Madras High Court
Dr.P.Venkatarama Reddy vs #R.Aswathnarayanasetty on 26 April, 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 26/04/2004
Coram
The Hon'ble Mr. Justice S.SARDAR ZACKRIA HUSSAIN
Civil Revision Petition (N.P.D.) No. 1114 of 2001
Dr.P.Venkatarama Reddy ... Petitioner
-Vs-
#R.AswathnarayanaSetty ... Respondent
Civil Revision Petition filed under Section 25 of the Tamil Nadu
Buildings (Lease and Rent Control) Act, 1960, as amended by Act XXIII of 1973
and 1 of 1980 against the judgment and decree of the Court of Subordinate
Judge, Hosur, (Rent Control Appellate Authority) dated 13 .11.2000 and made in
R.C.A. No. 8 of 1998 confirming the order and decretal order of the Court of
District Munsif (Rent Controller), Hosur, dated 31.10.1995 and made in
R.C.O.P.No. 1 of 1995.
!For petitioner : Mr.C.R.Muralidharan
^For respondent 1 : Mr.V.Raghavachari
:O R D E R
The unsuccessful tenant before the Rent Control Appellate Authority is the revision petitioner in this Civil Revision Petition. This Civil Revision Petition is directed against the judgment passed by the Rent Control Appellate Authority confirming the order of eviction of the revision petitioner / tenant passed by the Rent Controller in respect of the non-residential premises on the grounds of wilful default in payment of rent and for own use and occupation by the respondent / landlord.
2. The landlord as petitioner filed the Rent Control Original Petition for eviction of the respondent / tenant on the ground that the tenant has committed wilful default in payment of rent from March 1994 at the rate of Rs.450/- p.m. It is stated that the petition shop premises was leased out to the respondent / tenant on a monthly rent of Rs.400/- per month from August 1984, that the rent was enhanced in April 1988 from Rs. 400/- to Rs.450/- per month, that the respondent / tenant was irregular in paying the monthly rent, that the petitioner / landlord issued a registered legal notice dated 22.9.1994 to the respondent / tenant calling upon him to pay the arrears of rent and to vacate possession of the petition shop premises and also terminating the tenancy by 31.10.1994 and that a sum of Rs.3600/- was sent to the petitioner / landlord, along with reply notice dated 09.11.1994, by way of Demand Draft towards the arrears of rent. The respondent / tenant filed R.C.O.P. No. 8 of 1994 on 05.12.1994 under Section 8 (5) of the Rent Control Act seeking permission of the Court to deposit the arrears of monthly rent as he has committed default by not paying the rent from March 1994 to January 1995. It is stated that the requirement of the petition premises by the petitioner is bonafide for his own use and occupation to carry on business. It is further stated that he hails from Vysya family and he is carrying on business in stationery, decorative items, school items, etc. in a small rental shop at SKPD Choultry Complex, Hosur. The petitioner / landlord is not owning any other premises except the petition premises and the other shop portion on the south, which has been leased to one Muniraja for running his cloth business. There is door in the east to west southern wall of the petition premises connecting the petition shop premises and the room situated to the south of it. It is also stated that the petitioner / landlord had undergone operation in his lung and a part of his lung has been removed. It is stated that since the petitioner / landlord is residing in the first floor and the petition shop is in the ground floor, the petitioner / landlord can conveniently run the business in the petition premises if he is able to secure the same.
3. The Rent Control Original Petition was resisted by the tenant as respondent by filing counter. It is admitted by the respondent / tenant that the rent was enhanced to Rs.450/- pm, that he is running a clinic in the petition premises and from 1984 to December 1987, the petitioner / landlord was receiving the rent from the respondent / tenant and for the payments, he was acknowledging in notebook maintained by the respondent / tenant. The petitioner / landlord used to receive the rent once in two months or three months or four months. The petitioner / landlord is doing his business in a shop in SKPD Choultry Complex, Hosur, in plastic items, etc. even before the respondent, the revision petitioner herein, became a tenant of the petition premises. Since the SKPD Choultry Complex, Hosur, is located in a very busy locality in the heart of the town very near the bazaar street and having number of business houses, the petitioner is having the shop in that place for the better scope in his business. It is admitted that there is a connecting door between the petition premises and the room to the south of it. It is also stated that adjoining the petition shop, there is another shop of the petitioner / landlord, which has been rented to one Muniraja and the petitioner / landlord can very well occupy that shop, which is of equal dimensions almost like the petition premises and the same has always been kept under lock and key, without carrying on any business. The requirement of the petition premises by the petitioner / landlord is without bonafide. It is further stated that the respondent / tenant has not committed default much less wilful default in payment of rent and he has been paying the rent regularly. It is also set out in the counter that only a common Electric Meter is there between the petition premises and the shop occupied by Muniraja and that due to the threat of disconnection, the entire electric charges for both the petition premises and the adjacent shop occupied by Muniraja, have been paid by the respondent / tenant. Therefore, the current consumption charge paid in respect of the shop occupied Muniraja have to be deducted from the rent payable by the respondent / tenant. It is further stated that the Money Orders sent towards rent from May 1994 to October 19 94 were refused by the petitioner / landlord. In fact, the respondent / tenant sent a Demand Draft for a sum of Rs.3600/- towards rent from March 1994 to October 1994 and the same was refused to be received by the petitioner / landlord. Therefore, the respondent/ tenant filed H.R.C.O.P. No. 8 of 1994 under Section 8(5) of the Rent Control Act and has been depositing the rent every month in the Rent Control Court. On these grounds, the respondent / tenant sought for dismissal of the petition.
