Madras High Court
The Nilgiris Co-Operative Marketing ... vs C.T. Uthandi on 19 February, 1998
Equivalent citations: (1998)2MLJ745
ORDER R. Balasubramanian, J.
1. The revision petitioner is the tenant/respondent in R.C.O.P. No. 58 of 1988 on the file of the Rent Controller (District Munsif), Uthagamandalam and the appellant in R.C.A. No. 39 of 1990 on the file of the Appellate Authority (District Judge) Uthagamandalam. The respondent is the petitioner/ landlord in the proceedings before the Rent Control Court and the respondent before the Appellate Authority. The tenant suffered an order of eviction on two grounds namely, wilful default in the payment of rent as well as on the ground, of additional accommodation, rendered by the Rent Controller and affirmed by the Appellate Authority. The correctness of the orders referred to above are questioned in this revision.
2. The agreed rent is Rs. 230 p.m. from January, 1987 till January, 1988 the tenant had committed default in the payment of rent. The landlord issued a notice dated 14.12.1987, through his lawyer demanding the arrears of rent upto that date as well as for the vacant possession of the premises. The tenant sent a reply enclosing a cheque- for a sum of Rs. 2,990 for the period commencing from 1.1.1987 to 31.1.1988, both months inclusive. Again the tenant had not paid the rent from 1.2.1988 to 30.10.1988, both months inclusive, amounting to Rs. 2,070 and such non-payment is definitely wilful. The Rent Control petition itself came to be filed before the court on 22.11.1988. As far as the requirement of additional accommodation is concerned, the case of the landlord is that, he is carrying on business in grocery, both as a retail dealer and as a wholesale dealer in the municipal market at Ooty. The petitioner is having only one godown bearing Door No. 185-A in Ooty Town, where he is storing the articles and commodities. The tenant is in occupation of the godown bearing Door No. 185-B in the same ward namely, Ward No. 9. The godown bearing Nos. 185-A and 185-B are in a single building consisting of two rooms : one room bearing No. 185-A and the other one bearing No. 185-B. Both the door numbers are inter-connected with each other and in the dividing wall there is a door providing access from one premises to the other and, vice versa. Since the godown bearing No. 185-A, in the possession of the petitioner is not sufficient to meet his business requirements as the wholesale trader, and since he is carrying on his business in a large scale, it requires storage of large quantities of commodities. For want of sufficient big godown, the landlord is not able to meet his customers' demands or expand his wholesale business, as he is not in a position to stock sufficient quantities of the commodities. Therefore, the premises is required for his additional accommodation. The tenant filed a counter as far as the default complained of against him is concerned, he would state that he is not in arrears of rent as alleged; no demand for rent was made by the petitioner and when the petitioner demanded the rent, it was paid immediately. The petitioner had suppressed the material facts and had allowed the rents to accumulate to create cause of action for filing the eviction petition. The rent mentioned in para 6 relates to the default period, which is being complained in the present case and since the rent for the period complained of has already been paid, there is no default, wilful or otherwise. The landlord has concealed the payment of rents. The rent was accumulated on account of the conduct of the landlord and he cannot take advantage of his own conduct to put forward a case on that ground. The tenant is a registered society and is a reputed Co-operative Society. Therefore there would not have been any necessity for the tenant to withhold the rent. As far as the requirement of additional accommodation is concerned, it is stated that the averments contained in the Rent Control Petition are nothing but tissues of lies; the immediate necessity of the landlord is a myth pressed into service without any rhyme or reason. The relative advantages and disadvantages and the balance of convenience will negative the landlord's claim. If eviction is ordered, the tenant would be put to very great hardship. Whereas by negative the relief, the landlord will not be put to hardship. The landlord's claim is not bona fide The tenant has no other premises of his own in the local vicinity and as such, he cannot cater to the needs of the local people. Therefore, it is absolutely necessary that the possession of the building by the tenant should not be disturbed. On behalf of the landlord, the landlord himself was examined as P.W.1, and on behalf of the tenant, one of the staff was examined as R.W.1 Exs.P-1 and P-2, the notice dated 14.12.1987 from the landlord to the tenant and the reply dated 27.1.1988 were marked in this case. After considering the materials placed before the Rent Controller, he cape to the conclusion that the request of eviction on the two grounds mentioned above must be sustained and it was affirmed in appeal.
