Madras High Court
Mr.N.Ramanujam vs Ms.A.Sumathy on 22 September, 2010
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 22/09/2010 *CORAM THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH +CRP.NPD.1513 of 2004 #G.Gopalakrishnan $D.Anusuya !FOR PETITIONER : Mr.N.Ramanujam ^FOR RESPONDENT : Ms.A.Sumathy :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.09.2010 CORAM:
THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH C.R.P.NPD.No.1513 of 2004 and C.M.P.No. 12053 of 2009 and C.M.P.No. 1316 of 2010 G.Gopalakrishnan ... Petitioner Vs. D.Anusuya ... Respondent PRAYER: This Civil Revision Petition has been filed against the judgment and decree, in R.C.A.No.8 of 2000, dated 15.10.2003, on the file of the Rent Control Appellate Authority, Kanchipuram, confirming the judgment and decree passed in R.C.O.P.No.25 of 1998, dated 11.01.2000, on the file of the Rent Controller, Kanchipuram.
For Petitioner : Mr.N.Ramanujam For Respondent : Ms.A.Sumathy O R D E R
This revision petition has been filed against the judgment and decree passed by the Rent Control Appellate Authority, Kanchipuram in R.C.A.No.25 of 1998 dated 15.10.2003 confirming the order passed by the learned Rent Controller, Kanchipuram, in R.C.O.P.No.8 of 2000 dated 11.01.2000.
2.The brief facts submitted by the landlord as petitioner before the Rent Controller, which are necessary for the disposal of this revision would be as follows:-
The tenant was inducted in the premises for a monthly rent of Rs.1,200/- and the said agreement was oral as entered into between parties. The said building was in a dilapidated condition. It is further stated that the said building was 70 years old and it was constructed with bricks and lime. If the building collapses, it will be dangerous to both the petitioner and the respondent. Therefore, the petitioner/landlord intends to demolish the entire superstructure and to put up new construction in the said property. The petitioner/landlord has got sufficient financial capacity to construct the building. The petitioner/landlord undertakes to demolish the said building within one month from the date of taking possession and to put up new construction within a period of 3 months, thereafter. The respondent/tenant also defaulted in paying the rent payable to the premises from September 1997 to June 1998 for a period of 10 months for a total rent of Rs.12,000/- and thereby he had committed wilful default in paying the rent and therefore, he is liable to be evicted from the said premises. Therefore, the respondent/tenant is liable to be evicted on the ground of demolition and re-construction of the building and also for commission of wilful default by the respondent/tenant in paying the rent. Hence, the petitioner/landlord has filed the eviction petition.
3.The contentions of the respondent/Tenant before the Rent Controller would be as follows:-
It is true that the respondent / tenant was occupying the premises as a tenant and the tenancy was oral, for non-residential purpose. The premises was not in a dilapidated condition. The allegation contra put forth by the petitioner/landlord was with a view to evict the tenant from the premises. The said premises was used as a godown and the respondent/tenant had also spent a sum of Rs.25,000/- for improving the premises and the same was incurred with the permission of the petitioner/landlord. The landlord had also agreed to adjust the said expenditure in future rent and therefore, the alleged wilful default pleaded by the petitioner/landlord is not correct. The tenant used to pay every month's rent without any default and according to the instruction given by the landlord, the rent is promptly paid by the tenant to the account of the landlord. The tenant did not commit any default in paying the rent payable from September 1997 to June 1998 and the alleged demand is also not true. The landlord/petitioner did not issue any notice two months prior to the filing of the R.C.O.P. The building sought to be demolished is not in a dilapidated condition and therefore, the eviction petition may be dismissed.
4.The petition filed before the Rent Controller in R.C.O.P.No.25 of 1998 was allowed on both the grounds on 11.01.2000 and against which a rent control appeal in R.C.A.No.8 of 2000 was preferred by the tenant before the Rent Control Appellate Authority, Kanchipuram and the said appeal was dismissed by confirming the eviction order passed by the Rent Controller. Against which the present revision petition has been preferred by the tenant as the revision petitioner.
5.After going through the records of both the Courts below and the orders passed therein and the evidence adduced on either side and the grounds raised in this revision, the following points emerged for consideration.
a. Whether the finding reached by the Rent Control Appellate Authority in confirming the order of eviction passed by the Rent Controller is liable to be interfered and set aside ?
b. To what relief the petitioner is entitled ?
