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2012 DIGILAW 3447 (MAD)

A. Ramakrishnan v. G. Chandramohan

2012-08-03

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the judgement and decree 10.10.2007 passed by the 1st Additional Sub-Court, Coimbatore, in R.C.A.No.46 of 2007 confirming the order dated 29.3.2007 passed by the Principal District Munsif, Coimbatore, this civil revision petition is filed. 2. The parties, for the sake of convenience are referred to hereunder according to their litigative status and ranking before the Rent Controller. 3. A thumbnail sketch of the germane facts in a few broad strokes can be encapsulated thus: (i) The respondent herein/landlord filed the RCOP.No.183 of 2004, invoking Sections 10 (2)(2)(i) and 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, seeking eviction on the grounds of 'wilful default' and for 'personal occupation'. (ii) Counter was filed and the matter was resisted. (iii) During enquiry, the landlord examined himself as P.W.1 and marked Exs.P1 to P13. No one was examined on the tenant's side; however, Exs.R1 to R15 were marked. (iv) Ultimately, the Rent Controller ordered eviction on the ground of 'wilful default' in paying the rents and dismissed the eviction sought on the ground of 'personal occupation'. (v) As against the said order, the tenant preferred the appeal R.C.A.No.46 of 2007 for nothing but to be dismissed by the rent control appellate authority confirming the order of eviction passed by the Rent Controller. 4. Being aggrieved by and dissatisfied the order and judgement of the respective Courts below, this civil revision petition is focussed by the tenants on various grounds. 5. The learned counsel for the revision petitioner/tenant, by placing reliance on the grounds of revision would develop his arguements thus: Even though the tenant pleaded specifically that a sum of Rs.2,05,000/-(rupees two lakhs five thousand) was paid to he erstwhile landlord-cum-owner of the demised premises-Sundararajan on the understanding that no rent need be paid and that the latter would return the amount without interest at the time of the former vacating the premises, yet both the Courts below surprisingly fell into error in holding as though there was wilful default in paying the rents. In fact, the revision petitioner/tenant was not aware of the purchase of the demised premises by the respondent herein from Sundararajan. Accordingly, the learned counsel would pray for allowing this civil revision petition after setting aside the judgement and order of the respective Courts below. 6. In fact, the revision petitioner/tenant was not aware of the purchase of the demised premises by the respondent herein from Sundararajan. Accordingly, the learned counsel would pray for allowing this civil revision petition after setting aside the judgement and order of the respective Courts below. 6. In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the revision petitioner/tenant, the learned counsel for the respondent/landlord would pilot his arguements, which could pithily and precisely be set out thus: In the counter filed by the revision petitioner/tenant there is a supine admission that there was landlord and tenant relationship between the said Sundararajan and the revision petitioner herein and it is his case that he paid allegedly a sum of Rs.2,05,000/-, over which absolutely there is no evidence. In such a case both the Courts below correctly held that the non-payment of rent was proved, which warrants no interference; the tenant also has not chosen to deposit the rent invoking Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act or pay the rents in any one of the modes contemplated in the said Act. Accordingly, the learned counsel would pray for the dismissal of the revision. 7. The point for consideration is as to whether the findings of both the Courts below that there was 'wilful default' in paying the rents by the tenant in favour of the landlord is well founded in the factual matrix of this case and the evidence placed before the Rent Controller? 8. A plain reading of the counter filed by the revision petitioner herein/tenant, a portion of which is extracted hereunder: "3. The allegations contained in para 3 of the petition are not correct. The respondent does not know about the purchase of the petition mentioned property by the petitioner from P.Sundararajan. This respondent has been a tenant under the above P.Sundrarajan for about 11 years. The sale of the property by the said Sundararajan to the petitioner herein was without the knowledge of the respondent. In the sale deed nothing his mentioned about the respondent and terms and conditions of the tenancy. This respondent has paid a sum of Rs.2,05,000/-(two lakhs five thousand) to the previous owner P.Sundararajan. The sale of the property by the said Sundararajan to the petitioner herein was without the knowledge of the respondent. In the sale deed nothing his mentioned about the respondent and terms and conditions of the tenancy. This respondent has paid a sum of Rs.2,05,000/-(two lakhs five thousand) to the previous owner P.Sundararajan. As per the terms and conditions the interest accrued from the said amount will have to be adjusted towards rent and the said amount will have to be returned to the respondent when he vacates the premises. The said fact was clearly stated in suit filed by the respondent in O.S.No.256 of 2004 against the petitioner and the previous owner P.Sundararajan. The above RCOP has been filed as an after thought and a counter blast to the suit filed by the respondent. In the