Madras High Court
S. Venkatesulu vs V. Chandra And 2 Ors. on 19 December, 1997
Equivalent citations: 1997(3)CTC39
ORDER Jagadeesan, J.
1. The petitioner is the tenant. The respondents filed R.CO.P.No. 170 of 1993 to evict the petitioner on the ground of wilful default, since the petitioner is in arrears from January, 1993. The R.C.O.P. was filed on 29.9.1993. Pending the R.C.O.P the respondents herein filed I.A.No. 742 of 1994 under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, stating that the petitioner is in arrears of rent to the tune of Rs. 4,250 and unless he deposits the rent he cannot contest the eviction proceedings. By order dated 22.2.1995 the Rent Controller allowed the said petition and directed the petitioner to pay the arrears of rent on or before 11.4.1995. Since the said order had not been complied with, eviction was ordered in R.CO.P.No. 170 of 1993. As against these orders, the petitioner preferred appeals in R.C.A.Nos. 45 and 46 of 1995. The Appellate Authority concurred with the order of Rent Controller and dismissed the appeals, by common order dated 25.2.1997. As against the said order, the present revision have been filed.
2. The counsel for the petitioner contended that one of the respondents had entered into an agreement of sale, agreeing to sell the demised property to the petitioner and as such the petitioner did not liable to pay the rent and as such the orders of the Rent Controller as well as the Appellate Authority are liable to be set aside.
3. On the contrary, the counsel for the respondents contended that the petitioner is liable to pay the rent. The sale agreement entered into with one of the co-sharers will not absolve the tenant's liability to pay the rent. The petitioner did not prefer any appeal immediately after the order was passed in the application filed under Section 11(4) of the said Act. He allowed the time to expire and the final order to be passed. Hence at this stage, it is not open to the petitioner to raise the plea that he is not liable to pay the rent.
4. I carefully considered the contention of both the counsel. The requirement of Section 11(4) of the said Act is very clear that when once the order, directing the tenant to pay or deposit the rent is passed, he is bound to pay the same. Otherwise, automatically he will be precluded from contesting the eviction petition. In that case, automatically eviction petition will be ordered. The only plea put forth by the petitioner is that in view of the sale agreement, he is not bound to pay the rent. Entering into an agreement of sale will not ipso facto terminates the relationship of landlord and tenant, unless there is specific recital to the effect in the sale agreement. Admittedly, in this case there is no such material placed before the authorities below or before this Court. Hence it cannot be said that the petitioner is not liable to comply with the order passed by the Rent Controller under Section 11(4) of the said Act.
5. It may be worthwhile to refer two judgments of this Court viz., Kuppulal v. Sagunthala, 1987 (I) MLJ 242 wherein it has been held as follows:-
"As rightly contended by the learned counsel for the petitioners, mere agreement of sale will not terminate the landlord-tenant relationship and the liability of the tenant to continue to pay the rent, the tenant will have to continue to pay the rent, unless there are specific recital to the contrary in the agreement of sale.
The judgment of Ramanujam, J. in S. Doraisami Nadar v. Nagammal, 1980 (93) LW 858 : 1981 (I) MLJ 35 : 1981 (I) RCJ 349 to the above effect relied on by the learned counsel for the petitioners, would apply to the facts of this case. It, therefore, follows that the respondent, despite the alleged oral agreement of sale with one of the co-owners, even if it is found to be true, will still be under an obligation to pay the rent to the petitioners. Further, it is settled law that under Section 53A of the Transfer of Property Act the agreement has to be in writing and, even if there was one, mere agreement of sale does not transfer title. In the instant case, even according to the respondent, there was only an oral agreement between him and one of the co-owners. The co-owner, Thiru K.V. Srinivasan, had not been examined to substantiate the averment of the respondent that he was entitled to have an adjustment of the rent toward the interest due under the mortgage of which he had got an assignment. It is clear that the respondent is not entitled to have an adjustment of the rent."
