Madras High Court
P.M.Mariam Beevi vs S.Hameedu Fathgimal (Died) on 28 February, 2020
Equivalent citations: AIRONLINE 2020 MAD 740
Author: R.Subramanian
Bench: R.Subramanian
C.R.P(MD)Nos.1493 and 1494 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 14.02.2020
Pronounced on : 28.02.2020
CORAM :
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.R.P(MD)Nos.1493 and 1494 of 2009
C.R.P(MD)No.1493 of 2009
P.M.Mariam Beevi ... Petitioner/Appellant/
Petitioner - Landlord
Vs.
1.S.Hameedu Fathgimal (Died)
2.Abdul Kadhar
3.Samsu Beevi
4.Pareetha Beevi
5.Noer Nisha
6.Saleema
7.Kaja Mohideen
8.Barosa ... Respondents/Respondents
/Defendant- Tenant
(R3 to R8 are brought on records as the lrs of the deceased
first respondent vide court order dated 15.11.2019 made in C.M.P.No.
6568, 6571 of 2019 in C.R.P(MD)No.1493 of 2009 by SVNJ)
PRAYER: Civil Revision Petition is filed under Section 25 of Tamilnadu
Buildings (Lease and Rent Control) Act to set aside the judgment and
decree passed in RCA No.12 of 2008 on the file of the Principal Rent
Control Appellate Tribunal (Principal Sub Court), Tirunelveli dated
10.07.2009 confirming the judgment and decree passed in
R.C.O.P.No. 30 of 2004 on the file of the 1st Additional Rent Control
Tribunal (1st Additional District Munsif Court), Tirunelveli dated
26.08.2008.
C.R.P(MD)No.1494 of 2009
P.M.Mariam Beevi ... Petitioner/Appellant/
Defendant - Landlord
Vs.
1.S.Hameedu Fathgimal (Died)
1/20
http://www.judis.nic.in
C.R.P(MD)Nos.1493 and 1494 of 2009
2.Samsu Beevi
3.Pareetha Beevi
4.Abdul Kadhar
5.Noernisha
6.Saleema
7.Kaja Mohideen
8.Barosa ... Respondents/Respondents
/Defendant- Tenant
(R2 to R8 are brought on records as the lrs of the deceased
first respondent vide Court order dated 15.11.2019 made in C.M.P.No.
6570, 6573 of 2019 in C.R.P(MD)No.1494 of 2009 by SVNJ)
PRAYER: Civil Revision Petition is filed under Section 25 of Tamilnadu
Building Lease and Rent Control Act) to set aside the judgment and
decree passed in RCA No.13 of 2008 on the file of the Principal Rent
Control Appellate Tribunal (Principal Sub Court), Tirunelveli dated
10.07.2009 confirming the judgment and decree passed in
R.C.O.P.No. 55 of 2005 on the file of the 1st Additional Rent Control
Tribunal (1st Additional District Munsif Court), Tirunelveli dated
26.08.2008.
In both petitions:
For Petitioner : Mr.A.Chidambaram
For R2 to R8 : Mr.D.Nallathambi
C O MMO N O R DE R
The landlord, whose petition for eviction in R.C.O.P.No.30 of 2004 was dismissed by the Rent Controller and the said order was confirmed by the Appellate Authority in R.C.A.No.12 of 2008, has come up with the Civil Revision Petition in C.R.P.No.1494 of 2009. Since the landlord sought for eviction on the ground of wilful default on payment of rent, the tenant filed R.C.O.P.No.55 of 2005 under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as 'the Act') seeking a direction to 2/20 http://www.judis.nic.in C.R.P(MD)Nos.1493 and 1494 of 2009 deposit the rent into Court claiming that the landlord refused to receive the rent. The said petition for deposit of rent in R.C.O.P.No.55 of 2005 was allowed by the Rent Controller. The said order was affirmed by the Appellate Authority in R.C.A.No.13 of 2008 resulting in, the landlord challenging the same in C.R.P.(MD) No.1493 of 2009.
2. In R.C.O.P.No.30 of 2004, the landlord sought for eviction of the tenant on the following four grounds:
i) Under Section 10(2)(i) of the Act – wilful default
ii) Under Section 10(2)(ii)(b) of the Act - different user
iii) Under Section 10(2)(iii) of the Act – Acts of waste
iv) Under Section 10(3)a(iii) of the Act – owner's occupation for the purpose of her son's business.
