Madras High Court
I.A.Sheik Ismail Jalani vs Mr.Premila Jain on 7 February, 2019
Author: P.T. Asha
Bench: P.T. Asha
1
IN THE HIGH Court OF JUDICATURE AT MADRAS
DATED: 07.02.2019
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.R.P(NPD).Nos.3633, 3634, 3635 & 3638 of 2018
&
C.M.P.Nos.20249, 20251, 20258 & 20261 of 2018
C.R.P.No.3633 of 2018
I.A.Sheik Ismail Jalani ...Petitioner
Vs
Mr.Premila Jain ... Respondent
C.R.P.No.3634 of 2018
I.A.Sheik Ismail Jalani ...Petitioner
Vs
Mr.Premila Jain ... Respondent
C.R.P.No.3635 of 2018
B.Venkatarathnam ...Petitioner
Vs
Mr.Premila Jain ... Respondent
http://www.judis.nic.in
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C.R.P.No.3638 of 2018
M.A.Mubarak ...Petitioner
Vs
Mr.Premila Jain ... Respondent
Prayer in C.R.No.3633 of 2018: Civil Revision Petition is filed
under Section 25(1) of the Tamil Nadu Buildings (Lease and Rent
Control Act, 1960 against the fair and decreetal order dated
20.07.2018 passed by Rent Control Appellate Authority, Chennai,
VIII Small Causes Court in R.C.A.No.734 of 2011 confirming the
order dated 13.10.2011 passed by the learned learned Rent
Controller, XIII Small Causes Court, Chennai, in R.C.O.P.No.2018
of 2007.
Prayer in C.R.No.3634 of 2018: Civil Revision Petition is filed
under Section 25(1) of the Tamil Nadu Buildings (Lease and Rent
Control Act, 1960 against the fair and decreetal order dated
20.07.2018 passed by Rent Control Appellate Authority, VIII
Small Causes Court, Chennai, in R.C.A.No.732 of 2011
confirming the order dated 13.10.2011 passed by the learned
learned Rent Controller, XIII Small Causes Court, Chennai, in
R.C.O.P.No.2017 of 2007.
http://www.judis.nic.in
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Prayer in C.R.No.3635 of 2018: Civil Revision Petition is filed
under Section 25(1) of the Tamil Nadu Buildings (Lease and Rent
Control Act, 1960 against the fair and decreetal order dated
20.07.2018 passed by Rent Control Appellate Authority, VIII
Small Causes Court, Chennai, in R.C.A.No.724 of 2011
confirming the order dated 13.10.2011 passed by the learned
learned Rent Controller, XIII Small Causes Court, Chennai, in
R.C.O.P.No.2016 of 2007.
Prayer in C.R.No.3638 of 2018: Civil Revision Petition is filed
under Section 25(1) of the Tamil Nadu Buildings (Lease and Rent
Control Act, 1960 against the fair and decreetal order dated
20.07.2018 passed by Rent Control Appellate Authority, VIII
Small Causes Court, Chennai, in R.C.A.No.733 of 2011
confirming the order dated 13.10.2011 passed by the learned
learned Rent Controller, XIII Small Causes Court, Chennai, in
R.C.O.P.No.2019 of 2007.
For Petitioners : Mr.R.Sundarrajan
For Respondent : M/s.Jermiah
for Mr.K.Bakthavachalam
Caveator Counsel
http://www.judis.nic.in
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ORDER
The tenants are the revision petitioners before this Court. The following are the details of the Civil Revision Petitions and their respective RCA's and RCOP's:
Name of the Tenant Proceedings
B.Venkatarathnam R.C.O.P.No.2016 of 2007
Proprietor of RD Agencies, R.C.A.No.724 of 2011
Ground floor, Shop No.7 of the C.R.P.No.3635 of 2018
premises.
