Madras High Court
K.Neelamegam vs S.Balakrishnan ... on 30 July, 2021
C.R.P.PD.(MD)No.491 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 28.06.2021
Pronounced on : 30.07.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
C.R.P.(PD)MD).No.491 of 2021
and
C.M.P.(MD)No.2623 of 2021
K.Neelamegam : Petitioner/Respondent/Tenant
Vs.
S.Balakrishnan :Respondent/Petitioner/Landlord
PRAYER : Civil Revision Petition has been filed under Section 227 of
Constitution of India, to set aside the fair and decreetal order passed in I.A.No.
45 of 2018 in R.C.O.P.No.2 of 2018 on the file of the Rent Control Court,
Madurai Taluk, Madurai (District Munsif Court, Madurai Taluk, Madurai)
dated 29.03.2019.
For Petitioner : Mr.F.X.Eugene,
for Mr.P.Santhana Krishnan.
For Respondent : Mr.D.Nallathambi
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C.R.P.PD.(MD)No.491 of 2021
ORDER
It is apt to begin the order with the words of the Honourable Supreme Court, while describing the role of an Advocate, in R.Muthukrishnan Vs. The Registrar General of the High Court of Judicature at Madras.
"40. ... A lawyer is supposed to be governed by professional ethics, professional etiquette and professional ethos which are a habitual mode of conduct. He has to perform himself with elegance, dignity, and decency. He has to bear himself at all times and observe himself in a manner befitting as an officer of the Court. He is a privileged member of the community and a gentleman. He has to mainsail with honesty and sail with the oar of hard work, then his boat is bound to reach to the bank. He has to be honest, courageous, eloquent, industrious, witty and judgmental".
2. The Civil Revision Petition is directed against the order passed in I.A.No.45 of 2108 in R.C.O.P.No.2 of 2018, dated 29.03.2019, on the file of the Rent Controller/District Munsif, Madurai Taluk, Madurai, filed under Order 11(2) of Tamil Nadu Buildings (Lease and Rent Control) Act.
3. For the sake of convenience and brevity, the parties hereinafter will be referred as per their ranking / status before the trial Court. 2/18 https://www.mhc.tn.gov.in/judis/ C.R.P.PD.(MD)No.491 of 2021
4.The revision petitioner is the respondent/tenant. The respondent/landlord has filed the petition in R.C.O.P.No.2 of 2018 against the revision petitioner under Section 10(2) (i) and 10(2) (ii) (a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, (hereinafter referred as 'the Act') for eviction.
5.Admittedly, the petition mentioned building is owned by the petitioner and he is a retired Principal of Mepco Engineering College, Sivakasi and that the respondent is a practicing Advocate of this Court. It is admitted by both the parties that both of them had entered into an oral tenancy agreement on 01.04.2007. But according to the petitioner, the ground floor of the petition mentioned building was only leased out to the respondent and that the monthly rent was fixed at Rs.3,000/- . It is the case of the respondent that monthly rent was fixed at Rs.2,400/- and that he had paid an advance amount of Rs.50,000/-.
6.The petitioner's main contention is that the respondent has not paid the rent since the commencement of tenancy from 01.04.2007, that the respondent has also occupied the first floor of the petition mentioned building without the consent of the petitioner illegally, that even after the expiry of tenancy period 3/18 https://www.mhc.tn.gov.in/judis/ C.R.P.PD.(MD)No.491 of 2021 and despite the repeated demands of the petitioner, the respondent has not paid the arrears of rent, that the respondent has forged the signature of the petitioner and applied to the TNEB and got electricity connection for the petition mentioned building without the consent and knowledge of the petitioner, that the petitioner has given a complaint to the District Crime Branch Police and on that basis FIR came to registered in Crime No.97 of 2013 against the respondent for the offences punishable under Sections 120(B), 406, 419, 468, 471, 420 and 506(1) IPC and that since the respondent had defaulted in payment of rent willfully and occupied the first floor of the petition mentioned building unauthorisedly, the petitioner was constrained to file the above eviction petition. The respondent has filed his counter statement raising so many defences and was contesting the eviction petition.
7.Pending eviction petition, the petitioner has filed the above petition under Section 11(2) of the Act, seeking direction to the respondent to pay the admitted arrears of rent for the period between 01.04.2007 and 30.11.2018. The respondent has filed the counter statement reiterating the contentions raised in the main counter statement and are listed below for better understanding:
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(i) The petition mentioned premises has not been notified by the Government under Section 1(2)(a) and (b) of the Act on the date of the inception of tenancy or on the date of cause of action arose for filing the eviction petition and as such the said Act is not applicable to the petition mentioned premises.
