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2003 DIGILAW 1078 (MAD)

B. Anusuya v. A. Ganesan

2003-07-17

V.KANAGARAJ

body2003
Judgment :- This Petition is filed under Section 25 of the Tamil Nadu Buildings Lease and Rent Control Act 18 of 1960 against the Judgment and Decree of the Rent Control Appellate Authority and Subordinate Judge of Krishnagiri dated 23.3.1991 made in R.C.A.No.2 of 1998 thereby reversing the Judgment and Decree of the Rent Controller and District Munsif of Krishnagiri dated 24.2.1998 made in R.C.O.P.No.7 of 1996. 2. When the above matter was taken up for consideration, on perusal of the records and upon hearing the learned counsel for the petitioners, what comes to be known is that the petitioners herein have filed R.C.O.P.No.7/96 before the District Munsif-cum-Rent Controller at Krishnagiri seeking eviction of the respondent-tenant on ground of willful default, sub-letting, causing nuisance to the neighbours and for owners occupation. 3. 3. The case of the petitioners is that the first petitioner is the owner of the property and the 2nd petitioner is her husband; that the first petitioner had rented to the respondents a portion of the petition premises in the year 1990 for a monthly rent of Rs.175/-; that with an enhancement of Rs.50/- per year, the tenancy period was fixed as three years and on condition that the rent had to be paid on the first day of every month and on payment of an advance of Rs.1000/-; that it was agreed that without prior permission from the petitioners, the respondents should not sub-let the rented portion; that in the year 1990, the first respondent had taken vacant possession of the petition premises and the monthly rent of Rs.175/- had been subsequently increased in 1991 to Rs.225/-, in 1992 to Rs.275/-, in 1993 to Rs.325/-, in 1994 to Rs.375/- and in 1995 to Rs.425/-; that the first respondent promised to vacate the premises by the end of 1995; that without vacating the petition premises in the year 1995, the first respondent paid Rs.375/- only and he had not paid the rent for the month of September and October 1995; that the petitioners did not refuse to receive the rent; that inspite of it, the first respondent had sent the same by money order; that the first respondent had sub-let a portion of the premises to the 2nd respondent's brother Murugesan and the family members were residing in the said place; that the said Murugesan was doing textiles business and he used to drink liquor and often caused nuisance to the neighbours; that the respondents were letting waste water into the pipeline of drinking water; that the respondents were trying to illegally purchase the property; that there was a dispute between the landlord and the tenant and the same had gone to the extent of lodging a complaint before the police; that the petitioner's two daughters and three sons were married and they were in need of the petition premises and therefore, on 23.7.1996, the petitioners gave a notice to the respondents to vacate the premises and that even on receipt of the notice, the respondent refused to vacate the premises and hence the R.C.O.P. 4. On the contrary, in the counter filed by the respondents, it is contended that they were the tenants in the petition premises for 12 years and not for six years and they have paid an advance of Rs.10,000/- in various instalments and no receipts have been given; that they admit the monthly rent was initially Rs.175/-; that the civil suit in O.S.No.227/96 has been filed and the same is pending; that they denied the enhancement of rent of Rs.50/- per year and the present rent was Rs.375/-; that they also denied the enhanced rent from Rs.375/- to Rs.425/- and the averment that they would vacate the premises by the end of 1995; that in order to get higher rent, the petitioners were trying to vacate them from the premises and they have not committed any default; that the petitioner cut the electricity connection and not permitted to use the drinking water; that they have spent Rs.10,000/- for putting up electric motor but they were not permitted to use the same; that since the petitioners gave lot of problems, they lodged a complaint before the police; that on 5.7.1996, when they tendered rent to the petitioner, he refused to receive it and the petitioner also hit the respondents, for which the first respondent had taken treatment at Dharapuram Government Hospital. 5. On such pleading by the parties, the trial Court having framed the following issues for determination of the questions involved in the R.C.O.P., viz.,(1) Whether the respondents are liable to vacate the suit premises? (2) Whether the petitioners are entitled to vacant possession of the petition premises? (3) To what other relief the petitioners are entitled to?, had allowed the parties to record their evidence and on the side of the petitioners, the 2nd petitioner was examined as P.W.1 and one Theerthagiri was examined as P.W.2 and eight documents were marked as Exs.P1 to P8. On the side of the respondents, the first respondent examined himself as R.W.1 and his brother's wife was examined as R.W.2 and one Muniraj was examined as R.W.3 and the 2nd respondent was examined as R.W.4 and for documentary evidence Exs.R1 to R8 were marked. 6. On the side of the respondents, the first respondent examined himself as R.W.1 and his brother's wife was examined as R.W.2 and one Muniraj was examined as R.W.3 and the 2nd respondent was examined as R.W.4 and for documentary evidence Exs.R1 to R8 were marked. 