Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 1790 (MAD)

V. S. Kamal v. L. Rajagopal

2012-04-09

G.RAJASURIA

body2012
JUDGMENT 1. Inveighing the judgment and decree dated 22.11.2011 passed by the Subordinate Judge, Ranipet (Camp), Arakkonam, in R.C.A.Nos.2 and 3 of 2012 confirming the order dated 26.3.2010 passed by the District Munsif, Arakkonam in R.C.O.P.Nos.5 of 1999 and 7 of 2000, these civil revision petitions are focused. 2. R.C.O.P.NO.5 of 1999 was filed by the tenants under Section 9(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act for depositing the rent in Court. R.C.O.P.No.7 of 2000 was filed by the landlords for eviction. 3. Heard both sides. 4. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the Rent Controller. 5. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of C.R.P.No.1104 of 2012 would run thus: (i) Originally the owner of the premises, namely, Pattabiraman leased out the premises to the tenant-Rajagopal-the first respondent. The said Pattabiraman died leaving behind his wife-the first petitioner and his children P2 to P4 in R.C.O.P.No.7 of 2000. While so, Rajagopal sub-leased the premises in favour of R2 and R3, namely, V.S.Kamal and K.Babu in RCOP No.7 of 2000. (ii) According to the petitioners/landlords, the said Rajagopal committed default in paying rent ever since November 1998 till the filing of the RCOP during the year 2000. (iii) The said Rajagopal filed the counter resisting the petition. (iv) R2 and R3 filed another counter contending mainly that the landlords were aware of the factum of R2 and R3 being there in the premises as sub-lessees for a pretty long time. They have been paying exorbitant rent to Rajagopal. For almost 8 years anterior to the date of filing of the RCOP, R2 and R3, namely, Kamal and Banu had been in occupation of the said property and there had been no objection from the landlords also. (v) R2 and R3 previously were not aware of the fact that Rajagopal was not the owner, but only the said deceased Pattabiraman and his legal heirs happened to be the landlords of the premises. Accordingly, R2 and R3 prayed for the dismissal of the petition. (vii) The revision petitioners/R2 and R3 also filed application (R.C.O.P.No.5 of 1999) under Section 9(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act for depositing the rent in Court and as per the Court order they also deposited the same. Accordingly, R2 and R3 prayed for the dismissal of the petition. (vii) The revision petitioners/R2 and R3 also filed application (R.C.O.P.No.5 of 1999) under Section 9(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act for depositing the rent in Court and as per the Court order they also deposited the same. However, subsequently, the said application (RCOP No.5 of 1999) was dismissed along with R.C.O.P.No.7 of of 2000 filed by the landlords, for eviction. (viii) Separate enquiry was conducted and during enquiry, in R.C.O.P.No.7 of 2000, before the Rent Controller, the second petitioner therein examined herself as P.W.1 and Exs.P1 to P4 were marked. The first respondent therein-Rajagopal examined himself as R.W.1 and Exs.R1 and R2 were marked. R2 and R3 examined themselves as R.W.2 and R.W.3 and Exs.R3 to R12 were marked. (ix) In R.C.O.P.No.5 of 1999 filed by the tenants, before the Rent Controller, the first petitioner therein examined himself as P.W.1 and Exs.P1 to P10 were marked. The first respondent therein-Rajagopal examined himself as R.W.1 along with R.W.2 and Exs.R1 and no document was marked. (x) Ultimately, the Rent Controller ordered eviction by allowing R.C.O.P.No.7 of 2000 and dismissed the R.C.O.P.No.5 of 1999. As against the said orders, two appeals were filed by R2 and R3, namely, V.S.Kamal and K.Babu, for nothing but to be dismissed by the appellate Court, confirming the orders of the Rent Controller. (xi) Being aggrieved by and dissatisfied with the respective orders and judgements of both the authorities below, these revisions have been focussed by R2 and R3 on various grounds. 6. The learned counsel for the revision petitioners would develop his arguements by placing reliance on the grounds of revision, which could tersely and briefly be set out thus: (i) The revision petitioners/R2 and R3 (RCOP No.7 of 2000) have been paying a sum of Rs.1,200/- per month to R1-Rajagopal, whereas, they subsequently came to know that Rajagopal in turn was paying only a sum of Rs.450/-p.m. to the landlords. (ii) Rajagopal turned turtle and had a volute face and did not support the case of Kamal and Babu, during enquiry, for obvious reasons. (iii) For a pretty long time the landlords have not objected to R2 and R3 being in the premises and in such a case, the landlords are not entitled to seek for eviction. (ii) Rajagopal turned turtle and had a volute face and did not support the case of Kamal and Babu, during enquiry, for obvious reasons. (iii) For a pretty long time the landlords have not objected to R2 and R3 being in the premises and in such a case, the landlords are not entitled to seek for eviction. (iv) The landlords had the full knowledge of R1-Rajagopal leasing out the premises in favour of R2 and R3 (R.C.O.P.No.7 of 2000). In fact, he was collecting rent from the revision petitioners/R2 and R3. As such on the ground of sub-tenancy or on the ground of wilful default in payment of rent, R2 and R3 in the RCOP No.7 of 2000 cannot be evicted. 