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2003 DIGILAW 1945 (MAD)

M. Agasthilingam Pillai v. K. R. Narasimha Iyer

2003-11-28

S.K.KRISHNAN

body2003
Judgment :- The unsuccessful tenant before the Courts below has filed this Revision against the order of the Rent Control Appellate Authority in R.C.A.18/99 ,Salem. 2. The short facts which are necessary for the disposal of this Revision are as follows: The landlord is the owner of the petition mentioned premises and the Respondent is a tenant in respect of the same building on a monthly rent of Rs.1300/- He has stated that the respondent was irregular in payment of rent and he has to pay rent from 1.1.1993 onwards. Though he issued legal notice through his counsel on 18.6.93, the respondent has not come forward to pay the rent. Further with ulterior motive, the respondent is setting up the title of the petition mentioned premises to the petitioner's sisters and thus denying the title of the petitioner. Hence, the landlord / Petitioner has filed an eviction petition in R.C.O.P.44/93 against the tenant / Respondent under Sections 10(2)(i) and 10(2)(vii) on the ground of wilful default and denial of title of the landlord. Respondent filed a counter denying all the allegations mentioned in the petition. 3. After hearing both sides and upon perusing the documents available before the Court, the Rent Control Authority has allowed the eviction petition granting three months time to the respondent to vacate the petition mentioned premises. Aggrieved over the same, the respondent/ tenant has filed R.C.A.18/99 before the Principal Subordinate Judge, Salem who after a detailed analysis , confirmed the order of the Rent Controller holding that the respondent has wantonly not paying the monthly rent in respect of the petition mentioned premises to the landlord and only after institution of the fair rent petition under Section 11 (4) by the landlord, the respondent has deposited a sum of Rs.35,100/- and that as regards denial of title, he held that the tenant used to pay the rent to the landlord after the death of the father of the petitioner, K.N.Ramachandra Iyer and having admitted that the respondent is the landlord, there is no justification for the Appellant to deny the title of the landlord. Aggrieved upon the said order, the tenant has preferred this Revision. 4.The only point that arises for consideration in this Revision is Whether this Revision Petition can be allowed in favour of the petitioner or not? 5. Aggrieved upon the said order, the tenant has preferred this Revision. 4.The only point that arises for consideration in this Revision is Whether this Revision Petition can be allowed in favour of the petitioner or not? 5. It is seen that the Courts below have allowed the reliefs sought for by the respondent herein. Initially, an eviction Petition under Section 10(2)(i) and 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent) Control Act 1960 was filed by the landlord before the Rent Controller, Salem. It was contended by the petitioner / landlord that the respondent was a tenant under one Ramachandra Iyer on a monthly rent of Rs.1,300/- and the said rent is payable on the first of every succeeding English Calender month. Originally, the respondent was a tenant under the father of the petitioner, Ramachandra Iyer and after his death on 22.12.1992, the petitioner has received the rent from the respondent. Since the respondent failed to pay the rent to the petitioner from 1.1.1993, the petitioner issued a legal notice to the respondent on 5.6.1993 and informed that he was in arrears of rent from 1.1.1993 for which the respondent sent a reply notice dated 18.6.93 denying that he agreed to pay monthly rent at the rate of Rs.1,300/- It was also stated that the rent was agreed to be paid only at the rate of Rs.400/- p.m. In the said reply, the respondent has further stated that he was regularly paying the rent excepting a few days delay and since he received a notice from the sister of the petitioner dated 8.10.92, he was not able to pay the rent to the petitioner. The reason for not paying paid the rent to him is that since the sister of the petitioner is disputing the ownership of the premises and asked him not to pay the rent to the petitioner and in that circumstances, he was not able to pay the rent. However, it was informed that he was ready to deposit the admitted arrears of rent at the rate of Rs.400/- per month into the Court. Since the respondent denied the title of the petitioner and also questioning the termination of the tenancy by the petitioner, the petitioner issued one another rejoinder notice to the respondent stating that the denial of the title of the petitioner is not a bona fide one. Since the respondent denied the title of the petitioner and also questioning the termination of the tenancy by the petitioner, the petitioner issued one another rejoinder notice to the respondent stating that the denial of the title of the petitioner is not a bona fide one. It was also informed to him that the rent agreed to be paid was at the rate of Rs.1,300/- per month and not as alleged by the respondent (i.e) at the rate of Rs.400/- p.m and he was in default in payment of the said rent from 1.1.93. 6. Even though eviction petition was filed by the landlord on the grounds of wilful default and denial of title by the tenant, the learned Rent Controller after holding enquiry allowed the petition in favour of the petitioner. However, the Rent Controller was of the opinion that there was bonafide reason for denying the ownership of the petitioner by the respondent. It was pointed out by the Rent Controller that rival claim with regard to the receipt of rent from the respondent was raised by the sister of the petitioner. Learned Rent Controller was satisfied with the reasons stated by the respondent in respect of the allegation of the denial of title of the petitioner. Even though the Rent Controller has not accepted the plea of the petitioner with regard to the denial of title by the respondent, considering the oral and documentary evidence adduced on the side of the petitioner, accepted the plea of wilful default of the respondent in payment of rent to the petitioner and allowed the petition in favour of the petitioner. 