Madras High Court
K.Sekar vs R.Palanivelu on 3 July, 2013
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03 .07.2013 Coram The Hon'ble Mr. Justice K.RAVICHANDRABAABU C.R.P.(NPD) Nos. 1620 to 1623 of 2013 and M.P. Nos. 1 and 1 of 2013 K.Sekar .. Petitioner in C.R.P.Nos. 1620 and 1621 of 2013 N.R.Kumar .. Petitioner in C.R.P.Nos. 1622 and 1623 of 2013 Vs R.Palanivelu represented by Power Agent R.Subramanian .. Respondent in all C.R.Ps. Civil Revision Petitions filed against the judgment and decree dated 5.2.2013 made in R.C.A Nos.434, 435, 581 and 580 of 2011 on the file of the VIII Judge, Small Causes Court at Chennai against the order dated 24.6.2011 made in R.C.O.P.Nos.234 and 781 of 2010 on the file of the X Judge, Small Causes Court at Chennai and the order dated 12.7.2011 made in R.C.O.P.Nos. 317 and 802 of 2010 on the file of the XIII Judge, Small Causes Court at Chennai. For Petitioners : Mr.J.R.K.Bhavanantham For Respondent : Mr.A.K.Venkatesan COMMON ORDER
All the four Civil Revision Petitions are filed by the tenants. In all the Civil Revision Petitions, the respondent is one and the same and he is the landlord.
2. C.R.P.(NPD) No. 1620 of 2013 is filed against R.C.A.No. 434 of 2011 whereby the order of the Rent Controller passed in R.C.O.P.No. 234 of 2010 was confirmed. The said R.C.O.P. No. 234 of 2010 was filed by the respondent herein against the petitioner herein seeking for eviction on the grounds of demolition and reconstruction and wilful default. The learned Rent Controller allowed the petition on both grounds.
3. C.R.P.(NPD) No. 1621 of 2013 is filed by the very same petitioner challenging the order passed in R.C.A.No. 435 of 2011 confirming the order passed in R.C.O.P.No.781 of 2010. The said R.C.O.P.No. 781 of 2010 came to be filed by the petitioner herein/ tenant under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, seeking for permission to deposit the rent into the court. The learned Rent Controller rejected the said application which was confirmed by the appellate authority.
4. C.R.P.(NPD) No. 1622 of 2013 is filed against R.C.A.No. 581 of 2011 whereby the appellate court reversed the finding of the learned Rent Controller and allowed the appeal filed by the landlord and ordered eviction. The said appeal arises against an order made in R.C.O.P.No. 317 of 2010 filed by the respondent herein seeking for eviction of the petitioner herein in respect of the other portion of the same building on the grounds of demolitions and reconstruction and wilful default. The learned Rent Controller dismissed the application on both the grounds which came to be reversed by the Appellate Court as stated supra.
5. C.R.P.(NPD) No. 1623 of 2013 is filed against R.C.A No. 580 of 2011 whereby the Appellate Court by reversing the finding of the learned Rent Controller, allowed the appeal filed by the landlord. The said R.C.O.P.No. 802 of 2010 was filed by the petitioner herein/ tenant under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control ) Act, seeking permission to deposit the rent into the Court. The learned Rent Controller allowed the said application which came to be reversed by the appellate court as stated supra.
6. Thus, aggrieved by those orders passed in the eviction proceedings as well as under Section 8(5) petitions, the two tenants have filed the C.R.Ps. as stated supra. C.R.P.(NPD) Nos. 1620 and 1622 of 2013 arise against an order of eviction. C.R.P.(NPD)Nos. 1621 and 1623 arise against an order made in Section 8(5) petitions.
7. Let me first consider C.R.P.(NPD) Nos. 1620 and 1622 of 2013, which are in respect of eviction order passed against the petitioners / tenants. For the sake of convenience, let me refer the parties as landlord and tenant.
8. The landlord filed R.C.O.P.No. 234 of 2010 seeking for eviction on the ground that tenant has committed wilful default from the month of December 2008 to January 2010 by not paying the monthly rent of Rs.1,400/-. The landlord also sought eviction on the ground of demolition and reconstruction by contending that the building is 60 years old and is in a dilapidated condition . The other tenants, who were in occupation of other portions of the same building have already vacated and handed over vacant possession and only these two tenants have not vacated in spite of request made by the landlord. He has also given an undertaking that he will commence demolition work within one month and complete the same within three months.
