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2000 DIGILAW 630 (MAD)

Lakshmi & Others v. K. Janardhan

2000-06-30

P.THANGAVEL

body2000
Judgment : 1. This civil revision Petition has been filed by the revision petitioners against the judgment and decree dated 24. 2000 and made in R.C.A.No. 285 of 1999 on the file of the VIIIth Judge, Court of Small Causes, Chennai, confirming the order and decretal order in R.C.O.P.No.1189 of 1996 on the file of Xth Judge, Court of Small Causes, Chennai. .2. The facts that are necessary for disposal of this civil revision petition are as follows: The respondent in this civil revision petition was the respondent in the appeal in R.C.A.No.285 of 1999 and he is the landlord of the site and superstructure described in the rent control petition. Sampath Mudaliar, husband of the first revision petitioner and father of second and third revision petitioners in this revision petition was the original tenant of the demised premises inclusive of superstructure on a monthly rent of Rs.50. The original owner Chandra Bai and others sold the demised property inclusive of the superstructure to the respondent herein by means of a registered sale deed on 27. 1992 and put him in possession of the said property. The original owners and the respondent herein informed Sampath Mudaliar about the purchase of the said property and asked him to attorn the tenancy in favour of the respondent herein. Letter dated 211. 1992 was also sent to Sampath Mudaliar about the purchase of the property by the respondent herein and for payment of rent by attorning the tenancy in favour of the respondent herein. Similar letter was sent by Chandra Bai and others to Sampath Mudaliar. There was no reply and no payment of rent to the respondent herein by Sampath Mudaliar and after his death on 112. 1994 by the revision petitioners herein. The respondent herein issued a notice dated 13. 1996 through his counsel demanding arrears of rent and seeking eviction on the ground of wilful default. The revision petitioners, after receiving the said notice also has not sent any reply or paid arrears of rent. It is under the said circumstances, the respondent herein as petitioner has filed the petition for eviction on the ground of wilful default. 3. 1996 through his counsel demanding arrears of rent and seeking eviction on the ground of wilful default. The revision petitioners, after receiving the said notice also has not sent any reply or paid arrears of rent. It is under the said circumstances, the respondent herein as petitioner has filed the petition for eviction on the ground of wilful default. 3. Therevision petitioners as respondents resisted the claim made by the landlord the respondent herein on the following grounds: The original owner Chandra Bai has filed a petition in R.C.O.P.No.2513 of 1990 for eviction on the ground of wilful default in payment of rent against Sampath Mudaliar and the said petition was dismissed on 27. 1992. Sampath Mudaliar has also filed a suit in O.S.No.5796 of 1991 on the file of the City Civil Court, Chennai for specific performance with regard to the demised property based on an agreement executed by Chandra Bai in favour of Sampath Mudaliar and the same is pending. The superstructure put up by Chandra Bai got ruined due to improper maintenance of the premises and therefore the revision petitioners herein has put up superstructure at his own cost. Therefore, the revision petitioners are the owners of the superstructure standing in the demised property. The revision petitioners are not liable to pay rent to the respondent herein as there is no relationship of landlord and tenant. It is under the said circumstances the revision petitioners herein sought for the dismissal of the petition filed for eviction. 4. After considering the material evidences placed before court, the Rent Controller has found that there is relationship of landlord and tenant between the revision petitioners and the respondent herein, that the revision petitioners herein had failed to establish that they are the owners of the superstructure standing in the demised property, that the revision petitioners have committed wilful default in payment of rent and therefore, ordered for eviction of the revision petitioners from the demised premises. Aggrieved by the order dated 212. 1988 and made in R.C.O.P.No.1189 of 1996 on the file of the Xth Judge, Court of Small Causes, Chennai, the respondents tenants as appellants preferred an appeal in R.C.A.No.285 of 1999 on the file of VIIIth Judge, Court of Small Causes, Chennai. Aggrieved by the order dated 212. 1988 and made in R.C.O.P.No.1189 of 1996 on the file of the Xth Judge, Court of Small Causes, Chennai, the respondents tenants as appellants preferred an appeal in R.C.A.No.285 of 1999 on the file of VIIIth Judge, Court of Small Causes, Chennai. After considering the material evidence placed before court and in the light of the submission made by both sides, the appellate Authority confirmed the order and decretal order passed by the Rent Controller and dismissed the rent control appeal. Aggrieved by the judgment and decree dated 24. 2000 and made in R.C.A.No.285 of 1999 on the file of the VIIIth Judge, Court of Small Causes, Chennai, the appellants as revision petitioners have come forward with this civil revision petition. .5. The fact remains that the site and superstructure standing in the property described in the rent control petition was originally owned by one Chandra Bai and others and the said property was leased out to one Sampath Mudaliar on a monthly rent of Rs.50. Sampath Mudaliar along with the revision petitioners who are his heirs were residing in the demised property by paying rent, As there was default in payment of rent by Sampath Mudaliar, which was termed to be a wilful default according to the landlady, a petition in R.C.O.P.No.2613 of 1990 was filed by the landlady against Sampath Mudaliar for eviction and the said petition was dismissed on 27. 