Madras High Court
Sikkanthar Bai vs Kumar on 7 September, 2017
Author: T.Ravindran
Bench: T.Ravindran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.09.2017
Date of Reserving the Order
Date of Pronouncing the Order
29.08.2017
07.09.2017
CORAM
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
C.R.P.(PD) (MD) No.1330 of 2017
and
C.M.P.(MD) No.6542 & 7300 of 2017
Sikkanthar Bai ... Petitioner
-vs-
Kumar ... Respondent
PRAYER: Civil Revision Petition is filed, under Section 25(1) of the Tamil
Nadu Buildings (Lease and Rent Control) Act, 1960, to call for the records
and to set aside the order, dated 27.02.2017, passed by the (Appellate
Authority Rent Control) Principal Subordinate Judge, Tirunelveli in
R.C.A.No.34 of 2011, confirming the order, dated 30.08.2010, passed by the
Rent Controller-cum-Principal District Munsif, Tirunelveli, in R.C.O.P.No.1
of 2007.
!For Petitioner : Mr.M.Vivekanandan
^For Respondent : Mr.T.Selvam
:ORDER
The civil revision petition is directed against the fair and decreetal orders, dated 27.02.2017, passed in R.C.A.No.34 of 2011, on the file of the Rent Control Appellate Authority / Principal Subordinate Judge, Tirunelveli, confirming the fair and decreetal orders, dated 30.08.2010, passed in R.C.O.P.No.1 of 2007, on the file of the Rent Controller / Principal District Munsif, Tirunelveli, by the tenant.
2. For the sake of convenience, the parties are referred to as per the nomenclature in the rent control original petition.
3. The case of the landlord in brief is that the petition schedule property (hereinafter, referred to as ?the property?) belonged to the landlord and the tenant had been inducted as a tenant at a monthly rent of Rs.200/- and the tenant had not paid any advance and the rent had been reflected in the passbook kept by the tenant and the tenant had paid the rent upto 31.12.2004 and defaulted in the payment of rent from 01.01.2005 and the said default is nothing but wilful and the landlord had sent a notice to the tenant. The property is fitted with tiled roof facing east and the tenant, without any permission from the landlord, had removed the roof on 02.11.2006 and demolished the western compound wall and constructed a new compound wall and in this situation, the landlord had laid a suit in O.S.No.607 of 2006, on the file of the Principal District Munsif, Tirunelveli, against the tenant and obtained interim injunction and on account of the above acts of the tenant, the value of the building has been diminished and hence, the petition for eviction.
4. The case of the tenant in brief is that in the suit laid by the landlord in O.S.No.607 of 2006, the tenant has filed a counter in the injunction application and a suit is also pending with reference to the title of the property in O.S.No.34 of 1999, on the file of the Sub Court, Tirunelveli. The tenant has paid a sum of Rs.7,000/- to the landlord as advance and it is true that the rent received is used to be reflected in the passbook kept by the tenant and lastly, the tenant had paid a sum of Rs.1,600/- towards arrears of rent for eight months commencing from 05.08.2004 till 05.04.2005 and the same has also been entered in the passbook kept and after 05.04.2005, the landlord refused to receive the rent and thus, the tenant had deposited the rent in his Post Office savings account No.457873, in the Head Post Office, Tirunelveli Junction, and there is no default in the deposit of rent in the above said account and it is false to state that the tenant had demolished the roof and wall as alleged in the petition and hence, the petition is liable to be dismissed.
5. In support of the landlord's case, P.W.1 has been examined and Exs.P1 and P2 have been marked and on the side of the tenant, R.W.1 has been examined and Exs.R1 to 14 have been marked.
6. On a consideration of the materials placed and the rival contentions put forth by the respective parties, it is found that the Rent Controller has ordered eviction of the tenant from the property on the ground of wilful default. It is further found that as regards the act of waste as pleaded by the landlord, there is no finding given by the Rent Controller and it could, therefore, be seen that the plea of eviction raised by the landlord on the ground of act of waste was not accepted by the Rent Controller. As against the determination of the Rent Controller that the tenant is liable to be evicted from the property on the ground of wilful default, the tenant has preferred an appeal and the Rent Control Appellate Authority also confirmed the decision of the Rent Controller and dismissed the appeal preferred by the tenant. Aggrieved over the same, the present civil revision petition has been laid.
7. The following points arise for consideration in this civil revision petition:
i. Whether the tenant is liable to be evicted from the property on the ground of wilful default as put forth by the landlord? and ii. To what relief the petitioner / tenant is entitled to?
POINT NO.I:
8. Considering the rival contentions put forth by the parties and also the pleadings set out, it is found that the property belonged to the landlord and the tenant is in occupation of the same at a monthly rent of Rs.200/-. It is also found that the rent being paid in respect of the property is reflected in the passbook kept by the tenant. Now, according to the landlord, the tenant had paid the rent only upto 31.12.2004 and thereafter, did not pay the rent and thus, according to the landlord, the default in the payment of rent by the tenant from 01.01.2005 is wilful and thus, he is liable to be evicted from the property on the said ground.
