Madras High Court
K.N. Ramakrishnan And Brothers And Ors. vs Thammaraj on 31 October, 1990
Equivalent citations: (1992)1MLJ30
ORDER Somasundaram, J.
1. The second respondent and the legal representatives of the first respondent in R.C.O.P. No. 204 of 1977 on the file of the Rent Controller, Nilgiris, are the petitioners in the Civil Revision Petition. The petitioner in the said R.C.O.P. is the respondent in this civil revision petition. For the sake of convenience, the parties are referred to in this revision by the nomenclature given to them in the Rent Control Original Petition.
2. The petitioner filed R.CO.P.No.204 of 1977 against the petitioner for eviction under Sections 10(2)(i) and 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960) (hereinafter referred to as 'the Act'), for evicting the respondents from the petition mentioned premises on the ground of wilful default in the payment of rent and for own use and occupation. The case of the petitioner is as follows: The petitioner became the owner of the petition mentioned premises by virtue of the sale deed dated 30.5.1977 executed by one Vedavalli Am-mal. When the respondents were tenants of the residential portion except one room, the respondents were paying rent of Rs. 75 per month, to the original landlady, Vedavalli Ammal. The original rent fixed was Rs. 55 per month and it was subsequently increased to Rs. 75 per month from 1.6.1973. The respondents were in wilful arrears of rent of Rs. l,720upto 30.4.1977. Thereafter, from 1.6.1977 to 30.9.1977 for four months the respondents did not pay Rs. 300 to the petitioner. The petitioner's vendor had collected the arrears due upto 30.4.1977 viz., a sum of Rs. 1,720 from the petitioner. The respondents are liable to pay Rs. 2,020 to the petitioner as arrears of rent upto 30.9.1977 which the respondents have failed and neglected to pay the petitioner inspite of demands. The default in the payment of rent is deliberate and wilful. The respondents resisted the application for eviction contending as follows:
The house in question was only a farm house with door numbers 260-A and 260-B. The rent payable was only Rs. 55 per month and not Rs. 75 as claimed by the petitioner. The respondents were cultivating the land and they are entitled to the protection of the Cultivating Tenants' Protection Act. The respondents were paying municipal tax up to 1.8.1979. Only a sum of Rs. 210 was due to the previous landlady, Vedavalli Ammal. The respondents paid Rs. 1,635 as property-tax and, therefore, there is no arrears and, as a matter of fact, the respondents have made an excess payment of Rs. l,150,33. The petitioner would be entitled to get possession of the petition mentioned premises only on payment of Rs. 33,000 spent by the respondents for improvement of the petition mentioned building.
3. The Rent Controller, on a consideration of the evidence on record, came to the conclusion that the rent payable by the respondent was only Rs. 55 per month and not Rs. 75 that the respondents were not entitled to Rs. 33,000 towards the expenses incurred for improving the petition mentioned building; that there was wilful default in payment of rent; and that the petitioner was not entitled to evict the respondents on the ground of requirement for own use and occupation, on the finding that the respondents committed wilful default in the payment of rent for the period from 19.8.1976 to 30.5.1977, the Rent Controller allowed the petition and ordered eviction. As against the order of the Rent Controller the respondents filed an appeal, R.C.A.No.132 of 1984 on the file of the Appellate Authority, Ootacamund. The appellate Authority confirmed the findings of the Rent Controller and dismissed the appeal. Aggrieved by the order of the Appellate Authority the respondents have filed the present civil revision petition.
4. The question that arises for consideration in this civil revision petition is whether the respondents committed wilful default in the payment of rent for the period from 19.8.1976 to 30.5.1977.
5. Ex.A-31 is a sale deed dated 30.5.1977 executed by one Vedavalli Ammal in favour of the petitioner. Ex.A-5 is the receipt issued by the husband of the vendor, Vedavalli Ammal on behalf of the vendor in favour of the petitioner. Ex.A-5 shows that the vendor Vedavalli Ammal received a sum of Rs. 1,720 being the arrears of rent due from the respondents in respect of the petition mentioned property for the period up to 30.4.1977. Ex.A-1 is the notice dated 31.5.1977 issued by the vendor Vedavalli Ammal to the first respondent with a copy to the petitioner informing the first respondent that she had sold the petition mentioned property top the petitioner and that on 30.5.1977 she collected a sum of Rs. 1,720 being the arrears of rent from the petitioner and directed the first respondent to pay the said sum of Rs. 1,720 to the petitioner.
