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2001 DIGILAW 1666 (MAD)

P. Srilakshmi v. P. S. Sivaramakrishnan

2001-12-20

PRABHA SRIDEVAN

body2001
ORDER: The landlord's petition for eviction on the ground of wilful default was dismissed by the Appellate Authority on the ground that the tenant was in possession under an agreement of sale and therefore, the liability to pay rent ceased to exist. 2. The main question that was argued by both the counsel was regarding the effect the agreements of sale dated 2.9.1983. Under this agreement, the petition premises was agreed to be sold to the respondent/ tenant for a consideration of a sum of Rs.58,000 The advance that the respondent had given at the inception of tenancy was agreed to be treated as advance payment for the sale. The other terms and conditions are not relevant. There is no clear and categoric agreement between the parties that after the date of agreement the possession of the respondent shall be in part performance of the agreement. The petitioner/ landlord filed an application for eviction on the ground that the respondent had committed wilful default from April, 1984 to February, 1991. 3. The learned counsel for the petitioner Mr. Y.K. Rajagopal submitted that even after the agreement of Sale the respondent had paid rents till April, 1984. Therefore, the finding of the Appellate Authority that the respondent's possession was only as an agreement holder and not as a tenant is not correct. He know that he had to continue to pay rent but he had deliberately and wilfully stopped. He also submitted that the fact till date of the respondent had not filed the suit for specific performance of the agreement would only show that the agreement was given the go-by and the respondent was in possession as a tenant. He would also submit that the law is well-settled that liability to pay rent does not cease merely because an agreement of sale has been executed. He relied on the following decisions: (1) B.Kuppulal v. V.Sagunthala and another B.Kuppulal v. V.Sagunthala and another (1987)1 MLJ. 242 ; (2) Sardar Govindrao Mahadik v. Devi Sahai A.I.R. 1982 S.C. 989; (3) Sankaran Pillai v. V.P.Venuguduswami Sankaran Pillai v. V.P.Venuguduswami A.I.R. 1999 S.C. 3060. and (4) Padmavathy v. N.Narayanan Padmavathy v. N.Narayanan (1999)1 L.W. 336 . 4. The learned counsel for the respondent on the other hand would submit that the Appellate Authority had correctly found that the respondent was not a tenant and there was no reason to interfere with the same. and (4) Padmavathy v. N.Narayanan Padmavathy v. N.Narayanan (1999)1 L.W. 336 . 4. The learned counsel for the respondent on the other hand would submit that the Appellate Authority had correctly found that the respondent was not a tenant and there was no reason to interfere with the same. The learned counsel also pointed out that the case of the petitioner that even after 2.9.1983, the date of agreement, the tenant continued to pay rent is totally false since no document had been produced by the landlord to show such payment of rent. She also submitted that on 27.2.1991 it was the respondent who had issued the notice calling upon the petitioner to execute the agreement of sale. The petitioner had evaded performance giving false excuses and only thereafter the petitioner issued a legal notice on 20.3.1991 in which no reference is made to the notice issued by the respondent. According to the learned counsel if the petitioner's case was true then, at the earliest juncture the petitioner would have denied the liability to execute the agreement of sale. She also submitted that the respondent had paid a total sum of Rs.45,000 towards sale consideration leaving a balance of a sum of Rs.13,000 to be paid at the time of execution of sale deed. The learned counsel submitted that if the petitioner's case is true he would not have waited for seven long years to file the petition for wilful default. The learned counsel also submitted that the very fact that the real advance of a sum of Rs.2,000 was treated as advance of sale consideration would show that the character of possession had been changed from that of a tenant to that of an agreement holder. The learned counsel would rely on the following decisions: (1) John V. John v. Goolamally Estate John V. John