Research › Search › Judgment

Madras High Court · body

2007 DIGILAW 616 (MAD)

A. G. Lingaiah Chettiar v. Bhaskaran

2007-02-20

R.BANUMATHI

body2007
Judgment :- Aggrieved by the concurrent findings of the Rent Control Authorities dismissing the eviction Petition filed on the ground of wilful default and subletting, the landlord has preferred this revision. 2. Brief case of Petitioner landlord is as follows: - 2. 1. The Petitioner is the owner of the house premises located in Ganapathi Colony at Chengalpet. It consists of row of ten houses and the Respondent is Tenant in respect of four houses viz., D.Nos.16, 25, 31 and 40 and the Tenant is residing in one house and was manufacturing Appalam. The rent payable is Rs.200/- p.m. on or before 5th of every month. The house premises is more than 50 years old and the landlord required the same for demolition and reconstruction, during March, 1993. When the landlord informed the Tenants to vacate the premises in March, 1993, the Respondent/Tenant vacated three houses and retained one house bearing D.No.46 which is the subject matter of eviction Petition. Alleging that Respondent was irregular in payment of rent since April, 1993 and has sublet the premises, landlord has filed eviction Petition on the ground of wilful default and subletting. 2. 2. Resisting the Petition, Tenant has filed counter statement contending that he was Tenant under the Petitioner in respect of D.Nos.40, 39, 25 and 16 from 1958. Tenant was using D.Nos.16, 25, 39 for non-residential purpose till 1993. The Respondent has vacated three premises in 1993 and is residing in D.No.40, paying monthly rent of Rs.200/-. The Respondent was regularly paying the rent and has not committed any wilful default. Tenant has also denied subletting to third party. 2. 3. The Rent Controller held that default in payment of rent for certain months would not amount to wilful default. Finding that for August 1993, still there was time to pay rent till the end of September 1993, the Rent Controller held that Petition filed on 29.09.1993 is premature and held that the landlord has failed to prove that the Tenant has committed wilful default. Plea of subletting was also negatived finding that there was no evidence showing subletting. Confirming the findings of Rent Controller, the Appellate Authority also concluded that there was no wilful default. Plea of subletting was also negatived finding that there was no evidence showing subletting. Confirming the findings of Rent Controller, the Appellate Authority also concluded that there was no wilful default. The Appellate Authority agreed with the findings that Ex.P-1 - Notice was issued on 12.08.1993 and rent for August 1993 is payable by the end of September 1993 and the Eviction Petition filed on 26.09.1993 is not maintainable. Plea of subletting was also negatived by the Appellate Authority. 3. Challenging the concurrent findings of the Courts below, the learned Counsel for the Petitioner submitted that in the month of August, 1993, Tenant has committed default and the same was not taken note of by the Appellate Authority. It was further submitted that Tenant was irregular in payment of rent even subsequent to the filing of Eviction Petition and Courts below erred in not taking note of subsequent conduct of the Tenant. On the ground of wilful default, it was submitted that when third person was in possession of the property and residing thereon, the Courts below ought to have inferred subletting. The learned Counsel for the Petitioner/landlord has further submitted that when Tenant has not produced any material showing employment of the said Ramalingam, Courts below committed serious error in not accepting the case of the landlord. 4. Respondent/Tenant has not entered appearance. I have carefully examined the records and given thoughtful consideration to the evidence and findings. 5. In the light of concurrent findings, does High Court not have the power to disturb the findings on fact concurrently recorded by the Courts below, is the point arising for consideration in this Revision Petition. 6. Considering the scope of revisional jurisdiction of High Court under Section 25 of the Act, in 2001 (2) MLJ 80, M/s. Shaw Wallace and Co. Ltd. V. Govindas Purushothamdas and another, the Supreme Court has held as follows: - "12. On a plain reading of Sec.25 of the Act, it is clear that the revisional jurisdiction vested in the High court under that Section is wider than Sec.115 of the Code of Civil Procedure. Ltd. V. Govindas Purushothamdas and another, the Supreme Court has held as follows: - "12. On a plain reading of Sec.25 of the Act, it is clear that the revisional jurisdiction vested in the High court under that Section is wider than Sec.115 of the Code of Civil Procedure. The High Court is entitled to satisfy itself as to the regularity of the proceeding of the correctness, legality or propriety of any decision or order passed therein and if, on examination, it appears to the High Court that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, it may pass such orders accordingly. 13. In the case of M.S.Zahed v. K.Raghavan, (1999) 1 S.C.C.439, the Supreme Court, interpreting Sec.50 of the Karnataka Rent Control Act, 1961 which is in pari materia to Sec.25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, held that it is within the scope of revisional jurisdiction of the High Court to interfere with the findings of fact, illegally or incorrectly arrived at. 7. In cases where the Order passed by the Appellate Authority had a taint of unreasonableness and perversity resulting in miscarriage of justice, the High Court is empowered to exercise its power conferred under Section 25 of the Act. Therefore, it is for the Court to consider whether there is any perversity in the Order passed by the Appellate Authority which had resulted in miscarriage of justice. It cannot be said that when there is concurrent findings by the Rent Controller and the Appellate Authority, the High Court is not empowered to exercise its revisional power under Section 25 of the Act. In the case in hand, demonstrably, the findings of the Courts below are perverse which resulted in miscarriage of justice. 