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Madras High Court · body

2012 DIGILAW 3350 (MAD)

Kanakammal v. I. S. Lakshmi

2012-07-27

S.Tamilvanan

body2012
JUDGMENT 1. Civil Revision Petition in C.R.P.(NPD) No. 4263 of 2010 has been preferred challenging the Judgment and Decree dated 6.7.2010 made in R.C.A. No. 1577 of 2003 on the file of Rent Control Appellate Authority/VII Court of Small Causes, Chennai confirming the Order and Decretal Order, dated 2.12.2003 made in R.C.O.P. No. 870 of 2000 on the file of the XI Judge, Court of Small Causes, Chennai. 2. Civil Revision Petition in C.R.P.(NPD) No. 4264 of 2010 has been preferred challenging the Judgment and Decree dated 6.7.2010 made in R.C.A. No. 1578 of 2003 on the file of Rent Control Appellate Authority/VII Court of Small Causes, Chennai confirming the Order and Decretal Order, dated 2.12.2003 made in R.C.O.P. No. 871 of 2000 on the file of the XI Judge, Court of Small Causes, Chennai. 3. It is seen that R.C.O.P. No. 870 of 2000 was filed by the Respondent herein against the Petitioners herein under Sections 10(2)(i), 10(2)(ii)(b) & 10(2)(iii) of the Tamil Nadu Buildings (Lease & Rent Control) Act (hereinafter referred to as the Act). Learned Rent Controller allowed the Rent Control Original Petition, against which the Petitioners herein preferred R.C.A. No. 1577 of 2003, however, by the Judgment and Decree dated 6.7.2010, learned Rent Control Appellate Authority confirmed the Order and Decretal Order passed by the Rent Controller and dismissed the Rent Control Appeal. Aggrieved by which the Civil Revision Petition No. 4263 of 2010 has been preferred by the Petitioners under Section 25 of the Act. 4. It is seen that the R.C.O.P. No. 871 of 2010 was preferred by the Respondent herein against the Petitioners under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act and by Order and Decretal Order, 2.12.2003, learned Rent Controller allowed the Petition and ordered eviction against the Revision Petitioners herein and that was confirmed by the Rent Control Appellate Authority. Aggrieved by which, Civil Revision Petition in C.R.P.(NPD) No. 4264 of 2010 has been preferred by the Petitioners under Section 25 of the Act. 5. Aggrieved by which, Civil Revision Petition in C.R.P.(NPD) No. 4264 of 2010 has been preferred by the Petitioners under Section 25 of the Act. 5. Learned Counsel appearing for the Petitioners/Tenants submitted referring the copy of the legal notice marked as Ex.P7 and its original dated 15.5.2000, which had been served on 19.5.2000 and according to him, Petitioners sent the rent by way of Demand Draft on 21.7.2000 and hence, it could not be decided that the Petitioners/Tenants have committed any wilful default in paying the rent, however, the learned Rent Controller held that there was wilful default in payment of rent. It is further contended that the evidence of RW1 & RW2 have clearly established that after the death of First Petitioner's husband, the Respondent herein, took advantage of the situation and had not received the rent and the Petitioners never thought of the ulterior motive and intention of the Respondent. The Petitioners however stated that the rent was paid up to date after the demise of late Chinnakannu, the original Tenant, who died during November 1999. According to the Petitioners/Tenants, default in payment of rent was alleged from September 1999 and therefore the pleading is inconsistent and that the Respondent had invented such allegations to defeat the rights of the Petitioners and further stated that the Petitioners are tenants in the R.C.O.P. premises for more than 75 years. 6. In C.R.P (NPD). No. 4263 of 2010, the Petitioners have stated that they have paid the rent by way of Demand Draft dated 21.7.2000. Though the notice dated 15.5.2000 marked as Ex.P.7 was allegedly sent on 19.5.2000, according to the learned Counsel appearing for the Petitioners, there is no wilful default in payment of rent. The Petitioners have further contended that the Courts below have not properly appreciated the document Ex.R1, dated 7.6.2000, returned Money Order coupons by which the Petitioners had sent the monthly rent amounts. According to the Petitioners, the Money Orders were returned, as the Respondent herein had refused to receive the amount. Learned Counsel for the Respondent disputed the correctness of the averments made by the Petitioners. 7. Learned Counsel for the Petitioners submitted that there was no wilful default in paying the rent, hence, the impugned Orders are liable to be set aside. Learned Counsel for the Respondent disputed the correctness of the averments made by the Petitioners. 7. Learned Counsel for the Petitioners submitted that there was no wilful default in paying the rent, hence, the impugned Orders are liable to be set aside. According to the Petitioners, as per the evidence of RW1 & RW2, it was made clear that after the death of the husband of the First Petitioner, late Chinakannu, the Respondent taking advantage of the situation, refused to receive the rent from the Petitioners and that the Petitioners had never expected that there would be ulterior motive behind the Respondent in refusing to receive the rent, however, the Courts below failed to appreciate the said fact. It is further argued on behalf of the Petitioners that the shop rented out to the Petitioners is the first room in the front portion of the dwelling unit and both the shop and residential rooms are in the same building and therefore, the plea of conversion of the shop into residential is only for the purpose of raising a ground of different usage, which ought to have been rejected by the Courts below. 