6.The tenant / respondent before the learned Rent Controller was the appellant before the Appellate Authority and the revision petitioner herein. The landlord who filed the eviction petition against the tenant was the petitioner before the Rent Controller and is the respondent in both the RCA before the Appellate Authority and in this revision. Therefore, the rank of the parties in this revision is being referred infra.
7.Heard Mr.N.Ramanujam, the learned counsel for the petitioner and Ms.A.Sumathy, the learned counsel for the respondent.
8.The learned counsel for the petitioner would submit in his argument that the findings of the Appellate Authority regarding wilful default and the demolition and re-construction are perverse and are not in accordance with law. He would further submit in his argument that both the Courts below did not consider the improvement made by the petitioner in the premises to the tune of Rs.25,000/- with the consent of the respondent and the respondent had also agreed to adjust the said expenditure with the rent payable for the future period which included the arrears of rent for the period from September 1997 to June 1998, which was not considered despite the evidence adduced by the tenant before the lower Court. He would further submit in his argument that the respondent/landlord did not prove that the building was in a dilapidated condition so as to exhibit any immediate requirement for demolition and re-construction. He would also submit in his argument that the respondent/landlord did not disclose about the earlier RCOP filed by him in RCOP No.20 of 1986 which was compromised in between parties and it should be therefore held that there was no bona-fide for the respondent/landlord in respect of the ground of demolition and re-construction. He would also submit that both the Courts below did not consider the order made in R.C.O.P.No.20 of 1986 produced as EX.R1 and therefore, the findings reached by the lower Courts are certainly perverse. He would further submit that the petition was originally filed by the respondent before the Rent Controller with the malafidie intention of evicting the tenant so as to sell the premises for a higher value to 3rd parties. He would further submit that the findings reached by both the Courts below are not in accordance with law and not sustainable as the facts of the case were not properly appreciated. In the aforesaid circumstances, this Court being the revisional Court may interfere with the orders passed by the Courts below and set aside the same and thus the revision may be allowed.
9.The learned counsel for the respondent/landlord would submit in his argument that the premises was let out for a sum of Rs.1,200/- per month and the petitioner/tenant was not regularly paying the rent payable to the respondent/landlord but defaulted to pay the rent payable from September 1997 to June 1998 for a period of 10 months and the explanation given by the petitioner that the said rent was adjusted from and out of Rs.25,000/- allegedly spent by him with the consent of the respondent to do repair works of the premises is not true and sustainable. He would also submit that if really, the premises were repaired and a sum of Rs.25,000/- was spent, the petitioner ought to have proved the same by producing the documents and he should also prove that it was with the consent of the respondent/landlord. In the absence of such proof, the petitioner/tenant would have been considered to have wilfully defaulted from paying the rent payable from September 1997 to June 1998. The Courts below have also considered the lack of proof of consent of the respondent/landlord and also for the expenditure of the alleged repair works at of Rs.25,000/-, had correctly observed that the petitioner/tenant was at wilful default. He would further argue that the age of the building was admittedly, more than 70 years, built up with bricks and lime mortar and therefore, the said building should be in a dilapidated condition and apart from that the petitioner/tenant had himself stated that he had effected repairs in the said premises, which would show the status of the building. He would also submit that the evidence of the respondent/landlord that she is having financial capacity and she is ready to demolish the said building within one month from the date of taking possession and to put up new construction within a period of 3 months, thereafter and on that basis the filing of undertaking before the lower Court are perfectly all right and they are in accordance with law and therefore, there is no reason for interfering with the said orders passed by the Courts below. He would therefore, request the Court to dismiss the revision petition.
10. I have given anxious thoughts to the arguments advanced on either side. When we consider the points to be decided on the basis of the arguments, the foremost duty of the revisional Court is whether the lower Courts have acted perversely in analysing the evidence and came to a conclusion as reached by them. On perusal of judgments of both the Courts below we could see that they have appraised the evidence and had come to a conclusion that the rent payable for the period from September 1997 to June 1998 has been admittedly not paid by the petitioner/tenant. The explanation of the petitioner was that the respondent/landlord had agreed for the petitioner to do repair works in the premises and to incur expenditure and to adjust the said expenditure towards the future rent. No doubt it is true that if any such consent has been given by the landlord to the tenant for effecting repairs and to adjust the expenditure for the future rent, it should be in a written consent.
11. In the judgment of this Court reported in 1951 (2) MLJ 663 in between Edupuri Rama Subbiah v. C.J.Cole and another, it is observed thus:-
"... It cannot obviously apply to a case where a tenant has made the repairs without taking the requisite permission and for getting an order from the Rent Controller for realising the amount so spent. The order of the Rent Controller is correct and that of the appellate authority is contrary to the express provisions of Section II".
