Madras High Court
Mahendra Kumar vs Santhosh Kumar on 5 January, 2023
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
C.R.P.No.4331 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.01.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.R.P.No.4331 of 2022
and
C.M.P.No.22764 of 2022
Mahendra Kumar ... Petitioner
Vs.
Santhosh Kumar ... Respondent
Prayer: Civil Revision Petition is filed under Article 227 of the Constitution
of India, to set aside the fair and decreetal order dated 09.11.2022 passed in
M.P.No.2 of 2022 and consequently reject the R.L.T.O.P.No.743 of 2021 on
the file of XII Small Causes Court, Chennai.
For Petitioner : Mr.M.Arvind Kumar
For Respondent : Mr.Rahul K.Jain
ORDER
The Civil Revision Petition has been filed against the fair and decreetal order dated 09.11.2022 passed in M.P.No.2 of 2022 in R.L.T.O.P.No.743 of 2021.
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2. The respondent / landlord filed R.L.T.O.P.No.743 of 2021 for eviction. The revision petitioner / tenant, during the pendency of the R.L.T.O.P, filed M.P.No.2 of 2022 under Section 36 (1) (a) of the Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act, 2017 (T.N.Act 42 of 2017) [hereinafter referred to as 'TNRRRLT Act'] to stay all further proceedings in R.L.T.O.P.No.743 of 2021. The Rent Court adjudicated the issues and dismissed the Miscellaneous Petition. Challenging the said order, the present Civil Revision Petition is filed.
3. The revision petitioner states that he was ready and willing to execute the tenancy agreement and register the same as per the new Act. However, the respondent had incorporated exorbitant monthly rent of Rs.50,000/- contrary to the existing monthly rent of Rs.2,000/- and further, denied to incorporate the receipt of the amount of Rs.20,00,000/- as pagadi. Thus, the tenancy agreement could not be entered into between the parties and on the ground of no agreement, the respondent filed an application to evict the petitioner. Thus, the petitioner filed the Miscellaneous Petition to stay R.L.T.O.P. proceedings mainly on the ground that the respondent / landlord refused to enter into an agreement and incorporated exorbitant Page 2 of 18 https://www.mhc.tn.gov.in/judis C.R.P.No.4331 of 2022 monthly rent of Rs.50,000/- contrary to the monthly rent. Under those circumstances, the agreement was not entered into between the parties, on account of the act of the respondent / landlord.
4. The respondent / landlord objected the said contention by stating that the tenancyship was terminated and the revision petitioner / tenant has not filed any document to support his contentions. In the absence of any documents or agreement for tenancyship, the respondent/landlord states the he is entitled to evict the petitioner / tenant under the provisions of the TNRRRLT Act. Thus, the Miscellaneous Petition is devoid of merits.
5. The Rent Court had considered the grounds raised between the parties. The contention of the revision petitioner is that the respondent / landlord refused to enter into a tenancy agreement with the petitioner, though he was ready to execute the tenancy agreement and register the same as per the new Act. Further, the respondent / landlord unilaterally increased the monthly rent exorbitantly and no termination notice was issued. Page 3 of 18 https://www.mhc.tn.gov.in/judis C.R.P.No.4331 of 2022
6. The Rent Court found that the revision petitioner / tenant has clearly admitted through his letter dated 26.07.2021 that he refused to enter into a tenancy agreement. The termination notice dated 06.09.2021 had been issued after refusal of the petitioner by way of a written communication to enter into a written tenancy agreement. The petitioner has further stated that the respondent / landlord cannot force him to enter into a written agreement for exorbitant monthly rent.
7. The Rent Court considered the issues and found that not entering into a written tenancy agreement or tenant expressing his willingness that he is ready to enter into a written tenancy agreement are not sufficient grounds for rejecting the R.L.T.O.P.
8. In this regard, the Rent Court relied on the judgment of this Court in the case of P.Narayanamoorthy Vs. Rizwana made in C.R.P.No.168 of 2021 dated 14.07.2022. Accordingly, the Miscellaneous Petition was dismissed by the Rent Court.
