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2003 DIGILAW 748 (MAD)

E. I. Velayutham v. Hajeera

2003-04-29

A.RAMAMURTHI

body2003
ORDER: The revision petitioner is the tenant and he had filed the present revision petition aggrieved against the concurrent order of eviction passed by the Rent Controller and later confirmed by the Rent Control Appellate Authority. 2. The case in brief is as follows: The respondent/ landlady filed a petition under Secs.10(2)(i) and 10(3)(a)(iii) of Tamil Nadu Buildings (Lease and Rent Control) Act to evict the revision petitioner from the premises. The respondent is the landlady of the premises bearing Door No.94, Medavakam Tank Road, Kilpauk, Madras-600 010, and the revision petitioner is the tenant in respect of the shop measuring 11 feet x 23 feet on a monthly rent of Rs.850. The landlady is carrying on business under the name and style “Gemini Pharmaceuticals” at No.16, V.P.Colony, Madras, engaged in distribution of medicines to various companies. The building in which she is carrying on the business is in a residential building and insufficient and inconvenient for her and she has been repeatedly asking the tenant to vacate the shop for her own occupation. A portion is required for the own occupation of the landlady to carry on her business. She is not in occupation of any other portion. She had also sent a legal notice calling upon the tenant to deliver the vacant possession. Besides, the tenant is not prompt in paying the rent from month to month and irregular in paying the rent. He has not paid the rent from January, 1995 to August, 1995 for 8 months amounting to Rs.6,800. Inspite of repeated demands he had shown supine indifference and committed wilful default in payment of rent. Hence, the revision petition. 3. The revision petitioner/ tenant opposed the application. According to him, the premises bearing No.16, V.P. Colony, Madras, is the property of the petitioner and it is a Bungalow type building situated in about two grounds. Therefore, the allegation for requirement of the premises by the landlady for her business is not bona fide. She never requested the tenant to vacate the portion for her own occupation. He refused to pay enhanced rent and increased advance and as such she has filed the Rent Control Petition. In fact, she has also filed an application for fixation of fair rent. Apart from this shop, there are other two shops in the ground floor. One ship is left out for seat cover manufacturing business. He refused to pay enhanced rent and increased advance and as such she has filed the Rent Control Petition. In fact, she has also filed an application for fixation of fair rent. Apart from this shop, there are other two shops in the ground floor. One ship is left out for seat cover manufacturing business. The first floor is partly used as residential and other part is used by the son of the landlady for Ready-made Garments business. The second floor is let out to seat cover manufacturing business and it is available to the landlady. It is an oblique motive to evict the tenant. The rents were paid up to date and there is no arrears. He has been sending the rent by Money Order. Hence, the petition is liable to be dismissed. 4. The landlady husband was examined as P.W.1 and Exs.P-1 to P-9 were marked. On behalf of the tenant, he was examined as R.W.1 and no other document was filed. The learned Rent Controller allowed the application filed by the landlady and ordered eviction and granted one month time for delivery of possession. The tenant preferred R.C.A. No.292 of 1998 on the file of the Rent Control Appellate Authority and the learned Judge after hearing the parties dismissed the appeal and granted two months time for delivery of vacant possession. Aggrieved against this, the tenant has come forward with the present revision petition. 5. Heard the learned counsel for the parties. The points that arise for consideration are: (1) Whether the orders passed by the Courts below are proper and correct? (2) Whether the request of the landlady for own occupation is bona fide? (3) Whether the revision petitioner/ tenant has committed wilful default in payment of rent? (4) To what relief? 6. There is no dispute that the schedule mentioned property belongs to the landlady and it was rented out to the revision petitioner on a monthly rent of Rs.850. The Rent Control Petition was filed by the landlady to evict the revision petitioner on the ground that the premises is required for her own occupation for doing business and also on the ground of wilful default in payment of rent. The landlady is carrying business in distribution of medicines to various companies under the name and style of M/s.Gemini Pharmaceuticals at No.16, V.P. Colony, Madras. The landlady is carrying business in distribution of medicines to various companies under the name and style of M/s.Gemini Pharmaceuticals at No.16, V.P. Colony, Madras. It is residential building and according to her it is insufficient and as such the premises in question for her own business. She further states that the tenant was in arrears of rent from January, 1995 to August, 1995 for a period of a months amounting to Rs.6,800 and the default is wilful and hence, the tenant is liable to be evicted. 