Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 1135 (MAD)

R. Sudhandhira Devi v. K. Navanithakrishna

2005-07-22

M.THANIKACHALAM

body2005
Judgment :- (Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent control) Act praying to set aside the judgment dated 17.7.1997 rendered in R.C.A.No.88 of 1993 by the Rent Control Appellate Authority (Principal Sub Judge), Madurai thereby reversing the order dated 28.7.1993 made in R.C.O.P.No.171 of 1986 by the Rent Controller (Additional District Munsif), Madurai.) The landlords, who were successful in getting an order of eviction before the Rent Controller, have failed to sustain the same, when it was challenged before the Appellate Authority and the result is this revision petition. 2. The petition mentioned building, a non-residential one, belongs to the petitioners 1 and 2 in the R.C.O.P., who are sisters. The husband of the second petitioner is carrying on jewellery business in a rented building whereas the husband of the first petitioner has acquired experience in gold jewellery business. Because of these facts, the building is required for the husbands' of the petitioners 1 and 2 for the purpose of carrying on their business. The tenant, who has agreed to pay a monthly rent of Rs.300/= for the demised premises, has not paid the rent from April, 1984 to January, 1986, for a period of 22 months, despite notice. On the above said grounds, viz. wilful default and for personal occupation, invoking the provisions of Sections 10(2)(i) and 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter called 'the Act'), the landlords have filed the petition in R.C.O.P.No.171 of 1986 for the eviction of the tenant/respondent. 3. The tenant/respondent objected the claim of the landlords, contending that the agreed monthly rent for the demised premises is only Rs.65/= and not Rs.300/= as alleged, that the rent has been paid upto the end of January, 1986 and thereafter, when tendered, the landlords have refused to receive the same demanding enhanced rent at the rate of Rs.300/= p.m., resulting rents being sent by Money Order and that the husbands' of the petitioners 1 and 2 are not carrying on any business and that the requirement for their occupation, invoking Section 10(3)(a)(iii) is not true as well as not bona fide. 4. On the basis of the above pleadings, parties went on trial before the Rent Controller. The Rent Controller examined P.W.1. 4. On the basis of the above pleadings, parties went on trial before the Rent Controller. The Rent Controller examined P.W.1. i.e. the husband of the second petitioner in the R.C.O.P. and marked certain documents, which were sought to be nullified by the examination of the tenant as R.W.1 in addition to seeking aid from certain documents. The evaluation of the above materials satisfied the Rent Controller to certain extent to say 'YES' to the claim of the landlords. Though the landlords have claimed in the petition that the agreed rent between the parties for the demised premises was Rs.300/= p.m., a peculiar finding has been given by the Rent Controller, concluding the agreed rent as Rs.150/= p.m., which is neither the case of the landlords nor the case of the tenant. Thus concluding, the contractual monthly rent between the parties must be Rs.150/=, the Rent Controller has further deduced that the tenant has not paid the rent at the rate of Rs.150/= p.m. for the period mentioned and therefore the non-payment of the rent should amount to 'wilful default'. Then, while discussing the claim of the landlords for personal occupation, the Rent Controller has come to the conclusion that the petitioners are carrying on business in the name and style of 'Rajagopal Jewellers' in a rented premises and therefore, their requirement of their own property for their personal occupation must be bona fide. It is also the conclusion of the Rent Controller that the tenant cannot dictate the landlords to choose the place for their business, as seen from paragraph 10 of the order. Thus concluding, the Rent controller has ordered eviction of the tenant, as per the order dated 28.7.1993, which came to be challenged before the Appellate Authority in R.C.A.No.88 of 1993. 5. The learned Appellate Authority, scanning the materials available on record and going through the order passed by the Rent Controller, felt that the approach of the Rent Controller in deciding the case is not in accordance with law since he has committed error not only in concluding that the tenant has committed wilful default but also in concluding that the premises is required for the personal occupation of the landlords. He has further came to the conclusion that the agreed rent between the parties was only Rs.65/= p.m. and the rents were periodically paid as disclosed by the documents produced on behalf of the tenants and thereafter, the landlords alone have failed to receive the amounts when tendered through Money Order and that after the filing of the R.C.O.P., the tenant is periodically depositing the rents into the Court. In this view, unable to agree with the findings of the Rent Controller, the Appellant Authority has upset the finding of the Rent controller regarding wilful default. 