Madras High Court
Poorman'S Depot Registration Firm By ... vs P.R.M.A. Krishnan on 20 January, 1997
Equivalent citations: (1997)2MLJ467
JUDGMENT K. Govindarajan, J.
1. The above revision petition is filed by the tenant who failed before both the authorities below.
2. The respondent/landlord filed a petition in R.C.O.P. No. 8 of 1988 on the file of the Rent Controller (Additional District Munsif, Tuticorin) on the ground of wilful default in payment of rent. He requires the building for his own occupation to start his commission business. It is the case of the respondent that he is the owner of the premises in question and the petitioner is a tenant under the respondent occupying the premises on a monthly rent of Rs. 200 per month. In R.C.O.P. No. 116 of 1984 filed by the petitioner herein before the Rent Controller, Tuticorin, the Rent Controller has order the petitioner herein to deposit the rent into court continuously without fail. It is the further case of the respondent herein that in spite of the court orders, the tenant has not deposited the rent into court from July, 1987 onwards till date of the petition, namely, November, 1987. It is his further case that the landlord requires the premises to do his business as partner with his son Adhimuthu. On the basis of these averments, the landlord filed the petition to vacate the tenant from the premises bearing Door No. 17, Meenakshipuram, Ward No. 18, Tuticorin.
3. The petitioner - tenant contested the petition by filing a counter stating that as there was dispute regarding the ownership, a petition in R.C.O.P. No. 116 of 1984 was filed to deposit the rent and the same was allowed and the tenant had been regularly depositing the rent into court and the landlord has also drawn the same. There was a delay in getting challan and so the tenant had deposited the rent at a time in a lump sum. The rent from July, 1987 has been regularly deposited. It is the case of the tenant that the requirement of the premises for the landlord's own use and occupation is not correct.
The landlord examined himself as P.W. 1 and one Anthonysapn as P.W. 2. The tenant examined one Sundararajan as his witness as R.W. 1. The landlord and tenant marked documents in support of their respective contentions. The Rent Controller after discussing the oral and documentary evidence and appreciating the arguments of the respective counsel, found, on the basis of Ex. A-2 that the petitioner before him is the owner of the property, that the tenant has committed wilful default in payment of rent and that the requirement of the building for the occupation of the landlord is a bona fide one. In the basis of these findings, the Rent Controller ordered eviction of the tenant from the promises in question but granted three months time to hand over possession. The petitioner/tenant filed an appeal in R.C.A. No. 14 of 1990. The learned appellate authority confirmed the findings of the trial Court and dismissed the appeal. Aggrieved against these orders, the petitioner/tenant has filed the above revision petition.
4. The learned Counsel for the petitioner submitted that in view of the fact that there was a dispute regarding the ownership of the property, a petition in R.C.O.P. No. 116 of 1984 on the file of the Rent Controller, Tuticorin, and, on that basis, the learned Counsel submitted that the petition is not maintainable at the instance of the respondent, in the absence of any consent from the other persons who are also claiming right in the property, or impleading them as respondent in the petition. In support of her submission, she relied on Ex. A-1 to contend that the Rent Controller would not have allowed the petition under Section 9 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, unless there is a dispute regarding the title. To sustain her argument, she relied on the judgment of the Supreme Court reported in SK. Sattar SK. Mohd. v. Gundappa Amabadas . Regarding the ground under Section 10(2)(i) of Act, the submission of the learned Counsel is that the tenant has deposited the entire amount, and P.W. 2 himself has admitted such deposit and that the subsequent defaults if any cannot be taken into consideration to come to the conclusion that the tenant has committed wilful default. With respect to the other ground, namely, owner's occupation, the learned Counsel for the petitioner submitted that the requirement as alleged by the landlord is not a bona fide one, and the landlord has not substantiated the reason given on that ground.
