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Madras High Court · body

2010 DIGILAW 2182 (MAD)

Rajeswari v. Ramalinagam

2010-05-12

M.VENUGOPAL

body2010
Judgment :- 1. The Revision Petitioners/Appellants/Respondents have filed this Civil Revision Petition as against the order dated 20.7.2007 in R.C.A. No.26 of 2004 passed by the Learned Principal Sub-Judge, Salem (Rent Control Appellate Authority). 2. The learned Principal Sub-Judge, Salem (Rent Control Appellate Authority) while passing orders in R.C.A. No. 26 of 2004 on 20.7.2007 had among other things observed that “witness of R.W.1 (First Revision Petitioner/1st Respondent) admitted that now she was residing at Bangalore and his brother alone doing the business in the shop which clearly establish the sub-lease as claimed by the landlord and also was of the view that R.W.1 (First Revision Petitioner/First Respondent) had admitted that she had not paid any rent as determined in the Fair Rent proceedings and therefore, she committed wilful default in payment of Arrears of Rent and resultantly, dismissed the Appeal with costs”. 3. Being aggrieved against the order of dismissal passed by the learned Principal Sub-Judge, Salem (Rent Control Appellate Authority) dated 20.7.2007 in R.C.A. No.26 of 2004, the Revision Petitioners/Appellants/Respondents have projected this Civil Revision Petition before this Court. 4. The points that arise for determination in this Civil Revision Petition are: (i) Whether the Revision Petitioners/Appellants/Respondents have committed wilful default in regard to the payment of arrears of rent (difference between the original rent and fair rent fixed by this Court) for the period from 7.2.1993 to 7.1.2001 amounting to Rs.46,150/- being the difference in rent less payment of Rs.28,730/-? (ii) Whether the Revision Petitioners/Appellants/Respondents have let out the petition-premises on sub-lease to the 6th Revision Petitioner/Tenant? Findings on Point No.1: 5. According to the learned counsel for the Revision Petitioners/Appellants/Tenants, the orders of the Learned Appellate Authority, Rent Controller are not supported by acceptable evidence and in fact, both the authorities have not appreciated the fact that the Revision Petitioners are not in arrears of rent and they have not committed any wilful default in payment of rent. 6. According to the learned counsel for the Revision Petitioners/Appellants/Tenants, the orders of the Learned Appellate Authority, Rent Controller are not supported by acceptable evidence and in fact, both the authorities have not appreciated the fact that the Revision Petitioners are not in arrears of rent and they have not committed any wilful default in payment of rent. 6. Continuing further, it is the contention of the learned counsel for the Revision Petitioners that there is no specific pleading as to the period during which the wilful default in payment of rent has been committed by the First Revision Petitioner and more over, P.Ws.1 and 2 in their evidence have not spoken about the aspect of wilful default and as such, the orders of both the authorities below in ordering eviction on the ground of wilful default is clearly unsustainable in the eye of law. 7. That apart, the learned counsel for the Revision Petitioners submits that the monthly rent of Rs.780/- has been regularly paid to the Respondent/Landlord every month by way of pay order and there is no dispute between the parties in regard to the payment of monthly rent with effect from 10.11.2000 and if at all, there is any dispute in regard to the payment of difference in rent, it is prior to 10.11.2000 and the same cannot be construed to be a case of wilful default as per Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and it will be sufficient for this Court to direct the First Revision Petitioner to pay the said amount by way of difference in rent for the period prior to 10.11.2000 under Proviso to Section 10(2)(i) of the Act instead of ordering eviction on the ground of wilful default. 8. Advancing his arguments, the learned counsel for the Revision Petitioners submits that Ex.A4-lawyer’s notice dated 4.12.2000 issued by the Respondent/Landlord to the Revision Petitioners 1 to 5 cannot be construed as a notice issued under Section 10(2) (i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, because of the fact that the said notice speaks only about the difference in rent and the same is silent about the wilful default. 9. 9. Also, on the side of the Revision Petitioners, a plea is raised to the effect that the Respondent/Landlord has filed a separate Suit for recovery of the Fair Rent for a period of 50 months and thereafter a Petition for eviction on the ground of wilful default is not per se maintainable in law. 10. The learned counsel for the Revision Petitioners cites the decision of the Hon’ble Supreme Court reported in National Insurance Co. Ltd. V. Mastan and another, 2006 (1) CTC 222 (SC): 2005 (2) TN MAC 264 (SC): 2006 (2) SCC 641 , wherein, it is held that “the Respondent having chosen forum under the Workmen Compensation Act, 1923, could not fall back upon provisions of the Motor Vehicles Act, 1988”. 