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2005 DIGILAW 100 (MAD)

S. R. Krishna Iyer v. K. V. Lalitha & Another

2005-01-24

V.KANAGARAJ

body2005
Judgment :- The above civil revision petition is directed against the Judgment and decree dated 28.4.1999 rendered in R.C.A.No.8 of 1996 by the Rent Control Appellate Authority (Subordinate Judge) Kumbakonam thereby by confirming the fair and decretal order dated 24.4.1996 made in R.C.O.P.No.25 of 1990 by the Rent Controller (District Munsif) Kumbakonam. 2. The tenant who has lost his case before both the Courts below is the petitioner herein. The first respondent who is the landlord has filed a petition under Sections 10(2)(i) and 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act) in R.C.O..No.25 of 1990 on the file of the Court of Rent Controller (District Munsif) Kumbakonam as against the appellant herein on averments such as that the husband of the first respondent is the owner of the building and after his demise, the first respondent became the owner of the said property; that the appellant herein took up the tenancy in the said premises on a monthly rent of Rs.25/- payable according to English calender month; that even after the expiry of lease period, at the request of the appellant herein he was permitted to run his family business by fixing the machinery with an enhanced monthly rent of Rs.100/-; that the appellant herein was regular in paying the rent till May ,1989; that thereafter, he was irregular in payment of monthly rents and the payments made by the respondents towards rents were duly acknowledged by the husband of the first respondent; that the appellant herein had actually failed and neglected to pay the rents for the period from June,1989 till filing of a petition; that the first respondent herein required the premises for her own use and occupation; that she has to extend her weaving business in the said premises; that since the petitioner herein did not vacate the premises even after the repeated requests made by the first respondent, she has also issued a notice on 20.6.1990 demanding the arrears of rent due by the petitioner for the period from June 1989; that the petitioner herein sent a reply dated 27.7.1990, further sending a sum of Rs.540/- at the rate of Rs.90/- per month till June 1990; that the first respondent herein received the said amount under protest; that since the petitioner herein paid the rent amount in a lumpsum, he has committed wilful default. 3. 3. The petitioner herein, who is the respondent in the main RCOP No.25 of 1990 had filed the counter thereby denying all the allegations of the petition filed by the first respondent herein. He has further submitted that the monthly rent of the petition premises is only Rs.90/- but not Rs.100/-; that with the permission of the first respondent's husband, he has spent Rs.4,500/- to provide electric connection and the hand pump in the premises; that there is no default on the part of the petitioner herein; that as required by the first respondent herein through the Legal Aid Committee, he has to pay the arrears of rent for five months due from January 1990, that since the first respondent herein refused to receive the same, after the receipt of the notice, he has sent a demand draft dated 25.7.1990 for a sum of Rs.540/- at the rate of Rs.90/- per month from 1.1.1990 to 30.6.1990; that he is ready and willing to pay the rent at the rate of Rs.90/- per month from 1.7.1990 and hence there is no default on the part of the petitioner herein; that it is not true to say that the first respondent requires the premises to expand her weaving business, since she is not able to maintain the existing weaving business; that further, since the petitioner herein is doing weaving business in the premises of the first respondent, if he is evicted from the premises, it would cause great loss and hardship to the petitioner herein. 4. Based on the above pleadings by the contesting parties, the Rent Controller has conducted a thorough enquiry wherein on behalf of the first respondent, she besides examining herself as P.W.1, she would also examine yet another witness namely Kuppammal as P.W.2 for oral evidence and would also mark three documents for documentary evidence as Exs A1 to A3 and on behalf of the petitioner herein he has not only examined himself as R.W.1, but also would examine two other witnesses as R.Ws 2 and 3 for oral evidence and would mark three documents for documentary evidence as Exs R.1 to R3. Thereupon, the Rent Controller, in appreciation of the oral and documentary evidence placed on record, would ultimately order eviction of the petitioner herein. Thereupon, the Rent Controller, in appreciation of the oral and documentary evidence placed on record, would ultimately order eviction of the petitioner herein. Aggrieved, the petitioner herein preferred an appeal in RCA NO.8 of 1996 before the Rent Control Appellate Authority and the (Subordinate Judge),Kumbakonam and since the said appeal was dismissed thereby confirming the order of eviction passed by the Rent Controller, the respondent in the main RCOP has come forward to file the above civil revision petition on certain grounds as brought forth in the grounds of revision. 