6. Mr. Mohamed Mustafa, learned Counsel for the respondents would contend that Ex.A-5 cannot be relied on for the purpose of showing that the petitioner has paid the arrears of rent upto 30.4.1977 to his vendor; that under Exs.B-18 and B-19 series the respondents paid the house-tax for the petition mentioned property to the municipality, that the house-tax paid by the respondents were not given credit to while calculating the arrears of rent and settling the account under Ex.B-10 on 19.8.1976, and that if the house-tax paid under Ex.B-18 and Ex.B-19 series are given credit to, the respondents will not be in arrears of rent at all. There is no merit in the above contention of the learned Counsel for the respondents. As per Ex.B-18 series, the total tax amount paid comes to Rs. 950 Ex.B-18 and B-19 series also show the payment of tax for the period prior to 19.8.1976 viz., the settlement of accounts under Ex.B-10. It will be seen from Ex.B-10 that on 19.8.1976 the accounts between the petitioner's vendor Vedavalli Ammal and the first respondent was settled and a sum of Rs. 2,090 was arrived at being due to the original landlady from the first respondent. Towards the sum of Rs. 2,090 payable by the respondents to Vedavalli Ammal a sum of Rs. 1,780 was given credit to on 19.8.1976 in Ex.B-10 and Ex.B-20 shows that the balance payable to the vendor Vedavalli Ammal by the first respondent was Rs. 310 as on 19.8.1976. The case of the petitioner that the sum of Rs. 1,780 given credit to in Ex.B-10 on 19.8.1976 included the house-tax paid under Exs.B-18 and B-19 series has to be accepted in view of the fact that the house-tax under Exs.B-18 and B-19 series were paid to the municipality prior to 19.8.1976. In those circumstances the Rent Controller and the Appellate Authority rightly found that the respondent committed default in the payment of rent for the period from 19.8.1976 to 30.5.1977.
7. Learned Counsel for the respondents further contended that even assuming that the respondents were in arrears of rent for the period from 19.8.1976 to 30.5.1977, and failed to pay the same to the petitioner's vendor, on transfer of the petition mentioned property under Ex.B-31 to the petitioner and on payment of the said arrears by the purchaser to the vendor, such arrears of rent loses the character of rent becomes a debt or actionable claim and in such circumstances, the petitioner can only fine a suit for recovery of the arrears of rent and he cannot file a petition for eviction under Section 10(2)(i) of the Act on the ground that the respondents committed wilful default in the payment of rent. In other words, learned Counsel contended that the default in the payment of rent was only to the previous landlady who sold the property to the petitioner and the petitioner, who is the present landlord cannot take advantage of the default in the payment of rent to the previous landlady and seek eviction of the tenant on the ground of arrears of rent due and payable to the previous landlady. The above contention of the learned Counsel for the respondents cannot be countenanced having regard to the definition of 'landlord' contained in Section 2(6) of the Act, which reads as follows:
Landlord includes the person who is receiving or is entitled to receive the rent of a building. Whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant." The definition of 'landlord' in Section 2(6) shows that it includes a person among others who is entitled to receive rent for the building. By virtue of the inclusive definition in Section 2(6) if the petitioner is entitled to receive the rent of the building, he satisfies the definition of 'landlord'. Under Ex.A-5, the petitioner has paid the arrears of rent due from the respondents to his vendor Vedavalli Ammal. The petitioner's vendor issued a notice Ex.A-1 to the first respondent stating that he is liable to pay the arrears of rent, collected by her from the petitioner under Ex.A-5 to the petitioner. The petitioner has thus become a person entitled to receive the rent of the building in question and thus he satisfies the requirement of definition in Section 2(6) of the Act. On a plain reading of Section 10(2)(i) it is clear that the arrears of rent contemplated by Section l0(2)(i) is arrears of rent due by the tenant in respect of the building. The provision does not say or require that the arreard of rent should be due to a particular landlord. The requirement, is that the tenant should not have paid or tendered any rent due by him in respect of a building. Therefore, in my opinion, the petitioner herein is entitled to file the application for eviction of the respondents on the ground mentioned in Section 10(2)(i).
