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Madras High Court · body

2004 DIGILAW 623 (MAD)

Poorna Thayammal v. Y. Anwar

2004-04-02

K.P.SIVASUBRAMANIAM

body2004
Judgment : 1. Both the above revision petitions are preferred by the land owner. CRP No.2625 of 1997 is directed against the orders of both the Appellate Authority and the Rent Controller, Chennai in RCA No.61 of 1994 and RCOP No.970 of 1991 rejecting the landlord’s petition for eviction on ground of wilful default and unauthorised subletting. CRP No.2626 of 1997 is directed against the orders in RCA No.60 of 1994 and RCOP No.2500 of 1991 allowing the petition filed by the tenant under Section 8(5), Tamil Nadu Act 18 of 1960 seeking permission to deposit the rent in Court. 2. In RCOP No.970 of 1991, the landlord contended as follows: While the first petitioner is the owner of the premises/shop, the second petitioner is her husband who was collecting the rents. The property was let out to the first respondent for non-residential purpose for running a laundry shop by name “Swan Laundry” on monthly rent of Rs.500 and Rs.7 towards water charges. According to the petitioners, the first respondent was a chronic defaulter from the beginning and she was in arrears of rent from September 1990 to February 1991 amounting to Rs.3,000. Inspite of repeated demands, the first respondent was in default, which was wilful. The rent for the month of March 1991 was also due. It is further alleged that the first respondent along with her husband without any prior consent of the petitioner has sublet the premises to the second respondent. A lawyer’s notice was sent on 13.12.1990. On 27.12.1990, both the respondents had sent a reply contending false allegations that “Swan Laundry” was a partnership firm on monthly rent of Rs.275 and that there was no la ndlord and tenant relationship between the first petitioner and the firm. According to the petitioners, at the time of inception of tenancy, husband of the first respondent had negotiated for the lease and the lease was only for his wife, the first respondent who was the sole proprietrix of Swan Laundry. The firm was not the tenant under the petitioners. As the first respondent had taken a technical objection (in reply) about the relationship of the landlord and tenant between the first petitioner and the first respondent, the second petitioner had also joined in filing of the petition. The firm was not the tenant under the petitioners. As the first respondent had taken a technical objection (in reply) about the relationship of the landlord and tenant between the first petitioner and the first respondent, the second petitioner had also joined in filing of the petition. On 18.2.1991, a pay order was sent by the tenant for Rs.564 along with covering letter dated 19.2.1991 stating that it was due towards the rent for December 1990 and January 1991 and for water charges. As it was sent by the second respondent and as he was not the tenant to the petitioners, they had returned the same on 23.2.1991 along with a rejoinder. Another reply dated 5.3.1991 was received from the second respondent through counsel making false allegations that the partnership was dissolved and he as the remaining partner was carrying on business. There was no mention about the return of the pay order and it was clear that both the respondents were colluding with each other, according to the petitioner. 3. The first respondent remained absent and she was set ex parte and a counter statement was filed by the second respondent alone. According to him, the application as framed was not maintainable. He was directly a tenant with the second petitioner on a monthly rent of Rs.275 and Rs.7 towards water charges. The contention that the monthly rent of Rs.500 was denied. The tenancy was originally in favour of “Swan Laundry”, a partnership firm consisting of two partners. The contention that the property was let out only to the first respondent was denied. The licence for the business continues to be in the name of the 2nd respondent who was a partner of the firm, which was subsequently dissolved and after dissolution, he was the sole proprietor entitled to continue the business on the same terms and conditions. On receipt of the notice dated 13.12.1990, the respondents have duly replied making the position clear. The subsequent rejoinder was also duly replied. There was no basis for the allegation of wilful default. The second respondent had sent the rent and water charges payable to the second petitioner, which was, however, refused by the second petitioner and hence there was no default much less wilful default. 4. The subsequent rejoinder was also duly replied. There was no basis for the allegation of wilful default. The second respondent had sent the rent and water charges payable to the second petitioner, which was, however, refused by the second petitioner and hence there was no default much less wilful default. 