ORDER
S. Sardar Zackria Hussain, J.
Page 1341
1. The second respondent in R.C.O.P.No.3 of 2000 on the file of the District Munsif (Rent Controller), Nagapattinam, is the revision petitioner in C.R.P.No.3294 of 2001. This Civil Revision Petition is directed against the order of eviction on the ground of wilful default in payment of rent negativing the prayer for eviction on the grounds of subletting and for own use and occupation as per judgment dated 31.8.2001 in R.C.A. No.1 of 2001 passed by the Rent Control Appellate Authority (Principal Subordinate Judge), Nagapattinam, reversing the order of dismissal dated 22.12.2000 passed by the Rent Controller (District Munsif), Nagapattinam, in R.C.O.P.No.3 of 2000 filed for eviction on the grounds of wilful default, subletting and for own use and occupation.
2. The petitioner in R.C.O.P.No.5 of 2000 filed under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as ‘the Act’), is the revision petitioner in C.R.P.No.1144 of 2002. The said petition, after contest, was allowed by the Rent Controller as per order dated 22.12.2000 and the appeal filed against the same in R.C.A. No.2 of 2001 was dismissed by the Rent Control Appellate Authority as per judgment dated 31.8.2001, which is challenged in the latter revision petition.
3. The appeal filed by the landlady in R.C.A.No.1 of 2001 against the dismissal of R.C.O.P.No.3 of 2000 was allowed in part thereby ordering eviction on the ground of wilful default in payment of rent. The appeal filed by the landlady in R.C.A.No.2 of 2001 was also allowed reversing the order of the Rent Controller permitting the petitioner for depositing the rent in Court. The said judgments are challenged in these Revision Petitions.
4. The first respondent / landlady, who was the petitioner in R.C.O.P.No.3 of 2000 (hereinafter referred to as ‘the landlady’), filed the above petition claiming that she is the owner of the petition premises; it was let out to the second respondent herein, viz., first respondent in the R.C.O.P. (hereinafter referred to as ‘the first respondent) for doing business in plastic materials; there is no tenancy agreement between the revision petitioner, viz., the second respondent in R.C.O.P. (hereinafter referred to as ‘the revision petitioner) and the landlady; he is not connected with the petition premises; he caused notice on 27.11.1999 as if the landlady refused to receive the rent; the petition premises is required for her own use and occupation for the purpose of doing business in electrical materials; her son is taking steps to start the business; the petition premises was subleased by the first respondent to his brother second respondent/revision petitioner; the second respondent was irregular in paying rent and the rent was paid only till December 1997 at the rate of Rs.300/- per month; totally a sum of Rs.7500/- is due towards rent from January 1998 to January 2000; the first respondent has committed default wilfully in paying rent and that, therefore, the petition was filed for evicting the respondents on the above said grounds.
5. The first respondent filed counter supporting the case of the landlady stating that when he went to abroad, his brother, viz., second respondent,Page 1342 occupied the petition shop and he is in possession of the same and that he has no objection for allowing the petition.
6. The second respondent filed counter stating that the landlady and the first respondent colluded together and filed the petition for eviction. It is further stated that he is in possession of the petition premises as a tenant from 1984 and he has paid rent till December 1997; thereafter, the landlady refused to receive the rent; the rental amount of Rs.2000/-, which was sent to the landlady in the year 1998, was returned; he again sent Rs.6600/- towards rent for 22 months, viz., from January 1998 to October 1999 by way of Demand Draft on 13.11.1999, which was also refused to be received by the landlady; thereafter, he caused notice on 27.11.1999 to give the name of the Bank and the account No. of the landlady for depositing the rent, which was replied by the landlady with false averments; the son of the landlady has no intention to do any business and he is seeking employment in abroad; the landlady is the own sister of the father of the respondents and that the petition has been filed in view of the family dispute between the respondents.
7. The second respondent / revision petitioner filed R.C.O.P.No.5 of 2000 setting out the same facts as stated in the counter filed by him in R.C.O.P.No.3 of 2000 that the landlady refused to receive the rent further stating that the landlady also refused to receive the amount of Rs.7800/- sent on 03.3.2000 towards rent for 26 months, viz., from January 1998 to February 2000 and that the petition was filed for depositing the rent in Court.