8. The Counsel appearing for the Petitioners further submitted that as per Ex.P3, no act of waste could have been committed by the Petitioners. It is further contended by the learned Counsel for the Petitioners that the Respondent had never sought for any inspection of the premises by any Advocate-Commissioner to note down the physical features or for taking steps to produce sufficient evidence to prove the act of alleged waste reducing the value of the building and that there is error apparent on the face of the record. According to the learned Counsel appearing for the Petitioners, though there is concurrent finding, the finding is perverse and hence, liable to be set aside. 9. The Counsel appearing for the Revision Petitioners submitted that the Respondent/Landlord had admitted the legal notice, dated 15.5.2000, marked as Ex.P7, that was served on 19.5.2000 and also the fact that a Demand Draft towards payment of rent, dated 21.7.2000 was sent by the Petitioners to the Respondent/Landlady. 9. The Counsel appearing for the Revision Petitioners submitted that the Respondent/Landlord had admitted the legal notice, dated 15.5.2000, marked as Ex.P7, that was served on 19.5.2000 and also the fact that a Demand Draft towards payment of rent, dated 21.7.2000 was sent by the Petitioners to the Respondent/Landlady. In the aforesaid circumstances, it was argued for the Petitioners that there could be no wilful default, as found by the Courts below and further contended that Ex.R1, dated 7.6.2000 is a money order coupon sent by the Petitioners, however, the money order was returned as refused. It is further submitted that the evidence of RW1 & RW2 would clearly establish the alleged default in payment of rent was only after the death of the First Petitioner's husband late Chinnakanu and that the Respondent herein took advantage of the situation and refused to receive the rent. According to the learned Counsel appearing for the Petitioners, findings of the Courts below is perverse and requested this Court to allow these Revisions. 10. Per contra, learned Counsel appearing for the Respondent submitted that it was established that there was wilful default in payment of rent, as contemplated under the Tamil Nadu Buildings (Lease and Rent Control) Act and that the Petitioners cannot justify their wilful default by relying on the legal notice, dated 15.5.2000 and the alleged Demand Draft, dated 21.7.2000, subsequently sent by them. 11. Learned Counsel appearing for the Respondent/Landlord submitted that there was wilful default for the period from November 1999 to May 2000, that has been admitted by the Petitioners and their defence for the same is that the husband of the First Petitioner and the father of the other Petitioners died, hence, they could not pay the rent, which cannot be construed as a legal defence. It is not in dispute that the Petitioners had earlier issued legal notice and also sent Demand Draft as stated above. However, that would not be a defence for the wilful default committed subsequently by the Petitioners/Tenants, hence, the view of the Courts below cannot be construed as perverse. 12. It is not in dispute that the Petitioners had earlier issued legal notice and also sent Demand Draft as stated above. However, that would not be a defence for the wilful default committed subsequently by the Petitioners/Tenants, hence, the view of the Courts below cannot be construed as perverse. 12. The Hon'ble Supreme Court in Chorida Automobiles v. Moosa, 2000 (2) MLJ 108 (SC), has held that under Section 10(2)(i) of Tamil Nadu Buildings (Lease and Rent Control) Act and the Proviso thereto, notice for wilful default was issued on 9.8.1989 but Petition for eviction filed before expiry of two months and therefore, held that it could not be wilful default. The Hon'ble Supreme Court has held as follows: “These facts reveal that there is a default towards payment of rent by the Tenant for the aforesaid period. The only question is, whether this default on these facts would constitute to be or could be construed to be a wilful default? We proceed to examine the law on these facts. The statute has given a benefit to a Tenant viz., if there is default in payment of rent and a notice is sent by the Landlord of such default, then the default would mature into a wilful default only if the default continues in other words the defaulted amount is not paid within a period of two months from the date of notice. In the present case, notice was sent on 9.8.1989, thus the said two months would have expired only on the 9.10.1989. In other words, in case the Tenant could have paid the said amount within this period, it would not be a case of wilful default.” In the aforesaid decision, the Hon'ble Supreme Court has ruled that Section 10(2)(i) of the Act is coupled with the Explanation to the Proviso to the said Section of the Rent Control Act. 13. It was argued by the learned Counsel appearing for the