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2010 DIGILAW 2956 (MAD)

M. Raman (deceased) v. G. Krishna Kumar

2010-07-20

G.RAJASURIA

body2010
Judgment :- 1. Animadverting upon the order dated 18.09.2009 passed in RCA No.11 of 2008 by the learned Sub Judge, Udhagamandalam, Rent Control Appellate Authority, confirming the order dated 18.08.2008 passed in RCOP No.50 of 2005 by the learned District Munsif and Rent Controller, Udhagamandalam, this civil revision petition is focussed. 2. Heard both sides. 3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this revision would run thus: The respondent filed the RCOP as against the revision petitioner/tenant for getting him evicted on the ground of wilful default in payment of rent. Counter was filed. Whereupon, on the side of the landlord, P.W.1 and P.W.2 were examined and Exs.A1 to A5 were marked. On the side of the tenant, Exs.B1 to B10 were marked. Ultimately, the Rent Controller ordered eviction, as against which appeal was filed for nothing but to be dismissed. 4. Being aggrieved by and dissatisfied with the orders of both the Courts below, this revision has been filed on various grounds, the gist and kernel of the same would run thus: The landlord quite antithetical to the terms and conditions as found displayed and demonstrated in the lease agreement dated 07.03.2003 failed to furnish furniture for the use of the tenant. As per the terms of the lease agreement, if at all furniture is provided by the landlord, the tenant has to pay an additional rent of Rs.3,000/- (Rupees three thousand only) over and above the rent of Rs,3.000/-(Rupees three thousand only) for the demised building. But in this case, the landlord did not provide the tenant with furniture. The tenant also paid huge advance of Rs.40,000/-(Rupees forty thousand only) and in such a case, the question of wilful default does not arise. Ex.A5, the lease agreement was not properly interpreted by both the Courts below. 5. The learned counsel for the revision petitioners reiterating the grounds of revision would develop his argument, which could pithily and precisely be set out thus: (1) Even though the definition Rent as contained in the Tamil Nadu Buildings (Lease and Rent Control) Act would include the amounts payable towards amenities including furniture, in this case, the landlord and the tenant specifically agreed under Ex.A5 to quantify the rent for the furniture in a sum of Rs.3,000/-per month apart from quantifying a sum of Rs.3,000/- for the demised building per month. In such a case, the tenant was justified in his claim that he was liable to pay Rs.3,000/- towards demised building and over and above that Rs.3,000/-should have been adjusted towards future rent. (2) Ex.B8, the notice would exemplify and convey clearly that the tenant exercised his right to get adjusted the excess rent towards the future rents, but both the Courts below failed to analyse the facts in proper perspective and arrive at a proper conclusion. 6. Per contra, by way of torpedoing and pulverising the arguments as put forth and set forth on the side of the revision petitioners/tenants, the learned counsel for the respondent/landlord would advance his arguments, the nitty-gritty of the same would run thus: Ex.A5, the lease agreement dated 07.03.2003 emerged between the respondents vendor and the revision petitioner/tenant herein. No doubt in the lease agreement, there is a clause quantifying a sum of Rs.3,000/-as rent towards demised premises and a sum of Rs.3,000/- towards furniture that would be supplied by the landlord to the tenant for the latters use. However, indubitably and indisputably, the tenant started paying ever since 07.03.2003 a sum of Rs.6,000/-per month as agreed in Ex.A5 as rent and there was no problem at all for about 1-1/2 years. Only during October 2004, the tenant having a volte face and turning turtle sent the notice contending as though he paid excess rent and that it should be adjusted towards future rent etc. The tenant is estopped from contending otherwise after having paid for 1-1/2 years the agreed rent of Rs.6,000/- per month. The tenant did not enter into the witness box to depose in support of his contentions. The respondent herein being the purchaser of the demised premises on 01.09.2005 is entitled to receive the same rent as was received by his vendor till 31.08.2005. There is nothing to indicate and exemplify that as against the vendor of the respondent herein, there are any proceedings initiated by the tenant while the former was the owner of the premises till 01.09.2005. Accordingly, the learned counsel for the landlord would pray for the dismissal of the revision. 7. The points for consideration are as to: (i) Whether both the Courts below were justified in holding that the tenant committed wilful default in paying rent for the period from 01.09.2005 to 30.11.2005? Accordingly, the learned counsel for the landlord would pray for the dismissal of the revision. 7. The points for consideration are as to: (i) Whether both the Courts below were justified in holding that the tenant committed wilful default in paying rent for the period from 01.09.2005 to 30.11.2005? and (ii) Whether the revision petition has to be allowed in view of the grounds as found set out in the grounds of revision? 8. Indubitably and indisputably, Ex.A5, the rental agreement is an unregistered one. It contemplates eleven months period of tenancy. However, in the last portion of it, there is one reference to 22 months, but without any demur or objection, the said document was marked. For 1-1/2 years, so to say from the inception of the tenancy, ie. 07.03.2003 till October 2004 the rent was paid at the rate of Rs.6,000/-per month and only during October 2004 as per Ex.B8, the tenant sent notice to the vendor of the present landlord as though the tenant paid excess rent. The core question arises as to what made the tenant to pay for 1-1/2 years the rent at the rate of Rs.6,000/-per month. The normal presumption is that if a sum is paid towards rent by the tenant to the landlord for over a period of 1-1/2 years it should be taken as agreed rent. The conduct of the parties should necessarily be taken into consideration. Ex.A5 itself is an unregistered one and it expired after eleven months. Even after the expiry of eleven months, the tenant continued to pay rent at the rate of Rs.6,000/-to the vendor of the respondent/landlord herein and that conduct of the tenant in paying such rent of Rs.6,000/- per month even after expiry of eleven months would connote and denote that the agreed rent between the tenant and the landlord was Rs.6,000/-per month de hors any clause to the contrary in the agreement Ex.A5, which was only for a period of eleven months and which got expired. It so happened that the vendor of the respondent/landlord herein even adjusted the sum of Rs.40,000/- received by him as rent from October 2004 till 01.09.2005, so to say till the date of transferring the demised premises in favour of the respondent/landlord herein. 