Madras High Court
Umrao Bai vs Dhanalakshmi Ammal And Others on 13 April, 1989
Equivalent citations: AIR1990MAD245, AIR 1990 MADRAS 245
ORDER
1. This revision pennon has been directed against R. C. A No 1586 of 1981 on the the of the Appellate Authority. Court of Small Causes. Madras. The petitioner herein is the landlady and the respondent are the tenants. The petition mentioned building onginally belonged to one Mahabooba Bi and rent used to be collected by her agent named Alla Baksha. The first respondent was the actual tenant and the second respondent was a sub-tenant. The second respondent has been acting as the agent ol the first respondent, claiming to he the head of the family. A registered will was executed by the said Mahabooba Bi on 9-4-1976 under which the petition premises was bequeathed to her daughter by name Fathima Bi. Subsequently, the petitioner purchased the same under a sale deed dated 27-6-1979. According to her the first respondent was a tenant paying a monthly rent of Rs. 125 - and the second respondent is her uncle and agent of the first respondent. The third respondent occupying a portion of the building is a sub-tenant. Soon after the purchase, the petitioner gave the notice dated 2-7-1979 to the respondents requesting them to attoin their tenancy in her favour. The second respondent claimed that he was not a tenant. Again another notice was sent by the petitioner on 4-12-1979 to the respondents requesting them to vacate the premises as she required it for demolition and reconstruction. The respondents did not pay any rent. Yet another notice was sent on 2-7- 1980. Even then the rents were not paid. The first respondent sent a reply in which she slated that she was not at all a tenant under the petitioner and that the third respondent was her sub-tenant. A final notice was issued by the petitioner on 19-9-1980 giving time till 31-10-1980 to vacate the premises As the respondents failed to do so. the petitioner filed the petition H. R. C. No. 632 of 1981 for eviction on the grounds of wilful default and for requirement tor demolition and re-construction it was contended by the peti-tioner that the petition premises is a very old one and is in a dilapidated condition. The second respondent filed a counter affidavit resisting the application on the ground that the rent was out. Rs. 60 - per month and not Rs. 125 - per month. It was, however, contended that the salt to the petitioner by Fathima Bi is not valid and that the alleged will was not probated. He went to the extent of slating that no title vested in the vendor and therefore, she cannot pass any title to the petitioner. According to him the petition premises is in a sound state and does not require any demolition. He referred to the earlier proceedings In H. R. C. No. 684 of 1975, The said counter affidavit was adopted by the other respondents.
2. Learned Rent Controller, on a consideration of the evidence adduced before him, came to the conclusion thai there was no wilful default, since the respondents 1 and 2 deposited the amount in a bank and after the e\iction petition was filed the same was withdrawn and deposited to the credit of the rent control petition. However, it was held that the quantum of rent was Rs.80/- per month and not Rs. 125 - per month as claimed. In these circumstances, the Rent Controller held that there was no wilful default on the part ot the respondents. As regards demolition and reconstruction learned Rent Controller held that the petitioner has not established that it is an old building requiring demolition and therefore, landlady is not entitled to ask for demolition on that ground. As against the said order, the petitioner preferred an appeal in R. C. A. No. 1586 ot 1981 before the Appellate Authority, Madras. During the pendency of the appeal certain additional documents were filed by the petitioner to prove the age of the building and the demand made by her for payment of the rent, Similarly, the respondents filed a certificate from the bank to show that they had account in the said bank. After considering the evidence already on record, and additional evidence adduced by the parties the Appellate Authority confirmed the findings of the learned Rent Controller and dismissed the appeal. Aggrieved against-the said decision, the present revision petition has been filed by the landlady.
3. Learned counsel appearing for the petitioner contended that the sale deed Ex.P.I was executed on 2-7-1979 by one Fathima Bi, who had demed absolute title from her mother Mahabooba Bi. He pointed out that, even before the said sale deed, the other heirs of Mahabooba Bi had executed a registered release deed dated 27-3-1976. Therefore, there can be no doubt as to the title of the landlady to the petition premises. It is further submitted that whatever might be the doubt prevailing, originally, the tenants were not justified in refusing to pay the rents after the notice was issued by the landlady. Learned counsel contended that ample evidence had been let in to show the age and condition of the building and the authorities below were not justified in negativing the said condition solely on the ground that no expert witness was examined in this regard.
