Madras High Court
M.Vedapuri vs O.M.Raj on 14 October, 2008
Equivalent citations: AIR 2009 (NOC) 460 (MAD.)
Author: S.Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.10.2008 CORAM : THE HONBLE MR. JUSTICE S.TAMILVANAN C.R.P (NPD) No.1524 of 2005 and C.M.P.No.12797 of 2005 M.Vedapuri .... Petitioner vs. 1. O.M.Raj 2. Mangalakshmi .... Respondents Civil Revision Petition filed against the Judgment and Decree, dated 23.08.2004 made in R.C.A.No.7 of 1998 on the file of the Rent Control Appellate Authority / Principal Subordinate Judge, Chengalput, confirming the Order and Decretal Order, dated 13.10.1998 made in R.C.O.P.No.2 of 1995 on the file of the Rent Controller / District Munsif, Chengalput. For Petitioner : Mr.G.Jawaharlal For Respondents : Mr.C.Jagadish ORDER
The Civil Revision Petition is directed against the Judgment and Decree, dated 23.08.2004 made in R.C.A.No.7 of 1998 on the file of the Rent Control Appellate Authority / Principal Subordinate Judge, Chengalput, confirming the Order and Decretal Order, dated 13.10.1998 made in R.C.O.P.No.2 of 1995 on the file of the Rent Controller / District Munsif, Chengalput.
2. The revision petitioner herein is the tenant. The respondents herein have filed the Rent Control Original Petition under Sections 10 (2) (i), 10 (2) (ii) (b), 10 (2) (iii) (a), 10 (3) (a) (ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, seeking an order of eviction of the revision petitioner from the petition mentioned premises.
3. Before the Rent Controller, the first respondent herein was examined as P.W.1. Exs. A.1 to A.9 were marked. On the side of the revision petitioner, he himself was examined as R.W.1, apart from examining R.W.2 and marking Exs.B.1 and B.2. The Advocate Commissioner's plan and report were marked as Exs.C.1 and C.2. Considering the oral and documentary evidence and the arguments advanced by both sides, the learned Rent Controller allowed the petition and ordered eviction on the ground of wilful default, own use and occupation and for causing damage to the property and using the premises for the purpose other than for which it was let out and directed the revision petitioner herein to vacate and hand over the possession within two months from the date of the order. Aggrieved by which, the revision petitioner preferred the Rent Control Appeal. The learned Rent Control Appellate Authority, confirming the order and decretal order passed by the Rent Controller and dismissed the appeal. Against which, this Civil Revision Petition has been preferred by the tenant.
4. According to the revision petitioner / tenant, the finding of the courts below that there was wilful default in payment of rent is not sustainable. He has further stated that he paid rent up to November 1994, for December 1994, since the landlord refused to receive the rent, he filed R.C.O.P.No.1 of 1995 to deposit the rents in court and that the rent amounts were paid to his advocate, but for how many months his advocate received the rent was not clear to him. It has been further stated that the rents were paid in lump sum of Rs.3,000/- for the period July to September 1995 and another sum of Rs.3,000/- for October to December 1995 by filing memo in the court and that the payment of lump sum amount would not be default. Since P.W.1 has admitted that he is retaining Rs.5,000/- as advance and the monthly rent is only a sum of Rs.1,000/-, the learned counsel appearing for the petitioner submitted that even assuming that the rent was not paid for a period of three months, if there is an excess amount of Rs.1,000/- retained by the landlord and in such circumstances, the said conduct of the tenant would not amount to wilful default.
5. According to the respondents / landlords, the building was let out to the revision petitioner only for the purpose of running wholesale business of selling cattle feed, whereas Ex.A.3 clearly shows that the building was let out for sale of cattle feed, poultry feed and also sale of broiler chicken and the tenancy was extended up to 03.02.1995. According to the petitioner, the broiler chicken business was consented by the landlord and therefore, it cannot be held that the building was used for different purpose. Similarly, the learned counsel appearing for the petitioner contended that the building was let out for non-residential purpose and therefore, the alleged sickness of the second respondent, landlady seeking the building for her residential purpose is not bonafide.
6. Per contra, the learned counsel appearing for the respondents submitted that the respondents / landlords have established their claim, as per the evidence available on record and that the concurrent finding is not liable to be interfered with in the revision.
7. It is an admitted fact that the schedule mentioned property of the Rent Control Original Petition was let out to the revision petitioner for the non-residential purpose of selling cattle feed, poultry feed and live broiler chicken business in the year 1988, under a oral rental agreement. Initially, the rent was fixed at Rs.500/- per month and subsequently, it was enhanced to Rs.800/- per month. As there was dispute between the landlord and the tenant, the revision petitioner / tenant filed a suit in O.S.No.87 of 1994 on the file of the District Munsif Court, Chengalput, seeking permanent injunction restraining the first respondent herein from interfering with the revision petitioner's possession and enjoyment of the suit property, except under due process of law. The suit was ended in compromise and the revision petitioner herein withdrew the suit as the first respondent herein agreed to execute fresh rental agreement, accordingly, the first respondent herein executed fresh agreement, dated 04.03.1994 for 11 months for the period from 04.03.1994 to 03.02.1995, whereby an amount of Rs.5,000/- was stated as the rental advance paid by the revision petitioner / tenant.
