Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 240 (MAD)

S. Jayapal v. P. Rohini

2005-02-10

S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- COMMON ORDER:- The unsuccessful tenant in respect of the order of eviction on the grounds of own use and occupation for non-residential purpose, wilful default in payment rent and on the ground of different user as confirmed by the learned Rent Control Appellate Authority, is the revision petitioner. 2. The respondent/landlady filed the petition in R.C.O.P.No.2267 of 1999 for eviction on the grounds of own use and occupation of the petition mentioned non-residential premises which are three shops, viz., two adjacent portions each measuring 9 feet x 10 feet let out for provision stores on a monthly rent of Rs.500/- each and another portion measuring 5 feet x 15 feet on the southern side of the ground floor let out for cool drinks stall on a monthly rent of Rs.400/-; wilful default in payment of rent for the month of March, 1999 in respect of the provision stores and for the months from December, 1998 to May, 1999 in respect of the cool drinks stall and that the tenant converted the provision stores business by selling food items like, biscuits, bread, murukku, milk, snacks, sweets and vegetables; and also on the ground of subletting the cool drinks stall to one Arul, the second respondent in the petition in R.C.O.P.No.2267 of 1999, for Travel agency in the name and style of "Sakthi Travels" having two vans bearing numbers TN-05-1071 and TN-05-C1291 and that the tenant also committed acts of waste by removing the wall which divided the two portions. 3. The tenant filed R.C.O.P.No.1662 of 1999 under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act for depositing the rent in Court in respect of the Cool Drinks and lottery shop, since the landlady refused to receive the rent for the month of March, 1999 when tendered and the rent sent by money order for the months of March, 1999 to June, 1999. 4. Both the petitions were contested by filing counters. 5. The learned Rent Controller tried both the Rent Control Petitions together by consent of parties and as per the evidence recorded in R.C.O.P.No.2267 of 1999, ordered eviction on three grounds, viz., on the grounds of own use and occupation for non-residential purpose, wilful default in payment of rent and also on the ground of different user. 5. The learned Rent Controller tried both the Rent Control Petitions together by consent of parties and as per the evidence recorded in R.C.O.P.No.2267 of 1999, ordered eviction on three grounds, viz., on the grounds of own use and occupation for non-residential purpose, wilful default in payment of rent and also on the ground of different user. However, the learned Rent Controller denied eviction as sought by the landlady on the ground of subletting and acts of waste. The learned Rent Controller dismissed the petition R.C.O.P.No.1662 of 1999 filed by the tenant, refusing to grant permission to the tenant for deposit of the rent in Court. On appeal, the order of eviction in R.C.O.P.No.2267 of 1999 and also the dismissal of the petition in R.C.O.P.No.1662 of 1999 refusing to grant permission to the tenant for deposit of rent in Court were confirmed by the learned Rent Control Appellate Authority as per common judgment dated 17.12.2003 in R.C.A.Nos.558 of 2002 and 817 of 2002. Hence, the tenant has filed both these Civil Revision Petitions. 6. The petitioner in R.C.O.P.No.2267 of 1999 and the respondent in R.C.O.P.No.1662 of 1999 hereinafter is referred to as "the landlady" and the respondent in R.C.O.P.No.1662 of 1999 and the petitioner in R.C.O.P.No.1662 of 1999 hereinafter is referred to as "the tenant". 7. The landlady is the owner of the adjacent two shops each measuring 9 feet x 10 feet in the ground floor and also owner of the adjacent shop measuring 5 feet x 15 feet at No.970, 14th Central Cross Street, Mahakavi Bharathi Nagar, Chennai-39. The revision petitioner, who is the tenant, is carrying on business in provision stores in the adjacent two shops measuring 9 feet x 10 feet each and is also carrying on business in cool drinks in the adjacent shop measuring 5 feet x 15 feet. All the three shops mentioned in the petition, which are situated in the very same building in the ground floor and in the first floor of the same building, the landlady is residing with her husband, who is a retired Assistant Health Officer of the Chennai Corporation, are required for the purpose of starting business in electrical items by her husband. In support of such case, the landlady examined her husband Basu Dev and Tmt.Uma Arunkumar, who is also a tenant under the landlady in respect of the shop of 90 square feet in the very same building under the agreement Ex.P-26 dated 26.6.1996 and who has spoken to the fact that P.W.1 is carrying on business in electrical after retirement in a rented premises at Kannathasan Nagar which is near to the petition building. 8. In Ex.P-26, P.W.2 has signed as Uma Arunkumar. Surname "Arunkumar" refers to her husband. Ex.P-26 is dated 26.6.1996. P.W.2 got married Arunkumar as per the wedding invitation Ex.R-19 on 15.9.1996. Therefore, it is argued by the learned counsel for the tenant that Ex.P-26, in which P.W.2 has signed as "Uma Arunkumar" on 26.6.1996 even before her marriage under Ex.R-19 wedding invitation on 15.9.1996, is a created document for the purpose of the case and to support the case of the landlady that the petition shops are required for the purpose of carrying on business by P.W.1, husband of the landlady and that he is actually carrying on business after retirement. 