Madras High Court
Dr.V.K. Jayalakshmi vs Mrs. M.S. Meenakshi And Another on 23 February, 1998
Equivalent citations: 1998(1)CTC761, (1998)IIIMLJ72
ORDER
1. The revision petitioner is the tenant/respondent in R.C.O.P.No.3335 of 1986 in the file of the 11th Small Causes Judge (Rent Controller) Madras and the respondent in R.C.A.No.5 of 1990 on the file of the 8th Small Causes Judge (Appellate Authority) Madras. The respondents 1 and 2 are the petitioners in the rent control proceedings (landladies) and the appellants before the appellate authority. In this order, the parties to this revision will hereinafter be referred to as the landladies and the tenant respectively.
2. I heard Mr.N.Krishna Mitra, learned counsel appearing for the revision petitioner and though the respondents had been served, yet they have not chosen either to engage a counsel to defend then here - or they were present before court. Under these circumstances, this revision is disposed of on the basis of the arguments advanced by the learned counsel for the revision petitioner and after perusing the records.
3. The landladies filed an application for eviction against the tenant on the ground of wilful default in the payment of rent and for owner's occupation (Residential purpose). Before the Rent Controller, the first landlady examined herself as P.W.1 and Exhibits P.1 to P.12 were marked. The tenant examined herself as R.W.1 and Exhibits R.1 to R.4 were marked. The Rent Controller on going through the materials placed before him found that the landladies have not made out their case at all on both the grounds and thus, rejected the rent control petition. The landladies filed an appeal on both the grounds before the appellate authority. The appellate authority found that the landladies are entitled to an order of eviction only on the ground of owner's occupation and thus, rejecting the petition on the ground of wilful default, ordered eviction on the ground of owner's occupation alone. The correctness of which is being questioned in this revision by the tenant.
4. The rent control petition relates to the non-payment of rent from April 1986 to September 1986, both months inclusive. As far as the owner's occupation is concerned, the case of the first landlady is that they are residing in a rented flat at Mandaveli, Chennai and therefore they are in need of the tenanted premises in the occupation of the tenant for their own residential purposes. Incidentally, it is also stated in the rent control petition that besides the first landlady, their relatives as well as her mother is also living with her. The tenancy as per the allegation in the rent control petition is for residential purposes. In the counter statement, the tenant took the stand that there is no wilful default at all in the payment of rent. It is stated in this context as follows:
"That rents have not been paid for April, May, June and July 1986 as a deliberate falsehood. On the other hand there is no question of this respondent not paying the rent for April and it is only from May onwards rents which were sent have been detained and sent over in September 1986 and thereafter by reason of the claim made by a person the rents have not been paid as there was no occasion to recognise the claims of the petitioner in the wake of objection that had been raised. There is no legal basis for the plea of default much less wilful as indicated. This respondent is ready and willing to deposit the rents into court provided the same is withdrawn by a proper and competent person after satisfaction of title."
5. As far as the requirement of the owner's occupation is concerned, it is stated by the tenant in the counter that the second landlady is living in America and she had acquired that country's citizenship. She had no idea of returning to India. The first landlady had also decided to go to America and live with her daughter. Therefore the requirement of owner's occupation is baseless. The claim that the first landlady's relatives are residing with her cannot be taken into account to conclude that they constitute a family arid therefore that ground cannot be put forward to decide the requirement of the landlady. The statement of the landladies that the first landlady is living in the rented premises was disputed. As far as the nature of tenancy is concerned, it is stated in the counter affidavit that the tenancy is for non-residential purposes and that the respondent is running a clinic with beds in the first floor and medical attention for skin diseases, opthalmic and E.N.T. by employing specialists. These facts were fully known to Dr.Kanthamani and the tenant had invested a huge sum of Rs.50,000 in the medical practice. The expenses so incurred by her was being deducted by her from the monthly rental. Therefore the building is predominantly non-residential in character and only a small portion is used for residence.