5. To meet these arguments, the learned Counsel for the respondent/landlord submitted that the tenant has not raised any dispute about the title of the landlord with respect to the premises in question except the vague averment to the effect that the respondent/landlord has to establish his ownership rights. The fact that the alleged rival owners had not contested the application filed in R.C.O.P. No. 116 of 1984 would clearly show that no other person has interest in the property. He further submitted that any co-owner accepting the case of the tenant with respect to the ownership can sustain the petition for eviction. Regarding the ground of wilful default, the learned Counsel for the respondent submitted that the authorities below verified Ex. A-2 and came to the conclusion that the rent for July, 1987 was not paid in time and even for other months the tenant has not deposited the rent in time. The learned Counsel for the respondent brought to my notice that even pending the revision petition, his client was able to get rent only after filing petitions for direction to deposit the rent, and all these factors will clearly prove the supine indifference of the tenant in payment of rent. With respect to the other ground, namely, owner's occupation, the learned Counsel for the respondent submitted that accepting the reasonings and appreciating the evidence available on record, the authorities below concurrently found that the requirement of the landlord for his own occupation of the petition property is a bona fide one and that the same be assailed in, the revision petition.
6. On the basis of the submissions made by the respective counsel, the following points have to be decided in this revision:
(1) Whether the petition for eviction at the instance of the respondent herein is maintainable?
(2) Whether the requirement of the landlord of the petition premises for his own occupation is a bona fide one?
(3) Whether the tenant has committed wilful default in payment of rent as alleged by the landlord?
7. Point No : 1 : It is the case of the tenant that there is a doubt about the ownership and so the respondent herein cannot sustain the petitioner for eviction without getting consent from the other persons interested in the property or without impleading them as respondent in the petition. In support of her submission, the learned Counsel for the petitioner sought to rely on Ex. A-1 and the Judgment reported in SK. Sattar SK Mohd. v. Gundappa Amabadas , as mentioned above. Before considering Ex. A-1, and the above mentioned judgment of the Supreme Court, it is necessary to point out the tenant has not specifically stated in the counter that the landlord has no right in the property, or who are the other persons claiming ownership in the property. But the only averment in the counter is that the landlord has to establish his ownership right. Such an averment is as vague as possible. In the absence of specific averment in the counter, the tenant cannot be allowed to raise an objection regarding the maintainability of the petition filed by the landlord on the ground that he is only a co-owner. Even in Ex. A-1, the Rent Controller appreciated the fact that under the Will, the respondent herein has got the property in question and he paid the property tax on the basis of demand raised on him. Even on an earlier occasion, in R.C.O.P. No. 43 of 1985 it was held that under the Will the property in question is vested in the respondent herein. But the tenant alleged that somebody, other than the petitioner, demanded the rent with respect to the premises in question. The court allowed the petition only on the basis of the vague averment alleged by the tenant, though the court had sufficient material to hold that the respondent herein is entitled to receive the rent as he got the property under the Will which has been marked as Ex. A-2 in the present case. The Judgment reported in SK. Sattar SK. Mohd. v. Gundappa Amabadas , as mentioned above, relied on by the learned Counsel for the petitioner cannot be made applicable to the facts of the present case. In that judgment it was admitted that properties have been specified with respect to each owner. Further, in that judgment, the Supreme Court has held as follows:
It is obvious that the law with regard to the splitting of tenancy is not what the High Court has set out in the impugned Judgment. As pointed out earlier, a co-sharer cannot initiate action for eviction of the tenant from the portion of the tenanted accommodation nor can be sue for his part of the rent. The tenancy cannot be split up either in estate or in rent or any other obligation by unilateral act of one of the co-owners.
If, however, all the co-owners or the co-lessors agree among themselves and split by partition the demised property by metes and bounds and come to have definite, positive and identifiable shares in that property, they become separate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/lessor.
In the present case no other person admittedly is having right in the property and except the vague statement of the tenant, there is no evidence or document available before the court that some other person is claiming right against the landlord.
