Madras High Court
D. Selvam vs K. Shanmugam on 11 October, 2013
Equivalent citations: AIR 2014 (NOC) 169 (MAD.)
Author: B. Rajendran
Bench: B. Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11-10-2013 CORAM: THE HONOURABLE MR.JUSTICE B. RAJENDRAN C.R.P. (NPD) Nos. 2509, 2510 and 2521 of 2013 D. Selvam .. Petitioner in all the Civil Revision Petitions Versus K. Shanmugam .. Respondents in all the Civil Revision Petitions CRP (NPD) No. 2509 of 2013:- Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act against the Order and Decree dated 06.03.2013 passed in R.C.A. No. 1242 of 2005 on the file of VII Small Causes Judge, Chennai confirming the Order dated 21.10.2005 passed in M.P. No. 512 of 2005 in RCOP No. 1100 of 2005 on the file of the XIV Small Causes Judge, Chennai. CRP (NPD) No. 2510 of 2013:- Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act against the Order and Decree dated 06.03.2013 passed in R.C.A. No. 1317 of 2005 on the file of VII Small Causes Judge, Chennai confirming the Order dated 23.11.2005 passed in RCOP No. 1679 of 2005 on the file of the XIV Small Causes Judge, Chennai. CRP (NPD) No. 2521 of 2013:- Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act against the Order and Decree dated 06.03.2013 passed in R.C.A. No. 149 of 2008 on the file of VII Small Causes Judge, Chennai confirming the Order dated 22.11.2007 passed in RCOP No. 819 of 2007 on the file of the XIII Small Causes Judge, Chennai. For Petitioner : Mr. S. Senthil Nathan in all the Civil Revision Petitions For Respondent : Mr. S. Siva Shanmugam in all the Civil Revision Petitions COMMON ORDER
The tenant is the revision petitioner herein. The respondent is the landlord. The tenant has filed CRP No. 2509 of 2013 against the Order dated 06.03.2013 passed in R.C.A. No. 1242 of 2005 on the file of VII Small Causes Judge, Chennai confirming the Order dated 21.10.2005 passed in M.P. No. 512 of 2005 in RCOP No. 1100 of 2005 on the file of the XIV Small Causes Judge, Chennai.
2. The tenant has filed the second case in CRP No. 2510 of 2013 against the Order and Decree dated 06.03.2013 passed in R.C.A. No. 1317 of 2005 by the learned VII Small Causes Judge, Chennai confirming the Order dated 23.11.2005 passed in RCOP No. 1679 of 2005 on the file of the XIV Small Causes Judge, Chennai.
3. The third case in CRP No. 2521 of 2013 has been filed challenging the Order dated 06.03.2013 passed in R.C.A. No. 149 of 2008 by the learned VII Small Causes Judge, Chennai confirming the Order dated 22.11.2007 passed in RCOP No. 819 of 2007 on the file of the XIII Small Causes Judge, Chennai.
4. By consent of counsel for both sides, the Civil Revision Petitions are taken up for final disposal.
5. It is the case of the landlord/respondent that the tenant/revision petitioner herein was originally inducted in the petition mentioned premises for a monthly rent of Rs.350/- during the year 1997 and the rent was enhanced to Rs.925/- per month. According to the landlord/respondent herein, the revision petitioner was not regular in payment of rent and he is a chronic defaulter. It is also the case of the respondent that While so, it was alleged by the revision petitioner herein that the respondent attempted to disturb his peaceful possession of the petition mentioned premises and on the ground he filed a suit in O.S. No. 1594 of 2003 on the file of the learned XVI Assistant Judge, City Civil Court, Chennai praying to restrain the landlord/respondent herein from dispossessing him except without following the due process of law. In the plaint, the revision petitioner admitted that the rent for the petition mentioned premises per month is Rs.1,000/-. The suit was ultimately dismissed on 25.08.2005.
6. During the pendency of the suit filed by the revision petitioner, the respondent felt that the rent which was paid by the revision petitioner for the petition mentioned premises is not a fair rent and therefore he filed RCOP No. 1132 of 2002 for fixation of fair rent, which was allowed exparte on 11.04.2003 by fixing the fair rent at Rs.4,131/- per month. Subsequently, at the instance of the revision petitioner, the RCOP No. 1132 of 2002 was restored and ultimately, after contest, by an order dated 29.09.2005 RCOP No. 1132 of 2002 was partly allowed fixing the fair rent at the rate of Rs.2,683/-.