v. Goolamally Estate 1989 T.L.N.J. 311; (2) Rajendra Nath Sarkar v. Gour Gopal Ghosh A.I.R. 1971 Cal. 163; (3) Sivaraj v. Esakkimuthu (1999)2 L.W. 478 ; (4) Nanasaaaheb Gujaba Bankar v. Appa Ganu Bankar A.I.R. 1957 Bom. 138; (5) M/s.Chordia Automobiles v. S.Moosa M/s.Chordia Automobiles v. S.Moosa (2000)2 MLJ. (S.C.) 108: A.I.R. 2000 S.C. 1880; (6) Chinna Thevar v. Gnanaprakasi Ammal (1978)2 MLJ. 533 ; (7) Thangavelu v. Ramdoss (1997)1 MLJ. 163; (3) Sivaraj v. Esakkimuthu (1999)2 L.W. 478 ; (4) Nanasaaaheb Gujaba Bankar v. Appa Ganu Bankar A.I.R. 1957 Bom. 138; (5) M/s.Chordia Automobiles v. S.Moosa M/s.Chordia Automobiles v. S.Moosa (2000)2 MLJ. (S.C.) 108: A.I.R. 2000 S.C. 1880; (6) Chinna Thevar v. Gnanaprakasi Ammal (1978)2 MLJ. 533 ; (7) Thangavelu v. Ramdoss (1997)1 MLJ. 246 ; (8) Abdul Alim v. Sheikh Jamal Uddin Ansari J.T. (1998)7 S.C. 192; (9) Kakapalli Raja Rama Gapala Rao v. Nagarajan Govinda Shararao 1989 All R.C.J. 432 and (10) R.Kanthimathi and another v. Mrs.Beatrie Xavier R.Kanthimathi and another v. Mrs.Beatrie Xavier (2000)2 L.W. 805; (11) S.Sundaram Pillai v. V.R.Pattibiraman S.Sundaram Pillai v. V.R.Pattibiraman (1985)1 S.C.C. 591 . 5. John V. John v. Goolamally Estate John V. John v. Goolamally Estate 1989 T.L.N.J. 311 was a case in which it was held that on entering into an agreement the status of the landlord and tenant gets altered to that of the vendor and purchaser. This was distinguished in 1996 T.L.N.J. 55 and in Padmavathy v. N. Narayanan Padmavathy v. N. Narayanan (1999)1 L.W. 336 where it was held that unless the agreement specifically and expressly states waiver of rent the tenant's liability to pay rent continues. 6. In Sankaran Pillai v. V.P. Venuguduswami Sankaran Pillai v. V.P. Venuguduswami A.I.R. 1999 S.C. 3060 the Supreme Court rejected the case of the tenant that because he had entered into an agreement of sale and paid considerable amount towards part performance, he was under the mistaken belief that he need not deposit arrears. Of course, that case arose out of an application under Sec.11(4). 7. In B. Kuppulal v. V.Sagunthala B. Kuppulal v. V. Sagunthala (1987)1 MLJ. 242 this Court held that a mere agreement of sale will not terminate the landlord- tenant relationship and the liability of the tenant to pay the rent continues. 8. Sivaraj v. Esakkimuthu (1999)2 L.W. 478 does not apply to the facts of this case. 9. The decision reported in Nanasaaaheb Gujaba Bankar v. Appa Ganu Bankar A.I.R. 1957 Bom. 138 as also Rajendra Nath Sarkar v. Gour Gopal Ghosh A.I.R. 1971 Cal. 163 are not relevant to the facts of this case. 10. In M/s.Chordia Automobiles v. S.Moosa M/s.Chordia Automobiles v. S.Moosa (2000)2 MLJ. 9. The decision reported in Nanasaaaheb Gujaba Bankar v. Appa Ganu Bankar A.I.R. 1957 Bom. 138 as also Rajendra Nath Sarkar v. Gour Gopal Ghosh A.I.R. 1971 Cal. 163 are not relevant to the facts of this case. 10. In M/s.Chordia Automobiles v. S.Moosa M/s.Chordia Automobiles v. S.Moosa (2000)2 MLJ. (S.C.) 108: A.I.R. 2000 S.C. 1880 the tenant was found not guilty of wilful default since the landlord did not wait for a period of two months of notice. So this also does not apply to the facts of this case. 11. In (1970)2 MLJ. 532 , it was held that the tenant is entitled to set up the agreement of sale as a shied in applications for eviction on the ground of wilful default. 12. The decision reported in Abdul Alim v. Sheikh Jamal Uddin Ansari J.T. (1998)7 S.C. 192 also would not apply because in that the status of the tenant got altered to that of a co-owner and on that ground eviction was not granted. 13. In R. Kanthimathi v. Mrs.Beatrie Xavier R.Kanthimathi v. Mrs. Beatrie Xavier (2000)2 L.W. 805 it was held that reassertion of possession in the agreement of sale would denote that possession was in pursuance of agreement of sale and therefore, the old relationship came to an end. 14. In the last cited decision the question that was raised was whether the relationship of landlord and tenant ceases and fresh rights and obligations flow under the agreement of sale and it was held that since there was a reassertion of possession in the agreement of sale it denotes that possession was given in pursuance of agreement of sale and that on acceptance of such change the relationship of landlord- tenant ceases. 