Madras High Court
K.Selvaraj vs J.Narayanan on 28 January, 2008
Author: A.C.Arumuga Perumal Adityan
Bench: A.C.Arumuga Perumal Adityan
In the High Court of Judicature at Madras Dated :: 28.01.2008 Coram The Honourable Mr. Justice A.C.ARUMUGA PERUMAL ADITYAN C.R.P. (NPD) Nos.787 and 788 of 2006 and C.M.P.No. 6583 and V.C.M.P.No.380 of 2006 - - - - K.Selvaraj ... Petitioner in both the C.R.Ps. v 1.J.Narayanan 2.J.Deepa ... Respondents in both the C.R.Ps. Civil Revision Petitions filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 praying to set aside the Common fair and decretal order passed by the learned VIII Judge, Court of Small Causes, Chennai in R.C.A.Nos.994 and 1496 of 2003 dated 16.11.2005, confirming the fair and decretal order passed in R.C.O.P.No. 2227 of 2002 dated 18.07.2003 by the learned Rent Controller (XIV Judge), Court of Small Causes, Chennai and C.R.O.P.No.871 of 2003 by the learned Rent Controller (XII Judge), Court of Small Causes, Chennai. For petitioner : Mr.S.Parthasarathy Senior Advocate For respondent : Mr.Chandra Bose, Advocate --- O R D E R
These two C.R.P.NPDs. had arisen against the common Judgment of the learned Rent control Appellate Authority (VIII Judge), Court of Small Causes, Chennai in R.C.A.No.994 of 2003 and 1496 of 2003. R.C.A.No.994 of 2003 had arisen against the fair and decretal order in R.C.O.P.No.2227 of 2002 on the file of the XIV Judge, Court of Small Causes, Chennai and R.C.A.No.1496 of 2003 had arisen against the fair and decretal order in R.C.O.P.No.871 of 2003 on the file of the learned XII Judge, Court of Small Causes, Chennai.
2. R.C.O.P.No.2227 of 2002 was filed by the landlord under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 (hereinafter referred to as 'the Act') for eviction on the ground that 19 months' rent for the petition scheduled building is in arrears and that the tenant had committed wilful default in payment of rent. Learned Rent controller after hearing the submissions made by the learned counsel for the petitioners as well as the respondent and also after taking into consideration Ex.R.1 the sole document filed in the Rent Control Proceedings on behalf of the respondent therein, had come to a conclusion that the tenant/revision petitioner had committed wilful default in payment of rent for 19 months and accordingly allowed the petition, ordering eviction of the tenant/revision petitioner from the petition schedule building, giving two months' time to vacate and hand over vacant possession of the petition schedule property. Aggrieved by the findings of the learned Rent Controller (XII Judge, Court of Small Causes), Chennai, the tenant had preferred an appeal before the Rent Control Appellate Authority (VIII Judge, Court of Small Causes), Chennai in R.C.A.No.994 of 2003 who, after finding no merits for interference in the findings of the learned Rent Controller, had dismissed the R.C.A.No.994 of 2003 thereby confirming the order of the learned Rent Controller in R.C.O.P.No.2227 of 2002. The Rent Control Appellate Authority had given a month's time for the tenant to vacate and hand over vacant possession to the landlord. Aggrieved by the findings of the learned Rent Control Appellate Authority, C.R.P.No.787 of 2006 has been preferred by the revision petitioner/tenant.
3. R.C.O.P.No.871 of 2003 was filed by the tenant under Section 8(5) of the Act for permitting him to deposit the arrears of rent from January, 2003. The learned Rent Controller, after giving a definite finding to the effect that the arrears of rent is from May 2001, has come to the conclusion that there is no ground for permitting the tenant to deposit rent from January, 2003 and accordingly dismissed the petition filed by the tenant in R.C.O.P.No.871 of 2003. Aggrieved by the findings of the learned Rent Controller, the tenant had preferred R.C.A.No.1496 of 2003 on the file of the VIII Judge, Court of Small Causes, Chennai who after hearing both the R.C.A.Nos.994 of 2003 and 1496 of 2003 jointly, in his common judgment, had dismissed both the appeals. Against the findings of the learned Rent Control Appellate Authority in R.C.A.No.1496 of 2003 the tenant had preferred C.R.P.NO.788 of 2006.
