Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 1784 (MAD)

Munusamy v. A. Rajpal

2010-04-15

M.VENUGOPAL

body2010
Judgment :- 1. The Revision petitioner/Appellant/Tenant has filed this civil revision petition as against the order and decree dated 12.10.2009 in R.C.A. No.838 of 2008 passed by the Learned Appellate Authority viz; VII Judge, Small Causes Court, Chennai in affirming the order and decree dated 24.10.2008 in R.C.O.P. No.732 of 2008 passed by the Learned Rent Controller viz; XII Judge, Court of Small Causes, Chennai. 2. The Learned Appellate Authority viz; VII Judge, Court of Small Causes, Chennai while passing orders in R.C.A. No.838 of 2008 has inter alia opined that the Revision petitioner/Tenant committed wilful default in payment of rent, that the quantum of rent is Rs.1,200/- and that the Learned Rent Controller has come to the correct conclusion that the Revision petitioner/Tenant committed wilful default in payment of rent and consequently, dismissed the Rent Control Appeal without costs. 3. Dissatisfied with the judgment dated 12.10.2009 rendered by the Learned Appellate Authority viz; VII Judge, Court of Small Causes, the revision petitioner has projected this Civil Revision petition before this Court. 4. The point that arisesfor rumination in this Civil Revision Petition is: Whether the Revision petitioner/Appellant/Tenant has committed an act of wilful default in payment of monthly rent for a period of eight months from 1.6.2007 till date of filing of the Rent Control Original Petition No.732 of 2008? Contentions, Discussions and Findings: 5. The learned counsel for the Revision petitioner/Appellant/Tenant urges before this Court that the order of the Learned Appellate Authority dated 12.10.2009 in R.C.A. No. 838 of 2008 is an erroneous, illegal and against the weight of evidence and probabilities of the case. Moreover the Learned Appellate Authority has rendered an erroneous finding that the Revision petitioner/Tenant has committed wilful default in payment of monthly rent and continuing further, the Learned Appellate Authority has not appreciated the fact that there has been no Attornment of tenancy at all in the present case. 6. Added further, the Learned Appellate Authority has failed to take note of the fact that after Ex.P.2, legal notice dated 3.3.2008, the Revision petitioner/Appellant started paying the monthly rent of Rs.600/-to the Respondent/Landlord from the month of March 2008 and after receipt of the same, the Landlord has not issued receipt in this regard and moreover, the evidence of P.Ws.1 and 2 have not been taken into account by the Learned Appellate Authority. 7. 7. In short, the Learned Appellate Authority has come to the conclusion based on Ex.P.1, created rental agreement dated 17.11.2005 that the monthly rent is Rs.1,200/-and further, the Revision petitioner has been in arrears of monthly rent from June 2007. 8. That apart, P.W.2 in his evidence has admitted that he is not in the habit of issuing rental receipt. But these aspects of the matter have not been adverted to by the Learned Appellate Authority in a proper perspective, which has resulted in miscarriage of justice and therefore, the Revision petitioner/Appellant prays for allowing the civil revision petition in furtherance substantial cause of justice. 9. Per contra, the learned counsel for the Respondent/Landlord submits that the Learned Rent Controller as well as the Learned Appellate Authority after appreciating the oral and documentary evidence have come to the conclusion that the quantum of rent is Rs.1,200/- p.m. and that the Revision petitioner/Tenant has committed wilful default in payment of rent and as such, the same need not be interfered with by this Court sitting in revision. 10. According to the Respondent/Landlord, he is the absolute ownerof the house bearing Old Door No.27, New Door No.44, Anderson Street, Chennai 23 measuring an extent of 2,400 sq. ft. bought from one Ramdoss and others by means of a sale deed dated 22.6.2007 and that the revision petitioner/tenant is carrying on business in respect of a shop portion viz; cycle shop and he also informed that he will vacate the premises and that he has already adjusted the advance money of Rs.10,000/-paid by him in respect of two shops and has agreed to vacate the premises within one months time and requested the landlord to waive one month rental arrears amounting to Rs.1,200/-. 11. It is the further plea of the Respondent/Landlord that the Revision Petitioner/tenant has not paid the monthly rent from 1.6.2007 till date and therefore, he is in arrears of rent and has committed an act of wilful default thereby rendered himself liable to be evicted from the petition mentioned premises. 12. The Revision petitioner/Tenant has taken a stand that there is no relationship of Landlord and Tenant between the Respondent/Petitioner and the Revision petitioner/Appellant and therefore, the main Rent control original petition is not maintainable in law. 13. 