R. Koothaiyan v. T. Vijayakumar — 1999 DIGILAW 2774 (MAD)

Judgment :- Tenant is the revision petitioner in both the revision petitions. Both the revisions arise from same proceedings initiated by landlord in R.C.O.P. 2057 of 1995 on the file of the Court of Small Causes, Madras. 2. The only ground for eviction was that tenant has defaulted in payment of rent from the month of April to August, 1995 at the rate of Rs. 500/- per month. It is averred in the petition that the building originally belonged to landlords father late P.S. Thangavelan alias P.S.T. Velan and on his death on 24.1.1995, the building fell to the share of landlord on the basis of oral partition between the members of family. Revision Petitioner is in occupation of the building where he is running a business under the name and style “R.K. Shoe Mart” on a monthly rent of Rs. 500/- excluding electricity consumption charges. It is further averred in the eviction petition that petitioner was all along irregular in payment of rent. He has defaulted in payment of rent from November, 1994. Petitioner paid a sum of Rs. 1,000/- on 16.6.1995 for the two months, i.e., for November, and December 1994 that too after various demands. He further promised to pay Rs. 2,500/- on the same day but he did not pay as promised. A receipt evidencing payment of Rs. 1,000/- was issued by the landlord on 16.6.1995, but the receipt for Rs. 2,500/- was withheld by landlord as the amount was not paid by tenant as promised by him. Tenant on 13.7.1995 paid a sum of Rs. 1,500/- towards rent arrears for three months from January to March, 1995 and landlord gave a receipt on the same date. Thereafter from the month of April 1995 till August 1995 no amount was paid by tenant even after repeated demands were made. It is for the above reason landlord filed the eviction petition seeking eviction. 3. In the Counter statement filed by revision petitioner he said that he is the tenant of the building. It is said that originally his father was the occupant of the building agreeing to pay Rs. 30/- per month. Thereafter, his mother became the tenant and after the death of his mother, revision petitioner became the tenant. He also said that on 14.3.1991 he had executed a rental agreement in respect of the commercial shop, and also paid a sum of Rs. 30/- per month. Thereafter, his mother became the tenant and after the death of his mother, revision petitioner became the tenant. He also said that on 14.3.1991 he had executed a rental agreement in respect of the commercial shop, and also paid a sum of Rs. 15,000/- as advance. It is said that he is paying the rent regularly to the father of respondent herein. According to him, late P.S.T. Velan received monthly rent of Rs. 500/-till date exclusive of electricity charges. He also alleged that he has paid the entire rent upto the date of petition. He also pleaded ignorance about the oral partition. Tenant further said that P.S.T. Velan left other legal heirs and they are also claiming rent from him. He further alleged that respondent herein is not the owner nor landlord in respect of the scheduled building. He also alleged that he has not committed any default in payment of rent. 4. Rent Controller took oral and documentary evidence. Exs. A1 to A7 were marked on the side of landlord and no documentary evidence was produced on the side of the petitioner herein. Oral evidence consists of PW1 and DW1. 5. Rent Controller found that the case of tenant that he has paid a sum of Rs. 15,000/- as advance is not true. Even while he was in box, he has not stated anything about the payment of Rs. 15,000/- as advance and therefore the contention that he is not in arrears cannot be believed. It was also found that the contention that he has paid rent from April to August 1995 is not true and only when the application was filed under Section 11(4) of the Act in C.M.P. 143 of 1996, petitioner herein deposited a sum of Rs. 8,000/- (rent for the months April 1995 to July 1996) for 16 months and for the months from August 1996 to July 1997, no amount was paid. Rent Controller held that the case put forward by the tenant is false and he has come to Court with false allegations. It is further found by the Rent Controller that even though tenant has taken a contention that respondent herein is not the landlord, petitioner while in box admitted that after the death of P.S.T. Velan, respondent herein was collecting rent and he was also paying rent to him only. It is further found by the Rent Controller that even though tenant has taken a contention that respondent herein is not the landlord, petitioner while in box admitted that after the death of P.S.T. Velan, respondent herein was collecting rent and he was also paying rent to him only. Rent Controller found that the case pleaded by tenant is false and he is a wilful defaulter and consequently liable to surrender vacant possession. An order of eviction was passed. 