Madras High Court
Shahjahan vs Janath Ashraf Uduman on 9 August, 2005
ORDER M. Thanikachalam, J.
1. The tenant, who failed concurrently before the Courts below, in resisting the Rent Control Original Petition in 5 of 1987 on the file of the Rent Controller and the District Munsif, Srivaikuntam, is the revision petitioner.
2. The respondent/landlord, as petitioner, has moved, the Rent Controller for the eviction of the tenant/revision petitioner) on the grounds of wilful default in payment of rents, that the tenant had damaged the building, causing acts of waste and that the building is required for the personal occupation of his son, invoking the provisions of Sections 10(2)(i), 10(2)(iii) and 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as 'the Act') though the Sections were not so quoted, as seen from the Rent Control Original Petition.
3. The revision petitioner, denying all the allegations in the Rent Control Original Petition, has opposed the application, that the landlord claiming daily rent at the rate of Rs. 100, refused to receive the rent, as agreed, and only for the purpose of evicting the tenant, without any bona fide, the grounds are alleged for the eviction, which deserve non-acceptance.
4. The Rent Controller, after examining P.W.I, who is the son of the landlord, as well examining the revision petitioner as R.W.1, marking Exs. A-l to A-9 and B-l to B-4, while evaluating the same according to law, came to the conclusion that as per the admission made by R.W.1 himself, he had committed not only default in payment of rents, but also wilful default; that the premises is required for the personal occupation of P.W.I, who comes within the meaning of 'a person carrying on business', as contemplated under Section 10(3)(a)(iii) of the Act and that the alleged act of waste is not at all proved, thus, accepting two grounds, invoked by the landlord for the eviction, rejecting one ground, the eviction order came to be passed on 31.7.1998, which was challenged before the Appellate Authority in R.C.A. No. 39 of 1999.
5. The learned Rent Control Appellate Authority, while evaluating the materials available on record and by going through the eviction order passed by the Rent Controller, having heard the arguments of either counsel, felt no reason to interfere with the findings of the Rent Controller. Thus, satisfying himself, the Rent Controller has not committed any error offending any provisions of the law, either on facts or otherwise, unable to take a different view, the Appellate Authority confirmed the eviction order, by dismissing the R.C.A., as per the judgment dated 19.2.2003, which is challenged in this revision.
6. The learned Counsel for the revision petitioner, in order to relieve from the penalty visited upon the tenant, by way of an order of eviction, would contend that, even as per the admission made by P.W.I, there is no default, much less wilful default in payment of rent and this being the position, the order passed by the Rent Controller, ordering eviction, as if the tenant had committed wilful default, should go. It is the further submission of the learned Counsel for the revision petitioner that admittedly, P.W.I, for whom the petition mentioned premises is required, is not carrying on any business, as contemplated under the Act and the so-called arrangements, said to have been made by him, to commence the business, also will not attract the wordings 'carrying on business' and unfortunately, these facts were overlooked not only by the Rent Controller but also by the Appellate Authority, who was expected to correct the mistake and in this view, this Court should come to the aid of the tenant to correct the same, thereby to set aside the order of eviction slapped under Section 10(3)(a)(iii) of the Act.
7. Opposing the above submissions and supporting the reasons assigned by the Courts below, for ordering eviction, the learned Counsel for the respondent/landlord would contend that as per the admission made by the tenant, that too, when there is no denial regarding the period of non-payment of rent, the eviction order passed by the Rent Controller, ordering eviction under Section 10(2)(i) of the Act, cannot be challenged. Another ground on which the eviction was ordered is also supported by the learned Counsel for the respondent, that the preparations made by P.W.I to carry on the business, certainly, would come within the meaning of 'carrying on business', as envisaged in Section 10(3)(a)(iii), which was correctly analysed by the Courts below, not warranting any interference by this Court. Thus, supporting the concurrent findings of the Courts below, on behalf of the landlord, dismissal of the C.R.P. was sought for.
8. The facts, beyond controversy, are that the respondent herein is the landlord and the revision, petitioner is the tenant for the premises, wherein a hotel is run by the revision petitioner, agreeing to pay a monthly rent of Rs. 1,500, which should be paid daily, at the rate of Rs. 50. On the basis of the said agreement, from the year 1995 or so, the revision petitioner is in occupation of the petition mentioned building, as tenant.
