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2008 DIGILAW 4140 (MAD)

R. Muruganandham v. J. Noor Mohammed & Another

2008-11-11

V.RAMASUBRAMANIAN

body2008
Judgment : These Civil Revision Petitions arise out of concurrent orders of eviction passed by the Rent Controller and the Appellate Authority and concurrent orders rejecting the prayer of the tenant to deposit the rent into Court. 2. Learned Mr. P. Valliappan, learned counsel appearing for the petitioner and Mr. T.R. Rajaraman, learned counsel for the respondents. .3. The respondents filed R.C.O.P.No.21 of 1997 on the file of the Rent Controller, Erode against the petitioner herein seeking eviction on the grounds of wilful default, owners occupation and demolition and reconstruction. Simultaneously, the petitioner herein filed a petition in R.C.O.P.No.23 of 1997 under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, seeking permission to deposit the rents into Court. By a common order dated 7. 2004, the Rent Controller allowed the petition for eviction and dismissed the petition filed by the tenant for deposit of rent into Court. 4. The petitioner filed two appeals in R.C.A.Nos.5 of 2004 and 5 of 2005 against the common order passed in both the petitions. But the Appellate Authority dismissed the appeals by a common order dated 22. 2006. It is against these orders that the petitioner has come up with the present Civil Revision Petitions. 5. At the outset, it is contended on behalf of the tenants that there was a dispute between the petitioner and the respondents with regard to the monthly rent payable. According to the petitioner, the monthly rent was only Rs.2,000/-. However, according to the respondents, the monthly rent was Rs.3,250/-. In order to show that the monthly rent was only Rs.2,000/-, the petitioner filed the ledgers maintained in the course of his business, from the year 1995-1996 upto the year 2001-2002, as Exhibits R-21 to R-34. Drawing my attention to these exhibits, Mr. P. Velliappan, learned counsel for the petitioner contended that when the accounts books or ledgers maintained in the course of the business of the petitioner were filed before the Court below and their authenticity was not disputed, both the Rent Controller and the Appellate Authority ought not to have given a finding that the rent was Rs.3,250/-. .6. However, it is seen that, the respondents also filed the receipt books containing the counterfoils for the period from 1. 1988 to 9. 1991 as Exhibit P-6. .6. However, it is seen that, the respondents also filed the receipt books containing the counterfoils for the period from 1. 1988 to 9. 1991 as Exhibit P-6. Similarly, the respondents also filed the receipt book containing the counterfoil relating to the rents for the period from December 1989 to January 1993, as Exhibit P-7. Exhibit P-5 was similar rental receipt book for the period from 1993 to 1997. On the basis of the oral evidence let in by the respondents and the above exhibits, after taking into account the ledger accounts filed by the petitioner, both the Courts below came to the conclusion that the actual rent was Rs.3,250/- per month. As a matter of fact, the Courts below came to the conclusion that there was a periodical increase in the monthly rent, from time-to-time. The courts below noted that the rent was Rs.1,700/-, during the period 1989 to 1991; it was Rs.1,800/- during the period 1991 and 1992 and it was Rs.2,000/- from 1982 to 1993. Ultimately, the rent was finally increased to Rs.3,250/- from 1996 onwards. It is on account, of such a cogent presentation that the Courts below came to the conclusion that the rent was Rs.3,250/- per month. Once such a conclusion is found to have been reached by two Courts below without any perversity of approach on their part, this Court will not interfere with the finding in a revision. It is the admitted case of the petitioner that he was only paying Rs.2,000/- per month and not Rs.3,250/- per month. Therefore, in the light of the finding that the monthly rent was Rs.3,250/- per month, it follows that there was wilful default on the part of the petitioner. Therefore, I cannot find fault with the Rent Controller and the Appellate Authority for holding the petitioner guilty of wilful default in payment of monthly rent. 7. Insofar as the next ground viz., demolition and reconstruction is concerned, the respondents filed Exhibit P-8 which was the approved Plan and Exhibit P-9 which was the Planning Permit issued by the Municipality for the construction. According to the petitioner, exhibits P-8 and P-9 disclosed that the respondents merely wanted to remove the roof and put up a new roof and that therefore it will not come within the purview of demolition and reconstruction in terms of Section 14(1)(b) of the Act. 8. According to the petitioner, exhibits P-8 and P-9 disclosed that the respondents merely wanted to remove the roof and put up a new roof and that therefore it will not come within the purview of demolition and reconstruction in terms of Section 14(1)(b) of the Act. 8. However, it is seen from the approved plan that the description given was “plan showing the proposed alteration of roof from Madras Terrace to RCC Terrace in ground floor and first floor, by removing existing tiled roof in the second floor but with Borne interior changes. “Exhibit P-9 which is a Planning Permit, clearly showed that what was proposed to be constructed was a new building. The planning permit issued by the Municipality even indicated the area in square meter of the ground floor and the first floor, of the proposed construction and the Planning Permit originally sanctioned was also subsequently renewed, during the pendency of the eviction proceedings. In view of the Exhibits P-8 and P-9, the Rent Controller and the Appellate Authority came to the conclusion that the respondents genuinely wanted to demolish and reconstruct the building. In such circumstances, the finding rendered by both the Courts below, cannot be taken to be perverse, warranting any interference in a Revision Petition by this Court. .9. On the third ground, it is seen that the respondents wanted the premises for their own occupation for business purposes. In order to demonstrate that they had another business and that they wanted to occupy this place, the respondents filed Exhibit P-15, .which is a Registration Certificate issued by the Commercial Taxes Department in the year 1985. 