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Madras High Court · body

2000 DIGILAW 4 (MAD)

K. L. Suganthi v. T. Sambalingam

2000-01-03

S.S.SUBRAMANI

body2000
Judgment : Landlady in R.C.O.P.No.44 of 1992 on the file of Rent Controller/Additional District Munsif, Salem is the revision petitioner herein. 2. Landlady, claimed eviction on the ground that tenant has committed wilful default in paying rent and the building is required for her own occupation, i.e., for the occupation of her husband and sons for their business. Scheduled building is admittedly a non-residential building. 3. Material averments necessary for the disposal of the revision petition could be summarised thus: Monthly rent payable by tenant is Rs.450 and it is admitted by both sides that the tenancy is according to English calendar month. According to petitioner, tenant refused to pay rent from 12. 1991 onwards and the refusal amounts to supine indifference and callousness. Eviction petition was filed on 14. 1992 and the rent arrears are from December, 1991 till March, 1992. Petitioner sent a notice on 23. 1992 for which a reply was sent on 4. 1992. Along with the reply a pay order for Rs.1,800 was also sent representing four months rent. The same was returned to tenant. In the reply notice, tenant has said that the rent for the month of December, 1991, January and February 1992, rents have been paid to petitioners son K.L.Rameshkumar who promised to get receipt. He did not obtain receipt and therefore to avoid any misunderstanding tenant sent Rs.1,800 to the counsel. When the same was returned, tenant again took a demand draft for Rs.1,800 and the same was sent to landlady directly. Same was accepted by landlady on 4. 1992. According to landlady, she has received the same without prejudice to her right to initiate eviction proceedings. It is also averred that her husband and sons are doing business in manufacturing and sale of Silver jewellery and for the said purpose they had to travel throughout India and they are getting orders from various places. In view of interruption by the customs authorities in their business, they have decided to stop touring business and confine their activities at Salem for which they need scheduled building for their occupation. According to landlady, husband and sons are not owning any non-residential place and her claim is bona fide. 4. Serious objection was raised by tenant. In view of interruption by the customs authorities in their business, they have decided to stop touring business and confine their activities at Salem for which they need scheduled building for their occupation. According to landlady, husband and sons are not owning any non-residential place and her claim is bona fide. 4. Serious objection was raised by tenant. According to him, he cannot be termed as wilful defaulter and petitioner has no cause of action to get eviction when the entire amount has been paid and accepted by landlady before filing eviction petition. The contention is that landlady has not cause of action to evict tenant on the ground of default in payment of rent. In regard to the claim of eviction for own occupation, a contention was taken that landlady is in possession of other buildings and they are owning other properties at Sevapet which are not residential and the same have been leased out to third parties. Tenant contended that the claim of landlady is not bona fide and wanted the petition to be dismissed. 5. On the above pleadings, Rent Controller took oral and documentary evidence and as per order dated 8. 1995 allowed the application on both the grounds. For the said purpose Rent Controller relied on the oral evidence of P.Ws.1 and 2, who are father and son and also Exs.A-1 to A-16. Tenant has adduced only oral evidence and he got examined himself as D.W.1. 6. Eviction was ordered and tenant was ordered to surrender vacant possession within three months time. Aggrieved by the said order tenant filed R.C.A.No.17 of 1995 on the file of Rent Control Appellate Authority, Salem. Appellate Authority held that when landlord received the entire rent before eviction petition was filed, there is no cause of action. Consequently, landlady cannot claim eviction on the ground of wilful default. 7. With regard to the claim for eviction on the ground of bona fide own use, appellate authority held that main reason for filing eviction petition was that landladys husband and sons are being harassed by police from North India since they are causing obstruction in the manufacture and sale of silver jewels. The F.I.R. written in Hindi was refused to be relied on by appellate authority on the ground that true translation was not placed before it. The F.I.R. written in Hindi was refused to be relied on by appellate authority on the ground that true translation was not placed before it. Appellate authority also held that there is no clear evidence to show that husband and sons are not in possession of any non-residential premises. Order of eviction was set aside by dismissing the same. Appeal was allowed. 