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2013 DIGILAW 2049 (MAD)

Rajappan v. K. S. Geethalakshmi

2013-06-17

K.RAVICHANDRA BAABU

body2013
JUDGMENT 1. The revision petitioner is the tenant. The first respondent landlady filed R.C.O.P. No. 1639 of 2006 on the file of the Small Causes Court at Chennai against the petitioner seeking for his eviction from the petition mentioned premises on the ground of owner's occupation and wilful default. The period of wilful default stated by the landlady in the eviction petition was from April 2005 to August 2006. The said eviction petition was contested by the petitioner as the first respondent therein. The learned Rent Controller after considering all the facts and circumstances of the case rejected the petition in so far as the ground of owner's occupation is concerned and allowed the petition and granted an order of eviction on the ground of wilful default. Aggrieved against the same, the petitioner herein preferred R.C.A.No. 647 of 2007 on the file of the Rent Control Appellate Authority, Chennai. The appeal was dismissed by the Appellate Authority after holding that the default committed in payment of rent by the petitioner amounts to wilful default. Aggrieved against the concurrent finding of the courts below, in so far as the order of eviction made on the ground of wilful default is concerned, the present Civil Revision Petition is filed by the petitioner. 2. Heard the learned counsel appearing for the petitioner as well as the first respondent/landlady. 3. Learned counsel appearing for the petitioner submitted that both the courts below concurrently erred in holding that the default committed by the petitioner is wilful without considering the fact that an amount of Rs. 1.5 lakhs paid as advance towards the purchase of the property was lying with the landlady. He further submitted that as per Ex.R1 agreement the parties have agreed that the rent will be paid in lumpsum at the time of execution of the sale deed and therefore it cannot be said that the petitioner has committed wilful default in payment of rent. It is also contended by the learned counsel that when there was an agreement between the parties for the purchase of the property and the petitioner has also filed a suit for specific performance of the said agreement, the bonafide of the petitioner cannot be doubted much less to contend that the default committed by him was wilful . 4. It is also contended by the learned counsel that when there was an agreement between the parties for the purchase of the property and the petitioner has also filed a suit for specific performance of the said agreement, the bonafide of the petitioner cannot be doubted much less to contend that the default committed by him was wilful . 4. Per contra, the learned counsel appearing for the respondents submitted that both the courts below have concurrently found against the petitioner that the default committed by him is wilful and ordered eviction. Such factual finding rendered by the courts below cannot be interfered with by this court while exercising the revisional jurisdiction, more particularly, when there were no contra facts placed or proved against such factual findings rendered by the courts below. He also contended that the tenant himself had admitted that he defaulted in making the payment of rent from April 2005 to August 2006 at the rate of Rs.3,500/-per month. When such being the admission, the burden is on the tenant to prove that the default was not wilful. Thus, the learned counsel for the respondent contended that in the absence of any materials placed before the Courts below to prove that the default was not wilful, the eviction ordered against the petitioner is fully justifiable and does not warrant any interference by this Court. The learned counsel also submitted that the suit filed by the tenant against the landlady seeking for specific performance of the agreement also ended against him by specifically holding that the petitioner was not ready and willing to perform his part of the contract. Thus, he pleaded for rejecting this Civil Revision Petition. 5. The petitioner herein is the tenant under the first respondent landlady. This relationship is not disputed. Though the eviction petition came to be filed on two grounds viz., owner's occupation and wilful default, the learned Rent Controller ordered eviction only on the ground of wilful default and rejected the claim made on the ground of owner's occupation. The said order of the learned Rent Controller was further confirmed by the Appellate Authority by specifically holding that the default committed by the petitioner is wilful. The said order of the learned Rent Controller was further confirmed by the Appellate Authority by specifically holding that the default committed by the petitioner is wilful. Thus, the only point that arises for consideration in this Civil Revision Petition is as to whether the order of eviction passed by the learned Rent Controller on the ground of wilful default and confirmed by the Appellate Authority is valid and as to whether the petitioner has committed wilful default in making the payment of rent for the period from April 2005 to 31.8.2006. The learned Rent Controller after elaborately discussing the said issue with regard to the ground of wilful default, has found that the petitioner has admitted that there is a delay in payment of monthly rent. The tenant though admitted the default, had, however, contended that the default was not wilful and it was not paid only due to the sale agreement dated 15.12.2004 marked as Ex.R1 between the parties. According to the tenant, as per the said sale agreement under Ex.R1, he was intending to pay the monthly rent in lumpsum on the date of execution of the sale deed. The learned Rent Controller has also found that under Ex.R1 sale agreement , the time stipulated for execution of the sale deed was two months from 15.12.2004 and even after lapse of nearly three years, the petitioner has not chosen to get the sale agreement executed in his favour. 