Madras High Court
A.Krishnakumar vs V.Srinivasan on 1 August, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 1.8.2012 Coram: THE HONOURABLE MR JUSTICE G.RAJASURIA C.R.P.NPD.No.1213 of 2009 and M.P.No.1 of 2009 A.Krishnakumar ... Petitioner vs. 1.V.Srinivasan 2.Mrs.Sarveshwari 3.Mrs.Krishnakumari 4.Mrs.K.Usha 5.Mrs.T.Kala 6.S.Krishnan 7.Mrs.P.Susila ... Respondents Civil revision petition filed against the judgement and decree dated 6.2.2009 passed by the VIII Small Causes Judge, Madras, in R.C.A.No.481 of 2006 confirming the order dated 10.4.2006 passed by the XII Small Causes Judge, Madras, in R.C.O.P.No.437 of 2005. For Petitioner : Mr.M.Karunanidhi For Respondents : Mr.V.Nicholas for R2 to R7 for R1 no appearance ORDER
Animadverting upon the judgement and decree dated 6.2.2009 passed by the VIII Small Causes Judge, Madras, in R.C.A.No.481 of 2006 confirming the order dated 10.4.2006 passed by the XII Small Causes Judge, Madras, in R.C.O.P.No.437 of 2005, this civil revision petition is filed.
2. The parties, for the sake of convenience are referred to hereunder according to their litigative status and ranking before the Rent Controller.
3. A summation and summarisation of the germane facts absolutely necessary for the disposal of this civil revision petition would run thus:
(i) The deceased R.Shanmugham Chettiar filed the RCOP No.437 of 2005, invoking Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, seeking eviction on the ground that R1 therein, namely, V.Srinivasan committed 'wilful default' in paying the rents ever since 1.8.2002 and that R2-Krishnakumar happened to be the unauthorised sub-tenant under the said Srinivasan.
(ii) The said Srinivasan remained absent and hence, he was set ex-parte.
(iii) The revision petitioner-Krishnakumar-R2 therein filed the counter claiming that there is landlord and tenant relationship between Shanmugham Chettiyar and himself and he never entered the demised premises under Srinivasan. According to him, there was no default much less 'wilful default' at all in paying the rents.
(iv) During enquiry, Shanmugham Chettiar/the landlord examined himself as P.W.1 and marked Exs.P1 to P3. Krishnakumar-the revision petitioner herein examined himself as R.W.1 and marked Exs.R1 to R3.
(v) Ultimately, the Rent Controller ordered eviction, as against which, the appeal R.C.A.No.481 of 2006 was filed for nothing but to be dismissed by the appellate Court, confirming the order of the Rent Controller.
4. Being aggrieved by and dissatisfied with the order and judgement of the respective Courts below, this civil revision petition is focussed by Krishnakumar on various grounds.
5. The learned counsel for the revision petitioner, by placing reliance on the grounds of revision would develop his arguements, which could tersely and briefly be set out thus:
(i) Both the Courts below committed error in assuming and presuming as though the revision petitioner-Krishnakumar entered into the demised premises and occupied it only under Srinivasan and that there was no direct landlord and tenant relationship between Shanmugham Chettiar and Krishnakumar.
(ii) Simply because Krishnakumar was assisting Srinivasan and carried the rents given by Srinivasan for being handed over to Shanmugham Chettiar, it cannot be assumed and presumed that the Krishnakumar was working under Srinivasan and that subsequently the former became the sub-tenant of the latter etc.
(iii) After the departure of Srinivasan from the demised premises, Krishnakumar entered into an oral agreement of lease with Shanmugham Chettiar, whereby he occupied the demised premises and running lathe business.
(iv) The alleged default in paying the rents committed by Srinivasan cannot be mulcted on Krishnakumar.
(v) Even though Krishnakumar had paid the rents regularly ever since 5.10.2003, the date on which he started occupying the premises as a tenant under Shanmugham Chettiar, yet no receipt was given, as the landlord was not in the habit of issuing rent receipts to him.
(vi) Ex.R1-the statement of accounts issued by Vijaya Bank would reveal that a sum of Rs.20,000/- was paid as advance by the revision petitioner-Krishnakumar to landlord Shanmugham Chettiar's son, namely, Krishnan.
(vii) Hence, in these circumstances, both the Courts below failed to see the reality, but erroneously ordered eviction, warranting interference in revision.
6. In a bid to extirpate and torpedo the arguements as put forth and set forth on the side of the revision petitioner/Krishnakumar, the learned counsel for the respondents-the landlords, who are the legal heirs of the deceased Shanmugham Chettiar, would advance his arguements, the gist and kernal of them would run thus:
(i) Absolutely there was no landlord and tenant relationship directly between Shanmugham Chettiar and the revision petitioner herein-Krishnakumar.