1992 by the learned Rent Controller on the ground that the tenant late Sampath Mudaliar have paid more advance and the said advance can be adjusted towards rent payable by the tenant to the landlady after retaining advance as mentioned in the statute. It is seen from the records available before court and also from the submission made by both sides, Sampath Mudaliar had filed a suit in O.S.No.5796 of 1991 on the file of City Civil Court, Chennai for specific performance on the basis of the alleged agreement said to have been executed by Chandra Bai in favour of Sampath Mudaliar and the said suit is pending from 1991 onwards. The agreement is not before court even though copy of the plaint was produced by the respondent herein for the Rent Controller. The agreement is not before court even though copy of the plaint was produced by the respondent herein for the Rent Controller. The learned counsel for the respondent herein submits that in the suit filed for specific performance as mentioned above, Sampath Mudaliar, based on the agreement alleged to have been executed by Chandra Bai, claimed specific performance for the site and superstructure as seen from the property described in the plaint schedule and that would disclose that there can be no right for the superstructure to Sampath Mudaliar and to the revision petitioners herein through Sampath Mudaliar. The revision petitioners, who claims to be the owner of the superstructure, would state that the superstructure in the demised property was constructed by Sampath Mudaliar after the superstructure was washed away by flood. But, in the counter filed in the rent control proceedings, the revision petitioners as respondents have specifically pleaded that the superstructure was ruined for want of proper maintenance on the part of the landlady/landlord. Inconsistent stand has been taken as to how the superstructure was either ruined or washed away by flood in November, 1991. There is no evidence on the side of the revision petitioners with regard to washing away of superstructure by flood in November, 1991 or for ruining of the superstructure for want of proper maintenance on the part of the landlady/landlord. There is also no documentary evidence for putting up of superstructure with the materials purchased and for engaging coolies for construction of superstructure on the side of the revision petitioners. Delhi Batcha, who was examined as R.W.2 before the Rent Controller, would admit that he does not know as to whom the superstructure belonged to. Therefore, the evidence of R.W.2 may not be of much help to establish that the revision petitioners or late Sampath Mudaliar had title to the superstructure. In view of the above said circumstances the contention put forward by the learned counsel for the revision petitioners that the superstructure belongs only to the revision petitioners, cannot be sustained. .6. The revision petitioners herein had taken a stand that there was no relationship of landlord and tenants between the respondent and the revision petitioners herein. The fact remains that the site and the superstructure belonged to Chandra Bai originally and Sampath Mudaliar became the tenant of the said premises under Chandra Bai. .6. The revision petitioners herein had taken a stand that there was no relationship of landlord and tenants between the respondent and the revision petitioners herein. The fact remains that the site and the superstructure belonged to Chandra Bai originally and Sampath Mudaliar became the tenant of the said premises under Chandra Bai. The abovesaid Chandra Bai has sold the site and superstructure standing thereon to the respondent herein on 27. 1992 by means of a registered Sale Deed and put him in possession (constructive possession) of the said property. According to the respondent herein the fact of purchase of the said property on 27. 1992 was informed by him and Chandra Bai in person and also by means of letter dated 211. 1992 as in Exs.P-7 and P-8. The production of Ex.P-3 certificate issued by the postal service would disclose that the letters sent by the respondent herein by registered post was served on Sampath Mudaliar herein. No reply was sent to the abovesaid letter by Sampath Mudaliar as seen from the records. It is also evident from the records that the respondent herein has sent again a notice through the counsel on 13. 1996 stating that Sampath Mudaliar and after him the revision petitioners have committed default in payment of rent from December, 1992, and that therefore they should surrender possession of demised premises to the respondent herein after paying the arrears of rent. Ex.P-12 is the acknowledgement of the receipt of the said letter by the revision petitioners. No reply was sent for this notice also. The revision petitioners have not produced any documentary evidence for payment of rent to the demised premises to the respondent herein from December, 1992. On the other hand they have taken a stand in the counter filed in the Rent Control Proceedings that they have not paid the rent to the respondent herein, since there is no relationship of landlord and tenant between them. This stand taken that the revision petitioners are owners of superstructure has already been negativated for the reasons stated supra, Therefore, the non-payment of rent on the above said ground cannot be a valid ground. 7. This stand taken that the revision petitioners are owners of superstructure has already been negativated for the reasons stated supra, Therefore, the non-payment of rent on the above said ground cannot be a valid ground. 