6. In the same manner, regarding the personal occupation also, by going through the insufficient pleadings and insufficient evidence, which failed to establish the ingredients of Section 10(3)(a)(iii) of the Act, the Appellate Authority was unable to concur with the finding of the Rent controller and the result was upsetting this finding also, thus, the appeal came to be allowed, setting aside the order of the Rent Controller, and dismissing the R.C.O.P., on 17.7.1997, which is under challenge in this revision petition. 7. Heard both. 8. The learned counsel for the revision petitioners/landlords submitted that the tenant has not paid the rent from April, 1984 to January, 1986, whether it is Rs.65/= p.m. or Rs.300/= p.m., as the case may be, and the non-payment of the rent should be construed as 'wilful default' as done by the Rent Controller, that too considering the inaction on the part of the tenant to invoke the provisions under Section 8 of the Act, assuming that the landlords have refused to receive the rents. It is the further submission of the learned counsel for the revision petitioners that by unquestionable documents, it is established that the husband of the second petitioner in the R.C.O.P. is carrying on business in jewellery in a rented premises and in order to carry on the said business in the demised premises, the personal occupation claim is genuine, coated with bona fide, which were properly considered by the Rent Controller, but, unnecessarily, on erroneous grounds, upset by the Appellate Authority, thereby warranting the interference of this Court, exercising the revisional jurisdiction. 9. 9. Responding to the above said submissions of the learned counsel for the revision petitioners/landlords, the learned counsel for the respondent/tenant would contend that the very fact that the landlords have alleged falsely that the agreed rent was Rs.300/= p.m. as against the admitted fact, itself is sufficient to doubt about the claim of wilful default, the further fact being the agreed rent of Rs.65/= p.m. was periodically paid as entered in the account books of the tenant, which fact was properly considered by the Appellate Authority. It is the further submission of the learned counsel for the tenant that there are no clear-cut pleadings in the original petition such as 'whether the husband of the second petitioner was carrying on his business, whether it is a rented premises, if so, what is the rent payable, etc.' and the evidence also failed to establish that the husband of the second petitioner was carrying on business of his own to make a claim over the demised premises, for the personal occupation, coming under the definition of 'family members'. Further, it was submitted that even as per the documents available before the Court, the alleged jewellery business was not carried on by P.W.1 individually and if at all, it must be the joint venture along with another, which will not come within the ambit of Section 10(3)a)(iii) of the Act. In support of the above submissions, inviting my attention to certain documents, it was urged by the learned counsel for the tenant that the Appellate Authority has properly considered all these aspects, and therefore, the revision is devoid of merits, liable to be dismissed. 10. In order to ascertain the default or the wilful default, as the case may be, first it should be fixed as to what is the agreed rent or contractual rate of rent. Then, the period should be fixed. It is for the landlords to plead specifically regarding the inception of tenancy, rate of rent, then, if there was subsequent change, from which period the tenant had agreed to pay the enhanced rent, if any, etc. Then, the period should be fixed. It is for the landlords to plead specifically regarding the inception of tenancy, rate of rent, then, if there was subsequent change, from which period the tenant had agreed to pay the enhanced rent, if any, etc. If these particulars are not furnished, but only a vague pleading is made, then it is not possible for any Court to fix the default or the wilful default on the tenant, that too when the materials placed by the tenant had established that the agreed rent is not as claimed by the landlords. In this case, the later part of the above said situation alone prevails and there is no clear-cut case on the side of the landlords. 11. At this juncture, for better appreciation, the pleadings in the R.C.O.P. should be remembered. The duty cast upon the landlord cannot be disowned, contending that pleadings in the rent control proceeding should not be strictly construed, since the minimum requirements of the pleadings to satisfy the ingredients required for eviction must be placed. If that is not available or if the pleadings are proved to be false, then, accepting the case of default or wilful default is remote. 