Petitioners that there is no wilful default, in the light of the decision rendered by the Hon'ble Apex Court. Per contra, learned Counsel appearing for the Respondent submit that the aforesaid decision is not applicable to the facts and circumstances of the case, since as per the referred case, before expiry of the time limit given in the notice, the Rent Control Original Petition was filed, however, the rent was paid immediately after filing of the RCOP. Per contra, learned Counsel appearing for the Respondent submit that the aforesaid decision is not applicable to the facts and circumstances of the case, since as per the referred case, before expiry of the time limit given in the notice, the Rent Control Original Petition was filed, however, the rent was paid immediately after filing of the RCOP. But in the instant case, the Rent Control Original Petition was filed only after the expiry of the time limit given in the Notice and further, even on the first hearing date, the admitted arrears of rent was not paid by the Petitioners/Tenants. The Petitioners, being the Tenants, even in case of alleged refusal of rent being received by the Respondent/Landlady, could have deposited the same before the Court below, to show their bona fide act in payment of rent. 14. In Jabbar v. Abdul Bari, 1997 (2) MLJ 181 , this Court (AR. Lakshmanan, J.) has held that in a Petition filed under Section 10(2)(i) of the Act, considering the Section and the Proviso, in respect of Rent Control Original Petition for eviction on the ground of wilful default in payment of rent by the Tenant, it has been held that in case payment of entire arrears of rent being paid before the first date of hearing of the Petition, the Tenant could not be evicted, on the ground of wilful default, otherwise, it has to be construed as wilful default in payment of rent. 15. Similarly, this Court (K. Govindarajan, J) in Mohamed Meera Sha, S.M v. E. Hyder Ali, 1997 (2) CTC 631 (SC) : 1997 (2) CTC 631 , relying on the decision rendered by the Hon'ble Supreme Court in Rajbir Kaur v. S. Chokosri and Co., AIR 1988 SC 1845 ; and Dev Kumar (Died) through L.Rs. v. Swaran Lata, 1996 (1) SCC 25 , held that under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, the Revisional Court cannot interfere with the concurrent findings of the Courts below, unless there is perversity in appreciation of evidence. 16. It is well settled that when there is concurrent findings by the Courts below, unless there is perversity in the finding, this Court cannot interfere with the same under Section 25 of the Act. The findings could be construed as perverse, only if the findings are against evidence or not supported by any evidence. 17. 16. It is well settled that when there is concurrent findings by the Courts below, unless there is perversity in the finding, this Court cannot interfere with the same under Section 25 of the Act. The findings could be construed as perverse, only if the findings are against evidence or not supported by any evidence. 17. In the instant case, it is not in dispute that there was arrears of rent, on the date of filing of the Petition and the Petitioners have neither paid the entire arrears of rent nor deposited the same on or before the first hearing date of hearing, when the matter came up before the Court below, which is the basis for the concurrent findings of the Courts below. The aforesaid factum is not disputed by the Petitioners. Had the Petitioners been prudent and bona fide in paying the rent, without any default, atleast after filing of the Rent Control Original Petition, before the first date of hearing, they could have paid the amount directly to the Respondent/Landlady or deposited the same into the Court to the credit of the Rent Control Original Petition. As the admitted arrears of rent was not paid before or on the date of the first hearing, in spite of the fact that they had received the Court Notice, the same has to be construed only as wilful default under Section 10(2)(i) of the Act and the Proviso thereto, in the light of various decisions rendered by the Hon'ble Apex Court and this Court. 18. The decisions referred to by the learned Counsel for the Petitioners are not supporting the case of the Revision Petitioners, considering the facts and circumstances of the case. Similarly, considering the evidence and the findings of the Courts below, this Court cannot take a view that the findings of the Courts below as perverse, even in respect of the other grounds raised for eviction, so as to warrant any interference by this Court, in the Revisions preferred under Section 25 of the Act and accordingly, the Civil Revision Petitions are liable to be dismissed. 19. In the result, both the Civil Revision Petitions are dismissed. Consequently, connected Miscellaneous Petitions are also dismissed. The Petitioners are directed to vacate and hand over the possession to the Respondent within two months from the date of receipt of a copy of this Order. 19. In the result, both the Civil Revision Petitions are dismissed. Consequently, connected Miscellaneous Petitions are also dismissed. The Petitioners are directed to vacate and hand over the possession to the Respondent within two months from the date of receipt of a copy of this Order. However, there is no order as to costs.