Madras High Court
K.A.M.A.K. Nataraja Nadar And Sons, ... vs R. Kannan on 30 June, 2005
Equivalent citations: (2005)4MLJ222
ORDER M. Thanikachalam, J.
1. The tenants are the revision petitioners.
2. The respondent/landlord moved the Rent Controller in R.C.O.P. No. 55 of 1984, for eviction of the tenants on the grounds, that the defendants have committed wilful default in payment of rent, that the tenants used the building for the purpose other than that for which it was leased, that the tenants have committed acts of waste, that the tenants are guilty of such act and conduct, which are nuisance to the occupier, that the building being a residential one, it is required for the occupation of the grandson, since the family is not owning any other residential building in the town and that the building is bone fide required for the immediate purpose of demolition for the purpose of erecting a new building, invoking Sections 10(2)(i)-Wilful default, 10(2)(ii)(b)-different user, 10(2)(iii)-acts of waste, 10(2)(v)-nuisance, 10(3)a(i)-own use and 14(i)(b)-demolition and reconstruction; of Act 18 of 1960 i.e. the Tamil Nadu Building (Lease & Rent Control) Act, hereinafter called Act.
3. The revision petitioners/tenants denying all the allegations and the reasons assigned for eviction, including wilful default, opposed the eviction petition, further contenting that the averments made in the petition are imaginary.
4. The learned Rent Controller, after recording evidence, assessing the same, by formulating necessary points, had decided the case. The assessment, as claimed by the Rent Controller, in its proper perspective, brought to surface, wilful default, the building was used for some other purpose and the building is bona fide required by the landlord for immediate demolition for the purpose of erection of new building and the evidence failed to make out the other grounds for eviction. Thus, on the three grounds, eviction order was passed on 20.1.1998, which was challenged by the tenants, in R.C.A. No. 6 of 1998 before the Appellate Authority.
5. The Appellate Authority, concurring with the findings rendered by the Rent Controller, for ordering eviction, found fault in not accepting certain other grounds pleaded by the landlord, for eviction. The assessment of evidence, based on pleadings by the Appellate Authority, brought to surface, according to him, that the defendants had committed acts of waste and that the landlord also requires the building for personal occupation. Thus, concurring with the order of eviction, further invoking other grounds also, the Appellate Authority ordered eviction, confirming the findings of the Rent Controller, as per judgment, dated 7.1.2002, which is sought to be assailed in this revision.
6. Heard the learned Counsel for the petitioners and the learned Counsel for the respondent.
7. The learned Counsel for the revision petitioners submitted, that both the Courts below have not only failed to see the pleadings of the parties, but also failed to assess the evidence from its proper perspective, thereby rendered more or less perverse findings and in this view, interference of this Court is must, though concurrent findings were given, with respect to three grounds. In support of the above submission, the learned Counsel for the revision petitioners took me through the pleadings, as well as the findings and the result, which I will discuss infra.
8. In response to the above submission, the learned Counsel for the respondent/landlord would submit that though the Rent controller had ordered eviction on three grounds, he failed to accept the other three grounds, which were properly appreciated and accepted by the appellate Authority, which, thus, requires confirmation, not disturbance, because of the further fact that the findings are based upon the materials, supported by legal position.
9. By going through the judgment of the Courts below preceded by plea and counter plea, supported by provisions of law and the ingredients required for the sections, I am unable to accept all the findings of the Rent Controller or the Appellate Authority, for ordering eviction and certainly certain findings are required to be disturbed, since if it is allowed to stand, it may be a perverse finding or a finding against the pleadings and evidence. If at all, the eviction order could be sustained, only on the ground of wilful default, that too subject to scanning of material supported by legal positions.
10. Eviction is sought for, invoking Section 14(1)(b) of the Act, which says, the landlord is entitled to get possession of the building, if he requires the same bona fide "for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished", thereby showing demolition of the building must be complete, not partial, then only the proposed building could be erected or constructed on the site of the building sought to be demolished. Now, it is to be seen, what is the case of the landlord.