I.A.Sheik Ismail Jalani R.C.O.P.No.2017 of 2007
Proprietor of Anisha Overses Services, R.C.A.No.732 of 2011
Third floor of the premises. C.R.P.No.3634 of 2018
I.A.Sheik Ismail Jalani R.C.O.P.No.2018 of 2007
Proprietor of Anisha Overses Services, R.C.A.No.734 of 2011
First Floor, Shop No.3 of the premises. C.R.P.No.3633 of 2018 M.A.Mubarak R.C.O.P.No.2019 of 2007 Proprietor of Kaizen Impex, R.C.A.No.733 of 2011 First Floor, Shop No.4 of the premises. C.R.P.No.3638 of 2018 http://www.judis.nic.in 5
2.The petition premises in all the Rent Control Petitions is situated at Door No.210, Old No.134, N.S.C Bose Road, Sowcarpet, Chennai-79. The respondent herein, who is the landlady had filed the above Rent Control Petitions seeking eviction of the respective tenants on the ground of wilful default of rents for the period January 2005 to October 2007. The parties hereinafter are referred to in the same litigative status as in the Rent Control Proceedings.
3.Landlady's Case in the R.C.O.P:
3.1.She has purchased the property bearing Door No.210, Old No.134, N.S.C Bose Road, Chennai-79 in an auction which was held on 11.03.2002 conducted by the Pursawalkam Permanent Fund Ltd. The respondents were tenants in respect of their respective shop portions. The tenant in R.C.O.P.No.2016 of 2007 was a tenant on a monthly rental of Rs.350/-; The tenant in R.C.O.P.No.2017 of 2007 was paying monthly rental of Rs.150/-; the tenant in R.C.O.P.No.2018 of 2007 was paying http://www.judis.nic.in 6 monthly rental of Rs.300/- and the rent in respect of R.C.O.P.No.2019 of 2007 was paying a sum of Rs.150/- as a monthly rent.
3.2.The landlady would submit that on purchasing the property she had immediately informed the respective tenants about her purchase and had requested them to attorn the tenancy in her favour and start paying the rents on her. After receiving the said letter the tenants had initially paid the rents upto December 2004 and thereafter the tenants refused to make any payment.
3.3.The mortgagor Mr.R.Narasimha Sastry (Who is the original owner) and others, in the meanwhile, had filed C.S.No.160 of 2005 on the file of this Court challenging the auction sale besides seeking redemption and to declare the auction held on 11.03.2002 as being illegal and consequently set aside the sale deed executed by the 1st defendant (Benefit Fund) http://www.judis.nic.in 7 in favour of the 3rd defendant (landlady) and for permanent injunction restraining them from interfering with their right to collect and enjoy rental income. The said R.Narasimha Sastry had made the tenants also parties to the above suit besides impleading the landlady.
3.4.It is the further case of the land lady that by an order dated 14.11.2006 in an application No.1070 of 2005 in the suit C.S.No.160 of 2005 this Court had directed the tenants to pay the rents every month without any default and to pay the arrears of rent within a six months from 14.11.2006. Despite the said directions being issued by the High Court the tenants had failed to make payment. The conduct of the tenants demonstrates supine indifference in payment of the rents and consequently they are guilty of committing wilful default in payment of rents.
Therefore the land lady has come forward with the eviction petition.
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4.The counter statements of each tenants is extracted in brief herein below:
4.1.Counter statement of the tenant in R.C.O.P.No.2016 of 2007:
i)The filing of the Rent Control proceedings is an abuse of process of Court since the Honourable High Court was siezed of the matter in C.S.No.160 of 2005 and therefore the Rent Control Petition should be dismissed.
ii)He would further contend that he had paid the advance Rs.4,50,000/- to the erstwhile owner Mr.B.Narasimha Sastry @ B.Babu towards rental advance and he would contend that the rent payable was a sum of Rs.850 but the rent lady had only claimed a sum of Rs.350/- as rent. He would further contend that till December 2004 he had paid rents without any default and it was only when notice was received from High Court in Application No.1070 of 2005 in C.S.No.160 of 2005 that he had stopped paying monthly rents to the landlady.
