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2010 DIGILAW 2815 (MAD)

A. Saravanan v. M. V. Nalllaiya Asari

2010-07-12

G.RAJASURIA

body2010
Judgment :- 1. Animadverting upon the order dated 22.11.2007 passed by the Appellate Authority-Principal Sub Judge, Salem, in R.C.A.Nos.8 & 9 of 2004 confirming the order dated 28.1.2004 passed by the Rent Controller-I Additional District Munsif, Salem, in R.C.O.P.Nos.5 and 39 of 1999, these civil revision petitions are focussed. 2. Heard both sides. 3. Broadly but briefly, narratively but precisely the relevant facts which are absolutely necessary and germane for the disposal of these revisions would run thus: (a) The respondent/landlord filed the RCOP No.5/99 invoking Section 10(2)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act for short), so as to evict the revision petitioner/tenant on the ground of damage having been caused to the demised premises by the tenant. (b) Whereas the tenant filed the RCOP No.39 of 1999 by invoking Section 22 of the Act with the following prayer: "Therefore, the petitioner humbly prays that this Honourable Court may be pleased to permit the petitioner to make out necessary repairs such as laying a ceiling of RCC measuring 10 X 11 ¼ an adjust the expenses out of the rent, award costs of this petition." (c) Both the matters were taken separately by the Rent Controller and evidence also entertained in that regard and by separate orders the Rent Controller allowed the RCOP No.5 of 1999 holding that the tenant committed damage to the demised premises, and dismissed the RCOP No.39 of 1999. 4. Being aggrieved by and dissatisfied with those two orders, the tenant preferred two appeals, almost on identical grounds. The appellate Court, after considering the appeals dismissed both the appeals. These two revisions have been focussed by the tenant on almost identical grounds, the warp and woof of them would run thus: (i) The onus of proof is on the landlord who approached the Court with the plea that the tenant caused damage to the demised premises, but there is no iota or shard, shred or miniscule extent of evidence to highlight that it was the tenant who caused damage to the building. (ii) On mere conjectures and surmise, presumptions and assumptions, baselessly the Rent Controller arrived at the finding as though it was the tenant who caused damage to the roof of the demised premises and on that ground simply ordered eviction. (ii) On mere conjectures and surmise, presumptions and assumptions, baselessly the Rent Controller arrived at the finding as though it was the tenant who caused damage to the roof of the demised premises and on that ground simply ordered eviction. (iii) The tenants prayer for getting the premises repaired was turned down unjustifiably on the mere assumption as though it was the tenant who was at fault. 5. The learned counsel for the revision petitioner/tenant, placing reliance on the grounds of revisions and also inviting the attention of this Court to the various portions of the typed set of papers placed before me would develop his arguments thus: (i) On the landlord side, the landlord examined himself as witness and over and above that there was nothing to point out and demonstrate, display and expatiate that it was the tenant who caused damage to the demised premises. (ii) The ipse dixit of the landlord was taken for gospel truth by both the Courts below and the genuine case of the tenant was turned out unjustifiably and unreasonably. (iii) On the other hand the tenant examined himself as a witness along with his son, who was assisting him in the business and the depositions of both those witnesses would copiously drive home the point that it was the landlord, who, with the nefarious intention to evict the tenant by hook or crook, indulged in unwanted activities including the act of causing waste to the roof of the very demised premises. (iv) The police complaint lodged and attending circumstances would point towards the guilty of the landlord and not towards the alleged misconduct of the tenant. (v) Without considering the pros and cons of the matter, in an one sided manner, the Rent Controller decided the lis in favour of the landlord and as against the tenant, warranting interference by this Court in revision. (vi) Once the Court below are found to have acted in a perverse manner without adhering to rationality, this Court while exercising its powers under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, has got ample jurisdiction to interfere with those orders and set aside the same. (vi) Once the Court below are found to have acted in a perverse manner without adhering to rationality, this Court while exercising its powers under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, has got ample jurisdiction to interfere with those orders and set aside the same. Accordingly, the learned counsel prays for allowing both these revisions and set aside the orders of both the Courts below and consequently allow the RCOP No.39 of 2009 filed by the tenant and dismiss the RCOP No.5 of 1999 filed by the landlord. 6. Per contra, by way of refuting and challenging, impugning and gainsaying the contentions as put forth and set forth on the side of the tenant, the learned Senior counsel for the landlord would advance her arguement, the nitty-gritty of the same would run thus: (i) Both the Courts below taking into consideration all the attending circumstances including the oral and documentary evidence arrived at a just conclusion. (ii) The Rent Controller analyzed the oral and documentary evidence and held that it was the tenant who indulged in the act of waste and also damaged the roof of the building and in such a case, no interference with the orders of both the Courts below are required. (iii) The Courts below did not indulge in conjectures or surmises, but they took into account the preponderance of probabilities and correctly arrived at the conclusion. 7. Citing the decision of the Honorable Apex Court, the learned Senior counsel would implore and entreat that the scope of Section 25 of the Act is limited and the revisional Court cannot assume the role of appellate Court, which is the last Court of facts. Accordingly, the learned Senior counsel prays for dismissal of the revisions. 