12. In yet another judgment of this Court reported in 2000 (III) CTC 642 in between Reymonds Woollen Mills Limited, Madras v. Mrs.Azra and 2 others. The relevant passage would run thus:-
"13.The argument that the tenant may reconstruct or make improvements as he pleases as there is no prohibition in the Act, against the tenant carrying out reconstruction or improvement, cannot be accepted at all. The Act does not in any of its provisions authorise the tenant to carry out improvement or structural alteration at his sweet will. The statutory tenant may not do anything to the property owned by the landlord except to the extent permitted by the Act.
The statutory right not to be dispossessed except in accordance with the provisions of the Rent Control Act, does not comprehend a right to do anything that the tenant desires, such as, alteration, addition, improvement etc., except to the extent permitted by the Special Act. There is no inherent right in a statutory tenant to improve, alter, repair or reconstruct against the wishes of the landlord.
14. A wealthy tenant who can afford to spend large amounts on repair, alteration, improvement, or reconstruction cannot assert a righ to carry out such works on the sole ground that the landlord will not be asked to reimburse the amounts spent on such works. It is not the capacity of the tenant to spend on such repair, alteration, or improvement, or addition, that is material. What is material is whether the landlord has consented for such acts, and whether the Act confers a right on the tenant to carry out such work, even against the wishes of the landlord."
13. The aforesaid judgments of this Court would certainly go to show that a prior permission is necessary for effecting repairs and should be obtained by the tenant from the landlord to carry out the repairs and if specific agreement to adjust the said expenditure towards the future rents had been entered into that must be pleaded and proved. But it is not so in this case.
14. The lower Court has also applied the above provisions and position of law and has come to a conclusion that the petitioner/tenant should have produced proof as pleaded by him for such adjustment of future rent from the expenditure for repairs and held that the non-payment of rent payable from September 1997 to June 1998 was wilful. Therefore, the petitioner / tenant cannot blame the lower Courts that they have passed the orders on the question of wilful default contrary to the evidence and law. Therefore, the findings of the lower Courts in respect of the wilful default cannot be interfered.
15.Similarly, the admitted evidence produced on either side would go to show that the building was a very old building aged more than 80 years and it has been used as a godown for storing fertilizers and cements. In the letter written by the petitioner/tenant to the respondent/landlord on 09.01.1998, produced as Ex.A9, it has been categorically admitted that some portion of the said premises had fallen. Coupled with the evidence of the respondent/landlord as PW1, the said document Ex.A9 would go to show that the building was not only a old building but was in a dilapidated condition as told by the respondent/landlord. Apart from that the landlord/respondent has given an undertaking before the lower Court that he would demolish the building within one month from the date of taking possession and put up constructions within three months, thereafter. The financial capacity to put up construction has not been seriously questioned by the petitioner/tenant.
16. In the aforesaid circumstances, the 'bona-fide' of the respondent/landlord for demolition and reconstruction, of the premises cannot be disputed merely because she has filed a Rent Control petition in RCOP No.20 of 1986 produced as Ex.R1 on the ground of own occupation, which was subsequently compromised in between parties. The non-mentioning of the said proceedings in the main petition is also not fatal because it would not in any way lower the bona-fide of the respondent/landlord. Therefore, the findings of the Court below on the point of demolition and re-construction is neither perverse nor against the provisions of law.
17. In the aforesaid circumstances, the Courts below have appraised the evidence in accordance with law and have acted lawfully and had reached the conclusion for passing an order of eviction against the petitioner/tenant, which cannot be interfered and set aside.
18. For the foregoing reasons, this Court is of the view that the order passed by the Rent Control Appellate Authority in R.C.A.No.25 of 1998 dated 11.01.2000 is un-interfereable and therefore confirmed. Thus, the revision petition fails and therefore it is dismissed.
19. Accordingly, this Civil Revision Petition is dismissed with costs. Time for vacating the premises for the petitioner is one month from today. Consequently, connected civil miscellaneous petitions are closed.
22.09.2010 Internet: Yes / No Index: Yes / No ssn V.PERIYA KARUPPIAH, J., ssn To The Rent Control Appellate Authority, Kanchipuram.
C.R.P.NPD.No.1513 of 2004and C.M.P.No. 12053 of 2009 and C.M.P.No. 1316 of 2010 22.09.2010