Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 988 (MAD)

S. Loganathan v. Manmal Surana

2005-07-01

S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- The revision petitioner is the tenant, who was successful before the Rent Controller but lost his case before the Rent Control Appellate Authority. The Appellate Authority reversed the eviction order of the Rent Controller on three grounds viz., the tenant/revision petitioner has committed wilful default in payment of rent for the months of July 1996 to September 1996; the revision petitioner is using the premises other than the purpose for which it was leased to and that the requirement of the premises by the landlord for the purpose of parking his car is bonafide. Such order of the Appellate Authority is under challenge in this revision. 2. The respondent is the landlord for the building in Door No.37, Bangaru Reddy Street, Ayanavaram. The revision petitioner is the tenant in a portion of that building for monthly rent of Rs.600/-, which according to the landlord is for residential purpose. It is further the case of the landlord that the tenant has committed wilful default in payment of rent for the months of July 1996 to September 1996. The landlord caused lawyer's notice on 2.9.1996. After the said notice, the tenant sent cheque for Rs.1800/- towards rent for the months of April 1996 to June 1996. Thereafter the tenant has committed default in payment of rent wilfully from July 1996 to September 1996. According to the landlord, the petition premises was let out to the tenant for residential purpose but he is using the same for non residential purpose and running a grocery shop in the name and style of Shanthi stores without obtaining permission of the landlord. The petition premises is bona fide required to park the car of the landlord. 3. The petition is resisted by the tenant in the counter admitting the tenancy and stated that originally the tenant's sister was doing grocery business and thereafter the tenant himself is doing grocery business and he has not committed wilful default in payment of rent. It is stated that the tenant tendered the rental amount for the months of June and July 1996, but the landlord refused to receive the same. Hence, the tenant sent the rental amount by money order on 30th August 1996, which was also refused. The landlord received rent upto May 1996 but no receipt was given for the same. It is stated that the tenant tendered the rental amount for the months of June and July 1996, but the landlord refused to receive the same. Hence, the tenant sent the rental amount by money order on 30th August 1996, which was also refused. The landlord received rent upto May 1996 but no receipt was given for the same. The tenant sent a cheque for a sum of Rs.1800/- towards the rent for the months of June to August 1996 through his counsel on 26.9.1996, since the landlord refused to receive the same by money order. The landlord received the cheque and sent rejoinder on 1.11.1996. The tenant also replied to the rejoinder on 18.11.1996 and also sent another cheque for Rs.1200/- towards rental amount for the months of September and October 1996. Therefore, the tenant has not committed any default, much less wilful default in payment of rent from July 1996 to September 1996. It is further stated that the premises is not required for parking the car. 4. Before the Rent Controller, the landlord examined himself as P.W.1 and marked Exs.P1 to P7. The tenant examined himself as R.W.1 and marked Exs.R1 to R13. The Rent Controller, in consideration of the evidence, oral and documentary, not accepting the case of the landlord, dismissed the petition on all the three grounds denying eviction as sought for by the landlord. On appeal, the Appellate Authority accepted the case of the landlord and ordered eviction as sought for by the landlord on all the three grounds, which is under challenge in this revision by the tenant as revision petitioner. 5. The learned counsel for the revision petitioner/ tenant pointing out the stand taken by the revision petitioner in the counter filed before the Rent Controller, as well as under Ex.P2, reply notice dated 26.9.1996 and also in the reply to the rejoinder under Ex.P4 dated 18.11.1996 contended that the sister of the tenant was doing grocery business in the petition premises and thereafter, the revision petitioner is carrying on business. As regards wilful default, the learned counsel has submitted that as the landlord refused to receive the rental amount, the tenant sent a cheque for a sum of Rs.1800/- towards the rental amount for the months of June to August 1996. As regards wilful default, the learned counsel has submitted that as the landlord refused to receive the rental amount, the tenant sent a cheque for a sum of Rs.1800/- towards the rental amount for the months of June to August 1996. Under Ex.P4, the tenant sent another cheque for Rs.1200/- towards the rental amount for the months of September and October 1996 and so the tenant has not committed wilful default in payment of rent for the months of July 1996 to September 1996 as alleged by the landlord. As regards the requirement of the petition premises by the landlord, it is strenuously contended by the learned counsel for the revision petitioner that on the RC Book produced by the respondent discloses his address elsewhere in Sowcarpet and not at