4. In view of the attitude of the petitioner, the second respondent would be taking steps for deposit of rent under Section 8 of the Act. The allegations of subletting was also denied. There was no question of any subletting in view of the fact that the remaining partner was continuing the business after the dissolution of the partnership. The eviction petition was also not maintainable by the two petitioners, who claim to be joint land owners. There was no direction to pay the rent to the first petitioner and the amounts were being paid and received only by the second petitioner. The petition was filed only to harass the tenant and hence, liable to be dismissed. The Rent Controller who took both the Ops. disposed of the petitions by a common order dated 1.11.1993 and held as follows: (i) the monthly rent was only Rs.400 and not Rs.500 as claimed by the landlord, nor Rs.275 as claimed by the tenant. Counterfoils of the receipts filed by the landlord were false. Therefore, the landlord having accepted the correct lease amount, was falsely complaining of default. (ii) As respondents 1 & 2 were brother and sister, there was no basis for the allegation of subletting. The claim of the tenant that the rent was only Rs.275 was also false and the monthly rent payable was only Rs.400. However, as the landlord was refusing to receive the payment of rent, the petition for deposit of rent under Section 8 deserves to be allowed. 5. Both the appeals filed by the landlord were dismissed by the appellate authority by order dated 18.12.1996. The finding that the monthly rent was only Rs.400 and not Rs.500 as contended by the landlord, nor Rs.275 as contended by the tenant, was confirmed. The averment of subletting was also rejected by the appellate authority and hence, both the appeals by the landlord were dismissed. 6. On the issue of wilful default, the learned counsel for the petitioners contended that the finding of the Courts below that Ex.P.4 & P.5(Series) counterfoils of rental receipts were false was not sustainable. The averment of subletting was also rejected by the appellate authority and hence, both the appeals by the landlord were dismissed. 6. On the issue of wilful default, the learned counsel for the petitioners contended that the finding of the Courts below that Ex.P.4 & P.5(Series) counterfoils of rental receipts were false was not sustainable. The said finding was totally uncalled for and the finding that the receipt book appears to have been dismantled and re-stitched is a surmise and surmises cannot lead to definite findings. A perusal of the counterfoils would show that there is nothing suspicious about them. Even otherwise, on the basis of the very findings of the Courts that the rent was Rs.400 per month and not Rs.275, the landlord was entitled to relief of eviction as wilful default was clearly established and hence, the finding of the Courts below were perverse. 7. On the issue of subletting, the learned counsel contends that the stand taken by the tenants that partnership firm was the actual tenant was totally false. In the context of subletting, the learned counsel very heavily relies on the proceeding before the High Court in W.P. No.7582 of 1991 and contended that the conflict in stand taken by the respondent would disclose that the tenants were putting forward false pleas. The order passed by this Court in the said Writ Petition will show that the second respondent had been inducted only as a sub lessee. Learned counsel also very extensively referred to the oral evidence to establish that it was only the first respondent, who was the tenant and not the second respondent, nor the so called partnership firm. The learned counsel for the respondent contends that both the Courts below have categorically found that the counterfoils produced by the landlord were false and concocted and therefore, the petitioners had come to the Court with unclean hands. The counterfoils were not acknowledged by the tenant. The learned counsel further contends that immediately after receipt of notice and even before the petition for eviction was filed, the due rents have been sent to the landlords, which was, however, refused. Therefore, as on the date when the petition for eviction was filed, there was no default. 8. The counterfoils were not acknowledged by the tenant. The learned counsel further contends that immediately after receipt of notice and even before the petition for eviction was filed, the due rents have been sent to the landlords, which was, however, refused. Therefore, as on the date when the petition for eviction was filed, there was no default. 8. On the issue of subletting, the learned counsel for the respondent contends that Ex.P.11, the list of tenants filed on behalf of the landlady would disclose that it was “Swan Laundry”, which was the tenant and not the individual either R1 or R2. The landlady has also given a letter of “no objection” to the Electricity Board for the change of service connection. Learned counsel took me through the evidence extensively to support his contention. Learned counsel finally concluded that this being a revision petition, there were no sufficient grounds to interfere with the concurrent findings of facts by both the Courts. 9. I have heard both sides and also perused the evidence oral and documentary in detail having regard to the nature of the contested claims by both the parties. 