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2011 DIGILAW 1624 (MAD)

R. Bhavani Shankar v. S. Theerthagiri

2011-03-22

S.TAMILVANAN

body2011
Judgment :- 1. Heard Learned counsel for the petitioner as well as the learned counsel for the respondent. 2. This Civil Revision Petition has been preferred challenging the judgment and decree dated 29.4.2010 in R.C.A. No. 1 of 2010 on the file of the Rent Control Appellate Authority (Principal Subordinate Judge), Krishnagiri, confirming the fair and decreetal order dated 27.11.2009 in R.C.O.P. No. 7 of 2008 on the file of the Rent Controller (District Munsif), Krishnagiri. 3. It is seen that the Rent Control Original Petition was filed by the respondent herein seeking an order of eviction against the petitioner/tenant under Section 10(2)(i) and 10(3)(ii)(iv) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960. 4. According to the learned counsel appearing for the petitioner, the respondent herein is maternal uncle of the petitioner. In view of their close relationship, the petitioner used to pay the rent in lump sum without getting any receipt from the respondent/landlord. Accordingly, the petitioner has paid a sum of Rs. 4,800/- by way of demand draft for 24 months rent for the period from 26.10.2003 to 25.10.2005. Subsequently, on 23.6.2008 R.C.O.P. No. 7 of 2008 was filed by the respondent herein to evict the petitioner/tenant. The learned counsel for the petitioner contended that there is no wilful default on the part of the petitioner. Since the respondent is his maternal uncle, the rent was paid in lump sum by the petitioner without any objection by the respondent/landlord. 5. It is an admitted fact that the R.C.O.P. Was filed by the respondent herein on 23.6.2008 before the learned Rent Controller. After the trial, considering both oral and documentary evidence and arguments advanced by both the counsel, the Rent Controller allowed the petition directing eviction of the petitioner from the petition mentioned premises. Aggrieved by which, the revision petitioner/tenant preferred an appeal before the Rent Control Appellate Authority. The Rent Control Appellate Authority confirming the order and decreetal order, dismissed the appeal. Aggrieved by which, the present revision has been preferred by the petitioner/tenant. 6. Mr. D. Shivakumaran, learned counsel appearing for the petitioner raised three grounds. One is that the Rent Control Original Petition filed by the petitioner is not legally maintainable, since the property is outside the municipal limit. Aggrieved by which, the present revision has been preferred by the petitioner/tenant. 6. Mr. D. Shivakumaran, learned counsel appearing for the petitioner raised three grounds. One is that the Rent Control Original Petition filed by the petitioner is not legally maintainable, since the property is outside the municipal limit. According to the learned counsel appearing for the petitioner, respondent could have filed only a suit after the issuance of notice under Section 106 of the Transfer of Property Act. The second point raised by the learned counsel for the petitioner is that there is no willful default, as the respondent and petitioner are close relatives. The third point raised by the learned counsel for the petitioner is that for seeking eviction of the petitioner, there is no bona fide requirement for the land lord‘s own use of rented premises. 7. Per contra,the learned counsel appearing for the respondent/landlord produced a Copy of the Madras Buildings (Lease and Rent Control) Act, 1949 (as amended by the States of Madras and Andhra Preadesh). As per Page 33, it is seen that Sl. No. 13 relates to Krishnagiri and Sl. No. 14 relates to Kaveripatnam. As per the Act and the notification issued by the Government, the jurisdiction under the Rent Control Act is extended to Kaveripatnam. 8. On a perusal of the supporting document, the Court is of the view that the plea raised by the learned counsel appearing for the revision petitioner with regard to the jurisdiction of the Court below is not legally sustainable. It is seen that the Rent Controller as well as the Rent Control Appellate Authority have given concurrent finding based on the available evidence on record and therefore the first point raised by the petitioner with regard to the jurisdiction has no legs to stand. 