7. The respondent has also filed RCOP No. 1156 of 2003 on the ground of wilful default in payment of rent from December 2002 to March 2003 which was allowed during the year 2005. Inspite of the same, since the revision petitioner did not pay the rent, the respondent has initiated Distress Proceedings No. 88 of 2004 for recovery of rent from December 2002 to October 2003. The respondent also issued a notice dated 11.04.2005 calling upon the revision petitioner to clear the arrears of rent.
8. The respondent, contending that the revision petitioner did not pay rent for the subsequent period from November 2003 to May 2005, has filed RCOP No. 1100 of 2005 in which an exparte decree was passed. Based on the same, the respondent initiated Distress Proceedings in DP No. 88 of 2004 for recovery of rent. The respondent also filed M.P. No. 512 of 2005 in RCOP No. 1100 of 2005 under Section 11 (4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter referred to as 'the Act', for recovery of arrears of rent to the tune of Rs.90,882/- towards rent for the period from November 2003 to August 2005 and for payment of future rents. This petition namely MP No. 512 of 2005 was allowed on 21.10.2005 by the learned Rent Controller. As against the Order dated 21.10.2005, the revision petitioner has filed R.C.A. No. 1242 of 2005 before the Appellate Authority and the same was dismissed on 06.03.2013. It is against this order dated 06.03.2013 CRP No. 2509 of 2013 has been filed by the revision petitioner.
9. The second RCOP No. 1679 of 2005 has been filed by the respondent for eviction of the revision petitioner on the ground of wilful default in payment of rent for the period from June 2005 to August 2005. This Original Petition was allowed on 23.11.2005. As against the same, the revision petitioner has unsuccessfully filed R.C.A. No. 1317 of 2005 and the same was dismissed on 06.03.2013, As against the same, C.R.P. No. 2510 of 2013 has been filed by the revision petitioner.
10. While so, the revision petitioner has filed R.C.O.P. No. 819 of 2007 under Section 8 (5) of the Act for depositing the rental arrears into the Court, which was dismissed by the Rent Controller on 22.11.2007 against which he filed R.C.A. No. 819 of 2007 which was also dismissed on 22.11.2007. As against the same, the third Civil Revision Case namely CRP No. 2520 of 2013 has been filed.
11. The learned counsel appearing for the revision petitioner would contend that the respondent has earlier filed RCOP No. 1132 of 2002 for fixation of fair rent which was allowed exparte on 11.04.2003 fixing the fair rent at Rs.4,131/-. Subsequently, at the instance of the respondent, RCOP No 1132 of 2002 was restored and ultimately, after contest, RCOP No. 1132 of 2002 was partly allowed on 29.09.2005 fixing the fair rent only at Rs.2,683/-. As against this, both the revision petitioner as well as the respondent have filed R.C.A. No. 606 and 1018 of 2005 of 2005. While so, pending RCA Nos. 606 and 1018 of 2005, the respondent has filed MP No. 512 of 2005 for recovery of arrears of rent on the basis of the fair rent fixed by the Rent Controller at Rs.4,131/- which was subsequently reduced by the Rent Controller at Rs.2,683/-. Therefore, the rent claimed by the respondent at the rate of Rs.4,131/- is legally not sustainable. In any event, the revision petitioner has filed RCOP No. 819 of 2007 under Section 8 (5) of the Act to deposit the rental arrears into the Court which would show his bonafides. However, RCOP No. 819 of 2007 was dismissed against which RCA No. 149 of 2008 and it was dismissed. Aggrieved by the same, the revision petitioner has filed C.R.P. No. 2520 of 2013.
12. The learned counsel for the revision petitioner would further contend that the revision petitioner had tendered the rent by money order, which were refused by the respondent and therefore, the revision petitioner was constrained to file RCOP No. 819 of 2007 under Section 8 (5) of the Act. While so, the findings of the courts below that the revision petitioner has committed wilful default in payment of rent for various period is not legally sustainable and he prayed for allowing the Civil Revision Petitions.
13. On the contrary, the learned counsel for the respondent would contend that the respondent filed RCOP No. 1100 of 2005 claiming arrears of rent for the period from November 2003 to May 2005. Initially, RCOP No. 1100 of 2005 was allowed exparte, based on which Distress Proceedings were initiated in D.P. No. 88 of 2004 on 19.04.2005 for recovery of rent. Thereafter, the respondent has filed MP No. 512 of 2005 under Section 11 (4) of the Act claiming arrears of rent from November 2003 to August 2005 amounting to Rs.90,882/-. Pending this Rent Control Original Petition, the respondent has also filed RCOP No. 1679 of 2005 for eviction on the ground of wilful default in payment of rent for the subsequent period from June 2005 to August 2005. Thus, the respondent has filed two RCOP Nos. 1100 of 2005 and RCOP No. 1679 of 2005 for eviction on the ground of wilful default in payment of rent for different periods and the rent for the periods covered under the above said RCOP Nos. 1100 of 2005 and 1679 of 2005 remains unpaid till date. Further, the revision petitioner has belatedly filed RCOP No. 819 of 2007 for depositing arrears of rent not at the rate of Rs.325/- and not at the admitted rate of Rs.1,000/-. Therefore, the courts below have taken note of the default committed by the revision petitioner for various period and rightly concluded that the revision petitioner is guilty of non-payment of rent. Therefore, the learned counsel for the respondent prayed for dismissal of the revision petitions.
