Madras High Court
The Immaculate Heart Of Mary Society, ... vs Krishnaveni, Sivaraman, ... on 28 March, 2002
Equivalent citations: (2002)2MLJ614
ORDER A. Muthukumar, J.
1. The landlord is the revision petitioner. The revision petitioner filed R.C.O.P for eviction of the respondents.
2. The case of the petitioner/landlord is as follows:-
The petitioner/Society is a registered society. The petitioner society is a social organisation constituted by Catholic Christians and the object of the institution is to promote education and medical aid. As per Rule 7 of the Regulations, the Secretary of the Society is empowered to sue and be sued on behalf of the society. The petitioner society is the owner of the petition mentioned premises. The premises was purchased by the society on 22.10.81. Even before the said purchase, one Muthukrishnan was the tenant in respect of the petition mentioned premises and he was running a cycle mart and subsequently attorned to pay the rent to the petitioner. The monthly rent is Rs.210/-. The said Muthukrishnan has not paid the rent regularly and he has committed wilful default in the payment of rent. Hence, the petitioner filed a suit O.S.No.602 of 87 before the District Munisif Court, Mayiladuthurai for recovery of the possession after terminating the tenancy. The said Muthukrishnan contended in the above suit that the suit for recovery of possession is not maintainable and that the petitioner should have filed a petition under Act 18/60 before the Rent Controller. The tenant also contended that the Vice-President of the Society is not competent to file the suit. However, the said Muthukrishnan has admitted that the petitioner is the owner of the premises and that he is the tenant. After trial, the learned District Munisif dismissed the suit on 21.1.93 stating that the Vice-President of the Society is not competent to file the suit and that the provisions of the Act 18/60 alone will be applicable to the facts of the case. After the judgment in the above case, the said Muthukrishnan died on 29.3.93. The first respondent is his wife and respondents 2 to 7 are his sons and respondents 8 to 13 are his daugthers. Prior to filing of the above suit, Muthukrishnan sent the rent by cheque through his lawyer upto August 1986. Thereafter, he did not pay the rent inspite of demands. The respondents have not paid the rent after the demise of Muthukrishnan. The respondents are in arrears of rent from September 1986 to January 1996. The petition mentioned premises is in a dilapidated condition and it requires immediate demolition and reconstruction. The respondents and Muthukrishnan were not permitted by the petitioner to effect repairs and hence, the building became ruined and it will collapse at any point of time. The petitioner society has got sufficient funds to demolish and reconstruct the same. The petitioner undertakes to demolish the building within a month from the date of possession and complete the reconstruction within the time prescribed. Hence, this petition is filed for eviction of the respondents.
3. The case of the respondents/tenants is as follows:-
The petition is not maintainable in law and on facts. The petitioner society has been held to be a Public Charitable Trust in the previous suit in O.S.No.805 of 87. The Court has held in the above suit that the provisions of the Rent Control Act only is applicable and the suit was dismissed on the ground that the petition mentioned premise was purchased only in the name of the Convent and that the petition filed by the Vice-President of the Society without proper authority is not valid. Even now in this petition, it is stated that the property belongs to the petitioner society and it is the owner of the same. When the petitioner society was held as the Public Charitable Trust, its property is exempted from the purview of the Act and as such, the petition for eviction before the Rent Controller is not at all maintainable. The petitioner has now misconstrued the judgment rendered in the above suit. The respondent has been paying the rent by cheque through the Advocate during the pendency of the suit and till the disposal of the same. It is not correct to state that the respondent had paid the rent till August 1986 and that he has not paid the rent thereafter. After the disposal of the suit, there was a change of Head of Management and new office bearers had come to power and there was some kind of confusion in the administration of the petitioner society. The respondents' father also died suddenly and as such, there was some delay in the payment of rent. But the delay was not wanton or wilful. The respondents have paid the rent to the petitioner by cheque till the month of February 1996 and they have been paying the rent regularly. Thus, there is no arrears of rent. It is not correct to state that the petition mentioned building is in a dilapidated condition and that it requires immediate demolition and reconstruction. As a matter of fact, the petitioner did not allow and infact prevented the respondents through Police to make and effect necessary repairs to the roof. However the respondents carried out the necessary repairs to the roof and building at their own cost. The building is now in a good condition. It is false to state that the building has become ruined and that it would collapse at any time. The petitioner is owning two other buildings occupied by the tenants under the same roof. No demolition or reconstruction can be safely done and carried out without getting the possession of the building. No action is taken against them. On the other hand, the petitioner is putting the respondent under pressure by filing the suit and petition. There is no bonafide on the part of the petitioner.