6. One more fact which has to be mentioned at this stage is, landlord filed M.P. 143 of 1996 while the application was pending before Rent Controller. The application was filed under Section 11(4) of the Act. A contention was raised in the M.P., that he has not committed default in payment of rent and as between Revision Petitioner and late Velan, there is an agreement dated 14.3.1991 on which date he has paid Rs. 15,000/-as advance. The said contention was taken for the purpose of slating that since more than one month rent is in the hands of landlord, excess amount has to be adjusted towards rent arrears, if any. To substantiate the same, the alleged rental agreement was also filed before Court. Respondent herein objected for marking of the said document on the ground that is not properly stamped and also for the reason that it is not a genuine document and fradulently created. 7. It is seen that Office assessed stamp duty and penalty payable on the agreement. When the same was about to be marked, the office objection regarding stamp duty and penalty was brought to the knowledge of the Rent Controller. At that time, Counsel for petitioner before Rent Controller sought time to pay stamp duty and penalty. Time sought for was granted and on the adjourned date it is represented before Rent Controller that he is not going to pay the same and also did not want to take any steps to have the document marked. Thereafter, M.P. 143 of 1996 was argued in full and Rent Controller passed an order on 23.8.1996 directing tenant to pay a sum of Rs. 8,000/- towards Rent arrears for the month of April 1995 to July 1996 for a period of 16 months. Petitioner herein deposited that amount on 9.9.1996 and M.P. 143 of 1996 was closed on that date. 8,000/- towards Rent arrears for the month of April 1995 to July 1996 for a period of 16 months. Petitioner herein deposited that amount on 9.9.1996 and M.P. 143 of 1996 was closed on that date. It was thereafter evidence was taken on Rent Control Petition and eviction was ordered. 8. Petitioner herein filed appeal in RCA 868 of 1997 before the Appellate Authority and while the appeal was pending, he moved M.P. 82 of 1998 for receipt of additional evidence in appeal. The alleged rental agreement which was sought to be marked before the Rent Controller was produced before the Appellate Authority and the same was sought to be marked in appeal. Respondent herein seriously opposed to the marking of the document and an order was passed on 13.7.1999 dismissing M.P. 82 of 1998. The appeal was also heard and the same was also dismissed. It is against the order in M.P. 82 of 1998, C.R.P. 1408 of 1999 is filed and against the main order of eviction, C.R.P. 3255 of 1999 is filed. 9. Since Caveat was entered by learned counsel for respondent, I heard the revision at the admission stage itself. 10. Learned counsel for revision petitioner submitted that the Appellate Authority has not exercised his discretion properly while rejecting M.P. 82 of 1998 seeking to adduce additional evidence. It is argued that under Section 23(3) of the Rent Control Act, Appellate Authority got all powers of the Rent Controller and it could also hold such enquiry as it deems fit. It is also submitted by learned counsel that under Rule 16(2) of Rent Control Rules, Appellate Authority will have to consider the documents and thereafter enter a finding whether same is required for proper disposal of appeal or not. Mere rejection of document that no sufficient cause is shown for marking the same as additional evidence is not proper procedure. It is argued that Appellate Authority has discarded the rent deed between petitioner and respondents father only on the ground that petitioner did not have the same marked before trial Court. It has not entered a finding whether document is required for proper disposal of the appeal. It is argued that Appellate Authority has discarded the rent deed between petitioner and respondents father only on the ground that petitioner did not have the same marked before trial Court. It has not entered a finding whether document is required for proper disposal of the appeal. It is also argued by counsel that landlord is in the habit of receiving rent once in two or three months and merely because tenant did not pay rent for four months, that does not imply that there is wilful default. It is further argued that rent for the month of April 1995 to August 1995 along with subsequent arrears was deposited during pendency of rent control proceedings pursuant to the order under in Sec. 11(4) application. The further argument of the counsel is that his client had no intention of not paying rent and therefore he cannot be termed as ‘wilful defaulter’. 