Madras High Court
V.T.A.Noor Mohammed vs N.Samiappan on 20 June, 2014
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.06.2014 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR C.R.P (NPD) Nos.1954 & 1955 of 2012 V.T.A.Noor Mohammed ...Petitioner in both the petitions vs. N.Samiappan ...Respondent in both the petitions Prayer in C.R.P (NPD) No.1954 of 2012: Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the judgment and decree dated 11.02.2009 in R.C.A.No.32 of 2005 on the file of the Court of Rent Control Appellate Authority (Sub-Court), Thiruvarur reversing the judgment and decree dated 28.11.2005 in R.C.O.P.No.3 of 1995 on the file of the Court of Rent Controller (District Munsif) at Thiruvarur. Prayer in C.R.P (NPD) No.1955 of 2012: Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the judgment and decree dated 11.02.2009 in R.C.A.No.2 of 2005 on the file of the Court of Rent Control Appellate Authority (Sub-Court), Thiruvarur reversing the judgment and decree dated 05.01.2006 in R.C.O.P.No.3 of 1995 on the file of the Court of Rent Controller (District Munsif) at Thiruvarur. For Petitioner : Mr.R.T.Shyamala For Respondent : Mr.Srinath Sridevan ORDER
The petitioner in R.C.O.P.No.3 of 1995 on the file of the Rent Controller (District Munsif), Thiruvarur is the petitioner in these revision petitions. The above said R.C.O.P was filed by the revision petitioner against the respondent under Section 10(2)(i), 10(3)(a)(iii) and 14 (1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for eviction on the ground of willful default, owner's occupation and for demolition and reconstruction. The respondent is contesting the R.C.O.P by denying the relationship of landlord and tenant between the revision petitioner and the respondent herein.
2. Pending disposal of the R.C.O.P, the revision petitioner filed an interlocutory application I.A.No.155 of 2005 in the above said Rent Control petition R.C.O.P.No.3 of 1995 under Section 11(3) & (4) of the Tamil Nadu Buildings (Lease and Rent Control) act, 1960, seeking an order directing the respondent to pay the rental arrears from March 1993 to September 2005 and to strike off the defence and order eviction in case of failure to comply with such a direction for payment of arrears of rent. The said petition was also contested by the respondent herein contending that there was no relationship of landlord and tenant between the revision petitioner and the respondent. On the other hand, the respondent contended that he was allowed by one Packiri Mohamed to occupy the petition building on payment of a sum of Rs.20,000/-, that he was spending for the maintenance of the building and that the land being one belonging to Sri Thiyagarajaswami temple, Tiruvarur, the existing building was the one constructed by the respondent at his own cost of Rs.40,000/-. It was also contended that since there is no lease arrangement and jural relationship of landlord and tenant did not exist between the revision petitioner and the respondent, the Rent Controller had no jurisdiction to go into the question of payment of rent and that the application filed under Section 11(3) and (4) of the Act was not legally maintainable.
3. The learned District Munsif (Rent Controller), after hearing, accepted the case of the revision petitioner herein and directed deposit of a sum of Rs.22,650/- on or before 13.12.2005 being the arrears of rent quantified by the Rent Controller. The said order came to be passed on 28.11.2005. As the said direction was not complied with, the learned Rent Controller, struck off the defence and passed an order under Section 11(3) & (4) of the Tamil Nadu Buildings (Lease and Rent Control) act, 1960 on 05.01.2006 directing the respondent to vacate and handover possession of the petition building to the revision petitioner.
4. As against the order dated 28.11.2005 made in I.A.No.55 of 2005 in R.C.O.P.No.3 of 1995, the respondent herein filed an appeal in R.C.A.No.32 of 2005 on the file of the Rent Control Appellate Authority (Subordinate Judge, Thiruvarur). As against the consequential order of eviction dated 05.01.2006 made in R.C.O.P.No.3 of 1995, the respondent herein preferred an appeal in R.C.A.No.2 of 2006 on the file of the above said Rent Control Appellate Authority. The learned Rent Control Appellate Authority allowed the appeal by the separate judgments dated 11.02.2009 and set aside the orders passed by the Rent Controller. As against the judgment and decree of the Rent Control Appellate Authority dated 11.02.2009 made in R.C.A.No.32 of 2005, C.R.P.No.1954 of 2012 has been filed and as against the judgment and decree of the Rent Control Appellate Authority dated 11.02.2009 made in R.C.A.No.2 of 2006, C.R.P.No.1955 of 2012 has been filed.