7. The learnedcounsel for the respondent would contend that the totality of the circumstances namely issue of notice to Sampath Mudaliar by the respondent herein and the landlady and also the filing of the suit in O.S.No.5796 of 1991 may be taken into consideration in arriving as to whether the revision petitioners have committed wilful default in payment of rent. In support of that stand the learned counsel for the revision petitioners relied on the decision reported in S.C.Basappa v. Jumna Doss Manickchand S.C.Basappa v. Jumna Doss Manickchand S.C.Basappa v. Jumna Doss Manickchand , (1997)1 MLJ. 317 and Lakshmi Bai v. Geeta Bai Natwarlal and another Lakshmi Bai v. Geeta Bai Natwarlal and another Lakshmi Bai v. Geeta Bai Natwarlal and another , 1987 T.L.N.J. 125. One of the cases referred to above relates to sending of rent once in two months in routine and another with regard to conduct of tenant in committing default in payment of rent. Both the cases cited above will have no application to the facts and circumstances of this case and therefore they may not extend any help to the revision petitioners to establish their case. 8. Sec.108(e) of Transfer of Property Act, 1882 would disclose that if by fire, tempest or flood or violence of any army or of a mob or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lease be void. In this case either Sampath Mudaliar or the revision petitioners had opted to avoid the lease as contemplated under Sec.108(e) of the Transfer of Property Act, 1982, even if there was destruction to the superstructure due to flood or otherwise as urged by the learned counsel appearing for the revision petitioners. It has been held in T.P.Ratinam v. Pandurangan and others T.P.Ratinam v. Pandurangan and others T.P.Ratinam v. Pandurangan and others, (1994)1 MLJ. It has been held in T.P.Ratinam v. Pandurangan and others T.P.Ratinam v. Pandurangan and others T.P.Ratinam v. Pandurangan and others, (1994)1 MLJ. 512 : (1994)2 L.W. 337 , that the character of the tenants does not change even if the superstructure is put up by them from the subsidies received from the Government after washing away of the superstructure under occupation of the tenants. In Ovungal v. Peter , A.I.R. 1971 Ker. 55, it has been held that if the land and the superstructure standing thereon was leased out to the tenant, the relationship of landlord and tenant will continue even after destruction of the superstructure and the tenant is bound to pay rent under the lease unless tenant exercised his option to give up tenancy under Sec.108(e) of the Transfer of Property Act, 1982. The abovesaid principle has been followed in the decision of this Court cited in Kodi Idi Kondaiyan Chettiar v. P.Sivasamy Kodi Idi Kondaiyan Chettiar v. P.Sivasamy Kodi Idi Kondaiyan Chettiar v. P.Sivasamy , (1998)3 MLJ. 754 : (1998)2 C.T.C. 641 . 9. The learned counsel for the respondent herein brought to the notice of this Court the decision reported in Padmawathi v. Narayanan, (1999) 1 L.W. 336 and would contend that mere filing of a suit for specific performance by Sampath Mudaliar and continuing the same by his heirs after his death will not in any way help to deny the relationship of landlord and tenant and to pay the rent to the respondent herein. In the case cited above it has been held that even assuming that the tenant is entitled to claim benefits under Sec.53(A) of the Transfer of Property Act, the agreement should specifically and expressly state the waiver of rent and that if there is no such waiver of rent, the stand taken by the tenant that he is not liable to pay the rent cannot be sustained. The learned counsel appearing for the revision petitioners who have not produced the copy of the agreement before the Courts below would concede that there is no waivers clause with regard to payment of rent in the agreement on which suit for specific performance was filed in O.S.No.5796 of 1991. If that be so, the revision petitioners cannot avoid paying rent for the demised premises. If that be so, the revision petitioners cannot avoid paying rent for the demised premises. Even if the filing of the original suit for specific performance referred to above is taken into consideration in the circumstances stated supra, it is clear that the denial of relationship of landlord and tenants between the respondent and revision petitioners herein by the revision petitioners cannot be sustained. It is a case for eviction of the revision petitioners from the demised premises. That apart, admittedly there is no payment of rent for the period from December, 1992. The non-payment of rent for such lengthy period after issue of notice and more particularly after receiving the notice before the filing of Ex.P-11, dated 13. 1996 will certainly amount to supine indifference in the part of the revision petitioners and therefore non-payment of rent will amount to wilful default in payment of rent. The courts below have correctly come to the conclusion that the revision petitioners are liable to be evicted from the premises on the grounds mentioned above. There is no reason to interfere with such concurrent findings of the courts below. Accordingly, the revision petition is dismissed but without costs. 10. The learned counsel for the revision petitioners submits that the revision petitioners may be given six months time for vacating the premises. The learned counsel for the respondent submits that reasonable time may be given for vacating the premises and for that affidavit of undertaking may be ordered to by the revision petitioners herein. Taking into consideration of the fact that the revision petitioners are having cows to maintain, six months time is granted for vacating the premises with effect from 7. 2000 on condition that the revision petitioners should file an affidavit within 15 days from this day undertaking to pay the rent regularly for the said period, undertaking to vacate the premises by 312. 2000 and also undertaking not to let out or induct any other person in the said premises during the said period. The civil revision petition is dismissed. Consequently, the C.M.P.No.8685 of 2000 is also dismissed. No costs.