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2007 DIGILAW 2423 (MAD)

Jaffar Sadique & Others v. A. Gopalakrishnan

2007-08-02

M.CHOCKALINGAM

body2007
Judgment :- This order shall govern these two civil revision petitions, namely C.R.P.Nos.1221 and 1077 of 2007, which arose from the orders of the Rent Control Appellate Authority, the Subordinate Judge, Poonamallee made in RCA Nos.7 of 2005 and 3 of 2006 respectively. Those two RCAs were preferred by the revision petitioners/tenants aggrieved over the order of eviction made in RCOP No.5 of 2002 at the instance of the landlord and on dismissal of RCOP No.6 of 2002 for depositing the rental in court at the instance of the tenant. .2. The court heard the learned counsel on either side. The respondent/landlord filed the petition for eviction on different grounds, inter-alia on the ground of willful default, .alleging that the first respondent/tenant is carrying on business in the premises belonged to the landlord/petitioner, as tenant from the year 1990; that originally, the monthly rental was Rs.500/- for each shop and it was raised to Rs.700/- and thus, for the shops, he was to pay Rs.1400/-per month; that he wantonly stopped paying the rental from August, 2001; that during June, 2001, the first respondent issued a demand draft for a sum of Rs.15,400/- for a period of 11 months, i.e. from 8. 2000 to 30.6.2001, which was also issued through the counsel appearing for the first respondent in a case filed by the first respondent against the petitioner in O.S.No.175 of 2000; that there was rental arrears from July, 2001 till the date of filing of the petition and thus, on the ground of willful default, he was to be evicted. 3. 2000 to 30.6.2001, which was also issued through the counsel appearing for the first respondent in a case filed by the first respondent against the petitioner in O.S.No.175 of 2000; that there was rental arrears from July, 2001 till the date of filing of the petition and thus, on the ground of willful default, he was to be evicted. 3. The petition was resisted by the tenant, stating that he has been regular in making payment of rental all along the period from the commencement of tenancy; that when the landlord interfered with the peaceful possession, the tenant, namely, the first respondent filed O.S.No.175 of 2000, seeking for permanent injunction to restrain the defendant therein from interfering with the possession except by due process of law; that for the periods of 11 months till June, 2001, the payments were made through the counsel, who appeared for the defendant in O.S.No.175 of 2000 and thereafter, from July, 2001 to March, 2002, the petition was also filed for depositing the rental, since the rental was refused to be received and the same has also been deposited into the court and under these circumstances, there was no default much less willful default and hence, the petition was to be dismissed. 4. The other RCOP No.6 of 2002 was filed by the tenant, stating that when the rental was tendered, it was refused and therefore, he has no option than for making deposit of the rental arrears, as referred to in the counter in the other petition before the court. The respondent/landlord therein resisted the petition that the procedural formalities, as contemplated under Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, have not been strictly followed and hence, the petition was to be dismissed. .5. Both the RCOPs were taken up for enquiry by the Rent Controller and the RCOP No.5 of 2002 filed at the instance of the landlord was allowed, while the RCOP No.6 of 2002 filed at the instance of the tenant was dismissed. Aggrieved over the said orders, the tenant filed RCA Nos.7 of 2005 and 3 of 2006 respectively. Both the RCAs were dismissed and thus, these civil revision petitions have arisen before this court. 6. Aggrieved over the said orders, the tenant filed RCA Nos.7 of 2005 and 3 of 2006 respectively. Both the RCAs were dismissed and thus, these civil revision petitions have arisen before this court. 6. In support of the revision petitions, the learned counsel would submit that in the instant case, the tenant has been in possession for carrying on business for more than a decade; that there was no fault noticed on his part in making payment of rental at any point of time; that the landlord filed the petition for eviction on five grounds; that all four grounds were nagatived by the Rent Controller and thus, they were not available for the landlord; that so far as the willful default was concerned, the period, according to the landlord, was from July, 2001 to February, 2002; that at the time of commencement of tenancy, there was advance of Rs.10000/-; and that even according to the petitioners case, leaving February, 2002, the other months rental was payable and there was advance of Rs.10000/-, which would cover the same. Added further the learned counsel that in the instant case, when there was rental tendered, it was refused and hence, he has filed the petition in RCOP No.6 of 2002, where the entire amount has been deposited and hence, there was no default much less willful default and under these circumstances, the orders of the lower court have got to be set aside. 