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1999 DIGILAW 400 (MAD)

N. Duraisamy v. R. Asokan

1999-04-13

M.KARPAGAVINAYAGAM

body1999
Judgment :- 1. Duraisamy the petitioner/landlord challenging the judgment and decree in M.A.No.38 of 1993 dated 16.2.1995 on the file of the Principal District Judge, Pondicherry in setting aside the fair order and decretal order in H.R.C.O.P.No.108 of 1992 dated 30.6.1993 on the file of the Rent Controller. Pondicherry, has preferred this revision. 2. The petitioner is the landlord. The respondent is the tenant. The respondent took the premises on lease from the petitioner on 21.9.1990 for residential purpose on a monthly rent of Rs.500 The respondent paid an advance of Rs.1500 to the petitioner. He was paying the rents upto May, 1992, Thereafter, he defaulted in making the payment of rent. On 17.8.1992, the petitioner issued a notice demanding the arrears of rent and amenity charges. Despite receipt of notice, the respondent did not choose to reply. Under these circumstances, the petitioner filed a petition for eviction. 3. The case of the respondent is that upto May, 1992 he paid the rents to the petitioner and since he came to know that the petitioner was having only one nineth share in the property as per Judgment in O.S.No.369 of 1981 on the file of the First Additional Sub Judge, Pondicherry, on the demand being made by the other co-owners of the premises Mr.Sivalingam and Duraisamy aliasKuppusamy, the brothers of the petitioner the rents for the subsequent months were paid to them and as such, he did not commit any wilful default. 4. In order to prove their respective plea, the petitioner examined himself as P.W.1 and marked Exs.A-1 to A-6 while the respondent examined himself as R.W.1 and marked Exs.B-1 to B-4. 5. The Rent Controller on consideration of the entire materials concluded that the respondent is liable to be evicted and directed him to put the petitioner into vacant possession of the premises. 6. Being aggrieved over the said order, the tenant/respondent herein filed an appeal in M.A.No.38 of 1993 before the Appellate Authority, namely, the Principal District Judge, Pondicherry. 7. On hearing the parties and on perusal of the impugned order and other documents, the Appellate Authority allowed the appeal mainly on the ground that the petition for eviction filed by the petitioner Duraisamy is not maintainable, since admittedly the petitioner was only a co-owner and so, the petition could not be maintained in the absence of the consent given by the other co-owners. It is also held on the strength of Ex.B-1 that there is no wilful default on the part of the tenant, since from June, 1992, he paid the rental amounts to the other co-owners. 8. Challenging this judgment by the Appellate Authority, the landlord has filed this revision before this Court. 9. Mr.Raghavachari, learned counsel appearing for the petitioner while attacking the impugned Judgment would make the following contention: The petitioner though he is a co-owner could very well maintain the petition for eviction, as he is the landlord as contemplated under Sec.2(6) of the Pondicherry Buildings (Lease and Rent Control) Act, Having held that the premises was let out to the tenant by the petitioner/landlord for rent and that from the beginning he had been collecting the rental amounts from tenant, the Appellate Authority ought to have held that tenant committed wilful default in payment of rent in not having paid the rental amounts to the petitioner despite receipt of notice Ex.A-2. In order to substantiate this submission, learned counsel for the petitioner would point out that the relevant portions of the evidence of P.W.1 would show that he is the landlord and with the consent of other co-owners, he filed the petition for eviction. 10. On the other hand, Mr.Lavan, counsel representing Mr.Sudarsana Nachiappan appearing the respondent/tenant would contend that the Appellate Authority has dealt with all these aspects and correctly concluded that the petitioner was not competent either to demand or collect the rent or to maintain the petition for eviction. He would also cite some authorities for establishing the said plea and the same shall be considered later. 11. At the threshhold, it is to be noticed that the tenant/respondent herein admitted that he took the premises on lease only from the petitioner on 21.9.1990. It is the case of the petitioner that the respondent paid rents upto May 1992 and thereafter, defaulted in payment of rent to the petitioner. It is the contention of the respondent that subsequent to May, 1992, he was paying the rents to the other co-owners. In order to establish the said fact, the respondent/tenant did not choose to examine any person. 12. It is the contention of the respondent that subsequent to May, 1992, he was paying the rents to the other co-owners. In order to establish the said fact, the respondent/tenant did not choose to examine any person. 