Madras High Court
Rizwanur Rahman vs Vms. Seyedha on 8 April, 2013
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 08.04.2013
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
C.R.P.(NPD).No.1154 of 2013
and
M.P. No.1 of 2013
Rizwanur Rahman .. Petitioner
..vs..
1.VMS. Seyedha
2.VMS. Ameena
3.VMS. Fathima
4.S.A.Mohammed Ali,
5.VMS. Noorjahan,
6.VMS. Mumtaj
rep. by their Power of Attorney
M/s.M.S.Shaik Shamsudeen & Sons,
(A Registered Partnership Firm)
Rep. By its Partner, S.S.M.Sadaqathullah .. Respondents
Civil Revision Petition filed under Section 25 of Tamilnadu Buildings (Lease and Rent Control) Act, 1960 against the fair and decretal order dated 20.11.2012 passed in RCA No.5 of 2006 on the file of VII Small Causes Court, Chennai Confirming the fair and decreetal order dated 22.12.2005 in RCOP No.902 of 2005 on the file of XVI Small Causes Court, Chennai, thereby ordering eviction of the Revision petitioner from the RCOP Schedule property on the ground of willful default.
For Petitioner : Mr.N.R.Anantha Ramakrishnan.
O R D E R
Being aggrieved by the concurrent decisions of the Rent Control Authorities directing eviction, the tenant has filed the revision petition.
2. The case of the landlord is as follows:
The petitioner is a tenant in respect of a Shop measuring 1600 sq.ft on a monthly rent of Rs.7,500/- for non-residential purpose. According to the landlord, he is a defaulter in payment of rent and that he has been irregular. Inspite of repeated demands and requests, the tenant has failed and neglected to pay rent from September 2004 to February 2005, amounting to Rs.45,000/- and that the rent for the month of March 2005 was also due. The tenant has lastly paid rent for the month of August 2004 on 31.12.2004, by cheque. In the abovesaid circumstances, the landlord has sought for eviction under Section 10 (2) (i) of the Tamilnadu Buildings (Lease and Rent Control) Act 1960 as amended by Act 23 of 1973.
3. The tenant has denied the allegations and he has further stated that he became a tenant on 01.08.1993 on a monthly rent of Rs.4,250/- and paid an advance of Rs.32,500/-. According to him, from 31.07.2004, the rent was Rs.7,500/- and so far, he has paid a sum of Rs.82,500/- towards rent, for a period of 11 months from September 2004 to July 2005 by cheque numbers 600656, 600657 and 621094 dated 28.02.2005, 06.03.2005 and 04.08.2005 respectively. The landlords have received the same and failed to present the first two cheques for Rs.7,500/- each, for encashment for the reasons best known to them.
4. The tenant has further submitted that the landlords used to collect the rent through their agent and ever since 1993, the tenant has paid the rent, as and when it fell due, without any default. Suddenly, from September 2004 onwards, the landlords did not depute their agent to collect the rent and that is the reason, why the tenant was not able to pay the rent for few months, as and when it fell due. The tenant has further submitted that the landlords have not mentioned about the advance amount received by them under law and that they cannot receive more than one month rent as advance. According to the tenant, he cannot be termed as a defaulter.
5. The tenant has further submitted that when he was inducted into possession of the premises, he had spent around Rs.10,00,000/- for renovating the factory, by changing the flooring, electrical wirings and painting. He has also spent huge sum for obtaining three phase electrical service connection. He is running a factory for more than 12 years and established his business in that locality. If he is evicted from the premises he would be put to hardship. On the above grounds, he has prayed for dismissal of the Rent Control proceedings.
6. On the above pleadings, the learned Rent Controller has framed the following point for consideration.
"Whether the tenant is liable to be evicted on the ground of willful default?."
7. The landlords have examined one witness and marked Ex.P1, Notice dated 01.07.2002, Ex.P2, Acknowledgment card dated 22.04.2004 and Ex.P3, Notice dated 22.04.2004. The tenant has examined one witness and marked Ex.R1, Rent paid account slip dated 05.08.2005 and Ex.R2, Cheque Book.