8. The point for consideration is as to whether both the Courts below decided the two matters on mere conjectures and surmises, without placing reliance on the oral and documentary evidence and without adhering to the Rules of evidence. 9. At this juncture, I recollect and call up the following maxims: (i) Affirmanti, non neganti incumbit probatio – The burden of proof lies upon him who affirms, not upon one who denies. (ii) Affirmantis est probare – He who affirms must prove. 10. In other words, the onus probandi is on the person who pleads certain specific facts. 9. At this juncture, I recollect and call up the following maxims: (i) Affirmanti, non neganti incumbit probatio – The burden of proof lies upon him who affirms, not upon one who denies. (ii) Affirmantis est probare – He who affirms must prove. 10. In other words, the onus probandi is on the person who pleads certain specific facts. No doubt, here the landlord approached the Court in RCOP No.5 of 1999 with the plea that the roof of the demised premises was damaged deliberately by the tenant and in such a case, the onus is on the landlord to prove the same. While holding so, one cannot forget the trite proposition of law that onus of proof is ambulatory and not static. 11. Bearing in mind the aforesaid proposition, the judgments of both the Courts below should be analysed. Before that I would like to fumigate my mind with the following two decisions of the Honourable Apex Court cited on the side of the landlord. (i) JT 2000 (SUPPL.3) SC 83 – D.RADHAKRISHNAN AND ANOTHER VS. M.LOORDUSWAMY & OTHERS, certain excerpts from it would run thus: "5. The requirement of Section 14(1)(b) of the Act for the purpose of demolition and reconstruction has been considered and dealt with elaborately by a constitution Bench of this Court in the case of Vijay Singh & Ors. v. Vijayalakshmi Ammal (JT 1996(9) SC 408 = (1996) 6 SCC 475 ). The only question that arises for our consideration is, whether the findings arrived at by the Rent Controller and affirmed by the appellate authority, could have been interfered with by the High Court in exercise of revisional jurisdiction under Section 25 of the Act. Though the power of revision of the High Court under Section 25 cannot be held to be similar to the power of civil court under Section 115 C.P.C.,but at the same time, the same cannot be held to be conferring appellate power on the High Court. The High Court is only required to examine and satisfy, whether the procedure followed by the forum below is regular or not and whether there has been any illegality or impropriety of the decisions arrived at. 6. . . . . . The High Court is only required to examine and satisfy, whether the procedure followed by the forum below is regular or not and whether there has been any illegality or impropriety of the decisions arrived at. 6. . . . . . While exercising revisional jurisdiction, to find out illegality with the findings or illegality of any procedure, it was not open to reappreciate the evidence, in the light of the object of the Act. In that view of the matter, we set aside the impugned order of the High Court and affirm the decision of the Rent Controller as affirmed by the appellate authority. Respondent No.1 is granted six months time to deliver the vacant possession of the premises to the landlord subject to the usual undertaking being filed in this Court within four weeks from today. The appeals stand disposed of accordingly." (ii) 2001(2) CTC 95 – VALLAMPATI KALAVATHI V. VAJI ISMAI, certain excerpts from it would run thus: "11. . . . The finding recorded by the High Court in the revisional proceedings amounts to taking a view different from those recorded by the Forums below on the evidence available on the record. Was this permissible within the purview of the revisional power vested in the High Court under Section 22 of the Act? The said section reads as follows: "22. Revision: (1) The High Court may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceeding taken under this Act by the Controller in execution under Section 15 or by the appellate authority on appeal under Section 20, for the purpose of satisfying itself as to the legality, regularity or of propriety gof such order or proceeding, and may pass such order in reference thereto as it thinks fit. 2) The costs of and incident to all proceedings, before the High Court under sub-section (1), shall be in its discretion." 12. As the language of the section suggests, the revisional power vested in the High Court is to be used for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceeding, and if satisfied that the order/orders suffer any such vice the High Court may pass such order in reference to the proceeding as it thinks fit. The expression legality, regularity or propriety are undoubtedly wider than mere correction of jurisdictional error. But even such regional power cannot be exercised to upset the concurrent findings of fact recorded by the Forums below merely on the ground that the High Court is inclined to take a different view on the materials on record in the case. We should not be understood to be saying that the concurrent findings of fact can in no case be interfered with in revision. For such interference it has to be shown that the findings recorded by the Forums below suffer from any inherent defect or are based on inadmissible or irrelevant materials or are so perverse that no reasonable person will come to such conclusion on the material." 12. A mere poring over and perusal of the above excerpts, including the whole judgments would amply make the point clear that even though this Court, while exercising its jurisdiction under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act is having more revisional powers than exercising its revisional powers under Article 227 of the Constitution of India or under Section 115 of the C.P.C. yet it cannot assume the role of an appellate Court, which is the last Court of facts. Unless there is perversity or gross illegality, the question of interfering in revision under Section 25 of the Act would not arise. 