Madras High Court
B.A.Chandrashekara Setty vs Sucharita Gunasekaran on 10 August, 2022
Author: R.N.Manjula
Bench: R.N.Manjula
C.R.P.1238 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.08.2022
CORAM:
THE HON'BLE Ms.JUSTICE R.N.MANJULA
C.R.P. No.1238 of 2022
B.A.Chandrashekara Setty ... Petitioner
Vs.
Sucharita Gunasekaran
rep. by her power agent,
D.R.Raghunath. ...
Respondent
PRAYER : Civil Revision Petition is filed under Article 227 of the
Constitution of India to set aside the order and decretal order
dated 08.03.2022 passed in R.L.T.A. No.57 of 2021 on the file of
VI Additional City Civil Court, Chennai/Rent Tribunal dismissing
the appeal filed by the petitioner herein and confirming the order
and decree dated 02.11.2021 passed by XIV Small Causes Court
/ Rent Court in R.L.T.O.P.No.354 of 2019.
For Petitioner : Mr.P.B.Balaji
For Respondent : Mr.S.Raghunathan for
Mr.S.L.Sudarsanam.
1/21
https://www.mhc.tn.gov.in/judis
C.R.P.1238 of 2022
ORDER
This Civil Revision Petition has been preferred challenging the order dated 08.03.2022 passed by VI Additional City Civil Court, Chennai/Rent Tribunal made in R.L.T.A. No.57 of 2021.
2. The revision petitioner is the tenant. The respondent/ landlady has filed a petition in RLTOP.No.354 of 2019 on the file of XIV Small Causes Court/Rent Court for eviction (i) on the ground of failure to execute the written tenancy agreement; (ii) for own use and occupation; and (iii) for compensation of double the monthly rent under Section 23 of The Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act, 2017 (hereinafter called the Act). By order dated 02.11.2011, the said original petition was allowed by the Rent Court only on the ground of failure to execute the written tenancy agreement and it was dismissed on the grounds raised under Sections 21(2)(g) and 23 of the Act. Further, an order of eviction was also passed. Aggrieved over that, an appeal has been preferred by the petitioner/tenant in RLTA.No.57 of 2021 on the file of the Rent Tribunal and the same was dismissed by the impugned order by 2/21 https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 confirming the order of the Rent Court. Aggrieved by that, this Civil Revision Petition has been preferred by the petitioner/tenant. Even though eviction has been ordered only on the ground of failure to execute the written tenancy agreement, the respondent/landlady has not filed any cross appeal by pressing other grounds or other reliefs. As such, there is an eviction order passed against the revision petitioner and that is under challenge.
3. Heard the learned counsel for the petitioner and the learned counsel for the respondent and also perused the material available on record.
4. The learned counsel for the revision petitioner submitted that Section 4(2) of the Act would prescribe 575 days for executing the written tenancy; only if the petitioner/tenant fails to execute the written tenancy within a period of 575 days from the date of commencement of the Act i.e.22.02.2019, the respondent/ landlady can invoke the said ground under Section 21(2)(a) of the Act; the said period would expire only around 3/21 https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 September-2020; even before the expiry of the said period, the respondent/landlady came forward with the original petition and it is a premature one. In fact, the revision petitioner/tenant sent an e-mail on 23.08.2019, followed by a letter sent by registered post on 25.09.2019 calling upon the respondent/landlady to enter into a lease agreement in terms of the Act.
5. The learned counsel for the petitioner/tenant has placed reliance on the order of a learned Single Judge of this Court in the case of Lalithkumar Vs. Premila Jain [CRP(NPD).No.1997 of 2021 dated 25.01.2022] wherein it is held that the landlord rushed to the Court without having a meaningful discussion with the tenant and without waiting for the period of 575 days to expire.
5.1. On similar facts, another order of the same learned Single Judge of this Court in the case of Ramesh Salunkhe Vs. Pramila Jain [reported in 2022-1-L.W. 481] is relied upon wherein it has been held that there is no failure on the part of the tenant and further, no agreement of tenancy can be entered 4/21 https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 into when there is a cloud on the title of the landlady.
5.2. According to the learned counsel for the petitioner/tenant, the landlady had settled the property in question in favour of her son Mr.Ganesh Gunasekaran by virtue of a settlement deed dated 22.02.2012; the said settlement deed was not produced before the Rent Court and hence, the Court has to take adverse presumption against the landlady; when the title was transferred in favour of a third party, the respondent/landlady has no locus standi to file any eviction petition; further, the jurisdiction of the Rent Court is limited only with regard to the tenancy agreement and the question of title of ownership of the premises shall be beyond its jurisdiction.