12. By going through the entire pleadings in the R.C.O.P., paying much concentration also, my endeavour to find out the origin of the tenancy or the enhancement of the rent at a later point of time ended in vain. Paragraph No.3 of the petition in the R.C.O.P. Reads: ".... The respondent is a tenant therein carrying on business on a monthly rent of Rs.300/=. Tenancy month is according to English calender month...." No other details are given such as, the original rent was Rs.65/= and later it was enhanced, as agreed between the parties, etc. In this case, before filing of the rent control petition, there was exchange of notices also between the parties,wherein the tenant has categorically stated that the agreed monthly rent was only Rs.65/=. This being the position, while filing the R.C.O.P., a duty is cast upon the landlords to say whether the original rent was Rs.65/= p.m. and if so, when it was enhanced, etc., which are absent in this case. This being the position, while filing the R.C.O.P., a duty is cast upon the landlords to say whether the original rent was Rs.65/= p.m. and if so, when it was enhanced, etc., which are absent in this case. As rightly held by the Courts below, including the Rent Controller, who favoured the landlords, there are no materials to indicate that the tenant had agreed to pay a sum of Rs.300/= as monthly rent. This being the position, the complaint of the landlords in the petition that the tenant has not paid the rent at the rate of Rs.300/= p.m. for 22 months, must be negatived and the same cannot be construed as 'default' or 'wilful default'. 13. P.W.1, the husband of the second petitioner in the R.C.O.P., has also not given evidence as to when the monthly rent, fixed originally at Rs.65/=, was enhanced to Rs.150/= or Rs.300/=, as the case may be. There is no plea in the R.C.O.P. about the existence of any lease agreement between the parties, whether it is dated 1.4.1980 or otherwise. In the absence of any such plea, aid of Ex.A.8 was sought by the landlords, to prove the quantum of rent at Rs.300/= p.m. The tenant, as R.W.1, had specifically denied the execution of this document. By going through Ex.A.8, it is not known, who has filled up this printed lease agreement. Admittedly, P.W.1 is not the signatory to this document. On the other hand, we find the signatures of petitioners 1 and 2. Therefore, if at all, the competent person to speak about the execution of Ex.A.8 must be the petitioners 1 and 2, who are the signatories. However, for the reasons best known to the landlords, they have avoided the box, apprehending cross-examination. If this document had been pleaded, either in the pre-petition notice or in the petition, then, as spoken about by P.W.1, there is some possibility to accept its genuineness. In the absence of any such plea, all of a sudden, taking the tenant to a surprise, a document was produced, spoken by P.W.1, who is not directly connected with the execution of the document, except he being the husband of the second petitioner. Therefore, accepting the uncorroborated ipse dixit of P.W.1, is not possible, which was not properly considered by the learned Rent controller, whereas it was properly considered by the Appellate Authority. Therefore, accepting the uncorroborated ipse dixit of P.W.1, is not possible, which was not properly considered by the learned Rent controller, whereas it was properly considered by the Appellate Authority. Even the Appellate Authority, on his own, by virtue of the power available under Section 73 of the Evidence Act, compared the admitted signatures of the tenant with the disputed signature found in Ex.A.8 and unable to satisfy himself that Ex.A.8 contains the signature of the tenant. Further, as seen from the cross-examination of R.W.1, it appears, Ex.A.8 was shown to him, which was denied. Then, at least, by way of suggestion, though it may not take the place of proof, in the absence of corroborative evidence, the landlord should have put some question to R.W.1 that Ex.A.8 does contain his signature, which is wanting in this case. Therefore, in my considered opinion, the Appellate Authority's decision, in rejecting Ex.A.8, is legally sustainable and I am unable to take any different view. 14. If Ex.A.8 had been in existence, on the date of filing of the R.C.O.P., in the year 1986, nothing would have prevented the landlords to plead in the petition and also to produce the same along with the petition, since it is the best evidence, to prove the quantum of rent, which is in dispute. But, as seen from the trial Court's seal available in Ex.A.8, this document was produced before the trial Court only on 3.6.1993 i.e. more or less after the lapse of seven years or so, from the date of filing of the R.C.O.P. The inordinate delay in producing this document and the absence of pleadings, regarding Ex.A.8, in the petition, would certainly suggest that this document might have come into existence not on the date mentioned therein, but only subsequently, to have some buttress, in support of the claim of the petitioners in the original petition. 15. 