Sunday, 31 July 2016

Whether refusal of rent sent by money order constitutes deemed acceptance of rent?

 It is an admitted position that the petitioner had sent money orders towards the rent for October and November, 1975, but the landlord refused to accept the money orders. In other words, if it is held that the landlords have deemed to have accepted rent for October and November, 1975 sent by money orders, in that case there would be no cause of action to either issue suit notice or to maintain the suit against the petitioner on the ground of default. This legal position has been considered by this Court in the decision in the case of Suka Ishram v. Ranchhoddas, . The view taken in the said decision has been followed recently by this Court in Writ Petition No. 3227 of 1987 Madhukar Govind Vaidya v. Narayan Harishchandra Surve decided on June 8, 2000.
Bombay High Court
Smt. Kamalabai Baburao Kabade vs Smt. Laxmibai Janardan Jagtap And ... on 16 June, 2000
Equivalent citations: AIR 2000 Bom 490, 2001 (1) BomCR 148, 2001 (2) MhLj 905

Bench: A Khanwilkar
1. This petition, under Article 227 of the Constitution of India, is by the tenant in respect of the premises which are part of a building bearing C.T.S. No. 5-E, Godoli, Satara No. 2, Hari Kripa Building, Anandwadi, Dattamandir, Satara. The premises were originally owned by late Shri Janardan Jagtap, who is survived by the respondents. It is common ground that the premises were let out to the petitioners during the lifetime of the said Shri Janardan Jagtap. The monthly rent of the suit premises is stated to be Rs. 15/-. The said Shri Janardan Jagtap died sometime in October, 1975. The respondents, who are the heirs of the said Shri Janardan Jagtap, caused to send notice to the petitioner demanding arrears from 1-1-1973 to 29-2-1976. The notice is dated March 1, 1976. There is no dispute that the said notice was received by the petitioner, and in response thereto a reply was sent on March 31, 1976. The petitioner denied that she was in arrears of rent. The specific case made out by the petitioner-tenant is that he had paid the entire rent till September, 1975 to the landlord, but as per the practice the landlord has not issued receipts in spite of the payment. The petitioner further asserted that he had offered rent to the landlord for the period October and November, 1975 by money orders, but the landlord refused to accept the money orders with an oblique motive so as to create an evidence against the petitioner for filing a suit on the ground of default. It is an admitted position that after the receipt of the notice, the petitioner did not tender the rent as demanded by the respondents within one month, nor did she raise any dispute for fixation of standard rent.
2. In the circumstances, the respondents instituted suit before the Court of the Civil Judge, Junior Division, Satara, praying for eviction of the petitioner from the suit premises on the ground of default as well as bona fide requirement. The trial Court, after considering the rival contentions by its judg-ment and order dated April 3, 1984 was pleased to negative both the grounds and thus dismissed the respondent's suit. The trial Court accepted the plea of the petitioner that the petitioner had paid the rent regularly to the respondent's husband, but no receipts were issued. For reaching this conclusion, the trial Court relied upon the evidence led by the petitioner-defendant by examining herself as well as by examining D.W. 2 Anandrao Shripati Jagtap, who is the former tenant of the landlord and who has supported the defence taken by the petitioner-defendant, that the practice has been that the landlord never issued rent receipts for the payments which were made by the tenant from time to time. The trial Court further relied upon the circumstance that when the plaintiff was confronted with this evidence, he offered to produce the counterfoils of the rent receipts which were never produced. In the circumstance, the trial Court drew adverse inference against the plaintiff for having failed to produce the counterfoils of the receipts before the Court. Taking totality of the evidence on record, the trial Court concluded that the petitioner was not a wilful defaulter and was not liable to be evicted as she was always ready and willing to pay the rent which was evident from the fact that the petitioner had tendered the rent for the period October and November, 1975 by money order (Exhibit 96) dated December 8, 1975, which money order was refused by the landlord.
3. The respondents preferred an appeal before the District Court, Satara. The District Court was pleased to reverse the order passed by the trial Court dismissing the suit and preferred to decree the suit in favour of the plaintiff on the ground of default as can be seen from paragraphs (13) to (16) of that Judgment. The District Judge, on re-examining the rival contentions and the materials on record was pleased to upset the finding recorded by the trial Court and held that, admittedly, the tenant had failed to tender the rent as demanded by the landlord within one month of the receipt of the notice, nor had he raised a dispute for fixation of standard rent and as such the provisions of Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Bombay Rent Act") were clearly attracted. The Appellate Court, however, confirmed the finding of the trial Court in so far as the ground of bona fide requirement. Consequently, the appellate Court was pleased to decree the suit only on the ground of default under Section 12(3)(a) of the Bombay Rent Act.