(ii) In fact, Krishnakumar was working under Srinivasan and the latter committed wilful default in paying the rents and at no point of time the revision petitioner-Krishnakumar was allowed to be a tenant to occupy the demised premises.
(iii) It was Srinivasan, who put Krishnakumar to run such lathe business in the premises and in such a case, Krishnakumar cannot but be described as an unauthorised sub-tenant.
(iv) 'Wilful' default in paying the rents to Shanmugham Chettiar was committed by Srinivasan and in such a case both Srinivasan and Krishnakumar are having no locus-standi to continue in possession.
(v) The landlord was in the habit of issuing rent receipts on receipt of rent and it is totally false on the part of the revision petitioner-Krishnakumar to allege as though the landlord was not in the habit of issuing rent receipts.
(vi) The said sum of Rs.20,000/- referred to in Ex.R1 would virtually represent the repayment of the loan obtained by Krishnakumar from Krishnan-the son of Shanmugham Chettiar and that cannot be treated as advance.
Accordingly, the learned counsel for the respondents/landlords would pray for dismissing the civil revision petition.
7. The points for consideration are as under:
(i) Whether there was no landlord and tenant relationship between Shanmugham Chettiar and Krishnakumar-the revision petitioner herein and whether there was such relationship between Shanmugham Chettiar and Srinivasan and that only Srinivasan committed 'wilful default' in paying the rents?
(ii) Whether there is any perversity or illegality in the judgement and order passed by the Courts below?
8. All these points are taken together for discussion as they are interwoven and interconnected, entwined and interconnected with one another.
9. Indubitably and indisputably, Srinivasan-R1 was the tenant under Shanmugham Chettiar. However, Krishnakumar-the revision petitioner herein would submit that he had no connection with Srinivasan relating to his entering and occupying the premises as a tenant under Shanmugham Chettiar.
10. It is an admitted fact that Krishnakumar could not produce any rent receipt evidencing that he paid the rents. It is the case of the revision petitioner-Krishnakumar that ever since 5.10.2003, he has been in possession and occupation as a tenant under Shanmugham Chettiar and thereafter under the legal heirs of Shanmugham Chettiar. If that be so, there should be some rent receipt evidencing the alleged payment of rents.
11. The learned counsel for the respondents herein/landlords would highlight and indicate that the landlord Shanmugham Chettiar was in the habit of issuing receipt as evidenced by Exs.P1 and P2.
12. It is therefore crystal clear from Exs.P1 and P2 that Shanmugham Chettiar-the landlord was in the habit of issuing rent receipts and there is no knowing of the fact as to how such a landlord, who had been issuing rent receipts on receipt of rents from tenants would have refrained from issuing any receipt at all to Krishnakumar-the revision petitioner herein, had really the latter paid rent to the former.
13. Exs.P1 and P2 also would reveal that Shanmugham Chettiar was also in the habit of issuing receipt to his other tenants. It is therefore clear that under Shanmugham Chettiar there were several tenants in various tenements and he had been in the habit of issuing rent receipts. The preponderance of probabilities would govern the adjudication in civil cases and from that point of view if the plea of the revision petitioner-Krishnakumar is analysed this Court would have no hesitation in holding that the plea that Shanmugham Chettiar was not in the habit of issuing rent receipt is nothing but a ruse to wriggle out of Krishnakumar's liability to face the rent control proceedings.
14. Precisely the case of the revision petitioner/Krishnakumar is that he has been paying the rents regularly; however, the learned counsel for the landlords would invite the attention of this Court to the deposition of R.W.1, which would run thus:
VERNACULAR (TAMIL) PORTION DELETED (emphasis supplied) and develop his arguement to the effect that in the wake of the supine admission made by the revision petitioner it is crystal clear that there was no landlord and tenant relationship between Shanmugham Chettiar and the revision petitioner-Krishnakumar and the latter was only trying to explain and expound unsatisfactorily as though the rent was not received by the said Shanmugham Chettiar from Krishnakumar.
15. For arguement's sake, if the matter is viewed as per Krishnakumar's plea, he should have approached the Rent Controller under Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act by pleading that Shanmugham Chettiar was unjustifiably refusing to receive the rent and accordingly he should have started paying the rent as envisaged therein. But such a course was not resorted to by him.