4. Before the Rent Controller, on the side of the petitioner, P.W.1 was examined and on the side of the respondents, the fourth respondent has been examined as R.W.1. On the side of the petitioner, Exs.P-1 to P-6 were marked and on the side of the respondents, Ex.R-1 was marked. The report of the Commissioner and plan are marked as Exs. C-1 and C-2. On a consideration of oral and documentary evidence, the Rent Controller has given a finding that the tenant has committed wilful default. But as regards the requirement of the building for immediate demolition and reconstruction, the Rent Controller negatived the claim of the petitioner and ultimately, the R.C.O.P was allowed on the ground that the tenants committed wilful default in the payment of rent. The tenants/respondents who are aggrieved by the said order preferred an appeal in R.C.A.No.9 of 97. The Appellate Authority has held that as the petitioner trust is held to be a Public Charitable Trust and as the petitioner claims to be the owner of the petition mentioned property, they have no locus standi to file the petition and that the petitioner trust is exempted by G.O.2000 dated 16.8.76 and that the remedy of the petitioner is only to approach the Civil Court. Regarding the findings of the Rent Controller on other issues, the Appellate Authority has confirmed the finding of the Rent Controller that the tenants have committed wilful default in the payment of rent. As regards the claim of the petitioner for recovery of possession for the purpose of demolition and reconstruction, the Appellate Authority has confirmed the finding of the Rent Controller and ultimately, the Appeal was allowed and the R.C.O.P was dismissed. Aggrieved by the said finding of the Appellate Authority, the landlord has come forward with this revision.
5. The following contentions are raised in this revision:-
The petition mentioned premises belongs to Immaculate Heart of Mary's Convent, which is not a Public trust and therefore, the Appellate Authority ought to have held that the petition will lie under Act 18/60. The Appellate Authority failed to see that the petitioner society is only managing the convent. The judgment rendered in O.S.No.602 of 87 will operate as res judicata as far as the ownership of the building is concerned. The finding of the Appellate Authority that the building is not in a dilapidated condition is not based on evidence on record. The Rent Controller and the Appellate Authority have committed error in holding that the claim for demolition and reconstruction is not bonafide on the ground that the petitioner has not applied for planning permission for putting up a new construction.
6. On the other hand, learned counsel for the respondents/tenants contended that the petition mentioned premises was purchased by the convent and administered by the petitioner trust and that therefore, the Appellate Authority has given a finding that the R.C.O.P filed by the petitioner trust, when the petitioner society did not purchase the trust is not sustainable, cannot be assailed in the revision. Learned counsel also relies upon the finding given by the Appellate Authority that the remedy of the petitioner is only to approach the Civil Court. It is contended by the respondents that the convent which is the owner has not filed the R.C.O.P and as such, the R.C.O.P is not maintainable. Learned counsel for the respondents also assails the findings of the Courts below that the tenants have committed wilful default. Regarding the claim for demolition and reconstruction, it is contended by the tenants that the requirement of the petition mentioned building for demolition and reconstruction is not bonafide, especially when no action is taken against the other tenants who are residing under the same roof and structure.
7. It is not in dispute that Muthukrishnan was the original tenant of the petition mentioned property and that the monthly rent is Rs.210/-. It is also not in dispute that the respondents are the legal representatives of the deceased Muthukrishnan. It is admitted that the petitioner society filed the suit against Muthukrishnan in O.S.No.602 of 87 after terminating his tenancy. In the said suit, the tenant has taken a stand that the petitioner society is not a public charitable trust and that even assuming that the petitioner society shall be deemed to be the public charitable trust, it is only a private trust and not public trust and that therefore, it is not exempted under the provisions of the Act 18 of 60 and that the tenant has also taken a stand in the above suit that the remedy of the petitioner is only to initiate proceedings under Act 18 of 60. On a consideration of oral and documentary evidence, the learned District Munisif, Mayiladuthurai has given a finding that the petition mentioned property was not purchased by the petitioner society and that the sale deed would show that the property was purchased by Mary's convent and that though the petitioner society is a public charitable trust the trust did not purchase the property and therefore, the petitioner cannot claim exemption under the G.O. The Court has also given a finding that as the property was purchased by the convent only petition under Act 18/60 will have to be filed. The Civil Court has also given a finding that the Vice-President of the petitioner society has no locus standi to file the suit. Ex.P-1 is the certified copy of the judgment delivered in the above suit. The above judgment will show that the Civil Court dismissed the suit on the ground that the property was not purchased by the petitioner charitable trust and that therefore, they are not entitled to claim exemption under the G.O. It is admitted that no appeal has been filed against the said judgment and as such, it has to be held that the judgment of the Civil Court has become final. The above suit was filed by the society namely:- The Immugulate Heart of Mary Society, Mayiladuthurai (A society registered under Society Registration Act) represented by its Vice-President and Assistant Mother General Rev.Mother Charles Mary. The R.C.O.P is filed by the same Mary Society represented by its Secretary.