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iii)It was his contention that he could not make payments as there was conflict of interest between the original landlord and the auction purchaser. He would further contend that this application had been filed for a direction to the tenants to deposit the rents payable by them to the credit of the suit. The application was consequently dismissed and the High Court had given directions to the tenants to make payment directly to the landlady.
iv)In the meanwhile Babu Narasimha Rao and his children challenged the order by filing O.S.A.No.31 of 2007 before the Division Bench of this Court and therefore he could not make the payment therefore the default is not wilful default but only on account of the circumstances. He would further contend that on the first hearing of R.C.O.P on 06.12.2007, the rents were tendered to the counsel appeared for the landlord, therefore since the default was not wilful the tenants sought for dismissal of the Rent Control Proceedings.
http://www.judis.nic.in 10 4.2.Counter statement of the tenant in R.C.O.P.No.2017 of 2007:
The averments contained in this petition are the very same contentions that have been raised in the counter R.C.O.P.No.2016 of 2007 except for a statement that the advance of Rs.3,00,00/- had been paid to the original owner. 4.3.Counter Statement of the tenant in R.C.O.P.No.2019 of 2007:
Here again the contents of R.C.O.P.No.2016 of 2007 was reproduced and the tenant had contended that he had paid a sum of Rs.3,00,000/- towards rental advance. 4.4.counter statement of the tenant in R.C.O.P.No.2018 of 2007:
This tenant is also the tenant in R.C.O.P.No.2017 of 2007 as he is in occupation of two portions, the shops in entire third floor of the premises and shop in the first floor of the said http://www.judis.nic.in 11 premises. He would contend that he has paid an advance of Rs.4,50,000/- for this portion (i.e.third floor of the premises).
5.Rent Control Authority:
5.1.The learned Rent Controller on an elaborate consideration of the evidence on record both oral as well as documentary had allowed the Rent Control Petitions stating that the tenants were guilty of committing wilful default in the payment of rents from 14.11.2006 to 16.12.2007. The learned Rent Controller has held that the default is definitely wilful from 14.11.2006 to 06.12.2007, since the tenant had not complied with the orders of the High Court in Application No.1070 of 2005 in C.S.No.160 of 2005.
5.2.The learned Judge had further held that six months time was given only for paying the arrears which is the rents due from January 2005 to October 2007. However the learned Judge held that the rents due were to be paid without default and even these have not been paid and hence the same is considered as http://www.judis.nic.in 12 wilful default.
6.Appellate Authority:
The said order was taken up on appeals by the various tenants in R.C.A.Nos.724,732,733 of 734 of 2011. The Appellate Authority had also concurred with the finding of the learned Rent Controller and dismissed the appeals.
7.Civil Revision Petitions:
7.1.Challenging the said order the tenants as revision petitioners are before this Court. The main grounds which have been raised is that the learned Rent Controller has given a wrong interpretation to the provisions of Section 109 of Transfer of Property Act, which governs the rights and liabilities of the lessor's transferee. The Rent Control Petition is pre-mature since they have been filed even before the disposal of O.S.A.No.31 of 2007. The explanation to Section 10 makes it clear that there is no default on the part of the tenant. The tenants have not committed any wilful default and the default was only on account http://www.judis.nic.in 13 of the pendency of the proceedings.
8.Submissions:
8.1.Heard Mr.R.Sundarrajan, learned counsel for the tenants. The submissions made by the learned counsel was that though there is a default, the default is not wilful for the reasons that the Tenants had attorned tenancy to the auction purchaser who had subsequently purchased the property however, the original owner had filed a suit O.S.No.160 of 2005 and not stopping with that had also filed Application No.1070 of 2005 seeking a direction to the tenants to deposit the rents due in respect of their shop portions to the credit of the suit. He would contend that the tenants were waiting for the orders in the above application. That apart, on the very first hearing of the R.C.O.P. all the tenants have tendered the arrears of rent and therefore, default if any was not wilful.
