IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 16/06/2006
Coram
The Hon'ble Mr.JUSTICE S.RAJESWARAN
C.R.P.(NPD) No.460 of 2006
Dr.R.Arulmozhi .. Petitioner
-Vs-
M.Sadasivam .. Respondent
Revision Petition filed against the judgment dated 19.10.2005, in
R.C.A.No.1/2005 on the file of the Appellate Authority (Sub-Court) Poonamallee
confirming the order in R.C.O.P.No.22/2000, dated 24.9.2004 on the file of the
Court of Rent Controller (District Munsif), Ambattur.
!For Petitioner : Mr.T.P.Manoharan
^For Respondents : Mr.K.Elango
:ORDER
This Revision has been filed under Sec.25 of the Tamil Nadu Buildings
(Lease & Rent Control) Act, 1960 (hereinafter called ‘the Act’) against the
judgment dated 19.10.2005 made in RCA No.1/2005 on the file of the Appellate
Authority, (Sub-Court) Poonamallee, confirming the order dated 24.9.2004 made
in R.C.O.P.No.22/2000 on the file of the Rent Controller (District Munsif),
Ambattur.
2. The unsuccessful tenant before both the authorities below has
filed the above revision petition. The respondent/landlord filed RCOP
No.22/2000 on the file of the learned Rent Controller, Ambattur praying for an
order of eviction under Sec.10(2)(i), 10(2)(ii)(b) and 10(3)(a)(i) of the Act.
3. The Rent Controller by order dated 24.9.2004 ordered eviction on
the ground of wilful default and owner’s occupation and dismissed the RCOP on
the ground of different use by the tenant. Aggrieved by the same, the tenant
filed RCA No.1/2005 and the Appellate Authority by order dated 19.10.2005
dismissed the same thereby confirmed the order of the Rent Controller.
Challenging the concurrent judgments, the above revision petition has been
filed by the tenant.
4. The respondent/landlord is the absolute owner of the ground floor
flat bearing Door No.45/7, Shanthiniketan Colony, Anna Nagar Western
Extension, Chennai.600 101. The petitioner and the respondent herein entered
into a lease agreement on 28.8.1996, according to which, the tenant agreed to
pay a sum of Rs.1,600/- p.m towards rent and a sum of Rs.2,000/- p.m towards
amenities. Thus the total monthly rent payable by the tenant is Rs.3,600/-.
A sum of Rs.21,600/- has been paid by the tenant as advance. The relationship
between the parties got strained resulting in the tenant sending a letter
dated 28.12.1999 informing the landlord that he would be sending a sum of
Rs.1,600/- only from December 1999, as the promised amenities were not
provided by the landlord. The tenant further informed in the above letter
that he had paid a sum of Rs.2,000/- every month in excess during the past
three years and therefore the excess amount paid towards the amenities should
be refunded by the landlord. The landlord sent a legal notice dated 12.2.2000
claiming arrears of rent not only at the admitted rate of Rs.3,600/- but also
on the basis of the proposed enhancement as stated in the agreement. He
claimed arrears and the payment of rent from the ;month of August 1997 to
January 1999 and also March 1 999 to February 2000. He further informed the
tenant that he wanted the property for his own use and occupation and blamed
the tenant for using the property for non-residential purpose, even though it
was let out for residential purpose. The petitioner/tenant sent a reply dated
27.2.2000 claiming that a sum of Rs.78,000/- was paid by him as an excess
amount towards the amenities and an excess advance amount of Rs.20,000/- held
by the respondent/landlord. In such circumstances, the petitioner/tenant
called upon the respondent/landlord to return the excess amount of Rs.98,000/-
(78,000 + 20,000) and till such time adjust the excess amount held at the rate
of Rs.1,600/- per month from the month of January onwards. After sending a
reply dated 15.3.2 000 the respondent/landlord filed the RCOP as stated above.
