Madras High Court
M.K.Selvaraj vs Hameed Fathima Ghani on 12 July, 2013
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.07.2013 Coram The Hon'ble Mr.Justice K.RAVICHANDRABAABU C.R.P.(NPD) Nos.1290 and 1291 of 2009 and M.P.No. 1 of 2009 1. M.K.Selvaraj 2. M.K.Jayakodi .. Petitioners in both C.R.P.s M.K.Selvaraj .. Petitioner in C.R.P.(NPD) Nos.1291 of 2009 Vs. Hameed Fathima Ghani .. Respondent in both C.R.Ps Civil Revision Petitions filed against the judgment and decree dated 28.1.2009 made in R.C.A Nos. 1 and 2 of 2008 on the file of the Sub Court, Nagapattinam against the order dated 29.11.2007 made in R.C.O.P.Nos. 17 and 20 of 2005 on the file of the District Munsif Court, Nagapattinam. For Petitioners : Mr.S.Sounthar For Respondent : Mr.Srinath Sridevan COMMON ORDER
C.R.P.(NPD) No.1290 of 2009 The petitioners are aggrieved against the order of eviction. The respondent is the landlady .
2. The respondent /landlady filed R.C.O.P.No.17 of 2005 on the file of the Rent Controller, Nagapattinam seeking for eviction of the petitioners on the grounds of wilful default, act of waste, sub-letting, public nuisance and personal occupation. The learned Rent Controller allowed the petition on the grounds of wilful default, act of waste, sub-letting and public nuisance and however, rejected the same sought on the ground of personal occupation. Aggrieved against the same, the petitioners herein filed appeal in R.C.A.Nos. 1 of 2008 . The Appellate Authority confirmed the order of eviction on the grounds of wilful default, act of waste and sub-letting and however rejected the petition sought on the ground of public nuisance. Aggrieved against the same, C.R.P.(NPD) No. 1290 of 2009 is filed before this Court.
C.R.P.(NPD) No. 1291 of 20093. The petitioner is the tenant. He is aggrieved against the order rejecting his application filed under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act. He filed R.C.O.P.No.20 of 2005 on the file of the Rent Controller, Nagapattinam, seeking for deposit of rent into the court. The learned Rent Controller dismissed the application. Further appeal filed by the petitioner/ tenant in R.C.A.No. 2 of 2008 also met with the same result. Hence, the present Civil Revision Petition in C.R.P.(NPD) No. 1291 of 2009 is filed before this Court.
4. Let us first consider C.R.P.(NPD) No. 1290 of 2009 filed against the order of the eviction. Though the landlady filed eviction petition on five grounds, in pursuant to the orders passed by the learned Rent Controller and the Appellate Authority, only three grounds, viz., wilful default, act of waste and sub-letting are the grounds accepted by the courts below based on which the eviction order was passed against the tenants concurrently. Thus, the following are the issues that arise for consideration in this Civil Revision Petition.
(a) Whether the tenant has committed wilful default ?
(b) Whether the tenant has committed act of waste ?
(c) Whether the tenant has sub-let the premises without the consent of the landlady ?
5. Heard the learned counsel appearing for either side.
6. Regarding the first issue viz., wilful default:-
It is the case of the landlady that the first petitioner herein is the tenant on a monthly rent of Rs.275 /- in respect of the petition mentioned property measuring 150 sq.ft. It is her case that from the month of May 2005 to July 2005 the first petitioner/tenant had committed default in payment of rent and such default is also wilful.
7. The case of the first petitioner /tenant is that the landlady had received an advance of Rs.10,000/- and the same is lying with her. When the first petitioner/tenant attempted to tender the rent in person for the months of May and June, the landlady refused to receive the same. Therefore, he sent it through Money Order on 5.7.2005 and the same was refused to be received. The landlady sent a notice under Ex.R4 on 14.7.2005 intimating the default in payment of rent. To the said notice, the tenant sent a reply under Ex.R5 dated 26.7.2005 calling upon the landlady to give bank details and also enclosed a Demand Draft for Rs.550/- representing two months rent. But the landlady returned the Demand Draft. Consequently, the tenant filed R.C.O.P.No. 20 of 2005 under Section 8(5) of the said Act on 5.9.2005. Therefore, there is no default much less wilful.