8.2.He would also argue that each of the tenants had paid huge rental advance to the earlier owner and if this is given http://www.judis.nic.in 14 credit there would be no default. He would draw the attention of the Court to the Order in application No.1070 of 2005 in C.S.No.160 of 2005, where this Court has granted the tenants six months time for making payments and the payments having been made, on 06.12.2007, there is a compliance with the orders of this Court.
8.3.He would further contend that in the suit C.S.No.160 of 2005, the earlier owner had admitted that he had received huge amounts of money from the various tenants who are in occupation of the suit property and also point out the further submissions made by the counsel appearing on behalf of the auction purchaser that they had collected huge sums to the tune of Rs.38,19,000/- from the tenants.
8.4.He would further draw the attention of this Court to the letter issued by the land lady to the various tenants asking them to attorn tenancy in her favour in which she had claimed sum of http://www.judis.nic.in 15 Rs.1,500/- as rent to which the tenants have sent a reply placing the true facts that the rents payable by them was not a sum of Rs.1,500/- and also highlighting the fact that their rental advance was with the original landlord.
8.5.He would rely upon the following Judgement to contend that though there is a default the default was not wilful default:
Judgement in Durairaj alias Paramasivam and another Vs. P.M.S.Rahtana Bai reported in (1967) 1 Mad LJ 324, he would draw the attention of this Court to the observations of the learned Judge to the distinction between the words 'default' and 'wilful default'. The learned Judge has ultimately held that the mere default is not a ground for eviction of a tenant but the default should be accompanied by 'supine indifference' or 'callousness' and if these ingredients are present then it would amount to wilful default.
8.6.He would also point out the Judgement of Justice Ramprasada Rao,J. in R.Lakshmia Vs. g.Venkataswamy Naidu reported in 1987 L.W. 87, where the learned Judge as http://www.judis.nic.in 16 held that in order to prove the wilful default landlord has to establish beyond doubt that the tender of the rent was made with a conspicous knowledge that the tenant was making a default, and in that context, he was supinely indifferent, in other words, if there is an elements of mens rea in the mind of the tenant, which in the instant case, the tenant's advocate would argue is not present.
8.7.The next Judgement that was relied upon is the Judgement in S.Sundaram Pillai, etc., Vs. R.Pattabiraman reported in AIR 1985 SCC 582 where the Honourable Supreme Court has dealt extensively examined the word 'wilful default' and he would state that the respondents would not come within any of the categories that has been set out therein.
8.8.The next Judgement that has been brought to the notice of this Court is Judgement in P.M.Punnoose Vs. K.M.Munneruddin and others reported in 2003 (2) TLNJ 1 where the Honourable Supreme Court has held that there must be deliberate and intentional default in the payment of rent http://www.judis.nic.in 17 where bonafide dispute has to taken of etc., then the issue of default would not a wilful one.
8.9.The learned counsel would also argue that the failure on the part of the tenants to take recourse to the provisions of Section 8 of the Tamil Nadu Buildings (Lease and Rent Control Act, 1960) hereinafter called as act, will not amount to wilful default and in support of his argument he has submitted the Judgement in V.Sulaiman Vs. Azeezur Rahman reported in 2008 (1) TLNJ 629 wherein this Court has also held that Section 8 of the Act is only an enabling Section and not a mandatory Section and therefore the failure on the part of the tenant to take recourse to the provision of Section 8 where the landlord as refused to received the rent will not give raise to wilful default.
9.0.He has further argued that the concept of attornment of Tenancy is governed by the general provisions of the Transfer of http://www.judis.nic.in 18 Property Act which is applied to the Rent Control Act and he would further argue that where there is a transfer then under Section 109 of Transfer of Property Act, the transferee steps into shoes of the landlord not only with reference to the rights but is also liable to fulfil the obligations which included the repayment of advance. In respect of this contention he also relied upon the Judgement of Andhra Pradesh High Court Division Bench in Smt. Shankaramma Vs. Mr.Mohammed Abdul Mameed reported in 2006 AIHJ 600.
