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2007 DIGILAW 78 (MAD)

Mohan v. T. R. Kumar & Another

2007-01-05

R.BANUMATHI

body2007
Judgment :- This revision is directed against the Order of Rent Control Appellate Authority – VII Judge, Small Causes Court, Chennai, in R.C.A.No.189/2004, confirming the Order of eviction passed by the Rent Controller in RCOP No.1248/2003. .2. Brief facts are as follows:- Petition premises D.No.26, Melapadi Naiken Street, Nungambakkam, Chennai was leased out to the Tenant by the Respondents/landlords on a monthly rent of Rs.160/-. Earlier, Respondents/landlords filed R.C.O.P.No.2061/1993 on 07.08.1993 for fixation of fair rent. Fair rent was fixed at Rs.616/- and it was reduced to Rs.491/-in RCA No.736/1995. .3. Respondents filed RCOP No.1248/2003 for eviction on the ground of willful default under Section 10(2)(i) of Tamil Nadu Buildings [Lease and Rent Control] Act, 1960 [for short the act], alleging that the Petitioner has committed willful default in payment of rent. The Petitioner committed default of paying the difference between the original rent of Rs.160/- and fair rent of Rs.491/- from 07.08.1993 to 30.06.2002 and the Tenant also failed to pay the rent of Rs.160/- from 01.07.2002. The landlords/Respondents issued Notice dated 05.05.2003 calling upon the Petitioner to pay arrears and thereafter, eviction Petition was filed on the ground of willful default. 4. The Petitioner/Tenant opposed the Petition contending that as against the Order passed in RCA No.736/1995, he has preferred C.R.P.SR.No.98074/2003 and that there is no default. According to the Tenant, the Execution Petition had to be dismissed for non-joinder of necessary parties, since all co-owners are not added as parties. Further, according to the Tenant, default from 01.07.2002 to 30.06.2003 is not willful. Entire arrears of Rs.2,080 has been paid on 20.08.2003, even before the first hearing date of the Petition. 5. Both the Courts below have recorded concurrent finding of fact that the Petitioner/Tenant has committed willful default in not paying the arrears of difference in rent and also the contractual rate of rent from 01.07.2002 and ordered eviction. The concurrent finding of the Courts below is challenged in this revision. .6. Initially, the Petitioner had become Tenant under Petitioners father – Ramadurai. After the death of landlord Ramadurai, Petition premises was inherited by his wife – Sarojammal, three daughters and two sons. Sarojammal and three daughters and two sons have filed RCOP No.2061/1993 for fixation of fair rent under Section 4 of the Act. Meanwhile Sarojammal died. .6. Initially, the Petitioner had become Tenant under Petitioners father – Ramadurai. After the death of landlord Ramadurai, Petition premises was inherited by his wife – Sarojammal, three daughters and two sons. Sarojammal and three daughters and two sons have filed RCOP No.2061/1993 for fixation of fair rent under Section 4 of the Act. Meanwhile Sarojammal died. After the death of Sarojammal, Respondents and their three sisters have acquired right over the Petition premises by inheritance. While so, the Respondents, who are sons of Ramadurai, alone have filed Eviction Petition claiming right through Ex.P-3 – Release Deed, dated 211. 1993. RCOP was filed in September 2003. On behalf of the Petitioner, it was contended that at the time of filing R.C.O.P., Respondents/landlords did not have exclusive right over the Petition premises and the eviction Petition is bad for non-joinder of necessary parties. It was further submitted that without impleading the other co-owners, the Respondents cannot maintain eviction Petition and the subsequent Release Deed would not cure the defect. This contention does not merit acceptance. Even apart from Ex.P-3 – Release Deed, the Respondents being co-owners can maintain the eviction Petition for themselves and on behalf of the other co-owners. Non-joinder of other co-owners in eviction Petition is not fatal. .7. Holding that one co-owner can maintain an eviction Petition, in 2004 (3) SCC 178 [India Umbrella Mfg. Co. Vs. Bhagabendai Agarwalla, the Supreme Court has held as follows:- ."6. Having heard the learned Counsel for the parties we are satisfied that that appears are liable to be dismissed. It is well settled that one of the co-owners can file a suit for eviction of a Tenant in the property generally owned by the co-owners. [ 1976 (4) SCC 184 & 2002 (6) SCC 16 (Sri Ram Pasricha Vs. Jagannath and Dhannalal Vs. Kalawatibai]. This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the Tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the Tenant and the suit was filed in spite of their disagreement. In the present case, the suit was filed by both the co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the Tenant and the suit was filed in spite of their disagreement. In the present case, the suit was filed by both the co-owners. One of the co-owners cannot withdraw his consent midway the suit so as to prejudice the other co-owner. The suit once filed, the rights of the parties stand crystallised on the date of the suit and the entitlement of the co-owners to seek ejectment must be adjudged by reference to the institution of the suit; the only exception being when by virtue of a subsequent event the entitlement of the body of co-owners to eject the Tenant comes to an end by act of parties or by operation of law". 8. In support of his case, the learned Counsel for the Petitioner/Tenant has contended that if the amount is paid before the first hearing date, then the default would not be a willful default. So far as fair rent is concerned, it was submitted that fixation of fair rent at the rate of Rs.491/- has been challenged and hence, non payment of arrears of difference in rate would not amount to willful default. .9. Contending that all the points raised by the Petitioner/Tenant has been considered by the Courts below, the learned Counsel for the Respondent/landlord has submitted that even after issuance of notice, the Petitioner has not paid the rent and committed default. It was contended that payment of arrears of rent in lump sum on 20.08.2003 would not take away the consequences of the willful default. 