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2012 DIGILAW 1196 (MAD)

D. Mohanraj v. K. Khader Nawaz

2012-03-06

V.PERIYA KARUPPIAH

body2012
Judgment :- 1. This revision is directed against the order passed by the learned Rent Control Appellate Authority in M.P.No.171 of 2005 dated 24.1.2006, an application filed under section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. 2. The revision petitioner is the respondent/tenant and the respondent herein is the petitioner/landlord before the learned Rent Control Appellate Authority. 3. The case of the petitioner/landlord before the learned Rent Control Appellate Authority would be as follows: The respondent is a tenant in respect of a shop on a monthly rent of Rs.500/- excluding the electricity charges. RCOP.No.1896 of 2003 was filed by the petitioner for eviction of the respondent on the grounds of wilful default, ceased to occupy and for additional accommodation. The learned Rent Controller ordered eviction on the ground of wilful default and ceased to occupy the petition premises. The respondent has wilfully and wantonly failed to pay the rent from 1.6.99 onwards. No rent was paid even after the filing of RCOP. The respondent is liable to pay the rental arrears from 1.6.99 to 31.12.2004 as on date. Inspite of the order passed by the Rent Control Appellate Authority, the respondent failed to pay the rental arrears. 4. The objection raised in the counter filed by the respondent/tenant would be as follows: The respondent deny that the monthly rent of Rs.500/-fixed for the petition premises. Actually the rent was only Rs.200/-exclusive of electricity charges. The learned Rent Controller, on erroneous appreciation of facts, has allowed the eviction petition. The Rent Controller solely relied on Ex.P1 for passing order on the ground of wilful default. Ex.P1 did not contain the signature of the respondent herein. Ex.P1 is a concocted document created for the purpose of this case. There is a discrepancy in pleading regarding the period of default. The learned Rent Controller failed to give findings regarding the quantum of rent. Admittedly, the area of the petition premises is only 48 sq.ft and so it is highly unbelievable that the rent is Rs.500/-. If at all the respondent committed any wilful default the petitioner should have filed application under section 11 (4) before the trial court. The respondent is ready and willing to pay the admitted arrears of rent @ Rs.200/- per month upto date. The petitioner refused to receive the monthly rent. If at all the respondent committed any wilful default the petitioner should have filed application under section 11 (4) before the trial court. The respondent is ready and willing to pay the admitted arrears of rent @ Rs.200/- per month upto date. The petitioner refused to receive the monthly rent. So the respondent filed RCOP.No.130 of 2004 for depositing the rent into Court and RCOP.131 of 2004 for restoration of electricity supply. These RCOPs were dismissed in view of the finding given in RCOP.No.1896/2003. The respondent had preferred appeals. Hence, the application is liable to be dismissed with costs. 5. After hearing both sides, the learned Rent Control Appellate Authority had come to a conclusion of directing the respondent/tenant to pay or deposit a sum of Rs.39,500/-being the rental arrears for the period from 1.6.1999 to 31.12.2005 at the rate of Rs.200/- per month on or before 13.2.2006, failing which, all further proceedings in the said Rent Control Appeal will be stopped and eviction will be ordered against the respondent/tenant. Aggrieved by the said order passed against the respondent/tenant, he had approached this Court by filing the revision. 6. Heard Mr.S.Vadivel, learned counsel for the revision petitioner/tenant and Mr.S.Natarajan, learned counsel appearing for the respondent/landlord. The status of landlord and tenant has been used in this judgment for convenience. 7. Learned counsel for the revision petitioner/ tenant would submit in his argument that the learned Rent Control Appellate Authority has not applied its mind to come to a conclusion to calculate the admitted arrears payable by the tenant to the landlord. He would further submit that the learned Rent Control Appellate Authority had come to the conclusion that the quantum of rent directed to be paid was Rs.200/- per month and it was calculated for 79 months which would normally be Rs.15,800/-. However, the said Court had arithmetically committed an error and in directing the tenant to deposit a sum of Rs.39,500/- which could have mentioned only relying upon the allegations made in the petition. He would further submit that the admitted arrears said to have been not paid by the tenant was from 1.6.1999 to 31.12.2005 but actually the tenant had stated that he was liable to pay the rent only from October 2003. The said factum was not considered by the Appellate Authority in directing the admitted arrears to be paid to the landlord within the specified time. The said factum was not considered by the Appellate Authority in directing the admitted arrears to be paid to the landlord within the specified time. He would further submit that when the order was passed by the Appellate Authority, the Appellate Authority has not considered Ex.P1 which was decided by the Rent Controller for a sum of Rs.500/- and it cannot be decided by the Appellate Authority without summoning the said document for deciding the admitted arrears. He would therefore, request the Court that the order passed by the learned Appellate Authority may be interfered and set aside and to dismiss the same as not sustainable. 8. Learned counsel for the respondent/landlord would submit in his argument that the actual rent payable to the premises was at Rs.500/-per month and it was decided by the learned Rent Controller that Ex.P1 had proved the said quantum of rent payable for the month and the learned Appellate Authority had considered only in respect of admitted arrears and therefore, it has considered Rs.200/-as admitted amount payable for a month. He would also submit that the tenant did not show any evidence that he had paid the arrears of rent from 1.6.1999 to October 2003 and therefore, the Appellate Authority has come to a conclusion that the admitted arrears would also include the said period. He would further submit that the tenant did not pay the said sum of Rs.15,800/-calculated for 79 months from 1.6.1999 even as per his case and if for any reason this Court had come to a conclusion of giving further opportunity to the tenant, the subsequent arrears commencing from 1.1.2006 to till this date may also be considered because the tenant did not elect to pay any rent payable to the landlord and therefore, the total amount may be calculated correctly and the tenant may be directed to pay the same. He would further submit that, the judgment and decree passed by the learned Rent Control Appellate Authority is sound and suitable orders may be passed in the given circumstances. 