3. I heard Ms. Asha, learned Counsel appearing for the revision petitioner and Mr. S.K. Rakhunathan, learned Counsel appearing for the respondent. It was argued by the learned Counsel, for the revision petitioner that as there is no pleading on relative hardship in the Rent Control Petition on behalf of the landlord, which is a statutory requirement, the Rent Control Petition must be dismissed on that ground alone. According to her, the necessity to plead on relative hardship is a mandatory requirement and therefore the Rent Control Petition must fail on that sole ground. Secondly it was argued by her that on the facts and circumstances made available in this case, the landlord has not made out any case at all for getting an order of eviction on the ground of additional accommodation. In elaborating this point, the learned Counsel would state that the landlord, though claims that his business is expanding by leaps and bounds, which is capable of being established by producing documentary evidence, yet he has not chosen to place any material worth its name except his interested testimony to substantiate the same. Therefore, the very basis for his additional accommodation fails in the absence of any materials. As far as the tenant is concerned, it is proved to be cooperative society having a large volume of business and that it has a showroom in close proximity to the godown and therefore any disturbance caused to the petition premises will have a consequential reaction of disturbing the running of the showroom itself. She would add that the tenant is not in occupation of any other place in close proximity to the godown. Opposing these submissions the learned Counsel for the landlord would argue that the Act did not contemplate any specific form of pleading, must less any specific pleading on relative hardship. The Rent Controller is given the power to reject the request of the landlord who is seeking eviction on the ground of additional accommodation, if he is satisfied that the hardship which may be caused to the tenant by an order of eviction would outweigh the advantage to the landlord. Therefore, the submission of the learned Counsel for the respondent is that, it rests solely and entirely on the tenant to plead on the relative hardship, since it is the benefit conferred on him under the Act and therefore, the pleading, must be only on his side followed by the necessary proof. In this case, the tenant had raised the plea on relative hardship and also spoke about it in court in his evidence. On considering the pleading and the evidence on relative hardship and on the other materials placed by the landlord. The Rent Controller and the Appellate Authority had come to the conclusion on this issue against the tenant. Therefore according to the learned Counsel for the tenant is that the landlord always used to allow the rent to accumulate and then receive it in one lump sum, and having thus made the tenant to believe that such tender would be accepted, the landlord cannot now be allowed to turn around insist on the payment of rent month after month. In any event, the learned Counsel would argue that the rent due has since been paid, the eviction on the ground of wilful default in payment of rent cannot be sustained. The learned Counsel for the respondent would state in this context that the payment of rent in lump sum has no been established and therefore, such an argument cannot lie in the mouth of the tenant. He would further state that the tenant is definitely guilty of committing wilful default in the payment of rent and therefore, the courts below were justified in answering the grounds of eviction raised by the landlord in his favour.
4. In the light of the arguments advanced by learned Counsel on either side, I pursued the orders under challenge as well as the records. Let me now take up the case of the landlord relating to wilful default. There is no dispute about the quantum of rent. There is also no dispute that the tenant had committed a default in the payment of rent from January, 1987 onwards, which resulted in the notice dated 14.12.1987 issued on behalf of the landlord by his counsel reminding the tenant of his obligation to pay the rent from that date. This notice is marked as Ex.A-1. It is also not in dispute that rent for 13 months commencing from January, 1987 till January, 1988 was paid by the tenant by way of a single cheque. The default complained of in the Rent Control petition is for the period commencing from February, 1988. The stand of the tenant in the counter statement appears to be that whenever a demand is made for the payment of rent, the tenant used to pay. The tenant has no sent any reply to Ex.A-1. Therefore the stand of the tenant in the counter statement as referred to above, in the absence of any reply to Ex.A-1 appears to be an after thought. In any event, since the tenant is a Registered Co-operative Society, the payment of the rent for the period preceding January, 1987 should have been necessarily borne out by records. No records whatsoever have been produced before court to show that even prior to January, 1987, the tenant has been in the habit of paying the rent in lump sum as and when the same is demanded by the landlord. In any event when the landlord had given a notice under Ex.A-1 demanding the arrears of rent, at least from that time the tenant should have become alert and realised what his duties are. It is needless to say that there is legal obligation on the part of the tenant to tender the rent to the landlord month after month, whether there is any demand for it or not. If he wants to displace this legal obligation, he must prove it by acceptable documentary or oral evidence. When P.W.1 was cross-examined on this aspect, no answers worth mentioning have been elicited. No question whatsoever had been asked to the landlord, while he was in the witness box about the existing practice of the rent being allowed to accumulate in the hands of the tenant and then being paid by the tenant when it is demanded by the landlord. It appears in the evidence of P.W.1 that the rent for the period commencing from February, 1988, which is complained of in the present petition, was paid by the tenant, by way of cheque dated 5.12.1988 to his counsel on 8.12.1988, which is the date fixed in the summons for the appearance of the tenant. It is clear in this case that the tenant has not established his case of the rent being allowed by the landlord to be accumulated in his hands and then making the payment whenever the demand is made. The tenant in his evidence as R.W.1, had not given any evidence with regard to the practice of the landlord in allowing the rent to accumulate and then receiving it in lump sum. Therefore it appears to my mind in a crystal clear manner that the tenant has come forward with the false explanation and therefore, he does not deserve any indulgence. It has been held by the learned Single Judge of this Court in a judgment reported in Deluxe Roadlines v. P.K. Palani Chetty (1992)1 L.W. 262 as follows:
Unexplained default is undoubtedly wilful-Burden on tenant to plead and prove circumstances under which he failed to pay rent as required by statute Obligation to pay rent is merely contractual, but is also statutory:
False explanations and preparing books of account for the purpose of the case and for limited periods - Tenant does not deserve any indulgence - Held, no discretion is left with court once it is found that tenant is guilty of wilful default.