7. When the matter came up on appeal before the Appellate Authority (Principal Subordinate Judge)Salem, the reasons stated by the Rent Contoller for accepting the plea of denial of title by the respondent, was not admitted by the Appelate Authority. It is pointed out by the Appellate Authority that the Rent Controller without analysing the materials and the facts referred to in the notice issued by the petitioner's sister, had simply accepted the reasons stated by the tenant for denying the title of the petitioner. According to the Appellate Authority, as there is no cross appeal filed by the landlord challenging the rejection of the plea of the denial of title of the petitioner by the respondent, the order passed by the Rent Controller has become final. According to the Appellate Authority, as there is no cross appeal filed by the landlord challenging the rejection of the plea of the denial of title of the petitioner by the respondent, the order passed by the Rent Controller has become final. That was the reason stated by the Appellate Authority while discussing the issue relating to the denial of title of the petitioner by the respondent. However, the learned Appellate Authority has stated that the said issue (i.e) denial of title of the petitioner by the respondent, can be discussed while deciding the issue of wilful default in payment of rent. Accordingly, the Appellate Authority discussed the denial of title by the respondent while discussing the issue of wilful default. It is also pointed out by the Appellate Authority that even though the sister of the petitioner had issued a notice raising rival claim with regard to the ownership of the property she has not disputed the property let out to the respondent in the said notice. Learned Appellate Authority also pointed out that even in the suit filed by the sister of the Petitioner, the disputed premises let out to the respondent, was not included in the plaint schedule which is marked as Ex.A.9. (Door NO.594,Fort Main Road, Shevapet, Salem not included in the plaint Schedule ) In such circumstances, learned Appellate Authority has not accepted the reasons stated by the learned Rent Controller relating to the denial of title of the petitioner by the respondent. 8. In such circumstances, the only pont to be decided by this Court is whether the Revision Peitioner herein has committed wilful default in payment of rent or not. It is seen that the landlord issued a notice under Ex.A.1 dated 5.6.93 to the tenant demanding the arrears of rent. The respondent has stated that inspite of the notice issued to the Revision petitioner, he has not come forward to pay the arrears of rent immediately after the receipt of the said notice. It is argued by the counsel for the respondent / landlord that the revision petitioner has not come forward to pay the arrears of rent even before the filing of the petition under Section 11(4) of the Act before the Rent Controller. It is argued by the counsel for the respondent / landlord that the revision petitioner has not come forward to pay the arrears of rent even before the filing of the petition under Section 11(4) of the Act before the Rent Controller. Further, it is pointed out by the learned counsel that at the time of filing the petition under Section 11(4), the revision petitioner was in arrears of rent of Rs.7,800/-. In such circumstances, it is emphasised that since the Revision Petitioner has committed wilful default in payment of rent, this Revision is not at all sustainable under law and the same is liable to be dismissed. 9. Learned counsel for the Revision petitioner would contend that the Revision petitioner has been in possession and enjoyment of the petition mentioned premises as a tenant over 30 years and he never committed default in payment of rent. In this connection, learned counsel would point that when the petition filed by the landlord under Section 11(4) of the Act is pending before the Rent Controller, the landlord informed to the tenant that he would withdraw the said petition, if the tenant deposits the entire arrears of Rs.35,100/-, It is pointed out that the tenant had deposited the entire arrears of Rs.35,100/- on 20.4.95 towards the rent for the period from 1.1.93 to 13.4.95. Further, learned counsel has submitted that the Revision petitioner has paid a sum of Rs.19,500/- to the landord towards the arrears of rent for the period from 1.2.96 to 30.4.97 and therefore, the Revision Petitioner has never committed wilful default in payment of rent to the landlord. Eventhough the Revision Petitioner has initially disputed the fact that the rent to the premises was agreed only at the rate of Rs.400/- per month, however, he has paid rental arrears at the rate of Rs.1,300/- per month as per the relief sought for by the landlord in the petition filed under Section 11(4) of the Act. 10. For coming to a just decision in this matter, it is pertinent to discuss certain documents filed in connection with the case. A perusal of Ex.B.6, rental receipt issued to the Revision petitioner on 16.5.72 would show that the said receipt was issued for the receipt of Rs.400/- towards the arrears of rent for the months, March and April 1972. For coming to a just decision in this matter, it is pertinent to discuss certain documents filed in connection with the case. A perusal of Ex.B.6, rental receipt issued to the Revision petitioner on 16.5.72 would show that the said receipt was issued for the receipt of Rs.400/- towards the arrears of rent for the months, March and April 1972. Ex.B.7 rental receipt was issued on 6.7.76 for the receipt of Rs.800/- towards the arrears of rent for four months .i.e. December 1975,January,February and March 1976. Under Ex.B.8 rental receipt dated 23.7.76,a sum of Rs.600/- was paid by the Revision petitioner to the landlord towards the arrears of rent for three months.