Madras High Court
Hiluru Hameedha Begum vs Pappammal And Ganesan on 19 December, 2003
Equivalent citations: 2004(2)CTC164, (2004)1MLJ540
JUDGMENT K. Gnanaprakasam, J.
1. The landlady is the revision petitioner.
2. The landlady filed the petition under Sections 10(2)(i), 10(2)(ii) and 10(2)(iii) of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 in RCOP. No. 89/1992 before the Rent Controller (Principal District Munsif) Tirunelveli and the same was decreed on 22.12.1994. As against the same, the tenant preferred an appeal in RCA. No. 11/1995 before the Principal Subordinate Judge, Tirunelveli and the said appeal was allowed. Aggrieved by the same, the landlady has preferred this civil revision petition.
3. The case of the petitioner is that the 1st respondent is the wife of the 2nd respondent, who took the petition premises on lease in October 1988 for running a business in ornament making, on a monthly rent of Rs. 275/- payable on or before 5th of every English calendar month. The respondents are very irregular in payment of rent and they have paid a sum of Rs. 1,100/- on 12.5.1992, being the four months rent from September 1991 to December 1991. Likewise, on 11.11.1991, the 2nd respondent paid the rent from May 1991 to August 1991. The respondents were in arrears from January 1992 and on the date of filing of the petition, they were in arrears for 7 months, of Rs. 1,925/-, which they have not paid and the non payment of the same is willful and wanton. The respondents have demolished the walls in the downstairs portion and put up a new door way and doors and sublet the same and the sub tenant is running an enamel unit therein. The respondents have also sublet the upstairs portion to another ornament maker, Chidambaram and these sublettings were without the written consent of the petitioner. By demolishing the old walls, the respondents have also committed acts of waste and on that ground also, they are liable to be evicted.
4. The respondents have filed a counter, wherein they have stated that the 1st respondent took the petition premises for non residential purposes, wherein the 2nd respondent, who is a goldsmith, is doing ornaments making. The respondents have been paying the rent regularly without any default. The petitioner used to collect the rent from the respondents as and when he comes to Tirunelveli for other purposes. During February 1992, the petitioner refused to receive the rent for the month of January, when it has been tendered by the respondents. The petitioner demanded enhancement of rent @ Rs. 500/- p.m and the same was not accepted by the tenants. During June 1992 also, the respondents tendered the rent for the period from January to May 1992 @ Rs. 275/- p.m. and the same was refused by the petitioner and at that time also the petitioner demanded enhancement of rent from January 1992. The petitioner wantonly allowed the rent to be accumulated and filed the eviction petition on the ground of willful default. The respondents have not demolished any portion in the downstairs and they have not committed any acts of waste as stated by the petitioner. There is no subletting of the upstairs portion also and therefore, they are not liable to be evicted.
5. On the above said pleadings and also based upon the evidence, the Rent Controller allowed the petition. But, however, in the appeal filed by the tenants in RCA. No. 11/1995, the appellate authority did not concur with the findings of the Rent Controller and allowed the appeal. As against the same, the landlady has preferred this civil revision petition.
