Madras High Court
Chellappan vs K.R.Ravi on 22 January, 2016
Author: M. Duraiswamy
Bench: M. Duraiswamy
RESERVED ON : 19.01.2016
DELIVERED ON : 22.01.2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.01.2016
CORAM
THE HONOURABLE MR. JUSTICE M. DURAISWAMY
C.R.P.(NPD)Nos.3666 to 3670 of 2013 &
M.P.Nos.1 to 1 of 2013 &
C.M.P.Nos. 531 to 535 of 2016
Chellappan ... Petitioner in CRP No.3666/2013
S.Velmurugan ... Petitioner in CRP No.3667/2013
N.Munusamy ... Petitioner in CRP No.3668/2013
N.Nagarajan ... Petitioner in CRP No.3669/2013
S.Nandakumar ... Petitioner in CRP No.3670/2013
v.
1.K.R.Ravi
2.R.Dhanalakshmi ... Respondents in both CRPs
Civil Revision Petition No.3666/2013 filed under section 25 of Tamil Nadu Buildings (Lease and Rent Control) Act 1961 against the judgment and decree dated 12.08.2013 passed in R.C.A No.4 of 2010 on the file of Rent Control Appellate Authority(Sub Court), Vellore in confirming the fair and decreetal order dated 30.08.2010 passed in R.C.O.P.No.4 of 2009 on the file of the Rent Controller (Principal District Munsif), Katpadi.
Civil Revision Petition No.3667/2013 filed under section 25 of Tamil Nadu Buildings (Lease and Rent Control) Act 1961 against the judgment and decree dated 12.08.2013 passed in R.C.A No.6 of 2010 on the file of Rent Control Appellate Authority(Sub Court), Vellore in confirming the fair and decreetal order dated 30.08.2010 passed in R.C.O.P.No.6 of 2009 on the file of the Rent Controller (Principal District Munsif), Katpadi.
Civil Revision Petition No.3668/2013 filed under section 25 of Tamil Nadu Buildings (Lease and Rent Control) Act 1961 against the judgment and decree dated 12.08.2013 passed in R.C.A. No.7 of 2010 on the file of Rent Control Appellate Authority(Sub Court), Vellore in confirming the fair and decreetal order dated 30.08.2010 passed in R.C.O.P.No.8 of 2009 on the file of the Rent Controller (Principal District Munsif), Katpadi.
Civil Revision Petition No.3669/2013 filed under section 25 of Tamil Nadu Buildings (Lease and Rent Control) Act 1961 against the judgment and decree dated 12.08.2013 passed in RCA No.8 of 2010 on the file of Rent Control Appellate Authority (Sub Court), Vellore in confirming the fair and decreetal order dated 30.08.2010 passed in R.C.O.P.No.7 of 2009 on the file of the Rent Controller (Principal District Munsif), Katpadi.
Civil Revision Petition No.3670/2013 filed under section 25 of Tamil Nadu Buildings (Lease and Rent Control) Act 1961 against the judgment and decree dated 12.08.2013 passed in R.C.A.No.10 of 2010 on the file of Rent Control Appellate Authority(Sub Court), Vellore in confirming the fair and decreetal order dated 30.08.2010 passed in R.C.O.P.No.10 of 2009 on the file of the Rent Controller (Principal District Munsif), Katpadi.
For Petitioners : Mr.P.Mani
For Respondent : Mr.T.M.Hariharan
COMMON ORDER
Civil Revision Petition No.3666/2013 arises against the judgment and decree passed in R.C.A No.4 of 2010 on the file of Rent Control Appellate Authority (Sub Court), Vellore confirming the order passed in R.C.O.P.No.4 of 2009 on the file of the Rent Controller (Principal District Munsif), Katpadi.
2. Civil Revision Petition No.3667/2013 arises against the judgment and decree passed in R.C.A No.6 of 2010 on the file of Rent Control Appellate Authority (Sub Court), Vellore confirming the order passed in R.C.O.P.No.6 of 2009 on the file of the Rent Controller (Principal District Munsif), Katpadi.
3. Civil Revision Petition No.3668/2013 arises against the judgment and decree passed in R.C.A. No.7 of 2010 on the file of Rent Control Appellate Authority (Sub Court), Vellore confirming the order passed in R.C.O.P.No.8 of 2009 on the file of the Rent Controller (Principal District Munsif), Katpadi.