15. Even as per the averments in Ex.A.8, one cannot say that the tenant had agreed to pay a monthly rent of Rs.300/= and if at all, it could be said that the tenant had agreed to pay a monthly rent of Rs.150/=, for four years and after four years, it is in agreement, that the tenant should vacate the premises, failing which, the landlords are entitled to collect rent at the rate of Rs.300/= p.m., proceeding against the tenant as well as against the property, which cannot be construed as 'agreed rent', since it is a default clause contemplated in case the tenant fails to vacate the premises, as agreed. This being the position, the case of the landlords that the tenant had agreed to pay a sum of Rs.300/= as monthly rent and failed to pay the arrears, appears to be fertile imagination, does not require any legal approval. Next we have to see, at least, whether the tenant has paid the agreed rent of Rs.65/= p.m., since it could be said, the non-payment of said rent also, if the period is correct, may amount to 'wilful default'. 16. The stand taken by the landlords that the non-payment of rent, at the rate of Rs.300/= p.m., would amount to 'wilful default' is not available, at present, in view of my findings, supra. True, the tenant has to prove the payment of rent, since proving the non-payment of the rent by the landlord, may be a negative factor. In the petition, we find some averment, as if, for the payment of rent by the tenant, an acknowledgment is made by the landlord, in a pocket-note, maintained by the tenant. If it is true, it should find place in the pre-litigation notice, which is absent, as pointed out by the Appellate Authority. Therefore, the alleged non-production of the pocket notebook by the tenant, will not compel the Court to draw any adverse inference against him, since its existence itself is not proved by the landlords, in view of the specific stand taken by the tenant, no such pocket book is available with him acknowledging the payment of rent by the landlord. 17. The tenant, in order to prove the payment of rent at the rate of Rs.65/= p.m., relied on his account books, which are exhibited as Exs.B.3 to B.18. 17. The tenant, in order to prove the payment of rent at the rate of Rs.65/= p.m., relied on his account books, which are exhibited as Exs.B.3 to B.18. It is the finding of the Courts below that there is a reference in the account books maintained by the tenant about the payment of rent, to the landlord, at the rate of Rs.65/= p.m. The accounts of the tenant's business were subjected to sales tax verification. Despite this fact, the Rent Controller has commented, as if except the entries available in the account books, maintained by the tenant, there is no other evidence, to show that the rent was actually paid, forgetting the evidence given by R.W.1. The account books are maintained by R.W.1 and therefore, he is the competent person to speak about the same. When the oral evidence of R.W.1 is supported by the entries in the account books, nothing wrong in accepting the same, as correctly did by the Appellate Authority. Therefore, accepting the same, it should be held, that the tenant had paid the rent, as agreed, at the rate of Rs.65/= p.m. till January, 1986. If at all, there must have been a dispute regarding payment or non-payment of rent from the month of February, 1986. 18. When a notice was emanated from the landlords, complaining non-payment of rent, the tenant had sent the rent for the month of February, 1986, on 26.2.1986, informing, the monthly rent is only Rs.65/=, which was received by the landlords without any protest, which would suggest, the agreed rent must be Rs.65/= p.m. and the rent should have been paid upto January, 1986. Then, when it was paid for February 1st, the same was accepted on 26.2.1986. Thereafter, as informed under Ex.A.5, on 1.4.1986, the tenant had sent the rent for the month of March, 1986, which was refused by the landlords. Therefore, under Ex.A.5, the tenant even requested the landlords, to specificy name the bank, so as to enable him to deposit the rent, which was not complied with by the landlords. Of course, it is true, when the landlords failed to inform or comply with the demand, made in Ex.A.5, the tenant should have invoked the provisions of Section 8 of the Act, which he failed. Of course, it is true, when the landlords failed to inform or comply with the demand, made in Ex.A.5, the tenant should have invoked the provisions of Section 8 of the Act, which he failed. Under the facts and circumstances of this case, the failure on the part of the tenant, in not invoking Section 8 of the Act, may not amount to 'wilful default', since before invoking the said provision, the Rent Control petition was filed by the landlords, on 8.4.1986. Immediately, as recorded by the Appellate Authority, rents were deposited into Court by the tenant and he continues depositing the rents for the subsequent periods also. In this view of the matter, it is impossible to label this tenant as a 'wilful defaulter', in order to pass an order of eviction. Unfortunately, the Rent Controller has failed to consider all these facts, which were properly considered, to some extent, by the Appellate Authority, and therefore, I am unable to disturb the finding of the Appellate Authority, viz., that there is no wilful default on the part of the tenant, entitling the landlords to get an order of eviction. 