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9. Considering the arguments, primarily, Section 36(1) of the T.N. Act 42 of 2017 stipulates that the Rent Court and the Rent Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice. While so, any Miscellaneous Petition filed by invoking the Code of Civil Procedure is not entertainable. If the practice of filing the Miscellaneous Petition are allowed in the R.L.T.O.P. proceedings in violation of the provisions of the new Act, then any party will take undue advantage or abuse the process of law for the purpose of prolonging and protracting the proceedings. Thus, the Rent Court is not empowered to entertain any Miscellaneous Petition filed under the Code of Civil Procedure, but the Rent Court has to adjudicate the issues with reference to the grounds raised between the parties. In the present case, Miscellaneous Petition in M.P.No.2 of 2022 was filed under Section 36(1)(a) of the TNRRRLT Act, 2017.
10. Section 36(1)(a) of the TNRRRLT Act, 2017 contemplates procedures to be followed by the Rent Court and Rent Tribunal. Sub Clause
(a) to Sub-Section 1 to Section 36 stipulates that “Landlord or Tenant may file an application before the Rent Court accompanied by affidavits and Page 5 of 18 https://www.mhc.tn.gov.in/judis C.R.P.No.4331 of 2022 documents, if any”. The said procedure is contemplated for filing an application under T.N.Act 42 of 2017.
11. Section 36(1)(a) of the TNRRLT Act contemplates that the landlord or tenant may file an application before the Rent Court. Sub Clause
(b) states that the Rent Court, then, shall issue notice to the opposite party. Sub Clause (c) contemplates the opposite party shall file a reply accompanied by affidavits and documents, if any, after serving a copy of the same to the applicant. Sub Clause (d) states that the applicant may file a rejoinder, if any, after serving the copy to the opposite party. Sub Clause (e) contemplates the Rent Court shall, then, fix a date of hearing and may hold such summary inquiry as it deems necessary.
12. Sub Section 2 of the TNRRRLT Act, 2017 contemplates that in every case, before the Rent Court and the Rent Tribunal, the evidence of a witness shall be given by affidavit. However, the Rent Court and the Rent Tribunal, where it appears to it that it is necessary in the interest of justice to call a witness for examination or cross-examination, such witness can be produced and may order attendance for examination or cross-examination of Page 6 of 18 https://www.mhc.tn.gov.in/judis C.R.P.No.4331 of 2022 such a witness. Sub Section 4 to Section 36 of the said Act states that every application or appeal, shall be in the prescribed format. Sub Section 5 of the Act states that the Rent Court shall not ordinarily allow more than three adjournments at the request of the parties throughout the proceedings and only on exceptional circumstances, by recording reasons, further adjournment is to be granted. Sub Section 6(a) stipulates that all applications under Clauses (a), (b), (c), (e), (f) and (h) of Sub-Section (2) of Section 21 shall be decided within 90 days of filing of applications to the Rent Court. Sub Section 6(b) states that the applications under Clauses (d) and (g) of Sub- Section (2) of Section 21 shall be decided within 30 days of filing of applications to the Rent Court.
13. Cogent reading of the procedures of Rent Court and Rent Tribunal contemplated under Section 36 of the New Act, it would reveal that the procedures prescribed are meant to deal with the applications filed either by the landlord or by the tenant under the New Act. There is no specific provision to entertain Miscellaneous Petition for the purpose of deciding the issues separately and independently. All the grounds including maintainability, jurisdiction, etc., may be raised by parties in the application Page 7 of 18 https://www.mhc.tn.gov.in/judis C.R.P.No.4331 of 2022 or in the reply to be filed. However, the parties may be permitted to file any additional affidavit or additional reply as the case may be, if any omission or commission occurred or noticed either in the application or in the reply filed. The Miscellaneous Petition may be permitted only in the case of impleading necessary parties or substitution of any party or to amend the cause title or to correct any typographical errors and certainly not for the purpose of deciding the issues separately and independently.
14. Thus, the parties are at liberty to raise their respective grounds including the grounds relating to maintainability, jurisdiction, etc., either in the application or in the reply, and the Rent Court and Rent Tribunal are empowered to deicide the issues in the application itself. Section 36(1)(e) of the New Act enumerates that the Rent Court shall, then, fix a date of hearing and may hold such summary inquiry as it deems necessary. Thus, the filing of Miscellaneous Petition during the pendency of the main application is impermissible, and if permitted, would defeat the purpose and object of the summary inquiry contemplated under the New Act.
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15. The procedures contemplated under Section 36 is for filing applications, which would not include filing of the Miscellaneous Petition during the pendency of the main application. There is no indication under the provisions of the Act regarding filing and entertaining a Miscellaneous Petition for deciding the issues independently. Thus, no party shall be allowed to raise the issues separately and independently during the pendency of the application and all such issues are to be raised either in the application, or in the reply, or through additional affidavits, enabling the Rent Court and the Rent Tribunal to decide all such issues in the main application.
