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2009 DIGILAW 894 (MAD)

E. Viswanathan v. V. T. Jesudas

2009-04-01

A.C.ARUMUGAPERUMAL ADITYAN

body2009
Judgment 1. The Judgment in RCA.No.961 of 2006 on the file of the Court of VIII Judge, Court of Small Causes, Chennai which had arisen out of an order of eviction in R.C.O.P.No.1886 of 2005 on the file of XIII Judge, Court of Small Causes, Chennai is under challenge in this revision. 2. R.C.O.P.No.1886 of 2005 was filed by the landlord under Section 10(2)(1) of Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as "Act"). According to the petitioner in R.C.O.P./landlord, the tenant had committed wilful default in payment of rent from March 2003 to July 2005 and that the agreed monthly rent for the petition schedule premises was Rs.7500/-(Rs.4000/- towards rent and Rs.3500/-towards maintenance per mensum). The tenant in his counter would contend that he had paid an advance amount of Rs.75,000/-at the time of inception of tenancy and that the monthly rent was not Rs.7500/-as alleged by the landlord/petitioner in RCOP and that he has not committed wilful default in payment of rent from March 2003 to July 2005 as alleged by the landlord. 3. Before the learned Rent Controller, the petitioner/landlord had examined himself as P.W.1 and had exhibited Exs P1 to P5. The respondent/tenant has examined himself as R.W.1 and no documentary evidence was marked on his side. After meticulously going through both oral and documentary evidence, the learned Rent Controller has come to a conclusion that the respondent/tenant had committed wilful default in payment of rent and accordingly, allowed the petition, granting two months time for the tenant to vacate and hand over the vacant possession to the landlord. Aggrieved by the orders of the learned Rent Controller/XIII Judge, Court of Small Causes, Chennai, the tenant had preferred an appeal in RCA.No.961 of 2006 before the Learned Rent Control Appellate Authority/VIII Judge, Court of Small Causes, Chennai, who finding no reason to interfere with the findings of the learned Rent Controller had dismissed the appeal which necessitated the tenant to approach this Court by way of this revision. 4. 4. The only ground raised before this Court challenging the Judgment of the learned Rent Control Appellate Authority by the learned counsel for the revision petitioner is that as per Section 7(1)(a) of the Act, the tenant had not committed any wilful default since he has paid Rs.75,000/- towards advance at the time of inception of tenancy and according to him the said point was escaped the notice of the learned Rent Controller as well as the learned Rent Control Appellate Authority. The learned counsel appearing for the revision petitioner would focus the attention of this Court to Ex P2, which is an agreement of lease dated 5. 2002 entered into between the landlord V.T. Jesudas and the tenant E. Viswanathan. Ex P2 contains two documents, the other one being agreement for amenities dated 5. 2002 entered into between the wife of Mr. V.T. Jesudas/landlord viz., Mrs. Kamali and the tenant E. Viswanthan. As per the lease agreement dated 5. 2002, the rent for the petition schedule premises is stipulated as Rs.4000/- per month (Clause 3, Clause 6 to agreement of lease dated 5. 2002) and as per agreement of lease dated 5. 2002 entered into between Mrs. Kamali and Mr. E. Viswanathan, the rent for amenities was fixed as Rs.3,500/-p.m. 5. The learned counsel appearing for the revision petitioner would contend that the said Kamali was not arrayed as a party in the rent control original proceedings. But the fact remains that the tenant E. Viswanathan has accepted both V.T. Jesudas and Mrs. Kamali as landlords for the petition schedule premises and executed Ex P2 agreement of lease in favour of V.T. Jesudas and agreement for amenities in favour of Kamali, wife of V.T. Jesudas. Under such circumstances, the contention of the learned counsel appearing for the revision petitioner that the rent for the petition schedule premises is only Rs.4000/- as per the agreement of lease holds no water. Further Ex P4 letter written by the tenant to the landlord also glares at the revision petitioner. Ex P4 also contains two letters one dated 28. 2002 and another dated 20.9.2002 (wrongly mentioned in Ex P4 as 9/20/2002). In the letter dated 28. 2002, the tenant had stated that the rent for the month of March to August 2002 is due and he undertook to pay the same under single payment. The letter dated 28. Ex P4 also contains two letters one dated 28. 2002 and another dated 20.9.2002 (wrongly mentioned in Ex P4 as 9/20/2002). In the letter dated 28. 2002, the tenant had stated that the rent for the month of March to August 2002 is due and he undertook to pay the same under single payment. The letter dated 28. 2002 was followed by the letter dated 20.9.2002 which was marked as Ex P4 under which two cheques were tendered by the tenant to the landlord. One cheque is for Rs.7500/-(Madras Central Cooperative Bank Ltd, Velacherry Branch, Chennai-42 for Rs.7,500/-Cheque No.205019 dated 10. 2002) and another cheque is for Rs.37,500/-(Canara Bank, T.Nagar Branch, Chennai-17 for Rs.37,500/- Cheque No.830502 dated 10. 2002). 6. Even though the learned counsel for the revision petitioner would raise a defence before this Court that Ex P4 letters dated 28. 2002 and 20.9.2002 are forged one, the said defence was not raised either before the learned Rent Controller or before the learned Rent Control Appellate Authority. There was no suggestion put forth before the learned Rent Controller/trial Court to P.W.1/landlord as to the effect that Ex P4 was a forged document by the tenant while he cross examined P.W.1. P.W.1 in the cross examination would admit that two cheques mentioned in Ex P4 were handed over to him by the tenant in person (page No.5 of the cross examination of P.W.1) Under Ex P4, two cheques viz., one for Rs.7500/- and another for Rs.37,500/- totally Rs.45000/-will denote the arrears of rent for six months at the rate of Rs.7500/-per mensum. Under such circumstances, the contention of the learned counsel for the revision petitioner that the agreed rent for the petition schedule premises is only Rs.4,000/- and not Rs.7,500/-cannot be sustained. Under such circumstances, the tenant cannot take shelter under Section 7(1)(a) of the Act also. 7. It is a well settled proposition of law that unless it is shown that the findings of the Courts below is perverse and the Courts have failed to consider the materials placed before them, it is not open to this Court, while exercising revisional power, cannot interfere with the concurrent findings of the Courts below. 7. It is a well settled proposition of law that unless it is shown that the findings of the Courts below is perverse and the Courts have failed to consider the materials placed before them, it is not open to this Court, while exercising revisional power, cannot interfere with the concurrent findings of the Courts below. There is absolutely no material placed before this Court to show that the findings of the Courts below is perverse and that the trial Court and the first appellate Court have failed to consider the materials placed before them in arriving at a concurrent findings. 8. When this Court asked the learned counsel appearing for the respondent whether we can give six months time to the tenant to vacate and hand over the possession, on the side of the respondent/tenant, a request was made for one year time for vacating the premises. But I consider, nine months time will be reasonable for the tenant to vacate and hand over the vacant possession to the landlord. 9. The learned counsel appearing for the respondent would contend that even after filing of rent control original proceeding, the tenant had committed continuous willful default in payment of rent to the tune of Rs.2,20,500/-. 10. In fine, this revision fails and the same is hereby dismissed confirming the Judgment of the learned Rent Control Appellate Authority in R.C.A.No.961 of 2006 on the file of the VIII Judge, Court of Small Causes, Chennai. Time for vacating the premises is nine months from today. The affidavit of undertaking is to be filed within a week. No costs. Consequently, connected M.P.No.1 of 2009 is also dismissed.