9. The said application was resisted by the tenant by contending that the landlord was not in the habit of issuing rental receipts and he wanted enhanced rent which was refused by the tenant. As the landlord refused to receive the rent from January 2010 onwards, the tenant remitted the rent for the month of January 2010 by money order on 22.2.2010 and the same was also returned as refused. Therefore, he called upon the the landlord to specify the bank account so as to deposit the monthly rent therein. He also denied that the condition of the building requires any demolition or reconstruction .
10. The learned Rent Controller found that the tenant has committed wilful default by not paying the rent for the period from June 2009 to January 2010 after giving adjustment of a sum of Rs.8,600/- from and out of the advance amount of Rs. 10,000/- lying with the landlord . The learned Rent Controller has found that even after giving credit of Rs.8,600/-, the rent payable by the tenant from December 2008 to January 2010 for a period of 14 months at the rate of Rs. 1,400 works out to 19,600/- and that would show that the tenant has not paid the balance amount of Rs. 11,000/-. The Rent Controller also found that the tenant had taken steps to file petition under Section 8(5) of the said Act, only on 30.4.2010, even though the landlord had refused to receive the rent from 13.2.2008 onwards. Thus, the learned Rent Controller has found that the tenant had failed to explain the reason for non-payment of rent before filing the eviction petition. At this juncture, it is useful to refer that R.C.O.P. No. 234 of 2010 came to be filed only during the month of February 2010 whereas the tenant has chosen to file Section 8(5) application only on 30.4.2010 that is after the filing of the eviction petition by the landlord. Therefore, the learned Rent Controller found that the tenant has committed wilful default.
11. In so far as the ground of demolition and reconstruction is concerned, the learned Rent Controller has found that the building is in existence even prior to 1959 and that the same is in dilapidated condition. The learned Rent Contorller relied on the report submitted by the Engineer and marked as Ex.P14 to come to the conclusion that the building is 60 years old and the walls and the roof of the building got severely damaged and requires demolition and reconstruction. The learned Rent Controller has rejected the report filed by another engineer under Ex.R6 and his deposition as R.W.2 by holding that the same were prepared only to favour the tenant. The learned Rent Controller has also found that the requirement of the landlord is bonafide as he has obtained planning permission from the competent authority. He further found that the landlord is having sufficient means for putting up a new construction. Thus, on both grounds of demolition and reconstruction and wilful default, the learned Rent Controller allowed the eviction petition.
12. The Appellate Authority also while confirming the order of the learned Rent Controller found that the tenant has committed wilful default for the period from June 2009 to January 2010 and that the building is 60 years old . The appellate court also found that the building requires demolition and reconstruction based on Exs.P6 and P7 and Exs.P14 to P16 documentary evidence adduced on the side of the landlord. The appellate court found that the requirement is bonafide and that the landlord is having sufficient means by taking note of the bank account details marked as Ex.P6.
13. In C.R.P.No. 1622 of 2013, the tenant is the petitioner and the landlord is the respondent. The landlord filed R.C.O.P No. 317 of 2010 against the tenant seeking for eviction on the grounds of demolition and reconstruction and wilful default. The landlord claimed that the tenant had committed wilful default by not paying the rent from December 2008 to January 2010. The rent payable is Rs.1,400/- per month. Insofar as the other ground of demolition and reconstruction is concerned, the landlord submitted that the building is 60 years old and is in a dilapidated condition having cracks on the walls and ceiling.
14. The said application was resisted by the tenant by contending that the landlord is not in the habit of issuing rental receipts . The tenant has paid the rent upto December 2009 . When the landlord demanded enhanced rent, the same was refused by the tenant. The landlord refused to receive the rent from January 2010 onwards. Hence, the tenant sent the rent for the month of January 2010 by way of money order and the same was also returned as refused. Consequently, the tenant filed petition under Section 8 (5) of the Tamil Nadu Buildings (Lease & Rent Control) Act in R.C.O.P.No.802 of 2010.