9. It so happened that the vendor of the respondent/landlord herein even adjusted the sum of Rs.40,000/- received by him as rent from October 2004 till 01.09.2005, so to say till the date of transferring the demised premises in favour of the respondent/landlord herein. 9. As such with regard to the respondent/landlord herein is concerned, it is quite obvious and axiomatic that he in parimateria with the rate of rent received by his vendor, is entitled to demand from the tenant. However, the tenant failed to pay the rent of Rs.6,000/- per month even though he paid at the rate of Rs.3,000/-per month. Once the tenant had come across some disagreement with his erstwhile landlord, then he should have approached the Court for fixation of fair rent, but he had not done so. Only when the present landlord, so to say the vendee of the erstwhile landlord initiated action as against the tenant, the latter would pit against such claim, all these objections and in my considered opinion such pleas are not tenable and both the Courts below also applied their mind and interpreted the evidence properly and justly. 10. On the side of the tenant, the learned counsel cited the decision of the Honble Apex Court reported in 1977 (2) SCC 256 [Radha Krishan Sao v. Gopal Modi and others], an excerpt from it would run thus: "17. We are unable to accept the above submission. Any alteration of the fair rent fixed by the Rent Controller either by improvement of the building or by addition of furniture to the building will have to receive the imprimatur of the Rent Controller. Section 7 inter alia, provides that if, at any time after the fair rent of a building has been determined, it appears to the Rent Controller that subsequent to such determination some addition or improvement has been made to the building at the landlord’s expense, the Controller may redetermine the fair rent of the building. There is no legal impediment if the parties, landlord and tenant, approach the Controller and by consent obtain an order from the Controller fixing the revised rent which is admissible under the Act. Any other course is bound to lead to malpractices and unholy devices detrimental to the interests of the tenants. No enhancement of fair rent fixed by the Rent Controller is legally permissible except in accordance with the provisions of the Act. Any other course is bound to lead to malpractices and unholy devices detrimental to the interests of the tenants. No enhancement of fair rent fixed by the Rent Controller is legally permissible except in accordance with the provisions of the Act. Default of payment of any rent, in excess of the fair rent fixed, if without recourse to the procedure under the Act, will not entail a ground for eviction under Section 11(l)(d) of the Act. The High Court, and earlier the Additional Subordinate Judge, therefore, committed an error of law in accepting the ground of default under Section 11(l)(d) on a wrong appreciation of the legal position on the facts found by the first appellate court. There was, therefore, no basis for granting a decree for eviction under Section 11(l)(d) of the Act." A mere perusal of the decision cited supra would demonstrate and display that the facts involved in that case are entirely different and hence in my considered opinion, the said precedent has been cited out of context. 11. Whereas, the learned counsel for the landlord would cite the decision of this Court reported in 1972 MLJ 454 [Sakuntala Rajappa v. K.Kamala], and an excerpt from it would run thus: "25. The arguments of the learned Counsel admittedly sound attractive; but then, they can be urged with propriety only before another Bench or the Supreme court, if and when a further occasion arises for canvassing the scope and effect of section 30 of the Rent Control Act of 1960, particularly with reference to the meaning of the word rent found in section 30. The decision of the Division Bench is one under section 30(ii) of the Act; and sitting as a single Judge, I am bound by the principle which underlies the decision of the Division Bench; and the basis of the decision is that rent is a whole amount agreed to be paid by a tenant to his landlord in respect of his enjoyment of what is let to him whether described as rent or not and that additional payments made3 for such things as fitments and payments in respect of rates where the landlord is rated, all agreed to be paid by the tenant as consideration for the tenancy will be rent. In other words, the judgment implies that the term "rent" used in the Madras Rent Control Act, 1960, would include all payments agreed to be paid by the tenant to his landlord for the use and occupation not only of the building and furniture but also for rates, electricity, water and other amenities including services. In other words, any sum of money which the tenant agrees to pay as consideration for the tenancy would be rent." Placing reliance on the said judgment, the learned counsel for the landlord would develop his argument that any agreement contemplating payment of rent for the furniture would form part and parcel of the rent for the demised premises and in this case, the tenant by paying Rs.6,000/- for 1-1/2 years to the present landlords vendor would speak volumes that the agreed rent was Rs.6,000/-per month and the parties never intended to bifurcate the rent as Rs.3,000/- for demised premises and Rs.3,000/-for furniture. As such the interpretation of the facts involved in the matter, are carried out by the Rent Controller as well as the appellate authority, who happens to be the last Court of facts and the concurrent findings given by them that the agreed rent was Rs.6,000/- per months warrant no interference by this Court. The tenant was not justified in resiling from his own commitment and started paying Rs.3,000/- per month instead of Rs.6,000/- per month as rent. The powers of the revisional Court it is quite obvious that it should be restricted only in interfering with the orders of both the Courts below if at all there is any perversity or illegality in deciding the lis, but in this case, there is no such defects. Accordingly, I could see no merit in this revision and the same stands dismissed.