and another judgment is reported in Jessie Thavamani v. Liakath Basha, wherein AR. Lakshmanan, J has held as follows:
In my opinion, by merely entering into an agreement of sale, the tenant cannot acquire any right in the property. If possession is traceable to the agreement of sale, then such possession can be sustained on the basis of the principle of part- performance under Section 53-A of T.P.Act. In this case, even if there has been an agreement of sale and advance has been paid in pursuance of that agreement, no agreement has been filed before the Rent Control Court and none of the parties have spoken to about the agreement containing a term putting an end to the relationship of landlord and tenant and that the continued possession by the tenant should be traced only to the agreement of sale. The agreement of sale does not refer to the fact that the tenant's possession is traceable to the lease agreement. Therefore, I am of the view that the possession of the petitioner/tenant cannot be treated as possession under the agreement of sale. Admittedly, the tenant has not paid the rent even after the notice was issued to her. Therefore, the claim of the tenant that under the agreement the liability to pay the rent has ceased, cannot at all be accepted."
6. When once the order under Section 11(4) of the said Act is passed, it is the duty of the petitioner to company with the same. Without depositing or paying the amount, he cannot prefer any appeal. In fact this Court had an occasion to deal with this aspect in the judgment reported in Pichai Chetti (Died) v. N.K. Muthuktishnan, 1991 (2) L.W. 614. After referring the various judgments, this Court has held as follows:
"The learned counsel for the petitioner submitted that the entire arrears of rent was deposited in Court as per the direction given by this Court in the revision. Therefore according to the learned counsel for the petitioners orders of eviction of the Section 11(4) has been complied with. The answer to this question is contained in a decision of this Court rendered in Apputham v. Singaravelu Nadar & Sons rep. by Partners, 1988 (II) MLJ 260 : 1988 (2) L.W. 245 wherein while considering a contention of similar nature this Court held as under:
"It is also contended that the Appellate Authority is in error in confirming the order of eviction when the tenant has deposited the entire amount in the appellate court at the time when he filed the appeal. I do not agree with learned counsel for the petitioner. Once the petitioner failed to deposit as directed by the Rent Controller, an order under Section 11(4) would automatically following and the Rent Controller made no error in passing that order. Consequently, the appellate authority was right in confirming that order."
Therefore, the appeal filed by the petitioner herein against the order passed in the main eviction petition is not entertainable without paying or depositing the arrears of rent as order under Section 11(4) of the Act, because the order passed under Section 11(4) of the Act is still in force. On the same ground the revision is also not competent. In that view of the matter, the civil revision petition is dismissed with costs. Time for eviction two months."
7. Apart from this, it may be worth to refer the subsequent conduct of the petitioner also. When once the petitioner is under the threat of eviction on the ground of wilful default, the first and foremost duty cast upon him is to pay the rent or at least ought to have seek the permission of the Court to deposit the rent to show his bonafide. Otherwise, the subsequent conduct in non-depositing or non-paying the rent till date can be taken note of which would establish the deliberate wilful default on the part of the petitioner.
8. In the judgment reported in Poorman's Depot Registration Firm v. Krishnan, 1997 (II) MLJ 467 Govindarajan, J. has held as follows:
"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."
9. In an unreported judgment Sarasu v. Mumtaz, C.R.P.No. 1859 and 1970 of 1994 dated 2.12.97 I have held as follows:
"I am unable to agree with learned counsel for the petitioners because it has been repeatedly held that the subsequent event or the subsequent conduct of the parties can be taken note of by court in deciding the issues for the pending matter. In the case on hand, the landlord has filed the petition for eviction on the ground of wilful default. The Rent Controller had ordered eviction categorically finding that the petitioners have committed wilful default. Aggrieved by the same the petitioners filed appeals before the Appellate Authority. When the petitioners are facing the threat of" eviction under the orders of the court on the ground that the petitioners committed wilful default in paying the rent, I am of the opinion that at least during the pendency of the proceedings the petitioners should have paid the rent without any default in order to establish their bona fides in the plea put forth already. There must be some sufficient cause for the petitioners for the non-payment of rent regularly during the pendency of the proceedings. When there is no sufficient cause it can be safely concluded that the petitioners have committed wilful default even subsequent to the order of eviction passed by the authorities below and during the pendency of these revisions and the conduct of the petitioners is nothing but wilful default in paying the rent."
10. Considering the above laid principles and also the admitted facts of the case, I am of the view that the petitioner has not made out any ground to differ from the authorities below. Hence the civil revision petition is dismissed with cost of Rs. 1, 000.