Ayanavaram and therefore the requirement is without bona fide. It is further stated that though the respondent in his notice and petition has stated that he is parking his car in open area in the road, in the oral evidence he deposed that he is parking the vehicle in a rented shed. It is further stated that the tenant has been carrying on business in the petition premises which is established under Exs.R2 to R13, starting from the year 1983, the licences issued by the Corporation of Madras to run a provision store in the petition premises, sales tax registration, tax payments, Form A3 (Certificate of Registration of Users of Weights and measures) etc. The reliance placed on Ex.P5 for arriving at a conclusion that the revision petitioner converted the residential portion into a commercial shopping portion is improper. 6. The learned counsel for the respondent/landlord has submitted that in respect of wilful default in payment of rent for the months of July to September 1996, no steps have been taken by the tenant for depositing the rental amount into the Court as per Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act. If the rent was tendered for the months of July to September 1996, there was no question of sending rent by way of money order under Ex.R1. If the rent was tendered for the months of July to September 1996, there was no question of sending rent by way of money order under Ex.R1. It is further submitted that duty is cast upon the tenant to pay the rent every month regularly, but the rent for the months of June and July were not paid and the same was paid by way of cheque for a sum of Rs.1800/- along with the rent of August 1996 under Ex.P2. Therefore, according to the counsel, the tenant has committed default wilfully in payment of rent for the months of July to September 1996. 7. It is also submitted by the learned counsel for the respondent/landlord that as per the agreement under Ex.P5, the premises was let out only for residential purpose. Since the tenant is admittedly carrying on business and using the premises other than the purpose for which it was let out, the tenant has to vacate the premises. 8. It is argued by the learned counsel for the respondent that the landlord has purchased a car and there is no place for parking the same. Hence, the requirement of the premises by the landlord for the purpose of parking his car is very much bonafide. Inasmuch as the landlord is also residing in the very same building bearing Door NO. 37, Bangaru Reddy Street and the revision petitioner's portion is situated in the ground floor, the requirement as sought for by the landlord i.e., for the purpose of parking the car is bonafide. 9. The learned counsel for the respondent has relied on the following decisions:- (a) In a case rendered in S.MOHAMMED JAMAL vs. SMT.SUREKA [ 2002 (1) CTC 65 ], this Court has held as follows:- " Landlady can choose which portion of building should be used for parking vehicle and for easy accessibility from road. Circumstances that similar shop fell vacant and landlady can use that portion has to be decided on evidence and circumstances relating to each case." (b) In a case rendered in C.T.MEYAMMAI vs. S.MOHAMED KAMIL, PROPRIETOR [ 2004(4) CTC 27 ], myself held as follows:- ".....on failure on the part of tenant to take proceedings under section 8(5) of the Act, then default will be construed as wilful". (c) In a case rendered in R.MITTALAL JAIN vs. JOHNY D' COUTA [ 2004(3) MLJ 630 ], this Court has held as follows:- "The tenant cannot straightaway jump to the last step i.e., to deposit rent into Court. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step." (d) In a case rendered in M.NAGARAJAN vs. R.SELVARAJ AND ANOTHER [2004-4-L.W.772], myself held that eviction has to be directed on the ground of using the petition premises for a purpose other than that for which it was leased, since at the time of attornment of tenancy, the tenant was carrying on business as tea stall and when Commissioner inspected the premises he had been using it for residential purpose. (e) In a case rendered in PITCHAIPILLAI vs. DOMINIQUE MARIE IGNACE PROSPER [1997-3-LW-106], this Court has held as follows:- "From a reading of 10(3)(a)(ii) it is clear that if the building is adaptable for keeping the vehicle, eviction could be ordered. The Act also does not say that the landlord should be the owner of the vehicle. What it says is that the landlord must have a place to keep the vehicle." (f) In a case rendered in AZEEM vs. NATARAJAN [1994(2)MLJ 455], it is held by SRINIVASAN,J, (as he then was) as follows:- "The landlord has stated in his evidence that the building was let out only for non-residential purpose and is used for a different purpose by the tenant. Apart from that, the tenant has admitted in the counter statement that he is using the building both for residential and non-residential purpose ever since the inception of the tenancy and there was no question of conversion in the user of the building at a later stage. In view of the admission made by the tenant, the case of the landlord that the building is used for a different purpose stands proved." It is further held that : ".....Section 10(2)(ii)(b) of the Tamilnadu Buildings (Lease and Rent Control) Act makes the user of the building for a purpose other than that for which it was leased after 23rd October, 1945 without the written consent of the landlord, a ground for eviction............ The more fact that the landlord has been keeping quiet will not tantamount to acquiescence on his part. The more fact that the landlord has been keeping quiet will not tantamount to acquiescence on his part. Even if there is acquiescence, that is not sufficient for the purpose of the section." (g) In a case rendered in ASK.VENKATACHARY vs. M.MEERAN SAHEB [2004-4-L.W.526], myself held as follows:- "Merely because the landlord was accepting the rent paid collectively, once in three or four months, it will not absolve the liability of the tenant from paying the rent every month. Duty is cast upon the tenant to pay the rent regularly." 10. The petition premises is a portion in the building bearing door No.37, Bangaru Reddy Street, Ayanavaram. In the same building, the landlord is residing. The tenancy and quantum of rent is admitted. It is the definite case of the landlord that the tenant committed wilful default in payment of rent for the months from July to September 1996, which is disputed by the tenant. The landlord caused lawyer notice Ex.P-1 dated 02.09.1996 stating that the tenant committed wilful default in payment of rent from April to August 1996. The notice was replied under Ex.P-2 by the tenant that the landlord was not in the habit of issuing receipts for the rental amount paid and in fact, he paid the rent upto May 1996 without obtaining receipts and the landlord refused to receive the rent for the months of June and July 1996 and therefore, he sent the rent for the above months by money order. 11. Ex.R-1 dated 30.08.1996, the money order coupon, which was also refused and therefore, the tenant sent Rs.1800/- by way of cheque towards the rent for the months from June to August, 1996 along with the reply notice. However, the landlord adjusted the sum of Rs.1800/- towards rent for the months from April to June 1996 as per rejoinder Ex.P-3 dated 01.11.1996. Thereafter, the tenant sent Rs.1200/- by way of cheque dated 16.11.1996 representing the rents for the months of September and October 1996, but the same was adjusted for the months of July and August 1996. 12. The rent control original petition was filed on 30.10.1996. Though it is stated by the landlord in the notice Ex.P-1 dated 02.09.1996 that the tenant has not paid the rent from April to August 1996, his case is unacceptable. 12. The rent control original petition was filed on 30.10.1996. Though it is stated by the landlord in the notice Ex.P-1 dated 02.09.1996 that the tenant has not paid the rent from April to August 1996, his case is unacceptable. The said notice was sent on 02.09.1996 after refusal of the money order Ex.R-1 dated 30.08.1996 sent by the tenant representing the rents for the months of June and July 1996. Admittedly, the landlord is not in the habit of issuing receipts. Therefore, it is to be construed that the tenant has paid the rent upto May 1996 and since the landlord refused to receive the rent for the months of June and July 1996, he sent the rent for the said months by way of money order under Ex.R-1. Thereafter, the tenant sent Rs.1800/- by cheque along with the notice Ex.P-2 and it has been adjusted towards the months of June to August 1996. Thereafter, the tenant sent Rs.1200/- for September and October, 1996 as per the cheque dated 16.11.1996. Therefore, it cannot be said that the tenant has committed default, much less wilful default in payment of rent for the months from July to September 1996. Further, as admitted by the landlord, in his evidence, the entire rental amount has been paid even before the filing of rent control original petition. Therefore, the finding recorded by the Rent Control Appellate Authority that the tenant has committed default in payment of rent for the months from July to September 1996 is not proper. 13. The other ground of eviction is that the tenant is using the rented premises other than the purpose for which it was let out. According to the learned counsel for the landlord, the premises was let out for residential purpose, but the tenant is using the same for non-residential purpose and is running a grocery shop. Such claim of the landlord by causing notice has been suitably replied by the tenant that he has not converted the petition premises as one for non-residential purpose and according to him, right from the inception of tenancy, the premises was only for residential purpose and initially a grocery shop was run by his sister and thereafter, he is doing the said business. In support of the stand taken by the landlord that the premises was let out originally only for residential purpose, an emphasis is made on the unregistered agreement Ex.P-5 dated 01.09.1989. As per the said agreement, it is stated that the tenancy was for residential purpose. In the latter portion of the agreement, it is stated that the tenant shall not damage, alter or make additions to the portion without the written consent of the landlord and it is stated that the tenant shall not keep or store goods that are combustible or explosive in character. According to the tenant, though as per the agreement it was a residential purpose, even very much earlier i.e., in the year 1979, sister of the tenant, viz., Subbulakshmi was carrying on business in that portion. It has been revealed from Ex.R-2 dated 13.02.1993 that as per the licence granted in the year 1981-82, the