8. It is against the said judgment tenant has filed this revision petition under Sec.25 of the Tamil Nadu Buildings (Lease and Rent Control) Act. 9. I heard the counsel on both sides. 10. I will first consider the question whether tenant is liable to be evicted on the ground of wilful default. 11. Default in payment of rent is from the month of December, 1991 till 33. 1992, at the rate of Rs.450 per month. Before eviction petition was filed landlady issued notice on 20.1.1992 informing rent arrears which was suitably replied by tenant on 4. 1992. Along with reply tenant also sent a pay order for Rs.1,800 to the counsel for landlady. That pay order includes the entire arrears of rent from December, 1991 to March, 1992, both months inclusive. The same was refused to be accepted by counsel and immediately thereafter, tenant took another draft for Rs.1,800 and the same was received by landlord herself on 4. 1992. Eviction petition was filed only on 14. 1992 alleging that tenant has defaulted in payment of rent, for those four months. 12. The question to be decided is when landlady has received the entire amount towards arrears of rent before eviction petition could be filed, can she maintain the petition or whether she has got cause of action to claim eviction on the ground of default in payment of rent. 13. After hearing both sides. I find that the finding by appellate authority in that regard is only to be confirmed. 14. In Sundaram Pillai v. Pattabiraman , (1985)1 S.C.C. 591 , their Lordships have considered what is meant by ‘wilful default’ and what are the consequences. In para.26 of the judgment it is held thus: “Thus, a consensus of the meaning of the words “wilful default” appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. In para.26 of the judgment it is held thus: “Thus, a consensus of the meaning of the words “wilful default” appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to above.” [Italicss supplied] If the entire rent has been paid before eviction petition itself is filed, can the landlord claim eviction was also considered by Supreme Court in para.67 of the judgment, which reads thus: “In Civil Appeal No.1178 of 1984, it would appear that though the tenant had committed a default but he had paid the entire rent well before the filing of the suit by the landlord. In fact, the suit for eviction was filed by the landlord not on the ground of pending arrears but to penalise the tenant for having defaulted in the past. Such a suit cannot be entertained because once the entire dues are paid to the landlord the cause of action for filing of a suit completely vanishes. Hence, the suit arising out of Civil Appeal No.1178 of 1984 must be dismissed as being not maintainable and the order of ejectment passed by the High Court is hereby set aside.” [Italics supplied] 15. Similar question came for consideration before the Honourable Supreme Court in the decision reported in K.A.Ramesh v. Susheela Bai K.A.Ramesh v. Susheela Bai K.A.Ramesh v. Susheela Bai , (1983)3 S.C.C. 58, a case under Andhra Pradesh Rent Control Act. In that case, tenant sent a telegram to the landlord asking for receipts for the rent alleged to have been paid by him. The same was replied by landlord contending that no rent was paid and also informing the arrears of rent. Tenant immediately sent a bank draft for the entire amount claimed by landlord which was accepted by landlord. Before encashing the draft eviction petition was filed. Draft was encashed on the next day of filing eviction petition. The same was replied by landlord contending that no rent was paid and also informing the arrears of rent. Tenant immediately sent a bank draft for the entire amount claimed by landlord which was accepted by landlord. Before encashing the draft eviction petition was filed. Draft was encashed on the next day of filing eviction petition. While considering the question whether tenant is liable to be evicted for wilful default, in para.5 of the judgment it is held thus: “It is obvious that if the evidence led before the controller shows that the tenant had not committed wilful default in payment of rent during the relevant time for which grievance is made in the eviction petition moved by the landlord, then despite what is stated in Sec.11 a reasonable time has to be given to the tenant to pay up the amount. On the facts of the present case, we fail to appreciate how it could be said that the said proviso was not attracted. It has to be seen that even months before the filing of the eviction petition the tenants had made a grievance by sending a telegram to the respondents on 112. 1988 that though the rent was paid for those months receipts were not issued. Even that part, by sending a bank draft on 2. 1989 when there was no litigation between the parties, full payment of arrears was tendered. That was accepted and realised pending the eviction proceedings. This clearly shows that there was no default at all much less wilful default on the part of the tenants in paying the rent for the months from July, 1988 to December, 1988. Consequently, the eviction proceedings were not required to be proceeded any further as the aforesaid proviso shows that even if the rent was not paid, there was a locus penitentiae with the appellant tenants to get a reasonable time not exceeding fifteen days for paying up the arrears by showing that default was not wilful and if during the time granted by the court the default was made good, the application for possession, in that eventuality has to be rejected. In the present case as the bank draft dated 2. 