3. According to the landlord, the tenant occupied the suit property for the purpose of his business on a monthly rent of Rs.450/- on 12.05.1993. The rent was increased to Rs.500/- per month. As per the agreement, the tenant was liable to pay the monthly rent on or before 5th day of every succeeding calender month. It is stated that the tenant was doing typewriting business and also having STD booth. It is further claimed that the tenant has 3/20 http://www.judis.nic.in C.R.P(MD)Nos.1493 and 1494 of 2009 stopped paying monthly rent from the month of August 2003 despite repeated demands. Hence the tenant is accused of committing willful default in payment of rent.
4. The landlord has also claimed that on 13.12.2003 the tenant has removed the doors and fixed two shutters and partitioned the tenanted premises and was attempting to sub-lease the premises to a third party. A suit for permanent injunction was also filed by the landlord seeking a restraint on the tenant from putting up any construction in the tenanted premises. It was also claimed that the tenant has commenced a business in Pharmacy in the tenanted portion and therefore, he is liable for eviction on the ground that he is using the property for a different purpose. As regards owner's occupation, it was claimed that the landlord's son Shahul Hameed has completed training in plumbing and he required the tenanted premises for his business, which he proposes to commence.
5. The above eviction petition was resisted by the tenant. While admitting tenancy, the tenant would contend that he has paid advance of Rs.10,000/- to the landlord and therefore, the claim that he has committed wilful default does not arise. It was also claimed 4/20 http://www.judis.nic.in C.R.P(MD)Nos.1493 and 1494 of 2009 that the tenant has paid a sum of Rs.30,000/- for repairs of the building. It was also claimed that the landlord has given a receipt for a sum of Rs.40,000/- consisting of Rs.10,000/- as advance and Rs. 30,000/- towards repairs on 15.10.1993. It was agreed that the tenant can adjust the said amount with the rent payable. It was also claimed that the rent upto November 2003 was paid and the landlord is not in the habit of issuing receipts. The claim of the landlord that the tenant has committed acts of waste by removing doors and fixing shutters was denied. The tenant would also claim that those acts were done by the tenant with the permission of the landlord. The bonafides of the landlord in seeking eviction under Section 10(3)a(iii) of the Act on the ground of Owner's occupation for the business of her son was questioned. The tenant would claim that the landlord's son was doing business in Textiles in Orissa and therefore, the claim for owner's occupation is wholly unfounded.
6. Insofar as different user as a ground for eviction is concerned, it was contended by the tenant that the premises was let out for non-residential purpose and there is no stipulation in the lease deed that it should be used only for a particular business. In the absence of such stipulation, as long as the premises is being used for 5/20 http://www.judis.nic.in C.R.P(MD)Nos.1493 and 1494 of 2009 non-residential purpose, the same would not amount to different user entailing the landlord to seek eviction on the said ground.
7. In R.C.O.P.No.55 of 2005, the tenant claimed that the rent upto February 2005 was paid in full. After adjusting the expenses, the tenant has paid Rs.395/- towards rent for March 2005 and Rs.500/- per month thereafter. The claim that the advance of Rs.10,000/- and expense of Rs.30,000/- will have to be adjusted towards rent was also reiterated. Despite the tenant having sent a notice on 05.01.2004 calling upon the landlord to specify the bank account, the landlord failed to comply with the said demand and refused to receive the rent sent by Money Order. The tenant has sought for a direction to deposit the rent into Court. The said petition was resisted by the landlord contending that the landlord has already launched proceedings for wilful default. The claim for adjustment of the property tax was also denied by the landlord.
8. At trial, one Gulam Razul was examined as P.W.1 and one Shahul Hameed was examined as P.W.2. The second respondent Abdul Kadhar, who is son of the tenant was examined as R.W.1 and one Sheik Alavudeen and one George were examined as R.W. 2 and 6/20 http://www.judis.nic.in C.R.P(MD)Nos.1493 and 1494 of 2009 R.W.3. While Ex.A.1 to A.19 were marked on the side of the landlord. Ex.R.1 to Ex.R.17 were marked on the side of the tenant. The Commissioner's report and plan were marked as Ex.C1 and Ex.C2. Expert's opinion, the reasonings of the expert and photographs of the signature were marked as W.1 to W.3 (Witness documents). In R.C.O.P.No.55 of 2005, Ex.P.1 to Ex.P.9 were marked on the side of the petitioner/tenant and Ex.R.1 was marked on the side of the respondent/landlord. While one Abdul Kadhar the son of the tenant was examined as P.W.1 one Gulam Razul was examined as R.W.1.
