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2010 DIGILAW 3705 (MAD)

K. Shanmugavel v. V. S. Thirumalaisamy Nadar

2010-08-24

R.S.RAMANATHAN

body2010
Judgment :- The revision petitioner, in all the four civil revision petitions, is the landlord and the respondents in the above civil revision petitions are the tenants. 2. The revision petitioner is the owner of two shops and the respondent in CRP(NPD)Nos.451 and 453 of 2005 is the tenant in respect of one shop and the respondent in CRP(NPD)No.452 and 454 of 2005 is the tenant of the other shop. Both the shops are adjacent to each other and both of them are paying the monthly rent of Rs.300/-to the landlord/revision petitioner. 3. The tenants/respondents filed RCOP petitions under section 8(5) of the Tamil Nadu Buildings (Lease & Rent Control) Act to deposit the rent as the landlord refused to receive the rent and thereafter, the landlord filed application for eviction against the tenants on the ground of wilful default in the payment of rent and requirement of the building for his own occupation. 4. The learned Rent Controller dismissed the application filed under section 8(5) of the Act filed by the tenants and allowed the application filed by the landlord for eviction on the ground of wilful default and denied the eviction on the ground of owners occupation and aggrieved by the same, the tenants filed appeals before the Rent Control Appellate Authority and the learned Rent Control Appellate Authority allowed the appeals filed by the tenants and aggrieved by the same, these civil revision petitions are filed by the landlord. 5. The case of the landlord in the applications for eviction is identical. It is alleged by the landlord that the tenants have committed wilful default in the payment of rent from the Tamil month of Masi 2000 and without sending the rent from Masi 2000, the tenants sent the rent for Thai 2001 and Panguni 2001 and therefore, the rent sent by the tenants were refused and the tenants have committed wilful default in the payment the rent from Masi 2000 and hence, they are liable to be evicted on the ground of wilful default. 6. 6. It is further stated by the landlord that he is a retired Government Servant and his son is unemployed and he wants the shop for vending sweets in the above two premises and by removing the common wall, the two shops can be made as a single shop and he requires the shop for the purpose of staring the business viz., vending of sweets as he finds his income from his pension is not sufficient to meet his requirement and therefore, he bona-fide requires the premises for his own occupation. 7. The tenants contended that they are the tenants of the property for more than 30 years and the landlord is not in the habit of issuing receipts and the property originally belonged to the father of the landlord and they were paying rents to his father and thereafter, to his mother and in the family partition of the landlord, these two shops were allotted to the share of the landlord and ever since, they were paying the rents to the landlord and taking advantage of the fact that the non-receipt of receipts, now the landlord is contending that the rent from the Tamil month of Masi 2000 was not paid, but the rents were regularly paid and the same was received by the landlord and only in the month of Masi 2001, the landlord refused to receive the rent and the tenants were forced to send the rent by Money Order as the landlord refused to receive the rent even for the next month after sending notices to the landlord requesting him to name the bank to deposit the rent and there is no reply and hence, they filed the application under section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, for depositing the rent and they are depositing the rent without fail and hence, there is no default much-less wilful default on the part of the tenants in the payment of rent. 8. 8. It is further contended by the tenants that the requirement of the landlord is not bona-fide and he is residing in Palayamkottai in his own house and he was no place of residence at Sankaran Kovil and his son is a M.B.A. graduate and also studied E-Commerce and now he is employed in Delhi and therefore, the contention of the landlord that he requires the premises for his own occupation for starting business cannot be accepted and it is only a ruse to evict the tenants from the premises and therefore, eviction petition is to be dismissed. 9. As stated supra, the learned Rent Controller dismissed the application for depositing the rent on the ground that the tenants have not paid the full amount of rent and the procedure contemplated under section 8 was not followed and held that the tenants have committed wilful default in the payment of rent and on that ground, allowed the application for eviction and dismissed the application for deposit of rent. The Lower Appellate Court reversed the finding and allowed the appeals. 10. There is no appearance for the respondents/tenants and the arguments of the learned counsel for revision petitioner was heard. 11. Mr.F.X.Eugenue, the learned counsel appearing for the revision petitioners/landlord, submitted that the Lower Appellate Court without properly appreciating the contention of the landlord that the rent was received only upto Thai 2000 and the tenant is maintaining the passbook where the landlord is acknowledging the receipt of rent and the tenants deliberately did not produce the passbook and if the passbook is produced, it would expose that the tenants have committed default in the payment of rent from Masi 2000 and therefore, the tenants have committed wilful default in the payment of rent and on that ground, eviction has to be ordered. He further submitted that there is no need to do any act for commencing the business of vending of sweets and the landlord is a retired Government servant, having possession of retirement benefits and he was requesting the tenants to vacate the tenanted premises from the date of his retirement viz., 1997 and the tenants have agreed to hand over the possession by Thai 2000, but they did not hand over the possession and when the landlord was serious about the taking of further action against the tenants, the tenants have filed the application under 8(5) for depositing the rent as if the rents were paid to Thai 2001 and only for Masi 2001 rent was not paid as the landlord refused to receive the rent they sent the amount by money order and thereafter filed the applications. 