8. As already stated, the Civil Court has given a finding that as the property is not owned by the public charitable trust and as the property was purchased by the convent, the plaintiff/Trust cannot claim exemption under the provisions of the Rent Control Act on the basis of G.O.No.2000. As the said finding has become final, the Rent Controller is bound to follow the decision of the Civil Court. But the Appellate Authority has given a finding contrary to the decision of the Civil Court. The Rent Controller has given a finding that though the premises was purchased in the name of the convent, it is the petitioner who is in management of the property. On a consideration of the evidence, the Rent Controller has also held thus:-
The Rent Controller has also given a finding that as the property was not purchased by the society, it is not entitled to exemption on the basis of the G.O. It is significant to note that the tenants have taken inconsistent stand as regards the locus standi of the petitioner to initiate proceedings against them. The Appellate Authority has held that since the petitioner society has been held to be a public charitable trust, the petitioner society is not competent to file this R.C.O.P on the ground that it is the owner of the property. The Appellate Authority has also held that since the petitioner society is held to be a public charitable trust, the petitioner failed to establish as to how they are entitled to file the petition under Act 18/60. As already stated, the Civil Court has given a finding that the property is not purchased by the petitioner society, though it is a public charitable trust and that the petitioner society cannot claim any exemption on the basis of the G.O. The said aspect of the Civil Court judgment has not been properly considered by the Appellate Authority. When the Civil Court, on consideration of the evidence, both oral and documentary, has held that the petitioner society cannot claim exemption on the basis of the G.O and when the Civil Court has directed the landlord to approach the Rent Controller, I fail to understand as to how the Appellate Authority under Act 18/60 will give a finding contrary to the decision of the Civil Court. It is well settled that the Rent Controller and the Appellate Authority constituted under the Act are bound to follow the judgment of the Civil Court. When the Civil Court has given a finding regarding the locus standi of the landlord, the Appellate Authority is not competent to give a finding contrary to the decision of the Civil Court.
9. It is, no doubt, true that the Civil Court has dismissed the suit on the ground that the Vice-President has no locus standi to file the suit and that it is the Secretary, who is competent to file the suit. But it is clear that the Civil Court has dismissed the suit on other grounds also. The Civil Court has held that the petitioner society is not entitled to claim exemption under the G.O. As the above finding of the Civil Court has become final, the finding of the Appellate Authority directing the landlord to approach the Civil Court again cannot be sustained at all.
10. It is admitted by the tenants that it is the petitioner, who is collecting the rent from the tenants. Though the property was purchased by the convent, it is the petitioner society, which is in management of the property by collecting the rent. P.W.1, the Head Mother, of the petitioner society has stated that though the property was purchased in the name of the convent, the property belongs to the society. It is not the case of the tenants that the tenants were paying rent to the other officials employed by the convent. The case of the petitioner that the tenants have been paying rent to the petitioner society has not been seriously disputed. Section 2(6) of the Act defines who is "landlord". As per the above section, the 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. The Rent Controller has given a finding that though the property was purchased by the convent, it is an organisation annexed with the petitioner society. As the petitioner society is managing the properties owned by the convent also, the petition filed by the Secretary of the Society is perfectly maintainable. As the petitioner is entitled to receive the rent on behalf of the convent also, the petitioner will fall under the definition of "landlord" as defined under Section 2(6) of the Act. Therefore, I hold that the finding of the Appellate Authority that the petitioner has no locus standi to file petition under Act 18/60 and that the remedy of the petitioner is only to approach the Civil Court cannot be sustained.