9. Upon consideration of the evidence on record, the learned Rent Controller concluded that since the landlord had admitted that she has received Rs.10,000/- as advance, she is not entitled to seek eviction under Section 10(2)(i). As per Section 7(1) of the Act, the landlord may receive an amount not exceeding one months rent as advance. Therefore, there is no default much less willful default on payment of rent.
10. On the claim that the tenant has committed acts of waste, the learned Rent Controller relied upon certain admissions in the 7/20 http://www.judis.nic.in C.R.P(MD)Nos.1493 and 1494 of 2009 evidence of P.W.1 to the effect that the alterations were made with the consent of the landlord and in the absence of any evidence to show that the alterations have materially affected the utility or the value of the building, the Rent Controller concluded that the landlord has not made out a case for eviction on the ground of acts of waste.
11. As regards different user also, the learned Rent Controller found that in the absence of a stipulation in the lease documents regarding the nature of the business that could be carried out in the tenanted premises, the tenant is free to carry on any legal non- residential activity. Therefore, it cannot be said that the tenant has rendered himself liable for eviction on the ground of different user.
12. As regards the requirement under Section 10(3)a(iii) of the Act, the learned Rent Controller found that there is total absence of evidence on the bonafide requirement of the son of the landlord. Citing the requirement of Section 10(3)a(iii) of the Act, the learned Rent Controller found that there is no evidence to show that P.W.2 was actually carrying on business in the premises that does not belong to him or that he has made preparations for commencing the business. In the absence of such evidence, the learned Rent 8/20 http://www.judis.nic.in C.R.P(MD)Nos.1493 and 1494 of 2009 Controller concluded that the claim of requirement for owner's occupation is not bonafide. Upon the said conclusion, the learned Rent Controller dismissed the eviction petition.
13. Adverting to the petition filed by the tenant under Section 8(5) of the Act, the learned Rent Controller found that the landlord has refused to receive the rent and the landlord did not comply with the demand of the tenant to disclose the bank account to enable the tenant to deposit the rent. The money order sent by the tenant was refused by the landlord. Finding that the requirements of Section 8(5) of the Act have been complied with, the learned Rent Controller allowed the application permitting the tenant to deposit the rent into Court.
14. Aggrieved, the landlord preferred two appeals in R.C.A.Nos. 12 and 13 of 2008. The learned Appellate Authority on re-consideration of the evidence on record agreed with the conclusion of the learned Rent Controller and dismissed the appeals.
15. Aggrieved, the landlord has come up with these Civil Revision Petitions.
9/20 http://www.judis.nic.in C.R.P(MD)Nos.1493 and 1494 of 2009
16. I have heard Mr.A.Chidambaram, learned counsel appearing for the petitioner and Mr.D.Nallathambi, learned counsel appearing for the respondents 2 to 8, who were impleaded as the legal heirs of the deceased first respondent/tenant, since she died pending the Civil Revision Petitions.
17. Mr.A.Chidambaram, learned counsel appearing for the petitioner would contend that a tenant, who obtains an order for depositing of rent under Section 8(5) of the Act, is expected to comply with the said order meticulously without any default. Relying upon the schedule of deposits issued by the Rent Controller, Mr.A.Chidambram would contend that the tenant has been highly irregular in payment of rent and she has deposited the rent in lump sum once in two months or once in 3 months on her whims and fancies. Therefore, according to Mr.A.Chidambaram, this action of the tenant in not depositing the rent month on month regularly, even after obtaining the order under Section 8(5) of the Act, would constitute willful default.
18. In support of his contention Mr.A.Chidambaram would rely upon the judgment of this Court in Saratha Ammal and another 10/20 http://www.judis.nic.in C.R.P(MD)Nos.1493 and 1494 of 2009 Vs. Ganiappa reported in 1996-1-LW-737. He would draw my attention to the judgment of this Court in K.Avinasilingam Vs. Hamsa 1990-1-LW 591.
19. No doubt, the above two judgments are authorities for the proposition that a tenant, who obtains an order for depositing the rent under Section 8(5) of the Act, is duty bound to deposit the rent month on month and he cannot deposit the rent at his wish in lump sum. A perusal of the ledger extract in R.C.O.P.No.55 of 2005 for the period of 2005 to 2019 shows that the tenant has deposited the rent in lump sum. The period of the said deposit varies from two months is atleast 12 months. Pointing out the above conduct, Mr.A.Chidambaram would contend that since the tenant has not deposited the rent regularly pursuant to the order made in R.C.O.P.No.55 of 2005, he has rendered himself liable for eviction on the ground of default.