11. As against the said contention, learned counsel for respondent submitted that even though Appellate Authority has got the power to make such enquiry, the principles enunciated under Order 41, Rule 27 of Code of Civil Procedure are to be followed even by the Appellate Authority-under Rent Control Act. Sufficient cause will have to be made out for adducing additional evidence and petitioner cannot claim as of right to have the evidence admitted. If the appeal could be disposed of on the available evidence, authority need not consider whether the document, which is sought to be marked is also necessary for the proper disposal of appeal. The requirement of Appellate Authority must be based on some sufficient reasons that the available evidence was not sufficient for the proper disposal of the appeal. In this case, alleged rent deed was sought to be marked before Rent Controller itself and counsel for petitioner himself submitted before Court that he is not going to pay stamp duty and penalty and even got back the documents without marking the same. Therefore, it cannot be said that the document was not produced due to inadvertence or the same is not within their knowledge. It is further submitted that the document itself is not genuine and fraudulently created for the purpose of case. In the stamp papers purchased on 16.3.1991, a document dated 14.3.1991 is written. The learned counsel for respondent also denied the signature appearing in the document as that of landlord. It is further submitted that the document itself is not genuine and fraudulently created for the purpose of case. In the stamp papers purchased on 16.3.1991, a document dated 14.3.1991 is written. The learned counsel for respondent also denied the signature appearing in the document as that of landlord. It is also argued that when a discretion has been exercised is not admitting additional evidence, the discretion is not liable to be likely interfered under Section 25 of the Rent Control Act. Court is only exercising revisional powers which is only supervisory. A submission was also made by learned counsel that when the tenant denied the title of landlord and that respondent is not the owner in spite of the fact that he has been paying rent to respondents and being not regular in paying rent, are also circumstances to hold that the intention of petitioner is not to pay rent. It is further submitted that petitioner herein has taken a false case that he has discharged the arrears. Even though application is filed in 1995, rent arrears was paid only after one year pursuant to the order under Section 11(4) of the Act. When petitioner himself deposited rent which he said that he has paid earlier shows that he has taken a false contention and therefore the decision taken by lower Courts is not to be interfered with under Section 25 of the Rent Control Act. 12. First I will consider the revision in C.R.P. 3408 of 1999, which arises from M.P. 82 of 1998 an “application filed for receiving additional evidence. 13. Document which is sought to be marked was all along with the custody of petitioner, is admitted. In fact, the document was also produced before the Rent Controller in M.P. 183 of 1996. In that document, office of the Rent Controller found that the document cannot be marked in view of deficiency in stamp duty and when that objection was raised by learned counsel for respondent before Rent Controller, counsel for petitioner herein sought time to pay stamp duty and penalty and Rent Controller also adjourned the matter for payment of stamp duty and penalty. On the adjourned date, petitioners counsel before Rent Controller submitted that he is not paying stamp duty and penalty and even the document was taken back by him. On the adjourned date, petitioners counsel before Rent Controller submitted that he is not paying stamp duty and penalty and even the document was taken back by him. Petitioner who was in custody of the document produced the same and got it back from the Rent Controller. When petitioner himself took back the document and did not want to rely on the same, he cannot contend before Appellate Authority that the document was not produced due to inadvertence. In fact, petitioner has waived his right to have the document admitted and marked before Rent Controller and satisfied himself with the other documents produced before Rent Controller. That is why he did not depose anything about the so called rental arrangement dated 14.3.1991 and alleged payment of advance when he was examined as DW1. 14. It is true that under Section 23(3) of the Act, Appellate Authority may make such enquiry as it deems fit and has all the powers of Rent Controller. Merely because Appellate Authority got powers of Rent Controller, he cannot convert himself as Rent Controller. The main purpose of Appellate Authority is to assess the evidence adduced by both parties and come to a conclusion whether the decision of Rent Controller is correct or not. While assessing such evidence, If Appellate Authority feels that additional evidence is to be taken for the proper disposal of the appeal, statute empowers him to take additional evidence. The question of admitting additional document need be considered only when available evidence was not sufficient of the proper disposal of the dispute. In this case, it is petitioner who wanted to adduce evidence. Appellate Authority did not think of taking evidence as empowered under the Act, nor has taken a view that the available evidence was not sufficient to come to a conclusion in the matter. If petitioner wants to mark a document, naturally he has to satisfy as to why he did not avail of that opportunity before Rent Controller. Petitioner has no case that sufficient opportunity was not given to him by Rent Controller. Very same document was sought to be marked before Rent Controller, but subsequently the same was taken back by petitioner himself. 