a period of one month from the date of that order and since the tenant failed to deposit that amount within the stipulated period, permission was granted to the landlord in view of Clause 13(1) of the Rent Control Order. This order was challenged before the Collector by way of appeal which came to be dismissed on 4.12.1992 and thereafter the review application filed by the tenant was also rejected by the Collector on 21.5.1993.
9. The position that emerges from the aforesaid situation is that the authorities consistently held, on consideration and appreciation of the evidence adduced before the Rent Controller by the parties, that the tenant was in arrears of rent of Rs. 20,470/-. The tenant appears to have made a futile attempt to show that the payment of rent made by him was supported by the entries recorded in the register maintained by him and, therefore, he disputed the arrears of rent. But from the cross-examination of the tenant it revealed that whatever entries, were recorded in the register were not correct entries. It is also undisputed position that the tenant did not claim that the entries were recorded in the register in the regular course of his business and that the accounts were daily balanced so as to make them admissible in evidence.
10. It is not possible to accept the contention of Mr. Dubey, learned Counsel for the tenant, that the burden was on the landlord to prove that the tenant was in arrears of rent for more than six months and Is habitual defaulter within the meaning of Sub-clause (i) and (ii) of Clause 13(3) of the Rent Control Order. Admittedly, the tenancy was created by virtue of the agreement dated 13.1.1984 and it was a monthly tenancy. Even the agreement was reduced into writing and this was modified subsequently by increasing the rent to the extent of Rs. 360/- per month with effect from 1.2.1985. when the tenant was inducted in the premises as a monthly tenant, it follows that he has to pay the rent per month and cannot take the advantage of the situation that the landlord had accepted some amount of rent.
11. It appears that whenever rent was paid receipts were issued by the landlord and in such a situation the tenant could have produced all the receipts before the Rent Controller. However, only because the landlord has refused to accept two or three money orders, it did not follow that the tenant was ready and willing to pay the rent. This is a peculiar case wherein the tenant had an ample opportunity to clear-off the arrears of rent by depositing it with the Rent Controller as directed in the order dated 16.3.1992. But he only wanted to protract the proceedings in order to avoid the payment of arrears of rent amounting to Rs. 20,470/-. The conduct of the tenant in such a situation is significant to show that he was not ready and willing even to deposit the arrears of rent with the Rent Controller and wanted to enjoy the possession of the premises without payment of rent. In view of this conduct of the tenant, it is obvious that the authority in the case of Rashik Lai, (cited supra), relied on by the learned Counsel for the tenant, has no bearing on the facts and circumstances of the present case.
12. The settled position of law is that if the tenant is held to be in arrears of rent for more than six months and the Rent Controller directs the tenant to deposit it within specified period and failure of the tenant thereupon to comply with the direction will invite the permission being granted for issuing quit notice to the tenant as has been done in the present case. Therefore, the landlord has made out a case under Clauses 13(3)(i) and 13(3)(ii) of the Rent Control Order. In the result, this Court is of the considered opinion that the tenant was in arrears of rent for the period of six months and he was also a habitual defaulter within the meaning of Clause 13(3)(i)(ii) of the Rent Control Order. Therefore, this Court does not find any merit in the petition. Consequently, the impugned order passed by the Collector cannot be said to be erroneous nor any illegality is shown to have been committed by the Collector, The writ petition is dismissed with costs. Rule discharged.