9.1.Per contra, Ms.Jermiah, learned counsel appearing for Mr.K.Bakthavachalam, on behalf of the landlady would argue that even as per counter filed by the tenants, it is a clear and categoric case that they had stopped paying rents and he would take me to the counter filed by the tenant in R.C.O.P.No.2016 of 2007 wherein Paragraph No.5 he would state as follows:
“The respondent further states that when he received the notice in Application No.1070 of 2005 in C.S.No.160 of 2005 http://www.judis.nic.in 19 from the Hon'ble High Court, Madras, the respondent has stopped paying the monthly rents payable by the respondent to the petitioner in respect of the petition shop. Since there was a claim by the original landlord and his legal heirs claiming the rents on one hand and the petitioner herein is also laying a claim in respect of the rents payable by the respondent.” This statement has been replicated by all the tenants in their respective counter.
9.2.He would further submit that the tenants have not taken any steps to deposit rent to the credit of C.S.No.160 of 2005 or resorted to filing an application under Section 8 of the Act to deposit the rents into Court. He would further point out that the order of this Court in Application No.1070 of 2005 in C.S.No.160 of 2005 gave time to the tenants only to pay the arrears. Even after the order the tenants had not paid full arrears or the monthly rental till 14.11.206 and the payments were made only on 06.12.2007, when the R.C.O.P. was posted in http://www.judis.nic.in 20 the first hearing. Therefore, he would contend that this would demonstrate supine indifference on the part of the tenants.
9.3.He would further argue that the tenants cannot question the auction and it is only the original owner who can do so. He further argued that despite the tenants contending that they had agreement with the erstwhile landlord in which the advance had been paid, they have failed to produce the same for scrutiny of the Court. That apart he would further argue that the original owner had been examined as R.W.2 and he has given evidence to the effect that all the advances paid by the respective tenants are still with him and he has not handed over the same to the landlady.
9.4.He would further argue that the provisions of Section 109 is not applicable since the erstwhile owner has clearly stated that the advance has not been transferred to the respondent herein and therefore the tenants cannot demand the same from the landlady.
http://www.judis.nic.in 21 9.5.He would further argue that the default had started from 01.01.2003 when they had attorned tenancy in favour of the landlady. He would rely upon Judgement of this Court in Gumani Bai and others Vs. K.Muthusamy reported in 2011 (1) CTC 526 in support of his argument that in case of the wilful default the burden is on the tenant to show that the default was not intentional in the instant case this duty has not been fulfilled by the tenants.
9.6.He also relied upon the Judgement of this Court in Vasantha Leela Vs. N.Vadivelu Chettiar reported in 1998 (III)CTC 467 in support of his argument that the tenant is bound to pay the rent in time and there is no necessity for the landlord to make a demand of the same.
9.7.The last Judgement cited in support his contention is the Judgement in C.K.R.Murugan Vs. T.S.Arunagiri reported in 1999-1-L.W.100 where this Court has held that once default is http://www.judis.nic.in 22 admitted the onus is on the tenant to prove the same is not wilful, merely the landlord had accepted the rent would not wilful.
9.8.Heard the counsels and perused the papers. The default commenced from the month of December 2005 to October 2007. The argument on the side of the tenant is that, at that point of time there were proceedings between auction purchaser who is the present landlord and the original owner pending before this Court in C.S.No.160 of 2005 in which the tenants had been made a party and further the application had been moved by the original owner in application No.1070 of 2005 to deposit the rents into Court.
9.9.Though the application has been filed to deposit the rents into Court to the credit of the suit it is seen that none of the tenants have taken any steps to deposit the rents to the credit of the suit; more particularly when there is dispute as to whom the rent should have been paid. The application has been moved on 2005 and orders were pronounced on 14.11.2006 and http://www.judis.nic.in 23 thereafter as well the tenant has not taken any steps what so ever to deposit the amounts to the credit of the suit. Infact had they made the deposit they would be in compliance of the prayer in the said application and the respondent herein would have also no objection to the same. However the tenants have failed to avail of this opportunity.