10. On the issue of subletting, it is true that there are several factors which disclose that the first respondent was the actual tenant at the inception. Perusal of the oral evidence of the second respondent himself discloses that the electricity connection was only in the name of ‘Sabira Begam’, the first respondent. The second respondent had also admitted that the landlady had given consent for transfer of electricity service only in favour of Sabira Begam as she was the tenant. 11. The communications sent to the Electricity Board and from the Electricity Board to Sabira Begam also disclose that the service connection was provided in the name of Sabira Begam. The second respondent had also filed a Writ Petition in W.P. No.7582 of 1991 against the Electricity Board for Mandamus for directions to the Electricity Board to give service connection to him. Strangely, he did not implead either Sabira Begam or the landlady. The Writ Petition was disposed of with the following observation: “Service connection was given to Mrs. K. Sabira Begam on her proving lawful possession as landlady of the premises. Strangely, he did not implead either Sabira Begam or the landlady. The Writ Petition was disposed of with the following observation: “Service connection was given to Mrs. K. Sabira Begam on her proving lawful possession as landlady of the premises. It is not now in dispute and is proved by the letter of said K. Sabira Begam, that Sabira Begam has surrendered her right in favour of the petitioner, who was her erstwhile partner and therefore, the petitioner has become a sub lessee of the premises. The sub lessee will have lawful possession. Therefore, the respondent is directed to effect the transfer of the service connection in favour of the petitioner after obtaining the indemnity bond from his in the usual form ordered accordingly. No costs”. 12. The above extract shows that the second respondent himself has pleaded that he was a sub lessee under Sabira Begam. Therefore, it is clear that Sabira Begam (first respondent) had been inducted in the possession as a tenant at the inception of the tenancy and the laundry, which she was running had been taken over by the second respondent, who is none else than her brother. It is true that the plea of partnership, dissolution of partnership etc., as pleaded by the second respondent is not substantiated and hence not acceptable. But the fact also remains that the purpose for which the shop was let out was for running laundry as could be seen from Ex.P.11 filed by the landlady herself. It is a list of tenants under her and the impugned tenancy is described as “Swan Laundry”. There is also some evidence to show that both R1 and R2 had carried on business together for some time and later R1 had left, and thereafter, R2 was running the laundry. 13. In the back ground of the above facts, the question which requires determination is as to whether a case of subletting is made out ? It is true that the second respondent had been putting forth certain false and inconsistent pleas and evidence in his anxiety to defend himself. But the fact remains that the shop was let out for running a laundry in favour of R1 and both R1 and R2 have been conducting the shop for some time and later R1 had allowed R2 to take over and continue to run the shop. But the fact remains that the shop was let out for running a laundry in favour of R1 and both R1 and R2 have been conducting the shop for some time and later R1 had allowed R2 to take over and continue to run the shop. Though a specific permission for the changeover might not have been obtained from the landlady, it can be safely concluded that the landlady cannot claim absolute ignorance of the fact of R2 also running the shop along with R1. As the Courts below have pointed out that R1 and R2 are brother and sister and the idea of sub letting would be far fetched. I am also inclined to hold that to a certain extent, the fact of R1 having left the shop, should have come to the knowledge of the landlady and she had not objected to the same. It was only later when the landlady felt it necessary to file a petition for eviction on the ground of default, she had also included a ground of sub letting. A perusal of the eviction petition also shows that no particulars are given as to when exactly the alleged sub letting had taken place and as to whether prompt objection was taken by the landlady as soon as it came to her notice. For all the aforesaid reasons, I do not find any strong ground to interfere with the findings rendered by the Courts below on the issue of sub letting. 14. However, on the issue of default, both the Courts inspite of finding that the rent payable was only Rs.400 and not Rs.275 per month as pleaded by the tenant, nevertheless allowed themselves to be carried away by the conduct of the landlady having produced rental receipts allegedly false in support of her contention that the rent payable was Rs.500 per month. I have perused Ex.P4 & P5 (Series) being counterfoils of receipts. Under Ex.P.4, relating to the year 1989, counterfoils Nos.12, 16, 21, 27, 32, 35, 42, 43, 48, 54, 60, 64, 74, 79 and 83 relate to the respondents, in which the rent is mentioned only as Rs.407. Receipt No.52 relates to advance. It is only Ex.P.5 (Series) relating to the year 1990, Receipt No.3 discloses Rs.507 as the amount received. In Receipt Nos.32, 38, 46, the amount is shown as Rs.500. Receipt