10. Default is alleged in two limbs – (i)from 07.08.1993 to 30.06.2002 – arrears of difference of fair rent i.e. Rs.35,352.92; (ii)non-payment of contractual rate of rent from 01.07.2002, till the date of filing of RCOP in July 2003. In RCOP No.2061/1993, filed for fixation of fair rent, fair rent was fixed at Rs.616/-, which was subsequently reduced to Rs.491/- p.m. in R.C.A.No.736/1995. The learned Counsel for the Petitioner has submitted that as against the Order of fixation of fair rent at Rs.491/-, the Petitioner Tenant has preferred revision in C.R.P.SR.No.98074/2003 and the same has not been numbered. It was further submitted that despite filing of CRP, the Petitioner/Tenant is not able to get it numbered and there is delay in getting it numbered. It was further submitted that despite filing of CRP, the Petitioner/Tenant is not able to get it numbered and there is delay in getting it numbered. The concurrent findings of the Courts below, fixing the fair rent at Rs.491/- has become final. Since fixation of fair rent of Rs.491/- has become final, the Tenant is duty bound to pay that rent. The Tenant cannot be absolved of that duty merely on the statement made by the Revision Petitioner that he has filed revision, which is stated to be pending in SR stage for nearly three years. Having not taken effective steps for challenging the fixation of fair rent, the Petitioner cannot be relieved of the obligation of payment of fair rent. 11. In respect of the contractual rate of Rs.160/-, the Respondent claimed that the Petitioner failed to pay the rent from 01.07.2002 till the date of filing of eviction Petition. According to the Petitioner, though rent was not paid from 01.07.2002 to 30.07.2003, it is not willful since the entire arrears of Rs.2,080/- was paid on 20.08.2003. Prior to filing of eviction Petition, Notice was sent on 05.05.2003. Ex.P-1 - Notice was sent on 05.05.2003. Even after receipt of notice, Petitioner has not paid the rent. Without paying the rent, the Petitioner had sent Ex.P-2 – Reply, on 11.06.2003, denying any default. RCOP was filed on 14.07.2003. Only thereafter on 20.08.2003, the Petitioner has paid rent of Rs.2,080/-. The Petitioner/Tenant has no right to accumulate the rent for months. It is the duty of the Tenant to pay the rent in time. Especially when the relationship between the landlord and Tenant was strained, the Tenant ought to be vigilant in paying at least the contractual rent. .12. Referring to various cases, in 1998 (2) MLJ 745 = 1998 (2) LW 216 [The Nilgiris Cooperative Marketing Society, rep. By its Secretary Vs.C.T.Uthandi], it was held that the Tenant has a legal obligation to tender rent to the landlord month after month. The Tenant pays up the entire arrears of rent on receipt of summons, on the date fixed for appearance of Tenant in Court. Such payment does not absolve him of disqualification suffered. 13. By its Secretary Vs.C.T.Uthandi], it was held that the Tenant has a legal obligation to tender rent to the landlord month after month. The Tenant pays up the entire arrears of rent on receipt of summons, on the date fixed for appearance of Tenant in Court. Such payment does not absolve him of disqualification suffered. 13. The learned Counsel for the Petitioner has placed reliance upon 2002 (4) SC 465 and 1993 (4) SCC 406 to contend that when the Tenant has paid the entire amount, even before the first hearing of the suit, the Execution Petition is not maintainable. The above said cases arise under the Uttar Pradesh Urban Buildings [Regulation of Letting, Rent and eviction] Act, 1972. The said Act contains the provision Section 20 as per which, if the Tenant unconditionally pays or tenders to the landlord or deposits in Court, the entire amount of rent, under Sub Section (1) of Section 30, the Court is empowered to pass Orders, relieving the Tenant against his liability for eviction. Tamil Nadu Buildings [Lease and Rent Control] Act, 1960 does not contain such provision excepting the proviso to Sec.10(2)(i). Both the Courts below concurrently held that the Tenant has committed wilful default. While so, the above decisions are of no avail to the Petitioner. 14. The learned Counsel for the Petitioner has contended that in the past, the Petitioner was paying rent in lump sum and hence, non payment of rent for the period from 01.07.2002 till July 2003 would not amount to willful default. In his evidence, PW-1 has stated the rent is payable by 10th of every English Calendar month. PW-1 has categorically denied the suggestion that they were receiving rent in lump sum. Absolutely there is no evidence showing that the Respondents/landlords have been receiving rent in lump sum. In a Petition for eviction under Section 10(2)(i) of the Act, it is not open to the Tenant to set up that the practice was only to pay the rent in lump sum. Assuming for the sake of arguments even if any such practice is there, once the landlord-Tenant relationship is strained, such practice would come to an end. The Tenant not paying the rent for a period of nearly one year amounts to willful default. 15. When both the authorities have concurrently arrived at a conclusion regarding wilful default, jurisdiction of the High Court becomes restricted. The Tenant not paying the rent for a period of nearly one year amounts to willful default. 15. When both the authorities have concurrently arrived at a conclusion regarding wilful default, jurisdiction of the High Court becomes restricted. The revisional Court cannot interfere with the findings unless there is perversity in the appreciation of evidence. Findings of the Courts below do not suffer from any perversity or impropriety, calling for interference by this Court, exercising the revisional jurisdiction under Section 25 of the Act. 16. In the result, the Order of the Rent Control Appellate Authority, VII Judge, Small Causes Court, Chennai dated 11.03.2005 in RCA No.189/2004, is confirmed and this revision is dismissed. Consequently VCMP No.376/2005 and CMP No.13108/2005 are closed. No costs. 17. The learned Counsel for the Tenant has requested time for vacating the premises. At request, three months time is granted for vacating and handing over vacant possession. Petitioner is directed to file an undertaking to that effect within a period of one week.