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Madras High Court · body

2000 DIGILAW 231 (MAD)

B. K. Anantharam v. K. N. Rajaram and another

2000-02-29

S.S.SUBRAMANI

body2000
ORDER: Landlord in R.C.O.P.No.9 of 1987 on the file of the Rent Controller, Thanjavur is the revision petitioner. 2. The landlord claimed eviction on two grounds: (1) the tenant has committed default in payment of rent at the rate of Rs.85 per month from November, 1985 till December, 1986 and the said default is wilful. (2) The building requires immediate demolition and re-construction. 3. It is the case of the landlord that he purchased the schedule property as per sale deed dated 6.11.1985 from P.W.2. Even at the time he purchased the property, the respondent herein was a tenant of the building, where he is doing a textile business agreeing to pay monthly rent of Rs.85. Immediately after purchase, the fact was informed to the tenant. The tenant filed a suit O.S.No.198 of 1986 on the file of District Munsif’s Court, Thanjavur for a decree of permanent prohibitory injunction to restrain the petitioner as well as the vendor from forcibly evicting him. It is also alleged by the landlord that in the entire structure excluding the portion occupied by the tenant, the remaining is a residential premises and the petitioner is occupying the same. Even though the fact that the petitioner has purchased the property was informed, the tenant has not paid any rent. It is also alleged by the landlord that the building is more than 125 years old and is in a very bad condition and every possibility of collapsing at any time. The landlord has got the financial capacity to raise funds and he has also given a statutory undertaking to demolish the building. 4. In the counter statement filed by the tenant, he admitted that he has filed a suit as O.S.No.198 of 1986 for decree of permanent prohibitory injunction. According to him, the rate of rent is only Rs.40 but not Rs.85 and at no point of time, the rate was enhanced to Rs.85. He also denied having committed default in paying the rent. According to him, he is depositing Rs.40 in O.S.No.198 of 1986 and that will show his eagerness to pay rent to the landlord and hence not a wilful default. The claim for eviction on the ground that the building requires immediate demolition and re-construction is also denied by the tenant. 5. On the above pleadings, the Rent Controller took oral and documentary evidence. The claim for eviction on the ground that the building requires immediate demolition and re-construction is also denied by the tenant. 5. On the above pleadings, the Rent Controller took oral and documentary evidence. Exs.A-1 to A-13 were marked on the side of the landlord. Exs.R-1 to R-11 were marked on the side of the tenants. A Commissioner was deputed on the request of the landlord who filed his report as Ex.C-1 and plan Ex.C-2. The oral evidence consisted of P.Ws.1 and 2 and D.W.1. The Commissioner who prepared Exs.C-1 and C-2 was also examined as C.W.1. 6. After evaluating the entire evidence, the trial Court held that the tenant is liable to be evicted on both the grounds. It held that the rate of rent is Rs.85 and from November, 1985 onwards the tenant has not paid any rent. The deposit in Civil Court cannot be taken as valid tender and therefore it held that the tenant has committed a wilful default. In regard to the claim for eviction that the building requires immediate demolition and re-construction, the Rent Controller held that the landlord has got the financial capacity to put up a construction as the building is very old and is more than 125 years old and it requires immediate demolition and re-construction. The claim was found to be bona fide. It also found that the landlord has obtained the necessary plan and licence and has given a statutory undertaking. 7. Against the Order of eviction, the tenant filed R.C.A.No.5 of 1994 on the file of the Rent Control Appellate Authority, Subordinate Judge, Thanjavur. The Appellate Authority held that the rate of rent is Rs.85, but the tenant has paid a loan of Rs.4,500 to P.W.2 and interest at the rate of Rs.85 was being adjusted in the rent and the balance was being deposited in the Civil Court. It further held that since there was an apprehension for the tenant that he is liable to be forcibly evicted, he filed a suit as O.S.No.198 of 1986 which has prompted him to deposit the rent in Court and even though he has not deposited rent at the rate of Rs.85, that will not make him a wilful defaulter. It further held that since there was an apprehension for the tenant that he is liable to be forcibly evicted, he filed a suit as O.S.No.198 of 1986 which has prompted him to deposit the rent in Court and even though he has not deposited rent at the rate of Rs.85, that will not make him a wilful defaulter. The Appellate Authority further held that since the landlord has occupied the remaining portion of the building after purchase, that will show that the building does not require immediate demolition and re-construction. The judgment of the Rent Controller was set aside and the rent control application was dismissed. 8. Against the said decision, the landlord has preferred revision. 9. Heard both sides. 