20. Mr.D.Nallathambi, learned counsel appearing for the tenant would vehemently contend that the above contention of the learned counsel for the petitioner overlooks the fact that the tenant has paid a sum of Rs.10,000/- as advance which has not been disputed. He 11/20 http://www.judis.nic.in C.R.P(MD)Nos.1493 and 1494 of 2009 would also point out that once monthly rent is fixed as Rs.500/-, then, 19 months excess rent is available with the landlord in the form of advance and therefore, unless it is shown that the tenant has not paid the rent for more than a period of 19 months, he cannot be said to have committed willful default.
21. Ofcourse, Mr.A.Chidambaram, learned counsel for the petitioner would contend that such contention was never raised before the courts below and there was no plea by the tenant stating that he has required the landlord to adjust the rents payable towards advance. I am afraid such a contention cannot be accepted. Section 7 of the Act while prohibiting the landlord from receiving anything in excess of the fair rent or agreed rent, also prescribes that the landlord may receive an amount not exceeding one month rent by way of advance. Therefore, there is a prohibition under the Act on the landlord from receiving more than a months' rent as advance. The question relating to adjustment of the advance is no longer res integra.
22. In S.Balachandran Vs. A.Champalal Jain reported in 1980 (1) MLJ 116, this Court had held that if the tenant does not 12/20 http://www.judis.nic.in C.R.P(MD)Nos.1493 and 1494 of 2009 exercise option for adjustment of advance amount, he cannot relieve himself for the consequences of default by pleading such adjustment. In K.Narasimharao Vs. T.M.Nasimuddin Ahamed reported in AIR 1996 SC 1214, while considering the question of adjustment of advance, the Hon'ble Supreme Court of India concluded that if the landlord, who was having excess amount in advance more than the amount due having failed to refund the same to the tenant, was bound to adjust it towards the amount due.
23. In view of such pronouncement of the Hon'ble Supreme Court of India, I do not think that the landlord could be heard to contend that despite having more than a months' rent as advance, she could pursue the case on the ground of willful default without refunding the excess advance that was available with her. Subsequently in Mahalingam Vs. Pichaiammal, reported in 2000 (II) MLJ 202) the same preposition was reiterated by this Court.
24. Though Mr.A.Chidambaram, learned counsel for the petitioner draw my attention to the judgments, in Murugan Vs. M.O.M.Abubucker reported in 2005(5) CTC 473 which lays down that mere fact that the landlord has got excess advance with him will 13/20 http://www.judis.nic.in C.R.P(MD)Nos.1493 and 1494 of 2009 not mean the tenant is not a defaulter. I do not think that the said judgment could be followed as precedent, as much as the same is against the dictum of the Supreme Court of India in Narasimharao's case cited supra.
25. Admittedly, the landlord has got a sum of Rs.10,000/-, which is almost 20 months rent as advance. Therefore, unless the landlord shows that the tenant has been in arrears of more than 19 months at any point of time, the landlord cannot term him as a defaulter.
26. The deposits made under Section 8(5) of the Act, ofcourse, are irregular. But looking at the amount that has been deposited, it is very clear that the tenant has never allowed the period to exceed 19 months. Maximum amount that has been deposited is Rs.6000/-, which would only cover the period of 12 months. Therefore, at no stretch of imagination, it could be stated that the tenant has committed willful default in the given situation. I am therefore unable to see any material irregularity in the findings of the courts below regarding the claim of willful default made by the landlord. 14/20 http://www.judis.nic.in C.R.P(MD)Nos.1493 and 1494 of 2009
27. Adverting to the next ground of eviction namely 10(2)(ii)b of the Act namely different user, both the courts below have found that the lease was for a non-residential premises and the tenant, who was originally carrying on business of typewriting and STD booth, has started pharmacy business in the tenanted premises. Once it is found that the lease for non-residential premises and nature of business was not specified, so long as the tenant carries a non-residential activity which is not illegal, the landlord cannot seek to evict the tenant on the ground of different user.
28. Admittedly, the premises is a non-residential one and it is being used as a non-residential premises by the tenant. Therefore, it cannot be said that the tenant had rendered himself liable for eviction on the ground of different user. The courts below have considered the evidence on record and come to the conclusion that the landlord has not made out a case for eviction under 10(2)(ii)b of the Act.