9. P.W.1 has stated in his evidence that he is carrying on business in a rented premises bearing No.1/102 in Kannathasan Nagar from 18.8.2000 and in the name and style of "Cryst Electrical Electronic Centre" measuring 10 feet x 12 feet and the owner of shop is one V.Natarajan. The agreement entered into between them is Ex.P-23 dated 1.6.2000 and he commenced business on 18.8.2000 as per Ex.P-24 advertisement and the photo relating to his shop is Ex.P-25. It is clearly admitted by the tenant R.W.1 in his evidence that the landlady is not owning any other non-residential premises except the building of the petition premises in Chennai and that P.W.1 retired in February, 1999 from Chennai Corporation. Therefore, taking all these aspects into consideration, the learned Rent Control Appellate Authority has rightly concluded in accepting the finding of the learned Rent Controller that the three shops in the petition premises are required bona fide for own use and occupation for non-residential purpose by the landlady's husband P.W.1, in that P.W.1 along with his wife the landlady is also residing in the first floor of the very same building. 10. 10. All the three shops in the petition premises is of the extent of 435 square feet whereas P.W.1 is carrying on business in the rented premises at Kannathasan Nagar is of the extent of 120 square feet. Therefore, the requirement of the petition premises consisting of 3 portions in the ground floor of the building wherein the P.W.1 is residing in the first floor along with his wife, the landlady, cannot be said to be mala fide. 11. The fact remains that all the three shops are adjacent and as such, the requirement of all the three shops for the purpose of carrying on business in electrical items by the landlady's husband P.W.1, who hitherto is carrying on business in the rented premises in Kannathasan Nagar, is very much bona fide. Therefore, the finding of the learned Rent Control Appellate Authority on that ground cannot be interfered with. The argument advanced by the learned counsel for the tenant that such requirement is without bona fide is not acceptable. 12. As regards the wilful default in payment of rent, the case of the landlady is that in respect of two adjacent portions measuring 9 feet x 10 feet each, in which the tenant is carrying on provision stores on monthly rent of Rs.500/- to each portion and in respect of another portion measuring 5 feet x 15 feet, in which the tenant is carrying on business in cool drinks on monthly rent of Rs.400/-, the tenant paid Rs.6,000/- towards advance for the cool drink shop. It is stated that the tenant committed wilful default in payment of rent for the month of March, 1999 for the provision stores. The learned Rent Controller as well as the learned Rent Control Appellate Authority considering Ex.P-3 counterfoils, has recorded finding that the tenant paid rent as per the said receipts for the month of March, 1999 on 10.4.1999 and that the tenant sent rent for the months of April and May, 1999 under Ex.P-10 money order coupon. Inasmuch as the rent for the month of March, 1999 was paid on 10.4.1989, the tenant has not committed default much-less wilful in payment of rent for the month of March, 1999 in respect of adjacent two portions measuring 9 feet x 10 feet each. 13. Inasmuch as the rent for the month of March, 1999 was paid on 10.4.1989, the tenant has not committed default much-less wilful in payment of rent for the month of March, 1999 in respect of adjacent two portions measuring 9 feet x 10 feet each. 13. As regards the other portion measuring 5 feet x 15 feet, in which, the tenant is carrying on business in cool drink, it is the case of the landlady that the tenant paid rent for the said portion of the shop till August, 1997 and thereafter the advance amount of Rs.6,000/- was adjusted towards the rental arrears from September, 1997 to November, 1998 and the tenant has not paid the rent from the month of December, 1998 till filing of R.C.O.P.No.2267 of 1999 i.e., till November, 1999. 14. According to the tenant, the rent for the cool drink shop is only Rs.300/- per month and the learned Rent Control Appellate Authority as well the learned Rent Controller recorded finding in this regard that the rent payable to the said cool drink shop portion is only Rs.300/-per month. Such finding appears to be incorrect. 15. In R.C.O.P.No.1662 of 1999 filed by the tenant under Section 18(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, it is stated that the monthly rent for the cool drink shop is Rs.300/- and Rs.6,000/- was paid as advance. It is further stated in the petition that when the rent tendered for the month of March, 1999 in April, 1999, it was refused by the landlady and even for subsequent months i.e., for the months of April, May and June, 1999 the rent sent by money order was refused by the landlady. 16. According to the landlady, the rent payable for the months from September, 1997 to November, 1998 at the rate of Rs.400/- per month, was adjusted in the advance amount of Rs.6,000/- and thereafter the tenant has not paid the rent from the month of December, 1998 in respect of cool drink shop. There is some force in that contention. 17. In the letter Ex.P-21 dated 10.5.1999 sent by the tenant, it is stated that the arrears of rent payable upto March, 1999 was Rs.1,200/- and not Rs.1,600/- thereby clearly indicating that the rent for the cool drink shop could have been only Rs.400/- per month. There is some force in that contention. 