16. The learned counsel for the respondents herein/landlords would invite the attention of this Court to the following portion of the deposition of R.W.1:
VERNACULAR (TAMIL) PORTION DELETED and develop his arguement that there is an admission on the part of Krishnakumar-the revision petitioner herein that he had nexus with Srinivasan and following him he has been continuing in the premises.
17. Whereas, the learned counsel for the revision petitioner herein/Krishnakumar, in an attempt to disambiguate the ambiguity in the said answer given by R.W.1, as aforesaid, would pilot his arguement that the said answer cannot be taken as an admission that Krishnakumar was none but a person who entered and occupied the premises under Srinivasan.
18. To the risk of repetition and pleonasm but without being tautalogous, I would like to point out that preponderance of probabilities would govern the adjudication in civil cases. Had really Krishnakumar, before himself occupying exclusively the said demised premises, nothing to do with Srinivasan, he would not have gone to the extent of carrying the rent for Srinivasan for being handing over to Shanmugham Chettiar.
19. In favour of Srinivasan, the deceased landlord Shanmugham Chettiar was regularly issuing receipts in respect of rents received by him. The witnesses might lie but the circumstances would not lie. Keeping that principle in mind, if the matter is analysed, it is crystal clear that both the Courts below correctly held that there was no contractual relationship directly between Shanmugham Chettiar and Krishnakumar and that the latter entered into the premises and occupied it only under Srinivasan. In such a case, the landlord was justified in approaching the Rent Controller with the plea that Srinivasan did not pay rent ever since 1.8.2002 and thereby committed wilful default in paying the rent.
20. The learned counsel for the revision petitioner-Krishnakumar would try to place reliance on the photocopy of the document found enclosed in his typed set of papers at page No.40.
21. Whereas, the learned counsel for the respondents/landlords would appropriately and appositely highlight that such a document was not marked before the lower Court.
22. I hold a fortiori, the said photocopy found enclosed at Page No.40 of the typed set of papers is having no probative force and it ought not have been enclosed in the typed set at all.
9. At the outset itself, I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court and certain excerpts from those decisions would run thus:
(i) (2000)3 SUPREME COURT CASES 282- CHORDIA AUTOMOBILES V. S.MOOSA AND OTHERS relating to the concept 'Willful default.' 8. Wilful default means an act consciously or deliberately done with open defiance and intent not to pay the rent. In the present case the amount of rent defaulted firstly is on account of the fact that the agent of the landlord did not come to collect the rent for some reason. Further, notice of default contained the disputed rent. This fact coupled with the fact that eviction suit was filed before maturing a case of wilful default in terms of the explanation to the proviso of Section 10(2). The dispute of rent admittedly was genuine. Further, we find the conduct of the appellant throughout in the past being not of a defaulter or irregular payer of rent. Thus, all these circumstances cumulatively come to only one conclusion that the appellant cannot be held to be a wilful defaulter.
9. In S.Sundaram Pillai v. V.r.Pattabiraman this Court had occasion to consider the word 'wilful default' under Section 10(2) of the aforesaid Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 which is reproduced below:(SCC pp.605-06, paras 21-26) 21. Before, however, going into this question further, let us find out the real meaning and content of the word 'wilful' or the words 'wilful default'. In the book A Dictionary of Law by L.B.Curzon, at p.361 the words 'wilful' and 'wilful default' have been defined thus:
'Wilful' deliberate conduct of a person who is a free agent, knows that he is doing and intends to do what he is doing.
'Wilful default' Either a consciousness of negligence or breach of duty, or a recklessness in the performance of a duty.
22. In other words, 'wilful default' would mean a deliberate and intentional default knowing fully well the legal consequences thereof. In Words and Phrases, Vol 11-A (Permanent Edition) at p.268 the word 'default' has been defined as the non-performance of a duty, a failure to perform a legal duty or an omission to do something required. In Vol.45 of Words and Phrases, the word 'wilful' has been very clearly defined thus:
'wilful' intentional; not incidental or involuntary;
- done intentionally, knowingly, and purposely, without justifiable excuse as distinguished from an act done carelessly; thoughtlessly, heedlessly or inadvertently;
- in common parlance word 'wilful' is used in sense of intentional, as distinguished from accidental or involuntary.
p.296 'Wilful' refers to act consciously and deliberately done and signifies course of conduct marked by exercise of volition rather than which is accidental, negligent or involuntary.
23. In Vol.III of Webster's Third New International Dictionary at p.2617, the word 'wilful' has been defined thus:
governed by will without yielding to reason or without regard to reason; obstinately or perversely self-willed.
24.The word 'default' has been defined in Vol.I of Webster's Third New International Dictionary at p.590 thus:
to fail to fulfil a contract or agreement, to accept a responsibility; to fail to meet a financial obligation.