8. Learned counsel appearing for the petitioner/ tenant submitted that when the rent for the months of May and June was sought to be paid to the landlady, the same was refused and the money order sent thereafter was also returned. When the tenant further asked the landlady to furnish the bank details through Ex.R5 reply, also by enclosing a demand draft for Rs.550/- the landlady did not furnish those details and also refused to receive the demand draft and returned the same. Consequently, the tenant filed a petition under Section 8(5) on 5.9.2005. Therefore, the learned counsel submitted that the conduct of the tenant would show that there is no wilful default. In support of his submission, he relied on the decision of the Apex Court reported in 1996 (2) CTC 78 ( K.Narasimharao Vs.T.M.Nasimuddin Ahmed) and the decision of this Court reported in 2000 (2) MLJ 202 ( Mahalingam Vs. Pichaiammal).
9. Per contra, the learned counsel appearing for the landlady submitted that the tenant has deliberately not paid the rent for the defaulted period and therefore the authorities below have rightly passed an order of eviction on the ground of wilful default.
10. I have given careful consideration to the submissions made by the learned counsel appearing for both sides as well as the order passed by the authorities below.
11. It is pointed out by the Appellate Authority that even though the rent became payable from the month of April 2005, the tenant has not taken any steps immediately to send the rent through money orders and on the other hand he has sent the same only in the month of July 2005 . It is also pointed out by the Appellate Authority that only after receipt of the notice dated 14.7.2005, the tenant had taken steps to send a reply calling upon the landlady to furnish the bank details. Therefore, the Appellate Authority concurred with the finding of the learned Rent Controller on the ground of wilful default and held against the tenant.
12. I am unable to accept the finding of both the authorities below on the ground of wilful default for the following reasons.
13. First of all it is not in dispute that for a monthly rent of Rs.275/-, an advance amount of Rs.10,000/- was received by the landlady and the same is lying with her. The tenant had also proved through Exs. R3, R5, R6 and R7 that he had made all attempts to make the payments first through money order and again by D.D. and thereafter by calling upon the landlady to furnish the bank details for depositing the rent. When all these attempts failed, the tenant had chosen to file RCOP on 5.9.2005 under Section 8(5) of the said Act. No doubt, the tenant had not taken steps immediately after returning of the demand draft by the landlady. But the fact remains that the tenant had sent Ex.R5 reply on 26.7.2005 and the landlady refused to receive the D.D. sent along with the said reply. Most likely the DD would have been returned either at the end of July 2005 or during first week of August 2005.
14. The tenant approached the Rent Controller under Section 8(5) on 5.9.2005 . That means there could have been a delay of only 30 days or so , which, in my considered view cannot be construed as an abnormal or an unreasonable delay under the facts and circumstances of this case. May be the tenant might have gone after receipt of Ex.R4 notice dated 14.7.2005 from the landlady. But at the same time, the fact remains that he had not kept quiet before receiving the notice under Ex. R4 and in fact he had sent the rent through money orders on 5.7.2005 itself. Therefore, this shows his bona fide intention in paying the rent.
15. It is also his case that the landlady refused to receive the rent when it was tendered in person. Therefore, when the tenant had taken all steps before resorting to file a petition under Section 8(5) and when the fact remains that an advance amount of Rs.10,000/- is lying with the landlady, in respect of a tenancy with monthly rent of Rs.275/- , I am of the view that the tenant has not committed any default much less wilful default for the period from May to July 2005.