4. In reply to the said contentions learned counsel lor the respondent submitted that in so far as payments of rents are concerned, the respondents 1 and 2 had deposited the amounts in a separate bank account and paid the rents regularly. This was done since they were not in a position to know to whom they should pay the rents. He also pointed out that soon after the filing of the petition, the amount was withdrawn and deposited into court and therefore, the non-payment of rent for a particular period cannot be construed as wilful default, in the real sense, by the tenant. As regards the other ground of requirement for demolition and reconstruction he submitted that the sale deed Ex. P.1 itself would show the age of the building as 40 years and therefore, the authorities below are justified in refusing to grant any rebel on that ground.
5. 1 have carefully considered the submissions made on behalf of the parties. 1 find that the authorities below have concurrently held that there was no wilful default omitting to consider one vital fact. They proceeded on the basis that the respondents were not in a position to know who the tenants (sic) were and therefore they were justified in depositing the amount in a bank account. The authorities below look it for granted thai rents were regularly deposited in the Dank account. But as a matter of fact, it is not so. As regards wilful default committed by the respondents Ifind that the petitioner has amply proved that she had demanded attornment of tenancy in her favour and payment of rents to her as per the notice Ex. P.2 dated 2-7-1979 Ex. P.6 dated 4-12-1979 and the subsequent notices referred to above. I find that a crisp reply was sent by the respondent sunder Ex. P. 10 stating that they are not the tenants under the petitioner. This shows that the respondents had vehemently denied the title of the petitioner and the relationship of landlady and tenant between the parties. If. really the respondents had any doubt over the title of the petitioner they could have called for further particulars from the petitioner. The only ground on which the rents were not paid by them is ihat apart from the vendor Fathima Bi. there were seven other heirs left behind by the original owner Mahabooba Bi. If only they had asked for such particulars the petitioner would have certainly informed them that other heirs had already executed a registered release deed as early as in the year 1976. Having not done so, it was not open to the respondents to keep quiet and deposit the amount in a bank. I find there is absolutely no justification for doing so. Even assuming for argument sake that the respondents had a doubt as to the person to whom they should pay the rent, they ought to have followed the procedure contemplated under Section 8 or 9 of the Rent Control Act. Instead of doing that, they claimed to have deposited the amount in a bank. Even here, I find that it is not possible to accept their plea. Apart from the interested oral evidence they have relied upon a certificate obtained from the bank which has been marked as Ex. R.4. A perusal of the said certificate shows that the respondents 1 and 2 had a joint savings bank account with the bank and the same was closed in the year 1981. Apart from that no other particulars are there to show when the account was opened and on what dates the rents were deposited into the bank In the absence of such particulars it is not possible for the courts to come to a conclusion that the, respondents had deposited rents every month within the due date. Therefore, I do not find any justification for the conclusions armed by the authorities below to the effect that by depositing the amount into the bank they have established their bona fides in not paying the amount to the petitioner. It is significant that even after the specific demand made by the petitioner by issuing registered notice, the respondents did not choose to pay the rents to the petitioner by depositing the amounts before the learned Rent Controller. Even if such a deposit can be taken as sufficient compliance I find it difficult to accept the same since the lactum of deposit of every months rent was not brought to the notice of the petitioner. For all these reasons I find that the findings of the authorities below on the question of wilful default suffer from a grave infirmity as they have failed to consider the relevant facts and they have failed to exercise their jurisdiction in a proper manner. Therefore, there is no difficulty in holding that the respondents have committed wilful default in payment of the rent.
6. In so far as the second ground is concerned both the authorities below have found that there is no sufficient evidence to come to the conclusion that the building is an old and dilapidated one. It has been pointed out that Ex. E.I itself shows that age of the building is 40 years. It is true that a notice issued by the Corporation has been filed, during the pendency of the proceedings, to show that the Corporation has called upon the petitioner to demolish the building. Admittedly, no disinterested witness has been examined to prove the age and condition of the building. The authorities below have found that the petitioner ha;, possessed of sufficient means to put up a const ruction. The petitioner has filed certain sale deeds, during the pendency of the appeal, to show that the building is aged more than 40 years. However, no evidence was let in at this stage and therefore it is not possible for this Court to go into this matter, for it is necessary to give an opportunity to the parties to let in evidence in this regard. Apart from that, since I have already decided on the first point that the respondents are liable to be evicted on the ground of wilful default, it is not necessary to give a finding on this aspect.
7. In the result, this revision petition is allowed and the orders of the authorities below are set aside and an order of eviction is passed against the respondents. There will be no order as to costs. Learned counsel for the respondents submitted that the respondents 1 and 3 have been in possession of the building for a long time and it is not possible for them to secure alternate accommodation immediately. I find that, considering the peculiar facts of the present case they are entitled to a reasonable time for eviction for which learned counsel for the petitioner has no objection. Therefore, the respondents will have six months time to vacate the petition premises and put the petitioner in possession of the same.
8. Petition allowed.