6. The learned Rent Controller also found that the tenancy was for non-residential purposes, i.e., permitting the tenant to run a clinic; however the learned appellate Judge went into the matter afresh and found that at the inception of tenancy it was for residential purposes and it was only later on put to use for non-residential purposes, namely to run a clinic. The landladies have succeeded before the appellate authority on the ground of owner's occupation and they lost on the ground of wilful default. That portion of the judgment of the appellate authority rendered on the ground of wilful default is not challenged by the landladies in a separate revision before this court. However as held by former Honourable Chief Justice. M.N.Chandurkar of this court in a judgment reported in M.R.M. Durai Appa Nadar v. P. Thirupurasundarai Ammal, 1989 (1) L.W. 46 (SN) (Summary of judgment) that in the absence of any revision by the landladies before this court, it would be permissible for them to argue that the order of eviction should also be sustained on the ground which was found against them before the courts below, I am inclined to go to into the correctness or otherwise of the decision of the appellate authority on the question of wilful default also in this revision.
7. Let me now decide whether the tenancy is for residential or non-residential purpose. It has been elaborately contended by Mr.N.Krishna Mitra, learned counsel appearing for the revision petitioner that the tenancy is for non-residential purpose and therefore the landladies application for eviction on the ground of owner's occupation treating the tenancy as residential tenancy is legally impermissible. Therefore if that submission of the learned counsel for the revision petitioner is found to be correct, then the requirement for owner's occupation of the residential building has to be necessarily rejected. There is no dispute that the tenancy commenced from 15.2.1981. The tenant was inducted into possession by Dr.Kanthamani. The tenant is also a Doctor by profession. Dr.Kanthamani is non else than the mother-in-law of the first landlady and the grandmother of the second landlady. There is a document dated 18.2.1981 which is marked in this case as Ex.P.12 (Copy) and Ex.R.1 (Original). This document evidences the rent per month. Ex.P.12 contains an endorsement signed by one Prakash for and on behalf of the tenant for having received the key with one fan and all bathroom fittings intact. There is no whisper at all in this document about the nature of the tenancy namely, whether it is for residential or non-residential purpose. Dr.Kanthamani is proved to have died on 8.5.1986. It appears that Dr.Kanthamani had negotiated with the tenant before the premises was let out. Unfortunately Dr.Kanthamani is not alive. But during her life time, a lawyer's notice dated 23.1.1984 was issued on behalf of Dr.Kanthamani to the tenant. This notice is marked as Ex.P.1 and the acknowledgement due is marked as Ex.P.2. In this notice it is mentioned that the tenancy is for residential purposes. The receipt of this notice is not denied by the tenant when she gave evidence. She would also state that she does not remember whether she sent a reply to Ex.P.1 or not. This notice was issued at a time when Dr.Kanthamani was alive. If really the statement made in this notice regarding the nature of tenancy is incorrect, then the immediate reaction of the tenant, especially when she is a Doctor by profession, should have sent a reply asserting the correct position. Therefore in the absence of any such reply on the lines indicated above, I am of the opinion that the contents of Ex.P.1 can safely be takeninto account to decide the nature of tenancy as one for residential purpose only and not for any other purpose.
8. In the counter statement I find that the premises is predominantly non-residential in character and only a smalt portion is used for residence. The tenant has not placed any material at all before the court to substantiate the plea that the building is predominantly non-residential in character. According to the case of the tenant before this court, she is running a poly clinic in the tenanted premises. Therefore it would have been definitely within her reach to establish the fact that she is having a poly clinic in the tenanted premises by either examining the Doctors who attend the poly clinic and rendered service or by producing any connected records. Since she relies upon the predominant character of the building as one for non-residential purpose and only a negligible portion being used for residential purpose, it is for her to prove that she is actually using the building predominantly for non-residential purpose and only negligibly for residential purpose. At the risk of repetition, I want to make it clear that there is absolutely no evidence at all in this case to show that the use of the building is as projected by the tenant.