5.3. Further according to the learned counsel for the petitioner/tenant, the power agent of the landlady filed a proof affidavit stating that the landlady has already settled the property in question in favour of her son and hence, she does not have any right or interest over the property in question; with regard to the payment of the rent alone, it cannot be concluded 5/21 https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 that the respondent was the landlady and the revision petitioner had accepted her entitlement over the demised premises and the petitioner/tenant will not be subjected to the principle of estoppel, if the landlady loses title subsequent to his induction as a tenant in the demised premises; when the landlady has no title, it cannot be stated that there is a failure to enter into the written lease agreement.
6. In contrast, the learned counsel for the respondent/ landlady submitted that the respondent/landlady is a senior citizen and the petitioner/tenant himself has admitted that there is no written tenancy agreement; once the tenant refuses to enter into a written lease agreement, he is liable to be evicted under Section 21(2)(a) of the Act; instead of complying with the orders of the Court below by vacating and handing over possession, the petitioner/tenant had chosen to withhold the rentals due for the months of December-2021 and January-2022 and paid the rent only in the month on February-2022; and the petitioner/tenant has taken advantage of the settlement deed executed by the respondent/landlady in favour of her son 6/21 https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 Mr.Ganesh Gunasekaran and illegally claiming that the respondent/landlady cannot exercise her powers as a landlady.
6.1. As per Section 2(c) of the Act, the definition of the word 'landlord' is extracted as hereunder:
“2.In this Act, unless the context otherwise requires,—
(a)...
(b)...
(c) “landlord” means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account, or on account of, or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver of any person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant, and shall include his successor-in-interest; ” So, the above definition would include the respondent/landlady also. Even though she executed the settlement deed in favour of her son, she has retained the life interest in the same and hence, she is entitled to receive the rent.
6.2. According to the respondent/landlady, the rent was being paid by the revision petitioner/tenant to her by accepting her entitlement; the petitioner/tenant was aware of the settlement deed two years ago and he has also referred to it in 7/21 https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 his counter; the revision petitioner/tenant sent e-mails to the respondent/ landlady requesting that the repairs should be carried out in the premises; by his own conduct, the revision petitioner/tenant has admitted the right of the respondent/landlady; since the respondent/landlady is a senior citizen, she falls within the special category of landlords as per the Third Schedule of the Act; the Rent Court and the Rent Tribunal rightly appreciated the merits of the respondent's case and hence, it does not require any revision.
7. Point for consideration:
Whether the order of the Rent Tribunal in confirming the order of eviction of the Rent Court on the ground of failure to enter into an agreement as per Section 21(2)(a) of the Act, is fair and proper?
8.The unsuccessful tenant has filed this revision by challenging the order of the Rent Tribunal in confirming the eviction order passed by the Rent Court. The 8/21 https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 respondent/landlady filed the eviction petition on three grounds. The first one is under Section 21(2)(a) of the Act for failure to execute the written tenancy agreement; the second one is under Section 21(2)(g) of the Act for own use and occupation; the last one is under Section 23 of the Act. Even though the second and the third grounds respectively for own use and occupation and for payment of compensation of double the monthly rent were not accepted, eviction was ordered on the ground of failure to execute the written tenancy agreement. The revision petitioner attacks the order of the Rent Tribunal on the basis that the petition for eviction under Section 21(2)(a) of the Act cannot be filed by violating Section 4(2) of the Act.
9. The contention of the revision petitioner/tenant is that as per Section 4(2) of the Act, there is a time limit of 575 days to execute the written tenancy agreement and hence, the petition filed for eviction before the expiry of the said 575 days is a premature one.
10. Section 4(2) of the Act reads as hereunder: 9/21
https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 “4.(1)...
(2) Where, in relation to a tenancy created before the commencement of this Act,— (a) an agreement in writing was already entered into, it shall be informed to the Rent Authority; (b) no agreement in writing was entered into, the landlord and the tenant shall enter into an agreement in writing with regard to that tenancy, and inform the Rent Authority, in the form specified in the First Schedule:
Provided that where the landlord and the tenant fail to present jointly a copy of tenancy agreement under clause (a) or fail to reach an agreement under clause
(b), such landlord and the tenant shall separately file the particulars about such tenancy. ”
11. By virtue of the latest Notification, the time stipulated under Section 4(2) of the Act is 575 days. It is needless to state that the above Notification would be applicable only to those matters, in which, both the landlord and the tenant agreed to continue the tenancy, and for which the tenant has refused to enter into a written agreement. The landlord is always at liberty to extend the tenancy beyond the period, for which, the original tenancy agreement was entered into. In case the landlord does 10/21 https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 not opt to extend the lease, then he can terminate it at his will by stating that the tenancy will get concluded and that he does not want to renew the tenancy by way of executing any written tenancy agreement.
