Madras High Court
Venkatraman vs Nageswari on 2 September, 2021
C.R.P(MD).No.24 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 02.07.2021
Pronounced on : 02.09.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
CRP(PD)(MD).No. 24 of 2021 and
CMP(MD).No.269 of 2021
Venkatraman : Petitioner / Appellant
Vs.
Nageswari : Respondent / petitioner
PRAYER:- Civil Revision Petition filed under Section 25 of the Tamil
Nadu Buildings (Lease and Rent Control) Act, 1960 as against the order
and decreetal order dated 12.02.2020 passed in RCA.No.7 of 2017 on the
file of Rent Control Appellate Authority (Principal Subordinate Court,
Nagercoil), confirming the order and decreetal order dated 16.03.2017
passed in RCOP.No.5 of 2015 on the file of Rent Control Tribunal
(Principal District Munsif Court, Nagercoil).
For petitioner : Mr.D. Nallathambi
for Mr. R. Murugan
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https://www.mhc.tn.gov.in/judis/
C.R.P(MD).No.24 of 2021
For respondent : Mr. H. Thayumanasamy
for Mr. M. Saravanakumar
ORDER
The Civil Revision is directed against the order passed in RCA.No.7 of 2017, dated 12.02.2020 on the file of the Rent Control Appellate Authority / Principal Subordinate Court, Nagercoil, confirming the order passed in RCOP.No.5 of 2015, dated 16.03.2017 on the file of the Rent Controller / Principal District Munsif Court, Nagercoil.
2. Admittedly, the revision petitioner, who is the appellant / respondent, is the tenant and the respondent / petitioner is the landlord. The respondent has filed a petition in RCOP.No.5 of 2015 against the revision petitioner for eviction on the ground of wilful default in payment of rent under section 10 (2) (1) of the Tamil Nadu Buildings (Lease and Rent Control) Act and for owner's use and occupation under Section 10(3)
(a)(iii) of the said Act.
2/14 https://www.mhc.tn.gov.in/judis/ C.R.P(MD).No.24 of 2021
3. For the sake of convenience and brevity, the parties hereinafter will be referred as per their rank / status before the trial Court.
4. During trial before the learned Rent Controller, the petitioner has examined herself as PW.1 and exhibited 11 documents as Exs.P1 to P11. The respondent / tenant has examined himself as RW.1 and exhibited 3 documents as Exs.R1 to R3.
5. The learned Rent Controller, upon considering the evidence adduced and on hearing the arguments of both sides, has passed an order dated 16.03.2017 holding that the grounds of wilful default in payment of rent and owner's use and occupation stood proved and allowed the eviction petition and thereby, directed the respondent / tenant to vacate the petition mentioned premises within a period of three months from the date of said order. Aggrieved by the said order of eviction, the respondent has preferred the appeal in RCA.No.7 of 2017 on the file of the Rent Control Appellate Authority / Principal Subordinate Court, Nagercoil and the learned Appellate Authority, upon considering the materials produced and on hearing the arguments of both the sides has passed the impugned order dated 12.02.2020 dismissing the appeal and thereby, confirmed the fair and 3/14 https://www.mhc.tn.gov.in/judis/ C.R.P(MD).No.24 of 2021 decreetal order passed by the Rent Controller, dated 16.03.2017. Challenging the dismissal of the appeal, the respondent / tenant has come forward with the present revision.
6. Before entering into the discussion with respect to the merits of the case, it is pertinent to mention that the jurisdiction of this Court under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act is confined to legality, propriety and correctness of the orders of the Court below. Moreover, the power under Section 25 of the said Act is wider than Section 115 of the Code of Civil Procedure, but, it indicates the supervisory power of this Court under Section 25 of the said Act. Even if two views are possible under the same set of facts, this Court exercising the supervisory power cannot substitute its own view so as to interfere with the findings of the Court below.
7. It is pertinent to note that since this Court being the revisional Court should not act as if it was exercising the appellate jurisdiction by appreciating the evidence, weigh the same and by that process come to a different conclusion and reverse a finding of the fact arrived at by the Courts below. It is pertinent to note that power under 4/14 https://www.mhc.tn.gov.in/judis/ C.R.P(MD).No.24 of 2021 Section 25 of the said act is not coextensive with the power of appellate Court. Bearing the above legal position in mind, let us consider the present case.