(ii) The petitioner or his brother-in-law Arun used to come to receive the monthly rent and after the death of the said Arun in the year 2012 and after retirement of the petitioner, he used to come and receive the rent regularly, but the petitioner is not in the habit of issuing the receipts.
(iii)As per the instructions of the petitioner, the respondent has spent Rs.98,000/- for the maintenance work and white washing of the petition mentioned building and when the respondent requested for returning of the said amount, the petitioner asked him to include the said amount as advance.
(iv) The petition mentioned premises had no separate electricity connection from TNEB and the petitioner got connection from Valarnagar management illegally. The petitioner informed that he had no money to get the electricity connection, directed the respondent to take the premises on Othi and accordingly, the respondent had paid Rs.7,00,000/- towards Othi on 27.01.2013. Though the petitioner had agreed to execute the Othi deed, he has been postponing the same on some pretext or the other. 5/18
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(v) The petitioner along with 6 persons came to the petition mentioned premises at about 07.00 am on 18.08.2013 and asked the respondent to vacate the premises immediately and when the respondent requested for refund of the Othi amount and three months time to vacate the premises, the petitioner and his men threatened him with dire consequences.
(vi) Since complaint to the concerned police was not taken, he sent a complaint to the Superintendent of Police, Madurai. Since the petitioner had attempted to evict the respondent unlawfully, the respondent filed a suit in O.S.No.178 of 2013 on 29.08.2013 and that since the petition has been filed for eviction and reported that he has already taken lawful steps for eviction, the suit was ordered to be dismissed as infructuous.
(vii) The petitioner is trying to cheat the amounts received from him to the tune of Rs.8,48,000/-. The respondent had paid the monthly rent till the payment of Othi amount of Rs.7,00,000/-.
(viii) The respondent is not a tenant and he is in possession of the petition mentioned property as Othidhar from January 2013.
8.Regarding the defence of the respondent with respect to the applicability of the Act for the petition mentioned premises, the petitioner has produced G.O.No.220, dated 28.09.2010 and whereunder, Utthangudi 6/18 https://www.mhc.tn.gov.in/judis/ C.R.P.PD.(MD)No.491 of 2021 Panchayat along with 16 other Panchayats were ordered to be annexed with the Corporation of Madurai.
9.The main contention of the respondent is that the Government has not issued any notification under Section 1(2)(a) and (b) of the Act on the date of commencement of tenancy or on the date of cause of action arose for filing the eviction petition. To counter his arguments, the learned counsel for the petitioner has relied on the decision of this Court in Mandhirikodi Vs. E.Balaraman and another reported in 2020(4) CTC 659 and it is necessary to refer the relevant passage.
“9. Mr.P.B.Balaji, learned counsel appearing as Amicus Curaie would concede the above position of law. A reading of the provisions particularly, Sub- section 2 Section 1 of the Act itself clearly discloses that once an area is annexed to the Corporation or a Municipality or once an area is declared to be a municipality or a Corporation, the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 would automatically apply to such areas and the tenants of buildings situate within those areas would be entitled to protection of the enactment. No separate notification is necessary extending the provisions of the Act to a newly formed Municipality or Corporation. This is clear from the very language of the section which in fact enables the government to withdraw the applicability of the 7/18 https://www.mhc.tn.gov.in/judis/ C.R.P.PD.(MD)No.491 of 2021 enactment from certain areas which form part of a Corporation or a Municipality. The language of Clause (c) of Sub-Section 2 would also show that the applicability of the Act is almost instantaneous on the area being declared as a Municipality or a Corporation. The very fact that Clause (c) of Sub Section 2 enables the state government to issue Notifications to apply all or any of the provisions of the Act to any other area would mean that no Notification extending under provisions of the Act is required, in so far as the areas declared as part of Municipality or Corporation. I therefore, conclude that the Courts below were not right in holding that the applicability of the provisions of the Tamilnadu Buildings (Lease and Rent Control) Act would depend on a separate Notification to be issued by the Government extending the provisions of the Act to any area in question. The above conclusion does not however fully answer the question of law raised.”
10.Considering the above, it is very much clear that once an area is annexed with an existing Corporation, the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act would automatically stand extended to that area and that no separate Notification is necessary extending the provisions of the said Act. Hence, the preliminary objection of the respondent has to necessarily fail.
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11. As already pointed out, the respondent has taken a stand that he had paid the advance amount of Rs.50,000/-, that he had spent Rs.98,000/- for the maintenance work and white washing of the petition mentioned building and that he had paid Rs.7,00,000/- towards Othi. It is pertinent to mention that the respondent has not produced any iota of evidence to prove the alleged payments.
