Madras High Court
K.Selvaraj vs Caroline Sojasingarayar on 16 August, 2013
Author: K.Ravichandrabaabu
Bench: K.Ravichandra Baabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :- 16 .08.2013 Coram The Hon'ble Mr. Justice K.RAVICHANDRA BAABU C.R.P.(NPD) No.4046 of 2010 and M.P.No. 1 of 2010 K.Selvaraj ... Petitioner Vs. Caroline Sojasingarayar ... Respondent Civil Revision Petition filed against the judgment and decree dated 8.7.2009 made in R.C.A No.4/2008 on the file of the III Additional District Judge, Pondicherry against the order dated 24.10.2007 made in H.R.C.O.P.No.4 of 2003 on the file of the Rent Controller, Pondicherry. For Petitioner :- Mrs.N.Mala For Respondent :- Mr.D.Bharatha Chakravarthy for M/s. Sai Bharath & Ilan ORDER
The petitioner is aggrieved against the concurrent order of eviction passed by both the courts below on the ground of wilful default and owner's occupation.
2. The respondent herein is the landlady. She filed H.R.C.O.P.No. 4 of 2003 on the file of the Rent Controller, Pondicherry seeking eviction of the petitioner herein on the ground of wilful default and owner's occupation.
3. It is her case that the petitioner took the premises on lease from 1st March 2001 on a monthly rent of Rs.2,400/- by paying an advance amount of Rs.15,000/-. The lease was only for a period of 11 months and a lease deed was also entered into between the parties on 28.2.2001. The demised premises is the only property which belongs to the landlady. After completion of the period of 11 months, the petitioner herein did not vacate nor paid the monthly rent from the month of February 2002. She is residing with her son in a house owned by him. In order to settle down at France, her son sold the said house and therefore she wants the petition premises for her own occupation. Thus, on these two grounds she filed the above petition for eviction.
4. The petitioner herein as the respondent therein denied the 'landlord-tenant' relationship. It is his case that the respondent /landlady executed an agreement of sale on 20.10.2001 to sell the petition premises to the petitioner and in pursuant to such sale agreement only, the petitioner entered into the premises and he is in possession and occupation of the same as the agreement holder in terms of the said agreement. It is his further case that the total consideration for sale was fixed as Rs.6 lakhs out of which he paid a sum of Rs. 2 lakhs as advance to the respondent herein. It is also pleaded by him that he spent a sum of Rs.50,000/- towards the cost of the repair of the property. Thus, he denied any liability to pay rent and also denied that the landlady's requirement on the ground of owner's occupation is not with any bonafide. He specifically denied the execution of the lease deed dated 28.2.2001.
5. The learned Rent Controller pointed out that the petitioner herein though filed applications seeking the opinion of the expert to establish that the lease agreement marked as Ex.P1 is a forged document, has, however, not shown any interest to pursue the applications in spite of granting numerous adjournments and opportunities fore that purpose. Thus, the learned Rent Controller came to the conclusion that the petitioner herein had failed to establish that his possession over the petition mentioned property is in the capacity as an agreement holder . Consequently, he found that non-payment of rent is wilful. In so far as the other ground of owner's occupation is concerned, the Rent Controller observed that the landlady is not owning any other premises other than the petition building and it is also not the case of the petitioner herein that the landlady is owning any other building. Consequently, the learned Rent Controller found that the landlady had proved her requirement under Section 10(3)(a)(i) of the Pondicherry Buildings (Lease and Rent Control) Act and allowed the eviction petition on both grounds.
6. The petitioner filed an appeal before the learned Appellate Authority in R.C.A.No. 4 of 2008. The Appellate Authority confirmed the finding of the Rent Controller and dismissed the appeal by holding that the petitioner herein has not proved that his possession is in the capacity of agreement holder. The Appellate Authority had also gone to the extent of holding that there are gross and critical variations in the signature of the landlady found in Ex.R1 with that of her admitted signatures in Exs. P1 and P4. Therefore, the Appellate Authority found that the petitioner herein committed wilful default in payment of rent and the respondent landlady is also justified in seeking the premises on the ground of owner's occupation. Hence this Civil Revision Petition.
7. Heard the learned counsel appearing for the petitioner and the respondent.
8. It is contended by the learned counsel for the petitioner that both the Courts below erred in shifting the burden on the petitioner to disprove the relationship. Once the petitioner disputed the lease agreement as forged document, it is the bounden duty of the respondent to prove the relationship. The documents were not sent for expert's opinion only due to the apprehension in the mind of the petitioner that the same will be lost if it is sent out of court. When the relationship is disputed, then there is no liability to pay rent and consequently there is no wilful default. She further submitted that Ex.P2 notice did not claim any rental arrears. In respect of the ground of owner's occupation, it is the contention of the learned counsel that there is no bonafide as even according to the landlady she wanted to settle at France, as could be seen from the sale agreement. She further contended that the landlady also had given an advertisement to sell the property. The learned counsel also pointed out that the landlady had admitted during her cross examination in the other suit filed by the petitioner for specific performance that the petitioner herein is residing in the premises from October 2001. Therefore, the learned counsel submitted that the concurrent findings of the authorities below have to be set aside or in the alternative the matter may be remitted back to the Court below for fresh consideration of both the documents under Exs.P1 and R1.