5. The learned Counsel for the revision petitioner argued that since the tenant is proved to have paid the entire arrears of rent complained of in the Rent Control petition on the first date of hearing itself namely, 8.12.1988, it cannot be said that the tenant is guilty of wilful default and therefore, the order of eviction on that ground cannot be sustained. For this proposition, the learned Counsel for the revision petitioner brought to my notice three judgments reported in Abdul Hameed v. M. Sultan Abdul Kader 1996 T.L.N.J. 339, Justice AR. Lakshmanan, A.M.A. Jabbar v. T.S. Abdur Bari and tow others (1997)2 L.W. 616 (Justice AR. Lakshmanan); and V. Krishna Mudaliar v. Lakshmi Ammal . It is no doubt true that in all those cases, it was held that if the tenant paid the rent, which was in arrears, immediately after the filing of the eviction petition at any time before the first hearing, it cannot be said that the tenant has committed a wilful default. I have pursued the judgments very carefully. In all those cases, I find that the explanation offered by the tenant for more paying the rent earlier was found satisfactory and in the context of that explanation and in the light of the payment of the arrears of rent as stated above, the court held that there was no wilful default on the part of the tenant, on paying the rent immediately after the filing of the Rent Control petition. I am yet to come across a case, where the tenant was relieved of the disqualification, which he has suffered, to continue any more in the occupation of the building, on the mere fact of paying the rent pending proceeding without there being any acceptable explanation for non-payment of the same as and when it became due. There cannot be any hard and fast rule to that effect, because, if that is the position in law, then there can never be an order of eviction on the ground of wilful default, if the tenant, who had been indifferent all along in paying the rent, suddenly becoming wiser and paying the rent after the Rent Control petition was filed. That does not appear to be the trend of the decisions referred to above. In this case, I find that the explanation offered by the tenant is wholly unsatisfactory and it is an afterthought. This is the position on facts. Mere payment of rent by the tenant as stated above in this case would not absolve him of the disqualification which he had suffered already. Under these circumstances, I have no hesitation in holding that the tenant is definitely guilty of committing wilful default in the payment of rent and therefore the order of the courts below on this ground has to be necessarily sustained and accordingly it is sustained.
6. Coming to the question of additional accommodation, I find that there are necessary pleadings to bring the case under Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act. It is no doubt true that there is no plea in the Rent Control petition on the relative hardship. However it must be noted that the tenant has pleaded on the relative hardship and the parties went for trial knowing fully well on the question of relative hardship as well as evidence had been let in. Both the courts below have considered the materials placed before it, and have not come to the conclusion that the hardship which may be caused to the tenant in the event of an order of eviction will outweigh the advantage to the landlord. A learned single Judge of this Court has held on almost similar circumstances in a judgment reported in G.R. Ragupathy v. Dr. K. Sankar, etc. (1996)2 L.W. 494 (Justice S.S. Subramani) that the absence of plea in the Rent Control petition under Section 10(3)(a)(iii) would not entail in the dismissal of the Rent Control petition itself. In that judgment, it has been held as follows:
8. I cannot agree with the said submission of the learned Counsel for more than one reason. The contention of lack of pleadings was not raised before the Authorities below, and I further find that the lack of pleadings, if any, has not prejudiced the case of the tenant, petitioner herein, in any way. The object of pleading is only to put the parties on notice, of the real matter in issue. But, if the parties are already aware of the real matter in issue and they have also joined in issue over the same, the lack of pleadings can never be treated as a ground to reject the claim. Pleadings before Rent Controller cannot be given that much of importance given to pleadings in a suit before Civil Court Proceeding before a Rent Control Court is summary in nature and the provisions of the Code of Civil Procedure are not fully made applicable to the extent provided under the statute. We must further note that the Rent Control Court is not a Civil Court and the Act itself is more or less a self-contained Code, so far as the relationship of landlord and tenant is concerned."