6. Learned District Munsif, Krishnagiri, having traced the facts and circumstances of the case as pleaded by parties and on the issues framed as aforementioned had permitted the parties to record their evidence and having appreciated the same issue wise, had ultimately come to the conclusion that the respondents had committed willful default, sub-let the premises, caused nuisance to the neighbours and hence allowed the R.C.O.P. and directed the respondents to hand over vacant possession within three months. Aggrieved by the said order, the respondents preferred R.C.A.No.2/1998 before the Rent Controller Appellate Authority cum Subordinate Judge, Krishnagiri. 7. Learned Appellate Authority, on perusal of the records and upon hearing both sides, reversed the order passed by the trial Court holding that the respondent has not committed any default since no documentary proof was produced to establish that there was default in payment of rent and no sub-letting was also proved by the respondents since no oral or documentary evidence has been let in regarding this ground further finding that the petitioners were having three other rented portions and that they could utilise the same for their own use and occupation and therefore, with a malafide intention only to vacate the respondents, they have filed the R.C.O.P. and on such reasons allowed the appeal with costs. Aggrieved by the order of the Appellate authority, the petitioners have come forward with the present Civil Revision Petition. 8. During arguments, the learned counsel appearing on behalf of the appellant would submit that the petitioners herein are the landlords, who were the petitioners before the Rent Controller seeking eviction of the respondents on the grounds of willful default, subletting, causing nuisance to the adjacent occupants and seeking the premises for additional accommodation; that for the first ground, i.e. for willful default, the Appellate Court found that for the months of September and October 1996, the rents were sent by money order subsequent to the filing of the petition and having received the amount, it could not be said that the tenant had committed willful default. Secondly, regarding subletting, learned counsel would submit that one Murugesan was the sub-tenant, who is the brother of the second respondent; that the petitioners filed Ex.P4 voters' list to show that Murugesan's name was found therein; that he is the brother of the second respondent and brother-in-law of the first respondent; that it cannot be admitted that he was the sub tenant nor did the respondents sublet the premises to Murugesan. Thirdly, regarding causing of the nuisance, he would submit that the case of the landlord was that the tenant let out the property to the persons who are doing cloth business, who started staying at the premises during night hours; that some of them were even using drinks and causing nuisance to the other tenants; further, the respondent connected the drainage water with the drinking water tank, thus polluting the same; but, the lower Court found that there was no sufficient evidence and therefore, rejected the grounds decided. Fourthly, regarding the additional accommodation required for the landlord, the learned counsel would point out that the landlord is having two daughters and three sons who are married and they seek to settle down independently. Hence, as regards the requirement of additional accommodation for the landlord, the Appellate Court rejected the case of the landlord on this ground stating that there were other occupants; that the landlord has not filed any eviction petition against those occupants, but only against those respondents and hence, rejected the case of the petitioners/landlords at this score also. 10. Learned counsel, pointing out all those reasons assigned on the part of the Appellate Authority which are neither sound nor convincing, would submit that it is not correct on the part of the Appellate Authority to set aside the order of the Rent Controller. 11. The learned counsel would also cite the some of the judgments rendered by this Court and that of the Honourable Apex Court, the first one being an order passed by the learned single Judge of this Court reported in 1994 MLJ 25 (The Nilgiris Co-Operative Marketing Society Vs. Uthandi), wherein it is held that the rent of the period commencing from February 1988, which is complained of in the present petition, was paid by the tenant, by way of cheque dated 5.12.1988 to his counsel on 8.12.1988, which is the date fixed in the summons for the appearance of the tenant. Uthandi), wherein it is held that the rent of the period commencing from February 1988, which is complained of in the present petition, was paid by the tenant, by way of cheque dated 5.12.1988 to his counsel on 8.12.1988, which is the date fixed in the summons for the appearance of the tenant. Such payment of rent by the tenant would not absolve him of the disqualification which he had suffered already. 