7. The revision petitioner/ tenant contended that the request of the landlady for her own occupation is not bona fide. The revision petitioner refused to give enhanced rent as well as increased advance and hence she has filed the application for eviction. She has also filed an application for fixation of fair rent. Moreover, the landlady owns two other shops in the ground floor of the petition premises. One shop is let out for seat cover manufacturing business and the first floor shop is partly used for residential purposes and the other part is used by the son of the landlady for Ready-made Garments business. He has been sending the rent by money order and there is no arrears of rent. 8. Learned counsel for the revision petitioner/ tenant conceded that the appellate authority as a final Court of fact had neither considered the documentary and oral evidence nor given and incident finding. The Appellate Authority had just endorsed the finding of the Rent Controller without any discussion and the order is violative of Sec.23 of the Rent Control Act. Learned counsel further states that the evidence adduced by P.W.1 has not been properly considered and the admission of P.W.1 has also been ignored. So far as the order of the Appellate Authority is concerned, it is not a considered order and there is no discussion in respect of either evidence or legal position. 9. However, learned counsel for the respondent contended that the evidence has been misled by the learned counsel for the petitioner. No document has been filed on behalf of the revision petitioner to show the payment of any rent and Money Order receipts also are not filed. 9. However, learned counsel for the respondent contended that the evidence has been misled by the learned counsel for the petitioner. No document has been filed on behalf of the revision petitioner to show the payment of any rent and Money Order receipts also are not filed. Even assuming that the Appellate Authority has passed only cryptic order, no ground has been made out to remand the case and as such the concurrent order passed by the Courts below cannot be interfered with by this Court exercising the revision under Sec.25 of the Rent Control Act. 10. Learned counsel for the revision petitioner relied on Sivasubramniam T. and others v. Kasinath Pujari and others, (2001)1 L.W. 778, that, "when a landlord desires the premises the requirement of law is that the landlord must set out his need for the premises. He must establish that such need is bona fide, genuine, honest and conceived in good faith." There is no dispute about this principle and the applicability depends upon the facts and circumstances in each case. 11. The revision petition also relied upon K.Rama Iyer v. Jwala Prashad, 1990 S.C.C. (Supp.) 68 and Ganpat Govind Kamble v. Mohd. Ghosue A. Naik and others, 1990 S.C.C. (Supp.) 70 and these decisions are not applicable to the case on hand. 12. Learned counsel for the revision petitioner stated that a sum of Rs.25,000 has been paid by way of advance but there is no record to substantiate the same. He further stated that the rent sent by the revision petitioner has been refused but even then the money order coupon was not filed. The tenant has also not filed any record to show the business carried on by the landlady in the place belongs to her. The slip answer given by P.W.1 cannot be made much of. No doubt, a perusal of the order passed by the Appellate Court indicates that the grounds raised by the tenant has not been properly considered but I am of the view that no ground has been made out to remand the matter for fresh disposal. 13. The slip answer given by P.W.1 cannot be made much of. No doubt, a perusal of the order passed by the Appellate Court indicates that the grounds raised by the tenant has not been properly considered but I am of the view that no ground has been made out to remand the matter for fresh disposal. 13. Learned counsel for the respondent/ landlady contended that the tenant raised the plea that the requirement for own occupation is not bona fide and P.W.1 has admitted that eviction petition has not been filed on the ground of wilful default and there is no arrears of rent and as per the legal notice the arrears of rent have been adjusted. Moreover, there is no wilful default in the payment of rent. The landlady has got two other premises and it is not necessary for her to seek eviction of the present premises. 