IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:18.02.2011 CORAM: THE HONBLE MR. JUSTICE T.S.SIVAGNANAM C.R.P.(NPD).Nos.1451 & 1452 of 2003 Govindarajalu Naidu .. Petitioner in both CRPs -vs- 1)Vaduganathan (Deceased) Ramesh (died) 2)Parimala Devi 3)Minor Dhinesh Kumar 4)Minor Sathish Kumar .. Respondents in both CRPs
Respondents 2 to 4 are brought
on record as legal representatives
of the deceased 1st respondent vide
order of Court dated 21.07.09 in
CMP.Nos.209 & 210 of 2007
COMMON PRAYER :- This Revision Petition is filed against the order and decree passed in R.C.A.Nos.7 & 8/2002 on the file of the learned Rent control Appellate Authority (Sub-Court), Thiruvarur dated 01.08.2003, confirming the order and decree passed in R.C.O.P.No.37 & 38/1999 by the learned Rent Control Authority (District Munsif Court), Thiruthuraipoondi dated 04.03.2002.
For Petitioner : Mr.S.V.Jayaraman Senior Counsel for Mr.S.Sathiamuthi For Respondents : Mr.A.Elango C O M M O N O R D E R These Revisions have been filed under section 25 of the Tamil Nadu Building (Lease & Rent Control) Act, (hereinafter referred to as the 'Act'). As these revisions relate to the same property and between the same parties, they were heard together and disposed of by this common order.
2. The petitioner in both the revisions is the tenant and the respondents are the landlord. The facts of the case lies in a narrow campus. One Mr.Vaduganathan Chettiar was the owner of the petition premises under whom the petitioner was inducted as the tenant during September 1987, in respect of a non-residential premises, the tenancy was a oral tenancy, according to English calendar month. The rent payable was Rs.750/- and the petitioner had paid an advance of Rs.8,000/-. The said Mr.Vaduganathan Chettiyar filed RCOP.No.37 of 1999, against the petitioner herein stating that after October 1998, the petitioner defaulted in payment of rent and such default was willful. As the said Mr.Vaduganathan Chettiyar died, his son Mr.Ramesh was brought on record. It was stated that the said Ramesh was unemployed and he desires to start a business in the petition premises and therefore, the petition premises is required for the said purpose. Thus, as legal notice was sent on 31.08.1999, stating that the tenant has committed willful default in payment of rent and the landlord requires the premises for the purpose of running a business by the said Ramesh. On the above grounds, the landlord sought for eviction under Section 10(2)(i) and 10(3)(a)(iii) of the Act.
3. The petitioner/tenant resisted the eviction petition by contenting that the tenancy commenced during September 1987 and the monthly rent of Rs.250/- and a sum of Rs.8,000/- was paid as advance and that the monthly rent was paid regularly and the rent was periodically increased upto Rs.750/- per month and that whenever the landlord increased the rent, he also demanded additional advance and the petitioner paid further sum of Rs.27,000/-as additional advance and the landlord retained a sum of Rs.35,000/- as advance. It was further stated that the landlord has suppressed the said fact in the eviction petition. Since, the landlord attempted to evict the tenant by force, the tenant filed a Civil Suit on 19.07.1999 and it is only thereafter, the landlord sent a eviction notice dated 31.08.1999, which was suitably replied by the tenant, by reply notice dated 10.09.1999. It is further contended that from July 1999, the landlord refused to receive rent and therefore, on 06.08.1999, the tenant sent the same by money order, which was refused to be received by the landlord. The tenant denied the allegation that after October 1998, no rent was paid and that upto June 1998, the rent was paid and thereafter, the landlord refused to receive rent. The rent was sent by money order, which was refused to be received, notice was sent, directing the landlord to furnish the bank account number to deposit the rent and this notice returned ‘unserved’. Thereupon, the tenant filed RCOP.No.38 of 1999, for deposit of the rent. The tenant further denied the contention raised by the landlord that the premises is required for his son’s business. It was further stated that the landlord owns several properties in Thiruthuraipoondi town and the plea raised by the landlord that he requires the premises for his son’s business is false. Therefore, it was contended that the eviction petition was filed only to some how evict the petitioner from the premises. That the landlord retaining a sum of Rs.35,000/- as advance, which is far in excess of the permissible amount that can be retained and landlord is not justified in alleging willful default in payment of rent.