5. The Rent Controller after evaluating the evidence held that having
accepted to pay a sum of Rs.3,600/- per month by entering into a lease
agreement, the petitioner/tenant cannot be permitted to say that he is
entitled to pay only a sum of Rs.1,600/-per month and the alleged excess
amount paid by him in the past towards amenities should be adjusted in the
future rents. While rejecting the petition on the ground that the property
was used for some other purpose, the Rent Controller accepted the case of the
respondent/landlord that the premises was required for his own use and
occupation. The Appellate Authority was in agreement with the order of the
Rent Controller and therefore dismissed the appeal.
6. Heard both the learned counsel appearing on either side. I have
also perused the documents filed in support of their submissions.
7. Learned counsel for the petitioner/tenant contended that both the
authorities did not consider and discuss the facts, pleadings, contents of the
exhibits and depositions with reference to the ingredients to Sec.10(2)(i) and
10(3)(a)(i) of the Act. The learned counsel has also submitted that the
excess amount lying in the hands of the respondent/landlord should be adjusted
towards the rent payable as per Sec.7 of the Act. As both the authorities
below did not consider the issue in the proper perspective, the order of the
authorities below is liable to be interfered with by this court.
8. He relied on the following judgments in support of his
contentions:-
(1) 1979-II M.L.J. 326 (Pattabiraman v. Accommodation Controller); (2 ) 1974
T.L.N.J. 245 (K.R.Loganatha Naicker vs. S.R.Balasundara Mudaliar); (3)
1978-I M.L.J. 79 (Khader Md. Rowther v. G.S.Sundaram); (4) 2000-I-L.W. 853
(Narayanaswamy v. Raman); (5) 2000 (1) SCC 451 ( chandramohan (Vs)
Sengottaiyan and others) (6) 2000(II M.L.J. 202 ( Mahalingam v. Pichaiammal)
and (7) (2005) 4 M.L.J. 127 (Sudhandhira Devi,R. v. K.Navanithakrishna).
9. Per contra, learned counsel for the respondent/landlord supported
the decision of the authorities and pointed out that by unilaterally choosing
to pay a sum of Rs,1,600/- only towards the monthly rent as against Rs.3,600/-
per month as agreed upon in the lease agreement, which also he paid for a
period of three years from the date of the lease agreement, the tenant is
guilty of wilful default.
10. Both the petitioner and the respondent admit that a lease
agreement was entered into on 28.8.1996 and a perusal of the same shows that
the petitioner herein agreed to pay a total sum of Rs.3,600/- per month
consisting of Rs.1,600/- per month towards rent and Rs.2,000/- per month
towards amenities to the respondent herein. A sum of Rs.21,600/- was required
to be paid under the agreement as security deposit. It is not disputed that
this amount was paid by the tenant. The petitioner/tenant has also been
paying the monthly rent of Rs.3,600/- for three years and the documents filed
before the rent controller would prove that the petitioner/tenant is not
proper and prompt in paying the monthly rent then and there when it became
due. Several letters have been written by the landlord demanding the amount
and the petitioner/tenant sent replies promising to pay the amounts soon.
11. Admittedly, the relationship between the landlord and the tenant
was strained as the respondent/landlord sought to increase the rent by 10% as
per clause 12 of the lease agreement. By letter dated 28.12 .99, the
petitioner/tenant informed the respondent/landlord that on and from December
1999, he would send a sum of Rs.1,600/- per month and he is also entitled to
the refund of the excess amount paid by him towards amenities during the past
three years.