8.The said petition was opposed by the landlady stating that the second respondent is not the tenant and only his brother first respondent is the tenant of the petition shop and that R.C.O.P.No.3 of 2000 was filed for eviction of the second respondent from the petition shop and further stating that the petition is not maintainable since the procedure under Section 8(2) of the Act has not been followed.
9.Both the petitions were tried together and common evidence was recorded. A.Abdul Gani, son of the landlady, was examined as P.W.1 besides one Mohammed Rasheed as P.W.2 and Exs.P.1 and P.2 were marked on the side of the landlady. As against such evidence, the first respondent examined himself as R.W.1 while the second respondent examined himself as R.W.3 besides one Mariappan as R.W.2 and Exs.R.1 to R.16 were marked on the side of the respondents.
10. Learned Rent Controller, considering such evidence adduced on either side, dismissed R.C.O.P.No.3 of 2000 filed for eviction and allowed R.C.O.P.No.5 of 2000 filed for deposit of rent in Court directing the revision petitioner to deposit the entire rent, viz., from January 1998 to November 2000 in Court within one week from the date of order, viz., 22.12.2000, and also directing him to pay subsequent rent in Court before 7th of every month. Aggrieved at the order of dismissal passed by the learned Rent Controller in R.C.O.P.No.3 of 2000, the landlady filed R.C.A.No.1 of 2001 and as against the order and decretal order passed by the Rent Controller in R.C.O.P.No.5 of 2000, the landlady filed R.C.A.No.2 of 2001. Both the appeals were tried together and R.C.A.No.1 of 2001 was allowed in part by the learned Rent Page 1343 Control Appellate Authority ordering eviction on the ground of wilful default in payment of rent and confirming the finding of the learned Rent Controller in respect of the order of refusal for eviction on the ground of subletting and for own use and occupation. The learned Rent Control Appellate Authority allowed R.C.A.No.2 of 2001 dismissing the petition filed under Section 8(5) of the Act in R.C.O.P.No.5 of 2000 for deposit of rent in Court by the revision petitioner.
11.Aggrieved at the said judgment dated 31.8.2001 made in R.C.A.No.1 of 2001 ordering eviction on the ground of wilful default in payment of rent by the learned Rent Control Appellate Authority, the earlier Revision Petition in C.R.P.No.3294 of 2001 has been filed and the latter revision in C.R.P.No.1144 of 2002 has been filed as against the judgment made in R.C.A.No.2 of 2001 dated 31.8.2001 by the learned Rent Control Appellate Authority.
12. Learned counsel for the revision petitioner submitted that inasmuch as the revision petitioner, who is the second respondent in the Rent Control Petition, is the tenant in respect of the petition premises bearing Door Nos.483 to 485, which is occupied by him as one shop and he is carrying on business, which is run in the name and style of ‘Mohamed Abdul Kader Stores’, and since it is denied by the landlady that the revision petitioner is not a tenant and only his brother, first respondent in the Rent Control Petition, is the tenant and since she refused to receive the rent, after causing notice to the landlady to give the name of the Bank and her account No. for depositing the rent, he filed the petition under Section 8(5) of the Act for depositing the rent in Court. Learned counsel argued that since definite stand has been taken by the landlady that the first respondent is the tenant in the petition premises, which was subleased to him, it is for the landlady to prove that the first respondent subleased the petition premises to him. Learned counsel vehemently argued that the revision petitioner alone is the tenant in respect of the petition premises and the landlady cannot succeed on the weakness of the case of the revision petitioner and that as the Rent Control Appellate Authority concurred in recording finding that the revision petitioner is the tenant under the landlady, the petition premises was not subleased to him by his brother, the first respondent in the Rent Control Petition. It is the further submission of the learned counsel for the revision petitioner that since the landlady refused to receive the rent as well as the Money Order and Demand Draft towards rental amount, after causing lawyer’s notice, he filed petition for deposit of rent in Court and that, therefore, according to the learned counsel, the revision petitioner has not committed default in payment of rent. Learned counsel further submitted that C.M.P.No.9116 of 2002 has been filed by him to receive documents marked as ‘A’ to ‘G’, viz., Challan dated 13.4.1998 to Indian Overseas Bank for the issuance of Draft, office copy of letter of the same date from the petitioner enclosing Draft, xerox copy of Draft dated 13.4.1998 in favour of the respondent, returned postal cover dated 13.4.1998, office copy of letter dated 13.11.1999 enclosing Draft, xerox copy of the Draft dated 13.11.1999 in favour of the respondent and returned postal cover dated 13.11.1999, as additional evidence in C.R.P.No.3294 of 2001.