9. The said case of the landlord is resisted by the tenant on the footing that the wilful default pleaded by the landlord is incorrect and false, on the other hand, according to the tenant, he had been paying the rent regularly and in fact, he had paid the rent for the period from 05.08.2004 to 05.04.2005 in a lump sum of Rs.Rs.1600/- and the same is also reflected in the passbook maintained thereof and after 05.04.2005, inasmuch as the landlord had refused to receive the rent wilfully, according to the tenant, he had been necessitated to deposit the rent in the Post Office savings account and accordingly, he had been depositing the rent in the said account and hence, there is no default in the payment of rent and only on the deliberate refusal of the landlord, he was unable to tender the rent to the landlord directly and hence, the petition is liable to be dismissed.
10. As seen from the materials placed by the respective parties, it is found that in the passbook maintained for the reflection of the rent paid in respect of the property marked as Ex.R12, it is seen that the last entry was made on 05.08.2004 and the entry reflects that the sum of Rs.1600/- had been paid on that date. Now, according to the tenant, the said sum of Rs.1600/- represents the rent commencing from 05.08.2004 to 05.04.2005. Therefore, it is found that as rightly found by the Courts below, the tenant had paid the rent till 05.04.2005. Now, according to the landlord, the tenant has not paid the rent from 01.01.2005. Per contra, it is the case of the tenant, the landlord had refused to receive the rent after 05.04.2005 and left with no other alternative, he had been constrained to deposit the rent in the Post Office savings account and accordingly, depositing the rent in the said account, and hence, there is no default in the payment of rent and accordingly, the petition is liable to be dismissed.
11. It has not been clearly averred by the tenant as to why the landlord refused to receive the rent after 05.04.2005 as put forth by him. It is found that as rightly determined by the Courts below, when according to the tenant, the landlord had refused to receive the rent after 05.04.2005, nothing prevented the tenant from resorting to the provision outlined in Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act and in such view of the matter, on the refusal of the landlord to receive the rent, the tenant should have called upon the landlord by a notice to specify the bank account number into which the rent could be deposited to the credit of the landlord and in case of failure on the part of the landlord to specify such a bank account number, the tenant should have endeavoured to deposit the rent in the Court as stipulated therein. However, it is found that the tenant, without resorting to the said legal redressal, claims to have deposited the rent in the Post Office savings account, which is in his name and therefore, it is found that the said deposit would not in any manner be construed as a proper tendering of the rent to the landlord in respect of the property concerned. Therefore, when the law provides for a special machinery for the tenant to pay the rent on the refusal of the landlord to receive the same one way or the other, the contention of the tenant that by his act of deposit in his savings account, he cannot be termed as a wilful defaulter as such cannot be accepted in any manner. It is, thus, rightly found by the Courts below that the tenant has not tendered the rent to the landlord properly, even as per the case of the tenant from 05.04.2005 and therefore, it is found that the tenant has committed wilful default in the payment of rent as pleaded by the landlord and on that ground, as determined by the Courts below, he is liable to be evicted from the property.
12. A faint argument has been put forth before the Courts below as well as before this Court that the landlord does not own the property. However, considering the fact that the tenant had admitted his tenancy under the landlord, he cannot be allowed to dispute the title of the landlord in respect of the property and accordingly, it is found that the Courts below have rightly held that the tenant is estopped from questioning the title of the landlord to the property.
13. It is also found that the Rent Control Appellate Authority has rightly discountenanced the effort made by the tenant to adduce additional evidence and also to recall P.W.1 for further cross-examination and in such view of the matter, it is found that the tenant has failed to establish that he had paid the rent in respect of the property concerned regularly and without default. On considering the above position, it is found that as pleaded by the landlord, the tenant has committed wilful default in the payment of rent and he is liable to be evicted from the property on that ground. Accordingly, I hold that the tenant is liable to be evicted from the property on the ground of wilful default. Accordingly, Point No.I is answered in favour of the landlord and as against the tenant.
POINT NO.II:
14. In conclusion, the fair and decreetal orders, dated 27.02.2017, passed in R.C.A.No.34 of 2011, on the file of the Rent Control Appellate Authority / Principal Subordinate Judge, Tirunelveli, confirming the fair and decreetal orders, dated 30.08.2010, passed in R.C.O.P.No.1 of 2007, on the file of the Rent Controller / Principal District Munsif, Tirunelveli, are confirmed and resultantly, the civil revision petition is dismissed with costs. Consequently, connected miscellaneous petitions are closed.
To:
1.The Principal Subordinate Judge, Rent Control Appellate Authority, Tirunelveli.
2.The Principal District Munsif, Rent Controller, Tirunelveli.
.