9. I have given anxious thoughts to the arguments advanced on either side. 10. He would further submit that, the judgment and decree passed by the learned Rent Control Appellate Authority is sound and suitable orders may be passed in the given circumstances. 9. I have given anxious thoughts to the arguments advanced on either side. 10. On a careful perusal of the records, I could see that the landlord has filed a petition before the learned Rent Controller for eviction of the tenant under Section 10(2) (i), 10 (2) (vi) and 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for committing wilful default in paying the rent and for own occupation. The said petition was clubbed with other two petitions filed by the tenant in RCOP.Nos.130 and 131 of 2004 filed under Sections 17(2) and 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 respectively and the eviction petition under Section 10(2) (1) of the Act, for willful default was allowed and the eviction sought for on the ground of own occupation was dismissed and the other two petitions filed by the tenant in RCOP.No.130 and 131 of 2004 were also dismissed. The tenant has preferred an appeal against the eviction order passed against him under Section 10(2)(1) of the Act passed in RCOP.No.1896 of 2003 and the same was numbered in R.C.A.No.1310 of 2004. In the said appeal, the landlord has filed a petition under Sections 11(3) and 11(4) of the Act for payment of admitted arrears, after fixing the same and the Appellate Authority has passed the impugned order. 11. Now, the point for consideration is that, what would be the admitted arrears and what would be the period of arrears. The learned Rent Controller in his order has decided that the monthly rent was proved through Ex.P1 and it was fixed accordingly at Rs.500/- per month. Further, the appellate authority has not considered the said finding but wanted to peruse Ex.P1 to ascertain the admission of the tenant. Since the said document was not available, he has taken the case of the tenant that the quantum of monthly rent was at Rs.200/-and has fixed the admitted rent at Rs.200/- per month. He had fixed the period from 1.6.1999 to 31.12.2005 since there was no document to show that the tenant had paid the rent for the said period. 12. He had fixed the period from 1.6.1999 to 31.12.2005 since there was no document to show that the tenant had paid the rent for the said period. 12. A careful perusal of the order of learned Rent Controller which is under appeal as well as the evidence produced in the said Rent Control proceedings, I could say that the nothing was placed by the tenant to show that he had paid rent from 1.6.1999 till 31.12.2005. It is also not brought to the notice of the court that the subsequent rent payable from 1.1.2006 till the date of argument ending on 31.8.2010 was paid by the tenant. Therefore, the finding given by the learned Appellate Authority to calculate the rent payable for the period from 1.6.1999 to 31.12.2005 was found to be correct. The quantum of rent was also fixed at Rs.200/-being the admitted monthly rent need not be fixed to Rs.500/- since it has to be decided only in the appeal. The said decision is also perfectly correct. Even during the argument of this revision, there was nothing to show to Court that the rent payable during the pendency of this revision was paid by the tenant nor offered by the tenant to the landlord. The calculation made by the learned Appellate Authority for 79 months commencing from 1.6.1999 to 31.12.2005 at the rate of Rs.200/- should have been arrived at Rs.15,800/-. Learned counsel for the respondent has fairly admitted that the said mistake was committed by the learned Appellate Authority. At the same time, he had insisted for the payment of the subsequent arrears from 1.1.2006 to till date ending with 31.8.2010. No doubt, the payment of admitted rent should have been regularly made by the tenant so as to maintain the Rent Control proceedings and the various judgments of this Court had laid down that the non-payment of rent even during the period of revision can also be taken as wilful for assessing the commission of wilful default. Therefore, it is quite acceptable that the rent payable on and after 1.1.2006 till August 2010 can also be considered in this revision. So the original arrears of rent for 79 months and the present arrears of 56 months till 31.8.2010 should have been the present admitted arrears payable by the tenant to the landlord. 13. Therefore, it is quite acceptable that the rent payable on and after 1.1.2006 till August 2010 can also be considered in this revision. So the original arrears of rent for 79 months and the present arrears of 56 months till 31.8.2010 should have been the present admitted arrears payable by the tenant to the landlord. 13. Therefore, this Court is inclined to correct the order passed by the learned Appellate Authority and at the same time to direct the revision petitioner to pay the admitted arrears till date i.e., ending with 31.8.2010 under Section 11 (4) of the Act. Accordingly, a sum of Rs.27,000/-(Rs. 15,800+ Rs.11,200) should be deposited by the tenant before the Rent Controller to the credit of the R.C.O.P. on or before 26.3.2012, less the amount if any, already deposited before this Court. On such payment of the admitted arrears till 31.8.2010, the revision preferred by the tenant will be deemed to have been allowed and orders passed by the learned Rent Control Appellate Authority would be deemed as reversed. In failure to deposit the said amount before the learned Rent Controller to the credit of the R.C.O.P., the revision petition shall be deemed to have been dismissed and the order of the learned Appellate Authority shall be confirmed and all the proceedings in the appeal shall also be stopped and an eviction order shall be passed by the learned Appellate Authority without any further reference to this Court. 14. With the aforesaid directions, the revision petition is ordered. No costs.