Page 1344
13. Learned counsel for the landlady argued that inasmuch as it is found that the revision petitioner is the tenant and admittedly, he has not paid rent from January 1998 to January 2000 and committed default in payment of rent for the said period wilfully, the eviction ordered by the learned Rent Control Appellate Authority, being proper, is to be confirmed.
14. The landlady filed Rent Control Petition to evict both the respondents in the petition, viz., the revision petitioner, who is arrayed as second respondent in the R.C.O.P., and his younger brother first respondent, claiming that the first respondent alone is the tenant in respect of the petition premises, on the grounds of wilful default in payment of rent for the period from January 1998 to February 2000, that the first respondent in the R.C.O.P. has subleased the petition premises to his brother revision petitioner and that the premises is required for her own use and occupation for the purpose of carrying on business by her son. The landlady is the paternal aunt of both the respondents. The first respondent in the Rent Control Petition, viz., the younger brother of the revision petitioner, filed counter admitting that he alone is the tenant in respect of the petition premises and when he went to abroad, the revision petitioner trespassed and occupied the shop and he has no objection for allowing the Rent Control Petition. Though the first respondent filed counter as stated above, P.W.2, who was examined on the side of the landlady, has stated in his evidence that Jainullabideen, father of the respondents, was doing business in the petition premises as a tenant and after his death in the year 1984, the first respondent was doing business in plastic materials till 1997 and thereafter, he left to abroad subletting the same to his brother, revision petitioner, and since then, he is carrying on business in that premises. In the cross-examination, he has stated that the revision petitioner is doing business in the petition premises in hardwares and electricals in the name of Abdul Kader Stores. He has further stated that from 1984 to 1997, the first respondent was carrying on business in the petition Page 1345 premises in plastic materials and thereafter, he left to abroad in the year 1997 and returned.
15. The first respondent in the Rent Control Petition, who was examined as R.W.1, has stated in his evidence that he was in occupation of the petition premises as a tenant ill 1995 and on the same year, he subleased the same to his brother revision petitioner orally and thereafter, the revision petitioner is only carrying on business in the petition premises. He has also stated in the cross-examination that from 1984 to 1991, he was doing business in plastic materials and play sets in the petition shop and thereafter, he went to abroad. It is admitted by him in his cross-examination that there is no record to show that he was carrying on business from 1984-1991 in the petition shop. He has further stated in his evidence that he was doing business in the petition premises from 1991 to 1995 by engaging one Pakkirisamy and he came back in the year 1995 and subleased the petition premises to the revision petitioner and again, left to abroad. He has also examined R.W.2 in support of his case. The revision petitioner, who was the second respondent in the main petition, examined himself as RW.3 and denied such subletting and according to him, after the death of their father, he was only carrying on the business in the petition premises. Though R.W.1 and R.W.2 have set up a case that the first respondent was carrying on business in the petition premises after the death his father and that by engaging one Pakkirisamy or R.W.2 Mariappan, he was carrying on the business, no document has been produced to substantiate the same.