12. This conduct of the petitioner/tenant, in my view, is not bona
fide. Admittedly, he has been paying the monthly rent of Rs.3,600/- as per
the lease agreement and nowhere in the lease agreement it was stipulated that
the amenities charges of Rs.2,000/- per month would become payable only after
some repair works were done by the respondent/landlord, at a cost of Rs.1,25
lakhs. This was raised by the revision petitioner for the first time after
the relationship got strained. Similarly, the revision petitioner cannot be
allowed to say that the amount of Rs.2,000/- per month paid by him towards
amenities for the past three years should be refunded or adjusted for future
rents. Having paid a total sum of Rs.3,600/- per month without any demur or
protest, the revision petitioner is estopped from saying that the monthly rent
is only Rs.1,600/- per month and not Rs.3,600/- per month. Therefore I am in
agreement with the courts below that the tenant has committed wilful default
once he admitted openly that he is entitled to send a sum of Rs.1,600/- per
month from December 1999 onwards.
13. Insofar as the adjustment of the rent is concerned, it is true
that under Sec. 7(2)(a)(b) of the Act, the landlord may receive the payment
of an amount not exceeding one month rent by way of an advance and any sum
paid in excess shall be refunded or adjusted at the option of the tenant. In
the present case, the revision petitioner has paid six months’ advance amount
of Rs.21,600/-. Whereas, the respondent is entitled to a sum of Rs.3,600/-
alone as advance amount. That means, a sum of Rs.18,000/- is held by the
respondent/landlord in excess, which could be adjusted towards the monthly
rental arrears. That being so, the excess advance amount could be adjusted
for five months rental arrears. As per the letter dated 5.1.2000 sent by the
respondent, the revision petitioner did not pay any amount after January 1999
which means the revision petitioner is due to pay the monthly rent from the
month of February 1999 onwards. If these excess advance amount of Rs.18,000/-
is adjusted, still the revision petitioner is due to pay the monthly rent from
August 1999 onwards. In such circumstances, the revision petitioner cannot
take shelter under Sec.7 of the Act and he has been guilty of wilful default
on this score also.
14. The revision petitioner in the reply notice dated 27.2.2000
claimed that the sum of Rs.98,000/- being held by the respondent/ landlord as
excess amount consisting of Rs.78,000/- paid by him towards amenities at the
rate of Rs.2,000/-per month and Rs.20,000/- towards excess advance amount. I
have already held that the tenant cannot be allowed to say that the rent
payable by him is only Rs.1,600/- per month. But, in this notice, the
revision petitioner has deducted a sum of Rs.1,600/- as one month’s advance
and claimed that a sum of Rs.20,00 0/- is held by the respondent/landlord as
excess advance amount which is again not correct. Only a sum of Rs.18,000/-is
held by the respondent/landlord in excess. But in his deposition, the
revision petitioner has gone further and deposed that a sum of Rs.1,20,000/-
is held by the landlord as excess amount consisting of Rs.78,000/- towards
amount paid for amenities, Rs.20,000/- as excess advance amount and
Rs.22,000/- for repair and maintenance work done by him on the petition
premises. Thus the revision petitioner has been taking different stance
without any evidence and such a conduct of the revision petitioner is not bona
fide and I reiterate that the revision petitioner committed wilful default in
the payment of agreed monthly rent.
15. Now let me consider the judgments cited by the learned counsel
for the revision petitioner.
16. In 1971-II M.L.J. 326 cited supra, this court has held as
follows:-
“2. I am unable to agree with the contentions of the learned Government
Pleader. In a case where quasi-judicial tribunals adjudicate upon rights of
parties after hearing them it is but elementary that they should give
demonstrable reasons so that when it is scrutinised by any one in the higher
hierarchy exercising visitorial powers he should be in a position to
appreciate as to what was the real reason behind the order impugned or passed.
It is now well-settled that such judicial authorities ought not to lightly
reject petitions by passing a non-speaking order which is totally bereft of
any reasoning. Such reasons ought to form part and parcel of the order itself
so that the order could be demonstrated to be one which is sustainable or
otherwise by the superior Court or authority when it has the occasion to refer
to it and consider whether such an order is proper or regular. This view is
accepted by the Supreme Court in one of its latest pronouncements in
Travancore Rayons v. Union of India, A.I.R. 1971 S.C. 862, The Supreme
Court said:
“When judicial power is exercised by an authority normally performing
executive or administrative functions, the Supreme Court insists upon
disclosure of reasons in support of the order on two grounds; one, that the
party aggrieved in a proceeding before the High Court or the Supreme Court has
the opportunity to demonstrate that the reasons which persuaded the authority
to reject his case were erroneous; the other, that the obligation to record
reasons operates as a deterrent against possible arbitrary action by the exec
utive authority invested with the judicial power”.