15. Petitioner has no case that sufficient opportunity was not given to him by Rent Controller. Very same document was sought to be marked before Rent Controller, but subsequently the same was taken back by petitioner himself. 15. An argument was taken by learned counsel for petitioned relying on the decision reported in AIR 1978 S.C. 1393 = 91 L.W. 132 S.N. ( Ram Rattan v. Bajrang Lal): The argument is that there is no necessity to pay stamp duty and penalty and since there is no adjudication for the same. I do not find any merit in the said submission. When the matter was taken before Rent Controller, counsel for respondent objected to the marking of the document. Office took note of the objection and assessed stamp duty and penalty and placed before the Rent Controller. Rent Controller also directed petitioner to pay the amount. Petitioner took time for payment and thereafter withdrew the document. When Rent Controller himself directed payment of stamp duty as directed by Office and also granted adjournment for payment, that means that the office note has been accepted by Rent Controller and the order of payment amounts to an order of adjudication of the same. Hence, the decision in AIR 1978 S.C. 1393 = 91 L.W. 132 S.N.” (cited supra) may not have any application to the facts of this case. 16. In the decision reported in AIR 1966 Andhra Pradesh 1 ( Sri Rant Co-operative Building Society v. Ankitham Venkata Bhanoji Rao ) relief on by learned counsel for petitioner, learned Judge said that the provision of Order 41, Rule 27 can be taken as guidelines for receiving additional evidence in appeal by Appellate Authority. Even though that principle may not apply directly, its principle could be applicable where additional evidence is sought to be adduced. If that be so, I do not find that the Appellate Authority went wrong in not admitting additional evidence in appeal. No sufficient cause was also made out by petitioner for having the same admitted in evidence. 17. Reliance was also placed on the decisions reported in 1986 (2) MLJ 345 = 99 L.W. 272 ( A.G. Punyakoti v. M. Meera Bai ) wherein para 9 and para 10 it is held thus, “9. No sufficient cause was also made out by petitioner for having the same admitted in evidence. 17. Reliance was also placed on the decisions reported in 1986 (2) MLJ 345 = 99 L.W. 272 ( A.G. Punyakoti v. M. Meera Bai ) wherein para 9 and para 10 it is held thus, “9. At the outset, it is necessary to consider the argument of the learned counsel for the tenant with regard to the admission of additional evidence which has been allowed to be produced, by the appellate authority. Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Rent Control Act) provides for a right of appeal. Sub-section (3) of Section 23 reads as follows:— “The Appellate Authority shall call for the records of the case from the Rent Controller and after giving the parties an opportunity of being heard, and, if necessary, after making such further enquiry, as he thinks fit either personally or through the Controller, shall decide the appeal.” Sub-section (3) of Section 23 undoubtedly enables the Appellate Authority to make such further enquiry, as he thinks fit. This enquiry could be made by the Appellate Authority either personally or through the Controller. Rule 16 of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974 deals with the procedure for the disposal of appeals under Section 23, sub-rule (2) of Rule 16 reads as follows: “If the Appellate Authority decides to make further enquiry, he may take additional evidence or require such evidence to be taken by the Controller.” Section 23(3) of the Act read with Rule 16 of the Rules, therefore, clearly enables the Appellate Authority to take additional evidence, or he can direct evidence to be taken by the Controller. It must be pointed out that Rule 16(2), refers to the power of the Appellate Authority to take additional evidence. 11 does not create any right in a party to have additional evidence admitted as a matter of course. The power of permitting additional evidence to be produced at the stage of appeal must be exercised and by the Appellate Authority judiciously, and before additional evidence is given, the Appellate Authority must be satisfied that such additional evidence is necessary for a proper disposal of the appeal. The power of permitting additional evidence to be produced at the stage of appeal must be exercised and by the Appellate Authority judiciously, and before additional evidence is given, the Appellate Authority must be satisfied that such additional evidence is necessary for a proper disposal of the appeal. The provision for additional evidence as part of the further enquiry permitted to be made by the Appellate Authority does not imply that a party has a right to have additional evidence produced before the Appellate Authority without any valid justification. If any documents are to be produced, they could be permitted to be produced by way of additional evidence only if the Appellate Authority is satisfied that it is necessary to make a further enquiry and that there was good justification for not producing those documents before the Rent Controller. In the instant case, the only ground which the landlady gave for the non-production of those documents was that she thought that she would be able to prove her case without those documents. This can hardly be a ground for production of additional evidence. The fact that some documents were not filed before the Rent Controller is not by itself sufficient for the Appellate Authority to make a further enquiry if the parties had enough opportunity to produce all the evidence in support of their respective cases before the Rent Controller. 