No.52 relates to advance. It is only Ex.P.5 (Series) relating to the year 1990, Receipt No.3 discloses Rs.507 as the amount received. In Receipt Nos.32, 38, 46, the amount is shown as Rs.500. It is true that in Ex.P.4(Series), receipts referable to the tenant are of slightly different quality of paper in comparison to the other counterfoils but the amount shown is only Rs.407. But in Ex.P5 (Series), in the four receipts, the amount is shown as Rs.500, and the quality of the paper is not different from that of the other receipts. Having regard to the categoric finding that the monthly rent was only Rs.400 and not Rs.275 as pleaded by the tenant, reference to the suspicious factors in Ex.P.4 appears to be inconsequential. Though the doubt expressed regarding genuineness of Ex.P.4 is definitely correct, as regards the texture and quality of paper of receipts in Ex.P.5, no such doubt could arise except for the fact that there is no signature of the tenant on the backside of the receipts. Some of the receipts in both Ex.P.4 & P5 issued in favour of the other tenants also, they do not contain any counter signature on the back side, though in most of receipts, signature or initial of the tenant is seen on the back side. From the above discussion, it would be clear that doubts do arise regarding the genuineness of the said receipts under Ex.P.4. Therefore, I do not find any ground to set aside the finding that the receipts do not appear to be genuine. 15. The question is as to whether the Courts below were justified in allowing themselves to be carried away only by the said fact (as is evident from the orders of both authorities), in the face of the conduct of the tenant being definitely in default of rent and not having paid the rent at the rate of Rs.400. He had contended that the rent was only Rs.275 and the Courts below had come to the definite conclusion that the rent was only Rs.400. However, in spite of the legal notice by the landlady, the tenant had sent a pay order on 18.2.1991 only for a sum of Rs.564 towards rent for two months, namely at the rate of Rs.275 + 7 per month. Therefore, wilful default is clearly established. No further proof of default would be required. However, in spite of the legal notice by the landlady, the tenant had sent a pay order on 18.2.1991 only for a sum of Rs.564 towards rent for two months, namely at the rate of Rs.275 + 7 per month. Therefore, wilful default is clearly established. No further proof of default would be required. In fact, even RCOP No.2500 of 1991 in the petition filed by the tenant for deposit of rent, the tenant had sought to deposit only Rs.275 per month and not Rs.400 and the tenant was depositing rent only at the rate of Rs.275 per month. 16. Inthis case, the conduct of the respondent is reprehensible. He has pleaded falsely that the rent was only Rs.275. He had also put forth several other false and conflicting contentions as aforesaid in the context of sub letting. On the issue of sub lease, he has been given only the benefit of doubt having regard to the fact that he is the brother of the original tenant and that the landlord had not taken prompt steps. When he filed writ petition No.7582 1991, he pleaded before this Court that he was a sub lessee. It is also seen that he has gone to the extent of denying the title of the first petitioner and would go to the extent of saying that it was only the second petitioner who was the owner of the property. Though in this case denial of title is not raised as an issue, and his defence on the issue of sub-letting is not relevant for the issue of default, the above facts are stated only to show that the conduct of the second respondent is no better and he has been taking different stands on different occasions to suit the situation. In the context of the quantum of rent, he has put forth positively a false plea that the rent was only Rs.275, which is found to be false by both the authorities. The principle that parties should approach the Court with clean hands is applicable to both sides and not to the petitioner alone. The powers of the Tribunal under the Rent Acts are statutory and the rights of both the parties are also statutory. The principle that parties should approach the Court with clean hands is applicable to both sides and not to the petitioner alone. The powers of the Tribunal under the Rent Acts are statutory and the rights of both the parties are also statutory. The remedy is not discretionary as for instance, in the case of specific performance suits where the case can be thrown out if the pleading of the plaintiff is not complete and discloses suppression of material facts or suggesting false facts. Even in a common law proceeding, for instance, in partition suits, in every second or third case, the plaintiff will contend that there was an earlier partition and rely on a partition chit and also alternatively pray for partition. The Court may disbelieve prior partition and the partition chit but would be obliged to grant a decree for partition if the plaintiff has a rightful share in the property. It would no doubt be a very noble and acceptable conduct of parties and to insist that parties should not plead falsely or concoct false evidence. But when both parties plead false facts, it would not be proper for a statutory Tribunal to ignore the obvious facts and deny relief to the petitioner to which he is otherwise entitled to. In a country dominated by illiterates, it is also not possible to know who is actually responsible for the wrong pleading or production of false evidence. Cases of wrong legal advice are not rare. Therefore, in a statutory proceeding, when the facts entitling an order of eviction is established, the relief cannot be denied by the statutory Tribunal, in a case where both parties have put forth false pleadings and evidence. 