6. The learned Rent Controller has also found that apart from Ex.R1 sale agreement, there were three more agreements entered into between the parties on 8.2.2005, 21.4.2005 and 28.8.2005. Thus, the learned Rent Controller has found that after the execution of the other three agreements, the first sale agreement dated 15.12.2004 marked as Ex.R1 and relied on by the tenant had been given a go-by and therefore the tenant cannot take shelter under Ex.R1 . The learned Rent Controller has also found that after filing the petition for eviction, the tenant had paid the lumpsum amount of Rs. 74,000/- towards the rent to the landlady for the period commencing from 1.4.2005 to 31.12.2006 and again under Ex.R10 he had sent a sum of Rs.10,000/- towards the rent for the period from January 2007 to March 2007. 74,000/- towards the rent to the landlady for the period commencing from 1.4.2005 to 31.12.2006 and again under Ex.R10 he had sent a sum of Rs.10,000/- towards the rent for the period from January 2007 to March 2007. Considering all these facts, the Rent Controller found that the non-payment of rents for a long period from April 2005 to August 2006 and also making the payment of lumpsum amount for the subsequent period has to be treated only as wilful default. 7. The Appellate Authority pointed out that Ex.R1 was not in force since other three agreements dated 8.2.2005, 21.4.2005 and 28.8.2005 were executed after Ex.R1 sale agreement dated 15.12.2004. The Appellate Authority also noted that the tenant during his cross examination had admitted that as per the subsequent sale agreements entered into after Ex.R1 sale agreement, he has to pay the rent every month. The Appellate Authority has in fact extracted the relevant portion of the admission made by the tenant in his cross examination held on 6.8.2007 admitting that he has to pay the rent every month as per the subsequent agreements made after Ex.R1. Therefore, the Appellate Authority found that the petitioner/tenant cannot rely on Ex.R1 to contend that the default committed by him is not wilful . 8. I have gone through the factual findings rendered by both the courts below and I find that the findings so rendered do not warrant an interference by this court in view of the admitted position with regard to the default committed by the tenant. The period of default claimed by the landlady was from April 2005 to 31.8.2006. The said defaulted period is not disputed by the tenant. The only defence taken by him is that as per Ex.R1 sale agreement he can pay the rent in lumpsum at the time of execution of the sale deed and therefore, the default was not wilful. If only Ex.R1 sale agreement was in existence between the parties, then what the petitioner stated could have been taken as correct. On the other hand, it is an admitted fact that there were three more agreements entered into after Ex.R1 on 8.2.2005, 21.4.2005 and 28.8.2005 and as per those agreements, the petitioner has to pay the rent every month. If only Ex.R1 sale agreement was in existence between the parties, then what the petitioner stated could have been taken as correct. On the other hand, it is an admitted fact that there were three more agreements entered into after Ex.R1 on 8.2.2005, 21.4.2005 and 28.8.2005 and as per those agreements, the petitioner has to pay the rent every month. This position has been admitted by the tenant himself during his cross examination by specifically stating that as per the subsequent agreements, he has to pay the monthly rent periodically. Therefore, the petitioner cannot rely on the recitals made in Ex.R1 agreement only when admittedly the said agreement had been given a go-by in view of the conduct of the parties in entering into subsequent agreements dated 8.2.2005, 21.4.2005 and 28.8.2005. The fact is very clear that the petitioner is aware of his liability to pay the monthly rent periodically subsequent to the agreements entered on 8.2.2005 etc. Once his liability to pay the monthly rent is admitted and if such liability is not disputed or discharged within time, then the default so committed by him, undoubtedly, has to be treated as only wilful and not otherwise. Absolutely the petitioner/tenant has no justification in retaining the rent commencing from April 2005 to August 2006, merely because there was an agreement of sale. 9. It is also brought to the knowledge of this Court that the petitioner herein as the plaintiff filed O.S.No. 13493 of 2010 on the file of the City Civil Court, Chennai against the respondent herein seeking for specific performance of the sale agreement and for other reliefs in respect of the property under dispute. It is also seen that the said suit came to be partly decreed by the trial Court on 13.3.2012 by holding that the relief of specific performance cannot be granted as the plaintiff was not able to prove his readiness and willingness. It was also found therein that the plaintiff was not entitled for permanent injunction as prayed for. However, a decree was granted in favour of the plaintiff to recover the advance amount of Rs.1,50,000/-from the respondent herein. Thus, it is manifestly clear that even in respect of the advance amount, the petitioner herein had obtained a decree in his favour to recover the same from the respondent. However, a decree was granted in favour of the plaintiff to recover the advance amount of Rs.1,50,000/-from the respondent herein. Thus, it is manifestly clear that even in respect of the advance amount, the petitioner herein had obtained a decree in his favour to recover the same from the respondent. Considering all these facts, I find no justification on the part of the petitioner in contending that there was no wilful default in payment of rent. 10. Even though his liability to pay the monthly rent was made clear under the agreements dated 8.2.2005, 21.4.2005 and 28.8.2005, the very fact that the petitioner had paid the lumpsum payment of Rs. 74,000/-, only after filing the eviction petition by the landlady towards the arrears of rent commencing from 1.4.2005 to 31.12.2006, would show that the petitioner has deliberately and intentionally committed default in making the payment of rent. Accordingly, the default being wilful, the eviction ordered by both the authorities below is perfectly in order and does not warrant any interference. I find no merits in this Revision petition. Consequently, the Civil Revision Petition is dismissed and the order of eviction passed by the learned Rent Controller and confirmed by the Appellate Authority is upheld. The petitioner /tenant is given three months time to vacate the premises from the date of receipt of copy of this order. Consequently, the connected M.P. is closed. No costs.