6. The tenancy between the petitioner and the 1st respondent is admitted and the monthly rent is also admitted. It is the case of the petitioner that the respondent paid the rent lastly on 12.5.1992, being the rent for the months from September 1991 to December 1991 and the respondents were in arrears of rent from January 1992 for a period of 7 months, which comes to Rs. 1925/-, which the respondents have not paid. The non payment of rent is willful and wanton. But, it is the case of the tenants that the petitioner's husband used to collect the rent as and when he comes to Tirunelveli. The petitioner's husband refused to receive the rent in February 1992, for the month of January 1992 and also demanded enhanced rent @ Rs. 500/- p.m. and the same was refused by the respondents. It is further stated that during June also, they tendered the rent, due from January 1992 and the same was refused by the petitioner and also demanded enhancement of rent. But, however, the respondent in his evidence, has stated that the rent was used to be collected by the petitioner's agent once in 4 months and to support the said case, the tenant has relied upon Ex.R1 (Series), which are receipts for payment of rent and the same was signed by one Radhakrishnan. As such, the evidence runs contra to the counter. That apart, it is the specific case of the respondents that they have tendered the rent for the month of January 1992, in February 1992 and the same was refused by the petitioner and the same thing was happened in the month of June 1992 also. If the case of the respondent is true and when the petitioner has refused to receive the rent, in normal circumstances, duty is cast upon the tenant to call upon the landlord, either by letter or notice to receive the rent and if proper reply is not forthcoming, then the tenant is expected to take recourse under law. Failure to do so and merely stating that the tenant has tendered the rent and the landlord refused to receive the rent, as it is the slogan of every tenant, who has not paid the rent regularly, cannot be accepted. The tenant is not expected to keep silent and accumulate the rent and then turn round and say that the rent was tendered and the same was not accepted by the landlord. Only to avoid that kind of situation, Act specifically provides the modalities to be adopted by the tenant in the case of refusal by the landlord to receive the rent and if the tenant fails to do so, he cannot be heard to say, that he has tendered the rent and the same was refused by the landlord. Mere ipsi-dixit is not sufficient and in the absence of any materials, it could safely be concluded that the tenant has committed default in payment of rent, which default is willful and in our case also, the landlady made out a case that the non payment of rent by the tenant is willful and the tenant has not placed any material to dislodge such a conclusion and hence, the Order of the Rent Control Appellate Authority, in this regard, is not acceptable and the same is hereby set aside.
7. As far as the sublettings is concerned, it is the case of the landlady that the downstairs portion was altered and it was let out to a person, running an enamel unit. In fact, an Advocate Commissioner was appointed in this case and he filed a report and plan, Exs.C1 and C2, wherein, it is stated that at the time of inspection, he had noticed that one Shanmugam along with a helper was carrying on work in 'XB' place and there was a name board bearing 'Sri Rajarajeswari Diamond Cutting Enamal and Engraver and it was having a separate door. In the upstairs portion, one Murugesan was carrying on goldsmith business and there is also a name board, indicating that the Central Excise Department issued a certificate, stating that he is an approved goldsmith and the said certificate was issued on 12.4.1985. In the certificate, it is also stated that 'Murugesan's son Thavasi Achari, Uma Buildings, Tirunelveli Town'. But, however, the respondents would deny that Murugesan was not known to him. But, the Advocate Commissioner has noted in Ex.C1 that one Murugesan was carrying on business in the upstairs portion. The said report would reveal that the said portion of the premises was sublet, without the written consent of the petitioner/landlady. But, however, the appellate authority had accepted the case of the tenant that the services of the 3rd person is required for polishing the gold ornaments and for fixing the stones, for which purpose, persons were working in the shop, but it was not let out to them and thereby, the appellate court came to the conclusion that the subletting was not proved. If the case of the tenant is true, then there is no necessity for fixing the name board in the name of Murugesan in the upstairs portion, stating that he is an authorised goldsmith by the Central Excise Department. The respondent has not given any proper and valid explanation for the same. The observation of the appellate court that the sub tenants were not made as a party and therefore, the case of the petitioner that portions were let out to a third person cannot be accepted, is not a proper reason. It is for the petitioner to implead or not to implead the sub tenants and when once, the landlord gets an order, the said Order would enure to the detriment of the sub tenants also and in the said circumstances, the finding of the appellate court is not proper. But, on the other hand, the revision petitioner has established that the tenants have sublet the buildings, without the consent of the landlord and therefore, the landlady is entitled for an Order of eviction.
8. As far as the acts of waste said to have been caused to the buildings is concerned, evidence is wanting and therefore, the petitioner is not entitled to an Order of eviction on that ground.
9. In the result, the civil revision petition is allowed and the Order dated 9.7.1998 made in RCA. No. 11 of 1995 passed by the Rent Control Appellate Authority is hereby set aside.