(i.e) April, May and June 1976. Similarly, under Ex.B.9,dated 11.10.1982 a sum of Rs.750/- was paid by the Revision petitioner to the landlord towards the arrears of rent for three months (i.e) July, August and September,1982. From the perusal of these receipts, it could be seen that initially the Revision Petitioner might have paid rent at the rate of Rs.200/- per month for the petition mentioned premises to the landlord and subsequently, the rent was enhanced to Rs.250/- per month. It is pointed out that eventhough the facts are not established by the landlord as to from which year the rent was enhanced to Rs.1,300/- per month, it is evident that the revision petitioner is in the habit of paying the rent only in lumpsum and not paying the rent regularly for evey month. One another document was marked before the Rent Controller is Ex.A.12 which was marked as a document during the cross examination of P.W.1. It is an agreement entered into between the landlord and the tenant agreeing to pay the rent at the rate of Rs.1000/- per month. But it was an incomplete document. Except the rent, no other particulars were furnished in the said document. It is not established by the Lanlord as to how the said document was marked at the time of the cross examination of the landlord. On a perusal of Exs.B6 to B9, it could also be seen that the landlord could have received the rent at the rate of Rs.200/- per month during the year 1972 and thereafter, it was increased to Rs.250/- from the year 1982. On a perusal of Exs.B6 to B9, it could also be seen that the landlord could have received the rent at the rate of Rs.200/- per month during the year 1972 and thereafter, it was increased to Rs.250/- from the year 1982. However, as already discussed above, with regard to the demand of the rent for the petition mentioned premises at the rate of Rs.1,300/- p.m, the landlord has not established from which date the rent was increased. However, from a perusal of Exs.A.5,A.6,A.7 and A.8, it is made clear that the rent for the petition mentioned premises could have been increased from 1992 onwards. It is evident from Exs.A.5, A.6, A.7 and A.8 rental receipts dated 11.6.93, 22.3.93, 28.4.93 and 28.4.93 respectively issued to the Revision Petitioner that the tenant has paid a sum of Rs.1,300/- as rent for the months, September, October, November and December, 1992. From these it could be seen that the rent could have been fixed or enhanced to Rs.1,300/- per month by the landlord during the year 1992. However, this fact is not accepted by the Revision petitioner. But the landlord/respondent issued a notice to the Revision Petitioner informing him that he was in arrears of rent from 1.1.93 at the rate of Rs.1,300/- per month. On that basis he has filed the petition before the Rent Controller for eviction of the respondent from the petition mentioned premises. As already discussed above, even though the Revision petitioner initially disputed the rent at the rate of Rs.1,300/- p.m., a perusal of rental receipts issued by the landlord to the Revision Petitioner under Exs.A.5, A.6, A.7 and A.8 would show that the Revision petitioner has already accepted the rent fixed by the landlord at the rate ofRs.1,300/-per month for the petition mentioned premises, even before issuance of notice by the landlord. In such circumstances, as already staed above, even though the revision petitioner has denied the rate of rent fixed at Rs.1,300/-p.m, the same could not be sustained for the reasons stated above. It is seen that eventhough the Revision petitioner has disputed the rent fixed at Rs.1,300/-per month, he has already paid the rent to the landlord at the rate of Rs.1,300/- p.m. Even before the issuance of reply notice by him dated 18.6.93. It is seen that eventhough the Revision petitioner has disputed the rent fixed at Rs.1,300/-per month, he has already paid the rent to the landlord at the rate of Rs.1,300/- p.m. Even before the issuance of reply notice by him dated 18.6.93. As already pointed out by the learned counsel for the respondent/landlord, since the Revision Petitioner has committed wilful default in payment of rent from 1.1.93, landlord has filed eviction petition against the tenant on the basis of 'wilful default'. 11. During the course of arguments, learned counsel for the revision petitioner would contend that since the Revision petitioner has paid the entire arrears in lumpsum in two occassions as demanded by the landlord, it could not be construed as the Revision petitioner has committed wilful default as alleged by the learned counsel for the respondent / landlord. It is pertinent to refer here that revision petitioner was in arreas of rent and committed wilful default even before the issuance of notice by the landlord. Moreover, the tenant has not paid the rent regularly every month. Further, he has not come forward to pay the rent immediately after the issuance of notice by the landlord and only after the filing of the 11(4) petition by the landlord, he has deposited the rent. Apart from this it is to be noted that the revision petitioner was in rental arrears of Rs.7,800/- at the time of filing the eviction petition. In such cirucmstances, learned counsel for the respondent would point that for allowing the revision petition, no such materials are available to establish that the revision petitioner is in the habit of paying the monthly rent regularly. 12. On a perusal of the orders passed by the Courts below, the aspect relating to the wilful default in payment of rent by the revision petitioner to the landlord, was elaborately discussed. In such circumstances, this Court do not find any infirmities or irregularities in the orders passed by the Courts below. Hence, this Court is inclined to allow the revision petition in favour of the respondent / landlord. 13. In the result, the Revision petition is dismissed confirming the order of the Appellate Authority passed in R.C.A.18/1999 dated 27.7.2000. No costs.