10. The Appellate Authority must realise that parties who got to trial before the Rent Controller are normally required to produce all the available evidence on which they rely before the Rent Controller himself. However, in view of the specific provision in Section 23(3) of the Act, when the Appellate Authority has been given a discretion to admit additional evidence, before accepting those documents which are produced as additional evidence, the Appellate Authority must scrutinise those documents and decide how far they are relevant for the determination of the issue before him. If any additional evidence by way of documents is produced at the appellate stage, unless those documents are duly proved, they cannot automatically be accepted as evidence. If additional evidence is allowed to be produced by one party, the other party is also entitled to an opportunity to rebut the additional evidence. If any additional evidence by way of documents is produced at the appellate stage, unless those documents are duly proved, they cannot automatically be accepted as evidence. If additional evidence is allowed to be produced by one party, the other party is also entitled to an opportunity to rebut the additional evidence. Whenever additional evidence is given by one of the parties before the Appellate Authority, the Appellate Authority is duty bound to give an opportunity to the other party to produce such additional evidence as may be necessary to rebut the additional evidence . This could be done either before the appellate authority himself or before the Rent Controller who could be directed by the Appellate Authority to admit or record the necessary evidence.” (emphasis supplied). I do not think that the above decision is in any way helpful to petitioner. Learned Judge held that merely because documents were not filed before Rent Controller, it is not sufficient for Appellate Authority to make further enquiry if the parties had sufficient opportunity to produce evidence in support of their case. But learned counsel stressed on the sentence that before rejecting application, whether document is relevant for the purpose of determining the case is also to be considered. In para 10 of the Judgment learned Judge held that Appellate Authority has been given a discretion to admit additional evidence before accepting those documents which are produced as additional evidence, and Appellate Authority must scrutinise those documents as to how far that is relevant for determining the issue before it. I find that learned counsel gave importance to that sentence without taking into consideration the fact of the case. In that case, the question before the Court was whether Appellate Authority was justified in receiving additional evidence and whether the evidence adduced before Rent Controller was sufficient. Appellate Authority simply accepted those documents as relevant and admitted the same as additional evidence, even without considering the relevancy of the document. Most of the documents, genuiness of the same was also disputed. Even without proof, Appellate Authority admitted the same. To consider that aspect, learned Judge said that the authority must scrutinise those documents and decided how far they are relevant and further said that if additional evidence is adduced in appeal, unless those documents are admitted by both sides, the same should not be admitted without further proof. Even without proof, Appellate Authority admitted the same. To consider that aspect, learned Judge said that the authority must scrutinise those documents and decided how far they are relevant and further said that if additional evidence is adduced in appeal, unless those documents are admitted by both sides, the same should not be admitted without further proof. I do not think that the decision relied on by counsel has any relevance to the facts of the case in hand. 18. A submission was also made by learned counsel relying on the decision reported in AIR 1999 S.C. 2507 ( Shiv Samp Gupta v. Mahesh Chand Gupta ). Honourable Supreme Court was deciding the case under Delhi Rent Control Act and was considering the circumstances under which revisional powers could be exercised. Their Lordships said that ‘if the decision of the Rent Controller is not in accordance with law’, revisional powers could be exercised. In para 11 of the Judgment, their Lordships considered what is meant by decision not in accordance with law, which reads thus, “The High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a Court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of ‘whether it is according to law’. For that limited purpose it may enter into reappraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is