5. Before the learned Rent Controller, the landlord Ramesh examined himself as PW-1 and marked three documents as Exhibits P1 to P3 and the tenant examined himself as RW-1 and marked five documents as Exhibits R1 to R5. The learned Rent Controller by its Judgment and decree dated 04.03.2002, accepted the case of the landlord and ordered eviction on both grounds. In respect of RCOP.No.38 of 1999, which was filed by the tenant under Section 8(5) of the Act for deposit of rent was dismissed by order dated 04.03.2002, holding that the tenant shall be entitled to deposit the rent, till he vacates the premises as per the order in RCOP.No.37 of 1999 and not thereafter. Aggrieved by the judgment and decree passed in the RCOPs, the tenant filed RCA.Nos.7 & 8 of 2002 respectively. The learned Rent Control Appellate Authority by separate orders, both dated 01.08.2003, confirmed the findings of the learned Rent Controller. Aggrieved by such concurrent findings, the tenant has filed these revision petitions.
4. The learned Senior counsel appearing for the petitioner assailed the correctness of the orders of the Courts below primarily on two grounds. Firstly, by contending that the landlord having retained a sum of Rs.35,000/- as rental advance far in excess of the advance permissible to be retained by the landlord under the Act cannot complain of willful default. That the Courts below concurrently erred in holding that there is willful default in payment of rent, by not appreciating the fact that for the first time in the evidence of PW-1, it was stated that the rents, which are paid or entered in a hand book and at no earlier point of time, such plea was raised. That the Courts below ought to have seen that in the notice, Exhibit P1 it has not been mentioned about the hand book and therefore, the Courts below ought to have rejected the contention of the tenant that there was such hand book. Secondly, it was contended by the learned Senior counsel that the eviction petition was also filed on the ground of owners occupation by stating that the landlord requires the premises for his son’s business. That, such plea is erroneous, since the landlord owned several properties in and around Thiruthuraipoondi town and during the pendency of these revisions, Mr.Ramesh also died and therefore the question of requirement of the premises for his business does not survive any longer and the eviction petition is liable to be dismissed. That, this subsequent event could be taken note of by this Court, while dealing with the validity of the order passed by the Courts below on the ground of bonafide requirements.
5. In support of the contentions that the landlord holding advance exceeding one month rent cannot complain about willful default. The learned Senior counsel placed reliance on the following decisions:-
1990 1 LW 563 [P.S.Venkatarajan vs. T.A.Govindarajan]
1990 I MLJ 508 [P.S.Venkatarajan vs. T.A.Govindarajan]
1993 TLNJ 173 [P.A.A.Naseema Ahmed vs. K.Narasimha Rao]
1999 II CTC 215 [Sivanraj vs. Essakkimuthu]
2000 II MLJ 202 [Mahalingam vs. Pichaiammal] and
2009 3 CTC 248 [Gopinath Furnitures and Home Appliances vs. S.Mohammed Zainuddin]
The learned Senior counsel placed reliance on the following decisions in support of his contention, that the requirements of owners occupation must exist not only on the date of petition, but to continue till final adjudication. 1997 II MLJ 278 [Fakir Mohideen vs. Habibunnissa and others], 1980 II MLJ 392 [M.Kanakavel pillai vs. Drugs and Chemicals, Kumbakonom] and 2001 (1) CTC 26 [C.R.I.Limited vs. Murali Mani and three others].
6. The learned counsel appearing for the respondents/landlord would contend that this Court exercising jurisdiction under Section 25 of the Act will not re-appreciate the evidence, which is available on record and come to a different conclusion, than what was concurrently arrived at by the Courts below. That the Courts below carefully and cogently assessed the oral and documentary evidence and held that the landlord has proved his claim and he is entitled to an order of eviction. In the absence of any perversity in the approach of the Courts below, this Court will not interfere in such concurrent findings. The learned counsel would further submit that the first contention raised by the learned Senior counsel appearing for the petitioner that the landlord retaining huge amount of advance cannot allege willful default does not arise as in the instant case, the tenant miserably failed to establish before the Courts that a sum of Rs.35,000/- is retained by the landlord as advance. Therefore, in the absence of any evidence to the said effect, the question of applying the legal principles set down by this Court in this regard does not arise. Further, the learned counsel would submit that the question of automatic set of against the advance does not arise, even assuming that the tenant wanted to set of the monthly rent paid against the advance of Rs.8,000/- retained by the landlord, such intention should have been conveyed by the tenant. Thus, in the absence of any evidence on all these aspects, the Courts below were right in ordering eviction. The learned counsel would further submit that the landlord is entitled to start a business in any one of his premises and the tenant cannot dictate any terms on this aspect to the landlord. That the bonafide requirements of the landlord to start a business for Mr.Ramesh survived from the date of filing the petition till its final adjudication and the landlord Ramesh died during the pendency of these revision petitions and his legal heirs were brought on record by order dated 21.07.2009. Therefore, the adjudication on the landlord’s claim having concluded as early as on 04.03.2002, when learned Rent Controller ordered eviction and confirmed in appeal by the learned Appellate Authority on 01.08.2003, the landlord cannot be non-suited, since, the landlord passed away, when the revisions were pending before this Court that too nearly after six years, after these revisions were filed. Therefore, it is submitted that the decision relied on by the learned Senior Counsel appearing for the petitioner is not applicable to the facts of the present case. Further, the learned counsel submits that the burden is on tenant to show that the default is not intentional or deliberate. In support of the said contention, the learned counsel placed reliance on the decisions of this Court in 2011 (1) CTC 526, [Gumani Bai and others vs. K.Kuthusamy]. The learned counsel would further submits that the expression ‘own use and occupation’ has to be construed widely and the provisions of the Act should not be construed so as to frustrate and default the legislation. In support of the said contention, the learned counsel placed reliance on the decision of the Hon’ble Supreme Court in 2010 (4) CTC 573, [Speedline Agencies vs. T.Stanes & Co. Ltd]. The learned counsel would further submits that the Courts below were right in dismissing the petition filed under Section 8(5) of the Act and that the tenant is bound to follow the procedures stipulated under Section 8 meticulously. In support of the said contention, the learned counsel placed reliance on the decision of the Hon’ble Supreme Court in AIR 2003 SC 153 [E.Palanisamy vs. Palanisamy] and decision of this Court in 2011 (1) TLNJ 122 [ M/s.Jagal Priya Medicals vs. Tmt.Mangammal].
