Madras High Court
N.Vijayalakshmi vs C.R.Prasad @ Rajendra Prasad on 1 February, 2008
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 01.02.2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN CRP.(NPD).No.3457 of 2007 N.Vijayalakshmi .. Petitioner Vs. C.R.Prasad @ Rajendra Prasad .. Respondent Prayer:- This revision petition has been preferred under Section 25 of the Tamil Nadu Building (Lease and Rent Control) Act, against the order dated 15.2.2007 in RCA.No.86 of 2006 passed by the II Additional Subordinate Judge, Coimbatore (Rent Control Appellate Authority), confirming the order dated 14.10.2006 in RCOP.No.200 of 2003 on the file of the I Additional District Munsif, Coimbatore, (Rent Controller). For Petitioner : Mr.A.Jenasenan, Advocate For Respondent : Mr.N.Manoharan, Advocate ORDER
This revision has been preferred against the order in RCA.No.86 of 2006 on the file of the Rent Control Appellate Authority (II Additional Subordinate Judge, Coimbatore), which had arisen out of the order in RCOP.No.200 of 2003 on the file of the Rent Controller / First Additional District Munsif, Coimbatore. The said RCOP was filed under Section 10(2)(i) of the Tamil Nadu Building (Lease and Rent Control) Act.
2.According to the landlord, the tenant had committed willful default in payment of rent for the months of June and July - 2003 and admittedly the monthly rent for the petition schedule building is Rs.6,300/- per month. The tenant would resist the eviction petition on the ground that he had paid Rs.2,35,000/- towards advance for the petition schedule building and that he has not committed 'willful default'.
3.Before the Rent Controller, the petitioner examined himself as P.W.1 and exhibited Ex.P.1 to Ex.P.3. On the side of the respondent R.W.1 was examined and Ex.R.1 to Ex.R.4 were marked. After considering the submissions made by the learned counsel on both sides and after going through the evidence both oral and documentary the learned Rent Controller has come to the conclusion that there is no material to order eviction in favour of the landlord and accordingly, dismissed the petition. Aggrieved by the findings of the learned Rent Controller, the landlord preferred an appeal in RCA.No.86 of 2006 before the learned Rent Control Appellate Authority, who after due deliberation to the submissions made by the learned counsel for the appellant as well as the respondent, had come to the conclusion that there is no material to interfere with the findings of the learned Rent Controller and accordingly dismissed the appeal, against which the present revision has been preferred by the landlord.
4.Heard the learned counsel Mr.A.Jenasenan appearing for the revision petitioner and the learned counsel Mr.N.Manoharan appearing for the respondent and considered their respective submissions.
5.The only point to be decided in this revision is whether the defence taken by the tenant that he is entitled to adjust the arrears of rent towards the advance amount already paid to the landlord? The learned counsel appearing for the revision petitioner relying on AIR 1987 SC 1484 (Budhwanti and another Vs. Gulab Chand Prasad), would contend that if a finding of the Courts below was passed on wrong tests or is based on conjuectures, this Court can interfere with the concurrent findings of the Courts below even in the revision. Relying on AIR 1993 SC 1498 (Bhoja alias Bhoja Ram Gupta Vs. Ramshwar Agarwala and anothers) the learned counsel for the revision petitioner would contend that it is not open to the tenant to ask the landlord to adjust the advance amount in the hands of the landlord towards the arrears of rent. The exact observation in the above said judgment runs as follows:-
"The Madras High Court in Nune Panduranga Rao Vs. Divvala Gopala Rao, AIR 1952 Madras 827, while construing a somewhat similar provision contained in Section 7(2) of the Madras Buildings (Lease and Rent) Control Act held:
Under the express provisions of this section if the tenant has not paid or tendered the rent due by him within the time prescribed therein he is liable to be evicted. The section does not compel a landlord to adjust the excess amounts in his hands towards any arrears of rent if the said amounts were not paid by the tenant towards the rent of any particular month. It is true that on the date when a tenant authorities the landlord to adjust the amounts with him towards the rent of any particular month or months the amounts will be deemed to have been paid on that date towards rent. But till that adjustment is made and the amount is so appropriated, any amount is excess of the rent due with the landlord will only be payments made in suspense. The fact that such excess came into the hands of the landlord by reason of the Rent Controller's order fixing the fair rent does not really affect the question."
To controvert the above proposition of law the learned counsel Mr.N.Manoharan appearing for the respondent relying on a later judgment of the Honourable Apex Court decided by three judges in 1996(II) CTC 78 (K.Narasimharao Vs. T.M.Nasimuddin Ahmed), would contend that if a substantial amount than the amount under default is in the hands of the landlord by way of advance, then it is open to the tenant to resist the claim of the landlord on the ground that the default cannot be considered as a willful default. The relevant observation in the above dictum relied on by the learned counsel for the respondent runs as follows:-
"The provision clearly enacts the course to be adopted in the case of any excess amount being paid by the tenant to the landlord, taking into account the factor that the tenant in certain circumstances may be compelled to make payment as advance or an amount in excess of that required to be paid to the landlord according to law. For that situation the provision imposes the legal obligation on the landlord to immediately refund the excess amount to the tenant unless the tenant exercises the option of requiring the landlord to adjust that amount towards any dues of the tenant or in any other manner indicated by the tenant. This provision has the effect of creating a corresponding enforceable right in the tenant to recover the excess amount from the landlord or to have it adjusted for his benefit in case the landlord fails to discharge his obligation of refunding that amount. The provision of adjustment of the excess amount at the option of the tenant clearly visualises its adjustment towards the rent due from the tenant since the jural relationship envisages payment only of rent by the tenant to the landlord towards which it can be adjusted. . . . . . . . . . . .
Modern Hotel Vs. K.Radhakrishnaiah, 1989(2) SCC 686 was a case under Section 7(2) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act which is in pari materia with the corresponding provision in the Tamil Nadu Act. In that case the amount of arrears of rent was smaller than the amount of advance held by the landlord on account of the tenant and it was held that there was no default in payment of rent to permit a decree for eviction on the ground of arrears of rent."
So from the above said ratio decidendi it is clear that since a sum of Rs.2,35,000/- is in the hands of the landlord towards advance, the arrears of rent for the month of June and July - 2003 at the rate of Rs.6,300/- pm cannot be considered as a willful default. Under such circumstance, while exercising the revision power this court cannot interfere with the concurrent findings of the Courts below unless it is shown before this Court that the findings of the Courts below is perverse in nature and the finding has been rendered not on the basis of the evidence. I do not find any reason to interfere with the concurrent findings of the Courts below.
A.C.ARUMUGAPERUMAL ADITYAN, J.
6.In fine, the revision is dismissed confirming the Judgment in RCA.No.86 of 2006 passed by the II Additional Subordinate Judge, Coimbatore (Rent Control Appellate Authority). No costs.
01.02.2008
Index :Yes/No
Web :Yes/No
ssv
Note:- Issue on 4.2.2008
To,
1.The II Additional Subordinate Judge,
(Rent Control Appellate Authority),
Coimbatore.
2.The I Additional District Munsif,
(Rent Controller), Coimbatore.
CRP.(NPD).No.3457 of 2007