9. The second point raised by the petitioner is that there is no wilful default on account of the close relationship between the petitioner and the respondent herein. Insofar as the Rent Control petition is concerned, it is an admitted fact that the petitioner is the tenant and the respondent is the landlord and the jural relationship between them is not in dispute. Hence, the personal relationship between the petitioner/ tenant and the respondent/landlord would not prevail on the statutory provision under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act. 10. Hence, the personal relationship between the petitioner/ tenant and the respondent/landlord would not prevail on the statutory provision under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act. 10. Learned counsel appearing for the respondent submitted that the petitioner/tenant has not paid any rent as per the concurrent finding of the Court below. It is seen that the petitioner/tenant has not paid any rent, subsequent to the order passed in the R.C.O.P. Even while the Rent Control Appeal was pending, no amount was paid towards arrears of rent by the petitioner/tenant. As per the decisions of the Apex Court and this Court, the non payment of rent amounts to wilful default in payment of rent and therefore, the respondent/landlord is entitled to evict the petitioner on the ground of wilful default under Section 10(2)(i) of the Act. 11. The third point raised by the petitioner that the requirement of the petition mentioned premises by the respondent/landlord is bona fide. It is not in dispute trjat the Electrical Connection was disconnected even prior to the final order passed in the R.C.O.P. before the Court below and on 27.7.2009, only a new service connection was given to the premises. Therefore, without electrical service, the petitioner/tenant would have run his business in the RCOP premises. It is clear that there was no electrical service connection for a number of years and that the disconnected service was restored on 27.7.2009. In the said circumstances, the Court can legally presume that the petitioner/tenant had not run any business in the premises that was let out to him by the respondent/landlord. 12. In support of his contention, the learned counsel for the petitioner relied on the following decision on the legal aspect. In Nelson and Others v. P. Ranganatha Mudaliar, 1995 (1) CTC 446 , this Court, (Justice S.S. SUBRAMANI, J) has held as follows: “7.The learned counsel for the respondent submitted that while exercising the power of Revision under Section 25 of the Tamil,. Nadu Buildings (Lease and Rent Control) Act, the concurrent findings should not be interfered with. I am afraid that I cannot accept the said contention. Here, the question is whether the tenant has committed any wilful default, and whether the default committed is against the terms of any agreement of tenancy. Nadu Buildings (Lease and Rent Control) Act, the concurrent findings should not be interfered with. I am afraid that I cannot accept the said contention. Here, the question is whether the tenant has committed any wilful default, and whether the default committed is against the terms of any agreement of tenancy. When we find that the payment of excess rent is not on the basis of any agreement of tenancy, the petitioners cannot be evicted from the building. The remedy of the respondent is only through Civil Court for getting arrears of rent as declared in the decision cited supra. This is a matter affecting the jurisdiction of the Rent Controller. In the judgment cited supra, the learned Judge has held that the remedy is only through a Civil Court. Being a forum bound by a special statute, the jurisdiction of the Rent Control Court is only to order eviction on the specific grounds mentioned therein. In this case, eviction cannot be ordered for the reasons mentioned in the petition. It is a matter of jurisdiction.” 13. Learned counsel appearing for the respondent/landlord drew the attention of this Court to the notification relating to the Rent Control Act. The premises relating to the RCOP is within the municipal limit of Kaveri Patnam of Krishnagiri District, the aforesaid decision cited by the learned counsel for the petitioner has no application. Since the premises is within the municipal limit as per the Rent Control Act, the petitioner/tenant cannot raise a defence stating that the order was passed without jurisdiction. In the instant case, as per the materials available on record and the notification produced by the respondent/landlord, it is made clear that the Kaveri Patnam of Krishnagiri District where the R.C.O.P. Premises is situated, hence the learned Rent Controller who passed the order in the R.C.O.P has got jurisdiction and that was rightly confirmed by the Rent Control Appellate Authority. 14. On the aforesaid facts and circumstances, I am of the view that there is no legal grounds available in favour of the petitioner/tenant to interfere with the concurrent findings of the Court below, accordingly the Civil Revision Petition is liable to be dismissed. 15. In the result, the R.C.O.P is dismissed. 14. On the aforesaid facts and circumstances, I am of the view that there is no legal grounds available in favour of the petitioner/tenant to interfere with the concurrent findings of the Court below, accordingly the Civil Revision Petition is liable to be dismissed. 15. In the result, the R.C.O.P is dismissed. However, considering the fact that the R.C.O.P premises is non-residential, time granted for the petitioner/tenant to vacate and hand over the possession of the R.C.O.P premises to the respondent/landlord, on or before 15.6.2011. No order as to costs.