4. Before the Rent Controller, the petitioner / landlord examined himself as P.W.1 besides examining one Raja Santhaseelan and Muniraja, who is the tenant under him in respect of the adjacent shop, as P.W.2 and P.W.3 while the respondent / tenant examined himself as R.W.1. Exs. A.1 to A.4 were marked as documents on the side of the petitioner / landlord while Exs. B.1 to B.11 were marked on the side of the respondent / tenant. The learned Rent Controller, after considering the evidence adduced on either side and the Exhibits marked by the parties, recorded finding that the respondent / tenant has committed wilful default in payment rent and that the requirement sought for by the petitioner / landlord on the ground of own use and occupation is bonafide and ordered eviction of the respondent / tenant. Such order of eviction has been confirmed by the Rent Control Appellate Authority in R.C.A. No. 8 of 1998 filed by the respondent / tenant. The respondent / tenant as revision petitioner has preferred this revision petition challenging the said order of eviction.
5. Heard the learned counsel appearing for the petitioner as well as respondent.
6. The petition premises is situate at Hosur Town, M.G. Road (Main Road), bearing Door No. 47. Admittedly, the revision petitioner, who is a Doctor, is the tenant in respect of the said premises, where he is running his clinic. The adjacent shop is occupied by another tenant, P.W.3, Muniraja, and there is a room on the south of both the said shops, which is used by the respondent / landlord as godown. The respondent / landlord, P.W.1, is residing in the first floor in the same building and the petition premises occupied by the revision petitioner as well the shop occupied by Muni raja, P.W.3, are in the ground floor. According to the respondent / landlord, he had undergone an operation in his lung because of which a part of his lung was removed and since he belonged to Vysya community, he is running business in a rented shop in SKPD Choultry Complex. As he had undergone an operation in the lung, it would be for the convenient enjoyment of the respondent / landlord if the petition premises is vacated and as such, the requirement of the petition premises by the respondent / landlord is bonafide. It is submitted that the respondent / landlord is also carrying on business in stationery, decorative items and school items, etc. in SKPD Choultry Complex as a tenant and the owner of the said premises has issued a lawyer's notice dated 06.11.1 992 seeking the respondent / landlord to vacate the said premises. Admittedly, the room on the south of the petition premises is connected by a doorway. It is also admitted by R.W.1, revision petitioner / tenant, that the respondent / landlord is carrying on business in the rented premises at SKPD Choultry Complex. Though it is stated by the revision petitioner / tenant that P.W.3, Muniraja, is not running cloth business in the shop rented out to him and the said shop is kept under lock and key, he would state that the current consumption charges in respect of the said shop are also paid by the revision petitioner / tenant as there is only one common Electric Meter. If really P.W.3 is keeping the shop rented out to him under lock and key, it is not known as to how the revision petitioner / tenant has paid the current consumption charges for that shop also. Therefore, the respondent / landlord has made out a case that the requirement of the petition premises sought for by him for own use and occupation for the purpose of carrying on business, which he is actually carrying on in the rented premises at SKPD Choultry Complex, is very much bonafide. The requirement of the petition premises by the respondent / landlord on the ground of own use and occupation is very much bonafide in view of the fact that he is residing in the first floor of the same building and the petition premises is in the ground floor and in view of the fact that the he had undergone operation in his lung resulting in removal of part of lung.
7. In lawyer's notice, Ex.A.2 dated 22.9.1994, with regard to the common Electric Meter, it is set out that as there was some dispute between the revision petitioner and P.W.3, Muniraja, tenant in respect of the adjacent shop, in sharing the electricity bill amount, the respondent / landlord has installed a sub-meter for the shop occupied by P.W.3. It is also stated in the said notice that in view of the difference of opinion between the revision petitioner and P.W.3, Muniraja, the revision petitioner sent only Rs.166/- instead of Rs.450/- towards rent for the month of March 1994 and, therefore, the said amount was refused. It is further stated in the notice that from March 1 994 to August 1994, the revision petitioner committed default wilfully in payment of rent totalling to Rs.2700/-. In the reply notice Ex.A.3 dated 09.11.1994, it is stated that the landlord has also rented out the room on the south of the petition premises to one Krishnamurthy and that the said room is not being used by the respondent / landlord as godown for the purpose of keeping his business articles. In the notice, it is also admitted that the respondent / landlord is residing in the upstair portion in the same building and since he is a vysya, he is doing business in plastic materials in a rented shop in SKPD Complex even before the revision petitioner became tenant in respect of the petition shop. It is further stated in the said notice that P.W.3, tenant of the adjacent shop, is not sharing the current consumption charge of Rs.1000/-. Since the rent was sent by Money Order every month, he is spending about Rs.25/- towards the Money Order commission every month and since the other tenant Muniraja is not sharing the current consumption charges, the revision petitioner / tenant sent only Rs.166/- towards rent for the month of March 1994 and for the months of May 1994 to October 1994. The rent for the said months have been sent by the revision petitioner / tenant through Postal Money Order and the same were refused by the respondent / landlord. The sum of Rs.3600/- was paid towards rent from March 1994 to October 1994.