8. On evaluation of pleadings and evidence, the Rent Controller held that the tenant has committed willful default in payment of rent and thus liable to be evicted from the petition premises. Accordingly, vide judgment and decree dated 22.12.2005, he has ordered eviction by granting two months time. Being aggrieved by the same, the tenant has filed an appeal in RCA No.5 of 2005 on the file of the learned XVI Judge, Court of Small Causes, Chennai.
9. Upon consideration of the arguments and the material on record, the learned XVI Judge, Small Causes Court, Chennai, the appellate authority has confirmed the eviction. Being aggrieved by the concurrent decisions, the tenant has filed the present revision.
10. Assailing the correctness of the impugned orders, Mr.N.R. Anantha Rama Krishnan, learned counsel for the revision petitioner / tenant submitted that both the authorities below have failed to consider that RCOP No.902 of 2005, filed by the landlords/respondents was clearly in violation of Section 10(8) of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 and that no material has been produced on behalf of the respondents to establish that the Power of Attorney had the authority to file the eviction petition on behalf of the landlords/respondents.
11. It is also his contention that the Court below has failed to consider that nowhere in the original petition for eviction, any details regarding the alleged Power of Attorney have been given and that the petition itself was bereft of details. He also submitted that the alleged Power of Attorney was not marked as an exhibit on the side of the landlords / respondents and that therefore, the testimony of Mr.S.M.Sadaquathullah (PW1), ought not to have been given any credence. According to him, the jural relationship of the landlord-tenant is only between the landlords and the revision petitioner and only the landlords have personal knowledge of the facts and circumstances of the case with regard to willful default and therefore, non examination of any of the landlords, as a witness is fatal to the case.
12. On the merits of the case regarding willful default, learned counsel for the tenant / revision petitioner further submitted that the authorities below have erred in relying upon Exs.P1 to P3 filed by the landlords when there was absolutely no pleadings in respect of the said documents. He also submitted that the Courts below have failed to consider that the agent of the respondents have deliberately withheld the two cheques dated 28.02.2005 and 06.03.2005, issued by the tenant/revision petitioner, for reasons best known to them and thus created a false case, as if there was a willful default. According to him, the tenant has been paying the rent regularly as and when the rent was due, through the agent of the landlords and merely because, he had not turned up for collection of the rent from September 2004 onwards, the tenant cannot be termed as a willful defaulter. For the above said reasons, he prayed that the entire Rent Control proceedings is vitiated.
13. Heard the learned counsel for the tenant / revision petitioner and perused the materials available on record.
14. Let me consider the statutory provision referred to by the learned counsel for the tenant / revision petitioner. Section 10 of the Act states that the tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of the said Section or Sections 14 to 16. As per Section 10(8) of the Act, not withstanding anything contained in this Section, no person who is receiving or, is entitled to receive the rent of a building merely as an agent of the landlord shall, except with the previous written consent of the landlord, to be entitled to apply for the eviction of a tenant.
15. In exercise of the powers confirmed by Section 34 of the Tamilnadu Buildings (Lease and Rent Control) Act, and in supercession of the Tamilnadu Buildings (Lease and Rent Control) Rules, 1961, the Government have framed the Tamilnadu Buildings (Lease and Rent Control) Rules, 1974. As per Rule 2(b) of the said rules, "Recognised Agents" means:
(i) a person holding a power-of-attorney-authorising him to act on behalf of his principle: or
(ii) an agent empowered by written authority under the hand of the principal;
16. Let me now consider the objections raised by the tenant as regards the violation of Section 10(8) of the Act and the rules stated supra. At paragraph No.'3' of the counter affidavit, the main objection made by the tenant as regards the institution of the Rent Control proceedings by the Power of Attorney M/s.M.S.Shaik Shamsudeen & sons is as follows:
"the petition, as instituted is unsustainable both in law and on facts."
17. Perusal of the testimony of the power of attorney enclosed in the typed set of papers, does not indicate that the tenant had questioned the authority of M/s.M.Shaik Shamsudeen and Sons, who had been collecting the rent on behalf of the landlords nor he had questioned the authority of the said Attorney in preferring the Rent Control proceedings. As stated supra, nowhere in the counter affidavit, the tenant has objected to the filing of RCOP by the Power of Attorney on behalf of the landlords. Even in the memorandum of appeal filed by the tenant there is no specific ground on the aspect of maintainability of Rent Control proceedings by the said Power of Attorney.