29. The next ground on which the landlord sought for eviction is acts of waste. On the ground of acts of waste it is claimed that the tenant has removed doors and fixed two shutters without permission of the landlord. The courts below have concurrently found that P.W.1 15/20 http://www.judis.nic.in C.R.P(MD)Nos.1493 and 1494 of 2009 had admitted that the said alteration was carried out by the tenant with consent of the landlord and he had also admitted that the said repairs or alterations made does not materially affect the value or utility of the building. The requirements of Section 10(2)(iii) of the Act are very clear. The sub section reads as follows:
“the tenant has committed acts of waste which is likely to impair the material value or utility of the building..” Therefore, evidence should be available to show that there has been act of waste or alteration, which should have impaired the material value or utility of the building and such act should be unauthorized.
30. A perusal of the evidence of P.W.1 in the case on hand would negate both the requirements. P.W.1, apart from admitting that the doors were changed into shutters with the permission of the landlord, has also gone a step further and admitted that such change of the doors has not materially affected the value or utility of the building. In view of such admission, I do not find that the courts below could be faulted for rejecting the said ground for eviction.
31. Last of the grounds on which the landlord sought for eviction was for owner's occupation for her son's business. The claim was that the son of the landlord Mr.Shahul Hameed, who was 16/20 http://www.judis.nic.in C.R.P(MD)Nos.1493 and 1494 of 2009 examined as P.W.2, has completed his technical training in plumbing and he wants to commence his business. Except the bald statement in the petition, there is nothing in the evidence to show that P.W.2 has either commenced business or made some arrangements for commencing business. The other requirements that the landlord should not be in possession of any other non-residential premises in the City or Town concerned, has not been proved by the landlord. Shahul Hameed was examined as P.W.2. He has deposed that he is doing business in textiles in Orissa and he has come to Tirunelveli recently. He had further stated that he has not made any arrangements for commencing business. In the light of the said evidence, I do not think the requirements of the landlord on the ground of owner's occupation can be said to be bonafide. It is for the landlord, who seeks eviction under 10(3)a(iii) of the Act to prove that the landlord or member of the family, for whom eviction is sought, is not occupying a non-residential building in the City or Town concerned of his own. Therefore, essential requirement is that the person, for whose requirement premises is sought for, should be carrying on business or he should have atleast made preparations for carrying on business. There is no evidence placed before the court to show that P.W.2 Shahul Hameed is either carrying on business or he has made 17/20 http://www.judis.nic.in C.R.P(MD)Nos.1493 and 1494 of 2009 any arrangement for carrying on business. He has deposed that he is working as Coolie earning about Rs.1000/- or Rs.2000/-. The courts below have concurrently found that the requirements under Section 10(3)a(iii) has not been made. The scope of a revision under Section 25 of the Act though is wider than Section 115 of the Code of Civil Procedure and Article 227 of Constitution of India, this Court sitting in revision cannot disturb the concurrent findings on fact, unless it is shown that they are materially irregular or that they are result of misreading of the evidence. Unfortunately, for the landlord such a case has not been made out by her in the evidence. I therefore do not see any ground to interfere with the concurrent findings of the courts below in dismissing the application by the landlord for eviction.
32. As regards application under Section 8(5) of the Act, it is shown that the tenant has complied with all the requirements which should precede a petition under Section 8(5) of the Act. The tenant has required the landlord to specify the bank account. Upon the landlord failing to disclose the bank account, he has sent the rent by Money Order and the landlord has refused to receive the same. Therefore, the orders of the courts below in allowing the application filed under Section 8(5) of the Act cannot be said to be erroneous or 18/20 http://www.judis.nic.in C.R.P(MD)Nos.1493 and 1494 of 2009 without jurisdiction. I therefore find no grounds for interfering with the orders passed in R.C.O.P.No. 55 of 2005 and affirmed in R.C.A.No.13 of 2008 also.
33. In fine, both the Civil Revision Petitions are dismissed. However, there will be no order as to costs.
28.02.2020 Index : Yes/No Internet: Yes/No CM To,
1.The Principal Rent Control Appellate Tribunal, Principal Sub Court, Tirunelveli
2. The 1st Additional Rent Control Tribunal, Tirunelveli 19/20 http://www.judis.nic.in C.R.P(MD)Nos.1493 and 1494 of 2009 R.SUBRAMANIAN., J.
CM C.R.P(MD)Nos.1493 and 1494 of 2009 28.02.2020 20/20 http://www.judis.nic.in