7. Heard the learned Senior counsel appearing for the petitioner and the learned counsel appearing for the respondents and perused the materials available on record.
8. The contention of the petitioner is that he was inducted as the tenant initially for a rent of Rs.250/- which was gradually increased upto Rs.750/- and initially, the tenant had paid a sum of Rs.8,000/- as advance, as and when the rents were revised periodically, the landlord demanded further advance and on that score the tenant has paid a further advance of Rs.27,000/- and in all Rs.35,000/-. The tenant examined himself as RW-1, during cross examination, the tenant admitted that the landlord used to give a receipt in a small piece of paper, which has been produced before the Courts below and in that, it has been stated that Rs.8000/- has been paid and that the same is towards rental advance. The tenant further admitted in the same paper, there is no recording that a sum of Rs.35,000/- has been paid as total advance. Therefore, except for the averments made in the counter affidavit and in the chief examination of RW-1, the tenant was not in a position to prove before the Courts below that he had paid rental advance of Rs.35,000/-. In the above factual background, the Courts below came to a firm conclusion that the tenant miserably failed to prove that a sum of Rs.35,000/- has been retained by the landlord as rental advance. Further, the Courts below found that there is no evidence to the effect that during what period the tenant paid the additional advance and how much amounts were paid and how a sum of Rs.27,000/- as additional advance was paid. Thus, in the absence of any evidence to the said effect, no error can be attributed to the order passed by the Courts below in holding that the tenant failed to prove that he had paid additional advance to the landlord and the landlord held a sum of Rs.35,000/- as advance. In the absence of evidence before the Courts below, this Court exercising jurisdiction under Section 25 of the Act cannot make a further rowing enquiry and act as a second Court of first appeal and come to a different conclusion. Therefore, the contention raised by the learned Senior counsel appearing for the petitioner stating that the landlord cannot complaint about willful default, as he has retained huge amount as advance cannot be accepted, as there was no evidence to the effect that the tenant had paid huge advance. In view of such factual conclusion, there would be no necessity for us to examine the various decisions cited at the bar on this principle.
9. It is seen that the eviction petition was initially filed by Mr.Vaduganathan Chettiar, stating that the premises is required for business of his son Mr.Ramesh, who was impleaded as the second petitioner in the eviction petition. The said Mr.Vaduganathan Chettiar died, after the filing of the eviction petition and the said Ramesh examined himself as PW-1 and the learned Rent Controller was satisfied that the landlord required the premises for his own use and occupation. This finding is also confirmed by the learned Appellate Authority by Judgment and decree dated 01.08.2003.
10. It appears that the above revision petitions filed on 08.10.2003, was pending on the file of this Court. After the demise of the said Ramesh during the pendency of these revisions petitions his legal representatives were brought on record by order dated 21.07.2009. Thus, pending adjudication of the claim for owners occupation before the learned Rent Controller, the landlord was alive and even during the pendency of the appeal before the learned Appellate Authority, he was alive and even at the time, when the revisions were entertained by this Court, the landlord was alive. It is only during the pendency of the revision, the landlord died and his legal representatives were brought on record during 2009. The learned Senior counsel would submit that as on date, the requirements of owner’s occupation does not survive, since the landlord died pending these revision petitions.