8. According to the revision petitioner, the first respondent along with the second respondent, the mother of the first respondent tried to disturb the revision petitioner's possession and enjoyment of the property, hence the suit in O.S.No.15 of 1995 was filed by the revision petitioner against the respondents, seeking permanent injunction restraining them from anyway disturbing the petitioner's peaceful possession and enjoyment of the property. As per Ex.A.3, both the parties have entered into rental agreement for 11 months in the year 1994.
9. According to the petitioner, the respondents were not in the habit of issuing receipts, though he demanded the same. Even if the landlord is not inclined to receive the rent, it is the duty of the tenant to deposit the same before the Rent Control Court, by way of filing a petition. For July, August and September 1995, the revision petitioner had paid a lump sum of Rs.3,000/-, similarly, for October, November, December 1995, he paid Rs.3,000/-. As per the finding of the courts below, it was not elicited whether rent from January to June 1995 was paid by the revision petitioner or not. The rent for October to December 1995 was paid only on 19.01.1996.
10. Based on the decisions of this Court reported in 1996 (2) LW 94 and 1997 (II) MLJ 467, the learned Rent Controller held that there was wilful default in payment of rent by the revision petitioner / tenant, accordingly, found that the respondents / landlords are entitled to get eviction on the ground of wilful default.
11. Learned counsel appearing for the revision petitioner submitted that the rental advance paid by the revision petitioner was Rs.5,000/- and therefore, even if there was any rental arrears, which is less than the advance amount, it cannot be construed as wilful default. In support of his contention, he relied on the decision, K.Narasimha Rao vs. T.M.Nasimuddin Ahmed, reported in 1996 (3) SCC 45. The Hon'ble Supreme Court in the aforesaid decision has held that under the Tamil Nadu Act there is no illegality attaching to the payment of the excess amount by the tenant to the landlord and a legally enforceable right clearly flows from the provision of the tenant. The pari delicto principle is, therefore, clearly excluded for the purpose of envisaging the consequences of an excess amount being taken by the landlord from the tenant because the provision requires the landlord to refund the excess amount.
12. As per the evidence of the revision petitioner / R.W.1, as the landlord refuses to receive the rent, he sent the amount by money order on 05.01.1995. As per the finding of the courts below, there was no evidence produced by the revision petitioner herein for having sent the amount by money order. In the aforesaid case, it is seen that with the consent of the landlord, the tenant had spent money towards repairs for the rented premises. Though the monthly rent was Rs.150/-, the tenant had spent Rs.1,000/- towards repairing charges with the consent of the landlord and the advance amount was also Rs.2,850/-. After the legal notice sent by the landlord, he sent Rs.750/-, five months arrears of rent, though excess rental advance amount was with the landlord. Here in the instant case, even after the legal proceedings between the landlord and the tenant, the revision petitioner / tenant has not paid the rent regularly, but subsequently, paid in lump sum and from the evidence available, for certain period, he could not say whether he paid the amount or not.
13. The respondents / landlords have alleged that the revision petitioner / tenant has committed act of waste to the property. It is not in dispute that Advocate-Commissioner was appointed to inspect the petition mentioned property and he filed his report and plan and according to him, he visited the premises and found that waste and left out of the chicken meat stall was emanating bad smell. The Advocate-Commissioner has further stated that the building is in a bad condition and a part of the building is endangering, since the building was not properly maintained. The view of the learned Rent Controller has been confirmed by the Rent Control Appellate Authority. The Advocate- Commissioner's Report and Plan, Exs.C.1 and C.2 would show that the petition premises is not property maintained due to the waste and left out of the chicken meat stall found at the premises and according to the Advocate-Commissioner, that was emanating bad and foul smell in an unhygienic condition. That apart, the courts below have held that the respondents / landlords have established that it is required for the own use and occupation of the second respondent. According to the respondents / landlords, the second respondents is suffering from leprosy and she is also a heart patient requires treatment in the hospital, which is just opposite to the suit property.
14. Merely because the landlords are having some other building, their bonafide requirement cannot be disputed on that ground. It is a settled proposition of law that the landlord on bonafide reason can seek a non-residential building for residential use. The Court has to consider whether the reason, as stated by the landlord is bonafide or not. In the instant case, it is not in dispute that the second respondent is suffering from leprosy and she is in need of treatment and the hospital is nearby the premises that was let out to the revision petitioner.
15. As there is concurrent finding by the courts below, unless there is any material irregularity or illegality, based on perverse finding, this Court cannot interfere with the same. On the evidence available on record and considering the arguments advanced by both sides, I am of the view that no such legal grounds available in favour of the revision petitioner to interfere with the concurrent finding of the Courts below.
16. In the result, confirming the Judgment and Decree passed by the learned Rent Control Appellate Authority, this Civil Revision Petition is dismissed. Consequently, the connected C.M.P.No.12797 of 2005 is also dismissed and the revision petitioner is directed to vacate and hand over the possession of the premises, within two months from the date of this order. Since the revision petitioner is running poultry business, on filing affidavit of undertaking before the Rent Controller within a month, the time granted would be extended to one year. However, no order as to costs.
14.10.2008 Index : Yes Internet : Yes tsvn S.TAMILVANAN, J tsvn To
1. The Rent Control Appellate Authority / Principal Subordinate Judge, Chengalput
2. The Rent Controller / District Munsif, Chengalput.
Order in C.R.P(NPD) No.1524 of 2005 14-10-2008