12. Even in the decisions relied upon by the revision petitioner/tenant, it is stated that the period of 575 days mentioned in the Act under Section 4(2) should not be misconstrued as though for terminating tenancy, the landlady should wait for 575 days and then only she can approach the Rent Court for eviction. In fact, the Act itself is a fast track mechanism to dispose of the applications at the earliest possible opportunity. In the matters of subsisting tenancy where both the landlady and the tenant agreed to extend the lease, the tenant should come forward to execute a written tenancy agreement with his landlord/ landlady and his failure to do so will result in filing an eviction petition on the ground of failure to execute the written agreement.
13. The learned counsel for the revision petitioner attracted 11/21 https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 the attention of this Court to the order of the learned Single Judge of this Court in the case of Ramesh Salunkhe (cited supra) in support of his contention that if a petition is filed for eviction on the ground of failure to execute the tenancy agreement before the expiry of 575 days from the date of commencement of the Act, it is a premature one.
14.In the decision in the case of Ramesh Salunkhe (cited supra), the relevant paragraph is extracted hereunder:
“21. The next aspect is that the tenancy agreement stipulated under Section 4 (2) of the TNRRRLT Act, 2017 can be executed within a period of 575 days from the date of commencement of the Act. This Act came into force and commenced from 22.02.2019. In that case, the petitioner still has time to enter into the tenancy agreement with the respondent. But the petition was filed within a period of 575 days on 01.07.2019 and it is a premature petition. Both the Courts below have misconstrued this 575 days and the learned Rent Controller found that this period relates only to the period for entering a tenancy agreement and not for approaching the Rent Court for termination, once there is a failure to enter into the agreement.
22. In the case on hand, the petitioner has not refused to enter into the tenancy agreement with the respondent. He is prepared to enter into the tenancy agreement with the 12/21 https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 respondent as per the existing terms. That is what is required under Section 4 (2) of the TNRRRLT Act, 2017. Without entering into the meaningful discussion with the petitioner, the respondent rushed to the Court, when there is no express refusal on the part of the petitioner to enter into a tenancy agreement, of course with the existing terms. In fact, it is the respondent, who shut the door once for all by categorically saying in her letter in Exhibit P3 that she does not want any communication or exchange of letters from the petitioner regarding the rental agreement. ”
15. In the said case, the tenant was prepared to execute the tenancy agreement with the landlady. But, the landlady, without giving reasonable time, rushed to the Court by misusing the provision. But, in the case on hand, the landlady did not want to continue the tenancy with the tenant for certain valid reasons. In fact, the revision petitioner/tenant has taken a stand that he does not accept the title of the respondent/landlady and hence, there is no question of entering into a tenancy agreement with her.
16. The contention of the petitioner/tenant is that after he was inducted as a tenant, the respondent/landlady settled the 13/21 https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 property in favour of a third party and hence, she is no more the owner of the property.
17. Per contra, the respondent/landlady stated that she settled the property in question in favour of her son by retaining life interest and hence, she is entitled to receive the rent.
18. It is to be noted that neither the son of the landlady nor any other third party has set any rival claim for the rent from the petitioner/tenant. In fact, the revision petitioner/tenant himself was paying the rent to the respondent/landlady and he had invited her attention to carry out certain repairs in the demised premises. Having accepted the respondent as the landlady, the petitioner/ tenant had chosen to deny her title just in order to wriggle out of the legal consequences.
19. It is pertinent to refer to the reply notice of the respondent/landlady dated 09.10.2019, which was sent in response to the notice sent by the petitioner/ tenant on 23.08.2019. In which, the respondent/landlady categorically 14/21 https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 made her intention that the petitioner/tenant cannot claim the right of holding over in view of enactment of the New Act and hence he has to hand over possession of the demised premises. When there are no mutually agreed terms, there cannot be any agreement at all.
20.The innovative steps that have been taken to regulate the tenancy agreement between the tenant and the landlord cannot be viewed as an implied acceptance to continue the tenancy even after expiry of the term of the tenancy. If the landlady conveys her intention that she does not intend to renew the tenancy agreement, that would only mean that the tenancy agreement was brought to an end and it is terminated.