14. These grounds raised by the revision petitioner has been met with the learned counsel for the respondent. A perusal of the evidence of P.W.1 only indicate that a question was put to him as to whether eviction was sought for wilful default committed and for which he had replied that the petition premises as required on the ground of own use and occupation and this will not take away the wilful default committed by the tenant. Moreover, he could not take advantage of the isolated statement and is-construe the statement made by P.W.1 would have stated that there was no arrears of rent. This cannot be made use by the revision petitioner that there is no arrears of rent and default committed is not wilful. It is well settled position of law that time and again, the Apex Court has held that the evidence of the parties should be considered in an harmonious, manner and the conclusion should not be reached on the basis of an isolated statement. 15. It is so pertinent to state that the revision petitioner has not produced even a single document to prove his claim. The admission made by P.W.1 here and there will not come to the rescue of the tenant even assuming that the default rent has been adjusted on the advance amount of Rs.5,000 since, till there is balance of Rs.1,800 which has not been satisfactorily established. 16. The admission made by P.W.1 here and there will not come to the rescue of the tenant even assuming that the default rent has been adjusted on the advance amount of Rs.5,000 since, till there is balance of Rs.1,800 which has not been satisfactorily established. 16. Learned counsel for the respondent/ landlady relied on Sri Raja Lakshmi Dyeing Works v. Rangaswamy, (1980)4 S.C.C. 259, that "concurrent finding of the Rent Controller and the appellate authority such as regarding bona fide personal requirement of premises by landlord held, not open to interference by High Court unless unreasonable resulting in miscarriage of justice." It has been held in Thangaswamy, C. v. Pappa, (1988)2 L.W. 223, that, "the burden to show that the default in not intentional or deliberate is on the tenant." 17. Reliance is also placed on Mohammed Rowther v. S.S. Rajalinga Raja, (1994)2 M.L.J. 509 : (1994)2 L.W. 524 , that, "it is settled law that it is the duty of the tenant to pay the rent regularly every month as enjoined in the statue without expecting any demand from the landlord in that regard." It has been held in Venkiduswami Pilai, M.V. v. S.Saminatha Rao, (1996)2 L.W. 752 , that, "tenant not paying rent regularly and failing to carry out his duty. Landlord need not chase the tenant to get monthly rent. Wilful default is made out." 18. It is clear from Murugan, C.K.R. v. T.S. Arunagiri, (1991)1 L.W. 100, that, "once default is admitted, it is for the tenant to prove that he has not committed wilful default." It is also held in Vallampati Kalavathi v. Haji Ismail, (2001)4 S.C.C. 26 , that, "revisional Court acts not within its jurisdiction in taking a view of such events different from the recorded by the lower Courts, unless such findings suffer from inherent defect, or are based on inadmissible or irrelevant materials or are irredeemably perverse." It is also held in Rayen v. Seyed Ali Fathima, (2002)2 M.L.J. 102 , that, "the fact that the Appellate authority has passed a cryptic order on a ground to allow the revision as the findings rendered is the Rent Controller where supported by the materials and legal evidence." 19. It is therefore clear from the aforesaid decisions and discussions the landlady has positively established that the premises is required for her own business and the tenant has committed wilful default in payment of rent. Both the Courts had given concurrent finding in favour of the landlady and no illegality or infirmity has been pointed out by the revision petitioner to interfere with the order. It appears that the evidence of P.W.1 has not been properly recorded and a snap answer alone cannot be picked up by the tenant for his own purpose and there should be harmonious reading of the entire evidence of P.W.1 to come to a reasonable conclusion and it has been considered properly by the Rent Controller. I am of the view that no interference is called for. 20. For the reasons stated above, the revision petition fails and the same is dismissed. No costs. Consequently, C.M.P. No.4398 of 2001 is closed. 21. The revision petitioner is granted three months time to vacate the premises on his filing an undertaking affidavit in one week that he would vacate the premises. He is also directed to pay the rent regularly till then, without any default.