11. In the main R.C.O.P. No.11 of 2001, the Respondent/Landlord has stated that he is the absolute owner of the petition mentioned property and originally, the petition-premises was leased to one S.K. Nagamanickam Chettiar/father-in-law of the first revision Petitioner and after his demise, his son Ethirajulu i.e. the husband of the First Revision Petitioner was in possession of the petition mentioned property as a Tenant under the Respondent/Landlord, etc. 12. It is evident that the Respondent/Landlord filed R.C.O.P. No.10 of 1993 before the learned Rent Controller (District Munsif Court, Salem) praying for fixing of Fair Rent to the petition mentioned property at Rs.1,000/- per month. But the R.C.O.P.No.10 of 1993 was dismissed by the learned Rent Controller, Salem. Later the Respondent/Landlord filed R.C.A.No.25 of 1996 on the file of the learned Principal Judge (Rent Control Appellate Authority) Salem and the Appeal was allowed on 26.3.1997 fixing the Fair Rent at Rs.780/- per month from the date of filing or the main R.C.O.P. Petition. 13. The First Revision Petitioner filed a C.R.P. No.1326 of 1998 before this Court as against the order passed in R.C.A. No.25 of 1996 and this Court on 10.11.2000 has dismissed the Revision Petition. 14. The case of the Respondent/Landlord is that the revision Petitioners 2 to 5 are the daughters and sons of the first revision Petitioner and also they are the legal representatives of the original tenant Ethirajulu (Deceased). The 6th Revision Petitioner is the brother of the First Revision Petitioner. 15. 14. The case of the Respondent/Landlord is that the revision Petitioners 2 to 5 are the daughters and sons of the first revision Petitioner and also they are the legal representatives of the original tenant Ethirajulu (Deceased). The 6th Revision Petitioner is the brother of the First Revision Petitioner. 15. According to the learned counsel for the Respondent/Landlord, the Revision Petitioners 1 to 5 must pay the fair rent for the Petition mentioned property from 7.2.1993 viz., the date of filing of the main R.C.O.P. No.10 of 1993 and also that the difference between the original rent and the fair rent fixed by this Court is payable by the Revision Petitioners 1 to 5 when the order in C.R.P. No.1326 dated 10.11.2000 fixing the Fair Rent has become final and binding between inter-se parties. 16. The learned counsel for the Respondent/Landlord also cites the decision of this Court (Division Bench) reported in J. Visalakshi Ammal v. T.B. Sathyanarayana, 1996 (2) LW 849 , wherein, it is held that “difference between the agreed rent and Fair Rent is arrears and is payable when order fixing Fair Rent becomes final and that, the right of Landlord to issue notice of 15 days from last day of that tenancy month demanding arrears, and failing compliance to institute proceedings under Section 10(2)(i) of the Act is not necessary for Landlord to go to Civil Court to recover such arrears”. 17. The details of the Difference in Balance Amount to be paid by the Revision Petitioners 1 to 5 for 96 month from 7.2.1993 to 7.1.2001 is shown hereunder: Payments made by the First Revision Petitioner Rs. (i) from 7.2.1993 to 9.4.1997 (i.e.) for 50 months (ii) from 7.4.1997 to 7.8.1998 (i.e.) for 16 months at the rate of Rs.37/-(Rs.37 x 50 months) 1,850.00 at the rate of Rs.780/-(Rs.780 x 16 months) 12,480.00 (iii) from 7.8.1998 to 7.11.2000 for 27 months at the rate of Rs.300/-(Rs.300 x 27 months) 8,100.00 (iv) Through Court lodgment deposit 5,520.00 (v) Through pay order of Lakshmi Vilas Bank Ltd., dated 19.12.2000 780.00 Total payment made 28,730.00 Total difference balance (i.e.) arrears of rent(Rs.780/-x96 months) 74,880.00 Payments made 28,730.00 So, the Balance Amount due till 7.1.2001 46.150-00 Therefore, the Revision Petitioners 1 to 5 are in arrears of rent (being the difference in rent) amounting to Rs.46,150/-. 18. 18. In the counter to the original R.C.O.P. Petition filed by the First Revision Petitioner, it is mentioned that she continues to be the tenant of the petition mentioned property till date and also continuing the business of her husband and after her husband’s death, she is paying the rent regularly to the Respondent/Landlord and further she is paying the monthly rent regularly without any default to the Respondent/Landlord viz., Rs.780/-per month for the shop by paying the same through pay order drawn on Lakshmi Vilas Bank, Sevapet Branch, Salem-2 and she is not in arrears of rent to a sum of Rs.46,150/-. 