Madras High Court
S. Ramiah vs Ariyakudi Kalyana Krishna Hospital ... on 13 November, 1987
Equivalent citations: (1988)1MLJ237
JUDGMENT Srinivasan, J.
1. This Second appeal arises out of a suit for eviction filed by the lessor who was a trust against the appellant. Both the Courts below have granted a decree in favour of the plaintiff not only for possession but also for a sum of Rs. 915.80 by way of arrears of rent. The suit was originally filed by the trust represented by its Managing Trustee. When the appeal before the lower appellate Court was pending, respondents 2 to 4 herein filed two applications by one of which they sought to come on record as parties on the footing that they had become the owners of the property by virtue of a registered exchange deed dated 26.5.1982. By the other application the respondents 2 to 4 sought the permission of the Court to be represented by their power of attorney agent by name Raja Madhava Kalanidhi. Both the applications were ordered by the lower appellate Court, and two revision petitions were filed by the present appellant. They were numbered as C.R.P. Nos. 5223 and 5224 of 1983. They were disposed of by a common order dated 11.1.1984 which is in the following terms:
I do not think there is any legal infirmity in the order impleading the respondents herein in A.S. No. 46 of 1981 because the revision petitioner himself raised an objection that the original plaintiff (trust) having sold the property had no Locus Standi to prosecute the appeal. Therefore, rightly, they have been impleaded. However, this alone will not disentitle the revision petitioner from raising the plea that the suit itself is not maintainable since G.O. Ms. No. 2000 granting exemption from the provisions of the Rent Control Act was applicable only to trust. Subject to the above observations, the Civil Revision Petitions are dismissed. No costs.
2. The lower appellate court confirmed the decree passed by the trial Court, but unfortunately did not take care to specify whether the decree was in favour of the respondents 2 to 4 or not. That is an incidental technical objection raised by learned Counsel for the appellant. The substance of the judgment and decree have to be understood as granting a decree in favour of the respondents 2 to 4 who have become the owners of the property.
3. Four objections are raised by learned Counsel for the appellant/tenant. The first is that the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act became applicable to the suit property when the respondents 2 to 4 became the owners thereof. It has to be mentioned that in both the courts below a contention was raised that the plaintiff/trust was not a public charitable trust within the meaning of G.O. Ms. No. 2000, Home, dated 16.8.1976. Learned Counsel for the appellant argued before me also that the trust was not a public Charitable trust and the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act were applicable to the property even at the time of the institution of the suit. A perusal of Ex. A-1, the trust deed, puts the matter beyond doubt that the trust is a public charitable trust which would come within the scope of G.O. Ms. No. 2000, Home, dated 16.8.1976. There is no substance in the contention of learned Counsel for the appellant that the trust was not a public trust.
4. Learned Counsel contends that the G.O. is applicable only to buildings owned by a public charitable trust and once the building ceased to be owned by such a trust, the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act would automatically apply. The lower appellate Court has taken the view that at the time of the institution of the suit the building was owned by a trust and therefore the respondents 2 to 4 could continue the proceedings and execute the decree on account of the provisions of Order 21, Rule 16 of the Code of Civil Procedure. I am unable to agree with this particular observation of the lower appellate Court. The question whether the Act is applicable to the suit building after it became the property of the respondents 2 to 4 has to be considered having regard to the provisions of the Act. That question does not strictly arise in this appeal because the consistent view of this court is that the maintainability of a civil suit for recovery of possession is not affected by the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. However, this Court has taken care to point out that the decree would not be executable if the provisions of the Act are applicable to the suit building and if the tenant is entitled to the benefits of the Act. That is a question which has got to be decided by the executing Court before executing the decree for possession. This position is made clear by the Division Bench of this Court in Hajee Abdullah v. Mohandas . It will be useful to set out the following relevant observations made by the Division Bench in that case:
The basis of this argument is that the executing court cannot go into the question as to whether a decree for possession is executable or not. In reply to this contention, Mr. Govind Swaminathan, learned Counsel for the respondents, referred us to the decision of this court in Muhammadunny v. Melepurakkal Unniri (1949)1 M.L.J. 452 : A.I.R. 1949 Mad. 765 : I.L.R. 152 : 63 L.W. 1059 : 1949 M.W.N. 220 and that of the Supreme Court in B.V. Patankar v. C.G. Sastry . These two decisions are clear authority for the proposition that the jurisdiction of the civil court in maintaining a suit for possession against a tenant is not taken away because of the Rent Control Act and the Civil Court has ample jurisdiction but the remedy of the tenant is at the stage of execution when he can insist that under Section 10 of the Rent Control Act or similar provisions execution can only be in accordance with the provisions of the particular Act. In this view we are unable to accept the contention of the learned Counsel for the appellant that the question whether the decree could be executed or not should be raised at the stage of the trial of the civil proceedings.