(emphasis supplied)
11. Paragraph 5 of the petition supplies the ground for demolition. The relevant portion reads:
"The petitioner bona fide requires it for repairing and making some improvements in the ground floor, and demolishing and reconstruction of the entire 1st floor with all the necessary facilities."
The above recital, undoubtedly, would indicate that the landlord has not intended to demolish the ground floor, which is the subject matter of the rent control petition. It is not the case that the first floor alone is in the occupation of the tenants and they want to demolish the ground floor also. Therefore, essential requirement contemplated under Section 14(1)(b) of the Act, namely demolition is to be made for the purpose of erecting a new building on the site (emphasis supplied) of the building sought to be demolished, prima facie, not available in this case, and therefore invoking Section 14(1)(b) of the Act, to order eviction is legally not sustainable. The petition is not filed under Section 14(1)(a) of the Act for major repairs, giving an undertaking to lease the same to the tenants, after major repairs are over. This being the position, certainly, the landlord is not entitled to evict the tenants, under Section 14(1)(b) of the Act. Unfortunately, both the Courts below, without going through the provisions of law, assuming, as if the landlord wanted to demolish the entire building and proposed to put up a new building on the site, granted an order of eviction, which should be upset. Further, the above said case also create, undoubtedly, mala fide, not bona fide, thereby compelling to reject this ground.
12. The landlord attempted to evict the tenants, classifying the building as residential one, thereby claiming the same for personal occupation of the grandson, who is going to be married soon. This ground was brought under cloud, by the tenants stating that the demised premises is, non residential building used as godown for stocking the goods, for the business of the tenants, and therefore seeking the same for occupation of the grandson, for residential purpose is not maintainable. Section 10(3)(a)(i) of the Act enables the Court to order eviction, in respect of the residential building, if it requires for the occupation of the landlord or any member of his family, if they are not occupying a residential building of their own in the city, town or village concerned, and if it is a non residential building, only Section 10(3)(a)(iii) of the Act would come into operation. The consideration or the ingredients required under Section 10(3)(a)(i) and 10(3)(a)(iii) of the Act are different in nature and both sections cannot go together. Therefore, the landlord is entitled to evict the revision petitioners, on the ground of personal occupation, for residential purpose, if it is made out that the building is used for residential purpose. In other words, if it is made out, that the building is used or let out for non residential purpose, then the landlord is not entitled to invoke Section 10(3)(a)(i) of the Act.
13. Another ground sought for eviction is, that the building is used for the purpose other than that for which it was leased. According to the landlord, the building was let for residential purpose, which is now used for non residential purpose, and therefore for the violation of the terms of the contract, the tenants are liable to be thrown out. Therefore, these two grounds could be taken together for consideration.
14. The learned Rent Controller has given a finding, as seen from paragraph 22 of the order, based upon the receipts for payment of rent, that the petition mentioned property was leased out for non residential purpose and the relevant finding reads in tamil, (I)???." Thus, concluding against the case of the landlord, latter a finding is given, as if it is used for different purpose, namely residential purpose, thereby giving force for eviction under Section 10(2)(ii)(b) of the Act, which appears to be not only against the plaintiffs case, but also against the evidence.
15. In a business premises, as seen from the evidence, some of the persons, working in the shop, were living and this was taken advantage of, as if the user is converted or changed. It is not the finding of the Rent Controller or the Appellate Authority, either, concurrently or otherwise that the tenant ceased to use the premises for non-residential purpose, such as storing stock for his business. In fact, it is alleged, by storing iron rod and other iron materials, damages were caused to the building, creating nuisance, on that ground, eviction should be ordered. If this is the case, it is hard to conclude, that the tenants used the building for the purpose other than that for which it was leased. Unfortunately, the Rent Controller, has committed error, concluding that the building is used for some other purpose and in the same manner, the Appellate Authority has also committed the same error, holding that the building was let out for residential purpose, ignoring the document, to which the landlord was a party.