9. The purpose of letting must be decided with reference to the commencement of the tenancy and not with reference to any time thereafter. If it is proved that at the inception of the tenancy it is only for residential purpose, the mere fact that the building had been subsequently used for non-residential purpose by the tenant unilaterally would not amount to changing the character of the tenancy itself. Therefore even assuming for a moment without admitting that the tenant had proved the use of the building for non-residential purposes, yet unless she establishes the fact that such use was permitted from the commencement of the tenancy itself, it cannot be held that the tenancy is for non-residential purpose only. To show that the tenancy is for non-residential purpose only even from the commencement thereof, the tenant relies upon Ex.R.3 which is a letter proved to have been returned by Dr.Kanthamani to the Branch Manager, State Bank of India. This letter is dated 12.3.1983. It appears that the tenant wanted to avail a loan from the said Bank. In that context, that letter had come into existence. It reveals that Dr.Kanthamani will not have any claim over the equipments namely, operation light, operation table, auction apparatus, sterilising bins, byle's apparatus, etc., held in the tenanted premises by the tenant in respect of any rental arrears and that the Bank would have a prior lien on all the goods and machineries stored therein and pledged to the Bank. From this, the learned counsel for the revision petitioner argued that unless from the inception of the tenancy itself the premises was let out for non-residential purpose, there is no question of Dr.Kanthamani mentioning about the presence of these machineries connected with the hospital in the tenanted premises. The circumstances under which the loan was applied for, whether it was sanctioned or not and whether any machineries that were stated to be kept in the tenanted premises as could be seen from Ex.R.3 were pledged or not, are not placed before court. I have already referred to Ex.P.1 which is dated 25.1.1984 i.e., more or less 10 months after Ex.R.3. When Ex.P.1 was written by Dr.Kanthamani, it is not shown that the relationship between her and the tenant had sufferred a setback. It appears from Ex.R.2, the letter dated 2.4.81 written by Dr.Late Kanthamani to the tenant that the relationship was so very cordial and it was almost like that of sisters! If this cordial relationship between Dr.Late Kanthamani and the tenant is safely accepted, then there is no reason at all as to why Dr.Kanthamani should have mentioned in Ex.P.1 that the tenancy is for residential purpose only. The closeness of the relationship between Dr.Kanthamani and the tenant probably would have resulted in her writing a letter (Ex.R.3) to the Bank to help the tenant. Therefore from the mere fact that Dr.Kanthamani, while alive, acknowledged presence of certain machineries connected with medicine in the tenanted premises does not by itself would lead to the conclusion that the tenancy even at the inception was only for non-residential purpose. The relationship after the death of Dr.Kanthamani appears to have been strained on account of non-payment of the rent and therefore for the first time under Ex.P.8 the reply notice dated 7.9.86 only, the stand was taken that the tenancy even at the inception is for non-residential purpose only. No materials worth mentioning and worth acceptance have been placed before the court by the tenant except Ex.R.3, that the tenancy even at the inception is only for non-residential purpose. In the absence of the nature of the tenancy in Ex.P.12, corresponding to Ex.R.1 coupled with Ex.P.1 leads me to the conclusion that the tenancy is for residential purpose only.
