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2008 DIGILAW 3117 (MAD)

N. Saraswathi v. K. R. Rajagopal

2008-08-27

S.TAMILVANAN

body2008
Judgment :- This Civil Revision has been preferred against the Judgment and Decree, dated 010. 2007 made in R.C.A.No.7 of 2007 on the file of the Rent Control Appellate Authority/Principal Subordinate Judge, Salem, confirming the fair and decreetal order, dated 10.01.2007 made in R.C.O.P.No.20 of 2006 on the file of the Rent Controller/I Additional District Munsif, Salem. 2. It is an admitted fact that the respondent herein, as landlord filed a petition against the revision petitioner/tenant, under Section 10 (3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 [herein after referred to as Act], to evict the revision petitioner. According to the respondent, being the owner of the building, bearing Door No.12, Fort Main Road, Salem-2, he is residing in a portion of the ground floor and carrying on hardware business in the first floor of the petition mentioned building and the revision petitioner is carrying on his business in the ground floor, as a tenant and that the respondent/landlord is in need of the petition mentioned premises for his own use and occupation. 3. Earlier, the respondent/landlord had filed R.C.O.P.No.68 of 1999 for evicting the revision petitioner under Section 10 (3) (a) (iii) of the Act on the file of the District Munsif, Salem. The petitioner entered appearance through her counsel and was contesting the case. However on 111. 2000, both the parties to the R.C.O.P made an endorsement, whereby the revision petitioner/tenant agreed to vacate the petition mentioned property on 01.04.2006, after getting the advance amount paid by her. It was agreed between the parties that the rent to be paid up to 31.03.2002 at Rs.5,000/-per month, from 01.04.2002 to 31.03.2004 at Rs.5,500/-per month and from 01.04.2004 to 31.03.2006 at Rs.6,000/- per month. It is not in dispute that the revision petitioner/tenant had paid an advance of Rs.3,50,000/-to the respondent/landlord towards rental agreement. Since the revision petitioner had not vacated and handed over the petition premises, the respondent/lanlord filed R.C.O.P.No.20 of 2006 against the revision petitioner/tenant under Section 10 (3) (a) (iii) of the Act. The revision petitioner had also filed a suit in O.S.No.278 of 2006 against the respondent before the First Additional District Munsif, Salem, seeking permanent injunction not to evict her from the suit property. After trial, considering the oral and documentary evidence, by Judgment, dated 10.01.2007, the suit filed by the revision petitioner was dismissed as no merits. 4. The revision petitioner had also filed a suit in O.S.No.278 of 2006 against the respondent before the First Additional District Munsif, Salem, seeking permanent injunction not to evict her from the suit property. After trial, considering the oral and documentary evidence, by Judgment, dated 10.01.2007, the suit filed by the revision petitioner was dismissed as no merits. 4. Per contra, Mr.V.Sekar, learned counsel appearing for the respondent/landlord submitted that there is no error or infirmity in the impugned judgment passed by the courts below. He has further contended that though there was joint endorsement made by both the parties in R.C.O.P.No.68 of 1999, whereby the revision petitioner/tenant was permitted to continue as tenant till 31.03.2006 and she was entitled to get back the advance amount of Rs.3,50,000/-, while vacating the premises. However, the advance amount was not returned and that is the reason for the revision petitioner/tenant for not vacating the premises. 5. Mr.T.M.Hariharan, learned counsel appearing for the respondent submitted that the court below could have allowed the R.C.O.P.No.68 of 1999 in terms of the joint endorsement made by both the parties, but unfortunately, the court below had dismissed the R.C.O.P and therefore, there was no other option for the respondent to file another R.C.O.P, that is R.C.O.P.No.20 of 2006, seeking relief under Section 10 (3) (a) (iii) of the Act. Aftercontest, the R.C.O.P.No.20 of 2006 was allowed and the revision petitioner/tenant was directed to vacate and hand over the possession to the respondent/landlord. Aggrieved by which, the revision petitioner preferred R.C.A.No. 7 of 2007 before the Rent Control Appellate Authority/Principal Sub-Judge, Salem. Learned Rent Control Appellate Authority, considering the orders passed in R.C.O.P.No.68 of 1999 and R.C.O.P.No.20 of 2006, dismissed the Rent Control Appeal preferred by the revision petitioner/tenant. 