5. The point that arises for consideration in these revisions is whether the Rent Control Appellate Authority has committed an error in reversing and setting aside the orders passed in I.A.No.55 of 2005 in R.C.O.P.No.3 of 1995 determining the arrears of rent and directing deposit of the same into the Court for permitting the respondent herein to contest the R.C.O.P and in dismissing the said R.C.O.P after striking off the defence on the failure of the respondent herein to comply with the direction for deposit of the arrears of rent as determined by the Rent Control Appellate Authority?
6. The arguments advanced by Mr.R.T.Shyamala, learned counsel for the revision petitioner and by Mr.Srinath Sridevan, learned counsel for the respondent were heard. The orders/judgments of the Rent Controller/Rent Control Appellate Authority and the relevant records produced in the form of typed-set of papers were also perused.
7. The revision petitioner, claiming that he is the landlord in respect of the petition building and the respondent herein is a tenant under him in respect of the petition building, has sought for an order of eviction by filing R.C.O.P.No.3 of 1995 under Sections 10(2)(i), 10(3)(a)(iii) and Section 14(1)(b) of Act 18 of 1960 on the ground of willful default, bonafide requirement for owner's occupation and for demolition and reconstruction. Admittedly, he is not the owner of the land and the land over which the superstructure stands belongs to Sri.Thiyagarajaswamy Temple, Tiruvarur. The revision petitioner claims to have purchased the building from Smt. Regina Beevi W/o.O.P.M.Packiri Mohammed under a registered sale deed dated 08.03.1993. He claims that the respondent is a tenant in respect of the petition premises on the basis of his contention that the respondent was inducted as a tenant by the said Regina Beevi, the petitioner's predecessor-in-title and that after the purchase made by the revision petitioner and intimation of the same was given to the respondent, the respondent denied to be a tenant under him. The sale deed under which the revision petitioner claims to have purchased the petition property was dated 08.03.1993. Right from the date of sale deed, no rent was paid by the respondent to the revision petitioner.
8. For the contention of the revision petitioner that his predecessor-in-title was the landlord of the respondent herein and on purchase, the revision petitioner was entitled to the attornment of tenancy in his favour and that on the refusal of the respondent to do so and on failure to make payment of rent, the respondent was liable to be evicted, the respondent has taken a defence plea that he was not a tenant under the vendor of the revision petitioner; that one Packiri Mohammed, on receipt of a sum of Rs.20,000/- from the respondent, allowed him to occupy the building that was in existence at that point of time; that thereafter he was in possession and enjoyment of the same spending for the maintenance of the building; that the building which was handed over by Packiri Mohammed was replaced by a new building constructed by the respondent at a cost of Rs.40,000/-, that therefore, there would be no question of payment of rent to the revision petitioner and that hence, the R.C.O.P as well as the petition filed under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) act, 1960 were not maintainable.
9. In support of his contention that the building was owned by his vendor and it had been rented out to the respondent and that on his purchase, he became the landlord in respect of the petition building entitled to receive the rent from the respondent, the revision petitioner has produced the parent deed namely a settlement deed executed by Packiri Mohammed in favour of Regina Beevi and the sale deed executed by Regina Beevi in favour of the revision petitioner as Exs.P2 and P1 respectively. The property tax assessment order was produced as Ex.P3. The property tax receipts came to be produced as Exs.P4 to P15. All the above said documents are capable of supporting his case that he purchased the property from Regina Beevi under Ex.P1 and he was paying the property tax after getting the property tax assessment transferred to his name. But, none of those documents will be enough to establish prima facie the relationship of landlord and tenant either between the revision petitioner and the respondent or between Regina Beevi (the vendor of the revision petitioner) and the respondent herein. Though the revision petitioner would claim that the respondent was inducted as a tenant by the vendor of the plaintiff for a monthly rent of Rs.150/- and he claims a right to seek attornment of tenancy in his favour, he has not produced even a scrap of paper to show that any amount was paid by the respondent towards rent at any time prior to the purchase made by the revision petitioner under Ex.P1. There is also no admission on the part of the respondent that his possession in the petition premises is by virtue of a tenancy arrangement. On the other hand, he has taken a plea that the jural relationship of landlord and tenant did not exist at any point of time. On the other hand, he has contended that he got possession of the then existing building on the permission given by Packiri Mohammed after making a payment of Rs.20,000/- to him. The said plea would not suggest the relationship of landlord and tenant between Packiri Mohamed, either by acting for himself or on behalf of Regina Beevi and the respondent herein. The said plea would amount to either a oral sale or a mortgage. We are not concerned with whether the such contention of transfer of right in the immovable property is sustainable in law or not. The said fact has been mentioned only for the purpose of showing that there is no admission of tenancy arrangement. Apart from disputing tenancy arrangement, the respondent has taken yet another plea that the building that existed when he took possession of the same was replaced by him by a new building that exists at present constructed by him at a cost of Rs.40,000/-. The said plea would amount to a sublease of the land belong to Sri Thiyagarajaswami temple, Tiruvarur.