10. It is no doubt true as found by the courts below that P.W.1, while giving evidence admitted that in the civil suit filed by Late Kanthamani and the present landladies against the tenant in the City Civil Court at Madras for possession, it had been admitted in that plaint that the tenancy is for non-residential purpose only. Much arguments have been advanced on the basis of this evidence. The plaint in that suit namely, O.S.No.4358 of 1984 was neither marked nor does it appear to have been given to P.W.1 to refresh her memory when she gave that evidence. It may be noticed here that the examination of P.W.1 appears to have commenced on 4.4.89 and it was closed on 13.4.1989. Under these circumstances, I sent for the original plaint in O.S.No.4358 of 1984 from the City Civil Court, Madras and on a perusal of the same, I find that it is clearly stated therein that the tenancy is for residential purpose only. The evidence of R.W.1 also in this case shows that Late Kanthamani was running a nursing home in an adjoining building of her own and that she was using one room in the tenanted premises for consulting. In the upstairs portion, Late Kanthamani's son was residing. Of course, R.W.1 would plead that she did not know the details of the tenants in the building. However P.W.1 stated that her husband namely, the son of Late. Kanthamani was residing in the first floor and there was a tenant in the ground floor. Since the husband of P.W.1 committed suicide, the tenant in the ground floor vacated. Therefore it appears that the tenanted premises before it was let out to the tenant was predominantly used for residential purpose only. The contention of the tenant that she was unmarried on the date of the commencement of the tenancy; she was already living in a rented house in a different area; there was no need at all for her to look out for another rented house for residential purpose; she took the building and that too only for non-residential purpose in the background of the being a professional lady i.e., a Doctor, does not appear to be a good ground to decide in favour of the tenant and the purpose of the tenancy. Therefore I am in full agreement with the appellate authority that the tenancy is for residential purpose only.
11. Coming to the question of wilful default, the following facts emerge from the evidence. Late Dr.Kanthamani died on 8.5.86. The letters dated 26.5.86 and 26.6.86 marked in this case as Ex.P.4 and Ex.P.6 and written by the first landlady to the tenant informing about the death of Dr.Kanthamani, were returned since she was not available during the relevant time in the tenanted premises. In the meantime, it appears that the tenant had sent three cheques dated 30.5.86, 25.6.86 and 25.7.86, each for a sum of Rs.1,500 drawn in the name of Dr.Kanthamani. Admittedly, all the three cheques were returned by the first landlady to the tenant stating that the cheques should be drawn in the name of the first landlady and as enclosure to the lawyer's notice dated 26.8.86, marked as Ex.P.7 in this case. Ex.P.8 is the reply by the tenant to the lawyer's notice dated 7.9.86. Therefore it is clear that for the first time, the tenant had come to know about the death of Late Kanthamani only on receipt of Ex.P.7. A reading of Ex.P.8 shows the following:
"As far as my client is concerned, my client had an occasion to her a claim by a person calling on her about 10 days back claiming that Dr.Kanthamani had left behind a "Will" and under the said "Will" she had bequeathed the property to the gentlemen. My client has asked for the particulars of the "Will" on the claim in writing. My client is yet to receive the claim from the said gentlemen. Therefore my client will not accept the claim of your client and would wait atleast till month end to know the truth or otherwise claimed by that gentlemen. If she does not receive any claim from that gentlemen till the month end, then she would send the cheque in the name of your client as indicated in your notice."
12. Ex.P.8 is dated 7.9.86. In the counter statement also there is a reference to the claim made by the gentlemen on the same lines as indicated in Ex.P.8. No details about the gentlemen who had made the claim is given either in Ex.P.8 or in the counter statement. The tenant is an educated lady and she is a doctor by profession. Therefore she might have been justified in holding the rent till the end of September 1986 as set out by her in Ex.P.8. It is not her case that any time subsequent to Ex.P.8, claim made by the so called gentlemen was persisted. There is no evidence at all before court on this aspect. If that is so, then by the end of September, 1986, the tenant was free to pay the rent to the landladies. However she had not done so and it has come out in the evidence of P.W.1 that the tenant was in arrears of rent on the date of the filing of the rent control petition i.e., from May, 1986 to October, 1986. During the pendency of the rent control proceedings, the tenant paid in October, 1987 a sum of Rs.2,500; in September, 1988 a sum of Rs.l9,000 and the balance amount of Rs.9,000 in February, 1989.