15. In this case the crucial clause in the agreement for consideration is Clause 4(a), which says the purchaser has already paid an advance of a sum of Rs.2,000 at the time of taking possession at the shop No.3. Therefore, the landlord chose to treat the rental advance as the advance under the sale agreement. The perusal of the exhibits also shows that R-1 which is the notice issued by the respondent dated 27.2.1991 calls upon the petitioner to perform the sale agreement. In that it was specifically stated that after the sale agreement no rents were paid or demanded. This letter was received on 2.3.1991. The perusal of the exhibits also shows that R-1 which is the notice issued by the respondent dated 27.2.1991 calls upon the petitioner to perform the sale agreement. In that it was specifically stated that after the sale agreement no rents were paid or demanded. This letter was received on 2.3.1991. Though the acknowledgment card shows 2.2.1991 the postal mark shows the month of March and hence it must be 2.3.1991. It is only thereafter that the petitioner has chosen to issue the notice dated 20.3.1991 demanding rents and making no reference to Ex.R-1. In Ex.R-4 apart from stating that the respondent is a tenant the petitioner has conveniently glossed over the categories statement made by the respondent that after the agreement of sale no rent was received. In this case though there is no express waiver of tenant's liability to pay rent, but the fact that the petitioner has treated the rental advance as the advance of sale consideration would show the intention of the parties. 16. In R. Kanthimathi v. Mrs. Beatrie Xavier R. Kanthimathi v. Mrs. Beatrie Xavier (2000)2 L.W. 805 the landlady had addressed a letter which states, “that the property demised has already been surrendered to your possession”. The Supreme Court construed this as a conscious incorporation of the fact that the nature of possession has changed to a purchaser and seller. The conduct of the landlady right from the date of entering into the agreement of sale was construed to indicate that she repudiated the old relationship of landlord and tenant. 17. In this case also periodic payments towards sale consideration were received by the petitioner. Though the learned counsel for the petitioner would submit that a sum of Rs.10,000 was returned under Ex.P-2 to show that the contract of sale came to an end, there is nothing in Ex.P-2 to suggest such an intention on the part of the petitioner or the respondent. On the other hand the agreement between the parties to treat the advance as a payment made under purchaser- seller relationship only supports the view that the petitioner consciously put an end to the landlord- tenant relationship. His case that the respondent subsequently paid rents upto March, 1984 has also been proved to be baseless. The respondent- tenant denied that he paid rents after 2.9.1983. His case that the respondent subsequently paid rents upto March, 1984 has also been proved to be baseless. The respondent- tenant denied that he paid rents after 2.9.1983. Therefore, it is the duty of the petitioner to prove that he continued to pay even after the agreement. If the petitioner had proved such payment it could have shown that the landlord- tenant relationship continued. 18. In his chief-examination the husband of the petitioner as P.W.1 had stated that upon receiving the rent thy would issue a receipt to the tenant and also obtain the signature of the tenant in the counterfoil. If so that would have been the best evidence to show that the respondent paid rent even after the agreement of sale. But these counterfoils have not been produced. Therefore, the case of the landlord that the tenant continued to pay the rent after the agreement has not been proved. 19. The construction of Clause 4(a) of the agreement, the conduct of the parties, the failure on the part of the landlady to prove subsequent payment of rent all go to show that the landlord tenant relationship came to an end. Therefore, the conclusion of the Appellate Authority that the respondent is not a tenant and therefore, there can be no eviction on the ground of wilful default is correct and needs no interference. Therefore, the civil revision petition is dismissed. No costs. B.S. ----- Revision dismissed.