20. In fact, it is the landlady, who has to call upon the tenant to come forward to execute the written tenancy agreement and on his refusal, the ground under Section 21(2)(a) of the Act should be invoked. Such an act on the part of the respondent/landlady can be expected only if the respondent/landlady prefers to extend the tenancy after expiry of 15/21 https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 the period. So, the mandate for written tenancy is just to inculcate compliance of the terms of contract. If a tenancy agreement is entered into between the landlord and the tenant for any specific period and if landlord continues to allow the tenant to remain in the demised property with an intention to renew the tenancy, the landlord is at liberty to call upon the tenant to execute a written tenancy agreement. But, such a situation will not arise in those cases where the landlord does not prefer to extend the tenancy but prefers to terminate the tenancy on the expiry of the term. Since the Act does not approve holding over for more than six months, the parties to the tenancy agreement should arrive at a decision either to continue the tenancy or to terminate the same. In case of opting to continue the tenancy, the landlord is at liberty to call upon the tenant to execute a written tenancy agreement and both parties can set out the terms of tenancy in accordance with law.
21. In case the landlord does not opt to extend the tenancy or renew the tenancy after the expiry of the term, no tenant can compel his landlord/landlady either to execute a tenancy 16/21 https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 agreement in his favour or to wait for 575 days for terminating the tenancy agreement by stating that there is no inclination on the part of the landlord to extend the tenancy. A landlord cannot invoke Section 21(2)(a) of the Act to evict a tenant without giving an opportunity to execute a written tenancy; so also, the tenant cannot misuse Section 4(2) of the Act to state that even if a landlord does not want to extend the tenancy and he has to wait for 575 days to approach the Court for seeking eviction.
22. In the case on hand, the petitioner/tenant continues to deny the entitlement of the respondent/landlady and claims that she has no right over the demised premises. However, the landlady in the present case very well falls within the definition of the word 'landlord' under Section 2(c) of the Act.
23. The petitioner/tenant was aware of the execution of the settlement deed by the respondent/landlady in favour of her son, when he filed his counter. Despite the landlady had reserved her life interest in the property, even after she executed the settlement deed in favour of her son and her son also does not 17/21 https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 make any rival claim for rent, the revision petitioner, on his own imagination, denied the right of his landlady and continued to call her as a 'stranger'. But, in all the communications demanding to execute a written tenancy agreement or to undertake repairs in the demised premises, he could only consider her as the landlady.
24. It is alleged by the respondent/landlady that by taking advantage of the execution of the settlement deed in favour of her son, the petitioner/tenant tried to withhold the rent for a few months and such conduct on the part of the revision petitioner, when there is no rival claim for rent, would only show his purposeful denial of title of his landlady. Even though there is no cloud on the title of the respondent/landlady, the revision petitioner/tenant tried to create a cloud by misconstruing certain events that took place in the family of the respondent/landlady. It is clear that so long as the petitioner/tenant is not disturbed from any quarters due to any rival claim, the petitioner need not have withheld the rent to the respondent, whom he knew as his landlady. It is right for the respondent/landlady to claim that the 18/21 https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 petitioner/tenant, due to his previous conduct, is estopped from denying the right and entitlement of respondent/landlady over the demised premises.
25. For the sake of argument, even if the respondent/ landlady does not have title over the demised property and fall outside the definition of 'landlord' under Section 2(c) of the Act, even by being a property manager, she can be construed as a landlady. However, the respondent/landlady has reserved her life interest and hence, she is only a lawful owner of the demised premises. The revision petitioner/ tenant attempts to seek shelter under Section 4(2) of the Act by totally misconceiving its object and impact.
26. It is to be noted that even before filing of the original petition under the Act, the respondent/landlady filed eviction petition under the Old Act for eviction and that would show her intention of not renewing the tenancy. Since the order of the Rent Appellate Tribunal in confirming the order of the Rent Court is in pursuant to the right application of the provisions of the Act 19/21 https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 and its objects, I find no reason for interference.
In the result, this Civil Revision Petition is dismissed. The order of the Rent Tribunal in confirming the order of the Rent Court is upheld. No costs.
10.08.2022 Index: Yes/No Speaking / Non Speaking Order jrs 20/21 https://www.mhc.tn.gov.in/judis C.R.P.1238 of 2022 R.N.MANJULA, J.
jrs To
1. The Registrar, VI Additional City Civil Court, Chennai.
2.The Registrar, XIV Small Causes Court, Chennai.
C.R.P. No.1238 of 2022
10.08.2022 21/21 https://www.mhc.tn.gov.in/judis