9. The landlord felt that the continuation of the tenant, in the premises, is not desirable, since he has not only committed wilful default but also damaged the property, further fact being the building is required for the personal occupation of his son, who is carrying on a business. In this view, complaining the default in payment of rent from 11.3.1997, eviction is sought for on the ground available under Section 10(2)(i) of the Act.
10. In the counter, as rightly submitted by the learned Counsel for the respondent, there is no specific denial. It is the duty of the respondent/tenant, when the landlord had alleged non-payment of rent from a particular date, to deny the same or affirm the same or give explanation, as the case may be. But, by going through the counter, I am unable to say emphatically, what was the stand taken by the tenant, regarding the non-payment of rent. In paragraph No. 5 of the counter, it is said that the landlord has refused to receive the rent, when tendered, and informing the same, notice was also issued on 16.8.1997. There also, no positive case has been projected, such as the tenant has not committed any default in payment of rent from 11.3.1997, whereas rents were paid periodically, giving, particulars. In this view, when a thing pleaded, in the petition was not denied, it should be presumed that the same was admitted. Therefore, the conclusion reached by the Courts below, that the tenant has not paid the rent on and from 11.3.1997, is not at all liable to be disturbed, since the findings were not only based upon the pleadings but also on the basis of the evidence given by the tenant and considering his conduct during the pendency of the proceedings, where it is brought to the notice of the Court that pending proceedings also, the tenant has not deposited or tendered the rent, periodically.
11. The learned Counsel for the revision petitioner/tenant very much relied upon the alleged admission said to have been made by P.W.1 regarding the payment of rent, which reads:
12. The face value of the above deposition would suggest, as if the landlord has refused to receive the rent, when tendered, and that is why the tenant was compelled to pay the rent by way of cheque. This so called admission should relate to the previous period and not to the period complained for wilful default, which could be seen even from the averments in the petition. In Paragraph No. 7 of the petition, it is said that the tenant, instead of paying the rent, daily, as agreed, paid the rent for the period 10.1.1997 to 19.1.1997 by cheque, then for the period from 20.1.1997 to 8.2.1997, by way of draft and for the period from 9.2.1997 to 10.3.1997 also by way of draft and thereafter not paid the rent. Only in consonance with the above said pleadings, P.W.I appears to have admitted, as indicated above, the non-acceptance of the rent, if any, thereby compelling the tenant to pay the amount by way of cheque or draft, as the case may be, which will not correspond to the period complained, viz. from 11.3.1997, which could be seen from the admission made by R.W. 1.
13. The tenant, as R.W.I, in chief-examination has not murmured about the payment of rent to the landlord daily or otherwise, from the period 11.3.1997. But, he would contend that the landlord, claiming enhanced daily rent of Rs. 100, refused to receive the rent, which resulted in this petition for eviction on false grounds. If he had stopped with that or maintained the same during the cross-examination, even it could be said that the landlord failed to prove the default, alleged in this case, whereas the tenant has not given any chance for the Court to draw such conclusion, because of the admission made by him. In the cross-examination, R.W.I has categorically admitted:
14. As recorded by the Rent Controller, which is confirmed by the Appellate Authority, not challenged, earlier, the tenant remained ex parte, suffered an eviction, then, on his application, the same was set aside. Despite the notice, at the time of reply also, rent has not been paid before the Court and hence the case was posted on different dates and rent was not deposited till 26.11.1997. Because of the recalcitrant attitude exhibited by the tenant, not opposing the case effectively, on 19.1.1998, ex parte decree came to be passed. Till the ex parte order was set aside on 13.2.1998, the rent was not deposited. Considering the conduct of the tenant, the landlord invoking the provisions available in Section 11(4) of the Act, has filed an application in I.A. No. 4 of 1998 seeking the indulgence of the Court to direct the tenant to deposit the arrears of rent. In that application also, no counter has been filed and admitting the arrears of rent, Rs. 19,500 appears to have been paid, thereby showing not only this revision petitioner has committed wilful default in payment of rent prior to the failing of the application, but also subsequent to the filing of the application. Considering these aspects, as well as the admission made by R.W.I that he has not paid the rent after 10.3.1997, the Rent Controller has recorded a finding, labelling the non-payment of the rent by the tenant amounts to wilful default, which was affirmed by the Appellate Authority on facts, not require any interference, since I am unable to see any perverse finding against the evidence. The learned Counsel for the revision petitioner also, when, these things were pointed out to her, failed to convince me how the finding recorded by the Courts below, regarding the wilful default, is erroneous.