14. I heard the counsel for both sides and perused the materials placed on record. This case has got a chequered history. The revision petitioner was inducted as a tenant in the petition mentioned premises during the year 1970 for monthly rent at the rate of Rs.350/-. Even as per the admission of the revision petitioner in the plaint filed by him in O.S. No. 1594 of 2003 on the file of the learned XVI Assistant Judge, City Civil Court, Chennai against the respondent herein, the rent was enhanced periodically and at the time of filing the said suit, the rent for the premises in question was Rs.1,000/- per month. The said suit was filed to restrain the landlord/respondent from dispossessing him without following the due process of law.
15. Contrary to his own admission, the revision petitioner would contend that the rent, which was agreed by the landlord and tenant was only Rs.925/-. In these circumstances, the landlord/respondent filed RCOP No. 1132 of 2002 for fixation of fair rent. This Original Petition was allowed exparte on 11.04.2003 fixing the fair rent at Rs.4,131/-. Subsequently, at the instance of the revision petitioner, the exparte order was set aside, RCOP No. 1132 of 2002 was contested by the revision petitioner and thereafter, on 29.09.2005, RCOP No. 1132 of 2005 was allowed fixing the rent at Rs.2,683/- per month.
16. After disposal of the Petition for fixation of fair rent in RCOP No. 1132 of 2002 on 29.09.2005, the respondent filed RCOP No. 1100 of 2005 for eviction of the revision petitioner on the ground of wilful default in payment of rent from November 2003 to May 2005.. Pending RCOP No. 1100 of 2005, the respondent filed M.P. No. 512 of 2005 under Section 11 (4) of the Act claiming arrears of rent to the tune of Rs.90,882/- for the period from November 2003 to August 2005 and for future rents. The rent was claimed at the rate of Rs.4,131/- per month because, at that time, Rent Control Appeal was filed by the revision petitioner and it was pending in which there was no interim stay granted by the appellate Court.
17. The respondent also filed RCOP No. 1679 of 2005 for eviction on the ground of wilful default in payment of rent from June 2005 to August 2005. In the meantime, as against the order fixing fair rent on 29.09.2005 in RCOP No. 1132 of 2002, both the respondent as well as revision petitioner have filed R.C.A. Nos. 606 and 1018 of 2005.
18. By an order dated 21.10.2005, in MP No. 512 of 2005, the learned Rent Controller allowed the petition and directed the revision petitioner to pay Rs.20,350/- into Court towards rent for the period from November 2003 to August 2005 at the rate of Rs.925/- on or before 07.11.2005. As against this order, the revision petitioner filed R.C.A. No. 1242 of 2005 and on its dismissal, he filed CRP No. 2509 of 2013.
19. Pending R.C.A. No. 1242 of 2005, the respondent filed M.P. No. 92 of 2006 under Section 11 (4) of the Act for recovery of rental arrears for the period between September 2005 and January 2006 at the rate of Rs.925/-. This petition was allowed after contest on 31.10.2006 directing the revision petitioner to pay Rs.4,625/- to the respondent herein.
20. It is seen from the records that both the Rent Controller as well as the Appellate Authority have carefully analysed the period of default committed by the revision petitioner and held that the contention of the revision petitioner relating to quantum of rent is contrary to his own pleadings made in the suit in O.S. No. 1594 of 2003. Both the courts below have analysed the evidence of the revision petitioner in the cross-examination wherein he has deposed as follows:-
$%d; 2005 Kjy; Mf!;l; 2005 tiu thliff;fhf kDjhuh; ,k;kDit jhf;fy; bra;Js;shh;/ Mdhy; ehd; khj thlif U:gha; 350-? tPjk; ,d;iwa njjp tiu kDjhuhplk; bfhLj;Js;nsd;/ ,Jtiu kDjhuh; vd; kPJ 3. 4 tHf;Ffs; jhf;fy; bra;Js;shh;/ mt;thW tHf;FfSf;F gpwF thlifia kzpahh;lh; K:ynkh. O/O/ K:ynkh. Fhnrhiy K:ynkh mDg;gpnddh vd;why; mDg;gtpy;iy/
21. Therefore, the courts below found that the respondent admitted that the rent per month was Rs.1,000/- per month but he has filed R.C.O.P. No. 819 of 2007 to deposit rent only at the rate of Rs.350/- per month. The courts below also found on appreciation of evidence that the revision petitioner did not produce any documentary evidence to show that rent was sent by him by money order or demand draft. Therefore, the courts below are justified, on the basis of the evidence available on record, that the revision petitioner has committed wilful default in payment of rent, which finding does not call for any interference by this Court.