7. The court heard the learned Senior counsel appearing for the respondent on the above contentions. 8. The court has paid its anxious consideration on the submissions made. It is not in controversy that the revision petitioner is the tenant under the landlord in respect of two parts in the premises, for which there was an agreement for making Rs.700/-as monthly rental, totalling to Rs.1400/-per month. The petition for eviction was originally filed on five grounds, out of which the Rent Controller has rejected the four grounds, but has found that there was arrears of rental as put forth by the petitioner/landlord. .9. Concedingly, the revision petitioner is the tenant under the landlord on an agreement, though not in a written form to make payment of monthly rental. Law requires that every month rental is payable by the tenant even without demand made by the landlord. .9. Concedingly, the revision petitioner is the tenant under the landlord on an agreement, though not in a written form to make payment of monthly rental. Law requires that every month rental is payable by the tenant even without demand made by the landlord. In the instant case, originally, the suit was filed in OS No.175 of 2000, where the tenant sought for permanent injunction to restrain the landlord from interfering with the possession except by due process of law. Admittedly, first 11 months rental till June, 2001 was paid to the counsel appearing for the defendant/landlord therein and thereafter, according to the petitioner, there was willful default in payment of rental from July, 2001 till the date of making of the petition. Now, the contention put forth that there was advance of Rs.10000/-, which could be adjusted, was not the one raised before the lower court and hence, it cannot now be permitted to raise here. So far as these periods are concerned, the contention put forth by the learned counsel is that when entire payment of rental was tendered, there was refusal and under these circumstances, there arose a necessity for filing RCOP No.6 of 2002. At this juncture, it is pertinent to point out that while the rental was tendered, if it was refused, he should strictly adhere to the procedure as contemplated and as envisaged under Section 8 of the Act, but he has not done so and it is also quite evident. Apart from that, the RCOP No.6 of 2002 for depositing the rental was filed a week later, i.e. after the filing of RCOP No.5 of 2002, a petition for eviction. In the instant case, there was no acceptable explanation tendered as to how there was arrears from July, 2001 till the filing of the petition. The explanation tendered that there was actually Advocates strike and hence, he could not make the payment cannot be countenanced at all. Once the relationship between the parties have become strained and when the tenant has also filed a suit in OS No.175 of 2000, it is quite natural that one would expect the payment of rental regularly and under these circumstances, the fact that he has not made payment of rental would indicate that it can only be construed as willful default, as done by the forums below. Hence, the court is of the considered opinion that it does not require any interference in the hands of this court. Hence, CRP No.1221 of 2007 fails and the same is dismissed. No costs. Consequently, the connected MPs are also dismissed. 10. So far as the other CRP No.1077 of 2007 is concerned, the lower court was perfectly correct in dismissing the petition, since RCOP No.6 of 2002 for depositing the rental was made without following the procedures as envisaged under Section 8 of the Act. Hence, C.R.P.No.1077 of 2007 fails and the same is also dismissed. 11. The learned counsel for the revision petitioner/tenant would submit that he is running a business for more than a decade and therefore, he has to find out a suitable place for accommodation and hence, he seeks sufficient time for vacating the premises. The court heard the learned Senior Counsel for the respondent also. Hence, the court is of the considered opinion, after hearing the both sides, that 18 months time could be granted. Accordingly, the civil revision petitioners/tenants are granted 18 months time to vacate the premises and hand over the same to the respondent/landlord, to which both sides agree. The revision petitioners are directed to file an undertaking affidavit to that effect within a period of two weeks here from.