4. The findings of the Courts below in both the R.C.As.are concurrent in nature. Unless it is shown before this Court that the findings of the Rent Control Appellate Authority is perverse and the findings have been given against evidence, this Court, sitting in exercising the powers of revision, cannot interfere with the findings of the Courts below, which is concurrent in nature.
5. Learned counsel for the revision petitioner relying on the decision reported in 2003 (3) CTC 348 (P.M.Punnose v K.M.Munneruddin and others) would contend that in the absence of any demand by way of legal notice as contemplated under the proviso to Section 10(2) (i) of the Act, both the Courts below have erroneously come to the conclusion that the default committed by the tenant as wilful default, which is not permissible under law.
6. The facts of the case in 2003 (3)CTC 348 decided by the Hon'ble Supreme Court are as follows:
The petition was filed under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 for eviction. The learned Rent Controller had allowed the petition evicting the tenant on the ground that he had committed wilful default in payment of rent. The tenant preferred an appeal which was allowed by the Rent control Appellate Authority. The landlord preferred a revision under Section 25 of the Act which has been allowed, setting aside the judgment of the learned Rent Control Appellate Authority, restoring the orders of the learned Rent Controller. Against which, Civil Appeal No.3121 of 2000 was preferred before the Apex Court.
7. The landlord in that case had purchased the suit property from the predecessor-in-title under a sale deed dated 09.01.1987. The appellant/tenant was residing in the building as a tenant from the date of purchase of the building by the landlord on 09.01.1987 for a monthly rent of Rs.400/-. After the purchase of the property by the respondents/landlords, the appellant/tenant was paying rent to the respondents/landlords. The rent for the month January, 1987 was remitted by the appellant/tenant to the landlords who are five in numbers under five money orders at Rs.80/- each. Thereafter, the appellant/tenant was paying the rent to the respondents/landlords through money order at the rate of Rs.400/- to the first respondent. There was some controversy in respect of the exact rent. Even after January, 1987 that is, the purchase of the petition schedule property therein, the tenant was regularly paying the rent to the landlords/respondents through money orders for 17 months. The rent due for September 1988 was also paid by the appellant/tenant and received by the respondents/landlords. Thereafter, the dispute arose between the parties regarding fixation of rent. Before the appellate authority, it was contended on behalf of the tenant that the landlords in that case had not demanded the rent by way of notice and hence the default made by the appellant/tenant in payment of rent cannot be construed as wilful default, since the tenant has all along been paying the admitted rent to the landlords even after their purchase in January, 1987. Only under such context it has been held by the Hon'ble Apex Court as follows:
"14. The explanation appended to sub-section (2) of Section 10 of the Act enacts a rule of evidence. After the issuance of two month's notice claiming the rent, the default by tenant shall be construed as wilful raising a presumption in that regard and it will be for the tenant to show availability of sufficient cause or circumstances beyond his control to escape from the consequence of default. The landlord is not prevented from initiating proceedings for eviction on the ground of default under Section 10(2)(i) of the Act, without serving a notice under the Explanation but in that case it will be for the landlord to make out a case of wilful default by tenant failing which the Controller may exercise his discretion under the proviso giving the tenant a reasonable time, not exceeding fifteen days for payment or tender."
8. But in the case on hand, it is the definite case of the landlord/respondent herein that appellant/tenant is in default of payment of rent from May, 2001 to November, 2002 that is for 19 months. It was contended on behalf of the revision petitioner/tenant herein, before the Court below on the basis of Ex.R.1 notice dated 22.02.2003 that the tenant was in arrears only from December 2002. But a reading of Ex.R.1 notice would go to show that the tenant had demanded that the arrears of rent is to be adjusted towards the advance amount of Rs.20,000/- already paid by the tenant to the landlord at the time of entering into the agreement of tenancy. Only after adjusting the arrears of rent towards the advance amount of Rs.20,000/-, according to the tenant, the arrears of rent will commence from December, 2002. So, inference which can be drawn from Ex.R1 is that there was arrears of rent for a period of 19 months to the tune of Rs.19,000/- and according to the tenant it is to be adjusted towards advance amount of Rs.20,000/- paid by the tenant to the landlord. As correctly observed by the Court below that there is absolutely no evidence or material placed on the side of the tenant to show that he had already paid rent for 19 months ie., from May, 2001 to November, 2002.