9. Per contra, the learned counsel appearing for the respondent/landlady submitted that non-mentioning and claiming the rental arrears in Ex.P2 notice is only an omission. Even though the tenant filed two applications for seeking expert opinion in respect of Ex.P1 document, he has not taken any steps further to proceed with those applications which shows that he has no case and his denial of executing Ex.P1 is an utter falsehood. Thus, he submitted that the concurrent findings rendered by the Courts below do not warrant any interference. In support of his submissions, he relied on the decision of the Apex Court reported in 2004 (1) SCC 12 ( Citi Bank N.A. Vs. Standard Chartered Bank and Others).
10. He further submitted that the petitioner had already filed three suits one for declaring the lease deed dated 28.2.2001 as null and void; the second one for specific performance of agreement of sale dated 20.10.2001 and the third one for recovery of a sum of Rs.7 lakhs. He further submitted that the suit in O.S.No. 4 of 2005 filed for specific performance and the suit in O.S.No. 2 of 2011 for recovery of money are pending, whereas the suit in O.S.No. 513 of 2009 seeking to declare the lease deed dated 28.2.2001 as null and void came to be dismissed on 4.10.2010. Thereafter, the restoration application filed by the petitioner was also dismissed against which the petitioner filed C.M.A.No. 1 of 2012 and the same is pending.
11. From the above narrated facts and circumstances as well as by considering the respective pleadings and contentions of the parties and also that of their respective learned counsels', the following issues arise for consideration in this Civil Revision Petition:-
1. Whether the relationship of landlady and tenant existed between the parties ?
2. If such relationship existed , whether the concurrent orders of eviction passed by the courts below on the ground of wilful default and owner's occupation needs any interference by this Court ?
12. The petitioner is admittedly in possession and enjoyment of the petition mentioned premises. He claims that his possession is in pursuant to an agreement of sale dated 20.10.2001 marked as Ex.R1, said to have been executed by the respondent/landlady herein. On the other hand, it is the contention of the landlady that the petitioner is the tenant who was put in possession of the petition mentioned property in pursuant to the lease agreement dated 28.2.2001 marked as Ex.P1. Both the parties deny their respective signatures in both the documents viz., Exs.P1 and R1. In other words, the petitioner denies his signature under Ex.P1 while the respondent denies her signature under Ex.R1.
13. At this juncture, it is to be noted that the petitioner is not disputing the title and ownership of the respondent landlady over the petition mentioned property. On the other hand, he admits that she is the owner of the property and further contends that he had entered into an agreement of sale with her under Ex.R1. Once ownership of the respondent/landlady is admitted by the petitioner, then, certainly, the burden is on him to show and prove as to under what capacity he is holding the possession of the premises , if he is not the tenant, as contended by him. His possession must be either in the capacity as a tenant or otherwise when admittedly, he is not the owner of the premises. When he claims that he is not the tenant, then he should prove that his possession is only in pursuant to an agreement of sale under Ex.R1 as contended by him. The landlady denied the execution of Ex.R1 sale agreement. Equally, the petitioner denied the execution of Ex.P1 lease deed. When both these documents were marked before the Court below, certainly the burden is heavily on the petitioner to prove his capacity in holding possession as agreement holder and not as a tenant. It appears that the petitioner did not take any steps to discharge such onus by sending those documents for expert's opinion. On the other hand, even though he had taken out applications for such purpose before the Rent Controller, he has not proceeded further to send those documents for expert's opinion. Now before this Court, the petitioner attempts to explain the reason for not sending those documents for expert's opinion. First of all, such explanation at this belated stage cannot be accepted. It is contended that the documents may be lost if they are sent out of court. This is stated as reason. I am unable to accept the same as it is purely an imaginary and an after thought attempt.
14. The learned Rent Controller has specifically observed that the petitioner herein though filed petition to examine the revenue authorities to show that he had signed in Tamil in the enumeration form, has not chosen to examine such revenue authorities. The Appellate Authority has specifically pointed out that the petitioner though filed petitions for summoning the handwriting/ finger print experts to examine the genuineness of the signature in Ex.P1 and Ex.R1 and even though the said petitions were allowed, he has not chosen to proceed further. Therefore, an adverse inference has to be drawn against the petitioner in respect of his contentions on those two documents. Even assuming that the respondent has not proved Ex.P1, since the petitioner disputes his signature therein, in my considered view, even in the absence of Ex.P1, the very possession of the premises with the petitioner would naturally lead to the reasonable presumption that the relationship of landlady and tenant is existing between the parties, in the absence of any other contradictory evidence produced and proved. As already pointed out the petitioner failed to establish and prove Ex.R1 sale agreement. Thus, in the absence of any other materials, the relationship between the parties has to be held as landlady and tenant only. Even assuming that Ex.R1 is a genuine document, that issue has to be gone into and decided only by the Civil Court in the suit in O.S.No. 4 of 2005 filed for specific performance. Till it is decided so, the petitioner cannot dispute his status as tenant and deny to perform his duties and obligations as tenant. Therefore, I hold that the petitioner is the tenant and the respondent is the landlady in respect of the petition mentioned property .