16. The submission of the learned Counsel for the landlord, that the receipts cannot be relied on for any purpose, except for payment of rent, is not acceptable to me. The receipts were issued by the landlord, wherein the building is classified as "godown", intended for non residential purpose, not for residential purpose. Therefore, I should conclude, that the building is a non residential one, which was let out only for non residential purpose, which follow, there is no conversion of building or user of building, for any other purpose other than the purpose for which it was let out. For the foregoing reasons, the eviction ordered under Section 10(2)(ii)(b) of the Act is unsustainable under law, requires an eraser and to that extent, the revision should be allowed.
17. As far as the eviction sought for under Section 10(2)(v) of the Act is concerned, namely that the tenant has been guilty of such acts and conduct, which are a nuisance to the occupiers of other portions in the same building or of buildings in the neighbourhood, remains as dead letters, as rightly held by the Rent Controller, which was unnecessarily upset by the Appellate Authority. In paragraph 8 of the petition, an attempt was made to plead that by the act of the tenant, such as keeping loading and unloading iron bars and iron materials in front of the house, lot of nuisance caused to the neighbours. This could be spoken effectively only by the neighbours of the demised premises. The section also contemplates, nuisance to occupier of the said portion or neighbours. It is not the case of the landlord, that he is residing in a portion of the building, thereby receiving nuisance directly, whereas it is the case of the landlord that the act of the tenants caused nuisance to the neighbours even preventing easy access to them to the street, obstructing the pathway. Proper persons, who could speak are the neighbours, but none had been examined. It seems, P.W.2 had spoken about some damage and he is incompetent to speak about the nuisance caused to the neighbours. Since no neighbours had been examined exposing the nuisance said to have been caused by the tenants, evicting the tenants under Section 10(2)(v) of the Act does not arise for consideration, which was properly considered by the trial Court, disturbed by the appellate Authority, which is not warranted, requiring its eraser.
18. The trial Court, analyzing the oral evidence of P.Ws. 1 and 2 and considering the facts, that there is some damage in the building because of handling of iron materials, came to the conclusion, that the tenants have not committed any acts of waste, which are likely to impair materially the value or utility of the building, thereby refused to invoke Section 10(2)(iii) of the Act, properly, which should be confirmed, since the appellate Court has not properly considered, as seen from paragraph 15 of the judgment, whereas, has given a finding not based on material, deserving its setting aside.
19. As I have already adverted supra, because of the classification of the building, namely non-residential one and the lease was for the same, there is no possibility of invoking Section 10(3)(a)(i) of the Act, i.e. owners occupation. Assuming that it is a residential building, even then, as rightly recorded by the trial court in paragraph 29 of its judgment, the landlord is not entitled to evict the tenants. Section 10(3)(a)(i) of the Act contemplates eviction, if it is shown that the landlord or his family member is not occupying a residential building of his own in the city. In this case, the trial Court has recorded a finding based on the admission of the petitioner, that he is owning a residential building of his own in the city, and therefore the eviction under Section 10(3)(a)(i) of the Act is also not possible, which is not properly considered by the appellate Authority, and a perverse finding has been recorded in paragraph 13 of its order, which requires setting aside.
20. The only ground remains for consideration is wilful default. The tenants, who seek protection from eviction under the Act, is expected to perform certain duties and obligations, including the payment of rent, as agreed. That is why, imposing duty and obligation upon the tenants, it is said in Section 10(2)(i) of the Act that the tenant has to pay rent or tender rent due by him in respect of the building, within 15 days after the expiry of the time fixed in the agreement of tenancy with the landlord or by the last day of the month next following that for which the rent is payable. Here, there is no dispute regarding the quantum of rent and the rent is payable, according to English calendar month, which is pleaded in paragraph 6 of the petition.