22. In so far as the RCOP No. 819 of 2007 filed by the revision petitioner herein under Section 8 (5) of the Act is concerned, both the courts below have concurrently held that though the revision petitioner admitted that the rent was Rs.1,000/- per month, the rent was paid only at the rate of Rs.925/- per month, which is evident from the notice dated 05.04.2007 marked as Ex.R4 i n RCOP No. 819 of 2007. However, in RCOP No. 819 of 2007, the revision petitioner averred that the rent for the petition mentioned premises is only Rs.350/-. The courts below also held that the revision petitioner has intentionally sent money order only at the rate of Rs.350/- per month and therefore, both the courts below are right in rejecting such a contention urged on behalf of the revision petitioner.
23. It is evident from the above pleadings that the revision petitioner/tenant approbates and reprobates. As pointed out by the courts below, the revision petitioner has not come to the Court with clean hands for which both the courts below have given reasons. It is to be mentioned that in the suit filed in O.S. No. 1594 of 2003, the revision petitioner admits that the monthly rent is only Rs.1,000/- per month. In the pleadings in R.C.O.P. No. 1132 of 2002 filed by the respondent, the revision petitioner pleads that the rent is not Rs.1,000/- but only Rs.925/-. Whereas, in the pleadings in R.C.O.P. No. 819 of 2007 filed under Section 8 (5) of the Act, the revision petitioner claims that the rent per month is only Rs.350/- per month, which amount is being paid by him periodically either by money order or demand drafts. Such a contention of the revision petitioner to approbate and reprobate cannot be entertained besides that the courts below have given a finding on fact that the revision petitioner has not produced any documentary evidence to prove that he had sent the rent either by money order or demand draft. The revision petitioner therefore lacks bonafides.
24. As mentioned above, the respondent has filed RCOP No. 1132 of 2002 for fixation of fair rent in which an exparte order was passed on 11.04.2003 fixing the fair rent at Rs.4,131/- per month. Subsequently, at the instance of the revision petitioner, the RCOP No. 1132 of 2002 was restored and after contest, RCOP No. 1132 of 2002 was allowed on 29.09.2005 fixing the fair rent at Rs.2,683/-. Now, it is contended by the revision petitioner that the landlord claimed arrears of rent at the rate of Rs.4,131/- per month which is unsustainable and the fair rent fixed was only Rs.2,683/-. Though the respondent claimed rent only at the rate of Rs.4,131/- the learned Rent Controller passed an order in M.P. No. 512 of 2005 dated 21.10.2005 directing the revision petitioner to pay Rs.20,350/- only into the Court for the period from November 2003 to August 2005 at the rate of Rs.925/- per month. The revision petitioner has not admittedly complied with the order. The Appellate Authority also taken into consideration that the fair rent proceedings initiated by the respondent was pending at that time in R.C.A. Nos. 606 and 1018 of 2005 respectively filed by both sides, directed the revision petitioner to pay the rent only at the rate of Rs.925/- per month while passing an order in M.P. No. 92 of 2006 in R.C.A. No. 1242 of 2005.
25. It is not the case of the revision petitioner that he has deposited the admitted rent into the Court. It is also not the case of the revision petitioner that he has filed any document to show that he sent the rent by money order of demand draft etc., as claimed by him. The only contention of the revision petitioner is that he has filed R.C.O.P. No. 819 of 2007 under Section 8 (5) of the Act to prove his bonafides and that was not considered by the Court below. It is seen from the records that R.C.O.P. No. 819 of 2007 filed by the revision petitioner was dismissed by the learned Rent Controller on 22.11.2007 on the ground that the revision petitioner has not come forward to tender the admitted rent into the Court. The appeal filed thereagainst in R.C.A. No. 149 of 2008 was also dismissed by the Appellate Authority, against which C.R.P. No. 2520 of 2013 has been filed by the revision petitioner. Thus, it is evident that the revision petitioner, as a tenant, has not fulfilled his statutory obligation to pay the rent month after month inspite of successive petitions filed by the respondent herein under Section 8 (5) of the Act and obtained a direction against the revision petitioner for payment of arrears of rent. In these circumstances, this Court is of the view that the revision petitioner is a chronic defaulter in payment of rent and he deserves no indulgence by this Court.