8. In Appa Rao v. Salimunissa Bibi 1955 A.L.T. 795, Viswanatha Sastri, J., had to consider a case similar to the one before me under the Madras Buildings (Lease and Rent Control) Act XXV of 1949. The question was posed by the learned Judge as follows:
Whether the default of the tenants in payment of the rent due to a previous landlord would enable a subsequent purchaser from him to evict the tenant under Section 7(2)(1) of the Act even though the rent payable by the tenant to the purchaser was not in arrear.
In that case, the learned Judge pointed out that nothing in the wording of Section 7(2)(1) of that Act compels the view that the arrears should have been the rents due to the landlord who applies for eviction after his purchase from the previous landlord and that Section 7(2)(1) does not insist or require that the arrears should have been due to the applicant. It is sufficient that the rent had not been paid or tendered by the tenant within 15 days of the expiry of the time fixed in the agreement of tenancy with his landlord. The landlord referred to might be either the applicant or the person who happened to be the landlord at the time when the rent fell into arrears. The learned Judge further pointed out that the right to evict an erring tenant is not a personal right peculiar to a landlord so as to be unavailable to his heir or legatee or a purchaser from him. The learned Judge observed that while Section 7 allowed a person to continue in possession in derogation of the ordinary law. It also provided certain conditions subject to which alone the statutory tenancy could be held. For a tenant to be able to avail himself of the benefit of the Act in respect of the building the occupancy of which he desires to retain there must have been at all times even during the time of the predecessor-in-title of the present landlord a fulfilment of the conditions of the tenancy in respect of the payment of rent within the time prescribed. Nonpayment of rent within the time prescribed in Section 7(2)(1) is a ground for eviction of the tenant and the statutory tenancy stands terminated by such non-payment. The learned Judge also opined that there was nothing in the language of Section 7(2)(1) which compels one to uphold that the default in payment of rent under Section 7(2)(1) is limited in its effect so as to be available only to the person who at the time of the default, was the landlord. It was also stated in that judgment that the right to evict the tenant is not a personal right which could be exercised only by the landlord to whom the arrears of rent was due is one available to a subsequent transferee of the house from previous landlord.
9. In S. Krishna Reddy v. Venkata Reddy (1977) 2 An. W.R. 187, the Andhra Pradesh High Court, while dealing with the contention of the tenant in that case that there was an extinguishment of arrears of rent due to the previous landlord by reason of the assignment of the arrears of rent by the previous landlord in favour of his purchaser and that those arrears would just become a debt, has observed as follows:
While that may be the position under the general law, we are, in this case, concerned with the position as obtained under a special act, namely, the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act of 1960. The question before me is to be considered in the light of Section 10(2)(i) read with the proviso and the definition of the landlord contained in Section 2(vi) of the Act. As a result of the above discussion on the point raised before me I am of the view that the landlord in this case is an assignee from the previous landlord of the arrears of rent apart from his being as owner of the premises and that the requirements for eviction of the tenant are fulfilled under Section 19(2)(i) read with the proviso also. The petition for eviction is maintainable at the instance of the present landlord.
10. In S. Krishna Reddy v. Venkata Reddy (1977) 2 An. W.R. 187, the learned Judge also referred to the case Cham Bala Das v. Madhusudhan A.I.R. 1956 Cal. 170, wherein P.N.Mukherjee, J., had considered a similar case which arose under Section 14(3) of the West Bengal Premises Rent Control (Temporary Provisions) Act XVII of 1950. In that case which arose out of a suit filed under the Act, the suit property was purchased by the plaintiff from the previous owner and the suit for eviction was filed against defendant No. l - tenant. In para 12 at page 171 it was observed:
It may be that the rent for the first half of March, 1951 was really payable to the plaintiffs transferor Sahajadi Begum, who was the previous landlord but that, as held by me in the recent case of Mammatha Nath Foardar v. Sasanka Mohand Guha 96 Del. L.J. 53 (a), would not make any difference and that default also would be available to the transferee landlord, namely, the present plaintiff.