9. The other judgment relied upon by the revision petitioner in 1969 M.L.J.reports 137 (S.Venkataramanaswami Ayyar v S.Abdul Wahab (No.2) will not be applicable to the present facts of the case.
10. After admitting the arrears of rent for 19 months, it is not open to the tenant to ask the landlord to adjust the same with the advance amount he had paid, until he vacates and hand over vacant possession of the building to the landlord. Even in Ex.R.1 notice, the stand taken by the tenant is that he is willing to vacate and hand over vacant possession to the landlord.
11. Learned counsel for the respondent/landlord in both the revisions would state that even during the pendency of the appeal, the tenant had paid Rs.8000/- towards eight months arrears of rent upto 22.09.2003, on 22.10.2005. For the subsequent period, that is from November, 2003 to September, 2005 for 23 months, the tenant had paid Rs.23,000/-. But the tenant had not paid the arrears of rent for 19 months from May, 2001 to November, 2002.
12. It is brought to the notice of this Court that as per the order passed by this Court in C.M.p.No.6583 of 2006 in C.R.P. NPD No.787 of 2006 dated 09.01.2008, the tenant had not chosen to deposit the arrears of rent of Rs.19,000/- before the learned Rent Controller to the credit of R.C.O.p.No.2227 of 2002.
13. Learned counsel for the respondent/landlord relying upon the decision reported in 1998 (3) Law Weekly, 159 (B.Anraj Pipada v V.Umayal) would submit that if the tenant fails to pay rent regularly even during the pendency of the eviction proceedings, then the default is to be considered as wilful default. The exact observation of the learned Judge of this Court in the above said dictum relevant for the purpose of deciding this case runs as follows:
" When the eviction proceedings have been initiated on the ground of wilful default, one would expect the tenant to pay the rent regularly every month at least after the initiation of the proceedings. When the tenant has failed to pay the rent regularly even during the pendency of the proceedings, then there is no doubt that his conduct in paying the rent as he likes, will amount to wilful default".. (1997 2 L.W. 501 (Sundaram Steel Co. etc. V S.Lakshmi and 1997 II MLJ, 467 (Poorman's Depot Registration Firm v Krishnan have been referred to).
14. After the Courts below have come to a definite conclusion under Section 10(2)(i) of the Act in R.C.O.P.No.2227 of 2002 that there is wilful default in payment of rent for 19 months, they have rightly dismissed the application filed by the tenant in R.C.O.P.No.871 of 2003 under Section 8(5) of the Act.
15. I do not find any perverseness, or irregularity or illegality in the findings of the Courts below, warranting any interference in these revision petitions by this Court.
16. In fine, C.R.P.NPD Nos.787 and 788 of 2006 are dismissed confirming the Judgment in R.C.A.Nos.994 of 2003 and 1496 of 2003, respectively on the file of the VIII Judge, Court of Small Causes, Chennai. No costs.
Learned counsel for the revision petitioner/tenant submits that the tenant may be given three months' time to vacate and hand over vacant possession. Learned counsel for the respondent/landlord has no objection for granting one month's time for the tenant to vacate and hand over possession of the petition schedule building. Accordingly, the revision petitioner/tenant is given a month's time from today to vacate and hand over vacant possession of the petition schedule building, along with arrears of rent, to the respondent/landlord.
kvsg To
1. The VIII Judge, Court of Small Causes, Chennai
2. The XII Judge, Court of Small Causes, Chennai
3. The XIV Judge, Court of Small Causes, Chennai
4. The Record Keeper, VR Section, High Court, Madras 104.