10. Admittedly, the respondent had not paid at any point of time any amount as rent for the petition building to the revision petitioner. Learned Rent Controller has made an observation that the respondent is in possession of the petition building concerned in the R.C.O.P giving rise to the present Civil Revision Petitions only as a mortgagee under Packiri Mohammed and the amount secured was Rs.20,000/-. However in the very next sentence, a contrary view was expressed stating that no document to prove the usufructuary mortgage was produced. Holding that the petition building had been purchased by the revision petitioner from Regina Beevi W/o. Packiri Mohammed which she had got by virtue of Ex.A2 settlement deed and also relying on the fact that the revision petitioner was making payment of property tax to the Municipality, the learned Rent Controller held that the respondent was liable to pay rent. Thus the Rent Controller has chosen to accept the case of the petitioner and pass an order quantifying the monthly rent at Rs.150/- and directing deposit of Rs.22,650/- towards arrears of rent from March 1993 to September 2005. Though not in unambiguous terms, the learned Rent Controller has chosen to render a finding that the respondent had taken possession of the petition building from the vendor of the revision petitioner as a tenant for a monthly rent of Rs.150/- simply because the respondent was not able to prove the alleged mortgage (bge;jfk;)/ Such an approach in a petition filed under Section 11(4) is improper, as rightly contended by the learned counsel for the respondent. Learned Rent Control Appellate Authority, on a proper consideration of evidence, arrived at a correct conclusion that the order passed in the petition under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and consequential order of eviction passed in R.C.O.P.No. 3 of 1995 could not be sustained as the revision petitioner had not proved the jural relationship of land and tenant either between himself and the respondent or between his predecessor-in-title and the respondent. As rightly contended by the learned counsel for the respondent, the Rent Controller gets jurisdiction only when the jural relationship of landlord and tenant is admitted or established and that in case of denial of such jural relationship, question to be decided as a preliminary issue is whether such denial is bonafide so that the parties can be relegated to the Civil Court?
11. However, the learned counsel for the revision petitioner contended that since an order for deposit of arrears of rent quantified by the Rent Controller came to be passed, unless and until the amount was deposited, the appeal could not have been heard by the Rent Control Appellate Authority and that, on that score alone, the judgments and decrees of the Rent Control Appellate Authority were liable to be interfered with in exercise of the power of revision available with this Court. As an answer to the above said contention, learned counsel for the respondent made reference to the following judgments:
A learned Single Judge of this Court (Hon'ble Justice R. Balasubramaniam) in K.P.Janaki Ammal and 8 others V. K.Badrinarayanaiah, reported in 1999 (II) CTC 46, after referring to various judgments has held as follows:
9. Accordingly I have no hesitation to hold that the need or the requirement to deposit the amount as found due and ordered on an application under Section 11 of the Act will not be attracted to an appeal field by the tenant against an order passed under Section 11 of the Rent Act. Such a requirement is called for to be complied with only, either when the tenant is contesting the proceedings filed for eviction against him before the Rent Controller or when he files an appeal against an order of eviction passed under Section 10 of the Act and not in any other contingencies. In Radha V. C.R.Govindarajulu reported in AIR 1978 Mad 399, a Division Bench of this Court made the following observations:
If the argument advanced on behalf of the petitioner is to be accepted, all that a landlord to whom his tenant has not paid the rent has to do is just to file a petition under Section 10 of the Act, whether he has a good ground or not for obtaining an order of eviction against the tenant under the provisions of the Act, and thereafter to file a petition under Section 11(4) calling upon the tenant to pay the arrears of rent and if he does not pay, to obtain an order of eviction against him. Even though the ground on which he filed the application for eviction of the tenant may be totally untenable. Certainly the legislature could not have contemplated such a situation in enacting Section 11(4) a summary remedy for recovery of arrears of rent from a tenant by the landlord in all cases, as a substitute for a suit by a landlord for the recovery of arrears of rent from his tenant. The Division Bench also clarified the decision in Iqbal and Company V. Abdul Rahim reported in (1982) 1 MLJ 221 stating that the said decision clearly spelt out that the rent admitted by the tenant as arrears has to be paid before any appeal has to be heard.