10.That apart a reading of the orders dated 14.11.2006 clearly shows that the tenants were directed to pay the rents without default every month as and when it fell due and it is only with reference to the arrears for that the tenants were given six months time. However, it is seen that the tenants have not taken any steps to pay rent due from January 2006 right upto November 2007 and these payments have been made only in the month of December 2007. Entire arrears starting from December 2005 to November 2007 has been tendered only on 06.12.2007, on the first hearing of the R.C.O.P, this default can only be considered as a wilful default and the tenants have demonstrated http://www.judis.nic.in 24 supine indifference in paying the rents.
10.1.The tenants appeared to be in riding piggy back on the suit which has been filed by the original owner. If the tenants were in doubt to whom they should pay the rents, the Rent Control Act provides the necessary avenue for the tenant to make payment namely by following provisions under Section 9 of the Act. Even this has not been explored by the tenant and they have waited till the landlady filed the rent control petition to tender the payments. All the Judgements that have been cited on the side of the revision petitioners also state that there where the default is wilful then the protection cannot be given to the tenant. The Supreme Court in the Sundaram Pillai case has clearly dealt in great detail the meaning of the word wilful default:
“17.Thus, a consensus of the meaning of the words “wilful default” appears to indicate that default in order to be wilful must be intentional, deliberate calculated and conscious, with full http://www.judis.nic.in 25 knowledge of legal consequences flowing therefrom. Taking for instance a case where a Tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to above.
18.The next question that arises for consideration is as to what is the scope of a Proviso and what is the ambit of an Explanation either to a Proviso or to any other statutory provision. We shall first take up the question of the nature, scope and extent of a Proviso. The well established rule of interpretation of a Proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein which but for the Proviso would be within the purview of the enactment. In other words, a Proviso cannot be torn apart from the main enactment nor can it be used to nullify or set at naught the real object of the main enactment.” http://www.judis.nic.in 26 10.2.The submissions of the counsel for the petitioner that on the very first hearing the arrears were paid will not save them from the default that they had committed from December 2005 which is nothing but a wilful default. This Court in the Judgement in C.K.R.Murugan Vs. T.S.Arunagiri and another reported in 1999-1-L.W.100 has stated that the conduct of the tenant has to be taken into account in the case of the default. In the instant case, the tenants had been given chances by High Court to make deposits by virtue of order in application No.1070 of 2005 in C.S.No.160 of 2005 the tenants did not taken any steps to comply with the order but was waiting to see the outcome of the appeal that the original owner had filed. This would only clearly show that the default has been deliberate and therefore the order passed by the Authorities below cannot be found fault. In the result, the Civil Revision Petitions are dismissed. There shall be no order as to costs. Consequently connected Civil Miscellaneous Petitions are closed.
http://www.judis.nic.in 27 After the pronouncement of orders, the learned counsel for the revision petitioners sought five months time for vacating the premises. Time is granted subject to the tenants filing an affidavit undertaking to vacate the premises within a period of five months from the date of filing of the affidavit on or before 15.02.2019. Post the matter on 18.02.2019 for reporting compliance, in the event of affidavit not being filed the time granted supra will automatically stand withdrawn.
07.02.2019
kan
Index : Yes/No
Speaking order/non-speaking order
To,
1.Rent Control Appellate Authority,
VIII Small Causes Court,
Chennai,
2.Rent Controller,
XIII Small Causes Court,
Chennai
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28
P.T.ASHA, J.,
kan
C.R.P(NPD).Nos.3633, 3634, 3635
& 3638 of 2018
&
C.M.P.Nos.20249, 20251, 20258
& 20261 of 2018
07.02.2019
http://www.judis.nic.in