18. During the course of this revision petition, when the learned counsel for the tenant was confronted with the question as to whether in the absence of any objection to the maintainability of the Rent Control proceedings, by the Power of Attorney either in the counter affidavit or in the memorandum of grounds, whether the said aspect could be urged for the first time in the revision petition, the learned counsel for the tenant / revision petitioner submitted that the above said issue pertains to a statutory requirement under Section 10 of the Act and the rules made thereafter and therefore, even in the absence of specific pleadings, the authorities under the Rent Control Act, ought to have addressed the said issue.
19. The institution of the Rent Control proceedings by the Power of Attorney satisfy the requirements under the law, is a mixed question of fact and law. Unless there is specific pleading in the counter affidavit, objecting to the maintainability of the Rent Control proceedings, instituted by the Power of Attorney and supportive evidence is adduced, this Court is of the view that the decisions of the Rent Control authorities to deal with a case on its merits cannot be said to be manifestly illegal warranting intervention, when the issue of maintainability of the Rent Control proceedings by the power of attorney has been raised for the first time before this Court. As stated supra, when the tenant, had not chosen to object to the maintainability of the institution of the Rent Control proceedings, adduced evidence and cross examined the said Power of Attorney also, during trial and suffered the order of eviction at the hands of the Rent Controller, which is also confirmed on appeal, it is not open to the tenant to raise the objection on maintainability, contending inter alia that there has been a violation of Section 10 of the Act and the rules made thereunder.
20. It is the admitted case of the tenant that M/s.M.S.Shaik Shamsudeen and sons, Power of Attorney used to collect the rent periodically. As regards the contention that rent had been paid periodically and that only because the agent did not come forward to collect the rent, from September 2004 to February 2005, the rent for the above said period was not paid in time and the default in collecting the periodical rent by the agent cannot be held against the tenant, treating it as a wilful default, this Court is not inclined to accept the said arguments. From the materials on record, it could be seen that after the institution of the Rent Control proceedings, in April 2005, the tenant has entered appearance in the RCOP and only 05.08.2005 and after two hearings from the date of appearance in RCOP, he has paid a sum of Rs.67,500/- by way of cheque. As regards the two cheques for the months of October and September 2004 dated 28.02.2005 and 06.03.2005 respectively and the further contention that the above said cheques were wantonly not encashed by the tenant, upon perusal of the above said cheques, the Court below has observed that both the cheques were postdated and given in October 2004.
21. From the material on record, it could be deduced that lumpsum payments have been made in the Court. It is the case of the Power of Attorney that monthly rents have been collected periodically, from all the tenants and that the revision petitioner / tenant has failed to pay the rent, from 2004 onwards, whereas, the tenant has disputed the same and further submitted that as there was no demand, by the agent for a long period, it could not be remitted. Though the tenant has contended that rents were paid periodically by payment of cheques, as rightly observed by the Courts below, he has not produced the bank accounts to prove that he was regular in payment of rent. Irregularity in payment of rent and lumpsum payment of Rs.67,500/- after the institution of the Rent Control proceedings has been noticed by the Rent Control authorities. Therefore, the finding of the wilful default cannot be said to be perverse.
22. On the contention that the landlord is having an advance of Rs.32,500/-, which could be adjusted towards rental arrears, no document has been filed by the tenant to show that he had ever requested the landlords to adjust the rental amount for the defaulted period. Further, the Rent Control authorities have also noticed that the arrears of rent from September 2004 to February 2005 amounting to Rs.45,000/- cannot be adjusted, against a sum of Rs.32,500/- stated to have been paid as advance. As rightly observed the defaulted amount is more than the advance. In Raminder Singh Sethi vs D. Vijayarangam, reported in AIR 2002 SC 2087, the Supreme Court has held as follows.
"The tenant can be said to be in arrears of rent despite availability of advance rent with landlord. Landlord is not bound to adjust amount of advance rent available with him against arrears".