16. The learned counsel for the petitioner relied on the decision of the Apex Court in reported in 1996 (2) CTC 78 (K.Narasimharao Vs.T.M.Nasimuddin Ahmed). In the said decision the Hon'ble Supreme Court has dealt with an issue with regard to the retention of excess amount by the landlord as advance more than the one month rental amount. The Apex Court after considering various aspects of the matter and also the provisions under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 came to the conclusion that excess amount available with the landlord is only for the benefit of the tenant and the liability to refund the same to the tenant being immediate unless the tenant exercises the option to get it adjusted otherwise. It is further held therein that the provision of adjustment of the excess amount at the option of the tenant clearly visualises its adjustment towards the rent due from the tenant since the jural relationship envisages payment only of rent by the tenant to the landlord towards which it can be adjusted. After having observed so, the Hon'ble Supreme Court at the penultimate paragraph has thus concluded that the landlord was bound to immediately refund that excess amount even before the arrears accrued and he not having made the refund was bound to adjust it towards the rent due from the tenant.
17. The other decision relied on by the learned counsel for the petitioner is reported in 2000 (2) MLJ 202 ( Mahalingam Vs. Pichaiammal), an order passed by the learned single Judge of this Court. There also it was held that excess advance amount is liable to be adjusted in the rent payable by the tenant as and when it becomes due even without any demand from the tenant.
18. From the above referred rulings of the Apex Court as well as this Court , it is made clear that the landlord is entitled to receive only one month agreed rent by way of advance and any amount in excess of the same is liable to be refunded to the tenant or to be adjusted towards rent at the option of the tenant. The Apex Court in fact found that when the amount has not been refunded then the landlord is bound to adjust the same towards the rental arrears due from the tenant. The said decision of the Apex Court was in fact followed by the learned single Judge of this Court in the other decision made in 2000 (2) MLJ 202 ( Mahalingam Vs. Pichaiammal).
19. In this case, as already discussed supra, the defaulted period is only three months, that means Rs.725/- in total being the arrears of rent. When admittedly a sum of Rs. 10,000/- is lying with the landlady towards advance, a sum of Rs.9,725/- is retained by the landlady as an excess amount towards the advance . Out of this Rs.9,725/-, three months rental amount payable by the tenant being only Rs.725/-, still an amount of Rs.9,000/- is retained by the landlady in excess. When that being the factual position, even assuming that there was no option exercised by the tenant to adjust the rental arrears from the advance amount, still the landlady cannot maintain the eviction petition without refunding the said amount to the petitioner/ tenant. Accordingly, the orders passed by the courts below in ordering eviction on the ground of wilful default is not sustainable.
20. Regarding the next issue namely, "act of waste ":-
It is the case of the landlady that the first petitioner herein took the property for running a vegetable shop and he allowed the second petitioner as sub-tenant to use the property as godown to store the vegetables. Such storing of vegetables causes damages to the property and therefore he has committed an act of waste. The said contention is denied by the first petitioner/ tenant. It is his case that the building is not damaged in any manner and there is no health hazard as complained by the landlady. As the property is situated in the market, the contention of the landlady is absolutely false. The authorities below accepted the case of the landlady and found that the tenant has committed the act of waste. The Appellate Authority found that if the vegetables are stored in a building without aeration, there is every possibility of vegetables getting rotten and consequently, such storage of rotten vegetables would definitely damage the demised premises.
21. The learned counsel appearing for the petitioner submitted that when the shop itself was admittedly let out for vegetable vending business then storing of vegetables cannot be termed as an act of waste. He also submitted that there was no inspection conducted by appointing any Advocate Commissioner to find out as to whether any damage was caused to the building. No evidence was let in on this aspect. Therefore, the Courts below ought not to have ordered eviction on this ground. Per contra, the learned counsel for the respondent submitted that the storage of rotten vegetables would certainly cause damage to the building as dampening of the wall cannot be ruled out on such storage.
22. I heard the submissions on this aspect made by both the learned counsels and also considered the respective findings of the authorities below.