12. The landlord refused to receive the amount sent by money order as the tenants have not paid the rent from Masi 2000 and only sent the rent for Masi 2001. Therefore, requisition by the landlord is proper. He further submitted that the Courts below erred in holding that the landlord, who is residing at Palayankottai will not come to do business in Sankaran Koil and there is no need for any preparation to commence the business and it is not difficult for the landlord to find out a house in Sankaran Kovil, which is his native place and therefore, both the Courts below erred in holding that the requirement of the landlord is not bona fide and therefore, the civil revision petitions are to be allowed. 13. In these civil revisions, we will have to see (1) whether the tenants have committed wilful default in the payment of rent as alleged by the landlord. (2) Whether the landlord bona fide required the premised for his own occupation. (3) Whether the applications filed by the tenants under section 8 are to be allowed. 14. Point No.1: It is the specific case of the landlord that the tenants have committed wilful default in the payment of rent from Masi 2000. Admittedly, the monthly rent is Rs.300/-. (2) Whether the landlord bona fide required the premised for his own occupation. (3) Whether the applications filed by the tenants under section 8 are to be allowed. 14. Point No.1: It is the specific case of the landlord that the tenants have committed wilful default in the payment of rent from Masi 2000. Admittedly, the monthly rent is Rs.300/-. It is also admitted that the tenants are in possession of the property for more than 30 years and they were paying rent to the father of the revision petitioners and thereafter, to the mother and after the partition between the family members of the revision petitioners and allotment of the shops to the revision petitioners, they were paying the rent to the revision petitioner. 15. The contention of the learned counsel appearing for the revision petitioners is that the tenants are having the passbook wherein the receipt of rents were acknowledged by the landlord and therefore, non-production of the passbook would prove that the tenants have committed wilful default. The learned counsel appearing for the revision petitioner further submitted that when the tenant is not able to produce any receipt or other proof for the payment of rent, it has to be presumed that the rent was not paid and the tenant has committed wilful default and it is the duty of the tenant to prove that he has paid the rent as claimed by him. 16. The learned counsel appearing for the revision petitioner, therefore, submitted that in the absence of any proof for payment of rent as alleged by the tenants, it has to be presumed that they have not paid the rent and that amounts to wilful default and on that ground, they are liable to be evicted. 17. No doubt, under the Act, it is for the tenant to prove that he has paid the rent and there is no wilful default in the payment of rent. It is further true that as per the Act, the landlord is bound to issue receipts to the tenant and in the event of failure on the part of the landlord to issue receipt, it is for the tenant to insist upon the receipt or approach the court by depositing the rent after complying with the procedure as stated therein. It is further true that as per the Act, the landlord is bound to issue receipts to the tenant and in the event of failure on the part of the landlord to issue receipt, it is for the tenant to insist upon the receipt or approach the court by depositing the rent after complying with the procedure as stated therein. Therefore, in the absence of any proof of payment of rent, it can be presumed clearly that the tenant has not paid the rent. But, as rightly appreciated by the Lower Appellate Court in this case, we will have to see the facts and circumstances, which are admitted to arrive at the conclusion whether the tenants committed wilful default. 18. It is admitted that the tenants are in possession for more than 30 years and even assuming that the landlord has acknowledged the receipt of the rent in the passbook maintained by the tenants, we will have to see the conduct of the landlord, when the tenant did not pay the rent from Masi 2000 as alleged by the landlord. 19. The specific case of the landlord was that he retired from service in the year 1997 and therefore, requested the tenants to hand over the vacant portion expressing his intention to do business and his son is also unemployed and the tenants agreed to vacate the tenanted premises by Thai 2000 and after Thai 2000, they did not vacate despite demands made by the landlord. If really the tenants had agreed to vacate the premises in Thai 2000 and did not vacate the landlord could have taken some steps to vacate the tenant. In the least, the landlord would have sent a notice to the tenant for eviction stating that they have agreed to vacate by Thai 2000 and did not keep their promises. Even assuming that the tenants have agreed to vacate some time later when the tenants have not paid the rent, the landlord in normal circumstances, would have not having kept quiet without taking further action. 20. Even assuming that the tenants have agreed to vacate some time later when the tenants have not paid the rent, the landlord in normal circumstances, would have not having kept quiet without taking further action. 