25. In Black's Law Dictionary (Fourth edn.) at p.1773 the word 'wilful' has been defined thus:
'Wilfulness' implies an act done intentionally and designedly; a conscious failure to observe care; conscious; knowing; done with stubborn purpose, but not with malice.
The word 'reckless as applied to negligence, is the legal equivalent of 'wilful' or 'wanton'
26. Thus, a consensus of the meaning of the words 'wilful default' appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to above.
(ii) (2003) 1 SCC 123, [E.Palanisamy v. Palanisamy (D) by LRs and others], and certain excerpts from it would run thus:
"4. It would be seen from the above provisions that while the landlord is required to issue a notice of default, on refusal by the landlord to accept rent, the tenant is required to call upon the landlord by way of a notice to specify the name of a bank in which rent could be deposited by the tenant to the credit of the landlord. If the landlord specifies the name of the bank to deposit the rent, there is an obligation on the part of the tenant to make the deposit of arrears of rent in the account of the landlord. However, if the landlord does not specify the name of a bank in spite of being called upon by the tenant through a notice, the tenant is required to send the amount of arrears through a money order to the landlord after deducting the commission payable on the money order. If the landlord still refuses to accept the rent, the tenant is entitled to file an application before the Rent Controller seeking permission to deposit the arrears of rent under sub-section (5) of Section 8 of the Act.
5. Mr Sampath, the learned counsel for the appellant argued that since the appellant tenant had deposited the arrears of rent in court, it should be taken as compliance with Section 8 of the Act. This would mean there is no default on the part of tenant in payment of rent and therefore, no eviction order could have been passed against the appellant on that ground. According to the learned counsel, the court should not take a technical view of the matter and should appreciate that it was on account of refusal of the landlords to accept the rent sent by way of money orders that the tenant was driven to move the court for permission to deposit the arrears of rent. Since there is a substantial compliance with Section 8 inasmuch as the arrears of rent stand deposited in court, a strict or technical view ought not to have been taken by the High Court. We are unable to accept this contention advanced on behalf of the appellant by the learned counsel. The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh v. Ganpat Lal and M. Bhaskar v. J. Venkatarama Naidu 2.
6. The counsel for the appellant did not dispute that the tenant had not fulfilled the conditions prescribed in Section 8 of the Act before making deposit of rent in court. Hence similar circumstances and while dealing with almost similar provisions contained in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, this Court in Kuldeep Singh v. Ganpat Lal1 held: (SCC p. 249, para 8) 8. In the present case, the appellant is seeking to avail of the benefit of the legal fiction under Section 19-A(4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. [See Bengal Immunity Co. Ltd. v. State of Bihar (SCR at p.646).] The appellant can avail of the benefit of Section 19-A(4) if the deposit of Rs.3600 made by him in the Court of Munsif (South), Udaipur, on 29-10-1982, by way of rent for the months of May 1982 to October 1982, can be treated as a payment under Section 19-A(3)(c) so as to enable the appellant to say that he was not in default in payment of rent. Under Section 19-A(3)(c) the tenant can deposit the rent in the court only if the conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present case. The deposit which was made by the respondent in court on 29-10-1982 cannot, therefore, be regarded as a deposit made in accordance with clause (c) of sub-section (3) of Section 19-A and the appellant cannot avail of the protection of sub-section (4) of Section 19-A and he must be held to have committed default in payment of rent for the months of May 1982 to October 1982. This means that the decree for eviction has been rightly passed against the appellant on account of default in payment of rent for the period of six months.
7. Again in M. Bhaskar v. Venkatarama Naidu2 with reference to similar provisions contained in the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, this Court observed that when the landlord is evading payment of rent, the tenant has to follow the procedure prescribed under Section 8 of the Act i.e. to issue notice to the landlord to name the bank and if he does not name the bank, the tenant has to file application before the Rent Controller for permission to deposit rent. The tenant did not follow that procedure. Omission to avail of the prescribed procedure disentitles the tenant to plead that there was no wilful default on his part. The landlord was, therefore, entitled to seek eviction on the ground of wilful default in payment of rent on the part of the tenant.