21. It is said that the respondents/defendants have paid the rent upto June, 1983 and thereafter, inspite of repeated demands, they did not pay the arrears of rent and therefore, it should be construed, the non payment of rent till the date of filing of the petition in the year 1984, should amount to wilful default. For this, the answer is rent was paid regularly till August, 1983 and thereafter there was a claim of enhanced rent, at Rs. 200 per month, for which the tenants were not agreeable, resulting the agent, who collected the rent, refused to receive the same. Thus, it is seen, an attempt was made to say, non payment of rent for certain months will not amount to wilful default, in view of the further fact that notice was issued on 29.12.1983, sending four months rent by M.O., which was refused. If the tenants had issued notice, accusing the landlord, that he refused to receive the rent, claiming enhanced rent, then the non-payment of rent could be justified. But here, only after notice was issued, complaining of the non payment of rent, an attempt was made under the reply notice, dated 29.12.1983, seeking the name of the bank, for the deposit of the rent and it will not come to the rescue of the tenants, who had already failed to tender or pay the rent, as contemplated under Section 10(2)(i) of the Act.
22. True, mere non-payment of rent, for certain period may not amount to wilful default and the default must be with an intention to commit the same, depriving the right of the landlord, then alone it could be said wilful. Here, even as per the averments in the counter, it appears to my mind, that the tenants have not paid rent intentionally, which could be seen from the fact that they have not established the alleged claim of the landlord, for enhancement of rent.
23. The submission of the learned Counsel for the revision petitioners, placing reliance on the decision of the Apex Court in Raja Muthukone (D) by LRs. v. T. Gopalasami and Anr., 2003 (1) LW 134, that in the absence of notice, as contemplated under the Act, the presumption of willful default, is not available may not be applicable to the present case. Here, the landlord is not claiming any presumption on the basis of explanation introduced in the Act under Section 10(2)(i) of the Act, giving notice. This ruling says, once the landlord gave notice to tenant claiming arrears of rent, he should have waited for a period of two months, from the date of service of notice and it is only on non payment of rent or non tender of rent within two months, the landlord could have initiated proceedings for eviction on the ground of wilful default. The Act does not say, that the tenant is not entitled to file a petition for eviction on the ground of wilful default, without issuing notice. In this case, notice was issued on 26.12.1983, which was served upon the tenants on 28.12.1983. Though an attempt is made to send some amount, it was not, as claimed, in the notice. Therefore, it cannot be said, that the demand was complied with.
24. As laid down by the Apex Court in P.M. Punnoose v. KM. Munneruddin and Ors., , the landlord is not prevented from initiating proceedings, on the ground of default under Section 10(2)(i) of the Act without serving notice and in that case, no presumption will come and it is for the landlord, to make out a case of wilful default. Therefore, apart from the notice and the period fixed therein, we have to see whether the rents were paid by the tenants, if not, it amounts to wilful default, as said in Section 10(2)(i) of the Act.
25. The case of the landlord that the tenants have not paid the rent from July 1983, as indicated in paragraph 6 of the petition is not seriously challenged, in the sense the period of non-payment of rent. In the counter paragraph 7, though it is said the agreed rent at the rate of Rs. 50 per month was being regularly paid till August, 1983, no document has been produced for the same, as recorded by the Courts below. It is the case of the tenants also that whenever rents are collected on behalf of the landlord, the agent used to give receipt. Therefore, it should be presumed, if the rent has been paid till August, 1983, the tenants would have obtained receipts, which is not available in this case. In this view, it should be held that the tenants paid rent only upto June, 1983, and thereafter, i.e. from July, 1983, the rents have not been paid, which is well supported by the oral evidence also, as recorded by the Courts below. P.W. 1 has stated that the tenants have not paid rent from July, 1983. Though many questions were put to him during cross-examination, the period stated by him not challenged, as seen from the cross examination. The entire cross examination is aimed to justify the non payment of rent, projecting the claim of enhanced rent, and suggesting that the rents were deposited in the bank or before the Rent Controller. R.W.1, who has been examined on behalf of the tenants, admits that the landlord used to give receipt as well they have collected rent till August, 1983, for which, as said supra, no receipt has been produced. Therefore, on the basis of the evidence also, as recorded by the Courts below, concurrently, it should be held, the tenants have not paid the monthly rent on and from July, 1983. Thus, settling the period, since there is no dispute regarding the quantum of rent, it should be seen whether the inaction on the part of the tenants, in not paying the rent from July, 1983 till the date of filing of the application would amount to wilful default.