11. It is the case of the petitioner that the tenants failed to pay rent from September 1986 till January 1996. The Rent Controller on consideration of the materials has held that it is disclosed from Ex.R-1 that the tenant has paid rent upto July 1987 to the petitioner's counsel and that after July 1987, the tenant failed to pay the rent. The R.C.O.P was presented on 7.2.1996. It is proved that the LRs of the deceased Muthukrishnan failed to pay rent from August 1987 till January 1996 i.e., 8 years and 6 months. It is no doubt true that the tenant tendered rent of Rs.21,630/- at the first hearing of the case through a cheque and the same was accepted by the landlord. Therefore, it is contended by the tenants that the tenants have not committed any wilful default. In support of the same, they also relied upon the decision reported in ABDUL HAMEED Vs. M.SULTAN ABDUL KADER (1996 (2) MLJ 579) before the Rent Controller. It is contended by the revision petitioner/landlord that the mere fact that the tenants paid arrears of rent at the first hearing of the case alone will not support the plea of the tenants that the above default will not amount to wilful default.
12. Learned counsel for the revision petitioner also relies upon the decision reported in EASWARA RAO, T Vs. N.W.ANSARI . In the above case also, it was contended that the tenant deposited the rent at the first hearing and that therefore, the default cannot be construed as wilful. It is held in the above decision that such deposit has to be considered alongwith other factors to decide whether the default is wilful or not. It has been clearly held in the above decision thus:-
"Merely because tenant deposits arrears of rent on first date of hearing, it cannot be said that landlord cannot sustain petition for eviction if it is otherwise established that tenant committed wilful default in payment of rent"
Following the above decision, the Court has also held in the decision reported in PANDIAN K.S. Vs. G.RUKMANI BAI (2001 (1) CTC 356) thus:-
"When once the eviction petition had been filed, there is no question of landlord losing his right to pursue the same notwithstanding the fact whether the tenant had deposited or was willing to deposit the arrears of rent at the first hearing of the petition"
This Court in the decision reported in NILGIRIS CO-OPERATIVE MARKETING SOCIETY ETC Vs. C.T.UTHANDI (1998 2 L.W.216) has also held that mere payment of rent after the petition is filed without offering satisfactory explanation for the non-payment cannot be accepted by way of defence.
13. The tenants rely upon the decision reported in ABDUL HAMEED Vs. SULTAN ABDUL KHADER (1996 II MLJ 579) wherein it is held that the entire arrears as on the date of the hearing was paid alongwith the counter on the very first hearing and that it would show that there is no wilful default in the payment of rent. In the above decision, the judgment of the Supreme Court reported in KRISHNA MUDALIAR Vs. LAKSHMI AMMAL (1994 2 CTC 540) is relied upon. The facts of the Apex Court decision will show that the landlord wantonly dragged the tenant to the Civil Court and the Rent Control Court, even though he has admitted the status of the landlord. Having regard to the peculiar facts of the above case, the Supreme Court has held that as the tenant deposited the arrears of rent at the first hearing of the case, mere non-payment will not amount to wilful default. The question whether the deposit of arrears of rent at the first hearing of the case will amount to wilful default or not would depend upon the facts of each case. The explanation offered by the tenants for the delay in the payment will have to be taken into consideration in deciding the said question.
14. In this case, it is alleged by the tenants that after the disposal of the civil suit, there was change of Head of Management and new Office Bearers had come to power and that there was some kind of confusion in the administration of the petitioner society and that the respondents' father also died suddenly and that therefore, there was delay in the payment of rent. The explanation given by the tenants for non-payment of rent for about 8 years cannot be accepted to be true. In evidence, R.W.1 has stated that there was change of Chairman of the Society and that he was not in a position to ascertain as to who is the landlord entitled to receive the rent. But, he has admitted that he did not write any letter to the petitioner society as regards the payment of rent. If really the tenants entertained a genuine doubt as to who is the landlord entitled to receive the rent, he could have deposited the rent into Court by filing a petition under Section 8 of the Act. The tenants have not written any letter to the landlord to specify the name of the bank nor did they tender the rent by money order. It is admitted that the father of R.W.1 died on 29.3.1993. It is, thus, seen that the original tenant, Muthukrishnan, failed to pay rent for about five and half years. Thereafter, the respondents, who are the LRs of the deceased Muthukrishnan, failed to pay the rent. The explanation given by R.W.1 in the counter that since his father died, he could not pay the rent cannot be accepted. The Rent Controller has considered all the aspects and also the materials adduced in this case and has come to the correct conclusion in holding that the tenants have committed wilful default. I see no reason to differ from the findings of the Rent Controller and the Appellate Authority on this aspect of the case. Therefore, I hold that the tenants have committed wilful default in the payment of rent.