8. It is necessary to extract the definition 'landlord' as defined under Section 2(6) of the Act, which is 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.
On a reading of the abovesaid Section, it is clear that the person who is receiving or is entitled to receive the rent of the building is the landlord entitled to file a petition for eviction. In this case, admittedly, the respondent herein permitted to receive the rent given by the Rent Controller in R.C.O.P. No. 116 of 1984 and thereafter even in the present proceedings.
9. Even according to the tenant, the respondent herein is the co-owner and, even then, a co-owner is as such as the owner of the entire property as any sole owner of the property, and the co-owner is the owner of the premises. In similar matter the Supreme Court reported in Kantha Goel v. B.P. Pathak and Ors. , that the absence of the other co-owners on record would not disentitle one of the co-owners from suing for eviction. In the present case, the landlord has produced Ex. A-2 will to prove his right atleast prima facie, to the building in question. Even in Ex. A-1 the Rent Controller has discussed on the basis of the documents regarding the right of the landlord with reference to the building in question. In view of the abovesaid discussion, the objection raised by the counsel for the petitioner/tenant regarding the first point cannot be countenanced at all.
Regarding the requirement of the landlord for the owner's occupation, both the authorities below have found that the requirement is a bona fide one. This finding has been given after discussing the evidence on record. The authorities below have applied their mind regarding the bona fide intention of the landlord and his requirement. The learned Counsel for the petitioner is not in a position to persuade me to take a different view. So, the order of eviction passed by the authorities below on that ground is sustained. The point is answered accordingly.
10. Though I need not go into the third point regarding the eviction on the ground of wilful default, I would like to decide that issue also. It is the case of the landlord that the tenant has not paid the rent from July, 1987 till the date of petition, i.e., November, 1987. Contrary to this submission, the learned Counsel for the petitioner submitted that the rent has been deposited regularly in R.C.O.P. No. 116 of 1984 and it has been admitted by P.W. 1. I have gone through Ex. B-2 which clearly shows that for the month of July, 1987 no deposit had been made. Even for the other months, the deposit had been made once in two or three months. No deposit had been made regularly. It is represented that even pending revision petition, the respondent/landlord was compelled to file petitions for direction to get the rent. Having filed the petition to deposit the rent, the tenant should have deposited the rent regularly and even for the period mentioned in the eviction petition, namely, July, 1987 to October 1987 by the amount was deposited only on 15.12.1987 that too, only for months August to October, 1987. The conduct of the petitioner cannot be construed differently, than that of wilful as he is in habit of payment of rent irregularly. I am unable to agree with the contention that the subsequent act of irregularity in payment of rent may be a cause of action to file another petition for eviction and the same cannot be a relevant factor to decide whether the tenant has committed wilful default during the period in question. I am not deciding the issue only on the basis of the irregular payment of rent during the period subsequent to the filing of the petition. The fact remains, the tenant continued to be in default in payment of rent. The tenant is bound to pay the rent regularly as agreed. The subsequent conduct of the tenant can be taken into account to come to a conclusion whether there was any supine indifference on the part of the tenant in payment of rent during the relevant period. The evidence available on record would prove that the tenant was in the habit of paying the rent irregularly. There is no wrong in taking into consideration of the cumulative effect of the conduct of the tenant in payment of the rent to assess the nature of default. The appellate authority has applied his mind with respect to the documents and evidence to come to the conclusion that the tenant has committed default in payment of rent wilfully. In the circumstances of the case and on the basis of the evidence of record, I am not in a position to take a different view.
11. In the result, this revision petition is dismissed. No costs.
12. After delivering the order, the counsel for the petitioner/tenant requested time to vacate the premises : Though the counsel for the respondent resisted, ultimately agreed for the grant of three months' time. Time is granted to vacate the premises, on condition that the tenant should file an affidavit of undertaking within two weeks from today, that the petitioner will vacate the premises within the period of three months from today, failing which the order of eviction already passed, will come into force immediately.