19. Section 10(3)(a)(iii) of the Act empowers the landlords to seek eviction of the tenant, 'in case of non-residential building, if the landlord or any member of his family, requires the same, for the purpose of business, which he or any member of his family is carrying on, provided, the landlord or any member of the family is not occupying any other non-residential building, for the purpose of carrying on business, in the city, town or village concerned, which is own. Invoking this provision, the eviction is sought for, and the relevant averments in Paragraph No.5 of the rent control petition, read: "The petitioners are sisters. The husband of the 2nd petitioner is carrying on jewellery business in a rented building. The husband of the 1st petitioner has acquired experience in the business in gold jewellery and silver ornaments and has been in need of the premises for carrying on his business. Thus, the husbands of both the petitioners are in need of petition mentioned building for their own use and occupation." 20. The husband of the 1st petitioner has acquired experience in the business in gold jewellery and silver ornaments and has been in need of the premises for carrying on his business. Thus, the husbands of both the petitioners are in need of petition mentioned building for their own use and occupation." 20. Excepting the above averments, no other averments are available, such as, what is the name of the business, in which building that business is carried on, who is the owner of that building, what is the rent payable, etc. The landlords cannot escape very easily contending that the pleadings in the rent control application should not be construed so strictly, and it is sufficient, if some allegations are available for personal occupation. It is incumbent upon the landlord to plead the minimum requirements, to satisfy the ingredients available under Section 10(3)(a)(iii) of the Act. Section 10(3)(a)(iii) of the Act says, 'the landlord or the member of the family, if the building is required for the member, must be carrying on business on the date of filing of the application, that he or the member of the family should not own any non-residential building for the purpose of carrying on the said business and that the requirement must be bona fide, not aiming at evicting the tenant'. Therefore, the landlord must say, whether the member of the family, since in this case the building is sought for the members of the family, is owning any property, of his own, as non-residential building, for the purpose of carrying on business, which is absent here. What is the name of the business, who is the owner of the business, also not specifically pleaded. In the absence of any proof, by producing some documents at a later stage, the landlords want to make out a case, as if the members of the family are carrying on the business. If pleadings are available, then only, comparing the same with the evidence, whether the evidence fits-in with the pleadings, the requirement could be ascertained, in order to have the satisfaction by the Rent controller or the Appellate Authority, as the case may be, checking the bona fide. 21. As per the averments, which are extracted above, the demised premises is required for the husbands of both the petitioners. 21. As per the averments, which are extracted above, the demised premises is required for the husbands of both the petitioners. Therefore, as per the plain reading of paragraph No.5 of the original petition, unless it is established that the husbands of the landlords are carrying on business, it is impossible to order eviction of the tenant since the malafide will come into play, eclipsing the so-called bona fide. Even assuming that the averments available are sufficient, by going through the documents available on record, even on re-appreciation, I am unable to satisfy, that the landlords have satisfied the requirements of Section 10(3)(a)(iii) of the Act, thereby to satisfy the Controller, for ordering eviction. Despite the fact, it is not known, under what circumstances, the Rent controller satisfied himself, to order eviction, which is correctly upset by the Appellate Authority, in which I am unable to find any irregularity or brand the same 'perverse finding', warranting my interference, under the revisional jurisdiction and the reasons are hereunder: 22. P.W.1 has stated that he is doing jewellery business in a rented premises in Door No.11, Madakhan Dabedar Lane. Even he has not stated, what is the name of the business, whether the business belongs to him exclusively or any other person is having interest in the said business, etc. He would state further, that the building is required for him and the third petitioner, who is the husband of the first petitioner. It is an admitted