ORDER
Prabha Sridevan, J.
1. The tenant is the revision petitioner who has been evicted on the grounds of wilful default. The Rent Controller and the appellate authority confirmed the findings of wilful default.
2. The learned counsel for the petitioner attacked the order of eviction on the following grounds:
(a) A Notice had been issued claiming the rental arrears and therefore, the landlord must wait for the expiry of the two month period before initiating proceedings of eviction on the ground of wilful default. In this case, the petition for eviction has been filed before the expiry of two months and therefore, the Rent Control Petition must stand dismissed as per the decision in RAJA MUTHUKONE V. T. GOPALASAMI .
(b) The landlord who seeks eviction on the ground of wilful default should prove the intention to commit default with full knowledge of the legal consequences as laid down in SUNDARAM PILLAI V. PATTABIRAMAN and when the landlord who had admitted in his evidence that he had the counterfoils for the receipts, did not produced them, thereby withholding the best evidence. The ground of wilful default must be rejected.
(c) When there is a bona fide dispute regarding the quantum of rent, the proviso to Sub-section 2 to Section 10 would come into play. Sometime ought to have been given by the Rent Controller for payment of the dues and the existence of a bona fide dispute would itself negate the deliberate intention to commit default. For this purpose, he relied on PUNNOOSE V. MUNNERUDDIN(2003 (3) MLJ 138(SC)).
(d) When the tenant had come-forward with a case that the landlord was not in the habit of issuing receipts, the Rent Controller ought not have called upon the tenant to prove the negative, on the other hand, should have drawn an adverse inference from the non-production of the counterfoils by the landlord, which the landlord admittedly possessed.
(e) The tenant had in the course of his evidence admitted that the payment of rent would be reflected in their Account Books and even now, the tenant is ready to produce his evidence. The accounts are in Hindi and they are available and therefore, an opportunity should be given by sending the matter back to the appellate authority for receiving the additional evidence to prove that there is no wilful default.
(f) The appellate authority had failed to discharge its obligations as the final court of fact and had merely contented itself with discussing the decisions and blindly confirming the Rent Controller’s order.
(g) Both the Rent Control Authority and the Appellate Authority had erroneously placed undue reliance on the fact that after the petition was filed the tenant had paid the rent not every month but in lumpsum. This was hardly relevant for the purpose of deciding the matter.
3. The learned counsel for the caveator on the other hand would submit that,
(a) It is for the tenant to prove that he had paid the rents in an application for eviction on the ground of wilful default. It is the tenant’s duty to obtain receipts and Section 8 provides protection to a tenant against a landlord who refuses to issue receipts and therefore, the tenant cannot call upon the landlord to produce documents to show the rents were not paid.
(b) The landlord would be required to give two months only if the notice is given as per the Explanation to Section 10(2)(i). If no notice is given by the landlord in terms of the Explanation then the Controller would have the discretion to examine the question whether the default was wilful or not. In the present case, when no time was stipulated in the notice, there was no necessity to wait for two months time and therefore, the R.C.O.P. was not premature. For this purpose reliance was placed on K.L. SUGANTHI V. T. SAMBALINGAM (1999 I MLJ 31).
(c) When the landlord refuses to issue receipt the tenant must follow the procedure prescribed under Section 8 and cannot take refuge under the fact that since the landlord did not produce any evidence, there is no wilful default. For this purpose, reliance was placed on E. PALANISAMY V. PALANISAMY (DEAD) BY L.R.S . As regards the duty of the tenants to ask for receipts reliance was placed on (2004 I MLJ 16).
(d) Further the appellate authority had considered the matter and therefore, there is no justification for either a demand to fill up the lacunae or to hold that the final court of fact had not decided the matter properly.
4. The lawyer’s notice was marked as Ex-P2. Under this notice, the petitioner was called upon to “forthwith quit, vacate and deliver … and also pay the arrears of rent and electricity charges from November 1997.” The notice also stated that the respondent was in the habit of issuing receipt for the rent collected and the last rent paid was on 10-11-1987 for October 1997. The rent paid was Rs.750/- per month. In the reply, the petitioner had admitted that he was a tenant on a monthly rent of Rs.750/- and that electricity charges were being paid separately by the petitioner. In Ex-P4, the petitioner denied that he had stopped paying rents and he also denied that the landlord was in the habit of issuing receipts. Along with this the petitioner sent Rs.1500/- towards rent for the period of February and March 1999 indicating the monthly rent as Rs.750/-. Ex-P5 was sent as Erratum to Reply(Ex-P4) stating that actually the monthly rent of Rs.750/- also includes the electricity charges. To this a rejoinder marked as Ex-P6 was sent, alleging that the erratum to Ex-P4 was an after-thought. Ex-P7 is a letter enclosing a demand draft for Rs.750/- being rent and electricity charges for April 1999. The petitioner addressed a letter Ex-P18 in which the respondent brought to the notice of the petitioner wherein he has stated that on 10-02-2000, the petitioner had paid Rs.1500/- being the rent for two months and also on 12-04-2000, Rs.1500/- for two months and separately electricity charges and that all of a sudden on 22-06-2000, the petitioner had sent Rs.1318/- representing the rent for April and May 2000 as against Rs.1500/- which was the amount payable. It is clear from this that the dispute relating to quantum of rent is not bonafide and therefore, 2003 III MLJ 138(SC) which dealt with a case where there was an bona fide dispute as to the quantum of arrears will not apply.