On the ground that the 1st respondent failed to give any satisfactory reasons
and indeed no reason at all to justify the challenged order, the writ
petitions should succeed.”
17. In the above decision this court held that quasi-judicial
tribunals should give demonstrable reasons so that when it is scrutinised by
any one in the higher hierarchy he should be in a position to appreciate as to
what was the real reason behind the order impugned or passed.
18. I do not think that the authorities below failed to give any
demonstrable reasons so that this court was not in a position to appreciate as
to what was the real reason behind the order of eviction.
19. In (2000) 1 SCC 451 cited supra, the Hon’ble Supreme Court held
that only when the Rent Controller is satisfied that tenant’s default is
wilful he can order eviction and whether the default is wilful is a question
of mixed facts and law. In the very same judgment, the Hon’ble Supreme Court
held that where findings recorded by Appellate Authority are illegal,
erroneous or perverse, High court under Sec.25 of the Act 18/1960 may reverse
the findings and record its own findings.
20. In the case on hand, the default of the tenant is unquestionably
wilful default and both the authorities have come to a correct finding and
therefore there is no necessity to interfere with those findings.
21. In 2000-1-L.W. 853 cited supra this court held as follows:-
“12. In the light of the above pronouncements, this Court has to consider the
merits of the Second Appeal. Though the findings of the two Courts below are
concurrent, this Court is unable to sustain the judgment of the Courts below
as they have miserably failed to consider the material documents and oral
evidence. The omission to consider the material documents and material
portion of the evidence by the two Courts below is a valid ground for
interference in the Second Appeal, even if it is against concurrent findings.
Merely because, the findings are concurrent, this Court is not helpless when
it is demonstrated that the two Courts below have failed to advert or consider
the material portion of the evidence or their appreciation of evidence is
perverse or the findings recorded by the two Courts below are demonstrably
incorrect on the face of the documentary evidence produced before the two
Courts below. This Court is considering this appeal being conscious of the
pronouncement of the Apex Court as to the Court’s power under Section 100,
C.P.C.”
22. In the above case this court has held that when the courts below
miserably failed to consider the material documents and oral evidence or their
appreciation of evidence is perverse, this court can interfere under Sec.100
of C.P.C. The facts of the above case are different and they do not support
the case of the revision petitioner.
23. In (2000) II M.L.J. 202 cited supra, this Court held as
follows:-
“12. In view of the law declared by the Honourable Supreme Court, it has to
be held that landlady has no cause of action to file application for eviction
on the ground that tenant has committed default in paying rent. As stated
earlier, landlady has taken advance of 60 months rent, though law permits to
take advance of only one month rent. Excess advance is liable to be adjusted
in the rent payable by tenant as and when becomes due even without any demand
from tenant. If that be so, landlord cannot expect payment of rent for the
alleged period of default. If landlord cannot demand any rent for that
period, notice issued by her intimating default also will be invalid and of no
legal consequence. On the date when notice was issued, no rent was due nor
payable by tenant. If notice issued is invalid merely because tenant did not
pay rent within a period of two months, he also cannot be deemed as defaulter.
Appellate authority has not taken into consideration the above legal position
while confirming the order of eviction.”
24. I am in entire agreement with the above decision, according to
which excess advance is liable to be adjusted in the rent payable by the
tenant as and when it becomes due even without payment from the tenant. I
have also already held that even after the adjustment of the excess advance
amount, still the revision petitioner is in arrears of rent which is wilful
and wanton warranting an order of eviction.
