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2012 DIGILAW 293 (MAD)

S. Navaneethkrishnan v. Kamachi Ammal

2012-01-19

R.S.RAMANATHAN

body2012
Judgment :- 1. The tenant is the revision petitioner. The respondents/landlords filed R.C.O.P.No.6 of 2009 on the file of the Rent Controller, Mayiladuthurai for eviction on the ground of willful default. 2. The tenant/revision petitioner contested the application stating that he paid an advance of Rs.3,000/- and monthly rent was only a sum of Rs.300/- and there was an agreement of sale between the parties and, as per the agreement of sale, the sale consideration was fixed at Rs.75,000/-and the tenant/revision petitioner paid an advance of Rs.50,000/- and the balance of Rs.25,000/-was to be paid within a period of one year and thereafter, the respondents/landlords refused to execute the sale deed and also refused to return the advance of Rs.50,000/-. Therefore, the revision petitioner/tenant is in possession of the property pursuant to the agreement of sale and there is no relationship of landlord/tenant and therefore, eviction petition filed by the respondents is not maintainable. 3. Learned Rent Controller allowed the application holding that the revision petitioner/tenant is not in possession of the property in pursuant to the agreement of sale and, admittedly, the revision petitioner filed O.S.No.109 of 2007 for return of the advance amount paid by him under the agreement of sale and a decree was passed in O.S.No.109 of 2007 in favour of the revision petitioner and the revision petitioner /tenant also filed E.P.No.127 of 2009 to execute the decree and in that judgment, the trial Court has given a specific finding that the tenant continued to be in possession of the property as a tenant and not as an agreement holder and the monthly rent is Rs.500/-and not Rs.300/-. The trial court further held that the tenant has failed to pay the rent for more than nine years, the Judgment and Decree passed in O.S.No.109 of 2007 has become final and therefore it is not open to the revision petitioner/tenant to contend in the rent control proceedings that there is no relationship of landlord/tenant existing between the parties and therefore, the application is maintainable and ordered eviction on the ground of willful default. Against the order of the trial court, the revision petitioner/tenant filed appeal in R.C.A.No.1 of 2011 and the Rent Control Appellate Authority confirmed the finding of the learned Rent Controller and aggrieved by the same, this revision is filed. 4. Against the order of the trial court, the revision petitioner/tenant filed appeal in R.C.A.No.1 of 2011 and the Rent Control Appellate Authority confirmed the finding of the learned Rent Controller and aggrieved by the same, this revision is filed. 4. It is submitted by the learned counsel for the revision petitioner that admittedly an agreement of sale was entered into between the parties and the revision petitioner paid a sum of Rs.50,000/- as advance towards the sale consideration and he has also filed O.S.No.109 of 2007 for return of advance amount and that suit was also decreed in favour of the revision petitioner and since the respondents/landlords did not repay the said amount, they cannot maintain the application for eviction on the ground of willful default and the revision petitioner/tenant is entitled to adjust the advance amount retained by the respondents/landlords towards arrears of rent and therefore, there is no default in payment of rent. 5. Learned counsel further contended that after the agreement of sale was entered, the tenants possession was in pursuant to the agreement of sale and, therefore, the application for eviction under the Rent Control Act is not maintainable. The learned counsel for the revision petitioner also relied upon the judgment reported in (2009) 9 SCC 339 (R.KANTHIMATHI AND ANOTHER VS. BEATRICE XAVIER) in support of her contention. 6. I am unable to accept the contention of the learned counsel for the petitioner. It is admitted by the revision petitioner/tenant that he was inducted into possession as a tenant and, according to the revision petitioner, the monthly rent was only Rs.300/-and the case of the respondents/landlords was that the monthly rent was Rs.500/-. It is also admitted by the respondents / landlords that there was an agreement of sale between the parties and the landlord agreed to sell the tenanted premises to the revision petitioner/tenant for a consideration of Rs.75,000/- and received a sum of Rs.50,000/-as advance. It is further admitted that the revision petitioner has filed O.S.No.109 of 2007 for return of advance amount and the suit was decreed in his favour. It is further admitted that the revision petitioner has filed O.S.No.109 of 2007 for return of advance amount and the suit was decreed in his favour. Therefore, having filed the suit in O.S.No.109 of 2007 for return of advance, it is not open to the revision petitioner/tenant to contend that he continued to be in possession of the property pursuant to the agreement of sale and his possession must be construed as possession in part performance of the agreement of sale. 7. According to me, having rescinded the contract and filed a suit for the return of the advance, it is no longer open to the tenant to contend that he continues to be in possession of the property in part performance of the agreement of sale. Further, in O.S.No.109 of 2007 it was held that the tenant is not in possession of the property in pursuant to the agreement of sale and there is no change of character of the tenant. After entering into the agreement of sale the tenant has not paid the rent for more than 10 years. The learned Rent Controller extracted the relevant portion of the judgment in O.S.No.107 of 2007 and has rightly held that the revision petitioner continues to be in possession of the property only as a tenant and not in part performance of the agreement of sale and he committed default in payment of Rs.500/- as the monthly rent and ordered eviction. 8. Further, the judgment relied upon by the learned counsel for the petitioner reported in (2000) 9 SCC 339 (cited supra) cannot be made applicable to the facts of the present case. In the said reported case after the agreement of sale was entered into between the parties, the landlord rescinded the contract and filed a suit for eviction and in that circumstances, the Honble Supreme Court has held that the tenant was not in possession of the property in part performance of the contract and the unilateral cancellation of the agreement of sale by the landlords will not affect the status of the tenant and after the agreement of sale was entered into between the parties the tenant continue to be in possession of the property in part performance of the agreement of sale and there is no relationship of landlord and tenant between the parties and therefore, the suit for eviction will not lie. But, in this case, the agreement of sale was rescinded by the tenant and the tenant filed the suit for return of the advance amount. Hence, it cannot be contended by the tenant that he continued to be in possession of the property in part performance of the agreement of sale. 9. As stated supra, having rescinded the contract and filed a suit for return of the advance amount, even assuming that tenant was put in possession pursuant to the agreement of sale, his possession will not be reverted back to the original position namely, tenant, after cancelling the agreement of sale by him. Considering all these aspects, as rightly considered by the courts belowthat the revision petitioner has committed willful default in payment of the rent, I am not inclined to interfere with the findings arrived at by the courts below. Hence, this revision petition is dismissed. The Revision Petitioner shall evict the tenanted premises on or before 30.04.2012, subject to filing of an undertaking to the said effect. Consequently, the connected miscellaneous petition is closed. No costs.