12.The main defence of the respondent is that the petitioner's brother-in- law Arun was receiving the monthly rents regularly and that after his death in the year 2012 and after retirement of the petitioner, the petitioner has been receiving the monthly rent regularly. But according to the respondent, the petitioner is not in the habit of issuing the receipts, but he had entered the receipt of rents in a hand note book maintained by him Legally, such a defence is not available to the respondent.
13.The learned counsel for the petitioner has relied on the following decisions of this Court;
(i) 1995 (1) MLJ 33:
N.Damodaran Naicker and another Vs. Janaki Ammal.
"Where wilful default in payment of rent is alleged by the landlord and the answer of the tenant is that the landlord never 9/18 https://www.mhc.tn.gov.in/judis/ C.R.P.PD.(MD)No.491 of 2021 issues receipts for the payment of the rent, the Court cannot ignore the implications of Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act and assess the controversy without reference to such implications. In the absence of proof of payment of rents, it will not be in consonance with the provisions of the Act to presume that the tenant must have paid the rents and the landlord must have declined to issue the receipts.
(ii) 2004 (1) CTC 407 :
K.Chinnathambi Rowther Vs. K.Shanmugam.
"Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Section 8 – Receipts for payment of rent – Duty is cast on tenant to receive receipts from landlord – Tenant is protected against non issue of receipts by landlord and such tenant should follow procedure under Section 8."
14.It is settled law that it is the duty of the tenant to seek the landlord and pay the rent. In case, if the landlord refuses to issue receipt, then the respondent has no other option but to follow the procedures contemplated under Section 8 of the said Act. Without adopting the said procedure, the tenant cannot be allowed to say that though he had paid the rent, the landlord has not issued the receipts.
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15.In the case on hand, though the respondent has alleged that he had paid rents, he has not produced any evidence or materials to prove the same. As already pointed out, he has taken a defence that the petitioner is not in the habit of issuing the receipts, but admittedly, it is not the case of the respondent that he had followed the procedure contemplated under Section 8 of the said Act. In the absence of proof of payment of rents, the presumption that the respondent must have paid the rents and the landlord must have declined to issue the receipts does not arise at all.
16.As rightly contended by the learned counsel for the petitioner, the other defence taken by the respondent cannot be gone into, in the present proceedings. The learned Rent Controller, on considering the materials, has rightly held that the respondent is only a tenant and that he has not paid the rent, since the inception of tenancy. The learned Rent Controller has also rightly calculated and determined the arrears of rent at Rs.3,40,800/- upto 28.02.2019 and directed the respondent to deposit the same into the Court within one month and directed him to pay the rent continuously till further orders to be passed in the eviction petition.
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17.It is pertinent to mention that admittedly the respondent has not complied with the order passed by the Rent Controller and instead he has filed the present revision challenging the same.
18.It is not in dispute that subsequent to the orders passed in I.A.No.45 of 2018, the petitioner has filed a petition in I.A.No.13 of 2019, seeking order of eviction, as the respondent has failed to comply with the order passsed in I.A.No.45 of 2018 and after enquiry, the learned Rent Controller has passed an order on 09.03.2021, directing the respondent to vacate the premises and handover the possession of the same to the petitioner before 09.04.2021.
19.Now turning to the maintainability of the revision, it is necessary to refer Section 23 of Tamil Nadu Buildings (Lease and Rent Control) Act.
"23(1)(b) :Any person aggrieved by an order passed by the Controller may, within 15 days from the date of such order, prefer an appeal in writing to the appellate authority having jurisdiction. "
20.Considering the above, it is very much clear that the statutory appeal remedy available to challenge the order passed under the provisions of Tamil Nadu Buildings (Lease and Rent Controller) Act is to prefer an appeal under 12/18 https://www.mhc.tn.gov.in/judis/ C.R.P.PD.(MD)No.491 of 2021 Section 23 of the said Act. In the case on hand, as already pointed out, the learned Rent Controller has passed the order under Section 11(2) of the said Act. As rightly contended by the learned counsel for the respondent, the petitioner ought to have filed an appeal under Section 23 of the said Act.
21.This Court in A.Ramanathan Vs. M/s.Tamarai Mills Ltd., rendered by Hon'ble.Mr.Justice.M.Duraiswamy [CRP(NPD)(MD)No.2874 of 2016, dated 20.10.2016], after referring various decisions, has summed up the legal position with respect to the power of the High Court under Article 227 of Constitution of India;
“8.When there has been a patent perversity in the orders of the Tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted, High Court can interfere in exercise of its power of superintendence under Article227 of the Constitution of India.