1989 for the entire arrears sent prior to the filing of the proceedings. In the present case as the bank draft dated 2. 1989 for the entire arrears sent prior to the filing of the proceedings. was already got encashed by the respondent-landlords, the proviso got clearly complied with and there remained no occasion for the controller to again ask the appellants to pay the very same amount twice over. Therefore, the application was required to be summarily rejected. However, it was proceeded further and resulted in eviction order which was challenged in appeal unsuccessfully and further before the High Court in revision, that too unsuccessfully and that is how the appellants are before us.” 16. In view of these decisions declared by the Honourable Supreme Court, I do not think that the case of landlord that tenant is liable to be evicted on the ground of wilful default can be accepted. Finding of the appellate authority is therefore correct. 17. But, with regard to the claim of eviction on the ground of bona fide own occupation, I find that the order of the appellate authority require interference. Rent Controller found that the claim of the landlady is bona fide. It has further found that her husband and sons are doing business of manufacturing and selling of silver ornaments and they used to tour throughout India, with finished and unfinished goods. The allegation of petitioner is that due to interruption by the police authorities that the husband and sons are not paying customs duty, various proceedings are being initiated against them and they lost their mental peace. All of them now decided to settle down at Salem for the purpose of doing business. 18. Rent Controller accepted the case of landlady and ordered eviction. Rent Controller further found that neither husband nor sons have non-residential building of their own and tenant also failed to prove that husband and sons are in possession of another non-residential building of their own. It found that husband and sons are owning residential premises, and that will not bar them from claiming eviction of a non-residential building. The said reasoning of the Rent Controller was not accepted by the appellate authority only for the reason that landlady has not proved by cogent evidence that her husband and sons are not in possession of any non-residential premises. The said reasoning of the Rent Controller was not accepted by the appellate authority only for the reason that landlady has not proved by cogent evidence that her husband and sons are not in possession of any non-residential premises. Appellate Authority also relied on certain exhibits filed by landlady herself from which it could be seen that they have registered with authorities to do business at D.65, H.7, Aachi Ramasamy Ayyar Street, Sevaipet, Salem. The said finding of appellate authority is challenged in this revision petition. 19. Learned counsel for petitioner submitted that along with eviction petition itself they have furnished English translation of Ex.A-2 F.I.R. and if appellate authority has not seen the translation, he could have called for the petitioners to produce another copy of translation. According to landladys counsel, her claim has been denied mainly for the reason that English translation is not before the court. 20. After hearing both sides I feel that the submission of counsel for petitioner is only to be accepted. Counsel submitted that translation was submitted at the time when eviction petition itself was filed. He also contended that no objection was raised when F.I.R. was marked through P.W.1. It is further argued that even if F.I.R. is not proved in the case, there are other evidence to show that husband and sons are in urgent need of non-residential build in for their business. 21. According to landlady D.No.H7, Aachi Ramasamy Ayyar Street, Sevaipet is a residential building and her husband and sons have obtained registration certificates from sales tax and other authorities only in that address. Counsel brought to my notice address of petitioner, wherein it is said that she is residing in D.No.65 H.7, Aachi Ramasamy Ayyar Street, Sevaipet, The fact that landlady is residing in that address is not denied. 