7. In a bid to torpedo and pulverise and to make mincemeat of the arguments as put forth and set forth on the side of the revision petitioners/R2 and R3 in RCOP No.7 of 2000, the learned counsel for the landlords would pilot his arguments, the pith and marrow of the same would run thus: (i) Absolutely there was no contractual relationship between the revision petitioners/R2 and R3 and the landlords, who leased out the premises only in favour of R1-Rajagopal for a monthly rent of Rs.450/-. (ii) There is no connivance or acquiescence on the part of the landlords in sub-letting the premises by R1 in favour of the petitioners/R2 and R3. In fact, R1 (R.W.1) Rajagopal would depose before the Rent Controller that the revision petitioners were none but his employees; however, the landlords struggled hard to drive home the point that Rahjagopal sub-leased the premises in favour of the revision petitioners. Hence, in such a case, even by phantasmagorical thoughts, it cannot be labelled or dubbed, projected or portrayed as though Rajagopal and the landlords colluded together and trying to evict the revision petitioners. (iii) Admittedly and indubitably, the respondents in RCOP No.7 of 2000 were in arrears of rent and as such, both the authorities below appropriately and appositely held that there was default in payment of rent and they also clearly held that there was subleasing by the tenant-Rajagopal in favour of the revision petitioners. As such, the orders of the Courts below warrant no interference. 8. As such, the orders of the Courts below warrant no interference. 8. The point for consideration is as to whether there is any perversity or illegality in the findings of both the authorities below that there was default in payment of rent on the part of Rajagopal in favour of landlords and that Rajagopal sub-leased unauthorisedly the premises in favour of the revision petitioners herein, namely, Kaml and Babu. 9. At the outset itself I would like to dispel the cloud if any in the minds of the litigative parties by setting out the following. 10. The cumulative effect of the evidence adduced before the Rent Controller bespeaks and betokens that the petitioners in the RCOP No.7 of 2000 happened to be the landlords and they sub-leased the property in favour of Rajagopal. In fact the petitioners' (RCOP NO.7 of 2000) propositus-the deceased Pattabiraman leased out the premises for non-residential purpose in favour of Rajagopal. As such, Rajagopal was bound to pay rent to the landlords and the landlords cannot have any grievance to the effect that the revision petitioners/R2 and R3 did not pay any rent to them, because it is quite obvious and axiomatic that the landlords cannot demand rent from the unauthorised sub-tenants, namely, the revision petitioners herein. 11. It has to be seen as to whether Rajagopal was regular in paying the rent. It is quite obvious from the evidence as well as from the findings of both the authorities below that ever since November 1998, the said Rajagopal did not pay the rent and even thereafter also he did not choose to deposit the rent and only the sub-tenants, namely, the revision petitioners/D2 and D3 ventured to file application under Section 9(iii) of the Tamil Nadu Buildings(Lease and Rent Control) Act and as per the interim order passed therein, they deposited the rent. In such a case, Rajagopal cannot resist the order passed on the ground of 'willful default' because the default committed by him cannot be construed as anything less than 'wilful default', wherefore he supinely accepted the order. 12. From November 1998 till the filing of the RCOP No.7 of 2000, Rajagopal did not pay the rent and in such a case both the authorities below were justified in ordering eviction on the ground of 'willful default' in paying the rent by Rajagopal. 