15. It is contended by the petitioner society that the building requires demolition and reconstruction as it is in a dilapidated condition. The Rent Controller has held that the Head Quarters of the petitioner society is situate in Pondicherry and that it is not proved that the Pondicherry Head Society is possessed of sufficient means and that it is not proved whether any amount is saved from the tution fee paid by the students and that the petitioner failed to prove as what would be the profits earned by the petitioner society in running the institution. The Rent Controller negatived the above claim only on the ground that the petitioner society failed to prove that they have got sufficient means to demolish and reconstruct the building. However, the Rent Controller has accepted the case of the petitioner that the building is in a dilapidated condition. P.W.1, has stated in her evidence that the remaining two buildings are also in a dilapidated condition and that the tenants of the said portions already vacated the premises and that the petitioner society took possession of the same. She has also stated that they are in possession of sufficient means. The Rent Controller on consideration of the evidence and the Commissioner's report has come to the conclusion that the building is in a dilapidated condition. The Appellate Authority has held that the petitioner/landlord has not shown that they have taken any steps for commencing the work of demolition and reconstruction and that the permission obtained from the municipality has not been filed and the plan for the purpose of construction has not been placed before the Court and that therefore, the requirement of the building for demolition and reconstruction is not bonafide. Learned counsel for the respondents/tenants contended that the landlord without proving that they have got sufficient means to put up construction cannot claim that the building should be vacated for the purpose of demolition and reconstruction.
16. On the other hand, learned counsel for the revision petitioner contended that the reasons assigned by the Rent Controller and the Appellate Authority on this aspect of the case have got to be rejected, in view of the decisions of this Court. In this case, the Rent Controller has given a finding that the building is in a dilapidated condition. In the decision reported in AKBAR ALI Vs. DONIAN RODRIGO , this Court has held that the age and condition of the building as revealed by the Engineer's report show that the requirement of the landlord is genuine and that the building is in a dilapidated condition. Regarding the report of the Commissioner, the Apex Court in the decision reported in MISRILAL RAMRATAN Vs.A.S.SHAIK FATHIMAL (1995 Supp (4) SCC 600) has held that the report of the Commissioner appointed by the Court regarding the existence of such necessity cannot be overlooked or rejected merely because non-examination of the Commissioner as a witness. Learned counsel for the revision petitioner contended that to prove bonafide on the part of the landlord, it is unnecessary to produce the plan and report. To substantiate the same, he relies upon the decision reported in RAMADOSS Vs. SYED SHAHABUDEEN (1995 (I) MLJ 227) . It is held in the above decision that non-production of sanctioned plan by itself would not disentitle the landlord to get an order of eviction. In BALASUBRAMANIAM Vs. GULAB JAN (94 L.W 102) also this Court has held thus:-
"It cannot be laid down as a general rule that in all cases of demolition and reconstruction prior sanction should have been obtained. The Act nowhere provides that a petition for demolition and reconstruction should be made only after getting the required sanction from the authorities concerned"
In S.SARASWATHIAMMAL (DECEASED) AND TWO OTHERS Vs. R.S.MALLIKARJUN RAJA AND TWO OTHERS (1997 2 L.W. 287) this Court has held that the building need not be in a dilapidated condition or in a dangerous state of affairs for ordering eviction under Section 14(1)(b) of the Act. The principles laid down in the above decision will clearly show that it is not incumbent upon the landlord to produce the sanctioned plan and permission granted by the municipality for constructing a building. In this case, the landlord has also given an undertaking in the petition that he would commence the work of demolition within one month and complete the same within time prescribed. It is, thus, seen that the landlord has given an undertaking in the petition. The evidence of P.W.1 will show that the petitioner society is possessed of means to put up construction. The report of the Commissioner will show that the building is in a dilapidated condition. It is also proved from the evidence of P.W.1 that the other two tenants who were residing in the same roof have vacated the premises. If all the above factors are taken into consideration, I am unable to sustain the finding of the Rent Controller and the Appellate Authority that the requirement of the petition mentioned building for demolition and reconstruction is not bonafide. I hold that the decision of lower authorities is vitiated by perversity. Hence, I hold that the petitioner/landlord is entitled to the petition mentioned building for demolition and reconstruction and as such, the R.C.O.P has to be allowed on this ground also.
17. In the result, the Civil Revision Petition is allowed. The finding of the Appellate Authority that the petitioner society has no locus standi to file the R.C.O.P is set aside. The findings of the Rent Controller and the Appellate Authority that the tenant has committed wilful default are confirmed. The findings of the Rent Controller and the Appellate Authority that the premises is not required by the petitioner for demolition and reconstruction are set aside. The R.C.O.P is allowed. The revision petitioner is entitled to costs throughout. The tenants/respondents are granted two months time from the date of receipt of copy of the order to vacate the premises.