10. The first question to be considered is whether the tenant has committed default in payment of rent. 11. Both the Courts below have found that the rate of rent is Rs.85, and not Rs.40. The evidence of P.W.2, the original owner was believed by both the Courts below in coming to the conclusion that the rate of rent is Rs.85 and not Rs.40 as contended by the tenants. 12. The further question that is to be considered is whether non-payment of rent from November, 1985 till December, 1986 amounts to wilful default. 13. The landlord purchased the property on 6.11.1985 is admitted. It is also admitted by the tenant that earlier, in 1986, he filed a suit O.S.No.198 of 1986, a suit for injunction to restrain the petitioner as well as the original owner from forcibly evicting him. It is clear therefrom that the tenant was aware of the purchase by the petitioner herein. 14. It could be seen from the evidence that O.S.No.198 of 1986 was not defended by the petitioner or by his vendor and they agreed that they will seek eviction only through Rent Controller and they have no objection in passing a decree in that suit. It is the case of the tenant that he has been depositing rent at the rate of Rs.40 in O.S.No. 198 of 1986. The Appellate Authority held that the deposit in the civil case had to be taken into consideration to consider whether the tenant is a wilful defaulter. 15. Even though the tenant denied that the rate of rent is only Rs.40, the finding is against him. The same is not challenged in this revision. The Appellate Authority held that the deposit in the civil case had to be taken into consideration to consider whether the tenant is a wilful defaulter. 15. Even though the tenant denied that the rate of rent is only Rs.40, the finding is against him. The same is not challenged in this revision. During trial, the tenant took a contention that he has advanced a loan of Rs.4,500 to P.W.2 and interest for that amount at the rate of Rs.45 was being adjusted in the rent. P.W.12 also admitted that he used to receive rent at the rate of Rs.40 giving credit to interest and the same is entered in a book maintained by the tenant. The Rent Controller held that some of the pages in the hand book produced by the tenant have been removed and the tenant has not come to Court with clean hands. 16. It is not the case of the tenant that he has paid any advance to P.W.2. According to him, he has given only loan for which the interest is being adjusted in rent. After purchase by the petitioner, the loan transaction between P.W.2 and the tenant cannot be taken into consideration and the interest cannot be adjusted in the rent. Apart from the above fact, it is come out in the evidence that P.W.2 immediately after sale sent the entire amount of Rs.4,500 by cheque and the same was refused to be accepted by the tenant. That part of the evidence of P.W.2 was also believed by the Appellate Authority. 17. When the tenant has not paid or deposited the rent after petitioner purchased the property, can he contend that he is not a defaulter. The further question arises is whether the contention of the tenant that the deposit made at the rate of Rs.40 in the civil suit will save him the consequences of eviction. 18. In Jagat Prasad v. District Judge, Kanpur and others, (1995)1 S.C.C. (Supp.) (1) 318, their Lordships have considered similar questions. There also, the tenant took a contention that he has deposited rent in a civil proceeding and that would enure to the benefit of the rent control proceedings also. 18. In Jagat Prasad v. District Judge, Kanpur and others, (1995)1 S.C.C. (Supp.) (1) 318, their Lordships have considered similar questions. There also, the tenant took a contention that he has deposited rent in a civil proceeding and that would enure to the benefit of the rent control proceedings also. This contention was rejected by the Hon’ble Supreme Court in a short judgment, which reads thus: "After hearing Mr.Bobde, learned counsel for the appellant for considerable time are fully convinced and the order passed by the learned District Judge and affirmed by the High Court insofar as it struck off the defence under O.15, Rule 5, Civil Procedure Code cannot be sustained. Nevertheless, the defence of the appellant that he had deposited bona fide the rent in the civil proceeding that would enure to the benefit of the rent control proceedings is unacceptable to us. Law prescribes the procedure as to the deposit under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Such a procedure if complied with alone will be a valid defence to a petition for eviction on the ground of arrears of rent. Therefore, even accepting the defence the ultimate order of eviction passed against the tenant will have to be upheld". [Italics supplied] 19. In Kuldeep Singh v. Ganpat Lal and another, (1996)1 S.C.C. 243 , a case under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 also, a similar question came for consideration. Sec.19-A of the Rajasthan Act is similar to Sec.8 of our Act. Without complying with the statutory provisions, the tenant deposited the rent amounts under Sec.19-A of the Rajasthan Act. The question came before the Supreme Court was, such deposits could be taken as valid deposits tender. In paragraphs Nos.6 to 8 of the Judgment, their Lordships considered this question and held that the deposit made even though before the Rent Controller cannot be termed as a valid tender since the tenant has not complied with the statutory pre-condition. The deposit was held to be not valid. Paragraphs No.6 to 8 of the judgment read thus: "Shri Sachar does not dispute that the conditions prescribed in Clause (c) of Sub-sec.