12. From November 1998 till the filing of the RCOP No.7 of 2000, Rajagopal did not pay the rent and in such a case both the authorities below were justified in ordering eviction on the ground of 'willful default' in paying the rent by Rajagopal. Whatever order is passed as against Rajagopal would be binding on his sub-tenants and they cannot try to wriggle out of their liability by contending that they were regular in paying rent to Rajagopal. As such, it is quite clear that both the authorities below were justified in that sense in ordering eviction on the ground of 'willful default' in paying the rent. 13. Relating to the ground of sub-lease by R1 in favour of the revision petitioners, what I would like to point out is that the law is found embodied in the Tamil Nadu Buildings (Lease and Rent Control) Act, more specifically in Section 10(2)(ii)(a), which is extracted hereunder for ready reference. "Sec.10.Eviction of tenants – (1) . . . (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied-. . . .. . . (i) . . . . (ii) that the tenant has after the 23rd October, 1945, without the written consent of the landlord- (a) transferred his right under the lease or sub-let the entire building or any portion thereof, if the lease does not confer on him any right to do so, or 14. A mere running of the eye over it, would clearly demonstrate and display that if at all a sub-tenant in a premises wants to assert his independent status, he must be able to show that the original landlord consented for sub-leasing, unlike the provisions in the Transfer of Property Act, where there is no embargo for a tenant to sub-lease the premises, whereas under the Tamil Nadu Buildings (Lease and Rent Control) Act, a tenant cannot of his own accord, without the written consent of the landlord sub-lease the premises. 15. The learned counsel for the revision petitioners/landlords would make a supine submission to the effect that there was no written lease between the original landlord-Pattabiraman and R1 and R2. 15. The learned counsel for the revision petitioners/landlords would make a supine submission to the effect that there was no written lease between the original landlord-Pattabiraman and R1 and R2. When such is the position, the 'onus probandi' is on the revision petitioners to establish and prove that there was written consent by Pattabiraman or by his legal heirs in favour of Rajagopal to sub-lease the premises, but absolutely there is no jot or pint of evidence to highlight and establish, display and demonstrate that point. In fact, as has been correctly pointed out by the learned counsel for the landlords, Rajagopal as R.W.1 would try to deny the sub-lease, but he would attempt to project and portray the revision petitioners as his employees; however that point failed to carry conviction with both the authorities below. Scarcely could be stated that the plea of Rajagopal(R1) is the case of either the revision petitioners or the landlords. As such, both the authorities below considering the pro-et contra held that there was unauthorised sub-lease of the premises in favour of the revision petitioners by Rajagopal. In such a case, the revision petitioners cannot independently assert any right over the demised premises. 16. At this juncture, I would like to hark back to the following maxim: 'Ubijus, ubi remedium' -Where there is a right, there is a remedy. 17. The revision petitioners must be able to lay their finger on any provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act for sustaining their contentions in the revision. But absolutely there is no provision which could come to their rescue. Hence, I am of the considered view that both the Courts below were justified in ordering eviction even on the ground of sub-leasing. 18. The learned counsel for the revision petitioners/R2 and R3 would try to focus the point that there was connivance or acquiescence on the part of the landlords at the act of Rajagopal sub-leasing the demised premises, because the revision petitioners had been conducting cool-drink business in the premises for about eight years and that the landlords were occupying the first floor of the same premises. 19. Be that as it may. 19. Be that as it may. Unless there is anything to show that the landlords had reason to believe that R1-Rajagopal sub-leased the premises in favour of the revision petitioners/R2 and R3, the question of connivance or acquiescence on the part of the landlords for sub-leasing the premises cannot be assumed or presumed. Hence, I could see no perversity or illegality in the findings of both the authorities below. 20. In the result, C.R.P.No.1104 of 2012 stands dismissed. However, there is no order as to costs. 21. In view of the ratiocination adhered to in dismissing the C.R.P.No.1104 of 2012, C.R.P.No.1103 of 2012 also stands dismissed. Consequently, connected miscellaneous petition is dismissed. No costs. 22. However, taking into consideration the fact that the revision petitioners have been occupying the premises and doing cool-drink business for a pretty long time, I would like to grant seven months' time for eviction, subject to deposit of rent in the Court, as they were earlier doing it, without any arrears. An affidavit to that effect shall be filed by the petitioners/R2 and R3, within a period of 15 days.