said suit the respondent herein filed an application for temporary injunction restraining the petitioner herein and the above said Sundararajan in I.A.No.310 of 2004 and the same were made absolute. The suit filed by the respondent herein is pending before the Additional District Munsif of Coimbatore." (extracted as such) would reveal that the revision petitioner herein/tenant candidly admitted that he entered into the suit property only as a tenant. Furthermore, in ground No.4 of the revision petition, the following could be seen: "4.The courts below ought to have seen that the petitioner became a tenant of the premises in the 1993 for the rent of Rs.600/- and subsequently the rent was increased to Rs.1300/-. Thereafter he entered into an agreement the original owner and on 15.12.1999 the paid a sum of Rs.1,00,000/- and on 16.11.2000, the petitioner herein paid another Rs.90,000/- and the advance sum of Rs.15,000/- was pending with him. Thereby he has paid totally a sum of Rs.2,05,000/-, and as per the agreement that the interest thereon will be adjusted towards rent." (extracted as such) 9. The aforesaid excerpts from the counter as well as the grounds of revision would unambiguously show that the revision petitioner started occupying the demised premises ever since 1993 for a monthly rent of Rs.600/-, as per his version. Subsequently, the rent was increased to Rs.1,300/- per month. Thereafter, according to the revision petitioner, he paid on 15.12.1999, a sum of Rs.1,00,00/- (rupees one lakh) and on 16.11.2000 another sum of Rs.90,000/-(rupees ninety thousand) to Sundararajan and that an advance of Rs.15,000/- was with him also. Subsequently, the rent was increased to Rs.1,300/- per month. Thereafter, according to the revision petitioner, he paid on 15.12.1999, a sum of Rs.1,00,00/- (rupees one lakh) and on 16.11.2000 another sum of Rs.90,000/-(rupees ninety thousand) to Sundararajan and that an advance of Rs.15,000/- was with him also. 10. The learned counsel for the revision petitioner/tenant would also submit that the respondent/landlord before purchasing the property should have visited the demised premises and made enquiries and he should have sent pre-litigation notice, but without resorting to such procedures, he had simply filed the RCOP. 11. Pre-litigation notice before filing of the RCOP is not contemplated and it is a settled provision, relating to which no elaboration is required. 12. Regarding the enquiries to be made by the purchasers is concerned the tenant cannot expect any such thing from the present landlord who purchased the demised premises. When as per the maxim, 'Affirmanti, non neganti, incumbit probatio' – The proof is incumbent on the one who affirms, not on the one who denies, it is the duty of the tenant-the revision petitioner herein, who allegedly entered into some sort of arrangement with Sundararajan-the original landlord, to prove the said fact. The tenant has not raised his little finger to prove his plea by adducing evidence. 13. It is therefore crystal clear that the onus probandi is on the tenant to prove the averments as found set out in ground No.4 of the revision. Both the authorities below clearly held that the said Sundararajan was not even examined and there is nothing to show that the said amounts were paid by the tenant to Sundararajan. In such a case, this Court being the revisional Court is having no reason to find fault with the finding of facts given by the Courts below. 14. I would like to recollect and call up the following decisions of the Honourable Apex Court: (i) (2003) 1 SCC 123 , [E.Palanisamy v. Palanisamy (D) by LRs and others], andcertain excerpts from it would run thus: "4. 14. I would like to recollect and call up the following decisions of the Honourable Apex Court: (i) (2003) 1 SCC 123 , [E.Palanisamy v. Palanisamy (D) by LRs and others], andcertain excerpts from it would run thus: "4. It would be seen from the above provisions that while the landlord is required to issue a notice of default, on refusal by the landlord to accept rent, the tenant is required to call upon the landlord by way of a notice to specify the name of a bank in which rent could be deposited by the tenant to the credit of the landlord. If the landlord specifies the name of the bank to deposit the rent, there is an obligation on the part of the tenant to make the deposit of arrears of rent in the account of the landlord. However, if the landlord does not specify the name of a bank in spite of being called upon by the tenant through a notice, the tenant is required to send the amount of arrears through a money order to the landlord after deducting the commission payable on the money order. If the landlord still refuses to accept the rent, the tenant is entitled to file an application before the Rent Controller seeking permission to deposit the arrears of rent under sub-section (5) of Section 8 of the Act. 5. Mr Sampath, the learned counsel for the appellant argued that since the appellant tenant had deposited the arrears of rent in court, it should be taken as compliance with Section 8 of the Act. This would mean there is no default on the part of tenant in payment of rent and therefore, no eviction order could have been passed against the appellant on that ground. According to the learned counsel, the court should not take a technical view of the matter and should appreciate that it was on account of refusal of the landlords to accept the rent sent by way of money orders that the tenant was driven to move the court for permission to deposit the arrears of rent. Since there is a substantial compliance with Section 8 inasmuch as the arrears of rent stand deposited in court, a strict or technical view ought not to have been taken by the High Court. Since there is a substantial compliance with Section 8 inasmuch as the arrears of rent stand deposited in court, a strict or technical view ought not to have been taken by the High Court. We are unable to accept this contention advanced on behalf of the appellant by the learned counsel. The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh v. Ganpat Laland M. Bhaskar v. J. Venkatarama Naidu2. 