15. The learned Rent Controller while considering the ground of wilful default, has found that the landlord was not in the habit of issuing receipts for the payment of rent and that he has not produced any proof to show that the tenant had paid the rent till November 2008 . The learned Rent Controller has also taken note of the conduct of the tenant in filing the application under Section 8(5) of the said Act and ultimately found that there is no wilful default on the part of the tenant.
16. Insofar as the other ground of demolition and reconstruction is concerned, the learned Rent Controller found that the landlord did not give any undertaking for demolition and reconstruction and he did not produce sufficient materials to establish his capacity to construct the building after its demolition. He has also taken note of the evidence of R.W.2 Engineer to hold that the building is strong to the level of occupation and that the landlord has failed to establish sufficient cause for demolition and reconstruction. Therefore, the learned Rent Controller dismissed the eviction petition on both the grounds.
17. Aggrieved against the order of the learned Rent Controller, the landlord filed an appeal in R.C.A.No. 581 of 2011. The Appellate Authority found that the tenant has committed wilful default for the period commencing from April 2009 to January 2010 even after giving credit to a sum of Rs.5,600/- out of the advance amount of Rs. 7,000/- lying with the landlord. Thus, the Appellate Authority found that the tenant has committed default in not paying the rent from April 2009 to January 2010 without any reason. He also found that the tenant has not taken immediate steps to file Section 8(5) petition, even though the landlord had refused to receive the rent on 13.2.2008 itself. The conduct of the tenant in filing the said petition only on 30.4.2010 nearly after two years would show that the default committed by him is wilful.
18. While considering the other ground of demolition and reconstruction is concerned, the Appellate Authority found that the building is 60 years old and is in a dilapidated condition based on the material evidence placed by the landlord under Exs. P15 to P17 as well as by relying on the report of the Engineer who was also examined as P.W.2. The appellate authority further found that the landlord has got financial capacity to put up the construction by taking note of his bank statement under Ex.P6. Accordingly, the Appellate Authority allowed the eviction petition on both grounds by setting aside the order of the Rent Controller. Aggrieved against the same, the present Civil Revision Petition is filed before this Court.
C.R.P.(NPD) Nos. 1621 and 1623 of 2013
19. C.R.P.(NPD) No. 1621 of 2013 is filed against an order made in R.C.A.No. 435 of 2011 wherein the appellate authority has confirmed the order passed by the Rent Controller in R.C.O.P.No. 781 of 2010. The said R.C.O.P was filed by the tenant under Section 8(5) of the said Act seeking permission to deposit the monthly rent into the court from January 2010 onwards. It is the contention of the tenant that the landlord refused to receive the rent tendered for the month of January 2010. Therefore, he sent the rent for the month of January 2010 by way of money order on 22.2.2010 to the landlord but that was also returned as refused. He issued a legal notice on 2.3.2010 to the landlord to specify the bank account details. Thereafter the present R.C.O.P. Came to be filed under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control ) Act.
20. The learned Rent Controller rejected the said application by observing that the tenant has wilfully committed default and the present application under Section 8(5) came to be filed only after receiving the notice from the landlord seeking for eviction on the ground of wilful default on 21.1.2010. The tenant preferred an appeal in R.C.A.No. 435 of 2011 and the appellate court also confirmed the finding of the learned Rent Controller by holding that the tenant has wilfully defaulted in payment of the rent for the period from June 2009 to January 2010. The Appellate Court further found that the tenant has not taken any steps immediately when there was a refusal to receive the rent during the month of February 2008 itself. Aggrieved against the same, C.R.P.No. 1621 of 2013 is filed by the tenant.
21. C.R.P.No. 1623 of 2013 is arising against an order made in R.C.A.No. 580 of 2011 wherein the appellate Court by reversing the finding of the Rent Controller in R.C.O.P.No. 802 of 2010, dismissed the petition filed by the tenant under Section 8(5) of the said Act. The tenant in this proceedings contended before the learned Rent Controller similar to that of the other tenant in C.R.P.No.1621 of 2013. The learned Rent Controller allowed his petition on the ground that the landlord had refused to receive the rent and thereafter the tenant had taken every sincere steps to pay the rent by initiating appropriate action timely.