same was renewed for the period from April 1993 to March 1996. Ex.R-3 dated 05.04.1983 shows payment made towards licence to the Corporation of Madras to carry on business at 37,Bangaru Reddy Street upto the year ending 31.12.1984. Ex.R-4 dated 04.12.1985 shows payment made towards licence for the year ending 31.12.1986. Ex.R-5 dated 16.04.1984 is the sales tax payment receipt for the year 1984-1985. Ex.R-6 dated 17.05.1989 is the renewal of licence granted to carry on grocery shop upto 16.05.1994. Ex.R-7 dated 20.03.1991 is the payment made towards licence for the year ending 31.03.1992. Ex.R-8 dated 06.02.1990 is the payment made towards licence for the year ending 31.03.1991. Ex.R-9 dated 27.02.1990 issued in the name of Shanthi Stores, which, according to the tenant, he is carrying on the business from January 1990. Ex.R-10 dated 29.02.1992 relates to payment made towards licence for the year ending 31.03.1993. Ex.R-11 dated 01.09.1993 relates to payment made towards licence for the year ending 31.03.1994. Except Exs.R-6 and R-9, all other receipts are in the name of the sister of the tenant. Ex.R-12 dated 31.05.1995 relates to payment made towards licence for the year ending 31.03.1996. Ex.R-13 dated 06.02.1998 is the licence issued by the Corporation to carry on provision stores in the name of Shanthi Stores. 14. It is also admitted by the landlord that the tenant and before him, his sister Subbulakshmi have been carrying on grocery shop in the petition shop portion. Ex.R-13 dated 06.02.1998 is the licence issued by the Corporation to carry on provision stores in the name of Shanthi Stores. 14. It is also admitted by the landlord that the tenant and before him, his sister Subbulakshmi have been carrying on grocery shop in the petition shop portion. According to the landlord, under Ex.P-5 Agreement, it was let out for residential purpose. As such, it is clear that the tenant and her sister have been carrying on business in the petition mentioned portion after obtaining permission from the landlord. The landlord also accepted in the cross examination that the sister of the tenant was carrying on business and the respondent became the tenant from 1989. It is also his evidence that the petition mentioned portion measures 10 x 10 feet and it has no separate kitchen and bed room and toilet and bathroom are outside. Therefore, in view of such evidence, it is clear that though the petition portion was let out for residential purpose, as per the agreement Ex.P-5, the respondent, even before him his sister were carrying on business in the petition shop portion. As such, the premises was let out only for non-residential purpose. In that case, the finding recorded by the Rent Control Appellate Authority that the petition shop portion was let out only for residential purpose and that the tenant is using premises other than the purpose for which it was leased out is improper and erroneous. 15. So far as the eviction sought for on the ground that the petition shop portion is required bona fide for the landlord to park his vehicle and the demand has been made by the landlord as early as in the notice Ex.P-1 dated 02.09.1996, in which it is clearly stated that he is parking his car on the road and for want of a car shed he is in need of the petition mentioned portion. Admittedly, the landlord is residing in the very same building bearing door No.37, Bangaru Reddy Street, Ayanavaram, a portion of which he needed is the shop portion which is in ground floor. To show that the landlord is owning a car Ex.P-6 registration certificate has been marked. As per the certificate, the landlord has purchased Maruti car bearing No.TN-04–B 8312 through the Hire Purchase Agreement entered into between him and the Apple Credit Corporation Limited, 64, Cathedral Road, Madras-86. To show that the landlord is owning a car Ex.P-6 registration certificate has been marked. As per the certificate, the landlord has purchased Maruti car bearing No.TN-04–B 8312 through the Hire Purchase Agreement entered into between him and the Apple Credit Corporation Limited, 64, Cathedral Road, Madras-86. The car was purchased on 03.08.1994. Nothing is brought out that as per the said certificate the landlord is not owning any car. Merely because in the registration certificate the address of the landlord is given as No.4, Erulappan Street, Sowcarpet, Madras, it cannot be said that the landlord is not actually owning the car or has not purchased the car. The tenant has admitted in his evidence that the petition shop portion measures 10 x 10-1/2 feet and the car can be parked therein. It is also his admission that the landlord has got Maruti car. It is also admitted by him that he knew that the daughter of the landlord knows car driving. It is well settled that the tenant cannot dictate the landlord. The landlord has amply proved that the requirement of the shop portion for parking his vehicle, namely, his car is very much bona fide. In that view, the finding recorded by the Rent Control Appellate Authority on that ground cannot be said to be improper and therefore, the eviction order made by the Rent Control Appellate Authority on that ground is to be sustained. 16. In the result, the civil revision petition fails and is dismissed, confirming the finding of the Rent Control Appellate Authority ordering eviction on the ground of own use and occupation. No costs.