23. I am unable to accept the view taken by the Courts below on this ground of act of waste. It is an admitted fact that the property was let out by the landlady to the first petitioner only for vegetable vending. If a shop is let out for vegetable vending then storing of the vegetables is an automatic business activity which cannot be found fault with. Once storing becomes part of the business, the landlady cannot have any objection between one vegetable or other to say that one will become rotten and cause damage to the property. In my considered view, this contention of the landlady is highly imaginary without there being any substantial material evidence to prove the same. As pointed out by the learned counsel for the petitioner, no inspection was conducted to assess the damage and no material was placed to show that the property was actually damaged. Unless real damage is assessed and placed before the court with substantive evidence, the landlady cannot be granted the relief of eviction on the ground of "act of waste". In fact, the Courts below have only observed that storage of the vegetables would definitely damage the property and however have not specifically found that the property was in fact damaged. Mere anticipation or presumption cannot be construed as an assertion of damage. Thus, the ground of act of waste also should be rejected. This leads me to decide the last ground viz., sub-letting.
Regarding Sub-letting:-
24. The case of the landlady is that the first petitioner herein took the premises on lease on a monthly rent of Rs.275/- by paying a sum of Rs. 10,000/- as advance, which is evident from the lease deed dated 1.6.1985 marked as Ex.P1. It is her further case that the first petitioner allowed the second petitioner to use the premises as godown to store the vegetables without her permission, either in oral or in writing.
25. The first petitioner filed a counter affidavit wherein it is stated that he has taken the premises from the landlady on 1.6.1985 for running a vegetable shop. He has also stated that himself and his brother were jointly running vegetable shops at Nagapattinam Bazar Street and Neela South Street. He further contended that after he got married, the second petitioner who is his brother, separately set up a shop for him at Neela South Street for running a vegetable shop. He also denied that the second petitioner is a sub-tenant and on the other hand both of them are jointly doing the business in the said premises. Both the courts below have concurrently found that the first petitioner is only the tenant under the landlady and he has sub-let the premises to the second petitioner without the consent of the landlady.
26. Learned counsel appearing for the petitioner submitted that when both the petitioners are brothers and are doing the business jointly within the same premises, there is no question of sub-letting and therefore the eviction ordered on the said ground is not sustainable. He also pointed out that the landlady had received the rent from the second petitioner only all along and therefore she has recognised the second petitioner also as a tenant. In support of his submission, he relied on the decision of this Court reported in 2004 (4) CTC 747 (Poorna Thayammal and Others Vs. Y.Anwar).
27. Per contra, the learned counsel appearing for the landlady submitted that when admittedly the first petitioner was given tenancy as per Ex.P1, the second petitioner, without any permission from the landlady cannot do the business therein and such doing of business by the second petitioner is undoubtedly an act of sub-letting by the first petitioner.
28. I heard the submissions made by the learned counsels on on either side on this aspect and also considered the respective pleadings of the parties and findings of the authorities below.
29. The landlady marked Ex.P1 lease agreement dated 1.6.1985. The said lease agreement shows the first petitioner only as the tenant. That can not be disputed by the first petitioner. The landlady specifically pleaded that the first petitioner had sub let the premises to the second petitioner without her permission. The first petitioner has not denied the presence of the second petitioner in the petition premises. On the other hand, it is his case that both of them are jointly doing the business and therefore there is no sub-letting. A perusal of the counter filed by the tenant/the first petitioner would show that he has taken the premises for running a vegetable shop for himself only. The relevant paragraphs of the counter are extracted hereunder:-
VERNACULAR (TAMIL) PORTION DELETED
30. From the very pleading of the first petitioner it could be seen that the property was taken on lease only by the first petitioner for running his own business in the said premises. It is also his clear case that after his marriage, the second petitioner had set up a separate shop for him at Neela South Street, Nagapattinam whereas the petition mentioned property is situate at Yahisan Palli Street, Nagapattinam. It is also specifically stated by the first petitioner that the said shop was set up for him to do the business separately . Having said so, his further contention that both of them are doing the business jointly cannot be accepted as true and it has to be taken only as an after thought to escape from the ground of sub-letting. In fact the Court below has found by examining the photographs marked under Exs.P4,P5 and P6 showing two different name boards one bearing the name of "Jeyakodi Kai Kani Viyabaram" and another in the name of "M.K.Selvaraja Kai Kani Viyabaram" .