16. However, the Miscellaneous Petition for payment of rent alone is entertainable under Section 25 of New Act. Section 25 contemplates “In any proceedings for recovery of possession on any ground other than that referred to in clause (a) or clause (b) of Sub-Section (2) of Section 21, the tenant contests the claim for eviction, the landlord may, at any stage of proceedings, apply to the Rent Court to direct the tenant to pay to the landlord rent payable as under Section 8 and the Rent Court may order the tenant to make such payment as agreed regularly to the landlord by the tenth of the month and all other charges due from the tenant along with penal charges due from the Page 9 of 18 https://www.mhc.tn.gov.in/judis C.R.P.No.4331 of 2022 tenant along with penal charges, if any, due to delay in the same manner as provided in Sub-Section (1) of Section 13”. Therefore, the Miscellaneous Petition during the pendency of the R.L.T.O.P. proceedings is entertainable only under Section 25 for payment of rent and therefore, any other Miscellaneous Petitions filed to decide the issues separately and independently is not entertainable.
17. In the present case, the revision petitioner filed a Miscellaneous Petition, seeking stay of the R.L.T.O.P. proceedings on the ground that he was ready and willing to enter into an agreement in writing with the respondent / landlord. But the respondent / landlord incorporated a clause, fixing exorbitant rent. The complaint, in this regard, by the revision petitioner / tenant can very well be adjudicated and decided in the R.L.T.O.P. proceedings itself. Thus, an inference is to be drawn that the Miscellaneous Petition is filed by the revision petitioner with a motive to prolong and protract the proceedings, which is noting but abuse of the judicial process and in violation of the object of the summary proceedings contemplated and the time limit prescribed under the New Act.
18. The learned counsel for the petitioner relied on the judgment of this Page 10 of 18 https://www.mhc.tn.gov.in/judis C.R.P.No.4331 of 2022 Court in the case of Ramesh Salunkhe Vs. Pramila Jain reported in [2022- 1-L.W.481], the Court made an observation in paragraph 9 as follows:
“9. ............... In the case on hand, the landlord and tenant are required to enter into the tenancy agreement in respect of the existing tenancy. No new terms can be included in the existing tenancy agreement. What is required under Section 4 (2) of the Act is that the terms of the existing oral tenancy have to be reduced into writing as a tenancy agreement. ............”
19. The observations made by the Court in the case (cited supra) are with reference to the facts and circumstances of the issues decided. However, those observations cannot be followed as legal principle, since the facts and circumstances of each case is to be considered and the distinguishable factors are to be considered for arriving a conclusion. Reading of the observation in the above judgment would reveal that it was made in the context of the facts and therefore, cannot be followed as a precedent in other case.
20. Right to property is a Constitutional right under Article 300-(A) of the Constitution of India. Property Right cannot be taken away without any Page 11 of 18 https://www.mhc.tn.gov.in/judis C.R.P.No.4331 of 2022 authority of law. Landlord has got an absolute right to deal with his property at his choice. Right to Property cannot be interfered with by any person, least by the tenant. Right of the tenant is restricted only with reference to the terms and conditions of the lease agreement agreed between the landlord and the tenant, which is a contract. Thus, the right of tenant is a Statutory right limited to the extent of terms and conditions agreed between the parties in the contract. Thus, no tenant has got an enforceable right against the landlord for entering into an agreement for tenancyship or to dictate terms and conditions. The offer made either by the tenant or by the landlord is to be accepted by the other party and shall be reduced in writing. Only if any written agreement has been entered into between the landlord and tenant, then only the enforceability of terms and conditions are to be considered and not otherwise. It is needless to state that conditions agreed cannot be void or voidable, but must be in accordance with law. Burden to establish that there is a written rental agreement in force is on the person, who is approaching the Court or defending the case. Absence of written tenancy agreement is a ground for eviction under the New Act. Thus, the right of property of a landlord to lease out his property is absolute and cannot be interfered with by the tenant or infringed by any person.