22. Exs.A-3 and A-4 will substantive the above contention. It could be seen from Exs.A-3 and A-4 that husband and sons registered their names as Manufacturers and Dealers in silver ornaments at D.No.65 H.7, Aachi Ramasamy Ayyar Street, Sevaipet, Salem. If it is a residential building, merely because husband and son got registered their names, it cannot be said that the building is fit for doing business. It could be seen from Exs.A-3 and A-4 that husband and sons registered their names as Manufacturers and Dealers in silver ornaments at D.No.65 H.7, Aachi Ramasamy Ayyar Street, Sevaipet, Salem. If it is a residential building, merely because husband and son got registered their names, it cannot be said that the building is fit for doing business. It is the definite case of landlady that till eviction petition was filed, husband and sons were touring throughout India and were getting orders from various places and thereafter sending the finished goods to the customers. It is only for the said purpose, they have registered their name with sales tax authorities. It is also clear from the said exhibits that they are ‘carrying on business’ though not in a specific hope. 23. Husband and sons want to confine their activities at Salem. Appellate authority held that P.W.1 have not spoken about the details of business and therefore the claim is not bona fide. Petitioner is only a housewife who does not know the intricacies of business though the business is being done by her husband and sons. Appellate authority also found that Ex.A-2 was not properly proved. Appellate Authority also held that since P.W.1 has no knowledge whether they are doing proprietary business or partnership business. the claim cannot be bona fide. Respondent has no case that D.No.65, H.7 Aachi Ramasamy Ayyar Street, Sevaipet is not residential premises of landlady. In her evidence in chief-examination she has said thus: When she was cross-examined, she further said thus, Why I have extracted this passage from the evidence of landlady is, appellate authority have extracted only one sentence from the above portion. Appellate authority has gave important to the sentence that: Appellate authority has held that there is no proper pleading and evidence that they are not owning any non-residential building for carrying on business. If only appellate authority read the earlier sentence in the paragraph, he would not have stated so. In the previous sentence, she specifically stated that the building in Kannara Theru, is only residential building and the same is rented out though she said that she does not know the name of the tenant. 24. As against the said evidence, tenant in his chief-examination nowhere stated that landlady, her husband and son are possessing other non-residential building at Sevaipet. 24. As against the said evidence, tenant in his chief-examination nowhere stated that landlady, her husband and son are possessing other non-residential building at Sevaipet. In cross-examination he has said thus: He further added: When landlady has specifically stated that they do not own any non-residential building, appellate authority was not justified in holding that this fact was not proved. Landlady can only say that they are not owning any property. By stating that they are not owning, the burden is discharged. It is for tenant to substantiate that the said statement of landlady is not correct. Finding of the appellate authority that there is no evidence to show that her husband and son are carrying on business in manufacturing and sale of silver jewellery and there is also no evidence to show that they do not own and possess any non-residential building is contrary to evidence. 25. Regarding the business even tenant has no case that they are not carrying on any business. In fact Exs.A-3 and A-4 show that they are assessees under Sales Tax Act. Rent Controller after appreciation of evidence rightly held that the husband and son of landlady are doing business and they have no building of their own to carry on the same. Appellate authoritys decision is based only on surmises, and the same is liable to be interfered with under Sec.25 of the Act. 26. Appellate authority has further relied on one sentence from the evidence of P.W.1, while she was re-examined. She stated thus: The statement only means that they have no show room or actual sale do not take place in the place where they reside. The definite case of landlord is that touring business which her husband and son are undertaking is to be put an end to and they want to settle down at Salem. Appellate Authority therefore disbelieved the evidence of Exs.A-3 and A-4. When they have registered their name as manufacturers and dealers, they will have to register their names in some place and their dealing is with some customs in North India. They are getting orders from other people and on that basis they manufacture silver jewels. Rent Control Act does not say that carrying on business must be confined only to business run in Tamil Nadu. The finding of the appellate authority in that regard is also based on misunderstanding of evidence. 27. They are getting orders from other people and on that basis they manufacture silver jewels. Rent Control Act does not say that carrying on business must be confined only to business run in Tamil Nadu. The finding of the appellate authority in that regard is also based on misunderstanding of evidence. 