5. It is argued vehemently by learned Counsel for the respondents that the tenant in this case had expressly waived the benefits of the Rent Control Act under Ex. A3 executed by him on 30.6.1979. I am of the opinion that the question whether the tenant had waived the benefits of the Act and was not entitled to take advantage of the provisions of the Act has also got to be considered by the executing Court. While the tenant raised the plea that after the respondents 2 to 4 became the owners of the building, the provisions of the Act would be applicable and the remedy of the respondents 2 to 4 could only be to proceed under the act, on the other hand the respondents contended that the tenant having waived the benefits of the Act he was not entitled to raise this plea. Both the questions will have to be considered by the executing Court at the stage of execution. It is made clear that the executing Court will issue a notice to the appellant herein when the proceeding for execution is initiated by the respondents.
6. The second contention of learned Counsel for the appellant is that he became a tenant with reference to Door No. 5, M.M. Street, Karaikudi, which stood on two survey numbers viz., T.S. Nos. 38 and 39. According to him the first respondent became the owner of T.S. No. 38 only and did not get any right to T.S. No. 39. The contention proceeds that the rent was fixed for both the survey numbers and the decree of the Courts below as if the entire rent of Rs. 100 per mensem was attributable to T.S. No. 38 alone, which is the subject-matter of the suit, are not correct. This contention is without any substance. Even if the first respondent became the owner of the suit property viz. T.S. No. 38, under the exchange deed dated 27.7.1978, the appellant never disputed his liability to pay a sum of Rs. 100 per mensem as rent for Door No. 5 situated in T.S. No. 38. In fact Ex. A3 executed by the appellant proceeds on the footing that he was liable to pay the entire sum of Rs. 100 to the first respondent. It is not the case of the appellant that he was paying a portion of the rent to the prior owner of the land who continued to be the owner of T.S. No. 39 according to him. It cannot be disputed by the appellant at this stage that he is the tenant with reference to Door No. 5. Admittedly Door No. 5 is one building and eviction is sought with reference to that building. The appellant cannot make a distinction between the two survey numbers T.S. Nos. 38 and 39 and thereby split up the rent of Rs. 100 per mensem.
7. Another limb of the said argument is that the appellant had paid a sum of Rs. 1,100 on 30.8.1979 to the first respondent and therefore there were no arrears on the date of the suit. This factual plea has been clearly found against by both the Courts below. The lower appellate Court has referred to the relevant evidence and held that the appellant has not made out his plea of payment of Rs. 1,100 on 30.8.79. I do not find warrant for interference with that finding of fact.
8. The third contention urged by learned Counsel for the appellant is that he had spent a sum of Rs. 2,923 for effecting repairs to the suit building and that amount should be given credit to by the respondents and adjusted as against the arrears of rent. In support of this claim the appellant has filed certain receipts alleging that they relate to the purchase of materials and effecting of repairs. Exs. B2 and B9 are the relevant receipts. They relate to years 1975 and 1976. Admittedly the first respondent became the owner of the property only in July, 1978. If the appellant put forward his claim on the basis of Exs. B2 to B9, he cannot seek to adjust that claim as against the rent due to the first respondent. With regard to Exs. B14, B15 and B20, they are admittedly after the suit. They have been rightly rejected by the Courts below. I do not find any justification for interference with the finding of the Courts below on this aspect of the matter.
