JUDGMENT
Balasubramanyan, J.
1. The
tenant of a non-residential building within the meaning of the Kerala Buildings (Lease and Rent Control) Act, hereinafter called the Act, is the petitioner in this Civil Revision Petition. The landlord, the respondent herein, filed an application, R.C.P. 25 of 1986 on the file of the Rent Control Court, Trivandrum for eviction of the petitioner under Section 11(2) and Section 11(4)(iv) of the Act. Claim under Section 11(4)(iv) of the Act was found against by the Rent Controller and was not pursued by the landlord before the Appellate Authority. We are therefore not concerned with that claim in this Civil Revision Petition.
2. The landlord sought eviction of the petitioner under Section 11(2) of the Act on the allegation that the rent was in arrears from July 1984 at the rate of Rs. 35/- per month and that in spite of issuance of notice Ext. A1 under the proviso to Section 11(2)(b) of the Act, the tenant has not paid the rent and that therefore the landlord is entitled to an order for eviction on the grond of arrears of rent. The tenant opposed the application disputing the rate of rent and also pleading that the rent was not in arrears and the landlord was seeking to take undue advantage of the fact that she was not in the habit of issuing receipts for the payment of rent. The tenant therefore submitted that the claim for eviction is not bona fide or meritorious and therefore the application is liable to be dismissed.
3. The Rent Controller found that the rate of rent was Rs. 15/- per month and not Rs. 35/- per month as claimed by the landlord. This finding was also accepted by the landlord before the Appellate Authority and therefore we have to proceed in this Revision on the basis that the rent for the building is Rs. 15/- per month.
4. The evidence in the case essentially consisted of the notice Ext. A1, reply notice Ext. A3 and the oral evidence of the landlord and the tenant. The Rent Controller entered a finding that the landlord has not proved that the rent was in arrears as it was quite possible that she may not have issued receipts to the tenant as she had admitted in her evidence that she was not in the habit of issuing receipts to her other tenants who were regular in paying their rent. The Rent Controller therefore dismissed the application for eviction. In the appeal by the landlord the Appellate Authority after an advertance to Section 9 of the Act, the notice Ext. Al and the reply notice Ext. A3 and the oral evidence of the landlord and the tenant came to the conclusion that on the facts and in the circumstances of the case, the tenant on whom lay the burden to prove the discharge of rent set up by him, has failed to substantiate that plea and that therefore the landlord’s evidence that the rent was in arrears is liable to be accepted. The Appellate Authority therefore reversed the order of the Rent Controller and ordered eviction under Section 11(2) of the Act.
5. It is submitted by Sri. Sankarasubban, learned Counsel for the tenant-revision petitioner that the appreciation of evidence by the Appellate Authority is not proper, that the burden is on the landlord to make out a claim for eviction under Section 11(2) of the Act and that therefore it was not part of the burden of the tenant to establish a plea of discharge as if it were in a civil suit. He also submitted that undue importance has been given by the Appellate Authority to the provisions contained in Section 9 of the Act and that the Appellate Authority has also not fully appreciated the effect of some of the admissions of the landlord examined as PW 1. He therefore submits that the order of
the Appellate Authority is liable to be interfered with in Revision by this Court.
6. Section 9 of the Act provides that a tenant is entitled to demand and obtain a receipt for the payment of rent made by him to the landlord. It also provides that in a case where the landlord refuses to issue receipt, it is open to the tenant to send the rent by way of money order after deducting the money order commission or issue a notice to the landlord requiring the landlord to specify a bank into which the tenant could remit the rent due. We find that this statutory provision is a protection to the tenant and it is for the tenant to make use of such protection in a case where the landlord refuses to issue receipt to the tenant. The case of the tenant in this case is that the landlord was not issuing receipts to him though he wanted receipts. If that be so one would normally expect the tenant to take recourse to Section 9 of the Act and his not having done so is a relevant circumstance in appreciating the claim of the landlord for eviction. The Appellate Authority also took note of the fact that in his reply, Ext. A3, to the notice under the proviso to Section 11(2)(b) of the Act (Ext. A1) the tenant had no case that receipts were not being issued in spite of being demanded. It is in this background that the Appellate Authority has appreciated the oral evidence of PW 1 the landlord and R W 1 the tenant. The Appellate Authority has concluded on such appreciation that the tenant was in arrears and that the appellant was entitled to an order for eviction under Section 11(2) of the Act.
7. We are of the view that the Appellate Authority has rightly referred to Section 9 of the Act and to the reply notice Ext. A3 in appreciating the contentions of the parties. We are not in a position to agree with the learned Counsel for the revision petitioner that Section 9 of the Act should not be given importance in entertaining a claim for eviction under Section 11(2) of the Act. Any prudent tenant would and should resort to Section 9 of the Act in cases where the landlord refuses to issue receipt to him on his paying the rent due. If he is not prudent enough to resort to that course it will require
very strong evidence on his side to substantiate a plea that he has paid the rent without obtaining receipts for the same. Equally, the circumstances that he had not stated in his reply notice Ext. A3 that he used to pay rent without’ getting receipts for the same or that the landlord refused to issue receipts to him when demanded is also a relevant circumstance in weighing the circumstances and probabilities of the case. We are in full agreement with the view taken by the Appellate Authority on the evidence that the tenant was in arrears. Even assuming that it may be possible to take another view — We do not agree with the learned Counsel for the petitioner that it is possible — it is not for this Court sitting in Revision under Section 20 of the Act to disagree with the view taken by the Appellate Authority. (See the decision of the Supreme Court reported in Anthappai v. Ahammed, 1992 (2) Ker LT 284 (SC): (AIR 1992 SC 1696).
In the result we confirm the order for eviction passed by the Appellate Authority and dismiss the Civil Revision Petition. However we grant the tenant two months’ time from this date for deposit of the arrears of rent to avert the order for eviction. We make no order as to costs.