22. Heard the learned counsel appearing for the petitioners as well as the respondent/landlord.
23. The points for consideration in the Civil Revision PetitionNos. 1620 and 1622 of 2013 are as follows:-
(1) Whether the tenants have committed wilful default and whether the order of eviction passed on this ground is sustainable ?
(2) Whether the landlord had established that the petition premises is bonafidely required for demolition and reconstruction and whether the order of eviction passed on this ground is sustainable?
24. In Civil Revision Petition Nos. 1621 and 1623 of 2013 the point for consideration is as to whether the tenants' petitions filed under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control ) Act were sustainable ?
25. The learned counsel for the petitioner submitted as follows:-
The power of attorney issued by the landlord to P.W.1 power holder, does not empower him to demolish and reconstruct the building. Only a power was given to renovate and make additions and alterations. Therefore, he cannot maintain a petition under Section 14(1)(b). The power of attorney has not produced account to substantiate the default in making payment of rent. The landlord is not in the habit of issuing receipts. When the tenant has deposited the rent from January 2010 onwards by filing Section 8(5) petition the ground of wilful default cannot be raised against him. When two engineers have filed their respective reports each one from the landlord and tenant, the court below erred in accepting only the report filed on behalf of the landlord and rejecting the report filed by the tenant. The building is 50 years old and does not require any demolition or reconstruction. There is no bonafide on the part of the landlord. In support of his submission, the learned counsel for the petitioner relied on the decision of the Apex Court reported in 2012 (8) SCC 706 ( Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust ).
26. Per contra, the learned counsel appearing for the respondent / landlord submitted as follows:-
The power of attorney is marked as exhibit in both the proceedings and it is a general power to manage the property. Therefore, the demolition and reconstruction comes in the course of the management of the property. Clause 13 of the said Power of attorney empowers the power of attorney holder to do so. Even assuming that there is breach of any conditions stipulated in the power of attorney, the same cannot be questioned by the tenant. The tenant admittedly committed wilful default from February 2008 and not taken any steps under Section 8(5) of the said Act till the proceedings for eviction were initiated during the year 2010 on the ground of wilful default and demolition and reconstruction. Only thereafter he filed Section 8 petition. Therefore, the default committed is wilful. In so far as the demolition and reconstruction is concerned, the landlord has marked Exs.P16 and 17, the plan and planning permission granted by the competent authority. He also produced the bank accounts under Exs.P6 and P7 to establish his financial status. The building consists of five shops with a residential accommodation at the rear side. Except these two petitioners, all other tenants have vacated their respective portions and handed over vacant possession to the landlord. In fact, a shop portion lying between these two tenants was also vacated. Thus, he submitted that the order of eviction passed against the tenants does not warrant any interference.
27. Let me first consider the issue of wilful default in both cases. The case of the landlord is that tenants have committed wilful default in paying the monthly rent from the month of December 2008 onwards in spite of repeated demands made by him. The case of the tenants is that though they tendered the rent to the landlord, he has refused to receive the same from January 2010 onwards; that on 22.2.2010 the tenants remitted the rent for the month of January 2010 through money order and the same was returned as refused; that they filed Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control ) Act seeking permission to deposit the rent into court and therefore, there is no wilful default. But the Court below has found in both the case of the tenants that the default period is from December 2008 to January 2010 and after giving deduction to the sum of Rs. 8600/- and 5600/- respectively from the deposit amount of Rs. 10,000 and Rs.7,000 respectively still the tenants are in arrears of Rs.11,000 and 14,000 respectively till the period of January 2010. It is also found that when the landlord had refused to receive the rent on 13.2.2008 itself the tenants had not taken any steps to file Section 8 petition and on the other hand they field such petition only on 30.4.2010. Therefore, the Appellate Court has found that the default committed by the tenants is wilful for the period from June 2009 to January 2010 and from April 2009 to January 2010 respectively.