26. The tenancy is according to English calendar month. Therefore, as envisaged in Section 10(2)(i) of the Act, the tenants should pay or tender the rent due by them within 15 days after the expiry of the time fixed in the agreement of tenancy. No case of any other agreement was pleaded by the tenants, such as the landlord agreed to receive the rent in lump sum and the same practice was also followed, thereby to show Section 10(2)(i) of the Act period cannot be invoked. In view of the finding arrived supra, it should be held the tenants have not paid or tendered rent, thereby proving that the tenants have committed default in payment of rent, which should come, in my considered opinion, as recorded by Courts below also, within the meaning of wilful default.
27. The landlord is not seeking any presumption under explanation, on the basis of two months notice issued, though there was a notice in this case. The landlord complained even before filing of the rent control petition that the tenants have failed to pay the rent, specifying the period, thereby informing the tenants, that they have to face the threat of eviction. The tenants having knowledge about the complaint made by the landlord, such as the tenants have not paid rent from July, 1983, have not tendered or paid rent, as demanded in the notice, admittedly, whereas it seems from September alone, when the amount was sent, it was rightly refused by the landlord, since the amount does not represent the actual arrears of rent. Therefore, tendering of rent by the tenants, which was not in accordance with the demand made by the landlord, in view of the proved fact, certainly will not relieve them from the consequences of non-payment of rent. In this view, since the tenants failed to deposit the entire arrears or failed to tender or pay the entire arrears, it should be construed as wilful default.
28. The tenants, on their own accord, not adopting the procedure contemplated under the Act, had deposited the rent in the bank, certainly will not relieve the default already committed by them, and therefore, urging that the rents were deposited in the bank, the wilful default committed already cannot be erased. Therefore, I should conclude, the non-payment of rent from July, 1983 should amount to wilful default.
29. The payment of rent by the tenants is a recurring process and therefore, the tenants, who seek protection under the Act, are expected to perform certain duties and obligations, as said in Section 10(2)(i) of the Act. In this view, the non-payment of rent, even after the filing of the rent control petition, should be taken into consideration, to test the wilful default. If the tenants had deposited the rent into the Court, after filing of the petition periodically, in case the landlord refused to receive the rent, then they could be relieved of the consequences. On the other hand, if the tenants, who had already committed default, continuously commit the same, even after filing of the petition, then it should be labelled as wilful default. If the tenants have paid the rent before institution of the case, it could be well said, that there is no cause of action for filing a revision petition, in view of the fact that on demand, the tenants have paid the rent, thereby extinguishing the cause of action. In this case, such contingency is also not available. In this context, we have to see the evidence let in on either side.
30. P.W.1 has categorically stated that the tenants have not paid rent from July, 1983, not challenged. R.W.1, during cross examination, would admit that they have not deposited the rent in the bank periodically, whereas deposited the accumulated rent alone, thereby showing even when there was an attempt to deposit the rent, it was not regular. After filing of the petition also, as admitted by R.W.1, once in nine months or six months, rents were deposited in Court, not periodically. Thus, it is made clear, the tenants, who had committed default before institution of rent control application, despite the notice, not only failed to deposit the entire arrears forthwith, but also committed continuous default, in the sense not paying the rent regularly, i.e. every month, whereas committed once again default, depositing the amount once in six months or nine months, as the case may be, as seen from the oral evidence of R.W.1. The conduct of the tenants and the other attending circumstances coupled with the previous notice, lead us to cumulative effect, namely that non-payment of rent in this case is nothing, but wilful default, which was properly appreciated by the Courts below by recording a concurrent finding, in which I find no perversity, warranting my interference to disturb. For these reasons, the landlord has proved the wilful default and on this ground alone, the eviction has to be sustained, negativing the other grounds.
31. Hence, the revision fails and the same is dismissed with costs throughout. The order of eviction by the Courts below only on the ground of wilful default is confirmed, directing the tenants to vacate the premises within three months from this date.