11. In a recent decision of the Hon’ble Supreme Court in Speedline Agencies, referred supra, the Hon’ble Supreme Court while considering a matter arising under the Tamil Nadu Building (Lease and Rent Control) Act, considered the scope of the phrase “own use and occupation” under Section 10(3) (a) (iii) of the Act as also the aspect how a subsequent events should be taken into consideration and rendered an elaborate Judgment. The relevant portion of which is reproduced hereunder:-
15…. The Rent Controller ordered eviction on 9-4-1992. The appeal of the tenant was disposed of by the appellate authority on 10-4-2003. The rights of the landlord are to be determined as on the date of the application for eviction. The order of eviction crystallised the rights of the landlord. The tenant had filed the revision in the High Court on 18-8-2003. During the pendency of the revision petition, the order for amalgamation under the Companies Act passed by the High Court was made on 26-2-2006 which is a subsequent event. The revision petition was disposed of by the High Court on 5-8-2009. As rightly pointed out by Mr Parasaran, learned Senior Counsel, had the revision petition been disposed of before 26-2-2006 this contention would not have arisen at all. The delay in the disposal of the revision petition should not prejudice the vested rights of the landlord under the decree of the Rent Controller confirmed by the appellate authority.
17….it is at the outset submitted that subsequent events are not matters of automatic cognizance by this Court or a mandate on the courts below. A subsequent event is one which may be taken into account in certain circumstances and deserves to be eschewed and kept out of the purview of judicial consideration in certain other cases.
20….It would inflict great injustice in many cases if subsequent events are taken into account when long years have passed unless there are very compelling circumstances to take into account the subsequent events.
22.Particularly in matters governed by the Rent Acts to take into account subsequent events would inflict hardship on the landlords, in a case like the present one.
12. Thus, taking note of the binding decision rendered by the Hon’ble Supreme Court, referred supra, if the subsequent event, namely, death of the landlord, pending these revision petitions are to be taken into consideration, it would inflict great hardships on the landlord, who is an young widow with two children. As held by the Hon’ble Supreme Court, the order of eviction crystallized the rights of the landlord and such right crystallized in the landlord on the date of eviction ordered by the learned Rent Control and confirmed by the learned Appellate Authority by order dated 01.08.2003. Hence, for the above reasons, this Court is not inclined to accept the submission of the learned Senior Counsel appearing for the petitioner that on account of death of the landlord pending these revision petitions, the order of eviction on the ground of owners occupation has to be set aside.
13. As noticed above and also from the perusal of the evidence available on record, it is clear that the tenant failed to scrupulously follow the various steps, which are prescribed under Section 8 of the Act. The Hon’ble Supreme court in the case of E.Palanisamy vs. Palanisamy, referred supra, has held that the procedure under Section 8 is to be followed by the tenant step by step, and an earlier step is a pre-condition for the next step and a strict compliance of the procedure is necessary and the tenant cannot straightway jump to the last step i.e. to deposit the rent in Court. In the present case, the Courts below held that the tenant is entitled to deposit the rents only upto the period, when eviction was ordered and not thereafter. In the facts and circumstances of the case is that no error in the order of Courts below in this regard.
14. Further, from the evidence available on record, it is clear that the tenant did not discharge the burden cast on him to show that there was no willful default in payment of rent. Mere non-mentioning about the hand book in the legal notice, Exhibit P1 will not non-suit the landlord, as the plea is supported by evidence which could not be dislodged by the tenant. Having failed to discharge the burden cast upon him, the tenant has to necessarily face an order of eviction. Thus, on a careful analysis of the entire facts of the present case, this Court is of the firm view that the Courts below correctly and cogently appreciated the evidence on record and come to a conclusion that the landlord is entitled to an order of eviction.
15. The Hon’ble Supreme Court in Sri.Raja Lakshmi Dyeing Works vs. Rangaswamy Chettiar, [1980 (4) SCC 259], while considering the power of this Court under Section 25 of the Act exercising revisional jurisdiction held as follows:-
3. … Therefore, despite the wide language employed in Section 25, the High Court quite obviously should not interfere with findings of fact merely because it does not agree with the finding of the subordinate authority. The power conferred on the High Court under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act may not be as narrow as the revisional power of the High Court under Section 115 of the Code of Civil Procedure but in the words of Untwalia, J., in Dattonpant Gopalvarao Devakate v. Vithalrao Maruthirao Janagaval17; it is not wide enough to make the High Court a second court of first appeal.
16. In the instant case, this Court has found that the findings of the Courts below are perfectly legal and valid arrived at after proper appreciation of the oral and documentary evidence and therefore, considering the scope and jurisdiction of this Court exercising revisional powers under Section 25 of the Act, it is held that the petitioner has not made out a case for interference with the concurrent findings of the Courts below.
17. In the result, these Civil Revision Petitions fail and they are dismissed. No costs.
pbn
To
1.Rent Control Authority (District Munsif Court),
Thiruthuraipoondi
2. Rent control Appellate Authority (Sub-Court),
Thiruvarur