4. Civil Revision Petition No.3669/2013 arises against the judgment and decree passed in R.C.A. No.8 of 2010 on the file of Rent Control Appellate Authority (Sub Court), Vellore confirming the order passed in R.C.O.P.No.7 of 2009 on the file of the Rent Controller (Principal District Munsif), Katpadi.
5. Civil Revision Petition No.3670/2013 arises against the judgment and decree passed in R.C.A. No.10 of 2010 on the file of Rent Control Appellate Authority (Sub Court), Vellore confirming the order passed in R.C.O.P.No.10 of 2009 on the file of the Rent Controller (Principal District Munsif), Katpadi.
6. In all these revision petitions the tenants are the revision petitioners and the respondents are the landlords. The respondents-landlords have filed the Rent Control Original Petitions for eviction on the grounds of willful default, demolition and reconstruction, owners occupation and denial of title. The Rent Controller, ordered eviction, on the grounds of willful default and denial of title. The order of eviction passed by the Rent Controller was confirmed by the Rent Control Appellate Authority in the Rent Control Appeals preferred by the tenants. Aggrieved over the concurrent findings of the courts below, the tenants have filed the above Civil Revision Petitions.
7. Heard Mr.P.Mani learned counsel appearing for the petitioners and Mr.T.M.Hariharan, learned counsel appearing for the respondents.
8 . Since the issue involved in all these Civil Revision Petitions are common, all these Civil Revision Petitions are decided by this common order.
9. According to the respondents-landlords, they purchased the petition property under two registered sale deeds marked as Exs.A2 and A3 dated 7.3.2003 and 19.04.2004 respectively. According to the landlords, they became the absolute owners of the property along with the superstructure by virtue of Exs.A2 and A3 sale deeds. After the purchase of the property, the landlords informed the tenants with regard to the purchase made by them under Exs.A2 and A3 sale deeds. The tenants sent replies contending that they are the owners of the superstructure and that they are tenants in respect of the vacant site alone. Further, the landlords contended that the tenants neglected to pay the rent in respect of the portion in their occupation and committed willful default in paying the monthly rent to them.
10. The respondents contended that the vendor of the landlords, viz., A.N.Moorthy leased out only the vacant site. According to the tenants, they put up construction in the vacant site and therefore, the landlords are not entitled to claim possession of the superstructure in the Rent Control proceedings. According to the tenants, the Rent Control Original Petitions are not maintainable for the reason that only vacant site was leased out to them. Further, the tenants contended that the ground rent in respect of the vacant site is Rs.150/- per month and that they are ready to deposit the same into the court.
11. Since the tenants disputed the title of the landlords, the landlords have filed Rent Control Original Petitions for eviction on the ground of denial of title and on the ground of willful default and the courts below also ordered eviction on these two grounds.
12. On the side of the landlords, 2 witnesses were examined and 16 documents Exs. A1 to A16 were marked and on the side of the tenants, the tenant in each case was examined as R.W.1 and the tenants also marked documents on their side.
13. Mr.P.Mani, learned counsel appearing for the petitioners-tenants submitted that denial of title by the tenants is bona fide and therefore, the eviction on the ground of denial of title is liable to be set aside. The learned counsel submitted that the tenants had filed civil suits in O.S.Nos.570 and 577 of 2009 on the file of District Munsif Court, Katpadi for permanent injunction restraining the landlords for evicting them except under due process of law. The learned counsel further submitted that by filing the civil suits it is clear that the petitioners are in possession of only vacant site and therefore, the courts below should not have ordered eviction on the ground of denial of title. Further, the learned counsel relied upon the lease agreements executed by the vendor of the respondents-landlords dated 10.2.1978 marked as Ex.R1. The learned counsel also submitted that in Ex.R1, the vendor of the respondents had leased out only the vacant site and permitted the tenants to put up construction in the vacant site leased out to them. The learned counsel further submitted that the tenants have not committed any default in paying the monthly rent, therefore the order of eviction on the ground of denial of title and willful default are erroneous. In support of his contention, the learned counsel relied upon the following judgments:-
(i) AIR 2002 SC 2171 [A.V.G.P.Chettiar and Sons and others v. T.Palanisamy Gounder] wherein the Hon'ble Supreme Court held that to operate against the tenant as providing a ground for eviction under section 10 of the Act, a mere denial of the title of the landlord is not enough, such denial has to be not bona fide. Not bona fidewould mean absence of good faith or non-genuineness of the tenant's plea.