28. Here is the case where the the tenants admit that the landlord had refused to receive the rent from the month of January 2010 onwards and therefore they have resorted to deposit the rent into the Court by filing Section 8(5) petitions. But the claim of the landlord is that the tenants have committed default in payment of rent from the month of December 2008 to January 2010. When the tenants have alleged that the respondent had refused to receive the rent only from January 2010, it is for them to prove that they had paid the rent for the earlier period of default commencing from December 2008 onwards . No material is placed before the Court below to prove that the tenants had paid the rent for that period. Though the tenant pleads that they had paid the rent through money order every month, they have not proved such payment, more particularly for the default period. The very conduct of the tenants in filing Section 8(5) application only on 30.4.2010 that too after filing the eviction petition on the ground of wilful default would show that they have not paid the rent to the landlord for the defaulted period and only when the eviction petitions were filed, they filed Section 8(5) petition as a counter action. The Court below has found that the tenants had committed wilful default for the period as stated supra and such finding based on facts does not warrant any interference by this Court , especially under the circumstances of no other contra material is placed before me.
29. Though the learned Rent Controller in R.C.O.P.No. 317 of 2010 rejected eviction petition by holding that the landlord is not in the habit of issuing receipts and had chosen to issue notice demanding arrears of rent only during the month of January 2010 for the period of default commencing from December 2008 to December 2009, I am not convinced to accept such reasoning. Admittedly, the relationship between the parties got strained as early as in the month of August 2001 itself when the landlord had issued notice to the tenants under Exs.P2 and P3 respectively dated 20.8.2001 calling upon them to vacate and hand over the premises. The tenant in R.C.O.P.No. 234 of 2010 issued reply notice under Ex.P3 dated 24. 8.2001 by stating that the landlord was refusing to receive the rent even before issuance of such Ex.P2 notice and therefore, he was sending the monthly rents only through money orders. Even though no such reply notice seem to have been sent by the tenant in R.C.O.P.No. 317 of 2010, the fact remains that the landlord had issued notice under Exs.P2 and P3 to both tenants on the same day i.e. 20.8.2001. It is the case of both the tenants that they used to send the rent through money orders to the landlord. If that is so, then they should have filed the proof of sending rent through money orders for the defaulted period commencing from December 2008 to December 2009. In the absence of any such documents filed proving such payments through money order, the tenants cannot be permitted to say that they have not committed default. When it is their admitted case that the rent was paid only through money orders , then the question of not issuing receipts by the landlord does not arise. In fact in R.C.O.P.No.317 of 2010 the learned Rent Controller has also strangely shifted the burden on the landlord to prove the negative with regard to the payment of rent for the defaulted period. Therefore, the finding rendered by the lower appellate Court in one case concurrently and in another case by reversal that the tenants have committed wilful default does not require any interference. In fact, the Court below had also given adjustment to the advance amount lying in the hands of the landlord. Even after adjusting the advance amount less one month rent, still the amount payable by the tenant was Rs. 14,000/- and Rs. 11,000/- respectively and even for making such payment, the tenants had taken steps only through a belated petition filed under Section 8(5). Therefore, I find that the order of the Court below in holding that the tenants had committed wilful default is just and proper and does not warrant any interference.
30. When coming to the other ground of demolition and reconstruction is concerned, the Court below has found that the building is 60 years old and the landlord had established his bonafide by marking Exs.P15 to P17. Those documents viz., engineer's report, plan for demolition and reconstruction and planning permission were found to be genuine as the same were not disputed by the other side. When the landlord had proved the bonafide of his requirement to demolish and reconstruct the building coupled with the fact that the building is 60 years old and also by considering the admitted position that all other tenants have vacated their respective portions of the same building , the landlord is entitled to an order of eviction on the ground of demolition and reconstruction also. No doubt, the learned counsel for the petitioner submitted that the report of the engineer filed on behalf of the landlord alone was taken into consideration and on the other hand the report filed on the side of the tenants was rejected without any reason. The Rent Controller in R.C.O.P.No. 234 of 2010 has found that the report filed under Ex.P14 shows that the building is in dilapidated condition and the ceiling is also damaged. It was also noticed that there are cracks in the walls. When the said report was considered by the learned Rent Controller and the same was also confirmed by the appellate court, I find no justification in interfering with such factual finding, especially when it is found by the Rent Controller that the other report filed under Ex.P6 appears to have been prepared only to favour the tenant . May be there are two contradictory reports. Still the fact remains that the petitioner had marked Exs. P16 to P18 in R.C.O.P.No 317 of 2010 which would amply prove that the petitioner had taken steps to demolish the building and reconstruct the same, by marking the planning permission and demolition and reconstruction plan etc. No doubt, the landlord sought eviction of the tenants on the ground of demolition and reconstruction by contending that the building is in a dilapidated condition. The tenants would like to rely upon the report filed an engineer in their favour. In my considered view, the ground of demolition and reconstruction can be raised by the landlord not necessarily only when the building is in a dangerous and dilapidated condition, but it can be for augmentation of the income also. The landlord can intend to demolish and reconstruct the building on that reason also. Though such intention is not explicitly stated in the pleadings of the landlord herein, it goes without saying that such intention of augmentation of income on the part of the landlord is inbuilt in each and every application filed under Section 14(1)(b). Therefore, I am of the view that when the landlord has otherwise proved his bonafide coupled with the documentary evidence in support of his contention, the contradictory report filed by the engineers will not change the position in any manner.