12. The Revision petitioner/Tenant has taken a stand that there is no relationship of Landlord and Tenant between the Respondent/Petitioner and the Revision petitioner/Appellant and therefore, the main Rent control original petition is not maintainable in law. 13. Significantly, the Revision petitioner/Tenant in his counter to the Rent control original petition has averred that earlier, he was a tenant in the petition mentioned premises under the former Landlord one Ramdoss and others and further, he paid an advance of Rs.5,00,000/- to them and also paid the monthly rent of Rs.600/-till February 2008 to Ramdoss and he started paying the monthly rent at the rate of Rs.600/- p.m. to the Respondent/Landlord by means of money order and as a matter of fact, he sent the rent for March 2008 through money order on 4.4.2008, but the same was returned as refused and the rent for the months of April and May 2008 has been sent by money order on 7.5.2008 and 7.6.2008 respectively. It is useful to refer to the evidence of P.W.1(Revision petitioner/Landlord in Rent control original petition) who has deposed that Ex.P.1 is the shop rental agreement dated 17.11.2005 entered into between the erstwhile landlord and the Revision petitioner/Tenant in and by which, for the two shops, one for cycle shop and another for security office, the monthly rent for each shop is Rs.600/- and for two shops, monthly rent is Rs.1,200/- and on 18.11.2005, an advance sum of Rs.10,000/- for the two shops has been received by the erstwhile landlord and the validity of the agreement is for eleven months from 18.11.2005 to 17.9.2006. 14. It is the further evidence of P.W.1 that the Revision petitioner/Tenant at the time of filing of the Rent control original petition has been in arrears of eight months rent and after filing of the petition, the Revision petitioner sent a sum of Rs.500/- as rent for May and June 2008 through money order and that the landlord received the same without prejudice to the rights in the case and sent a lawyers notice Ex.P.2 dated 3.3.2008 to the Revision petitioner and that the Revision petitioner sent a lawyers reply notice Ex.P.4 dated 7.3.2008. 15. 15. In the Respondent/Landlord lawyer’s notice Ex.P.2 dated 3.3.2008, it is mentioned that the Revision petitioner/tenant is carrying on Business in respect of two shops in the ground floor (1) cycle shop and (2) security shop and that he agreed to vacate the premises within a period of one month from the date of sale and that he has adjusted an advance amount of Rs.10,000/-(for two shops) in regard to the arrears of rent and the Revision petitioner/Tenant in the presence of witnesses has agreed to evict the premises within one month and requested the landlord to waive one month rent amount. 16. In fact, the Respondent/Landlord in Ex.P.2, lawyers notice dated 3.3.2008 addressed to the Revision petitioner/Tenant, has informed that the tenant has not paid the rent from 1.6.2007 till date and thereby committed an act of wilful default in payment of rent which has acted upon him to quit and deliver vacant possession of the premises within fifteen days from the date of receipt of the notice, etc. 17. In Ex.P.4, the reply lawyers notice of the Revision petitioner/Tenant, it is mentioned that the revision petitioner has paid the monthly rent to the erstwhile landlord i.e. Ramdoss every English calendar month without fail for a sum of Rs.600/- which was agreed to pay by him and that the tenancy with the said Ramdoss commenced on a monthly rent of Rs.50/- and till date, there has been no default on his part, etc. 18. Interestingly, in Ex.P.2, lawyers notice dated 3.3.2008, the Respondent/Landlord addressed to the Revision petitioner/Tenant, the quantum of monthly rent has not been mentioned, as admitted by P.W.1/respondent (Landlord) in his cross-examination. 19. The evidence of P.W.2 (Erstwhile Landlord) is to the effect that he sold the petition mentioned premises to the Respondent/Landlord as per Ex.P.5 dated 22.6.2007 and initially, the Revision petitioner paid a monthly rent of Rs.1,200/- and paid an advance of Rs.10,000/- and Ex.P.1 is the rental agreement dated 17.11.2005 entered into between himself and the Revision petitioner/Tenant and he has deducted an advance sum of Rs.10,000/- from the arrears of rent in entirety. He has further informed the Revision petitioner/Tenant directly the proposal of sale of the house for which, the Revision petitioner/Tenant informed him that he will vacate the premises within a month and therefore, the sale can be effected and after the sale being effected by him, the Revision petitioner/Tenant has not paid him any amount towards monthly rent. 20. The Revision petitioner as R.W.1 in his evidence has deposed that he has paid an advance of Rs.5,00,000/- to the erstwhile Landlord viz; P.W.2 and that the monthly rent for the petition mentioned premises is Rs.600/- and that the Respondent/Landlord is not in the habit of issuing receipt and he has paid the rent for February on 1st March to P.W.2, who received the same and that he sent the March and April months rent through money order but the same has been refused by P.W.1 and later, P.W.1 received the May and June months rent and that he is not in arrears of Rent and he is regularly paying the Rent. 21. R.W.1/Revision petitioner in his cross examination has stated that the signature found in Ex.P.1, shop agreement dated 17.11.2005 does not belong to him and that he has filed his Income Tax Statement for the years 2004 – 2005 and 2005 – 2006 wherein, he has mentioned that he has paid a monthly rent of Rs.200/- during 1983 and presently he has been paying a monthly rent of Rs.600/-. 