(ii) CDJ 1994 MHC 541 [E.Venkata Naicker Trust v. Muthusamy Chettiar] wherein this court held that there is a bona fide dispute with regard to the title to the building situated in the premises described in the petition. The dispute with regard to the title should be decided only by a Civil Court.
(iii) 1997(3) LW 617 [Ganesan R. v. Y.Rajanayakam and 4 others] wherein this court held that when the voluminous record filed by the tenant would clearly show that not merely the payment of tax, but the assessment of the property tax itself stand in the name of the tenant and the payment of electricity charges etc., would prove positively the fact that the dispute regarding the superstructure is bona fide.
14. The petitioners-tenants also filed Miscellaneous Petitions viz., C.M.P.Nos. 531 to 535 of 2016 under Order 41, Rule 27 of CPC seeking to produce additional documents.
15. The learned counsel appearing for the petitioners submitted that the petitions filed under Order 41, Rule 27 of CPC are maintainable in the Civil Revision Petitions filed under section 25 of Tamil Nadu Buildings (Lease and Rent Control). In the judgment reported in 1991 (1) MLJ 412 [ S.K.Babu Syed and another v. A. Zubaida Bee] this court has taken a view that a petition field under Order 41, Rule 27 of CPC is maintainable in a revision filed under section 25 of Tamil Nadu Buildings (Lease and Rent Control) Act 1961.
16. Countering the submissions made by the learned counsel appearing for the petitioner, Mr.T.M.Hariharan, learned counsel appearing for the respondents submitted that the contention raised by the petitioner cannot be accepted for the reason that the suit in O.S.No.570 of 2009 filed by one of the tenant, viz., Chellappan, who is the petitioner in Civil Revision Petition (NPD) No.3666 of 2013, was dismissed by the Principal District Munsif Court, Katpadi, on the ground that the superstructure was not put up by him. The dismissal of the said suit with the finding that the superstructure was not put up by the tenant was not challenged by him, therefore, the said finding has become final. The other tenants, who are the petitioners in Civil Revision Petition (NPD) Nos.3667 to 3670 of 2013, have also jointly filed a suit in O.S.No.577 of 2009 on the file of Principal District Munsif Court, Katpadi, which was dismissed for default by the Trial Court on 09.12.2010. The other petitioners also have not taken any steps to restore the suit. The learned counsel submitted that in these circumstances, the denial of title by the tenants was not bona fide.
17. The learned counsel appearing for the respondents further submitted that the Miscellaneous Petitions viz., C.M.P.Nos. 531 to 535 of 2016, filed under Order 41, Rule 27 of CPC are not maintainable for the reason that 5 Judges Bench of the Hon'ble Supreme Court in the judgment reported in 2014(3) MWN (C) 334 [Hindustan Petroleum Corporation Ltd., v. Disbahar Singh] held that to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision of the order, the High Court shall not exercise its power as an appellate power to re-appreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a Court of First appeal. Further, the Apex Court held that in the grab of revisional jurisdiction under the Rent Control Act, the High Court is not conferred a status of second second court of First Appeal and the High Court should not enlarge the scope of revisional jurisdiction to that extent. Further, In the judgment reported in 2012(8) SCC 148 [ Union of India v. Ibrahim Uddin ad another] the Hon'ble Supreme Court held as follows:-
38. Under Order 41 Rule 27 CPC, he appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle th appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence.
18. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, it could be seen that the main dispute is that denial of title by the tenants are bona fide or not. In the case on hand, the tenants contended that the property tax assessment was made in their name and that they are making payment of the property tax to the authority. The tenants also contended that the vendor of the landlords leased out the vacant site and permitted them to put up construction and pursuant to the same, they put up construction in the vacant site. But on a perusal of the judgment passed in O.S.No.570 of 2009 on the file of Principal District Munsif Court, Katpadi, it is clear that the Trial Court has given a specific finding that the superstructure does not belong to the tenant viz., the petitioner in Civil Revision Petition (NPD) No.3666 of 2013. So far as that finding is concerned, it has become final and the same was also not challenged by the tenants.