9. It is a settled position that the High Court cannot, at the drop of a hat, in exercise of its power of superintendence, under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it nor can it, in exercise of this power, act as a court of appeal over the orders of the courts or tribunals subordinate to it. In cases where an alternative statutory mode of redressal has been provided,that would also 13/18 https://www.mhc.tn.gov.in/judis/ C.R.P.PD.(MD)No.491 of 2021 operate as a restrain on the exercise of this power by the High Court. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words, the jurisdiction has to be very sparingly exercised.
10. No doubt, High Court's power of superintendence under Article 227 of the Constitution cannot be curtailed by any statute. The power has been declared as a part of the basic structure of the Constitution and frequent exercise of this power will be counter productive and will divest this extraordinary power of its strength and vitality.”
22.Considering the above, as rightly contended by the learned counsel for the respondent, the petitioner ought to have preferred a rent control appeal under Section 23 of the said Act before the Rent Control Authority/Subordinate Judge. But without availing the statutory appeal remedy and without showing as to why and how he invoked the jurisdiction of this Court under Article 227 of the Constitution of India, the very filing of the revision cannot legally be entertained. But the learned counsel for the respondent would submit that the petitioner has purposely filed the present revision invoking the Article 227 of Constitution of India fully knowing that no such revision will lie and only with an evil intention to prefer the Rent Control Appeal, after dismissal of the revision and thereby to drag on the matter endlessly. 14/18 https://www.mhc.tn.gov.in/judis/ C.R.P.PD.(MD)No.491 of 2021
23.On considering the entire facts and circumstances of the case, this Court finds some force in the above line of arguments advanced by the learned counsel for the respondent. As already pointed out, the respondent has challenged the order passed under Section 11(2) of the said Act, dated 29.03.2019, directing him to deposit the rent arrears within a period of one month. Admittedly the learned Rent Controller has passed the consequent orders in I.A.No.13 of 2019, dated 09.03.2021, directing the petitioner to vacate the suit property and hand over the vacant possession of the same before 09.03.2021. Admittedly, the petitioner has not challenged the order passed on 09.03.2021.
24. As rightly pointed out by the learned counsel for the respondent, the order passed in I.A.No.13 of 2019 is only consequential to the order passed in I.A.No.45 of 2018. Since this Court has held that the Rent Controller has rightly passed the impugned order, the question of challenging the consequential order again does not arise. Hence, this Court is duty bound to clarify that there is no scope for filing any appeal or again filing the revision challenging the consequential order passed in I.A.No.13 of 2019. 15/18 https://www.mhc.tn.gov.in/judis/ C.R.P.PD.(MD)No.491 of 2021
25.It is pertinent to mention that an Advocate is an officer of the Court and he owes a duty towards the Court and then only to his client. This Court in Tr.CMP.No.942 of 2019, dated 19.02.2020, while dealing with the transfer of rent control appeal filed by the advocate/tenant has rightly observed, "An Advocate is a representative, but not a delegate and he gives to his client the benefit of his learning and his talents. Lawyers are globally recognised as Officers of the Court and agents of the administration of justice and they are imposed with the social duty to promote rule of law in the society and fight for protecting the fundamental rights and freedoms of the citizens as guaranteed in the Constitution. In this case, the petitioner, being an Advocate, instead of playing the role of a promoter of rule of law, has been teaching a lesson to the society as to how to break law and the profession is being squeezed by the hands of such person. The Legal Ethics and the Profession of Law requires that an Advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the Court, opposing counsel or parties which the Advocate himself ought not to do and in that event, he shall refuse to represent the client, who persists in such improper conduct. When the petitioner / Advocate himself indulges in such improper conduct, he is making mockery of not only the profession, but also the Court."
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26. In the present case also, the revision petitioner has been enjoying not only the ground floor, which was leased out to him, but also the first floor of the building for the past more than 14 years without paying any rent and thereby preventing the owner of the building from getting the property even after his retirement.
27.Viewing from any angle, the Civil Revision Petition is not sustainable both in law and in facts and hence, the same is liable to be dismissed.
28.In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
30.07.2021 das To
1.The Rent Control Court, Madurai Taluk, Madurai District Munsif Court, Madurai Taluk, Madurai.
2.The Section Officer, (VR Section) Madurai Bench of Madras High Court, Madurai.
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das C.R.P.(MD).No.491 of 2021 and C.M.P.(MD)No.2623 of 2021 30.07.2021 18/18 https://www.mhc.tn.gov.in/judis/