12. Of course, it is true that he filed Ex.B-1, which would which would show that the rental amount was received by one Sivalingam for the month of June, 1992, But it is clear that the tenant/respondent herein has not established that subsequent to June, 1992 any amount has been paid either to the petitioner or to the other co-owners. However, it is pointed out by the learned counsel that Ex.B-1 has been disbelieved by both the forums. 13. Now, the point that arises for consideration in this case is, whether the petitioner as landlord could maintain the petition in the absence of any written consent, from other co-owners under Sec.10(8) of the Act. 14. Sec.2(7) of the Pondicherry Buildings (Lease and Rent Control) Act defines the terms (landlord) as follows: “Landlord includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant“. 15. The contention of the learned counsel for the respondent is that the petitioner being the co-owner shall have to obtain the written consent of other co-owners under Sec.10(8) of the Act. 16. Sec.10(8) of the Act runs as follows: “Notwithstanding anything contained in this section, no person who is receiving or is entitled to receive the rent of a building merely as an agent of the landlord shall, except with the previous written consent of the landlord, be entitled to apply for the eviction of a tenant.” 17. A conjoint reading of Secs.2(7) and 10(8) of the Act would make it clear that though an Agent could be termed as a Landlord to maintain the petition for eviction, he has to necessarily obtain the written consent from the landlord and then to file the petition for eviction. Otherwise, there is a bar engrafted under Sec.10(8) from entertaining the said petition. 18. But, in the instant case, the petitioner is not an agent. Otherwise, there is a bar engrafted under Sec.10(8) from entertaining the said petition. 18. But, in the instant case, the petitioner is not an agent. Even according to the respondent/tenant, he is only a co-owner. So, for purpose of this Act, the landlord need not necessarily be the absolute owner of the property: even the co-owner can be termed to be a landlord as per the definition of Sec.2(7) of the Act. The embargo placed under Sec.10(8) of the Act is only on such of those landlords who are not owners of the property, but it would apply to the persons who are only acting as Agents of those landlords. 19. The settled principles with reference to the definition of” landlord “ as contemplated under Sec.2 (7) of the Act having competence to maintain the petition for eviction could be summarised as follows: “Every co-owner is in a real sense, the absolute owner of the entirety of the interest in the joint property. The co-owner is by no means the agent of the other co-owner in respect of any interest in the property. On the incontrovertible position in law of co-owners who must be distinguished from agents, properly so called, Sec.10(8) has absolutely no application to the petition filed for eviction of the tenant“. 20. On a reading of Sec.10(8) of the Act, it will be clear that only an agent of the landlord has to get the previous written consent of the landlord. It cannot be construed that a co-owner could take the position of an agent in respect of the management of the property. 21. It is well settled that a co-owner owns every part of the composite property along with others and it could not be said that he is only a part owner or a fractional owner of the property. When the tenant was inducted into possession of the property by the petitioner being a co-owner, on his behalf and others, then he would come under the definition of landlord in Sec.2(7) of the Act and as such he would be entitled to file the petition for eviction. 22. Having obtained possession from the petitioner as a tenant, it is not open to the tenant now to deny the relationship of landlord and tenant. When the definition landlord defines co-owner as a landlord. 22. Having obtained possession from the petitioner as a tenant, it is not open to the tenant now to deny the relationship of landlord and tenant. When the definition landlord defines co-owner as a landlord. it is not necessary for the co-owner to establish that he is the only owner of the property, so long as he is a co-owner. 23. The above principles have been laid down in Ehasan Bivi and others v. Nagalakshmi Ammal Ehasan Bivi and others v. Nagalakshmi Ammal Ehasan Bivi and others v. Nagalakshmi Ammal, (1981)1 MLJ. 240 and Kamuthi Madalaichay alias Sivanendal Perumalsamy Koil Private Trust through its Trustee v. Thangarathina Nadar Kamuthi Madalaichay alias Sivanendal Perumalsamy Koil Private Trust through its Trustee v. Thangarathina Nadar Kamuthi Madalaichay alias Sivanendal Perumalsamy Koil Private Trust through its Trustee v. Thangarathina Nadar , (1990)2 L.W. 332 . 24. Bearing these principles in mind let us now examine the materials available on record, in order to find out whether the petition has been filed by the petitioner for eviction of the respondent as a landlord. 