16. The revision petitioner has marked Exs.R.1 to R.3, rental receipts issued by the landlady for the months of May 1997, February 1997 and December 1997 respectively and no doubt, the above said receipts have been issued to Abdul Kader and Sons. Admittedly, the landlady refused to receive the rent sent by the revision petitioner by way of Money Orders for a sum of Rs.4800/- towards rent for 16 months, viz., from January 1998 to April 1999 Page 1346 and for a sum of Rs.3000/- towards rent for ten months, viz., May 1999 to February 2000, under Exs.R.6 and R.7 respectively dated 03.3.2000. Therefore, it is submitted that there is no default committed by the revision petitioner much less wilful default in payment of rent as claimed by the landlady.
17. Learned counsel also advanced argument that it is only the revision petitioner, who is the tenant in respect of the petition premises under the landlady. The revision petitioner applied for telephone connection on 14.8.1992 to the petition premises as seen in Ex.R.11 and he also obtained Certificate of Registration for his dealership under Ex.R.13 dated 08.8.1990 as per which he alone has been registered as a dealer for carrying on business in hardware, paints and electricals in the petition premises and accordingly, he has also paid Sales Tax under Ex.R.14.
18. No doubt, the receipts Exs.R.1 to R.3 have been issued to Abdul Kader and Sons but the same have been produced by the revision petitioner. The above said documents produced by the revision petitioner would show that the revision petitioner, who was inducted as a tenant under the landlady in the petition premises, has been carrying on business in hardware, paints and electricals. Despite the said fact, the landlady has come forward with a case that the revision petitioner is not a tenant and the first respondent in the main petition, who is the brother of the revision petitioner, alone is the tenant in the petition premises and the same has not been proved.
19. As per Exs.R.1 to R.3, receipts have been issued for payment of rent for the months of May 1997, February 1997 and December 1997 respectively. The revision petitioner caused lawyer’s notice Ex.R.4 dated 27.11.1999 stating that he is tenant in the petition premises under the landlady and that considering the close relationship of the landlady, being the paternal aunt of the respondents in the Rent Control Petition, and the fact that the landlady was in the habit of receiving the rental amount in lump sum, he was keeping quite without paying rent from January 1998. No doubt, as per reply notice Ex.R.5, the landlady denied that the revision petitioner is a tenant in the petition premises. But, however, when it is the specific case of the revision petitioner that he alone is the tenant and he has been paying rent to the landlady under Exs.R.1 to R.3 and admittedly, till December 1997, it is for him to pay the rent thereafter and instead, he simply kept quite without paying rent from January 1998 to October 1999 for about 22 months and caused lawyer’s notice Ex.R.4 dated 27.11.1999. It is seen that only under Exs.R.6 and R.7, he sent Money Orders for a sum of Rs.4800/- towards rent for 16 months, viz., from January 1998 to April 1999, and for a sum of Rs.3000/- towards rent for the period from May 1999 to February 2000 respectively on 03.3.2000. As per the provisions of the Act, the duty is cast upon the tenant to pay the rent every month. By merely stating in the lawyer’s notice Ex.P.1 dated 27.11.1999 that the landlady is his relative, viz., paternal aunt, and that she was in the habit of receiving the rental amount in lump sum, the revision petitioner was keeping quiet that she will come and receive the rent whenever it is required for her and his case is that when she has received the rent, he is only tenant under her and, therefore, it cannot be said that he has not committed default in payment of rent wilfully to the landlady. Till the causing of lawyer’s notice, no steps were taken by him to pay the rent to the landlady as contemplated under the Act. It is seen that only on 03.3.2000, the revision petitioner has sent a sum of Rs.4800/- by way of Money Order towards rent for the period from January 1998 to April 1999. Though in Ex.P.1 lawyer’s notice dated 27.11.1999 it is stated that he sent Demand Draft bearing No. DD/80/E 283684 dated 13.4.1998 drawn on Indian Overseas Bank, Nagore, for a sum of Rs.2000/- towards rental arrears till that date and again he sent a sum of Rs.6600/- by way of Demand Draft bearing No.0953527 dated 13.11.1999 drawn on Indian Overseas Bank towards rent till that date towards rental arrears by Registered Post on 13.11.1999 and they have been returned. Now they have been filed as additional documents, which cannot be received since though available, the same were not marked in the Rent Control Petition and, therefore, the petition in C.M.P.No.9116 of 2002 is to be dismissed. Even after filing of the R.C.O.P.No.5 of 2000 on 20.3.2000 under Section 8(5) of the Act for deposit of rent in Court, no attempts were made by him seeking to deposit the rental amount. It is clear from the records that an order was passed on 22.12.2000 directing the petitioner to deposit the rent in Court. But it is not known as to whether he deposited the rental arrears from January 1998 to February 2000 as per the order in R.C.O.P.No.5 of 2000 and whether he continued to deposit the same till such time the appeal was filed in R.C.A.No.2 of 2001 by the landlady, which was allowed on 31.8.2001. Therefore, it is clear that there have been callousness on the part of the revision petitioner in not paying the rent and in not taking steps for paying the rent as contemplated under the Act. Accordingly, it has to be held that he committed wilful default in payment of rent for the period from January 1998 to February 2000 as claimed by the landlady.