12. The second judgment cited by the learned counsel for the petitioner is also that of the learned single Judge of this Court reported in 1999(1) CTC 221 (Easwara Rao T. Vs. N.W. Ansari), which is pertaining to the deposit of the rent by the tenant on the effective date of hearing. As argued on the part of the tenant, it could not be considered as willful and the learned judge has remarked that he found it difficult to accept his submission. Further stating that if the tenant did not pay rent inspite of two months' notice in explanation to Section 10(2)(i) of the Act, then the legal presumption is willful and the landlord need not further establish the same. 13. The last judgment cited by the learned counsel is one rendered by the Honourable Apex Court, recently reported in 2003 (2) CTC 125 ( Balwant Singh Vs. Anand Kumar Sharma), wherein it is held: "Mere acceptance of delayed payment of rent does not disentitle landlord from seeking eviction of tenant; that the provisions of the Act would clearly show that unlike Rent Control statutes of other states, expression willful default or habitual default has not been used; that the arrears of rent for two months would entail eviction of tenant." 14. In reply, the learned counsel appearing on behalf of the respondents/tenant would sail with the judgment of the lower Appellate Court and would cite instances from the said judgment on the reasons assigned therein by the Appellate Authority for each ground offered on the part of the petitioner/landlord and would try to justify the case of the tenant. However, the learned counsel would not cite any judgment in support of his claim, but would cite those judgments, which have been cited by the Appellate Authorities in support of his submission and would ultimately pray to dismiss the above revision petition with costs. 15. However, the learned counsel would not cite any judgment in support of his claim, but would cite those judgments, which have been cited by the Appellate Authorities in support of his submission and would ultimately pray to dismiss the above revision petition with costs. 15. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, it could be assessed that it is the case of eviction sought by the landlord as against the tenant on four grounds viz., (1) willful default in payment of rent (2) Subletting the premises to the third parties; (3) causing nuisance to the occupants and (4) requiring the premises for additional occupation of the landlord. On all these grounds the Rent Controller allowed the petition which has been set aside by the appellate Authority, testifying the validity of which the landlord has come forward to file the above Civil Revision Petition before this Court on certain grounds as brought forth in the civil revision petition. Besides the facts pleaded, citing the judgments rendered by this Court and that of the Apex Court to the point of willful default in the payment of rent by the tenant, the learned counsel would ultimately pray for allowing the civil revision petition setting aside the judgment of the Appellate Authority below. 16. On the part of the trial Court, having traced the facts and circumstances of the case in their entirety as pleaded by parties, the Rent Controller would also conduct an enquiry in which on the part of the petitioners, two witnesses would be examined as Pws.1 and 2, of whom PW1 is none other than the second petitioner and another Theerthagiri to speak about the facts and circumstances pleaded on the part of the petitioner has also been examined besides marking nine documents as Exs.P1 to P9; Ex.P1 dated 23.7.1996 being the legal notice sent by the petitioner to the respondent; Ex.P2 being the returned cover of Ex.P1; Ex.P3 being the acknowledgment by the second respondent; Ex.P4 being the voters list for the year 1996; Ex.P5 being series of receipts of payment of rents by money order; Ex.P6 dated 1.7.1996 is the receipt issued by the police; Ex.P7 dated 10.7.1996 is the notice sent by the respondents' advocate; Ex.P8 dated 21.7.1996 is the reply to Ex.P7 and Ex.P9 is the acknowledgment. 17. 17. On the contrary, on the part of the respondents, they would examine four witnesses as RW1 to RW4, of whom RWs.1 and 4 are none other than the respondents themselves and PWs.2 and 3 are independent witnesses and these witnesses would also speak to the extent of the pleadings of the respondents/tenant in consummation of their case. Besides this, eight documents would also be marked by the respondents as Exs.R1 to R8. R1 dated 10.7.1996 being the legal notice; Ex.R2 and R3 are the acknowledgments; Ex.R4 being the series of receipts; Ex.R5 dated 25.4.1997 is the demand notice by municipality; Ex.R6 dated 24.4.1997 is the attachment notice; Ex.R7 dated 31.3.1997 is the house-tax receipt and Ex.R8 being the voters list. 18. The trial Court having framed three issues, viz., (1) whether the respondents are liable to be evicted from the petitioners premises? (2) whether the petitioners are entitled to get possession of the premises? and (3) What other reliefs the petitioners are entitled to? and in appreciation of the evidence let in based on these issues, would arrive at easy conclusions to the effect that the tenancy was from the year 1984 on a monthly rent of Rs.375/- with an enhancement of Rs.75/- per year. Based on the oral agreement, they would further adduce evidence that there was no arrears of rent in the year 1995, but later come forward to allege that for September and October 1995, they sent the rent through money order at a later point of time. Based on this evidence coupled with the fact that in the cross- examination, the respondents have admitted that there was a suit filed by them in O.S.NO.227 of 1990 against the petitioners and there were differences between them for the last two years; that when they occupied the premises, the respondents came with his wife and three children and they have sublet the premises to others, besides engaging people, who were trading in cloth and they used to make nuisance by shouting and quarreling. Further appreciating the documentary evidence placed on record, the lower Court would arrive at the conclusion to allow the petition on all grounds offered. 