12. Another Division Bench of this Court in M/s.A.Rafeeq Ahmed & Co. rep. By its Partner K.Muktar Ahamed v. M/s. Montari Leather Ltd., rep. By its Chairman and Managing Director reported in 2001-1-L.W.133 approved the view of Justice R. Balasubramnian in K.P.Janaki Ammal and 8 others V. K.Badrinarayanaiah. The following are the observations made by the Division Bench in the said case:
74. A reading of Section 11(3) and (4) with Section 11(1) would show that there is a purpose behind the said provision. The view that the deposit should be made as a condition precedent for preferring an appeal would mean restricting the appeal or denying the remedy of appeal, which the statute has provided for. Such a denial of appeal remedy could be, if at all, only in terms of the statutory provision, which is not the case here. In a given case where substantial amount is claimed as arrears which is disputed by the respondent and the dispute being bonafide, if the deposit is to be considered as a condition precedent, then it would result in deprivation of an appeal remedy. That is not the intendment or object of the Legislative provision. Even in a case where a direction is issued under Section 11(4) and when such a direction is challenged by invoking the remedy of appeal under Section 23, the contention that as a condition precedent the direction should be complied with by the tenant by depositing the amount as arrived at by the Rent Controller and if the tenant is required to deposit, then it would mean deprivation of a remedy of appeal, which again is not the intendment of the Legislature. Neither Section 11(3) or (4), nor Section 23 would justify such a construction viz., that rents claimed by the landlord or as adjudicated by the orders of the Rent Controller should be deposited as a condition precedent for preferring an appeal, or else the appeal cannot be entertained at all.
75. The statutory provision namely Section 11(3) and (4) read with S.23 should be given a plain meaning in juxtaposition to Section 11(1) read with Section 23. On a plain reading, we are not able to persuade ourselves to accept the plea that arrears of rent as adjudicated by the Rent Controller under Section 11 (3) and (4) should be deposited as a condition precedent. Such a condition precedent is not provided for, not it could be read into it. If such a condition precedent is to be construed it should have been provided specifically in Section 11(3) or (4) or in Section 23 or by a Rule. This is not so. The right of appeal has been recognised by the judicial decisions as a right which vests in a suit or at the time of institution of the original proceeding itself.
13. The above said decisions will make it clear that in the case on hand the learned Rent Control Appellate Authority has not committed any error or mistake in interfering with the order of the Rent Controller passed in I.A.No.55 of 2005 and the consequential order of eviction passed in R.C.O.P.No.3 of 1995 and in setting aside the same. Therefore, there shall be no scope for interference with the judgments and decrees of the learned Rent Control Appellate Authority. There is no merit in the revisions and the same are liable to be dismissed. However, since the learned Rent Control Appellate Authority, after allowing the appeals and setting aside the orders passed in I.A.No.55 of 2005 and in R.C.O.P.No.3 of 1995 has failed to state what shall be the fate of R.C.O.P and omitted to state whether the R.C.O.P shall stand dismissed or allowed. Hence, this Court has to clarify the same. The fact that the order passed under Section 11(4) has been set aside in R.C.A will result in the dismissal of the I.A.No.55 of 2005. However, the fact that the consequential order of eviction dated 05.01.2006 passed in the eviction petition R.C.O.P No.3 of 1995 has been set aside solely on the ground of dismissal of the petition filed under Section 11(4), the R.C.O.P has to be taken up by the Rent Controller for deciding the preliminary issue, namely whether the denial of title (jural relationship of landlord and tenant between the revision petitioner and the respondent) is bonafide and then to proceed with the decision on other issues in the R.C.O.P on merits .
In the result, both the revisions are dismissed. The learned Rent Controller is directed to restore the R.C.O.P on file and decide the question of existence or otherwise of the relationship of landlord and tenant between the revision petitioner and the respondent as a preliminary issue and then proceed with the disposal of the same on merit. No costs.
20.06.2014 Index: Yes/No Internet: Yes/No gpa To
1. VIII Judge, Small Causes Court, Chennai
2. X Judge, Small Causes Court, Chennai P.R.SHIVAKUMAR.J., gpa Judgment in C.R.P (NPD) Nos.1954 & 1955 of 2012 20.06.2014