8. The learned counsel for the respondent / tenant has challenged the orders of the Courts below on the following points / aspects:
(I) The main Original Petition is bad for non joinder of the necessary party.
M/s. Valli Kids Shoppee, a partnership firm is the tenant and that the landlord without impleading the firm and its partners, has only impleaded the respondent herein and that therefore, the Courts below ought to have dismissed the case for non joinder of necessary parties.
(II) The quantum of monthly rent at Rs.30,000/- as alleged by the landlord - not proved.
Though the tenant has proved that the agreed rent was 5/14 https://www.mhc.tn.gov.in/judis/ C.R.P(MD).No.24 of 2021 Rs.12,000/- per month and Rs.18,000/- per month was agreed to be paid for using the left frontage and a portion in the upstairs of the petition mentioned premises and that too for the specific period for seven months, the courts below have erred in deciding that the monthly rent was Rs.30,000/- at the relevant point of time.
(III) Wilful default in payment of rent - not proved. The landlord has herself admitted that she had received Rs.5,00,000/- as advance. She is duty bound to adjust the rents from the advance amount, but, the Courts below have erred in deciding that the tenant has committed default in payment of rent and that since there was no default, the question of wilful default does not arise.
(IV) The claim of the landlord requiring the leasehold premises for her son's own use and occupation – not proved.
Though the tenant has proved that the petitioner is residing at Parakkai and is having possession of upstairs possession in the petition mentioned premises, the Courts below erred in deciding that the claim of 6/14 https://www.mhc.tn.gov.in/judis/ C.R.P(MD).No.24 of 2021 the landlord is bonafide.
9. It is not in dispute that the respondent / tenant is running a shop under the name and style of M/s. Valli Kids Shoppee in the ground floor of the petition mentioned premises. As rightly pointed out by the Courts below, the rent agreement, dated 01.07.2013 under Ex.P2 is shown to have been entered into between the petitioner and the respondent in his individual capacity and not as a partner of the M/s. Valli Kids Shoppe. It is evident from the records that the petitioner has sent two letters dated 12.06.2011 and 01.07.2011 under Exs.P3 and P4 respectively addressed to the respondent as owner of Valli Kids Shoppe. The respondent in his reply under Ex.P5 has nowhere stated that he is not the owner of Valli Kids Shoppe, that he is not the partner of the said firm or that the said partnership firm is the tenant. It is further evident that the respondent, in his reply under Ex.P9, which was sent in response to the letters of the landlord under Exs.P7 and P8, has not stated that the Valli Kids Shoppee is the tenant and he is not the partner of the said firm.
10. As rightly observed by the Appellate Authority, the respondent has given Ex.P11 - consent letter not as a partner of the said 7/14 https://www.mhc.tn.gov.in/judis/ C.R.P(MD).No.24 of 2021 firm but only in his individual capacity. No doubt, the tenant has produced the Certificates of Registration under TNGSA Act and CST Act under Ex.R1 and Ex.R2 to prove that the partnership firm is the tenant in respect of the petition mentioned property. But as rightly pointed out by the respondent side, Exs.R1 and R2 Registration Certificates are shown to be given only for the address 52D K.P. Road and that the Door number of the petition mentioned premises 152 E does not find place in Exs.R1 and R2. There was no explanation for the same. Considering the above, the finding of the Courts below that the respondent is the tenant of the petition mentioned property and not the partnership firm, cannot be found fault with.
11. Admittedly, the tenant has executed a consent letter dated 01.06.2015 under Ex.P11 and whereunder, the respondent has agreed that though the lease period got expired on 31.05.2014 he was permitted to continue in the shop as licensee for a period till 31.12.2014 and for that period, he had also consented to pay a sum of Rs.30,000/- per month. Though the tenant has alleged that he had agreed to pay Rs.18,000/- for using the right and left frontage of the petition mentioned building, he has not produced any other materials or evidence to substantiate the same. But 8/14 https://www.mhc.tn.gov.in/judis/ C.R.P(MD).No.24 of 2021 on the other hand, in Ex.P11 consent letter, he had specifically agreed to pay Rs.30,000/- per month as license fees from 01.06.2014 to 31.12.2014. As rightly pointed out by the petitioner / landlord side, the landlord has not subscribed his signature in the alleged agreement and the respondent alone had executed the said document. Considering the above, the finding of the Courts below that the monthly rent was Rs.30,000/- at the relevant point of time, cannot be found fault with.