9. The last contention, which according to learned Counsel for the appellant is the most important contention, is that the suit was not maintainable as there was no notice of termination of tenancy. This contention was rejected by the Courts below on the ground that the appellant had expressly stated in Ex. A3 that he would vacate the premises on 1.9.1979. Ex. A3 is a document executed on 30.6.1979 where the appellant agreed to pay the entire arrears on or before 31.8.1979 and settle the account. He has added that in case of failure to settle the account he would not claim the benefits of the Rent Control Act or any other Act and that he would not claim any tenancy right thereafter. It is also stated therein that the landlord could without any reference to the tenant take possession from 1.9.1979. It is argued by learned Counsel for the appellant that this document is in effect a modification of the terms of the original lease and therefore it requires to be stamped and registered as a lease deed. It is not proved before the Court that the original lease was by a document. No such document has been produced. If the original lease was only oral then there is no bar to the parties to have a document like Ex. A3 imposing a condition on the tenant that he would vacate by 1.9.1979 if he failed to comply with the conditions set out therein.
10. Next argument of learned Counsel for the appellant is that this document would fall under Section 111(g) of the Transfer of Property Act. Section 111(g) deals with forfeiture. Three instances are mentioned in the section as to when forfeiture will be invoked. The first is that the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter. According to learned Counsel the document provides for an express condition that the lessee would pay the arrears of rent on or before 31.8.1979 and in breach thereof, the lessor could re-enter. Learned Counsel for the respondents submits that in order to bring the case within Section 111(g) it should be a condition in the original lease. If it is not a condition in the original lease then Section lll(g) would not come into play. According to learned Counsel Section lll(b) would apply to this case. That Sub-section deals with the time-limit conditionally on the happening of some event. According to learned Counsel for the respondents the time was limited to 31.8.1979 on condition that the lessee pays the entire rental arrears by then. By the happening of the event i.e., the failure of the lessee to pay the landlord the rental arrears, the time-limit prescribed by the document Ex. A3 could be enforced. In my opinion neither contention is acceptable. "I would consider Ex. A3 as a notice on the part of the lessee to the lessor, intimating the lessor that he would vacate on 1.9.1979 if he fails to pay the rent. The Courts below have proceeded on the footing that Ex. A3 would be a contract to the contrary within the meaning of Section 106 of the Transfer of Property Act. It is not necessary to hold that it is a contract to the contrary. My reading of Ex. A3 is that it would tantamount to a notice on the part of the lessee to the lessor that he would vacate by 1.9.1979. This document was executed on 30.6.1979 and a notice of two months period had been given to the lessee and it expires with the end of the month of tenancy. Hence it is not open to the lessee/appellant to contend that the suit was bad for want of notice of termination of tenancy, when he had himself chosen to agree to vacate on a particular date. It was not necessary for the lessor to issue a notice terminating the tenancy. The tenancy had come to an end on 31.10.1979 as the lessee failed to pay as agreed under Ex. A3. Consequently the contention that the suit was not maintainable as there was no notice of termination of tenancy has to fail.
11. Learned Counsel for the respondent relied on the decision of the division bench of this Court reported in Globe Theatre Private Ltd. v. State of Madras 73 L.W. 699 : 1960 M.W.N. 816. That was a case in which the validity of a Government order passed under Section 13 of the Rent Control Act exempting a particular building from the provisions of the Act was challenged. While negativing the contention urged on behalf of the appellant before the Bench, who was a tenant of the building, that the exemption could be granted by the Government under Section 13 only on a ground relating to the building as such and not relating to the owner of the building, the Bench observed thus:
It is difficult for us to conceive of a case where the ground can have relation to the building without having relation to the owner of the building because it is the owner who seeks the exemption. The building itself does not. The Act itself is full of provisions including grounds on which eviction can be obtained, which are personal either to the landlord or to the tenant, as for example, a Bona Fide requirement for occupation, sub-letting, wilful default in payment of rent, etc. I do not know how this observation could help learned Counsel for the respondents in the present case. It is not necessary for me to deal with this question further as I left open the question of the applicability of the Act to be decided by the executing Court. The next decision relied on by learned Counsel for the respondents is that of the Supreme Court reported in Lachoo Mal v. Radhey Shyam . In that case, the Supreme Court held that it was open to the party to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity. That also is not a matter to be considered by me at this stage as I have directed the Executing Court to decide whether the lessee in this case had waived the benefits of the Rent Control Act.
12. In the result, the second appeal fails and it is dismissed. I have already made an observation that the executing Court should give notice before executing the decree and it is open to the tenant to raise the contention that he is entitled to the benefits of the Rent Control Act. That contention will be considered by the executing Court on its merits. No costs.