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2005 DIGILAW 1023 (MAD)

Abdul Razack v. Mohammed Sali

2005-07-06

A.KULASEKARAN

body2005
Judgment :- (Petition under Article 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act against the order dated 14-03-2005 made in R.C.A.No.54 of 2003 on the file of Rent Control Appellate Authority (Principal Subordinate Judge) Tirunelveli confirming the order and decree dated 24-09-2003 made in R.C.O.P. No. 31 of 2002 on the file of Rent Controller (Principal District Munsif) Tirunelveli.) The tenant, who lost his case before the courts below in the proceedings initiated by the landlord for eviction under Section 10 (2) (i) and 10 (3) (a) (iii) of Tamil Nadu Buildings (Lease and Rent Control) Act is the revision petitioner herein. 2. The respondent herein is the landlord of the premises at Door No.10-A, S.N. High Road, Tirunelveli junction, but the land thereunder belonged to Dharga. The demised premises was leased out by the respondent to the revision petitioner for a monthly rent of Rs.200/- and the same was enhanced to Rs.700/- at the time of filing the Rent Control Original Petition, which is payable on or before 5th of every succeeding English calander month. The above said facts are not in dispute. 3. It is also not in dispute that the revision petitioner and the respondent were carrying on business under partnership; that dispute arose between them and a case in O.S. No. 18 of 2000 was filed by the revision petitioner herein against the respondent before the Additional District Munsif Court, Tirunelveli for bare injunction restraining the landlord/respondent herein from interfering with his peaceful possession and enjoyment of the property as a tenant. In the written statement filed by the landlord/ respondent herein, it is stated that the revision petitioner herein is not his tenant; while so, invoking the Rent Control Act is untenable. PW1 in his evidence has stated that though he and the revision petitioner have commenced business under partnership, he received rent separately from him and during the relevant period, the partnership was not continued. In the eviction petition filed by the respondent, it is clearly stated that the revision petitioner herein is his tenant. PW1 in his evidence has stated that though he and the revision petitioner have commenced business under partnership, he received rent separately from him and during the relevant period, the partnership was not continued. In the eviction petition filed by the respondent, it is clearly stated that the revision petitioner herein is his tenant. The revision petitioner has also in his counter in the eviction petition has stated that he is a tenant for a monthly rent of Rs.700/- which is being received by the respondent and necessary endorsements were also made in the note books, besides, he used to send the rent by money order also, which shows the relationship of the landlord and tenant was in existence, hence the said plea namely the respondent was a partner and no relationship of landlord and tenant was in existence are untenable, which was rightly disallowed by both the courts below. 4. During the pendency of the said suit, the revision petitioner herein has allegedly not paid the rent for the period commencing from September 2001 to February 2002 and according to the respondent herein, the said default in payment of rent by the tenant is wilful as defined under Section 10 (2) (i) of the Rent Control Act. The respondent herein has filed the eviction petition on the ground of wilful default and also for his own occupation stating that his son, who studied computer education, is unemployed and the demised premises is required for his computer business. 5. Before the Rent Controller, the respondent herein has marked Exs.P1 to P5 and examined himself as PW1 and his son as PW2. The revision petitioner herein has marked Exs.R1 to R3 and examined himself as RW1. 6. The case of the respondent is that the revision petitioner has committed wilful default in payment of rent from 01-09-2001 onwards. The revision petitioner herein deposited the rent before the court below on 22-04-2002 representing the period January 2002 to March 2002. Thereafter, he deposited the rent for the month of April and May 2002 on 11-06-2002 which is evident from Ex.P4. The revision petitioner herein deposited the rent before the court below on 22-04-2002 representing the period January 2002 to March 2002. Thereafter, he deposited the rent for the month of April and May 2002 on 11-06-2002 which is evident from Ex.P4. The revision petitioner herein said to have paid the rent upto September 2001 and endorsement was made in a note book by the respondent and sent the rent by money order for the period November 2001 which was received but the money order sent for the period December 2001 to February 2002 was allegedly returned by the respondent, however, the said note book and money order receipts were stated to have been stolen and they were not marked by him before the courts below. From the said plea of the revision petitioner, it is apparent that admittedly, no payment was made for the month of December 2001. 