31. If both of them are jointly doing business, certainly there is no necessity for putting up separate boards. At any event, when the premises was let out only to the first petitioner as could be seen from Ex.P1, which fact is also accepted by the petitioner in his pleadings, then it is his bounden duty to prove that the presence of the second petitioner in the premises is with the permission of the landlady, especially when the landlady denied of granting any such permission. No material is placed, whatsoever, to prove such permission . On the other hand, it is his case that both of them are doing joint business. Even to prove such contention, no materials are placed . On the other hand, first petitioner's own version in the counter that has been extracted supra disprove his case.
32. No doubt, the learned counsel appearing for the petitioner / tenant strongly relied on the decision reported in reported in 2004 (4) CTC 747 ( Poorna Thayammal and Others Vs. Y.Anwar) to contend that the facts of this case will not be construed as a sub-letting without permission. A perusal of the said decision would show that the learned Judge considered the facts and circumstances of that case and found that the landlady therein cannot claim absolute ignorance of the fact that the sub-tenant was also running the shop along with the tenant. A perusal of the facts of that case would further show that the tenancy was in the name of "Swan Laundry" shown as one of the tenants in a list maintained by the landlady therein. Thus, the learned Judge found that there was some evidence to show that both the first and second respondents therein had carried on the business together for some time and later the first respondent was running the laundry after the second respondent had left the business. But the facts of the present case would show that even according to the first petitioner, the tenancy was not in the name of any business firm but only in his individual name. It is also an admitted case that both the petitioners are doing the business at a different place after marriage. Therefore, there cannot be any presumption of joint business and in fact there is no necessity to do so in view of such admitted facts. Therefore, the facts of that case being totally different and distinguishable, the said decision cannot be relied on by the learned counsel for the petitioner. Needless to say that each case has to stand on its own facts and circumstances.
33. It is also contended by the petitioners that the landlady had received rent from the second petitioner and therefore she has accepted the sub-tenancy. I am not able to appreciate such contention. Rent can be paid by the tenant himself directly or through some one on his behalf. Thus, if the rent is received through some one, on behalf of the tenant, that does not mean and be construed as if such 'someone' is also recognised by the landlord as the tenant unless there are material evidence to show that such recognition from the landlord is in express terms.
34. Considering all these facts and circumstances, I am of the view that the first petitioner has sub-let the premises to the second petitioner without the permission of the landlady and consequently on that ground alone the orders passed by the courts below, concurrently, are to be sustained and the petitioners are liable to be evicted. Accordingly, I find that the Civil Revision Petition filed by the petitioners is liable to be dismissed on the ground of sub-letting. Though I reject the other grounds of wilful default and act of waste, as I have found the ground of sub-letting against the petitioners, it automatically follows an order of eviction. Consequently, the petitioners are liable to be evicted from the petition premises. Thus, the Civil Revision Petition in C.R.P.(NPD) No. 1290 of 2009 is dismissed and the petitioners are granted three months' time to vacate and hand over vacant possession of the premises to the landlady. Consequently, the connected M.P. is closed.
C.R.P.(NPD) No. 1291 of 200935. This Civil Revision Petition is filed against an order rejecting Section 8(5) application filed by the tenant. I have already found in C.R.P.(NPD) No. 1290 of 2009 that the tenant had not committed wilful default and had taken all steps to tender the rent to the landlady in accordance with law. When such tender was refused, the tenant is entitled to remit the same through Court by filing the application under Section 8(5). Therefore, the order passed by the Courts below in dismissing the said application is unsustainable. Accordingly, the Civil Revision Petition in C.R.P.(NPD) No. 1291 of 2009 is allowed. Since I am ordering eviction of the tenants in the other Civil Revision Petition, they are permitted to deposit the future rent into the court, till they vacate and hand over vacant possession within the time stipulated by this Court in the other Civil Revision Petition. No costs.
krr To
1. The Sub Judge Nagapattinam
2. The District Munsif Court Nagapattinam