on e that no reasonable person acting with objectivity could have reached that conclusion on the material available. Ignoring the weight of evidence, proceeding on wrong premise of law or deriving such conclusion from the established facts as betray the lack of reason and/or objectively would render the finding of the Controller “not according to law” calling for an interference under proviso to sub-section (8) of Section 25-B of the Act. A judgment leading to miscarriage of justice is not a judgment according to law.” (emphasis supplied). I do not think that the above decision also will help petitioner in any way. It is not the case of petitioner that appellate authority has not discussed the evidence that is available before it and has not rendered a finding. A judgment leading to miscarriage of justice is not a judgment according to law.” (emphasis supplied). I do not think that the above decision also will help petitioner in any way. It is not the case of petitioner that appellate authority has not discussed the evidence that is available before it and has not rendered a finding. Only case is whether the application for adducing additional ‘evidence was dismissed violating the provisions of Section 23(3) and Rule 16(3) of Rent Control Act and Rules. I do not think that the said submission of the counsel could be accepted, since the Appellate Authority has given valid reason. 19. In view of the above finding, C.R.P. 3408 of 1999 is only to be dismissed. 20. What remains is only C.R.P. 3255 of 1999 where Appellate Authority dismissed the appeal filed by petitioner and confirmed the decision of Rent Controller wherein it is held that petitioner is a wilful defaulter. 21. While considering the question whether tenant is a wilful defaulter or not, the intention not to pay rent, the conduct prior to and after eviction petition are all relevant. One of the main contentions that is raised by petitioner in the counter statement and in the counter in the petition under Section 11(4) of the Act is that respondent is not the landlord and he is not the owner of the building and as between him and respondent there is no tenant-landlord relationship. From this contention it is clear that he is not going to pay rent to respondent. It is admitted by DW1 himself that after the death of late Velan, it was respondent alone who was collecting rent and none of the other legal heirs of Velan have ever demanded rent from him. A contention was raised in the counter that other legal heirs of Velan have also demanded rent and therefore he has not paid rent. This statement is also found to be false. At the time when he was examined, he admitted that he was paying rent all along to respondent only after having acknowledged respondent as landlord. The present contention that respondent is not owner or landlord along with the non-payment of rent shows that petitioner had no intention to pay rent to respondent herein. 22. At the time when he was examined, he admitted that he was paying rent all along to respondent only after having acknowledged respondent as landlord. The present contention that respondent is not owner or landlord along with the non-payment of rent shows that petitioner had no intention to pay rent to respondent herein. 22. He also took a contention that he has already discharged entire rent including for the months April 1995 to August 1995 and no amount is due to respondent. This is also false contention. When application under Section 11(4) of the “Act was filed, rent for the month of April 1995 to August 1995 was also paid along with subsequent arrears. Petitioner did not challenge the finding of Rent Controller that he is in arrears from April 1995 when Sec. 11(4) application was ordered. Even in the appeal, petition er did not challenge that finding of Rent Controller. If that be so, it is clear that he has taken a false contention. 23. Eviction petition was filed on 4.9.1995. Petitioner did not think of depositing rent even thereafter. Default continued and only when order was passed in 1996, he deposited rent after filing this application after one year. From August 1997, till petition was disposed, no amount was paid. Subsequent conduct of petitioner shows that he is not in the habit of paying rent. 24. An argument was also taken by learned counsel that landlord is in the habit of receiving rent once in two or three months and non-payment from April to August 1995 can never be said as default. I do not find any merit in the said submission. In the counter statement filed by tenant he has no such case. While he was examined as D.W.I also he had no such case. New case is put forward at the time of argument in revision. After stating that respondent is not owner or landlord and thereafter stating that he is in the habit of receiving rent once in two or three months, cannot be believed., I find that the concurrent findings of the authorities below are not liable to be interfered with in this revision petition. Eviction order passed by authorities below is only to be confirmed, and I do so. 25. In the result, both the revision petitions are dismissed with costs. Consequently, CMP. No. 18280 of 1999 is also dismissed.