5. During arguments, the learned counsel for the petitioner would submit that the first respondent herein, as the landlord of the premises, which is the subject matter concerned with the dispute has filed RCOP No.25 of 1990 before the Court of Rent Controller (District Munsif) Kumbakonam as against the petitioner, admittedly the tenant of the premises, under Sections 10(2)(i) and 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960. On pleadings such as that the first respondent-husband one Venkatachalapathy was the original owner of the premises from whom, she succeeded the same; that the revision petitioner became the tenant of the said premises on the monthly rent of Rs.25/- initially running his family business by fixing the machinery and at a later stage, the rent was enhanced at the rate of Rs.100/- and it is the admitted case of the first respondent that till May 1989, the revision petitioner was regular in payment of the monthly rents and thereafter he failed and neglected to pay the rents for the month of June 1989 till the filing of the petition thus committing willful default and violating the Section 10(2)(i) of the said Act. The further case of the first respondent is that she requires the premises for extending her own weaving business in the said premises thus wanting the same for her own use and occupation and inspite of repeated requests made on her part with the petitioner forwarded a notice dated 20.6.1990 demanding the arrears of rent from June 1989, the revision petitioner not only in sending a sum of Rs.540/- at the rate of Rs.90/- per month being the rent till June 1990 but also sent a reply dated 27.7.1990; that the first respondent acknowledged and received a sum of Rs.540-/ being the arrears of rent but also the reply under protest and in having made the delayed payment in lumpsum, the revision petitioner had committed willful default in the payment of rent and hence the Rent Control Original Petition, on both grounds of willful default and requirement of the premises for her own use and occupation. 6. In the counter filed by the revision petitioner/tenant besides denying the allegations, he would submit that the enhanced monthly rent was only Rs.90/- and not Rs.100/-; that for the permission of the original landlord, the husband of the first respondent, he spent a sum of Rs.4,500/- to provide electric connection and to install the hand pump in the premises and deducted the same from the monthly rents and therefore, there was no willful default. However, since it was specifically required to be paid, he paid a sum of Rs.540/- being the rent for the alleged period from June 1989 to the filing of the petition through Legal Aid Committee; that on refusal by the first respondent sent it by demand draft that he has been ready and willing to pay the rents at the agreed rate of Rs.90/- per month from 1.7.1990 onwards and therefore, there is no willful default much less in willful manner; that under Section 10(3)(c) of the said Act, the first respondent requires the premises to expand her weaving business, since she is not able to maintain the existing weaving business is a false statement and for the purpose of evicting the tenant, the revision petitioner herein, and on such allegations, he would pray for dismissal of the above Rent Control Original Petition. 7. 7. During the enquiry, the first respondent besides examining herself as P.W.1, she would also examine yet another witness namely, Kuppammal as P.W.2 for oral evidence and would also mark three documents for documentary evidence as Exs. A1 to A3 and on behalf of the petitioner herein i.e., the original letter dated 29.6.1974 entered into between Venkatachalapathy and the revision petitioner; Ex A2, a copy of the legal notice dated 20.6.1990 issued to the first respondent by the petitioner; and Ex A3 the reply dated 27.7.1990 issued by the petitioner to the first respondent. Likewise on the part of the petitioner-tenant also, he would not only examine himself as R.W.1, but also would examine two other witnesses as R.Ws 2 and 3 for oral evidence. Besides marking three documents in his favour as Exs. R1 to R3 namely, Ex R1 being the Will executed by one Nagamani Ammal dated 20.2.1963 , Ex R2 being the document of Kumbakonam M.K.Kuppusamy Chettiar & Sons and Ex.R3 is the money order coupon. 8. The Rent Controller having framed four points for determination of the Rent Control Original Petition and having discussed the facts and circumstances of the case and in the application of evidence placed on record would contend that it is an admitted fact that the revision petitioner is the tenant of the first respondent following the lease deed entered into between the revision petitioner and her husband; that the first respondent's husband was alive till 1989 and there has been a dispute in the ownership of the premises in between the first respondent and one Nagammal who is none other than the wife of the revision petitioner and sister of the husband of the first respondent having been born with the second wife of his father and ownership has also been claimed in favour of the wife of the revision petitioner. 9. 