25. In the light of the above, the revision petition challenging the
order of the appellate authority ordering eviction on the ground of wilful
default fails and the order of eviction on the ground of wilful default has to
be upheld and accordingly upheld.
26. Insofar as the eviction confirmed on the ground of owner’s
occupation is concerned, the learned counsel for the petitioner strenuously
contended that the respondent/landlord has miserably failed to prove his case
and both the authorities below have mechanically upheld the contention of the
landlord that he is in bona fide need of the petition premises for his own use
and occupation.
27. The Appellate Authority in the order dated 19.10.2005 held that
the tenant was not able to prove by letting in evidence that the
respondent/landlord owns some other building other than the petition premises
and upheld the order of eviction on this ground also. The Appellate Authority
has not considered the fact that excepting making averments in the petition
and giving oral evidence that the respondent/ landlord is not owning any other
property, the respondent/landlord has not let in any other evidence to prove
that he is in real need of the petition premises for his own use and
occupation.
28. In 1974 T.L.N.N.J. 245 cited supra this court held as follows:-
“The tenant is the petitioner. The courts below have not given any definite
finding as required U/s. 10(3)(c); In cases arising U/s. 10(3 )(c), certain
stated considerations arise besides the normal features which usually come up
for decision in courts in the matter of the acceptance or rejection of
application for eviction filed by landlords for additional accommodation. In
this case, the court is concerned with an application U/s.10(3)(c). The
common features which are to be taken notice of by the Controller and the
appellate authority, while dealing with such applications are that the
Controller or the appellate authority as the case may be, is so satisfied
shall make an order directing the tenant to put the landlord in possession of
the part of the building for the possession of which the application for
additional accommodation has been filed, and if not so satisfied the
application has to be rejected. The above special feature in an application
U/s.10(3)(c) is subject to the proviso to S.10(3)(c) of the Act. The crucial
aspect therefore, could be charaterised as a special incident in matters
arising U/s. 10(3)(c) is that there should be a categorical finding by the
statutory authority that the hardship which may be caused to the tenant by
granting it will outweigh the advantage to the landlord. This special
prescription is not to be considered as otiose or an an irrelevant appendage
in the statute. It has been specially provided for so as to avoid necessary
hardship to the tenant, as in the case under consideration the landlord is
only seeking additional accommodation in the same premises, whether for
residential or non residential purposes. Therefore, it becomes imperative for
the authorities in cases arising U/s.10(3)(c) to give a specific finding
whether the hardship which the tenant is likely to suffer will outweigh the
advantage to the landlord or vice versa. Unless this aspect is noticed and
adjudged upon by the statutory authorities there is no complete enquiry on the
statute contemplated in regard to the petition arising U/s.10(3)(c). Such an
enquiry has not been undertaken in this case. Therefore, there has not been a
proper disposal of the application U/s.10(3)(c).”
29. In this decision this court considered the provisions of
Sec.10(3)(c)of the Act and held that it is imperative for the authorities in
cases arising under Sec.10(3)(c) to give a specific finding whether the
hardship which the tenant is likely to suffer would outweigh the advantage to
the landlord or vice versa.
30. This decision is not applicable to the case on hand as the
eviction petition has not been filed under Sec.10(3)(c) of the Act.
31. In 1978-I-M.L.J. 79 cited supra this court held as follows:-
“Sec.10(3) (a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960,
provides for eviction of tenants in cases where the landlord requires the
building for his own occupation. Sub-clauses (i) to (iii) lay down the
particular circumstances under which a landlord can ask for eviction of the
tenant. Sub-clause (i) deals with residential buildings; sub-clause (ii)
deals with non-residential buildings which are meant, or actually used, for
stationing vehicles; sub-clause (iii) deals with other non-residential
buildings. It may be that the language of sub-clause (iii) as compared with
sub-clauses (i) and ( ii) is susceptible of a narrow, literal, interpretation,
but it is the common acceptation of lawyers and Courts that this provision,
like the other two following provisions in the same sub-section, lays down two
indispensable conditions for an eviction petition. The landlord must be in
need of the premises under the tenant’s occupation for the purpose of his own
business or that of a member of his family. The landlord must have no other
non-residential building of his own elsewhere in the same city, town or
village concerned.”