10. Mr. P. Valliappan, learned counsel for the petitioner contended that the Certificate of Registration granted by the Commercial Taxes Department, was for the purpose of dealing in tanned leather and manufacture of sky sorddles. But in the petition for eviction, the respondents wanted the premises for own use, under the guise that they wanted to carry on the business in shoe and leather. 11. It is seen from the petition for eviction filed by the respondents that they were originally carrying on business in leather for about 12 years. However, the Tannery got closed for various reasons, including pollution. On account of the same, the respondents wanted to get into a business in finished leather goods like shoes and chappals. 11. It is seen from the petition for eviction filed by the respondents that they were originally carrying on business in leather for about 12 years. However, the Tannery got closed for various reasons, including pollution. On account of the same, the respondents wanted to get into a business in finished leather goods like shoes and chappals. The pleadings of the parties need not necessarily be so elaborate in detail as to cover all aspects. There is an indication about the type of business that the respondents proposed to carry on and hence, the evidence produced by the respondents in the form of Certificate of Registration (Exhibit P-15) was sufficient to support their pleading that they wanted the premises bona fide for own use. Therefore, the eviction ordered on this ground also cannot be found fault with. 12. Mr. P. Valliappan, learned counsel for the petitioner cited certain decisions, which I shall deal with one after another. Referring to the decision of Justice K.P. Sivasubramaniam in Khusid Begum, and Others v. Basheer Alam 2001 (2) L.W. 596, the learned counsel contended that wilful default is not made out when the landlord refused to receive the rent, when the amount was tendered. The said decision is of no application to the case on hand, since it was found in that case that the dispute with regard to the quantum of rent was a genuine dispute. In the case on hand, the dispute with regard to the quantum of rent is not a bona fide dispute but a bogey created for the purpose of getting over the allegation of wilful default. .13. Referring to the decision in K. Manavalan v. Eswari and Another (2001) 2 MLJ 663 , the learned counsel for the petitioner contended that when the Money Order sent by the tenant was returned by the landlord and the tenant filed a petition for deposit of rent into Court, it showed his bona fide intention and hence, no case of wilful default was made out. But, this contention cannot be accepted for the simple reason that the petitioner did not send money order for the actual rent of Rs.3,250/-per month, but sent money order only for Rs.2,000/- 14. But, this contention cannot be accepted for the simple reason that the petitioner did not send money order for the actual rent of Rs.3,250/-per month, but sent money order only for Rs.2,000/- 14. In P.M. Punnoosa v. K.M. Munneruddin and Others (2003) 3 MLJ 138: 2003 (3) CTC 348, the Supreme Court has held that when there was a bona fide dispute regarding the quantum of arrears, wilful default cannot be presumed. But the decision in that case is also of no assistance to the petitioner, since that there is a definite finding recorded by both the Courts below that the rent was Rs.3,250/- per month and not Rs.2,000/- per month. 15. The decision in M. Salem v. Josephine Mary (2004) 1 MLJ 76 : 2003 (2) TLNJ 438, is also to the effect that when a tenant sends notice about the quantum of rent and the landlord refuses to receive the rent, no default can be presumed. But, as I have pointed out above, the petitioner would be entitled to such a benefit of doubt only if he had sent the current amount of rent. 16. In C. Chandramohan v. Sengottaiyan (Dead) by LRs and Others (2000) 2 MLJ 1 : 2000 (1) CTC 239, it was held by the Supreme Court that the failure to tender correct rent will not amount to wilful default in payment of rent. But it is seen from paragraph-14 of the said decision that the petition for eviction in that case did not even contain the basic essential averment relating to the period of default. The Supreme Court observed that there was no averment in the Eviction Petition regarding non payment of rent by the respondents for any specified month or period. It is in such circumstances that the Supreme Court came to the conclusion that it did. .17. The decision, in C.M. Khaja Hussain v. R. Rajamani and Others (1984) 1 MLJ 202, is relied upon by the learned counsel for the petitioner in support of his contention that the mere replacement of roof, would not amount to demolition and reconstruction. But the case on hand, cannot be clearly put under the category of just a replacement of roof. As a matter of fact, the evidence shows that the respondents wanted to remove roofings in all the floors, as seen from Exhibit P-8 Plan. But the case on hand, cannot be clearly put under the category of just a replacement of roof. As a matter of fact, the evidence shows that the respondents wanted to remove roofings in all the floors, as seen from Exhibit P-8 Plan. It would otherwise indicate that the building was to be completely remodeled. Moreover, it is seen that the building is located in a known T.P. Scheme area. This is why the Planning Permit indicates that there was a proposal to put up a new construction. Therefore, this case cannot fall under the category indicated in the decision in C.M. Khaja Hussain v. R. Rajamani and Others (supra) case. 18. Thus I am unable to agree with any of the contentions raised by the learned counsel for the petitioner. In the result, the Civil Revision Petitions are dismissed. No costs. Consequently connected miscellaneous petition is also dismissed.