22. It is to be borne in mind that as per Section 10(2)(i) of Tamil Nadu Buildings (Lease and Rent Control) Act 1960, a duty is enjoined upon a tenant to tender every month rent or to make payment in this regard if he is to take benefits of the ingredients of the Act. 23. The considered opinion of this Court is that law has not come to the point that the Landlord must seek the Tenant for collection of rent and not for the Tenant to seek the Landlord to pay the rent. To put it succintly, the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 prescribes a detailed procedure for the payment of rent. 24. Further, it is an axiomatic fact 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. To put it succintly, the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 prescribes a detailed procedure for the payment of rent. 24. Further, it is an axiomatic fact 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. Moreover, it is bounden duty of a tenant to pay the rent to the landlord regularly and not to commit any default. 25. The term wilful in the Act has not been employed in the sense culpability. According to the Dictionary meaning, it means of a situation for which compulsion or ignorance or accident cannot be pleaded as an excuse in non-payment of arrears of rent. It is the duty of the Landlord to prove beyond doubt that the tenant has shown supine indifference and callousness. 26. In this connection, this Court points out that Section 10(2)(i) of the Act relating to wilful default is a very stringent one and therefore, a Court of Law has to administer it cautiously and accept the prayer of the landlord for eviction only under specified circumstances which satisfies the every ingredient of the sub-section. 27. Though the Revision petitioner/Tenant in his cross examination has deposed that the erstwhile Landlord P.W.2 will not issue receipt for the rent paid by him, this Court at this juncture, pertinently points out that when a tenant comes with a reply that he has paid the rent and that the landlord never issued receipt, a Court of Law or a Rent Controller should not presume necessarily that the tenant has paid the rent. Really, Sub Section (2) of Section 8 requires where a landlord has refused to issue receipts or evades receipts, the tenant can call upon the landlord by means of issuance of notice granting him ten days time to notify a bank with account number etc. 28. The object of comparison of a signature as per Section 73 of the Indian Evidence Act is to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made. A Rent Controller/Appellate Authority/a Court of Law can compare the writings so as to appreciate properly the other evidence produced before it asper decision S Vs. A Rent Controller/Appellate Authority/a Court of Law can compare the writings so as to appreciate properly the other evidence produced before it asper decision S Vs. VINAYAGA CHANDRA, AIR 1967 SC 778 .In the present case, the Revision Petitioner/Tenant has signed in affidavit in his deposition, vakalat and counter and a cursory look at Ex.P1 Shop Rental Agreement with that of available material on record show that the signature of the Revision Petitioner/Tenant tallies with that of the signature seen in Ex.P1. 29. As far as the present case is concerned as evidenced by the recitals in Ex.P.1 shop agreement dated 17.11.2005 entered into between P.W.2/erstwhile Landlord and the Revision petitioner/Tenant, it is candidly clear that the monthly rent for each shop viz; the cycle shop and the security shop of the Revision petitioner/Tenant is Rs.600/-and for the two shops, it is Rs.1,200/-and as such, it is not open to the Revision petitioner/Tenant to take contra plea that the monthly rent is Rs.600/- and in short, this Court accepts Ex.P.1 rental agreement dated 17.11.2005 and accordingly holds that as per the recitals of the said documents, the monthly rent in respect of two shops run by the Revision petitioner/Tenant is Rs.600/- each and for two shops Rs.1,200/- p.m. 30. Also, the evidence of erstwhile landlord/P.W.2 is to the effect that after effecting the sale of his property as per Ex.P.5 sale deed dated 22.6.2007, he has not received any rent from the Revision petitioner/Tenant. Thus, it is quite evident that the Revision petitioner/Tenant has not paid the monthly rent up to February 2008. In fact, the evidence of P.W.2 runs counter to the plea taken by the Revision petitioner/Tenant and in the instant case, there is no proof to the satisfaction of this Court that the Revision petitioner/Tenant has paid the monthly rent in respect of two shops occupied by him viz; cycle shop and the security shop for the period from 1.6.2007 and therefore, this Court comes to an inevitable conclusion that the Revision petitioner/Tenant has committed wilful default in regard to payment of monthly rent for the period mentioned in the petition and accordingly, the point is answered against the Revision petitioner/Tenant. The learned Appellate Authority in the course of his order in appeal has observed that the Revision petitioner/Tenant is in the habit of signing documents differently to suit his convenience and certainly, this is not a favourable circumstance in his favour. 31. Suffice it for this Court to make a mention that there is no infirmity or patent illegality in the order passed by the competent authorities under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and viewed in that perspective, the Civil revision petition fails. 32. In the result, the Civil revision petition is dismissed leaving the parties tobear their own costs. The Civil Revision Petitioner/Tenant is granted two months time from the date of receipt of a copy of this order to quit and deliver vacant possession of the shop portion consisting of a cycle shop and Security Agency mentioned in the Schedule of the Rent Control Original Petition No.732 of 2008. Consequently, connected civil misecellaneous petition is also closed.