19. Further appreciating the documentary evidence placed on record, the lower Court would arrive at the conclusion to allow the petition on all grounds offered. 19. On the contrary, the first appellate Court would frame five points viz., (1) Whether the respondents are in arrears of rent for the months September and October 1995 and September and October 1996 and whether they are in willful default; (2) Whether the respondents have sub-let the premises which are subject to the tenancy (3) Whether the respondents created nuisance so as to vacate them (4) Whether the premises is required for the personal use and occupation of the petitioners and (5) Whether the appeal has to be allowed? 20. Having framed the above specific points and having a discussion point-wise and in appreciation of the evidence placed on record, the learned Appellate Authority would find that even though the case of the petitioner is that during September and October 1995 and 1996, that the respondents committed default in the payment of rents amounting to willful default, still thereafter, the petitioners have accepted the rents paid on the part of the respondents. More over, there is clear cut evidence placed on record by PW1 that there was absolutely no arrears of rent from the respondents and therefore, the lower Appellate Court would arrive at a conclusion that there was no willful default in payment of rent. 21. Likewise, on a clear discussion held on the point of subletting the premises, not only from the evidence, but also from the legal proposition, the lower Court would find that the brother of the second respondent Murugesan used to visit the premises once in a week and just for the simple reason that his name is included in the voters' list in a place, it cannot be ultimately concluded that he is occupying the premises, much less on a sub-lease and it is the burden of the petitioners to prove this aspect of sub-lease in which the petitioners have miserably failed since except for some faulty oral evidence adduced, no authenticated document has been placed on record, as a result of which the lower Appellate Court would arrive at a conclusion that no sub-lease in favour of any one has been established on the part of the petitioners. 22. 22. Likewise, the lower Court, for valid reasons assigned, would not also accept the other two reasons offered on the part of the petitioners, i.e. the lessee creating nuisance to the other tenants and that the premises are required for the landlord's personal use and occupation, answering both to the effect that they have not been established in evidence, besides citing for the fourth point that the petitioner has got other premises, but did not attempt to evict any one of them and therefore, for personal occupation claiming the property is also an unbelievable one and ultimately arrived at a conclusion to allow the appeal filed by the respondents/tenant, thereby setting aside the decree of the Rent Controller. 23. A careful study held into the decretal order passed by the Rent Controller would prove that no proper issues have been framed by the Rent controller, particularly for the four grounds under which eviction is sought for by the petitioners. But, only two issues have been framed in a generalized manner to the effect that whether the petitioners are entitled to such eviction and whether the respondents are liable to be vacated and amalgamating all four points together, a general discussion has been held citing instances of the evidence here and there, without any clarity being rendered in the whole of the order, thus ultimately arriving at a blunt conclusion to allow the petition in an ambiguous and indefinite manner, which cannot be held to be in consonance of the requirements of law. 24. On the contrary, the first Appellate Court would not only frame proper points for consideration on all the aspects involved in the rent control appeal, but also having had specific discussions on each and every ground offered on the part of the petitioner, in the context of the evidence and rejecting all the grounds on reasons that they have not been established in evidence in the manner required by law, would ultimately arrive at the conclusion to not only allow the appeal, but also to dismiss the rent control original petition. Needless to mention that the order passed by the Rent Controller is inconsistent and infirm and cannot be upheld. Needless to mention that the order passed by the Rent Controller is inconsistent and infirm and cannot be upheld. But on the contrary, the judgment and decree passed by the Appellate Authority on appeal is a well considered and merited one and this Court is not able to see any reason to cause its interference into the same and hence the following order : In result, (1) the above revision petition is without merit and the same is dismissed as such; (2) the judgment and decree dated 23.3.1999 made in RCA.No.2 of 1998 thereby setting aside the order and decree passed by the Rent Controller dated 24.2.1998 in R.C.O.P.No.7 of 1996 is confirmed; (3) However, in the circumstances of the case, there shall be no order as to costs.