(3) of Sec.10-A for the purpose of making the deposit in Court are not fulfilled in the present case. The deposit was held to be not valid. Paragraphs No.6 to 8 of the judgment read thus: "Shri Sachar does not dispute that the conditions prescribed in Clause (c) of Sub-sec.(3) of Sec.10-A for the purpose of making the deposit in Court are not fulfilled in the present case. The submission of Shri Sachar however, is that since the appellant had deposited in Court the rent for the months of May, 1982 to October, 1982 on 29.10.1982, before the said rent for six months fell due, he cannot be held to be a defaulter in payment of rent for six months and a decree for eviction under Sec.13(1)(a) could not be passed. Shri Sachar has, in this connection, placed reliance on the decisions of this Court in Duli Chand v. Maman Chand, (1980)1 S.C.C. 246 : A.I.R. 1979 S.C. 1307 and Sheo Narain v. Sher Singh, (1980)1 S.C.R. 836 : A.I.R. 1980 S.C. 138. We have carefully perused the said judgments. Both these judgments relate to the Proviso to Sec.13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949 which affords protection against eviction of the tenant if on the first hearing of the application for ejectment after due service he pays or tenders the arrears of rent and interest at six percent per annum on such arrears together with the cost of application assessed by the controller. In both these cases, the tenant had deposited the amount of rent in the Court in which the ejectment proceedings were pending prior to the first hearing of the application and on the first hearing the landlord was made aware of the deposit. This Court has held that even though there was no provision in the Act for deposit of the rent in Court the said deposit could be treated as compliance with the requirements of the proviso to Sec.13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949 and the tenant was entitled to avail of the benefit of the said Proviso. In the present case, the appellant is seeking to avail of the benefit of the legal fiction under Sec.19-A(4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. (See: Bengal Immunity Co.Ltd. v. State of Bihar, (1955)2 S.C.R. 603 : A.I.R. 1955 S.C. 661. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. (See: Bengal Immunity Co.Ltd. v. State of Bihar, (1955)2 S.C.R. 603 : A.I.R. 1955 S.C. 661. The appellant can avail of the benefit of Sec.19-A(4) if the deposit of Rs.3,600 made by him in the Court of Munsif (South), Udaipur, on 29.10.1982, by way of rent for the months of May, 1982 to October, 1982, can be treated as a payment under Sec.19-A(3)(c) so as to enable the appellant to say that he was not in default in payment of rent. Under Sec.19-A(3)(c) the tenant can deposit the rent in the Court only if the conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present case. The deposit which was made by the respondent in Court on 29.10.1982 cannot, therefore, be regarded as a deposit made in accordance with clause (c) of Sub-sec.(3) of Sec.19-A and the appellant cannot avail of the protection of Sub-sec.(4) of Sec.19-A and he must be held to have committed default in payment of rent for the months of May, 1982 to October, 1982. This means that the decree for eviction has been rightly passed against the appellant on account of default in payment of rent for the period of six months“. [Italics supplied] 20. A similar view was taken in earlier judgment of the Supreme Court under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 Teegala Satyanarayana v. G.S.Bhagwan, (1994)3 S.C.C. (Supp.) 741. Relevant portion in paragraph No.3 of the said judgment reads thus: ”In case the landlord refuses to receive the rent, Sec.8 of the Act provides the procedure for payment thereof, namely, the tenant is under an obligation to issue a notice calling upon the landlord either to receive the rent or name the bank in which the rent is to be deposited. On receipt of the notice, in case the landlord does not respond to or refuses to receive the rent, a right is given to make an application under Sec.8 in the Court of Rent Controller (District Munsif) seeking permission of the Controller to deposit the rent. On receipt of the notice, in case the landlord does not respond to or refuses to receive the rent, a right is given to make an application under Sec.8 in the Court of Rent Controller (District Munsif) seeking permission of the Controller to deposit the rent. After following the procedure, a direction would be given for deposit of the rent to the credit of the case." From the above decision, it is clear that the deposit if any made in O.S.No.198 of 1986 cannot be treated as a valid deposit nor could a tenant contend that the deposit made thereunder will have to be taken into consideration to absolve him from being stamped as a wilful defaulter. Admittedly, the tenant has deposited only Rs.40 in a civil suit when the rent payable is Rs.85. After purchase, the tenant is not entitled to adjust any rent towards the interest accrued to him. The loan transaction is only between P.W.2 and the tenant. P.W.2 has further stated that he has paid the entire amount immediately after sale and the same was refused to be accepted by the tenant by returning the cheque. Under these circumstances, how far the tenant will be entitled to claim interest is also doubtful. At any rate, the loan transaction between P.W.2 and the tenant cannot be a ground to hold that the tenant is not liable to pay rent at the rate of Rs.85 to the petitioner. 