19. Similarly, the other tenants, who are the petitioners in the other Civil Revision Petitions, also filed a suit in O.S.No.577 of 2009 for permanent injunction which was also dismissed for default on 09.12.2010. Both the suits were filed by the tenants for permanent injunction restraining the landlords for evicting them except under due process of law. When there is a clear finding given by the Trial Court that the superstructure was not put up by the tenant, the said finding is binding on the parties. If really the tenants are aggrieved over the dismissal of the suit in O.S.Nos.570 and 577 of 2009, they should have filed an appeal. Since the findings in O.S.Nos.570 and 577 of 2009 have become final, this court can come to a conclusion that the superstructure does not belong to the tenants. Having failed in their attempt to get a decree as against the landlords and having suffered an adverse finding as against them, the denial of title by the tenants can be construed only as not bona fide. Therefore, the eviction on the ground of denial of title by the courts below are just and proper.
20. Though there is no dispute with regard to the ratios laid down in the judgments relied upon by the learned counsel for the petitioners, since the facts and circumstances of the present case differs, the same are not applicable to the present case.
21. With regard to the eviction on the ground of willful default is concerned, the tenants have stated in their counter that they are willing to deposit the rent into the court from May 2004. The reason for not paying the monthly rent was not explained by the tenants by any means. It is not the case of the tenants that they are paying the monthly rent without any default. The tenants are in possession of the property even without paying single pie. In the absence of any evidence to show that the tenants have paid the monthly rent without any default, the eviction on the ground of willful default by the courts below are just and proper.
22. So far as the maintainability of the application filed under Order 41, Rule 27 of CPC are concerned, 5 Judges Bench of the Hon'ble Supreme Court in the judgment reported in 2014(3) MWN (C) 334 [cited supra] held that Rent Control proceedings cannot be equated with the power of reconsideration of all questions of fact as a Court of First appeal. Further, the Hon'ble Supreme Court held that a revision under section 25 of Tamil Nadu Buildings (Lease and Rent Control) Act, the High Court is not conferred a status of second court of First Appeal and the High Court should not enlarge the scope of revisional jurisdiction to that extent. When the Apex Court has clearly held that a revision under section 25 of Tamil Nadu Buildings (Lease and Rent Control) Act, cannot be construed as First appeal, the petition filed under Order 41, Rule 27 of CPC in a revision filed under section 25 of the Act is not maintainable. Order 41, Rule 27 of CPC applies only to the appeals and not to the revisions.
23. In view of the judgment reported in 2014(3) MWN (C) 334 [cited supra], the judgments relied upon by the learned counsel for the petitioners are not applicable. The ratios laid down by the Hon'ble Supreme Court in the judgment reported in 2014(3) MWN (C) 334 [cited supra] squarely applies to the facts and circumstances of the present case. In these circumstances, the Miscellaneous petitions viz., C.M.P.Nos. 531 to 535 of 2016 filed under Order 41, Rule 27 of CPC are liable to be rejected.
24. In these circumstances, I do not find any error or irregularity in the orders passed by the courts below. The Civil Revision Petitions are devoid of merits and are liable to be dismissed. Accordingly, the Civil Revision Petitions are dismissed. No costs. C.M.P.Nos. 531 to 535 of 2016 are dismissed and M.P.Nos. 1 to 1 of 2013 are is closed.
22.01.2016
Index : Yes/No
Note : Since this court had dismissed the C.M.P.
Nos. 531 to 535 of 2016, I direct the Registry
to return the original documents, retaining copy
of the documents to the counsel for the petitioner
Rj
To
1. The Sub Court,
Rent Control Appellate Authority(
Vellore
2. The Principal District Munsif
Rent Controller
Katpadi.
M. DURAISWAMY,J.,
Rj
Order in
C.R.P.(NPD)Nos.3666 to 3670 of 2013 &
M.P.Nos.1 to 1 of 2013 &
C.M.P.Nos. 531 to 535 of 2016
22.01.2016