8. It is seen from Ex.B.6 series, Money Order receipts, that a sum of Rs.450/- was sent towards rent for the month of April 1994. The rent for the month of May 1994 was sent on 01.6.1994 and it was refused. The rent for the month June 1994 was sent on 02.7.1994 and that was also refused. The rent for the month of July 1994 was sent on 01.8.1994 and the same was also refused. The rent sent on 01.9.19 94 for the month of August 1994, was also refused. The rent for the month of September was sent on 01.10.1994 and the same was refused. As per Ex.B.7, the revision petitioner / tenant sent Rs.166/- on 05.4.1994, which appears to be the rent for the month of March 1994, after deducting the current consumption charges, which he paid in respect of the adjacent shop and occupied by P.W.3, Muniraja, without furnishing details and that Money Order was refused and the Money Orders sent thereafter from April 1994 to September 1994 under Ex. B.6 series were also refused. .
9. The revision petitioner / tenant also filed the receipts towards payment of current consumption charges under Ex.B.9 Series. It is not known as to whether the said receipts relate to the petition premises and the receipts have been issued in the name of one Rajagopal. It is seen from the receipt towards current consumption charges for the month of July 1994 that Rs.648/- was paid and Rs. 407/- was paid towards September 1994 and Rs. 70/- was paid towards November 199 4. Therefore, it is not known under what basis the revision petitioner / tenant sent only Rs.166/- towards rent for the month of March 1994, which was rightly refused to be received by the respondent / landlord since it was not proper rent of Rs.450/- payable every month.
10. Though it is stated by R.W.1 in his evidence that he had deducted a sum of Rs. 284/- towards current consumption charges in respect of the shop occupied by Muniraja for the month of March 1994, he would state that even thereafter for the subsequent months, Muniraja did not pay the current consumption charges and that he alone paid the current consumption charges. He would admit that he did not send any notice either to Muniraja or to the respondent / landlord with regard to the current consumption charges payable by Muniraja in respect of the shop occupied by him. Though it is the case of the revision petitioner / tenant that the rental amount for the months of May 1994 to October 1994 sent by Demand Draft was refused by the respondent / landlord and so he filed H.R.C.O.P. No. 8 of 1994 under Section 8(5) of the Rent Control Act, he only deposited in Court a sum of Rs.450/- on 23.11.1995, 22.12.1995, 23.01.1996, 12.02.1996, 15.3.1996 and on 16.4.1996 , Rs. 900/- on 18.6.1996, Rs.450/- on 19.8.1996, 26.9.1996, 17.10.1996, 22.11.1996 and 12.12.1996, and Rs.450/- on 27.01.1997, 2 7.02.1997, 17.3.1997, 15.4.1997, 14.5.1997, 24.6.1997 and 15.7.1997 towards rent from the month of December 1996 to June 1997 respectively and there is no evidence as to when he deposited rent relating to the default period, i.e., from March 1994 to January 1995. Therefore, it is clear that the revision petitioner / tenant has not paid the correct rent for the month of March 1994 with deliberate intention and has sent only Rs.166/- stating that the said amount was arrived at after deducting the current consumption charges payable by the other tenant of the adjacent shop, viz., P.W.3, Muniraja, and even thereafter, though the rent sent by Money Order from April 1994 to September 1994 were refused, he did not take steps for deposit of the same in Court. Therefore, the revision petitioner, being the tenant of the petition shop, has committed wilful default in payment of rent from the month of March 1994 to January 1995. Considering the said facts, both the Courts below have held that the revision petitioner as tenant of the petition shop has committed wilful default in payment of rent from March 1994 to January 1995 and that the requirement of the petition premises by the respondent / landlord for carrying on business is bonafide and accordingly, ordered eviction. Such concurrent finding of the Courts below cannot be interfered with in this revision and has to be confirmed.
11. In the result, the Civil Revision Petition is dismissed with costs and the order of eviction passed by the learned Rent Controller, which was confirmed by the learned Rent Control Appellate Authority, is affirmed.
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To
1. The Subordinate Judge
Hosur
2. The Principal District Munsif
Hosur
3. The Section Officer
V.R. Section
High Court, Madras