7. The courts below held that though the revision petitioner herein has contended that the rent was paid by means of money order for the month of December 2001 to January 2002 and it was returned deliberately by the respondent herein, no valid evidence has been placed before the courts below, besides further period after RCOP was filed, no deposit was made in time. 8. The Rent Control Act provides mechanism that if the landlord refuses to accept, or evades the receipt of, any rent lawfully payable to him by a tenant in respect of any building, the tenant may, by notice in writing, require the landlord to specify within ten days from the date of receipt of the notice by him, a bank into which the rent may be deposited by the tenant to the credit of the landlord. If the landlord specifies a bank as aforesaid, the tenant shall deposit the rent in the bank and shall continue to deposit in it any rent which may subsequently become due in respect of the building. If the landlord does not specify a bank as aforesaid, the tenant shall remit the rent to the landlord by Money Order, after deducting the money order commission. If the landlord refuses to receive the rent remitted by Money Order under sub-section (4), the tenant may deposit the rent before the Controller and continue to deposit with him any rent which may subsequently become due in respect of the building. 9. If the landlord refuses to receive the rent remitted by Money Order under sub-section (4), the tenant may deposit the rent before the Controller and continue to deposit with him any rent which may subsequently become due in respect of the building. 9. Admittedly, the revision petitioner has not exhausted the said provisions. In the absence of any valid documents to prove that rental arrears were paid directly after getting endorsement in the note book or sent by money order and in view of the admitted fact that the revision petitioner has not availed the mechanism provided in the Act as mentioned above, the said attitude is an element of indifference which is deliberate and wilful. Hence, the conclusion arrived at by the courts below that the default of the revision petitioner herein is wilful deserves no interference. 10. So far as the second ground namely owners occupation for eviction is concerned, the respondent herein has examined his son as PW2, who, in his evidence has stated that he is qualified in doing computer oriented business; that the demised premises is required for his business of printing invitation and visiting cards and except the said building, they own no other building and the demised premises is located in Tirunelveli junction which is suitable for his business. The revision petitioner also contended that Exs.P1 and P2, the course completion certificate issued by the establishment in favour of the respondent's son is owned by his relatives hence the same ought not to be relied. 11. Section 10 (3) (a) (iii) of the Rent Control Act says that 'in case it is any other non-residential building, if the landlord or (any member of his family) is not occupying for purposes a business which he or (any member of his family) is carrying on, a non-residential business in the city, town or village concerned which is his own.' 12. The conditions for obtaining possession under Section 10 (3) (a) (iii) of the Rent Control Act is that the building should be non-residential in character; that the landlord must be in need of the premises under the tenant's occupation for his own business or that of a member of his family. 13. Now it is to be seen as to whether the respondent herein has satisfied the conditions contemplated under Section 10 (3) (a) (iii) of the Act or not. 14. 13. Now it is to be seen as to whether the respondent herein has satisfied the conditions contemplated under Section 10 (3) (a) (iii) of the Act or not. 14. The respondent herein has examined himself as PW1 and his son as PW2 and marked Exs.P1 to P5. The oral evidence let in by the respondent shows that he is not having any other non-residential building in the locality, except the demised premises. The courts below also given a finding that except the demised premises, there is no other premises owned by the respondent within Tirunelveli Corporation limits and there is no evidence let in by the revision petitioner to disprove it. The fact that the respondent's son is in need of the demised premises also not disproved by the revision petitioner by placing any evidence. Mere allegation that the certificates namely Exs.P1 to P3 were issued to PW2 by their relatives no way useful to the revision petitioner, in the absence of any evidence. 15. The evidence let in by the respondent shows that he has proved that his necessity to occupy the demised premises is genuine and reasonable. Hence, it is unwarranted for this Court to interfere with the orders passed by the courts below, besides, no argument relating to question of law was advanced before this Court. 16. In the result, the revision is dismissed. No costs. Consequently, connected CMP is closed.