25. As indicated earlier, the premises was let out and handed over by the petitioner to the respondent on 21.9.1990 on monthly rent of Rs.500. It is also not debated that the petitioner had been receiving the rents upto May, 1992. As a matter of fact, the evidence of R.W.1, the tenant is that he went to the house of the petitioner and handed over the rent for the month of May, 1992 to the wife of the petitioner. These things would make it clear that the petitioner was acknowledged as a landlord. 26. It is also seen that subsequent to May, 1992, no amounts were paid towards rental arrears either to the petitioner or to his wife. As a matter of fact, for Ex.A-1 notice sent by the petitioner asking the respondent/tenant to pay the rental arrears and towards the amenity charges, there was no reply for the notice in spite of the same was received by the tenant. 27. The only contention urged by the counsel for the respondent is that subsequently he paid the rents to the brothers of the petitioner being the co-owners. The materials available on record do not show that subsequent to May, 1992, the respondent had been regularly paying the amount to the brothers of the petitioner. 28. 27. The only contention urged by the counsel for the respondent is that subsequently he paid the rents to the brothers of the petitioner being the co-owners. The materials available on record do not show that subsequent to May, 1992, the respondent had been regularly paying the amount to the brothers of the petitioner. 28. The only one receipt which has been marked as Ex.B-1 would show that Sivalingam had issued receipt for having received the rent for the month of June, 1992. As correctly pointed out by the Rent Controller, this document cannot be taken as genuine, in the absence of examination of the author of the document. Even assuming that the said amount had been paid to Sivalingam, who is the brother of the petitioner, there is no record to show that subsequent to June, 1992, he had made any payment to any of the brothers towards rental arrears. 29. However, it is clear, in pursuance of the receipt Ex.B-2 authorisation letter to collect rents, that no amounts had been paid to any of the brothers. Therefore, there is no difficulty in holding that he has defaulted in making payment of rents subsequent to June, 1992. 30. With reference to the question about the competency of the petitioner to maintain the petition, as discussed earlier, the petitioner cannot be termed to be an Agent, as he is a co-owner as admitted by the respondent/tenant. 31. As a matter of fact, P.W.1 would state in the cross-examination that he obtained consent from the other co-owners for leasing out the premises to the respondent. He had also stated during the course of cross-examination that his action of letting out the premises to the respondent and collecting the rent was ratified by the other co-owners through letters. Though it is seen from Ex.B-2 that Sivalingam authorised one Kuppusamy to collect the rents, the said documents also has not been marked through Sivalingam or through Kuppusamy. 32. A reading of Sec.10(8) would provide that an Agent cannot file a petition for eviction unless he gets a written consent form the landlords. The definition of landlord which is an inclusive definition by which it includes other categories of persons who are actually not having right or interest in the property demise. 32. A reading of Sec.10(8) would provide that an Agent cannot file a petition for eviction unless he gets a written consent form the landlords. The definition of landlord which is an inclusive definition by which it includes other categories of persons who are actually not having right or interest in the property demise. Therefore, unless it is established that the petitioner filed the petition for eviction as an agent, it cannot be contended that the written consent from others is a must. In this context, it is to be remembered that P.W.1 had specifically stated in the cross-examination that he got ratification for the act of leasing out the property to the respondent and for collecting the amounts. 33. In view of what is stated above, I am of the considered opinion that the judgment and decree passed by be set aside and it is accordingly set aside. This civil revision petition is allowed and the order passed by the Rent Controller is restored. 34. At this stage learned counsel for the respondent would submit that if sufficient time is given, his client will be able to vacate the premises. Heard Mr.Raghavachari on this aspect. In the interests of justice, I deem it fit to grant four months time from today for vacating the premises and handing over the same to the petitioner, subject to the respondent filing an affidavit of undertaking before this Court to vacate the premises within the stipulated time, within two weeks from today.