8. Admittedly the tenant did not follow the procedure prescribed under Section 8. The only submission that was advanced on behalf of the appellant was that since the deposit of rent had been made, a lenient view ought to be taken. We are unable to agree with this. The appellant failed to satisfy the conditions contained in Section 8. Mere refusal of the landlord to receive rent cannot justify the action of the tenant in straight away invoking Section 8(5) of the Act without following the procedure contained in the earlier sub-sections i.e. sub-sections (2), (3) and (4) of Section 8. Therefore, we are of the considered view that the eviction order passed against the appellant with respect to the suit premises on the ground of default in payment of arrears of rent needs no interference. The impugned judgment of the High Court, therefore, does not call for interference. These appeals are dismissed. We are informed that the landlords have already taken possession of the suit premises, in pursuance of the High Court judgment."
10. One other decision of this court is reported in 2000-3-L.W.634 [M/s.Guru Associates rep.by its Partner Mr.Lalithakumar Jain and Lalithakumar Jain vs. B.A.Balasubramaniam]. Certain excerpts from it would run thus:
"11. Under Section 11 (1) of the Act, it is the duty of the tenant to deposit all arrears of rent due in respect of the building upto the date of payment or deposit and continue to pay or to deposit any rent which may subsequently become due in respect of the building until the termination of the proceeding before the Controller or the Appellate Authority, as the case may be, Sub-Section (4) of Section 11 says, if any tenant fails to pay or to deposit the rent as aforesaid, the Controller or Appellate Authority, as the case may be, shall unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building."
24. As such, it is clear that there was 'wilful default' in paying the rents by Srinivasan and that under Srinivasan only the said Krishnakumar entered into the premises concerned.
25. The learned counsel for the revision petitioner would place reliance on the following two decisions of the Honourable Apex Court as well as this Court:
(i) (1999) 7 SUPREME COURT CASES 263 RESHAM SINGH V. RAGHBIR SINGH AND ANOTHER, certain excerpts from it would run thus:
"7. It is a settled position of law that to establish sub-letting the onus is on the landlord to prove through evidence that the sub-tenant was in exclusive possession of the property in question; that between the sub-tenant and the tenant there was a relationship of lessee and lessor and that possession of the premisesh in question was parted with exclusively by the tenant in favour of the sub-tenant.(see Kala v. Madho Parshad Vaidya-(1998) 6 SCC 573 and Benjamin Premanand Rawade v. Anil Joseph Rawade (1998) 9 SCC 688"
(ii) The judgement of this Court reported in 1998 (I) CTC 537 P.SENNIAPPAN AND OTHERS V. KANNAMMAL AND 2H OTHERS, certain excerpts from it would run thus:
"16. In a number of cases, the Apex Court and this Court have dealt with the meaning of sub-lease falling under Section 10(2)(ii)(a) of the said Act. A tenant can be said to sublet the demised premises to a third party only if the tenant had permitted the third party to occupy the premises and had divested himself completely of the possession of the premises or part thereof. In other words there must be transfer of exclusive right to enjoy the demised premises by a tenant in favour of third party and the said right must be in lieu of payment of compensation or rent. If a tent had permitted a third party to use the premises along with him and the tenant retains the legal possession, it will not amount to subletting. There cannot be a subletting under the lessee, if he has not parted with legal possession. A grant in favour of third party only of the right to use the premises without being entitled to the exclusive possession thereof operates mere licence only."
26. In my considered opinion the above precedents are cited out of context, and they could be pressed into service in a case where the chief tenant and sub-tenant are both in one and the same premises; in such an event, both of them could plead that the so called sub-tenant is none but the person working under the chief tenant etc., then the question of landlord proving exclusive possession by the alleged sub-tenant would arise.
27. But here, admittedly as on the date of filing of the RCOP only Krishnakumar was in exclusive possession of the demised premise. But it is the case of Shanmugham Chettiar that he was unauthorisedly occupying it under Srinivasan. As such, my discussion supra would reveal that the findings of both the Courts below based on evidence that the said Krishnakumar-the revision petitioner herein entered and occupied the demised premises only under Srinivasan is well founded, warranting no interference in revision.
28. I could see no perversity or illegality in the judgement and order passed by the Courts below. Accordingly, there is no merit in the revision and it is dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is dismissed.
29. On hearing this order, the learned counsel for the revision petitioner/tenant would make an extempore submission that time till the end of April 2013 might be granted, so that the revision petitioner would be able to find an alternate accommodation and hand over possession peacefully to the respondents herein; however, the learned counsel for the respondents/landlords would object for granting time.
30. I could see considerable force in his submission made by the learned counsel for the petitioner. Time is granted till 30.4.2013 for vacating the premises, subject to the condition that the revision petitioner should pay the past arrears of rent as well as the future rents without any default. To that effect within 15 days, an affidavit shall be filed by the revision petitioner herein.
Msk To
1. The VIII Small Causes Court, Chennai.
2. The XII Small Causes Court, Chennai