19. Further more, it is the stand of the First Revision Petitioner that the difference in payment of rent to the Respondent/Landlord has to be worked out in the Suit filed in O.S.No.542 of1997 and this does not mean that the First Revision Petitioner has committed wilful default in regard to the payment of monthly rent. 20. P.W.1 (Respondent/Landlord) in his evidence has deposed that in C.M.P. No.6636 of 1998 in C.R.P. No.1326 of 1998, the Revision Petitioners have been directed to pay a monthly rent of Rs.300/- and as per the said order, the Revision Petitioners have been paying the monthly rent at the rate of Rs.300/- and later, the Civil Revision Petition has been dismissed by this Court and the monthly rent of Rs. 780/- has been confirmed from the date of filing of the Original Petition and the Revision Petitioners have not paid the balance amount (less payment made for 27 months at the rate of Rs.300/- per month). 21. It is the further evidence of P.W.1 (Landlord) that he issued a notice Ex.A4 dated 4.12.2000 and the acknowledgment for the receipt of the said notice is Ex.A5 and Ex.A6 is the reply lawyer notice sent by the First Revision Petitioner to the Respondent/Landlord’s Advocate and the Revision Petitioners 2 to 5 have not received Ex.A4-notice dated 4.12.2000 and the returned four covers are Exs.A7 to A10. The evidence of P.W.1 is also to the effect that for the arrears of rent due to him, he has filed O.S.No.542 of 1997 on the file of the Additional Sub-Court, Salem and the same is pending. 22. The evidence of P.W.1 is also to the effect that for the arrears of rent due to him, he has filed O.S.No.542 of 1997 on the file of the Additional Sub-Court, Salem and the same is pending. 22. R.W.1 (First Revision Petitioner/Tenant) in her evidence has stated that in C.R.P.No.1326 of 1998, she has been directed to pay the monthly rent at the rate of Rs.780/- from the date of filing of the R.C.O.P. No.10 of 1993 and during the pendency of C.R.P. No.1326 of 1998, in C.M.P.No.6636 of 1998 an order has been passed by this Court that the First Revision Petitioner has to pay a sum of Rs.300/- per month in future and apart from paying the said monthly rent of Rs.300/- , she has not paid the balance amount of Rs.450/- per month and likewise, the balance monthly rent (after deducting earlier rent amount of Rs.36.75) has not been paid and therefore, they have not fulfilled the order passed by this Court in the Civil Revision Petition. 23. R.W.1 (First Revision Petitioner/Tenant) in her cross-examination has specifically stated that as against the orders passed by this Court in C.R.P.No.1326 of 1998 dated 10.11.2000, she has not preferred any Appeal. 24. It is to be pointed out where Fair Rent is fixed by the learned Rent Controller or by a Court of law, it is the duty of the tenant to pay the Fair Rent after the same being determined. If the tenant has paid only the old agreed rent or a particular sum after fixation of Fair Rent, certainly an order of eviction can be passed against the tenant since she has not paid the balance amount in the considered opinion of this Court. When the Civil Revision Petition No.1326 of 1998 filed by the Revision Petitioners 1 to 5 has been dismissed by this Court on 10.11.2000, then any violation to pay the fair rent thereafter amounts to wilful default (less the amount if any already paid). 25. It is the duty of the First Revision Petitioner/Tenant to pay the Fair Rent amount after the date of dismissal of C.R.P.No.1326 of 1998 and she cannot escape from her liability to pay the said amount in law. 26. 25. It is the duty of the First Revision Petitioner/Tenant to pay the Fair Rent amount after the date of dismissal of C.R.P.No.1326 of 1998 and she cannot escape from her liability to pay the said amount in law. 26. In regard to the contention of the learned counsel for the Revision Petitioners that the Respondent/Landlord has filed separate Suit for recovery of the fair rent for 50 months will not clothe him a right to file a Revision Petition on the ground of wilful default and the same is rejected by this Court for a simple reason that the Civil Suit for recovery of Rental Amount being the difference in arrears of Rent Amount between the Original Rent and the Fair Rent fixed and further that the relief of eviction can only be obtained by a party before the competent forum constituted under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 which is a self contained one. To put it precisely, the relief of evicting the Statutory Tenant cannot be ordered by a Civil Court except by the Learned Rent Controller in the manner known to law and in accordance with law. In fact, the Respondent/ Landlord filing a R.C.O.P. Petition praying for the relief of eviction on the ground of wilful default before the learned Rent Controller, in respect of a tenant is not barred when he has chosen to file a separate Suit before the Competent Civil Court. 