8. Wilful Default: - Case of the landlord is that Respondent was irregular in payment of rent from April, 1993. Alleging subletting, Ex.A-1 Notice [12.08.1993], was issued, calling upon Respondent to vacate the premises. In Ex.A-1 – handwritten by the landlord, it was stated that there was no arrears of rent and the Respondent has paid rent upto July, 1993. In his cross examination, the Petitioner had also admitted that there was no arrears of rent till July 1993. The only default is August, 1993. RCOP was filed on 16.09.1993. In Ex.A-1 – handwritten by the landlord, it was stated that there was no arrears of rent and the Respondent has paid rent upto July, 1993. In his cross examination, the Petitioner had also admitted that there was no arrears of rent till July 1993. The only default is August, 1993. RCOP was filed on 16.09.1993. Courts below proceeded under the misconception that rent for August is payable by the end of September, 1993 i.e. till 30.09.1993. Both Rent Controller and Appellate Authority ignored the evidence of PW-1 who has clearly stated that rent is payable on or before 5th of every succeeding English Calendar month. Till the date of filing Petition i.e. on 16.09.1993, August rent was not paid. 9. Respondent/Tenant has stated that he has paid rent for August 1993 after 10th September 1993, but he does not exactly remember the date of payment of rent. No documents are produced showing payment of August rent prior to filing of eviction Petition. The Courts below erred in brushing aside the evidence of landlord that rent is payable on or before 5th of every succeeding English Calendar month. The findings of the Rent Control Authorities that rent is payable till the end of next succeeding month is perverse and unsustainable. 10. Before the Appellate Authority, much emphasis was laid upon the statements in Ex.P-1 that there was arrears of rent. The statement of landlord made in Ex.P-1 cannot dilute default committed in August 1993. As per the evidence of landlord, rent of August is payable by 5th September, 1993. Though it is default for one month, that default coupled with irregular payment of rents certainly amounts to wilful default. 11. Reliance is also placed on Mohammed Rowther Vs. S.S.Rajalinga Raja, 1994 (2) MLJ 509 , that, "it is settled law that it is the duty of the Tenant to pay the rent regularly every month as enjoined in the statute without expecting any demand from the landlord in that regard". It has been held in Venkiduswami Pilai, M.V. v. S.Swaminatha Rao (1996)2 L.W.752, that, "Tenant not paying rent regularly and failing to carry out his duty. Landlord need not chase the Tenant to get monthly rent. Wilful default is made out". It has been held in Venkiduswami Pilai, M.V. v. S.Swaminatha Rao (1996)2 L.W.752, that, "Tenant not paying rent regularly and failing to carry out his duty. Landlord need not chase the Tenant to get monthly rent. Wilful default is made out". It is clear from Murugan, C.K.R. v. T.S.Arunagiri, (1991) 1 LW 100, that, "once default is admitted, it is for the Tenant to prove that he has not committed wilful default". 12. Even after filing of the eviction Petition, Respondent/Tenant was not regular in payment of rent. For the months of September and October, 1993, rent was sent in November 1993, as is seen from Ex.A-3 -Money Order Coupon. Even after Petition, Tenant has allowed rent to be accrued and was paying in lump sum either for six months or eight months. 13. It has been held in Poornams Depot Registration firm, by its President, Rathinasabapathi vs. PR.M.A.Krishnan, 1997 (2) MLJ 467 , that, "tenant irregular in payment of rent even subsequent to the filing of the petition and subsequent conduct, can be taken into account to conclude that tenant was indifferent in payment of rent prior to filing of the petition". Reliance is also placed on [Anraj Pipada, B vs. V.Umayal, 1998(2) MLJ 524 = 1998(3) LW 159 ], that, "When eviction proceedings are initiated on the ground of wilful default, one would expect the tenant to pay the rent regularly every month, at least after initiation of proceedings. When the tenant fails to pay the rent regularly even during the pendency of the proceedings, then there is no doubt that his conduct in paying rents as he likes, will amount to wilful default". 14. It is the foremost duty of the Tenant to pay the rent in time, especially when there is litigation between the parties. Accumulation of rent and paying in a lump sum has to be construed as wilful. Even though the period of default is short, it is to be held that it is wilful. Observing that subsequent to the eviction Petition, Tenant has paid rent, Appellate Authority found that there was no wilful default. Rent Controller and Appellate Authority have not taken note of the fact that Tenant had accumulated the rent and paid in lump sum i.e. for a period of eight months from November 1993 to June 1994. Tenant has not paid the rent for July 1994. Rent Controller and Appellate Authority have not taken note of the fact that Tenant had accumulated the rent and paid in lump sum i.e. for a period of eight months from November 1993 to June 1994. Tenant has not paid the rent for July 1994. For the subsequent period till the disposal of RCOP, rent was accumulated and paid in lump sum. Irregular payment of rent even after filing of eviction Petition on the grounds of wilful default is to be construed as wilful default. On reassessment of evidence, I am of the considered view that Respondent/Tenant has committed wilful default. Concurrent findings of the Courts below that there was no wilful default is perverse and liable to be set aside. 