The decision reported in Ram Prakash Ghat v. Karamchand , relied upon by the learned Counsel for the respondents is not at all helpful to the respondents and in fact that decision was also considered in S. Krishna Reddy v. Venkata Reddy (1977)2 An. W.R. 187.
11. Dealing with a similar situation under the provisions of the Cultivating Tenants' Protection Act, Ramachandra Iyer, C.J., in Karuppanna Ambalam v. Agni Ambalam (1962)75 L.W. 30, held that when once the statutory protection of a tenant to remain in possession of the property is lost, that can also be taken advantage of by the purchase of property who would be entitled to maintain an application for eviction of the tenant. Therein, the learned Judge has observed thus:
It would follow that the purchaser of the property would be entitled to maintain an application for eviction of the tenant who has disentitled himself to continue in possession of the land and to the protection afforded to him under Section 3(i) of the Cultivating Tenants' Protection Act by reason of default in payment of rent to his former landlord (the predecessor-in-interest).
It would follow that the subsequent purchaser from the original landlord can take advantage of the default of the tenant in the payment of rent due to the latter....The right to evict under the Act is given to a landlord who should be a person entitled to evict the tenant. Implicit in it is the requirement that he should be the landlord of the entire holding in respect of which there is arrears of rent payable.
As a result of the above discussion on the point raised before me, I am of the view that the petitioner, who is a purchaser of the demised premises from the original landlady and who had cleared the arrears of rent payable by the respondents (tenants) to the original landlady is entitled to file the application for eviction of the respondents under Section 10(2)(i) of the Act on the ground of arrears of rent due and payable to the previous landlord.
12. Learned Counsel further contended that even assuming without admitting that there is default on the part of the respondents in the payment of rent for the period in question, such default of the respondents is not wilful and, therefore, the petitioner is not entitled to an order of eviction. In support of the above contention learned Counsel relied upon the decisions reported in A. Durairaj v. Union of India (1983) 1 M.L.J. 1, The Management of Indian Bank v. Tamil Nadu Banks Deposit Collectors Union (1983) 1 L.L.J. 4, Durairaj v. P.M.S. Rathana Bai (1967)1 M.L.J. 324, V.R.Kumaraswami Mudaliar v. P.M. Radha-krishnan 92 L.W. 77 and T.S.Rajagopal v. M.N. SaraswathiAmmal 90 L.W. 26. There is no merit in this contention of the learned Counsel for the respondents also. From 19.8.1976 till the filing of the petition for eviction there was no payment of rent by the respondents. In the reply notice Ex. A-4, the first respondent took the stand that the petitioner is not entitled to evict the respondents without paying a sum of Rs. 33,000 spent by him for the improvements effected in respect of the petition-premises. The Rent Controller and the Appellate Authority rightly found that the respondents failed to prove that a sum of Rs. 33,000 was spent for effecting improvements to the building in question. Even after the notice Ex.A-3, the respondents have not paid the arrears of rent. In these circumstances, the Rent Controller and the Appellate Authority rightly found that the default committed by the petitioner in the payment of rent for the period from 19.8.1976 to 30.5.1977 is wilful. There is no infirmity in the said findings of the authorities below as they are based on evidence. The principles laid down in the decision relied upon by the learned Counsel for the respondents on this aspect will not apply to the facts of the present case. There are no merits in the civil revision petition and the same is liable to be dismissed. Accordingly, the civil revision petition is dismissed. No costs.
Somasundaram, J.
Mr. K.A. Md. Mustafa, appearing for the respondents/tenants, requests one year's time for vacating the premises. Taking into consideration the facts and circumstances of the case, the respondents are granted nine months' time to vacate the premises, on condition that the respondents file an affidavit within four weeks from today undertaking to vacate the premises after the expiry of the period of nine months granted above.