27. The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 casts a duty on the part of the First Revision Petitioner/Tenant to pay the Fair Rent amount fixed by the Court/learned Rent Controller promptly. In the absence of such payment, the First Revision Petitioner/Tenant is guilty of wilful default as opined by this Court. 28. Significantly, R.W.1 (First Revision Petitioner) in her cross-examination has specifically admitted that other than the amount of Rs.300/-per month paid by them, they have not paid the balance amount of Rs.450/-per month and also that they have not paid the balance rent (after deducting the earlier rent for Rs.36.75) and therefore this is a case of definite and unambiguous admission in clear terms made by the First Revision Petitioner/Tenant which is certainly not a favourable circumstance in her favour in the considerable opinion of this Court. 29. 29. Because of the above said admission made by R.W.1 (First Revision Petitioner), this Court comes to an inevitable conclusion that the First Revision Petitioner/Tenant has committed an act of willful default in regard to the payment of balance due amount of Rs.46,150/- for the period from 7.2.1993 till 7.1.2001 (being the difference in original Rent and that of Fair Rent fixed) and therefore, the Civil Revision Petitioners are liable to be evicted from the petition mentioned property and the point is so answered accordingly. Findings on Point No.2: 30. According to the learned counsel for the Respondent/Landlord, the Revision Petitioners 1 to 5 have sub-leased the petition mentioned premises to the 6th Revision Petitioner and they are migrated to Bangalore and therefore, the 6th Revision Petitioner is only a Tress-passer. 31. It is the evidence of P.W.1 (Respondent/landlord) that in the petition mentioned property, the First Revision Petitioner’s brother Surenderan (6th Revision Petitioner) is residing as a sub-tenant. The Sixth Revision Petitioner belongs to Polachi and he was doing the business in Polachi and presently, he is doing sweet business in the petition-mentioned property and no permission has been given by him to the Sixth Revision Petitioner to reside in the Petition mentioned property as a sub-tenant and also that either the First Revision Petitioner or her heirs have no manner of right to allow the Sixth Revision Petitioner to reside in the petition mentioned property as a sub-tenant. 32. Ex.A11 notice dated 7.1.2001 has been issued by P.W.1-lawyer to the Revision Petitioners 1 to 6. The Revision Petitioners 1 to 5 have refused to receive the said lawyer notice and the refused lawyer notices are Exs.A12 to A16 and that, the Sixth Revision Petitioner has accepted the notice issued by him. Ex.A17 is the Acknowledgment. 33. It is the evidence of P.W.2 to the effect that Country Medicine shop was originally conducted by the husband of the First Revision Petitioner Ethirajulu (Deceased) and he died in 1994 and till 1998, the First Revision Petitioner was doing the said business and later the said shop is running by the brother of the First Revision Petitioner (i.e.) 6th Revision Petitioner and after 1998, the First Revision Petitioner is not doing any business in the said shop. 34. 34. It is the further evidence of P.W.2 that the 6th Revision Petitioner is not doing any old Country Medicine Business and he is conducting the Sweet and other Plastic Article Business in the petition mentioned shop and further that, he comes to know that the First Revision Petitioner has left out the petition mentioned property to the Sixth Revision Petitioner on sub-lease on a monthly rent of Rs.3,000/-. 35. R.W.1 (First Revision Petitioner/Tenant) in her evidence has stated that after her husband demise in the year 1994, she and her son are conducting the Country Medicine Business and after 1994, they have not purchased the country medicine and that earlier in the shop, there was a fixing board. Later the Sixth Revision Petitioner has replaced the same with that of folding board, for which, no permission was obtained from the Respondent/Landlord and it is not correct to state that she has sub-let the petition mentioned premises to the Sixth Revision Petitioner on a monthly rent of Rs.3,000/-. 36. In the counter, the First Revision Petitioner/Tenant has among other things stated that the Revision Petitioners 2 to 5 are residing at Bangalore City and the Revision Petitioners 1 to 5 have not sub-leased the property to Sixth Revision Petitioner and they have not migrated to Bangalore and further that, the Sixth Revision Petitioner is not running the business. 