9. Thereafter the Rent Controller would start with discussing the ownership of the premises particularly relating to the rights of the revision petitioner's wife and the first respondent and would conclude that the denial of ownership of the first respondent by the revision petitioner was not bonafide thus answering the first issue pointed out by the Rent Controller then having his discussion stating that at the time that the Rent Control Petition was filed, there was arrears of rent for only one month and this non payment of rent would be decided on the part of the Rent Controller as willful. Admittedly, there has been a dispute between the parties of ownership. However, it would be seen that the said one month rent had also been paid at a later stage. Moreover, the case of the revision petitioner being that he had spent a sum of Rs.4,500/- to provide electric connection and to install hand pump in the premises with the consent of the original owner and it was deductable from the rent as per the understanding. In these circumstances and taking into consideration of the non payment of rent for a period of one month, the Rent Controller has arrived at the conclusion to hold that there had been willful default in payment of the monthly rent which is not able to be accepted by this Court particularly in view of the fact that the revision petitioner is willing to pay even the said rent or any other rents alleged to be that he is in arrears, provided the dispute regarding the ownership of the premises and further taking into consideration of the amount of Rs.4,500/- spent by him for the electric connection with the consent of the original owner. 10. If on such technicalities which are minor and negligible in nature, willful default is arrived at, then no tenant is safe regarding his right of tenancy. 11. Therefore, it has to be held that inconsistent and erroneous conclusion has been arrived at by the Rent Controller regarding this point whether the revision petitioner had committed willful default in payment of rent or not. Every default is not a willful default. 11. Therefore, it has to be held that inconsistent and erroneous conclusion has been arrived at by the Rent Controller regarding this point whether the revision petitioner had committed willful default in payment of rent or not. Every default is not a willful default. In his oral evidence and by other sources, such as the pleadings, the revision petitioner has made it clear that there was a dispute at the relevant point of time regarding the ownership himself claiming the property on behalf of his wife and therefore willful default cannot be attributed on the non payment of rent for a period of one month but still the further case is to be seen that when it was emphasised in sending the demand draft, he had taken the rent and therefore, if at all there is a slackness, no motive could be attributed for the same in the payment of rent so as to conclude that it was a wilful default as required under law. 12. Further coming to the other question reqarding the claim of premises by the landlord for her own use and occupation that even though, the first respondent has claimed in the name of expanding her weaving business in order to increase the income, in order to celebrate the marriage of her daughter at the time of trial in RCOP, it is an admitted fact that on the part of the first respondent that the marriage of her daughter had been over thus in law, this claim of her own use and occupation also becomes infructuous. However, the Rent Controller himself would arrive at the conclusion that it was not a bonafide claim of the first respondent for her own use and occupation and ultimately, the trial Court has arrived at the conclusion to order evicting the revision petitioner from the premises and handing over the possession with the first respondent since the first and second points were ordered in favour of the first respondent particularly regarding the claim of willful default. 13. Since even regarding the willful default in payment of rent, no proper conclusion has been arrived at by the Rent Controller in the fair and decretal order passed by him in the RCOP so far as the first claim of willful default is concerned which has to be set aside and the same is ordered accordingly. 14. 13. Since even regarding the willful default in payment of rent, no proper conclusion has been arrived at by the Rent Controller in the fair and decretal order passed by him in the RCOP so far as the first claim of willful default is concerned which has to be set aside and the same is ordered accordingly. 14. The Appellate Authority having framed its own point for consideration numbering five and sailing along with the order of the Rent Controller and in deciding that the case is proved has grievously erred in its decision ultimately confirming the fair and decretal order of the Rent Controller and therefore, needless to mention that the Judgment of the Appellate Authority also equally becomes liable to be set aside and the same is ordered accordingly. Excepting for sailing along with the discussion to arrive at the decision of the Rent Controller, no new fact or circumstance has been brought forth by the appellate authority in confirming the fair and decretal order of the Rent Controller, and the same are only repetition of the discussions and decisions held by this Court regarding the Rent Controller's order and therefore, suffice it to conclude that the Appellate Authority in confirming the fair and decretal order of the Rent Controller has only committed error not only in its conclusion but also the manner in which the said conclusions have been arrived at and hence the following order In result i) the above Civil Revision Petition succeeds and the same is allowed; ii) The judgment and decree dated 28.4.1999 made in RCA NO.8 of 1996 by the Court of Appellate Authority (Subordinate Judge) Kumbakonam thereby confirming the fair and decretal order dated 24.4.1996 made in RCOP NO.25 of 1990 by the Rent Controller (District Munsif) Kumbakonam is hereby set aside. iii) there will be no order as to costs.