26. It is argued on behalf of the revision petitioner that even as early as on 16.11.2002, the revision petitioner had sent a legal notice calling upon the respondent to name a bank and branch to deposit the rental amount, but the respondent has not furnished the details sought for. If that be so, the revision petitioner could have sent the rent by money order or deposited the rent into the Court. The revision petitioner did neither. As pointed by the courts below, the revision petitioner has not produced any evidence to show that he had sent the rent by money order or by any other mode and the proof of payment of rent is on the revision petitioner.
27. The courts below pointed out that in RCOP No. 819 of 2007 filed by the revision petitioner Ex.R2, a letter dated 13.08.2006 addressed by the counsel for the revision petitioner to the counsel for the respondent was marked as a document in which the revision petitioner has clearly admitted that the rent is only Rs.925/- per month. Further, in the notice dated 05.04.2007, Ex.R4, the revision petitioner admitted that the rent is Rs.925/-. However, even according to the revision petitioner, he paid the rent only at the rate of Rs.350/- per month and therefore, the courts below are right in holding that the revision petitioner is guilty of default in payment of rent, which default is wilful and deliberate.
28. In this context, it is necessary to refer to the pattern of default committed by the revision petitioner in payment of rent. The respondent has filed R.C.O.P. No. 1156 of 2003 claiming that the revision petitioner did not pay the rent from December 2002 to March 2003. R.C.O.P. No. 1100 of 2005 was filed by the respondent for the period of default in payment of rent between November 2003 to May 2005. M.P. No. 512 of 2005 in RCOP No. 1100 of 2005 was filed by the respondent for recovery of arrears of rent from November 2003 to August 2005. R.C.O.P. No. 1679 of 2005 was filed by the respondent for wilful default in payment of rent from June 2005 to August 2005. The respondent also filed R.C.O.P. No. 2246 of 2005 contending that the revision petitioner committed default in payment of rent during September and October 2005. The respondent also filed M.P. No. 92 of 2006 in R.C.A. No. 1242 of 2005 for recovery of rent for the period from September 2005 to January 2006. Inspite of all these proceedings initiated by the respondent, the revision petitioner has not chosen to pay the rent for various period and therefore, definitely, he could be ranked as a chronic and wilful defaulter in payment of rent and on this ground, he is liable to be evicted.
29. The learned counsel for the respondent relied on the decision of this Court reported in (M/s. Jagal Priya Medicals vs. Mangammal, rep by her power agent Mrs. V. Kanchana) 2010 5 Law Weekly 1009 wherein, this Court held it is the duty of the tenant to pay the rent regularly and he cannot wriggle out of his iliability on the ground that the landlord/landlady refused to receive the rent or evaded to receive the rent. It was further held that Affirmanti, non neganti incumbit probatio The burden of proof lies upon him who affirms, not upon one who denies. This Court also pointed out that "Affirmantis est probare" he who affirms must prove. This decision squarely applies to the facts of this case. In this case, the revision petitioner merely asserts that he had sent the rent by money order or demand draft, but he never produced any proof to substantiate such assertion. Therefore, the burden is heavy on the part of the revision petitioner to prove that he has paid rent to the respondent and that he is not guilty of any breach in payment of rent. Such burden has not been proved by the revision petitioner to the satisfaction of this Court and therefore, the revision petitions are liable to be dismissed.
30. The learned counsel for the revision petitioner made a futile attempt by contending that the revision petitioner has deposited a sum of Rs.16,059/- in to the Court on 15.09.2010 and this shows his bonafides. Even this itself would prove that the revision petitioner was in arrears of payment of rent and that the revision petitioner is not in the habit of paying the admitted rent month after month as and when it becomes due, but he would tender the rent only in lumpsum.
31. For all these reasons, I do not find any reason to interfere with the orders passed by the Courts below. Accordingly, all the Civil Revision Petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
11-10-2013 rsh Index : Yes Internet : Yes To
1. The VII Small Causes Judge Small Causes Court, Chennai
2. The XIV Small Causes Judge Small Causes Court, Chennai
3. The XIII Small Causes Judge Small Causes Court, Chennai B. RAJENDRAN, J rsh C.R.P. (NPD) Nos. 2509, 2510 and 2521 of 2013 11.10.2013