6. According to the learned counsel appearing for the respondent/landlord, after adjusting the arrears of rent in the advance amount paid by the revision petitioner/tenant, the balance payable towards rent is arrived at Rs.1,61,000/-, for which he has submitted his memo of calculation regarding rental arrears. 6. According to the learned counsel appearing for the respondent/landlord, after adjusting the arrears of rent in the advance amount paid by the revision petitioner/tenant, the balance payable towards rent is arrived at Rs.1,61,000/-, for which he has submitted his memo of calculation regarding rental arrears. According to the learned counsel appearing for the revision petitioner, who has submitted another calculation memo, the arrears of rent was only Rs.1,80,000/-and after deducting the same in the advance amount, the balance to be refunded to the revision petitioner/tenant would be Rs.1,70,000/-and therefore, there is no consensus with regard to the calculation after deducting the arrears of rent, though the advance amount was Rs.3,50,000/- had been paid by the petitioner/tenant to the respondent/landlord. Hence, both the parties are at liberty to exhaust their remedy to get back the balance amount only through Civil Court. 7. It is not in dispute that the revision petitioner/tenant had made an endorsement in R.C.O.P.No.68 of 1999 that she will vacate and hand over the possession of the petition mentioned property on 01.04.2006, that was admittedly recorded by the court below. In view of the joint endorsement, there is no justification on the part of the revision petitioner for not vacating the premises on 01.04.2006, however, she filed the suit for injunction not to evict her from the petition mentioned premises, by filing the suit on 24.03.2006, the same was also dismissed by the First Additional District Munsif, Salem on 10.01.2007. 8. Learned counsel appearing for the revision petitioner would contend that Section 10 (3) (a) (iii) of the Act is not applicable for the respondent/landlord, since he was in occupation in a portion of the building. According to the learned counsel, he could have filed the petition only for additional accommodation. However, after making a joint endorsement to vacate the premises, it is not open to the revision petitioner/tenant to re-agitate the same. 9. According to the learned counsel appearing for the respondent/landlord, in a portion of the building, the respondent/landlord is residing and the petition mentioned premises is required only for running his business, that is for non-residential purpose and therefore, there is no bar in seeking an order under Section 10 (3) (a) (iii) of the Act. 10. The respondent/landlord, apart from examining P.W.1 has produced Exs.A.1 to A.11, in order to establish his claim of his own use and occupation. 10. The respondent/landlord, apart from examining P.W.1 has produced Exs.A.1 to A.11, in order to establish his claim of his own use and occupation. In the earlier R.C.O.P, the revision petitioner/tenant has agreed to vacate and hand over the possession on 01.04.2006 and accordingly, she was permitted to be in possession and enjoyment of the property as tenant for about 5 years. Having availed the benefits under the joint endorsement for about 5 years, it is not open to the revision petitioner/tenant to file a suit, seeking permanent injunction against the respondent/landlord not to evict her from the petition mentioned property, just prior to the date on which she could have vacated and handed over the premises. I am of the view that the reason assigned by the revision petitioner that she could not vacate and hand over the possession, due to the non-payment of advance amount by the respondent/landlord cannot be accepted. 11. The courts below, considering the evidence both oral and documentary has satisfied that the respondent/landlord has established the bonafide, on the ground of own use and occupation and accordingly, given the concurrent findings, apart from the earlier joint endorsement made by both the parties. In such circumstances, I am of the view that there is no error or infirmity in the impugned order passed by the court below to interfere with the same and accordingly, the revision fails. 12. In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. However, both the parties to the revision are at liberty to approach the Civil Court, either for refund of the balance amount, as claimed by the petitioner or to recover the rental arrears, as claimed by the respondent/landlord. No order as to costs.