Court cannot presume that the tenant must have paid rents.

The revision petitioners are the landlords in R.C.O.P.No.2802 of 1984 on the file of IX Judge, Court of Small Causes, Madras. They instituted that action against the present respondent for recovery of possession on the ground that she has committed wilful default in payment of rent from September, 1963 till September, 1984. The tenant resisted the action contending that she had paid the rent upto May, 1984. In fact, on 25.7.1984 she had called upon the petitioners to specify the Bank wherein she could deposit the rents. However, the landlord never replied. Learned Rent Controller ordered eviction granting three months time holding that there was wilful default on the part of the tenant. The present respondent took up the matter in appeal before the appellate authority in R.C.A.No.382 of 1986. The appellate authority took the view that non-payment of rent was not wilful and accordingly allowed the appeal and set aside the order of eviction passed by the Rent Controller. And this order is assailed by the landlords in this revision petition.

2. It is the case of the landlords that the tenant has failed to pay rent which is Rs.50 per month from September, 1983 till June, 1984. Thereupon they issued Ex.P-1 notice on 2.6.1984 calling upon her to pay the arrears of rent and vacate the premises. The second petitioner as P.W.1 speaks about the nonpayment of rent by the tenant. Whereas the tenant as R.W. 1 states that she had issued Ex.P-2 reply notice on 10.6.1984 denying her liability. According to her, the landlords were not in the habit of issuing receipts. So, on 25.7.1984 she had issued Ex.R-1 notice calling upon them to specify the Bank wherein she could deposit the rent. The landlords refused to receive the rent sent by her during the period in question. And there is no reply from the landlords, Even though they had received her Ex.R-1 notice as per Ex.R-2 acknowledgement. This has weighed with the appellate authority in taking the view that the landlords were not in the habit of issuing receipts. He has also held that failure of the landlords to produce the counterfoils of the receipts is also a circumstance which goes in support of the tenant’s claim.

3. However, it is significant to note that R.W. 1 tenant has admitted in cross-examination that she never used to demand receipts from the landlords and nobody passed receipts. Where wilful default in payment of rents is alleged by the landlord and the answer of the tenant is that the landlords never issued receipts for the payment of rents, in Marudachala Udayar v. Dhandaponi, (1980)1 M.L.J. 169, Nainar Sundaram, J. has pointed out that to test the case of the parties in such a context, the court should first endeavour to apply the provisions of the very statute under which the proceedings are initiated for eviction. Very salutary provision is incorporated in the Act and that is Sec.8. Under Sec.8 (1) of the Act, every landlord who receives any payment towards rent or advance shall issue a receipt duly signed by him for the actual amount of rent or advance received by him. And Sub-sec. (2) requires where a landlord refuses to accept, or evades the receipt of any rent lawfully payable to him by a tenant in respect of any building, the tenant has to issue a notice in writing to the landlord to specify within ten days from the date of receipt of the notice by him a bank into which the rent may be deposited by the tenant to the credit of the landlord. Under Sub-sec.(3), if the landlord specifies a bank as aforesaid, the tenant shall deposit the rent in the bank and shall continue to deposit in it any rent which may subsequently become due in respect of the building. If the landlord does not specify a bank as aforesaid under Sub-sec.(4), the tenant can remit the rent to the landlord by money order, after deducting the money order commission. So, if the landlord refuses to accept or evades the receipt of rent, the tenant is given a system of remedy which he can resort to und