15. At this juncture, it is useful to refer to the decision of the Apex Court reported in 2004 (1) SCC 12 ( Citi Bank N.A. Vs. Standard Chartered Bank and Others) wherein it is held thus:
"37. This passage was cited with approval of this Court in Biltu Ram Vs. Jainandan Prasad (C.A.No. 941 of 1965) and again in Gopal Krishnaji Ketkar V. Mohd. Haji Latif in which it was held : (AIR page 1416 para 5) " Even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof."
16. It is further to be noted that before filing the eviction petition, the landlady issued a notice to the petitioner herein under Ex.P2 dated 22.11.2002, calling upon him to vacate and hand over vacant possession. Admittedly, the said notice was received by the petitioner and he has not chosen to send any reply immediately. Thereafter, the eviction petition was filed on 6.1.2003 and the summon was served on the petitioner by fixing the hearing date as 7.2.2003. Therefore, it is clear that the petitioner is aware of the pendency of the rent control proceedings as on 7.2.2003. However, he has chosen to send Exs.P5 and P6 letters to the landlady only on 10.2.2003 i.e. after coming to know about the filing of the RCOP. Through those two letters, the petitioner claimed as though his possession in the premises is in the capacity of the agreement holder. If really he is holding the possession as an agreement holder, I failed to understand as what prevented him from sending a reply to Ex.P2 immediately. Therefore, the Appellate Authority has rightly doubted the issuance of Exs.P5 and P6 letters and found it as an after thought.
17. Under these circumstances, let me consider the ground of wilful default. In this case, the respondent landlady before filing RCOP, issued a notice under Ex.P2 dated 22.11.2002 and thereafter filed the eviction petition on 6.1.2003 on the ground of wilful default and owner's occupation. A perusal of the notice Ex.P2 would show that there was no whisper about any arrears of rent payable by the petitioner. On the other hand, she wanted the petitioner to vacate the premises and hand over the same for her own occupation. Even in the last paragraph of the said notice, the landlady directed the tenant to hand over possession after receiving the interest free advance from her. Thus, it is clear that while issuing Ex.P2 notice on 22.11.2002, the landlady has not stated anything about the arrears of rent as claimed by her in eviction petition. Had there been really any arrears, she would have certainly stated so in the said notice. Though the learned counsel for the landlady submitted that it is only an omission, in my considered view, that cannot be ignored like that. When the landlady has chosen to file the eviction petition within few days from the date of issuance of such notice, where she has specifically stated as though there were rental arrears, then not mentioning the same in the said notice under Ex.P2 would certainly draw an inference that there is no truth in such claim. If no such notice was issued at all, then this inference may not arise. Thus, the respondent is not justified in claiming the eviction on the ground of wilful default. Therefore, I am of the view that both the Courts below have concurrently erred in ordering eviction on the ground of wilful default.
18. Then, let me consider the ground of owner's occupation. A perusal of the petition filed by the landlady would show that she had specifically pleaded that she is not owning any property other than the petition mentioned property. The said fact is not disputed by the petitioner. She has also stated that her son has settled down at France after disposing of the property where she was residing with him. The said fact is also not disputed by the petitioner. On the other hand, it is his case that the landlady is also going to settle at France along with her son and that is why an agreement of sale came to be executed. When the petitioner has not proved the execution of Ex.R1 sale agreement, any recital made therein cannot be relied on. Therefore, the landlady had proved the mandatory requirement under Section 10(3)(a)(i). Both the Courts below have concurrently found that the landlady had proved bonafide requirement on the ground of owner's occupation . In the absence of any contra materials placed or pleaded by the petitioner/ tenant, I hold that the order of eviction passed on the ground of owner's occupation concurrently by the Courts below does not require interference by this Court.
19. Needless to say that it is open to the parties to contest the suits filed by the petitioner herein on merits and in accordance with law and any observations or findings rendered in these proceedings should not influence the mind of the Court which deals with those civil suits. Accordingly, the Civil Revision Petition is dismissed. The petitioner / tenant is given three months' time to vacate and hand over vacant possession to the respondent/ landlady. Consequently, the connected M.P. is closed. No costs.
16.08.2013 Index:Yes/No Internet:Yes/No krr/ K.RAVICHANDRABAABU,J.
krr/ To
1. The III Additional District Judge, Pondicherry
2. The Rent Controller, Pondicherry.
Pre-Delivery Order in
C.R.P.(NPD) No. 4046 of
2010
Dated:- 16.08.2013