4. The petitioner-tenant has preferred the present writ petition challenging the Judgmentand decree of the Appellate Court on the ground of default. The respondents have not filed any cross petition challenging the finding on the ground of bona fide requirement. The main contention raised on behalf of the petitioner is that, the petitioner had tendered rent regularly to the landlord, but the landlord had never issued rent receipts in that behalf and taking advantage of the said position, the landlord is falsely alleging that the petitioner-tenant was in arrears from 1-1-1973 to 29-2-1976. According to the petitioner, besides regularly paying rent to the landlord till September, 1975, the petitioner had offered rent to the landlord by money orders for the month of" October/November, 1975. However, the landlord with an oblique motive refused to accept the said money order so as to create an evidence against the petitioner-tenant for maintaining the suit on the ground of default. It was contended that, if the said payment made by the money orders is held to be deemed to have been accepted by the respondents-landlords, in that case the ground for maintaining the suit on the ground of default will not be available to the respondents as no cause of action can be said to have arisen since the arrears were less than six months on the date of the suit notice. On the other hand, the respondents contend that the final fact finding Court has rightly reversed the conclusion of the trial Court while reaching the conclusion that the petitioner-tenant was a defaulter within the meaning of Section 12(3)(a) of the Bombay Rent Act. The fact whether the rent receipts were issued or not is a pure question of fact. The Appellate Court, on examination of the relevant material on record, has held that the claim put forth by the petitioner-tenant that no receipts were issued cannot be accepted. It is not possible for this Court in exercise of jurisdiction under Article 227 of the Constitution to re-appreciate the evidence and take a different view.
5. After having considered the rival contention I would first proceed to examine the defence taken by the petitioner before the trial Court. In the written statement, the petitioner clearly asserted that she had paid the entire rent till September, 1975 to the landlords. It is true that the written statement does not specifically set out the mode of payment. However, in her evidence, the petitioner has specifically asserted that she was paying rent in person during the lifetime of the plaintiffs husband, but he did not issue any rent receipts. In evidence, the petitioner has asserted that she has paid the entire rent up to September, 1975. In addition, the petitioner caused to examine D. W. 2 Anandrao Shripati Jagtap, who is former tenant of the landlord and who has supported the defence taken by the petitioner-defendant that the landlord never issued rent receipts. This witness D. W. 2 Anandrao Shripati Jagtap has been cross-examined on behalf of the plaintiff and has denied the suggestion put to him that the rent receipts were issued. On the other hand, P.W. 1 who was examined on behalf of the plaintiff, though asserted in the examination-in-chief that the petitioner was in arrears and also denied the suggestion put to her during the cross-examination that the petitioner had paid rent up to September, 1975 to her husband. When confronted with the defence, the respondent's witness P. W. 1 during her cross-examination deposed that she was willing to produce the counterfoils of the rent receipts which were issued by her husband. However, the said rent receipts were never produced before the Court. Taking totality of the evidence on record, the trial Court rightly came to the conclusion that the petitioner had established her defence that the rent was regularly paid to the landlords till September, 1975, but no rent receipts were issued. It is an admitted position that the petitioner had sent money orders towards the rent for October and November, 1975, but the landlord refused to accept the money orders. In other words, if it is held that the landlords have deemed to have accepted rent for October and November, 1975 sent by money orders, in that case there would be no cause of action to either issue suit notice or to maintain the suit against the petitioner on the ground of default. This legal position has been considered by this Court in the decision in the case of Suka Ishram v. Ranchhoddas, . The view taken in the said decision has been followed recently by this Court in Writ Petition No. 3227 of 1987 Madhukar Govind Vaidya v. Narayan Harishchandra Surve decided on June 8, 2000.
6. On careful examination of the judgment of the Appellate Court, it will be seen that the Appellate Court proceeded to reverse the order passed by the trial Court dismissing the suit, on the sole ground that mere non-production of counterfoils of rent receipts by the landlord cannot lead to an adverse inference against the landlord so as to non-suit the landlord. The Appellate Court has not even adverted to the other factors which weighed with the trial Court, namely, the evidence of D. W. 1 and D. W. 2 as well as of P.W. 1 which, had direct bearing on the point in Issue. In my view, the trial Court was right in holding that the plaintiff had failed to prove that the tenant was a wilful defaulter or had neglected in paying the rent to the landlord. As pointed out earlier, the conclusion reached by the Appellate Court is wholly unsustainable as it clearly overlooks the crucial evidence referred to above.
7. Learned counsel for the respondents-landlords vehemently argued that the trial Court has not recorded a clear finding that the tenant had paid rent till September, 1975 and in the absence of the said finding it was not open for the trial Court to conclude that the tenant was not in arrears for more than six months. I have already considered this aspect while examining the evidence on record. In my view, the trial Court has accepted the defence of the tenant as a whole that she had paid the rent till September, 1975 to the husband of the plaintiff for which no rent receipts were issued. The petitioner having succeeded in establishing that the practice was of not issuing the rent receipts, although the rent was paid, it necessarily follows that the petitioner has paid the rent to the husband of the plaintiff till September, 1975. It has come on record that the tenant offered the rent for the months of October and November, 1975 by money orders, which was refused by the respondent-landlord. In the circumstances, having regard to the totality of the evidence on record, I am inclined to affirm the conclusion reached by the trial Court that the tenant was not a wilful defaulter or had neglected in paying the rent as alleged. In the circumstances, no decree could be made under Section 12(3)(a) of the Bombay Rent Act.

8. For the aforesaid reasons, the writ petition is allowed with no order as to costs. Consequently, the judgment and order passed by the 2nd Additional District Judge, Satara, dated 25-3-1987 in Regular Civil Appeal No. 244 of 1984 is set aside and the judgment passed by the 4th Joint Civil Judge, Junior Division, Satara dated 3-4-1984 in Regular Civil Suit-No. 11 of 1977 is restored. Accordingly, the suit filed by the respondent stands dismissed.
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