20. In this case, admittedly, no attempt was made by the landlord and no steps were taken by the landlord either by sending notices or by filing an application for eviction when the tenant according to the landlord, committed default in the payment of rent from Masi 2000 especially when the landlord requires the building for the purpose of his own occupation. It is not a mere case of will default, but according to the learned counsel appearing for the revision petitioner, the tenants have committed wilful default and the landlord also required the building for his own occupation and under these circumstances, one cannot expect the landlord to keep quiet when the tenant has failed to pay the rent from Masi 2000 and there is no explanation on the part of the landlord in not issuing any notice, when the tenant has committed default from Masi 2000 for keeping quiet till the tenants filed applications under Section 8 of the Act. 21. The tenants have filed application under section 8 of the Act, after sending the money order for Masi and Panguni and according to the tenants, the rent for Masi and Panguni 2001 were refused and therefore, they were constrained to file the application under section 8 of the Act and they have paid rent upto Thai 2001. No doubt, the tenants have not produced any proof of receipt issued by the landlord for having received the rent upto Thai 2001 and the tenants have filed income tax returns wherein it has been stated that the rents upto Thai 2001 were paid. The learned counsel appearing for the revision petitioners argued that income tax return cannot be taken into consideration as they are self serving documents. But having regard to the fact that the tenants are in possession of the property for more than 30 years and in the past, they have not committed default in the payment of rent, in my opinion, the income tax return can be taken into consideration, for arriving at the conclusion that the rents were paid upto Thai 2001. But having regard to the fact that the tenants are in possession of the property for more than 30 years and in the past, they have not committed default in the payment of rent, in my opinion, the income tax return can be taken into consideration, for arriving at the conclusion that the rents were paid upto Thai 2001. The tenants have also filed their accounts and Day Ledger to prove the payment of rent for Thai 2001, the Courts below did not reject those documents on the ground that it did not contain seal of the Sale Tax authorities and the accounts were written by one person at a time and held that the documents were maintained in the regular course of business. Having regard to the conduct of the landlord in keeping quiet for more than 12 months when the tenants have committed default in the payment of rent and when the landlord required the building for his own occupation, the case of the tenant that he has paid rents has to be accepted and therefore, I am concurring with the view of the Lower Appellate Court that there is no wilful default in the payment of rent and the tenants have paid the rent regularly and therefore, the landlord is not entitled to vacate on the ground of will default. 22. Point No.2: Both the Courts below correctly held that the tenanted premises is not bona fide required for the landlord and both the Courts below have come to the conclusion that the land lord is in Palayamkottai and the buildings are situate in Sankaran Kovil, which is 60 Kms away and the landlord does not have any building to reside in Sankaran Kovil and the landlords son is also employed and therefore, there was no proof for the commencement of business and the landlord is only having a wish to commence the business and both the Courts below denied the relief. 23. In my opinion, both the Courts below have rightly denied that relief and hence, I fully agree with the finding of the Courts below. It is admitted that the landlord is native of Sankaran Kovil and the property was allotted to him in the partition. 23. In my opinion, both the Courts below have rightly denied that relief and hence, I fully agree with the finding of the Courts below. It is admitted that the landlord is native of Sankaran Kovil and the property was allotted to him in the partition. Therefore, Sankaran Kovil is not a new place to him to do business and it is not difficult for him to find out the house and on that ground, it cannot be stated that there is no bona-fide requirement on the part of the landlord. The case of the landlord was that his son is unemployed and his income is not sufficient and therefore, he wants to do business in Sankaran kovil. Though, the landlord denied the stand that his son is not employed in Delhi, during cross examination, it is admitted that his son is a M.B.A Graduate and has also studied E-Commerce. Of Course, these qualifications are not a bar for commencing business. But when the tenant has raised allegations that the landlords son is employed in Delhi, to disprove the same the landlord could have examined his son for whose benefit he wanted to start the business. Therefore, the non examination of the landlords son, in my opinion, will also go against the landlord. Hence, I also concur with the finding of the Courts below that the landlord does not bona fide require for his own occupation for commencement of the business. 24. Point No.3: In this case, admittedly, the tenants without following the procedure contemplated under section 8, sent the rent by money order and after the dismissal of the applications, the tenants sent notices calling upon him to name the bank and thereafter, deposited the rent. Of course, they have not strictly followed the procedure contemplated under the Act. Having regard to the findings that they have not committed any default in the payment of rent the non observance of procedure as contemplated under Section 8 of the Act, should not be taken against the tenants and the Lower Appellate Court is right in allowing the appeals and on that ground also the landlord is not entitled to the relief. 25. In the result, all the civil revision petitions are dismissed. No costs.