20. Though Exs.R.1 to R.3 receipts have been filed to show that the revision petitioner has paid rent for the months of May 1997, February 1997 and December 1997, no receipt or document has been filed by him to show that the landlady was in the habit of receiving the rent in lump sum. As such, the case of the revision petitioner that the landlady was in the habit of receiving rent in lump sum cannot be accepted. Therefore, considering all these aspects, the learned Rent Control Appellate Authority has rightly found that the revision petitioner, who is the tenant in respect of the petition premises under the landlady, has committed wilful default in payment of rent for the period from January 1998 to February 2000 and such finding, being proper and not erroneous, is to be confirmed.
Page 1347
21. In R.C.O.P.No.5 of 2000, the revision petitioner has sought for direction to deposit the rent in Court admitting non-payment of rent by him from January 1998. Though in the notice Ex.P.1 dated 27.11.1999, it is claimed by the revision petitioner that he sent Demand Draft dated 13.4.1998 for a sum of Rs.2000/- towards rental arrears till that date, it is not clarified as to how he sent Rs.2000/- towards rent till 13.4.1998, i.e., from January 1998 to March 1998 when admittedly, the rent was only Rs.300/- per month. As rightly held by the learned Rent Control Appellate Authority, till such time the lawyer’s notice dated 27.11.1999 is issued, no steps were taken by him requiring the name of the Bank from the landlady for depositing the rental amount from January 1998 to February 2000. That apart, it is also alleged in Ex.P.1 dated 27.11.1999 that even after the refusal of the Demand Draft bearing No.DD/80/E 283684 for a sum of Rs.2000/- dated 13.4.1998 by the landlady, he again sent another Demand Draft bearing No.0953527 dated 13.11.1999 for a sum of Rs.6600/- towards rental arrears for the period from January 1998 to October 1999, which was also refused to be received by the landlady. When the DD for a sum of Rs.2000/- sent by Registered Post was refused by the landlady, it is now known as to why he sent another DD for Rs.6600/- towards rental arrears without following the next step, viz., sending the rent by Money Order, and he has not caused lawyer’s notice immediately. The landlady caused reply notice Ex.P.2 dated 22.12.1999 denying the allegations raised by the revision petitioner and it is seen that only after the reply notice sent by the landlady, he sent a sum of Rs.4800/- on 03.3.2000 by way Money Order under Ex.R.7 towards rent for a period of 16 months, i.e., from January 1998 to April 1999, which was also refused to be received by the landlady. However, no petition was filed immediately for deposit of rent in Court and only after filing of the R.C.O.P.No.3 of 2000 for eviction on 15.02.2000 by the landlady, the revision petitioner filed R.C.O.P.No.5 of 2000 on 20.3.2000 for deposit of rent in Court. Therefore, the learned Rent Control Appellate Authority rightly decided that no case is made out by the tenant, viz., revision petitioner, for deposit of rent Court under Section 8(5) of the Act and the same does not call for any interference.
22. In the result, both the Civil Revision Petitions fail and the same are dismissed confirming the common judgment passed by the learned Rent Control Appellate Authority. The petition in C.M.P.No.9116 of 2002 is dismissed. No costs.