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2006 DIGILAW 3185 (MAD)

J. Lakshmi v. S. V. Balasubramani

2006-11-22

S.ASHOK KUMAR

body2006
Judgment :- (Civil Revision Petition filed against the order dated 28.10.2003 made in RCA.No:411 of 2002 passed by the learned Rent Control Appellate Authority, Chennai. setting aside the order dated 2.5.2002 passed in M.P.No:813 of 2000 in RCOP.No:516 of 1999 by the learned Rent Controller, Chennai.) The revision petitioner is the landlady. She filed the RCOP for evicting the respondent/tenant on the ground of own occupation for running a textile business to be carried on by her husband. 2. The respondent/tenant contested the RCOP contending that the predecessor of the petitioner had agreed to sell the petition mentioned property to him and he has also paid advance. But he breached the agreement and hence he filed a Civil Suit before the High Court and later it has been transferred to the III Additional City Civil Court, Chennai and numbered as O.S.No.352 of 1996. The said suit was dismissed and he also field an Appeal Suit before the High Court and in CMP.No:6603 of 1997 he has also obtained interim injunction not to evict him without due process of law. 3. The respondent further resisted the RCOP contending that the requirement for owner's occupation is not bona fide. Further more, the landlady's husband in the suit has admitted that he has purchased a property at Door No.14, Rajagopal Naidu Street, Chennai-21 and he has constructed shops in front of the said property and thus the landlady has suppressing fact stated in the RCOP that she is not owning any other non-residential building in the city. Apart from that he has been doing the business in the said premises for more than 22 years and he has earned good will. It is only a tactics to close down the business of the respondent, the petitioner has purchased the property and now trying to evict the respondent. 4. Pending the RCOP, the respondent/tenant taken out a Miscellaneous Petition stating that in view of the judgment of the Hon'ble Supreme Court reported in 2000 (2) LW. 805 the relationship of landlord and tenant ceases to exist when once there is an agreement for sale and therefore the RCOP itself is liable to be dismissed. as not maintainable. The learned Rent Controller, dismissed the said Miscellaneous Petition holding that there is no subsisting contract between the parties. 805 the relationship of landlord and tenant ceases to exist when once there is an agreement for sale and therefore the RCOP itself is liable to be dismissed. as not maintainable. The learned Rent Controller, dismissed the said Miscellaneous Petition holding that there is no subsisting contract between the parties. Aggrieved over the same, the respondent/tenant filed Rent Control Appeal before the Appellate Authority, who set aside the order of the Rent Controller and held that the present RCOP is not maintainable. Hence this revision by the landlady. 5. A perusal of the typed set of papers would reveal that the learned Rent Control Appellate Authority, Chennai has set aside the order of the learned Rent control on two grounds, namely, there was no proof for attornment of tenancy by the tenant in favour of the landlady after purchase of the petition mentioned property by her and secondly, as per the decision of this Court in 2000(2) L.W.805, wherein it has been held that when once there is a contract between the parties, the relationship of landlord and tenant comes to and end and when the genuineness and its enforceability of the agreement is being canvassed in the first appeal before the High Court, pending the same, the RCOP is not maintainable. But, such an approach on the part of the learned Rent Control Appellate Authority is erroneous and misconceived. 6. Admittedly the A.S.No:394 of 1997 has been filed by the tenant before this Court and pending the appeal in CMP.No:6603 of 1997 which is filed for injunction, this court only directed that the occupation of the tenant shall not be disturbed without resorting to due process of law. This will only show that it is not a blanket injunction restraining the landlady from instituting a RCOP Petition for eviction of the tenant for her own use and occupation. Unless and until there is a bare injunction restraining the landlady from evicting the tenant, it is always open to the landlady to exercise the options as may be open to her under the law, particularly when the O.S.No:352 of 1996 was dismissed by the Trial Judge after finding that there was no agreement of sale between the tenant and the erstwhile owner of the petition mentioned property, i.e., vendor of the petitioner. Such a finding will hold good and continue to bind the parties until it is set aside by the appellate court i.e., by this Court. 7. Even if the tenant succeeds in the First Appeal, it is only his right to purchase the property from the petitioner's vendor and the same cannot prevent the vendor being the bona fide purchaser from proceeding in accordance with due process of law. Furthermore, the tenant admittedly has been paying the rents admitting the ownership of the landlady and this will only indicate that no separate attornment of tenancy agreement need be executed by the tenant in favour of the landlady. In such circumstances, the view taken by the learned Rent Control Appellate Authority is not sustainable and the same is accordingly set aside. 8. In the result, the Civil revision Petition is allowed setting aside the order passed in RCA.No:411 of 2002. No costs.