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2012 DIGILAW 4708 (MAD)

Muthuramalingam v. Raju

2012-11-16

G.RAJASURIA

body2012
JUDGMENT 1. This Civil Revision Petition is focussed to get set aside the order passed in R.C.O.P.No.15 of 2003 dated 30.03.2004 on the file of the Rent Controller (District Munsif Court), Uthamapalayam, as confirmed in R.C.A.No.14 of 2004 on the file of the Rent Control Appellate Authority (Sub Court), Uthamapalayam, dated 25.08.2005. 2. The parties are referred to hereunder as landlords and tenant. 3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this Civil Revision Petition, would run thus: (i) The landlords namely Raju, Ravi, Suresh, Hariharan and Karthikeyan, represented by their Power Agent namely Manickavasagi, filed the R.C.O.P.No.15 of 2003 on the two grounds namely (i) wilful default and (ii) owners' occupation. Up went the enquiry, during which P.W.1 was examined and Exs.P.1 to P.5 were marked on the side of the petitioners. On the side of the respondent, R.W.1 was examined, but no documentary evidence was let in. Ultimately, the Rent Controller, allowed the said petition on the ground of wilful default committed by the tenant and dismissed the prayer based on owners' occupation. (ii) Being aggrieved by and dissatisfied with the order of the Rent Controller, the tenant preferred the appeal for nothing but to be dismissed. 4. Challenging and impugning the orders of both the Courts below, in ordering eviction on the ground of wilful default, the tenant preferred this Civil Revision Petition on various grounds. 5. The learned Counsel for the tenant would advance his arguments to the effect that there was no wilful default in paying the rent and that the landlords are in retention of huge advance sum of Rs.1,50,000/-(Rupees One Lakh and Fifty Thousand only). Accordingly, he would pray for setting aside the orders of both the Courts below in ordering eviction on the ground of wilful default. 6. Whereas the learned Counsel for the landlords would advance his arguments, the warp and woof of the same, would run thus: For the first time, the learned Counsel for the tenant would put forth the plea that the landlords are in retention of huge advance sum of Rs.1,50,000/-(Rupees One Lakh and Fifty Thousand only). However, the tenant committed wilful default in paying the rent up to the date of filing of the R.C.O.P.No.15 of 2003 and also subsequently. 7. However, the tenant committed wilful default in paying the rent up to the date of filing of the R.C.O.P.No.15 of 2003 and also subsequently. 7. The points for consideration are: (i) Whether the plea that a huge advance amount being retained by the landlords, could be pressed into service by the tenant at the time of hearing the Civil Revision Petition even though such plea was not taken earlier? (ii) Whether there is any perversity or illegality in the orders passed by both the Courts below? Point Nos.(i) and (ii) 8. At the outset itself, I would like to fumigate my mind with the following decisions: (i) Modern Hotel v. K.Radhakrishnaiah reported in (1989) 2 Supreme Court Cases 686. (ii) K.NarasimhaRao v. T.M.Nasimuddin Ahmed reported in (1996) 3 Supreme Court Cases 45. (iii) Lathav. L.Thangarajreported in 2012 (5) CTC 283 . 9. A perusal of the aforesaid precedents would palpably and pellucidly, clearly and glaringly, demonstrate and display that the landlord who is having with him huge advance amount, cannot approach the Rent Controller complaining that the tenant committed wilful default in paying the rent. The law enjoins the landlord to adjust the advance amount towards the arrears of rent. 10. Amere running of the eye over the same would also make the point amply clear that it is not necessary that the tenant should approach the landlord with a request to adjust the arrears towards the part of the advance amount. The landlord is expected to retain only a month's advance. This being the law point, could be raised at any stage including the revisional stage. 11. The factual aspect of the payment of the said advance by the tenant to the landlords, is an admitted one. In such a case, I could see no embargo for the tenant to raise such a plea. No doubt, the Courts below dealt with various factual aspects and held that there was wilful default ignoring the advance available with the landlords. In such a case, I could see no embargo for the tenant to raise such a plea. No doubt, the Courts below dealt with various factual aspects and held that there was wilful default ignoring the advance available with the landlords. In view of the obvious and axiomatic factual position that the landlords filed the R.C.O.P, while they were in retention of huge advance sum of Rs.1,50,000/-(Rupees One Lakh and Fifty Thousand only) and that the monthly rent being Rs.1,000/-(Rupees One Thousand only), the arrears as on the date of filing of the R.C.O.P., for fifteen months, was only a sum of Rs.15,000/-(Rupees Fifteen Thousand only), even by phantasmagorical thoughts, it cannot be labelled or dubbed that the tenant committed wilful default in paying the rents. 12. The learned Counsel for the tenant would explain and expound by inviting the attention of this Court that even the alleged non-payment of arrears during the pendency of R.C.O.P, would not be equal to that of the advance amount available with the landlords which was not contradicted by the learned Counsel for the landlords. 13. I would like to lay down as a rule that the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, being the beneficial legislation, the authorities under the said Act, should act in strictosensu in concinnity and in consonance with the same and even suomotu the authorities are expected to apply the correct provision of law from the factual scenario available. May be that the tenant might not have been shrewd enough in pleading as to the availability of the huge advance amount with the landlord, nevertheless, if the Rent Controller is posted with the fact that such huge advance amount is available with the landlord, then he should refrain from ordering eviction. As such, the orders of both the Courts below in ordering eviction on the ground of wilful default, are perverse and got vitiated. The point Nos.(i) and (ii) are answered accordingly. 14. In the result, this Civil Revision Petition is allowed and the orders passed by both the Courts below are set aside and consequently, R.C.O.P.No.15 of 2003 on the file of the Rent Controller (District Munsif Court), Uthamapalayam, stands dismissed. No costs.