13. A mere perusal of paragraph No.6 of the judgment in RCOP No.5 of 1999 would display and evince that there was application of mind on the part of the Rent Controller and he discussed the evidence available on record. The most appealing part of his judgment to me is that he meticulously and carefully, convincingly and appropriately pointed out that the conduct of the tenant, as stood exposed from the evidence, paved the way for virtually giving a finding as against him. Normally the conduct of a tenant in occupation of the demised building at the time when the landlord is damaging the roof would be to the effect that he would try to prevent such demolition or would rush to the police, but in this case, as correctly pointed out by the Rent Controller that was not the conduct of the tenant and he was not the first person also to give legal notice. On the contrary, it is the landlord who issued the lawyers notice dated 28.11.1998 highlighting that it was the tenant who indulged in such act of waste, taking undue advantage of the temporary absence of the landlord from the building concerned. No sooner, the landlord came to the premises, than he finding that the tenant damaged the roof of the demised premises, swung into action and lodged complaint with the police etc. As such, in my considered opinion, the Rent Controller as well as the appellate authority directed themselves properly in analysing and understanding the truth. 14. It is a well settled proposition of law that in adjudging the civil cases, the preponderance of probabilities are more important. Proof beyond reasonable doubt as it is expected in criminal cases is not warranted. Both the Courts below also in their judgments pointed out that there was no consistency in the averments of the tenant in regard to the alleged damage caused by the landlord. What the tenant in the previous proceedings anterior to the RCOPs would point out was that the landlord was in the habit of making some holes in the roof and make water to seep through those holes and that those are all nefarious attempts on the part of the landlord in seeing that the tenant is evicted illegally. But there is no specific allegation in the pre-litigation stage that the landlord removed the roof of the demised premises to the extent of 10 X 11 feet etc. Even in the allegation in respect of the hole 2 X 2 in the roof, as correctly pointed out by both the Courts below there is no consistency. As such all those defects in the pleadings as well as in the oral evidence of the tenant and his witness, are found highlighted in the orders of both the Courts below, warranting no interference by this Court. 15. To the risk of repetition and pleonasm, but without being tautalogous, I would like to point out that this Court being a revisional Court is not bound to assume the role of an appellate Court, which is the last Court of facts. 15. To the risk of repetition and pleonasm, but without being tautalogous, I would like to point out that this Court being a revisional Court is not bound to assume the role of an appellate Court, which is the last Court of facts. Even then in the interest of justice when both sides drew the attention of this Court to the deposition of the witnesses on both sides concerned, I could see that there are loopholes as pointed out by the Courts below in the depositions of the witnesses on the tenants side. 16. The learned counsel for the tenant would try to put forth his point effectively by contending that no man having head over shoulder would ever venture to make holes in the roof of the demised premises under his occupation, to his own detriment. 17. This is a singularly singular case. For a pretty long time, it appears, the tenant was finding fault with the landlord for his act of allowing the first floor water to seep through the roof and fall into ground floor i.e., the demised premises and he tried to get it repaired also, for which the landlord was not co-operating and that alone obviously as correctly pointed out by both the Courts below propelled and impelled, geared and galvanised the tenant to indulge in such act of damage. This is precisely the finding of both the Courts below and in this factual matrix I am of the view that no interferenceh is warranted by this Court. As such, I could see no merit in the revisions and accordingly, the revision petitions are to be dismissed. 18. This is precisely the finding of both the Courts below and in this factual matrix I am of the view that no interferenceh is warranted by this Court. As such, I could see no merit in the revisions and accordingly, the revision petitions are to be dismissed. 18. The learned Senior counsel for the landlord would make an extempore submission before this Court that even while the original tenants son was sought to be impleaded consequent upon the death of that tenant, the landlord raised the objection that the son of the deceased tenant, so to say, the legal heir of the deceased, was having no license to carry on with the arms business, but that was negatived and hence, according to her she is raising the same point before this Court, as it is mainly a law point, for which, the learned counsel for the tenant would submit that such point cannot be raised for the first time before the revisional Court and in fact, the legal heir of the original tenant, namely, Saravanan, is currently holding such license also. 19. Since there is a categorical submission by the learned counsel for the revision petitioner, who is the legal heir of the original tenant that his client is having license to do arms business, I am of the view that further probe into the matter may not be necessary, as the findings on the other points supra would be sufficient to dismiss the revisions and accordingly, both the revisions are dismissed. 20. However, six months time for vacating the premises by the tenant is granted subject to the tenant paying the admitted arrears and also paying the current rents promptly. I also make it clear that since finality has not been achieved in fixation of fair rent, the landlord may not be justified in demanding the tenant to pay the arrears based on the newly fixed fair rent. The revision petitioner/tenant has to file affidavit within two weeks from the date of receipt of copy of this order to the effect that he would vacate the premises within six months from now and there would not be any arrears in payment of rents. In the result, the revision petitions are dismissed. No costs. Consequently, connected miscellaneous petition is dismissed.