31. The learned Rent Controller in R.C.O.P.No.317 of 2010 has rejected the eviction petition on the ground of demolition and reconstruction also by holding that the landlord has not given any undertaking and has not produced sufficient materials to establish his financial capacity to construct the building after its demolition. Such finding of the Rent Controller appears to be factually in correct in view of the categorical assertion by the landlord in his petition by giving an undertaking at paragraph 6 to commence the demolition work before the expiry of one month and to complete the same before the expiry of three months from the date of the petitioner recovering possession of the entire building. Equally, the landlord has also stated at paragraph 4 that he has sufficient funds for carrying out the construction work. He also marked Exs.P6, Bank statement in support of the same. It is well settled that the landlord is not expected to jingle the coins before the Court to prove his financial capacity to put up a new construction. Needless to say that now a days, lot of financial institutions are coming forward to extend loan facilities to meet the construction cost and therefore the finding rendered by the learned Rent Controller is not only perverse but also against the facts.
32. Learned counsel for the petitioner relied on the decision of the Apex Court reported in 2012 (8) SCC 706 ( Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust ) to contend that the power of attorney holder cannot act beyond the terms of the power of attorney and the present eviction petition filed under Section 14(1)(b) is not maintainable. This objection is being raised as a first time before this Court and not raised before the Courts below. Thus, this contention cannot be entertained. Even otherwise, I fail to understand as to how such contention can be raised by the petitioners herein, especially when the RCOP itself was filed only by the landlord represented through his power of attorney which means whatever contentions raised in the petition are to be taken as the contentions of the landlord and not that of the power of attorney. Therefore, even assuming that there is no power for demolition and reconstruction, that is not going to affect the claim of the landlord while deciding the case and to find out whether the landlord has established before the Court on the ground of demolition and reconstruction. Therefore, I do not propose to accept the said contention. Accordingly, the said contention raised by the petitioners in respect of power of attorney is also rejected.
33. In view of the above, I hold that both the tenants had committed wilful default in both the cases and the landlord is bonafidely requiring the building for demolition and reconstruction. Consequently, the order of eviction passed against the petitioners/ tenants is just and proper and does not warrant any interference by this Court. Accordingly, the two Civil Revision Petitions in C.R.P. (NPD) Nos. 1620 and 1622 of 2013 are dismissed.
34. The other two Civil Revision Petitions in C.R.P.Nos. 1621 and 1623 of 2013 are filed challenging the order passed in Section 8(5) petition. The reasonings and findings given supra, while discussing the ground of wilful default are equally applicable to the present Civil Revision Petitions also. The tenants had not taken any steps to pay the rent immediately after refusal by the landlord and they filed Section 8(5) petitions only after filing of the petitions for eviction. When that being the factual finding rendered by the Court below for rejecting the said petitions, I find no grounds to interfere with the same. Accordingly these two Civil Revision Petitions are also dismissed.
35. In the result, all the Civil Revision Petitions are dismissed and the tenants in respective cases are granted three months time to vacate and hand over vacant possession of the petition premises to the landlord. Consequently, the connected M.Ps. are closed. No costs.
krr/ To The Registrar Small Causes Court Chennai