15. For the foregoing reasons, the eviction order passed by the Courts below on the ground of wilful default, requires confirmation.
16. The other ground on which eviction was sought viz. acts of waste is not challenged by the landlord and therefore, no finding is required in this revision.
17. As far as the claim of the landlord under Section 10(3)(a)(iii) of the Act, appears to be not well founded, though concurrent findings were given by the Courts below. Section 10(3)(a)(iii) of the Act contemplates an order of eviction in the case of non-residential building (which is the case on hand), 'if the landlord or any member of his family requires the same for the purpose of a business, which he or his family member is carrying on, and not occupying any non-residential building of his own in the city/town'. Two main ingredients to be satisfied are (1) the landlord or his family member, for whom the building is required, must be carrying on business, (2) that they should not own a building of their own in the city/town.
18. In this case, the second limb of the Section might have been satisfied, since it is not contradicted. As far as the first ingredient is concerned, I am of the opinion, the same has not been made out. To decide this point, the pleadings should be remembered, followed by evaluation of the evidence.
19. In paragraph No. 5 of the Rent Control Original Petition, it is said that the landlord's relative is running a business in the name and style of Agja Traders, dealing with T.V., Fans, Refrigerators, etc. and in order to carry out an agency business of the same, this building is required for the son of the landlord. Further, it is alleged, necessary arrangements have been made out. The petition was filed, as per the verification, on 3.7.1997. In view of the above admission, P.W. 1 also stated that the building is required for him, to run an agency business in the premises. Thus, it is seen, it is not the case of the landlord, either in the petition or while letting in evidence, that. P.W.I was 'carrying on business'. But, the business is only in the initial stage of 'an intention to commence the same', which is not contemplated under the Act. The documents relied on, to make out a case for personal occupation viz. Exs.A-2 to A-4, are all correspondence between Agja Traders and P.W.I, wherein there is no specific order appointing P.W.I as the agent for the business, which is intended to be commenced, in the petition mentioned premises.
20. For the appointment of agency, no formality may be required and it all depends upon the agreement between two individuals who intends to appoint another person as agent. This being the position, if really P.W.I had the intention to commence a business as agent of Agja Traders, certainly, Agja Traders should have appointed him as Agent, which is not the case here. Therefore, in my considered opinion, the mere correspondence between P.W.I and Agja Traders, alone, will not be sufficient to label the P.W.I as a person 'carrying on business', as contemplated under the Act, and therefore, on that ground, the landlord is not entitled to evict the tenant. Unfortunately, both the Courts below have not considered, properly, this legal and factual position about the 'carrying on business' and accepting the 'intention to start the business', ordered eviction, which is not the purport of Section 10(3)(a)(iii) of the Act. In this view, the eviction order passed under Section 10(3)(a)(iii) of the Act is liable to be set aside and not the entire eviction order, which is based on wilful default also.
21. For the foregoing reasons, the end result would be only dismissal of the Civil Revision Petition, since no material is placed to label the order of eviction of the Courts below as perverse in nature, warranting unavoidable disturbance by this Court.
22. In the result, this Civil Revision Petition is dismissed.
23. The order of eviction passed by the Rent Controller and the District Munsif, Srivaikuntam, dated 31.7.1998 in R.C.O.P. No. 5 of 1987 and confirmed by the judgment and decree dated 19.2.2003 rendered in R.C.A. No. 39 of 1999 by the Rent Control Appellate Authority and the Subordinate Judge, Tuticorin, is confirmed.
24. Time for eviction is three months. No costs. Consequently, C.M.P. No. 4209 of 2003 is also dismissed.