13. The case of the landladies are that the tenant did not pay the rent month after month. Even the tenant in her evidence as R.W.1 would state that during the pendency of the proceedings, she has paid the arrears of rent. On these undisputed facts, the question that falls for consideration is whether the tenant is guilty of committing wilful default in the payment of rent. The answer cannot be in any other form than being in the affirmative. The rents for the months of May, June and July, 1986 were sent by the tenant in the name of Dr.Kanthamani, who was not alive then. Therefore the landladies were justified in returning those cheques to the tenant. The tenant came to know about the death of Dr.Kanthamani only on the receipt of Ex.P.7, which is dated 26.8.96. Therefore as stated by the tenant in Ex.P.8, she might have been justified in holding the rent till September, 1986. However she has no reason whatsoever as to why she has not paid the rent immediately after the expiry of 30.9.86. The rent control petition itself came to be filed on 20.10.86 and the first hearing was on 1.12.86. The tenant had not even chosen to pay the rent atleast at the first hearing or immediately thereafter, but she went on withholding the rent without any justifiable cause. Under these circumstances, I am inclined to disagree with the appellate authority on the finding rendered by that court on the issue of wilful default against the landladies. In the result, I hold that the tenant is definitely guilty of committing wilful default in the payment of rent.
14. Coming to the question of owner's occupation for residential purpose, even in Ex.P.1 the requirement on the ground of owner's occupation has been clearly reflected. In Ex.P.1 it is stated that Dr.Kanthamani and the present landladies are living in a rented house. There is no denial of the statement made in this notice. The landladies pleaded that they are living in a rented flat bearing No.B.2, Ayodhya Flats, Mandaveli, Chennai-28. It is stated to be belonging to one A.P.Srinivasan. Exs.P.9 and P.10 are the letters dated 6.5.86 and 3.3.89 written by the said A.P. Srinivasan to the landladies. The rent for the month of April 96 was acknowledged. The said A.P.Srinivasan was in Bangalore at that time and the first letter records that he had been transferred to the Madras Office and that he had secured an admission for his son in Padma Seshadri School, Madras. In the second letter written from Madras, to the first landlady, the said A.P.Srinivasan referring to premises B.2, acknowledged receipt of the rent for the month of February, 1989. Under these circumstances, I am satisfied that the building in which the first landlady was residing is a rented building and that it did not belong to her. The argument of the learned counsel for the revision petitioner that from Exs.P.8 and P.9 it cannot be inferred that the premises in the occupation of the first landlady is the tenanted premises because there is no reference to the premises itself. But I find from Ex.P.10 a reference to the Flat No. in the occupation of the first landlady. The landladies evidence on the requirement of the tenanted premises for her own occupation stands fully established. The fact that the landlady had stated that besides her a number of other family members are also residing with her in the tenanted premises and that since she has failed to prove the residence of those members along with her, her claim cannot be treated as bona fide, do not appeal to me at all. To get an order under section 10(3)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, it is not necessary that a person, who requires the residential hose for her own occupation, should necessarily establish that she is residing with a number of other persons in a rented place. What all the section requires is the landlady not being in occupation of a residential house Of her own; the requirement of the house concerned for the residential purpose and that the said requirement being bona fide. Considering all the materials placed before court, I am of the considered opinion that the landladies had established all the three requirements of law referred to above by me and therefore the landladies are entitled to succeed on that ground as well.
15. In the result, I find that the landladies have established that the tenanted premises was let out only for residential purpose; the tenant is guilty of committing wilful default in the payment of rent and the landlady had established her requirement of the tenanted premises, in her own occupation. For all the reasons stated above, I find no merits in this revision and it is accordingly dismissed. There will be no order as to costs. At this stage, Ms.Kalpana, learned counsel appearing for the revision petitioner requested six months time for the tenant to vacate. As already stated the landladies did not appear in person or engage any counsel. Taking into account the request made by the learned counsel for the revision petitioner, I am inclined to grant six months time from today to the revision petitioner to vacate and handover vacant possession of the premises forming the subject matter of the C.R.P. to the landladies, on condition -that the revision petitioner files an undertaking affidavit before this court within three weeks from today, agreeing to vacate and handover vacant possession of the premises as stated above without forcing the landladies to the execution proceedings, failing compliance of any of the above conditions will result in the order of eviction being put into execution forthwith without any further reference to court.