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21. The spirit and language employed in the judgment (cited supra) are that the landlord and tenant are required to enter into an agreement in respect of existing tenancy. It is an observation made to clarify that the New Act requires a written tenancy agreement for the purpose of granting the relief. A tenancy expired or the decision taken by the landlord to terminate the tenancy, is a right exercised and the Court cannot interfere. In respect of the oral tenancy, the parties are at liberty to take a decision either to enter into a written agreement of tenancy or to terminate the tenancy. The Court or anyone of the party cannot compel any person to enter into a written agreement for tenancy, since right to terminate the tenancy under the Act cannot be taken away. When the New Act contemplates right to terminate the tenancy in the absence of any written agreement, the Court cannot compel any one of the party to enter into a written agreement and it is always an absolute right vested on the parties either to enter into a written agreement or to terminate the tenancy. Thus, incorporating new terms and conditions at the time of entering into a written tenancy agreement is the choice of the parties and Court cannot compel the parties in this regard. Therefore, the observations made in the judgment (cited supra), it is made clear that if at all Page 13 of 18 https://www.mhc.tn.gov.in/judis C.R.P.No.4331 of 2022 any tenancy agreement exists, then the landlord cannot change the terms and conditions in the agreement. Therefore, it is unambiguous that in an existing written tenancy agreement, no new terms and conditions can be incorporated without the consent of both the parties. If there is a oral tenancy, the said question would not arise at all. Therefore, a distinction is to be drawn with reference to the existing tenancy agreement in writing, which is in force and the renewal of tenancy agreement in writing or entering into a new tenancy agreement. At the time of renewal of agreement on expiry of the tenancyship, the parties are at liberty to agree new terms and conditions and more so, the landlord is empowered to incorporate new conditions by way of an offer, which is his right and acceptance is the choice of the tenant.
22. Question arises, in case, the tenant already in occupation of the premises and expressing his willingness to enter in to a written agreement. In such circumstances, again the choice comes to the landlord, whether to enter into a written agreement or to terminate the tenancy. Such a right is an absolute property right of the landlord, which cannot be taken away. In order to regulate the tenancyship, the New Act contemplates and provides an opportunity to landlord and tenant to enter into a written tenancy agreement, Page 14 of 18 https://www.mhc.tn.gov.in/judis C.R.P.No.4331 of 2022 which is to be registered. Therefore, it is the choice of the landlord and tenant to enter into a written agreement of tenancy after the enforcement of the New Act. In respect of the expired tenancy and with reference to the oral tenancy, the landlord has got an absolute right to take a decision either to terminate the tenancy or to enter into a written agreement of tenancy with the tenant.
23. The absolute right of property vested on the landlord cannot be taken away nor anyone can compel the landlord to enter into a written tenancy agreement. Any such compulsion would result in infringement of the right of property under Article 300-(A) of the Constitution of India. Thus, the Court cannot direct the landlord to enter into a written tenancy agreement with the tenant. When the right of the parties exists, the Courts are bound to protect such rights of either of the parties. Right to deal with the property by the landlord under the Constitution and the Statutes cannot be infringed nor be taken away. If the landlord refused to enter into an agreement in writing under the New Act, then the tenant has no option, but to vacate and hand over the vacant possession to the landlord, failing which, the landlord gets a right to file an application for eviction under the provisions of the New Act. Page 15 of 18 https://www.mhc.tn.gov.in/judis C.R.P.No.4331 of 2022
24. Thus, the Miscellaneous Petition to stay the R.L.T.O.P. proceedings under the provisions of the New Act is not entertainable, more specifically, under Section 36(1)(a) of the Act. In the present case, the grounds raised for filing the Miscellaneous Petition to stay R.L.T.O.P. proceedings is also untenable as rightly concluded by the Rent Court. Thus, the findings of the Rent Court is in consonance with the spirit and the provisions of the Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act, 2017. Therefore, the Rent Court shall dispose of the main application taking note of the purport of Section 36(6) of the New Act.
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25. Accordingly, the fair and decretal order dated 09.11.2022 passed in M.P.No.2 of 2022 in R.L.T.O.P.No.743 of 2021 stands confirmed and consequently, the Civil Revision Petition in C.R.P.No.4331 of 2022 is dismissed. Connected Miscellaneous Petition is closed. However, there shall be no order as to costs.
05.01.2023 Jeni/Kak Index : Yes Neutral Citation : Yes Speaking order To The Judge, XII Small Causes Court, Chennai.
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Jeni/Kak C.R.P.No.4331 of 2022 05.01.2023 Page 18 of 18 https://www.mhc.tn.gov.in/judis