5. As regards the default in payment of rent, P.W.1 the son of the respondent had stated that he does not have the counterfoils of the receipts that had been given to the petitioner but that even after the issuance of Ex-P2, the petitioner did not pay the rent and that even pending the R.C.O.P. the rent was not paid regularly. R.W.1 is the brother of the petitioner. According to him, originally the monthly rent of Rs.750/- included the electricity charge, but after December 2000, Rs.750/- was rent and the electricity charges were separately paid. The period of default is from November 1997 and February 1999.
6. In the chief examination of R.W.1, the focus seems to be more on payment after February 1999. There is absolutely no evidence regarding the payment during the period November 1997 to February 1999 which is the period of alleged wilful default. In the cross-examination, R.W.1 states that from November 1997 to February 1999, they have paid the rents which is in their account books written in Hindi and that the respondent was never in the habit of giving receipts. The petitioner even after receiving the notice had not chosen to pay the rents but had decided to set up a case that Rs.750/- was not the rent but it was the amount payable inclusive of the electricity charges.
7. In MARUDACHALA UDAYAR V. DHANDAPANI (1980 I MLJ 169) this Court had held that it is the duty of the tenant to obtain receipts and Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act has been introduced to protect the tenant’s interest, if the landlord refuses to receive rent or evades issue of receipt.
8. In (cited supra) the Supreme Court held that the benefits conferred on the tenants under the relevant statutes can be enjoyed only on the basis of strict compliance of the statutory provisions. In fact, the Supreme Court held in that case that the tenant cannot straightaway jump to the last step i.e., to deposit rent into Court. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. It was open to the petitioner to resort to the provisions of Section 8 if the landlord/respondent had refused to receive rent. The period of alleged default is not a short one. It is from November 1997 to February 1999, and yet the petitioner has no evidence to show the payment of rent. It is too late in the day to make a request for adducing additional evidence. The alleged account-books written in Hindi were obviously within the petitioner’s possession as admitted in the evidence and yet, he chose not to produce them. Therefore there is not only default, but the intention not to pay rent has been established.
9. As regards the submission that the appellate authority had failed to consider the evidence a perusal of the judgment would show that this is not correct. In Paragraph No.14, the appellate authority clearly refers to the non-production of documents to show proof of payment of rent and the lack of oral evidence to show that the payment of rent was made at the proper time. It is not necessary for the appellate court to discuss each document separately so long as it is clear from the order that the evidence has been considered.
10. In MATHUKAR & ORS. VS. SANGRAM & ORS. (2001 (3) LW 294) it was held as follows:
“The task of an appellate court affirming the findings of the trial court is an easier one…. (it) need not restate the effect of the evidence or reiterate the reasons given by the trial Court, expression of general agreement with the reasons given … would ordinarily suffice, but this should not be taken as a ruse for shirking the duty cast on it….As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the Appellate Court is entitled to interfere with the finding of fact…. The 1st Appellate Court continues as before to be a final Court of fact; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law may not be vulnerable…. in second appeal, under the amended S.100, unless such a question of law be a substantial one.”
Therefore, the findings of the appellate authority does specifically refer to the documents and the oral evidence indicating that the appellate authority had performed the task of a Court of appeal. The appellate authority here, was affirming the order of the Rent Controller. The Supreme Court has, in the above decision, warned that the appellate authority to abdicate their responsibility. While confirming the order of the original authority. Paragraph Nos.14 and 15 of the Appellate Court’s order clearly shows that the appellate authority has taken into account the oral and documentary evidence. So we cannot say it is an order blindly confirming the Rent Controller’s view. There is no infirmity in the approach of the appellate authority.
11. In the result, the civil revision petition is dismissed. No costs. The connected miscellaneous petition is also dismissed.
Prabha Sridevan, J.
The learned counsel for the petitioner prays for time to vacate the premises. Six months’ time is granted,
(a) on payment of the entire arrears for the period of default claimed in the petition, within six weeks from the date of receipt of this order,
(b) on continuing to pay the amounts for use of the building till the premises is vacated and
(c) on filing of an affidavit, undertaking to vacate the premises on the expiry of six months, (20-10-2004) and to comply with the above directions.
This affidavit shall be filed into Court on or before 30-04-2004, serving a copy thereof to the counsel for the caveator, any default in any of the conditions mentioned above, shall entitle the respondent to execute the decree forthwith.