27. Appellate authority also should not have discarded Ex.A-2 merely because translation is not produced before it. In fact, counsel for petitioner asserted true translation was produced before Rent Controller and only on that basis it was acted upon. Appellate authority at least should have asked petitioner to produce translation if in fact the same was not in the file. That opportunity was also not given to petitioner. The procedure adopted by appellate authority is not proper in rejecting Ex.A-2. Ex.A-2 also proves that the claim of the landlady is true. 28. I have gone through the entire evidence of both P.W.1 and D.W.1 and I find that the decision of appellate authority is not in accordance with law and therefore ground is made out for interference under Sec.25 of the Rent Control Act. Once it is found that it is not in accordance with law, it follows that appellate authority has not taken into consideration the weight of evidence and has derived certain conclusions from established facts as betray of lack of reason and/or objectivity and such conclusion has led to miscarriage of justice. If it results in miscarriage of justice, the said judgment suffers from material irregularity and illegal. What is meant by judgment ‘not in accordance with law’ was considered by the Honourable supreme Court in the decision reported in Shiv Sarup Gupta v. Dr.Mahesh Chand Gupta Shiv Sarup Gupta v. Dr.Mahesh Chand Gupta Shiv Sarup Gupta v. Dr.Mahesh Chand Gupta , (1996)6 S.C.C. 222, wherein in para.11 it is held thus: “The phraseology of the provision as reproduced herein before provides an interesting reading placed in justaposition with the phraseology employed by the legislature in drafting Sec.15 of the Code of Civil Procedure. Under the latter provision the exercise of revisional jurisdiction of the High Court is circumscribed by the subordinate court having committed one of the three erros, namely, (i) having exercised jurisdiction not vested in it by law, or (ii) having failed to exercise a jurisdiction so vested, or (iii) having exercised its jurisdiction with illegality or material irregularity. Under the latter provision the exercise of revisional jurisdiction of the High Court is circumscribed by the subordinate court having committed one of the three erros, namely, (i) having exercised jurisdiction not vested in it by law, or (ii) having failed to exercise a jurisdiction so vested, or (iii) having exercised its jurisdiction with illegality or material irregularity. Under the proviso to Sub-sec.(8) of Sec.25-B the expression governing the exercise of revisional jurisdiction by the High court is “for the purpose of satisfying if an order made by the controller is according to law”. The revisional jurisdiction exercisable by the High Court under Sec.25-B (8) is not so limited as is under Sec.115, C.P.C. nor so wide as that of an appellate court. The High Court cannot enter into appreciation or reappreciation 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, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available. Ignoring the weight of evidence, proceeding on a wrong premise of law or deriving such conclusion from the established facts as betray a lack of reason and/or objectivity would render the finding of the controller “not according to law” calling for an interference under the proviso to Sub-sec.(8) of Sec.25-B of the Act. A judgment leading to a miscarriage of justice is not a judgment according to law. (See: Sarla Ahuja v. United India Insurance Co. Ltd. and Ram Narain Arora v. Asha Rani)”. 29. I have considered the evidence only for the purpose of verifying whether such conclusion could be arrived by appellate authority is in accordance with law and not for the purpose of reappreciating the same. 30. In the result, I set aside the judgment of the appellate authority and allow this revision petition. I hold that petitioner is entitled to evict respondent herein on the ground that she need the building for her own occupation i.e., for the occupation of her husband and sons for doing business. 30. In the result, I set aside the judgment of the appellate authority and allow this revision petition. I hold that petitioner is entitled to evict respondent herein on the ground that she need the building for her own occupation i.e., for the occupation of her husband and sons for doing business. It is further held that husband and son are not owning or in possession of any non-residential building of their own and they are carrying on business of manufacturing and selling silver jewels and the scheduled building is required for their bona fide occupation. The claim of eviction on the ground that tenant has defaulted in payment of rent is negatived. 31. The revision petition is allowed as above, however without any order as to costs. 32. After pronouncing order, learned counsel for respondent sought time to surrender vacant possession. Counsel for petitioner was also heard. 33. Taking into consideration the facts and circumstances of the case, I grant three months time to respondent to surrender vacant possession on his filing undertaking before this Court within ten days from today that he will unconditionally vacate the premises on or before expiry of three months and also will pay the arrears of rent as on that date, if any. If any of the conditions are violated, landlord is entitled to take possession as if no time is granted.