37. As a matter of fact, in the counter, the First Revision Petitioner (Tenant) has stated that she along is running the business as she was soon after her husband’s death Ethirajulu and in the absence of the Revision Petitioners 2 to 5 from Salem Town, the First Revision Petitioner requested the Sixth Revision Petitioner to help her in running the business and that the First Revision Petitioner and the Sixth Revision Petitioner are living together and that the Sixth Revision Petitioner is not running the business individually as his separate business and the petition mentioned shop is run only by the First Revision Petitioner and it is not sub-let to the sixth Revision Petitioner at all. 38. It is the well settled principle in law that a statutory tenant has got a personal right to protect his possession and he has no interest or estate in the tenanted premises occupied by him. 38. It is the well settled principle in law that a statutory tenant has got a personal right to protect his possession and he has no interest or estate in the tenanted premises occupied by him. In fact, a tenant cannot convey an interest or estate in the portion occupied by him/her which he/she is not in possession. A tenant ought not to bring an unconnected individual and allow them to do business in a portion occupied by him/her and receive the rents either as profits or rents as the case may be. Only if it is established that the sub-letting of the premises occupied by the tenant, then the landlord is entitled to the relief of eviction under the Act. 39. Admittedly, the burden of proving the sub-lease is heavily on the Respondent/Landlord. The circumstantial evidence can be acted upon in the absence of direct evidence if any. However, it is to be borne in mind that sub-lease cannot be inferred from the factors like that the elder brother of the tenant is assisting in regard to the conduct of the business and that the name of the business has been changed as per decision in N. Sambandam and another v. Saraswathi Ammal, 1984 (2) MLJ 116 at 118. 40. One cannot ignore an important fact that in a case of statutory tenant, there is no transferable interest but as per Section 10(2)(ii)(a) of the Act, if a tenant had transferred her right or his right under a lease or sub-lease, the whole building or any portion thereof, if the lease does not confer on him/her, any right to do so then, he is liable to be evicted, as opined by this Court. 41. The essential feature to establish the case of sub-lease is parting with possession and if evidence is lacking in this regard, then a finding on sub-lease will be held to be an illegal one. In as much as the conclusion on sub-lease is a question of law, even though, the finding of the authorities is concurrent, yet this Court is empowered to upset the finding. It is to be remembered that the payment of rent is an important element of lease or sub-lease and that a Landlord is not supposed to prove such payment by positive evidence. It is to be remembered that the payment of rent is an important element of lease or sub-lease and that a Landlord is not supposed to prove such payment by positive evidence. A Court of law on proved facts can infer about the payment of rent by such a tenant and also the delivery of exclusive possession. 42. In the instant case, it is the evidence of R.W.1 (First Revision Petitioner/Tenant) that she has called the Sixth Revision Petitioner, because of the fact that there was no one to look after the shop and that the Sixth Revision Petitioner family have joined with their family in the year 1999 and further that, the Sixth Revision Petitioner and his wife and their two children have stayed with her permanently. In as much as the Sixth Revision Petitioner (brother of R.W.1/the First Revision Petitioner) has been called by the First Revision Petitioner to look after the petition mentioned shop, he has settled permanently with his wife and children by joining with the family of the Revision Petitioners 1 to 5. 43. In view of the above, this Court comes to an inescapable conclusion that the Respondent/Landlord has not proved to the subjecting satisfaction of this Court that the First Revision Petitioner has parted with the legal possession of the petition mentioned premises and the Sixth Revision Petitioner is an exclusive possession of the petition mentioned property and since the evidence in regard to “parting with possession” is conspicuously absent, the finding on sub-letting or sub-lease rendered by the both the authorities below is not a valid and legal one and in that view of the matter, this Court reverses the finding on sub-lease or sub-letting rendered by both the authorities and hold that the Respondent/Landlord has not proved that the First Revision Petitioner/Tenant has sub-lease or sub-let the petition mentioned property to the Sixth Revision Petitioner and the point is answered against the Respondent/Landlord. 44. In the result, the Civil Revision Petition is allowed in part leaving the parties to bear their own costs. Resultantly, the Revision Petitioners 1 to 6 are directed to hand over the vacant possession of the schedule mentioned property to the Respondent/Landlord within a period of three months from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is closed.