10. learned Counsel for the petitioner also submitted that unless there is a pleading that the landlord or his son has no other building of their own, the statutory conditions or qualifications to file an eviction petition are not fulfilled and, therefore, the tenant is not expected to answer the same. But, unfortunately for the petitioner, I find that the tenant has anticipated, the case of the landlord, and in paragraph 9 of the counter, he himself has stated that the petitioner has other buildings of his own and, therefore, he has not satisfied the statutory conditions. So, he himself is aware of the qualifications to seek eviction, and that is why, he wanted the eviction petition to be rejected on the ground that the respondent/ landlord has got other buildings of his own. When he himself is aware of the real matter in dispute, the lack of pleadings, even if any, is not prejudicial to his interest.
7. The learned Counsel for the tenant relied on the judgment of this Court reported in Radhakrishnan v. Seethalakshmi (1998)1 L.W, 67 (Sivasubramaniam, J.) wherein it has been held as follows:
Held : The landlord should fail, in this revision petition because he has not at all pleaded in the eviction petition about the relative hardship that would be caused to the parties nor proved the fact that the relative hardship would be more on his part than on the part of the tenant. Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 contemplates that the landlord should prove that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. Though the petitioner offers to let in evidence on this aspect, I feel that it cannot be allowed at this stage. On this ground alone the eviction petition should be dismissed.
In the above mentioned case, there is neither pleading nor proof on relative hardship. Only under those situation, the learned Judge held as stated above. But as already referred to by me in this case, there is pleading on the side of the tenant and enough materials and evidence on the side of both the parties to decide that question. Therefore, the judgment relied upon by the learned Counsel for the tenant may not be of any use to the present tenant. The learned Counsel for the tenant for the proposition that for want of pleadings touching upon the relative hardship as provided for under the provision to Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, the Rent Control petition must be dismissed, also relied upon two more judgments of this Court reported in P. Annakili Ammal and Anr. v. H.C. Hussain and Hassan, 97 L.W. 116 (V. Ratnam, J.) and R. Krishnaswamy v. N. Arumugham (K.A. Thanikkachalam, J.) in the first judgment, the learned judge found that there was no pleading on relative hardship in the Rent Control petition. However, there was pleading in the counter of the tenant on the relative hardship. In that context, the learned judge has held as follows:
7. The application for eviction filed by the petitioners is silent regarding the relative hardship; but, in the counter the first respondent in paragraph 9 had clearly stated that the hardship that would be caused to the first respondent by an order of eviction being passed against him will outweigh the advantage to the petitioners, as the tea shop is the only source of livelihood for the first respondent. Though the Provision directing the rejection of an application under Section 10(3)(c) of the Act is in the nature of an instruction addressed to the Rent Controller to do so if the Rent Controller comes to the conclusion that the hardship that may be caused to the tenant by an order of eviction will outweigh the advantage to the landlord, yet, in order to enable the Rent Controller to give effect to this provision, it would be necessary for the parties to plead that and to place necessary materials in support thereof, as otherwise, the question of relative hardship cannot be satisfactorily decided. In this case, though in the application for eviction the petitioners have not whispered anything about the relative hardship, yet, the first respondent in his counter has specifically adverted to this aspect and has also spoken in the course of his evidence about the difficulty in securing similar accommodation in the locality in the event of his being obliged to vacate the premises now in his occupation.