17. In the letter Ex.P-21 dated 10.5.1999 sent by the tenant, it is stated that the arrears of rent payable upto March, 1999 was Rs.1,200/- and not Rs.1,600/- thereby clearly indicating that the rent for the cool drink shop could have been only Rs.400/- per month. Therefore, it is clear that the rent for the cool drink shop portion is only Rs.400/- per month and as such, after adjustment of advance amount of Rs.6,000/- in the arrears of the rent from September, 1997 to November, 1998, the tenant failed to pay rent from December, 1998 which amounts to wilful. 18. Though it is denied by the tenant that the rent payable from the month of September, 1997 to November, 1998 was not adjusted in the advance amount of Rs.6,000/- and for that purpose Ex.P-16 was not issued stating that the advance amount has been taken back, such a case has not been proved. As rightly stated for landlady, since the advance amount of Rs.6,000/- was adjusted towards the arrears payable from the months of September, 1997 to November, 1998, the receipt was issued under Ex.P-16 on 10.3.1999 by the tenant. Though as per letter Ex.P-18 dated 8.2.1999 by the tenant in reply to the letter sent by the landlady under Ex.P-17 dated 31.1.1999, the tenant has stated that he has paid the rent upto December, 1998, such a case is not made out. If really the rent for the cool drink shop was only Rs.300/- per month, the rental arrears adjusted in the advance amount of Rs.6,000/- will be upto April, 1999. But, the tenant has stated in Ex.P-18 that the rent of Rs.300/- for the month of January, 1999 is payable. 19. It appears, the landlady is in the habit of issuing receipt under Ex.P-3 counterfoils. Therefore, the case of the tenant as set up in the petition R.C.O.P.No.1662 of 1999 that the rent from December, 1998 to February, 1999 was paid is not acceptable. Inasmuch as the tenant has not paid the rent from December, 1998 in respect of the cool drink shop, the learned Rent Control Appellate Authority has rightly found in affirming the order of the learned Rent Controller that the tenant has committed wilful default in payment of rent from December, 1998. Inasmuch as the tenant has not paid the rent from December, 1998 in respect of the cool drink shop, the learned Rent Control Appellate Authority has rightly found in affirming the order of the learned Rent Controller that the tenant has committed wilful default in payment of rent from December, 1998. Therefore, the eviction ordered on that ground as confirmed by the learned Rent Control Appellate Authority cannot be interfered with. 20. As regards the eviction ordered on the ground of different user of the shop, which was let out for the purpose of doing business in cool drinks, it appears, the tenant also doing business in selling food items like, biscuits, bread, murukku, milk, snacks, sweets and vegetables. 21. As per agreement Ex.P-2 dated 29.6.1998, two adjacent shops were let out for the purpose of carrying on business in provision stores, and as per Ex.R-8, licence was issued to the tenant to carry on business in provision stores. It is seen from Ex.P-14 that the tenant is also doing business in selling food items such as biscuits, bread, milk, murukku, vegetables, etc. The tenant as R.W.1 also admitted in his evidence that he obtained licence in Chennai Corporation to carry on business only in provision stores and he is also selling food items such as biscuits, bread, murukku, milk, snacks, sweets and vegetables. The tenant as R.W.1 has also admitted that in the cool drink shop, he is also selling lottery tickets and as such, in the two adjacent portions which were let out for the purpose of provision stores, the tenant is carrying on business in selling food items such as biscuits, bread, murukku, milk, snacks, sweets and vegetables and in the other shop let out for cool drinks, he is also selling lottery tickets and as such, the tenant has put the shops let out to him, for different user other than they were let out and therefore, the eviction ordered by the learned Rent Controller on the ground of different user also cannot be said to be improper as confirmed by the learned Rent Control Appellate Authority. 22. The tenant failed to pay the rent from the month of December, 1998 onwards. 22. The tenant failed to pay the rent from the month of December, 1998 onwards. But the tenant filed petition R.C.O.P.No.1662 of 1999 to deposit rent for the months of March, 1999 to June, 1999 stating that the landlady refused to receive the rent sent by way of money order and also refused to inform the name of the bank and account number for deposit of rent in her account. So the learned Rent Controller has rightly dismissed the petition R.C.O.P.No.1662 of 1999 as confirmed by the learned Rent Control Appellate Authority. In view of the notices exchanged between the parties before filing R.C.O.P.No.1662 of 1999 in August, 1999 and since the eviction petition will be filed that the tenant has committed wilful default in payment of rent for the month of December, 1998 and after sending the rent only for the months of March, 1999 to June, 1999 which was rightly refused by the landlady, R.C.O.P.No.1662 of 1999 was filed by the tenant for deposit of rent in Court. Therefore, considering all these aspects, the dismissal of the said petition by the learned Rent Controller as confirmed by the learned Rent Control Appellate Authority also cannot be said to be improper and as such, the said dismissal of the petition for deposit of the rent cannot also be interfered with. 23. In the light of the discussions made above, both the Civil Revision Petitions deserve no merit and are to be dismissed. 24. In the result, both Civil Revision Petitions are dismissed with costs confirming the common judgment and decrees dated 17.12.2003 made in R.C.A.Nos.558 and 817 of 2002 passed by the learned Rent Control Appellate Authority(VIII Judge, Small Causes Court), Chennai.