32. This court in the above judgment lays down two indispensable
conditions for eviction where the landlord requires his building for his own
occupation. One of the conditions is that the landlord must be in need of the
premises under the tenant’s occupation for the purpose of his own occupation
or that of a member of his family. The Rent Control Appellate Authority has
failed to examine whether the respondent/landlord satisfied the two initial
requirements and simply proceeded to upheld the order of the Rent Controller.
The Rent Controller also has not considered these aspects and mechanically
allowed the eviction petition on the ground of owner’s occupation.
33. In (2005) 4 M.L.J. 127, this court held as follows:-
“20. Excepting the above averments, no other averments are available, such
as, what is the name of the business, in which building that business is
carried on, who is the owner of that building, what is the rent payable, etc.
The landlords cannot escape very easily contending that the pleadings in the
rent control application should not be construed so strictly, and it is
sufficient, if some allegations are available for personal occupation. It is
incumbent upon the landlord to plead the minimum requirements, to satisfy the
ingredients available under Sec.10(3)(a)(iii) of the Act. Sec.10(3)(a)(iii)
of the Act says, ‘the landlord or the member of the family, if the building is
required for the member, must be carrying on business on the date of filing of
the application, that he or the member of the family should not own any
non-residential building for the purpose of carrying on the said business and
that the requirement must be bona fide, not aiming at evicting the tenant.
Therefore, the landlord must say, whether the member of the family, since in
this case the building is sought for the members of the family, is owning any
property, of his own, as nonresidential building, for the purpose of carrying
on business, which is absent here. What is the name of the business, who is
the owner of the business is also not specifically pleaded. In the absence of
any proof, by producing some documents at a later stage, the landlords want to
make out a case, as if the members of the family are carrying on the business.
If pleadings are available, then only, comparing the same with the evidence,
whether the evidence fits-in with the pleadings, the requirement could be
ascertained, in order to have the satisfaction by the Rent Controller or the
appellate Authority, as the case may be, checking the bona fide.”
34. I am in respectful agreement with the above judgment and this
decision will definitely apply to the facts before this court. The
respondent/landlord has not at all satisfied the minimum requirement to
attract the ingredients available under Sec.10(3)(a)(i) of the Act.
35. In view of the above discussion, I am inclined to hold that the
eviction order passed by the authorities below on the ground of owner’s
occupation is not proper and the same is therefore liable to be set aside.
Accordingly, the same is set aside.
36. In the result, the revision petition is partly allowed, setting
aside the order passed by the authorities below on the ground of owner’s
occupation and dismissing the revision petition on the ground of wilful
default and the revision petitioner is liable to be evicted from the petition
premises on the only ground of wilful default committed by him. No costs.
C.M.P.No.3447/2006 is closed.
16.6.2006
C.R.P.NPD.No.460 of 2006
S.RAJESWARAN, J.
After pronouncement of the order today, the learned counsel for the
tenant/petitioner seeks time for the tenant to vacate the premises and hand
over vacant possession. Accordingly, six months’ time is granted to the
tenant/petitioner from today to vacate and hand over the vacant possession of
the premises in question to the respondent/ landlord on condition that the
tenant/petitioner files an affidavit of undertaking to this effect within a
period of seven days from today, after serving a copy of the same to the
learned counsel for the respondent/landlord.
Post the matter on 29.06.2006.
16.06.2006.
cla
To
1.The Appellate Authority (Sub-Judge) Poonamallee.
2. The Rent Controller (District Munsif), Ambattur.