On the materials referred to above, the learned Judge held that the evidence let in by the tenant establishes the relative hardship in favour of the tenant and thus dismissed the civil revision petition. The learned Judge has nowhere stated that for want of pleading on relative hardship by the landlord in his Rent Control petition, the Rent Control petition is liable to be dismissed. The records of the case on hand dealt with by me in this order discloses the facts identical to what the learned Judge has referred to in the above referred to judgment. It is no doubt true that in the judgment reported in Krishnaswamy v. N. Arumugham , the learned judge relying upon the two judgments referred to above Radhakrishnan v. Seethalakshmi,(1988)1 L W. 67 and Annakili Ammal v. H.C. Hussian and Hassan, 97 L.W. 116 went oh to hold that absence of pleadings in the Rent Control petition on relative hardship would entail in the dismissal of the petition itself. I have already noted that in the judgment reported in (1998)1 L.W. 67, there is neither pleading nor proof on the relative hardship and therefore the court was left with no other alternative except to dismiss the Rent Control petition. In the second judgment referred to above, the learned Judge held on the facts and circumstances of that case that, though there was no pleading on that aspect in the Rent Control petition, yet there was pleading on the side of the tenant in regard thereto and he had let in evidence and on those materials, held that the relative hardship is in favour of the tenant and so the landlord was not entitled to an order of eviction. Though there was no pleading on the side of the landlord on relative hardship, yet the learned judge did not dismiss the Rent Control petition on that ground. From the judgment , it could be seen that there was no pleading at all on the side of the landlord. At the same time, there were no materials in that judgment to know whether there was any pleading on the side of the tenant or whether there was any evidence or not in regard thereto. Under these circumstances, I am of the respectful opinion that the judgment , may not be of any use to sustain the submission of the learned Counsel for the tenant. I have already referred to the judgment of a learned Single Judge of this Court reported in R. Raghupathy v. Dr. K. Sankar (1996)2 L.W. 494 (S.S. Subramani, J.). One of the grounds of eviction sought for in that case was under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act. There was no pleading on the side of the landlord in the Rent Control petition to bring his case squarely under Section 10(3)(a)(iii) of the abovesaid Act. In that case the learned Judge did not hold that the absence of pleading would necessarily result in the dismissal of the Rent Control petition itself. In the case on hand also, I find that there is no pleading on the side of the landlord regarding the relative hardship, yet the tenant has chosen to plead in detail on that aspect. Oral evidence is available on both sides on the issue of relative hardship and both the courts below have considered it and come to the conclusion that the relative hardship is in favour of the landlord. Under these circumstances, I am of the opinion that want of pleadings in this case on the part of the landlord regarding the relative hardship does not affect his case and in any event no prejudice to the tenant has been caused. Therefore the argument of the learned Counsel for the revision petitioner that the Rent Control petition has to be dismissed solely on that ground cannot be sustained.
8. On the question of the requirement under Section 10(3)(c) namely, additional accommodation, I find that the tenanted premises is 185-B. The landlord has proved that he is in occupation of premises No. 185-A. Both are situated abutting each other. There is one door in the dividing wall of these two premises enabling ingress and egress from one portion to another and vice versa. The case of the landlord that he is doing business and it is improving day-by-day does not appear to be seriously challenged. The attempt of the tenant is to show that their business turnover is much more than the landlord's turnover in the business. The tenant is carrying on the business in the municipal market, is also established and that he is using premises No. 185-B as his godown, also stands proved. The tenant admits that they are in occupation of four premises, each measuring around 10,000 sq.ft. Therefore, it would be very easy for them to accommodate their goods now stored in premises No. 185-B in one of those larger areas. The area of 185-B is roughly under 400 sg.ft. Both the Rent Controller and the Appellate Authority on appreciating the evidence, concurrently found that the requirement of the landlord for additional accommodation, is bona fide and by passing an order of eviction, the tenant would not be exposed to any situation which will outweigh the advantages to the landlord. Therefore I hold that the requirement of the landlord on the ground of additional accommodation is also clearly made out and no grounds whatsoever are made out to interfere in this finding as well.
9. For all the reasons stated above by me, I find no merits in this revision and it is accordingly dismissed. There will be no order as to costs. At this stage, the learned Counsel for the revision petitioner pleaded some time to vacate and after hearing Mr. S.K. Raghunathan, I am inclined to grant three months time from today to the tenant to vacate the premises forming the subject matter of the Rent Control petition on condition that the tenant files an undertaking affidavit before this Court within three week$ from today undertaking to vacate the above referred to premises immediately on the expiry of the time granted by this Court in this order without in any way forcing the landlord to resort to the execution proceedings and that the tenant shall continue to pay the rent without fail, till the premises is vacated as stated above and failing compliance of any one of the conditions referred to above will have the effect of the order of eviction being executable immediately and forthwith.