position, as pleaded in the petition, the husband of the first petitioner is not carrying on business and therefore, he cannot come within the meaning of 'a person who is carrying on business', as defined under Section 10(3)(a)(iii) of the Act. Therefore, it is purely impossible to conclude, that the husbands of the landlords' are carrying on business, on the date of filing of the rent control petition. This was properly appreciated by the Appellate Authority and recorded a finding, in which I am unable to find any error. On the other hand, the Rent Controller has given a finding, as discussed supra, as if, the landlords' are carrying on business, for which the petition mentioned building is required, which is not even the case of the landlords' in the rent control petition. Therefore, there is nothing wrong in upsetting that wrong, then dismissing the rent control application. 23. On the other hand, the Rent Controller has given a finding, as discussed supra, as if, the landlords' are carrying on business, for which the petition mentioned building is required, which is not even the case of the landlords' in the rent control petition. Therefore, there is nothing wrong in upsetting that wrong, then dismissing the rent control application. 23. Then, coming to the documents relied on by the landlords also, I am unable to say that the members of the landlords' family are carrying on any business, though spouse also comes within the meaning of 'the member of the family', as defined under the Act. 24. Ex.A.9 is the licence to deal in gold, issued on 24.4.1980, when Gold Control Act was in force. It is the case of the landlords, that on the basis of this licence alone, still the business is being carried on. Ex.A.9 would indicate that the licence was given to one P.Ramadoss and P.Raji, sons of Paramasivam Chettiar, to deal with the gold, in the name and style of 'Rajagopal jewellers', and 'P.Ramadass and co', which business was carried on at Door No.11, Madhakhan Dabedar lane, Madurai, one room, measuring 2.25' x 1.38'. There is no evidence, excepting the ipse dixit of P.W.1 that the said premises belongs to one Vairavan Achari. It is also not pleaded in the petition. The husband of the first petitioner is not a party to the business run in the name and style of 'Rajagopal jewellers' or 'Ramadass and co'. All the documents produced, to show that the members of the family are carrying on business, relate to Rajagopal jewellers, for which licence was issued in favour of the second petitioner's husband and one Ramadass. Therefore, the business carried on by P.W.1, along with one Ramadass, cannot be termed as 'the business carried on by the family members of the landlords' viz. the husbands of the petitioners 1 and 2. Even it can be argued that P.W.1, the husband of the second petitioner, is carrying on business, and it would amount to 'the members of the family carrying on business'. But, under the facts and circumstances of the case, the said argument cannot be advanced, in this case. It is not the case of P.W.1, that the other person, viz. Even it can be argued that P.W.1, the husband of the second petitioner, is carrying on business, and it would amount to 'the members of the family carrying on business'. But, under the facts and circumstances of the case, the said argument cannot be advanced, in this case. It is not the case of P.W.1, that the other person, viz. Ramadass, is only a name-lender or he left the business and for all practical purposes, he alone is carrying on the business, and therefore, it should be construed as his business. In the absence of any such evidence, that too in the absence of any evidence that the husbands of the landlords are carrying on the business, for which purpose the building is required, it is impossible to construe that the members of the landlords' family are carrying on business, and therefore, they require this building, for their personal occupation. This fact was properly appreciated by the Appellate Authority, which was not properly considered by the Rent controller. 25. In paragraph No.9 of the judgment, the Appellate Authority has recorded a finding that no evidence has been let in that 'Rajagopal Jewellers' business is conducted by P.W.1 and the third petitioner, whereas it is alleged in the petition, that the third petitioner is having some experience in this kind of business, being a broker, which is not sufficient to bring him within the meaning of 'a family member of the landlord, carrying on the business'. 26. For the foregoing reasons, I am of the considered opinion, the landlords have failed to make out a case, that the members of their family, viz. their husbands, are carrying on business, as contemplated under the Act, that too in a rented premises, and therefore, it is not possible for them to have an eviction order, which was erroneously passed by the Rent Controller, correctly upset by the Appellate Authority. For these reasons, the revision fails, liable to be dismissed. In the result, this Civil Revision Petition is dismissed. No costs.