12. As rightly contended by the respondent / tenant, the petitioner has herself specifically admitted that she had received Rs. 5,00,000/- from the respondent towards advance. No doubt, since the petitioner has received more than one month rent as advance, she is duty bound to adjust the rents from the advance amount. But, in the case on hand, it is not the case of the respondent that he had sent a letter or submitted any representation requesting the landlord to adjust the rents from the advance. It is pertinent to mention that though the respondent has agreed to pay monthly rent at the rate of Rs.30,000/-, after paying for some months, he has been depositing monthly rent at Rs.12,000/- and thereby, retaining the balance amount by himself. 9/14 https://www.mhc.tn.gov.in/judis/ C.R.P(MD).No.24 of 2021
13. The learned Rent Controller, by observing that rent arrears due was more than the advance amount and that since the respondent has not offered any explanation for not depositing the balance amount of Rs.18,000/-, has specifically held that the tenant has committed wilful default in payment of rent. The learned appellate Authority, by relaying on the Judgment of this Court reported in 2015 (2) CCJD 235 (Muruganandham Vs. P. Raghavan and another and another) has held that the tenant had committed default in payment of rent and the same was wilful.
14. It is the specific case of the petitioner / landlord that herself and her husband are living in the first floor of the petition mentioned premises and their son was doing business earlier at Tiruvandram. As rightly pointed out by the Appellate Court, the petitioner has sent a letter dated 12.06.2011 under Ex.P3 informing the requirement of the building, for her sons business and the respondent in his reply under Ex.P5 has not specifically disputed the same. It is further evident that she has sent another letter dated 15.05.2014 under Ex.P8 reiterating their requirement and the respondent in his reply under Ex.P9 has not disputed 10/14 https://www.mhc.tn.gov.in/judis/ C.R.P(MD).No.24 of 2021 the same. Though the respondent alleged that the petitioner is having residence at Parakkai, he has not produced any evidence to substantiate the same. It is not the specific case of the respondent / tenant that the petitioner is owning any other property in that area, but on the other hand, the respondent's brothers are admittedly running the similar shops in the nearby place and at a distance of 1 ½ Kilometers from the petition mentioned premises. On considering the evidence adduced, the Courts below have rightly held that the claim of the landlord in requiring the petition mentioned properties for the business of her son is bonafide.
15. It is pertinent to note that the rent control petition came to be filed in the year 2015 and eviction was ordered by the rent Controller on 16.03.2017 and thereafter, the Rent Control Appeal was disposed of on 12.02.2020. As rightly contended by the learned counsel for the petitioner / landlord, the respondent / tenant has successfully protracted the proceedings for the past six years and thereby, preventing the old lady from getting the property.
16. Considering the above, the decision of the Courts below in ordering the eviction of the tenant, cannot be found fault with and this 11/14 https://www.mhc.tn.gov.in/judis/ C.R.P(MD).No.24 of 2021 Court is in entire agreement with the findings and there is nothing to interfere with the same. Consequently, this Court concludes that the revision is devoid of merits and the same is liable to be dismissed.
17. In the result, the Civil Revision Petition is dismissed. The revision petitioner / tenant is directed to vacate the petition mentioned premises and hand over the vacant possession to the landlord within a period of one month from the date of receipt of a copy of this order. No costs. Consequently, the connected Miscellaneous Petition is closed.
02.09.2021 Index : Yes : No Internet : Yes : No trp 12/14 https://www.mhc.tn.gov.in/judis/ C.R.P(MD).No.24 of 2021 To
1. The Rent Control Appellate Authority / Principal Subordinate Court, Nagercoil.
2. The Rent Control Tribunal / Principal District Munsif Court, Nagercoil. 13/14 https://www.mhc.tn.gov.in/judis/ C.R.P(MD).No.24 of 2021 K.MURALI SHANKAR,J.
trp Pre-delivery order made in CRP(PD)(MD).No. 24 of 2021 and CMP(MD).No.269 of 2021 02.09.2021 14/14 https://www.mhc.tn.gov.in/judis/