6. The counsel for the appellant did not dispute that the tenant had not fulfilled the conditions prescribed in Section 8 of the Act before making deposit of rent in court. Hence similar circumstances and while dealing with almost similar provisions contained in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, this Court in Kuldeep Singh v. Ganpat Lal1 held: (SCC p. 249, para 8) “8. In the present case, the appellant is seeking to avail of the benefit of the legal fiction under Section 19-A(4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. [See Bengal Immunity Co. In the present case, the appellant is seeking to avail of the benefit of the legal fiction under Section 19-A(4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. [See Bengal Immunity Co. Ltd. v. State of Bihar(SCR at p.646).] The appellant can avail of the benefit of Section 19-A(4) if the deposit of Rs.3600 made by him in the Court of Munsif (South), Udaipur, on 29-10-1982, by way of rent for the months of May 1982 to October 1982, can be treated as a payment under Section 19-A(3)(c) so as to enable the appellant to say that he was not in default in payment of rent. Under Section 19-A(3) (c) the tenant can deposit the rent in the court only if the conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present case. The deposit which was made by the respondent in court on 29-10-1982 cannot, therefore, be regarded as a deposit made in accordance with clause (c) of sub-section (3) of Section 19-A and the appellant cannot avail of the protection of sub-section (4) of Section 19-A and he must be held to have committed default in payment of rent for the months of May 1982 to October 1982. This means that the decree for eviction has been rightly passed against the appellant on account of default in payment of rent for the period of six months.” 7. Again in M. Bhaskar v. Venkatarama Naidu2 with reference to similar provisions contained in the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, this Court observed that when the landlord is evading payment of rent, the tenant has to follow the procedure prescribed under Section 8 of the Act i.e. to issue notice to the landlord to name the bank and if he does not name the bank, the tenant has to file application before the Rent Controller for permission to deposit rent. The tenant did not follow that procedure. Omission to avail of the prescribed procedure disentitles the tenant to plead that there was no wilful default on his part. The tenant did not follow that procedure. Omission to avail of the prescribed procedure disentitles the tenant to plead that there was no wilful default on his part. The landlord was, therefore, entitled to seek eviction on the ground of wilful default in payment of rent on the part of the tenant. 8. Admittedly the tenant did not follow the procedure prescribed under Section 8. The only submission that was advanced on behalf of the appellant was that since the deposit of rent had been made, a lenient view ought to be taken. We are unable to agree with this. The appellant failed to satisfy the conditions contained in Section 8. Mere refusal of the landlord to receive rent cannot justify the action of the tenant in straight away invoking Section 8(5) of the Act without following the procedure contained in the earlier sub-sections i.e. sub-sections (2), (3) and (4) of Section 8. Therefore, we are of the considered view that the eviction order passed against the appellant with respect to the suit premises on the ground of default in payment of arrears of rent needs no interference. The impugned judgment of the High Court, therefore, does not call for interference. These appeals are dismissed. We are informed that the landlords have already taken possession of the suit premises, in pursuance of the High Court judgment." 15. One other decision of this court is reported in 2000-3-L.W.634 [M/s. Guru Associates rep.by its Partner Mr. Lalithakumar Jain and Lalithakumar Jain vs. B.A. Balasubramaniam]. Certain excerpts from it would run thus: "11. Under Section 11 (1) of the Act, it is the duty of the tenant to deposit all arrears of rent due in respect of the building upto the date of payment or deposit and continue to pay or to deposit any rent which may subsequently become due in respect of the building until the termination of the proceeding before the Controller or the Appellate Authority, as the case may be, Sub-Section (4) of Section 11 says, if any tenant fails to pay or to deposit the rent as aforesaid, the Controller or Appellate Authority, as the case may be, shall unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building." 16. A tenant is expected to deposit the rent regularly. A tenant is expected to deposit the rent regularly. But in this case it has not been done so. As such, I could see no perversity or illegality in the judgement and order passed by the respective Courts below. 17. In the result, there is no merit in the revision and the same is dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is dismissed.