23. In R.Murugan Vs. M.O.M.Abubucker, reported in 2005 (5) CTC 473, one of the questions raised by the tenant was that landlord was holding an advance amount for more than one month and therefore, the same should have been adjusted towards arrears of rent and that there was no wilful default and at paragraph Nos.15 and 16, this Court held as follows:
"15. There is no dispute that the respondent has become tenant pursuant to the Lease Agreement in writing. The terms of the Lease Agreement is to the effect that if there is default in payment of rent continually for a period of three months, the landlord is at liberty to adjust three months of rent and pay back the balance amount and claim vacant possession. The relevant recitals in Ex. A1 reads:
Local language deleted Having agreed so, it would be idle to contend that the landlord is having excess amount and that ought to have been adjusted with arrears of rent for nine months and claim that there is no wilful default.
16. As submitted by the learned Counsel for the petitioner/landlord, the defence is available only for adjustment of rent at the end of tenancy. In [Raminder Singh Sethi v. D. Vijayarangam], the Supreme Court has held:
4. Every tenant is obliged to pay or tender rent to the landlord within 15 days of the month to which the rent relates. The purpose of advance rent Page 2247 is to protect the landlord from the unscrupulous tenant who may run into arrears and vacate the premises and comfortably walk away with the arrears. The advance rent is available for adjustment or is liable to be refunded at the time of vacating of the premises except where the law or the contract between the parties provides to the contrary. We have already noticed that the provisions of the Act do not apply to the premises and, therefore, the landlord was not prevented by law from securing advance payment of rent by consent of the parties. It is not the case of the tenant that the contract between the parties provides for adjustment of rent no sooner it fell into arrears from out of the amount of advance rent. In short, the appellant tenant was not absolved of his obligation to pay the rent due monthly by month in spite of any amount of advance rent being available with the landlord.
The mere fact that the landlord had with him an advance amount does not mean that the tenant has not committed wilful default within the meaning of Section 10(2)(i) of the Act. The Courts below have rightly negatived the submissions made on behalf of the tenant that in view of the advance amount there is no wilful default. Broadly looking into the matter, it is a clear case of wilful default and the order of eviction passed by the Courts below on the ground of wilful default is to be endorsed with."
24. In Mr.Nandi Khanna vs Suneel Aiyer, reported in 2009 (2) CTC 495, one of the main contentions raised by the tenant was that the landlord, had not adjusted, the arrears of rent from the advance amount and when the advance amount retained by the landlord is over and above one month's rent, then, whether he is entitled to seek for adjustment of arrears of rent or not. After considering a line of decisions, Hon'ble Mr. Justice.A.C.Arumugaperumal Adityan, while clarifying and distinguishing a decision reported in K.Selvaraj Vs. J. Narayanan, reported in 2008 (2) CTC 375, held that adjustment of advance amount towards arrears of rent, is not permissible when arrears of rent exceeds advance amount.
25. Going through the impugned orders, it is evident that both the authorities under the Rent Control act, have followed the principles of law laid down by the supreme court. Therefore, the tenant / revision petition, who has committed willful default, in payment of rent from September 2004 onwards cannot complain that the landlords, ought to have deducted the advance amount, kept with them, during the period of tenancy and in such circumstances and further contended that no finding of willful default could be recorded against him. All the objections raised by the tenant in this revision petition, are negatived. There are no merits in the Civil Revision Petition warranting interference. The orders under challenge are confirmed.
26. The Rent Control proceedings have been instituted in the year 2005. The tenant has been inducted into the petition premises in the year 1993, for non residential purpose and that he is stated to be carrying business in the name and style of "National Auto Industries" as a proprietary concern. Considering the time consumed in the litigation and also the nature of the business carried on by the tenant for nearly 20 years, this Court, while confirming the orders of the Rent Control authorities, is inclined to grant four months time from the date of receipt of a copy of this order, to quit and deliver vacant possession of the petition mentioned premises viz., shop portion bearing No.4, in the ground floor measuring 1600 sq.ft., and the entire first floor of the premises bearing No.223/224, Bharathi Salai (Pycrofts Road), Triplicane, Chennai 600 005.
27. With the above directions, the Civil Revision Petition is dismissed. No Costs. Consequently, the connected Miscellaneous Petition is closed.
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