21. The definite case of the tenant is that the rent payable itself is Rs.40 and not Rs.85. Inspite of the sale being brought to the notice of the tenant, he continued to deposit only Rs.40 before the Civil Court. Only when P.W.2 was examined, why he paid Rs.40 was explained. Under these circumstances, it is clear that the tenant has come to the Court with a false case and his intention is not to pay rent. Such conduct on the part of the tenant can be termed as only as a wilful defaulter and he is liable to be evicted from the building. 22. The next ground for eviction is, whether the building requires immediate demolition and re-construction. 23. The Rent Controller held that the claim of the landlord under Sec.14(1)(b) of the Act is bona fide and he has proved all the statutory conditions. 22. The next ground for eviction is, whether the building requires immediate demolition and re-construction. 23. The Rent Controller held that the claim of the landlord under Sec.14(1)(b) of the Act is bona fide and he has proved all the statutory conditions. It is proved by Exs.C-1 and C-2 and also the evidence of C.W.1 that the building is more than hundred years old and is not in a good condition. The law is well settled that to claim eviction on the ground of demolition and re-construction, the building need not be dangerous for human habitation. Even though the building may not be dangerous and that it may not collapse in the near future, that by itself is not a ground to hold that the building is in a good condition and does not require immediate demolition and re-construction. In this case, the Commissioner, who visited the property has reported that the building is very old and is not having the modern amenities and in many portions of the walls, cracks have formed. The materials used for the construction of the building are also not good, etc. That part, of the finding of the Rent Controller has not been disturbed by the Appellate Authority. The Appellate Authority only held that since the landlord also occupied the remaining portion of the building after purchase, that will show that the building is in a good condition. The said reasoning of the appellate authority has no legal basis. Merely because the landlord occupies an old building, that does not follow that the building is in a good condition. By occupying the building, the landlord only prevents the building to collapse immediately. The law also does not prevent that the landlord should not occupy a building if it remains vacant. Till the landlord gets possession of the building, merely because it is put to use, it cannot be said that the claim of the land is not bona fide. The landlord has obtained the necessary plan and licence and the finding of the Rent Controller that the landlord has got the financial capacity etc., are not disturbed by the Appellate Authority. A statutory undertaking is also given by the landlord. When all the conditions are satisfied, a presumption arises that the claim of the landlord is bona fide. The landlord has obtained the necessary plan and licence and the finding of the Rent Controller that the landlord has got the financial capacity etc., are not disturbed by the Appellate Authority. A statutory undertaking is also given by the landlord. When all the conditions are satisfied, a presumption arises that the claim of the landlord is bona fide. It is for the tenant to rebut the presumption by other evidence and in this case, we have the only interested testimony of tenant as R.W.1. The Rent Controller has believed the case of the landlord and held that the landlord is entitled to get eviction under Sec.14(1)(b) also. Various reasons given by the Rent Controller have not been set aside by the Appellate Authority or found to be faulty as I said earlier. The only reason against the finding of the Rent Controller is that the landlord occupied the residential portion of the building after he purchased the property. If that reason is not valid, it follows that the landlord will be entitled to claim eviction on the ground of demolition and re-construction also. 24. In the result, the judgment in R.C.A.No.5 of 1994 on the file of the Rent Control Appellate Authority, Thanjavur is set aside and the order of the Rent Controller, Thanjavur in R.C.O.P.No.9 of 1987 is restored. There will be an order of eviction against the tenant on the grounds that the tenant has committed wilful default in payment of rent and also on the ground that the building requires immediate demolition and re-construction. The petitioner is also entitled to costs in this case. 25. The C.R.P. is allowed as above.