17. In Kanta Goel v. Pathak, 1977 (2) SCC 814 , the Supreme Court held that “the complications of estoppel or even the concepts of Transfer of Property Act need not necessarily or inflexibly be imported into the proceedings under the Rent Control law, tried by Special Tribunals under a special statute”. 18. In Raju Chettiar v. State of Tamil Nadu , 1970 MLJ (1) 249 a Division Bench of this Court held that Act should be administrated in such a way that it should maintain a balance between landlords and the tenants and in cases of hardship, the party on whom the hardship lies should be relieved. 18. In Raju Chettiar v. State of Tamil Nadu , 1970 MLJ (1) 249 a Division Bench of this Court held that Act should be administrated in such a way that it should maintain a balance between landlords and the tenants and in cases of hardship, the party on whom the hardship lies should be relieved. In this case, both the Courts have found that the rent payable was only Rs.400 and not Rs.275 and the wilful default, thus, being clearly established, the Courts below were not justified in holding that there was no wilful default. The finding is not only an error on the face of the record and on the admitted evidence is also perverse. Even the subsequent conduct of the tenant in filing of the petition under Section 8(5) to deposit only Rs.275 per month adds to the wilful and deliberate nature of the conduct not to pay the due rent. In fact, the petition for deposit itself came to be filed only much later viz., on 1.10.1991. 19. This is not a case of genuine dispute over the quantum of rent or any uncertainty and the quantum is arrived at by the Courts after a discussion of the evidence. This is a case in which the truth is found out from the admission of the tenant himself in the Writ Petition before this Court which he had filed with reference to the electricity supply and he has sworn to the fact that the rent was Rs.400 per month. But, in these proceedings where default is in issue, he deliberately puts forth a false contention that only Rs.275 was the monthly rent and pays for the default period only at that rate and also obtains permission under Section 8(5) to deposit rent only at that rate. The landlord might have failed to establish that the rent was Rs.500 per month. But, that cannot absolve the conscious and deliberate failure and default of the tenant to pay the admitted rent. 20. The further contention that the rent has been paid even before filing of the petition and therefore, there was no default cannot at all be accepted for three reasons. Firstly, the payment of rent after notice to quit, by itself alone will not disentitle the landlord from seeking for eviction unless he accepts the rent without protest. 20. The further contention that the rent has been paid even before filing of the petition and therefore, there was no default cannot at all be accepted for three reasons. Firstly, the payment of rent after notice to quit, by itself alone will not disentitle the landlord from seeking for eviction unless he accepts the rent without protest. If the notice is under the Explanation to Section 10(2) merely claiming the rent and the tenant pays the arrears within the period of the two months, the issue will be different. This is a case of notice for eviction and the landlord has refused to receive the tendered amount. This legal issue has been discussed in detail in K.S. Pandian v. Rukmani Bai and others , 2001 (1) CTC 356 : 2001 (1) LW 801 . Secondly, he had refused to accept the rent for several reasons and had not acquiesced before filing eviction petition. Thirdly, this defence is not at all open to the respondent even on the facts considering that in the pay order dated 18.2.1991, only a sum of Rs.564 was sent claiming to be the rent for two months viz., December 1990 and January 1991 on the basis of the calculation of Rs.275 per month and not at the rate of Rs.400 per month. Therefore, there is no payment of the agreed rent before the filing of the petition. For all the aforesaid reasons, I am inclined to set aside the finding of both the Courts below relating to wilful default and hold that the tenant is guilty of wilful default. 21. With the result, CRP No.2625 of 1997 is partly allowed to the extent of setting aside the finding of the Courts below on the question of wilful default. 22. As a result of the finding thus recorded, the petition filed by the respondent/tenant for depositing the rent at the rate of Rs.275 per month cannot be countenanced. As a result, CRP No.2626 of 1997 is allowed and RCOP No.2500 of 1991 is dismissed. However, the landlord will be entitled to withdraw the amount in deposit, if any. No costs.