15. Subletting: - Landlord seeks eviction on the ground of subletting. In his evidence and Ex.P-1-Notice, landlord has clearly alleged subletting. During his cross examination, landlord was not in a position to state the name of the sub-tenant and the details thereon. Subletting was disbelieved by the Rent Controller and the Appellate Authority on the flimsy ground that the landlord has not provided the name of the sub-tenant either in Ex.A-1 or in Petition. The Petitioner was faulted for not examining any independent witness to prove subletting. The allegation of subletting was disbelieved on the only ground that landlord was not in a position to give the name of the sub-tenant. Respondent/Tenant has admitted that Ramalingam is residing in the demised premises. RW-1 has further admitted that he is residing in D.No.12, Sunnamburakar Street and not in the demised premises. In fact, even notice in eviction proceedings was served upon the Tenant only in D.No.12, Sunnamburakara Street. 16. According to the landlord, person found in the demised premises is one Ramalingam, employed under Respondent in his Appalam business. For showing that he is continually residing in the demised premises, Respondent has produced Exs.B-6 to B-20 – LIC Premium Card, Bank Pass book and other letters received by the Respondent. Undoubtedly, the letter communications sent to the Respondent were addressed to the demised premises – No.40, Ganapathi Colony. But it is to be pointed out, LIC Premium and other documents relate to earlier period. Perhaps, address given earlier were repeated in Exs.B-19 and B-20. Admittedly, Court notice was served upon Respondent/ Tenant in his new residence No.12, Sunnambukara Street. Admittedly, Ramalingam is the occupation of the premises. But it is to be pointed out, LIC Premium and other documents relate to earlier period. Perhaps, address given earlier were repeated in Exs.B-19 and B-20. Admittedly, Court notice was served upon Respondent/ Tenant in his new residence No.12, Sunnambukara Street. Admittedly, Ramalingam is the occupation of the premises. No material was produced showing that Ramalingam was employed under Respondent/Tenant. 17. When stranger is in occupation of the building, the natural inference would be that he was allowed to occupy on subletting. Placing reliance upon AIR 1988 SC 1845 , in 1996 (2) LW 322 [M.Shanmugam vs. Kannabiran and another] this Court has held, that, "If a stranger is in possession of a building the natural inference would be that he was allowed to occupy for monetary consideration. Sub-tenancy is always a secret arrangement. The Court can draw inferences only from certain circumstances. The initial burden is on the landlord and his burden gets discharged when he proves such circumstances". 18. In Subramaniam & another vs. Malarselvi & another, 1986 TLNJ 187 = 99 LW 1064, it was held, that "the relationship between the tenant and the alleged sub-tenant is within the special knowledge of either the tenant or the sub-tenant. Unless, therefore, a tenant or sub-tenant satisfactorily explains the presence of the alleged sub-tenant in the premises the Court is entitled to draw the inference in a case where an utter stranger is found in the premises running a new business that the premises must have been sublet, such an inference is clearly permissible in law". 19. The understanding between the Tenant and sub-tenant is purely within the personal knowledge of the Tenant and the landlord cannot be expected to prove it by direct evidence. That tenanted premises being in occupation of Ramalingam, goes a long way in substantiating the plea of sub-letting. Rent Controller and Appellate Authority erred in finding that landlord was not in a position to prove such sub-tenancy either by naming a person or by adducing independent evidence. When admittedly Ramalingam was in possession, in the absence of any document showing employment, the Court below ought to have drawn inference of subletting. 20. Rent Controller and Appellate Authority erred in finding that landlord was not in a position to prove such sub-tenancy either by naming a person or by adducing independent evidence. When admittedly Ramalingam was in possession, in the absence of any document showing employment, the Court below ought to have drawn inference of subletting. 20. In the decision reported in P.S.Pareed Kaka and others Vs.Shafee Ahmed Saheb, 2004 (5) SCC 241 , Supreme Court has held that the High Court has jurisdiction to go into the legality or correctness of the decision, which includes the power to appreciate evidence and that the High Court can interfere with the finding of fact also. The examination as to the correctness involves appreciation of evidence and that the High Court can interfere with the finding of the Rent Controller is entirely improbable. I find the case in hand is one such case warranting interference. 21. On reappreciation of evidence, I find that the findings of the Rent Controller and Appellate Authority are perverse and unsustainable on both grounds. 22. In the result, the C.R.P. is allowed and the impugned Order in R.C.A.No.8/1997 on the file of Principal Sub-Judge [Appellate Authority] Chengalpattu dated 28.08.2001, confirming the Judgment and Decree in RCOP No.11/1993 on the file of the Rent Controller [District Munsif], Chengalpattu dated 07.02.1997, are set aside. Eviction is ordered on both grounds of wilful default and subletting. No costs. 23. Two months time is granted for vacating and handing over vacant possession.