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2013 DIGILAW 2695 (MAD)

M. R. Sudhakar v. Jinnah

2013-07-29

K.RAVICHANDRA BAABU

body2013
JUDGMENT :- 1. All these three revision petitions are filed by the tenants. The respondent is one and the same in all these petitions, who is the landlord. 2. C.R.P.No. 4889 of 2011 is arising against an order of eviction passed concurrently by the Courts below on the ground of wilful default, subletting and additional accommodation. The subject matter of the property is at D.No.40 (present D.No.141) of DMC Street, Thiruthuraipoondi. The claim of the landlord in this proceeding is that the monthly rent payable by the tenant is Rs.1700/- and he defaulted in making such payment for nine months commencing from July 2003 to March 2004. It is also his case that the first petitioner herein, who is the first respondent in RCOP No. 7 of 2004, has sublet the premises to the second petitioner herein without the permission of the landlord. He further sought the petition premises as additional accommodation for the purpose of expanding his business. 3. It is the case of the petitioners herein that the monthly rent payable is only Rs.700/-and not Rs.1,700/- as claimed by the landlord. When the rent was tendered through money order, the landlord did not accept the same and therefore, there was no wilful default. Insofar as the ground of subletting is concerned, it is the case of the petitioners that both of them are partners in the hotel business and as per the partnership deed, all transactions will be made only in the name of one person and therefore, that cannot be construed as sub-tenancy. 4. In respect of the other ground viz., additional accommodation is concerned, their case is that D.No.40 and 40A are two different buildings and the landlord, who is in occupation of D.No.40A, cannot seek additional accommodation in respect of the building at D.No.40. 5. The learned Rent Controller, in RCOP No. 7 of 2004, accepted the contentions of the landlord and ordered eviction on all the three grounds. The tenants have preferred an appeal in RCA No. 2 of 2009. The Appellate Authority confirmed the finding of the Rent Controller. Thus, the present C.R.P.No. 4889 of 2011 is preferred by the petitioners challenging the concurrent order of eviction. 6. C.R.P.No. 4890 of 2011 is in respect of D.No. 40B located at first floor of the same building. The tenants have preferred an appeal in RCA No. 2 of 2009. The Appellate Authority confirmed the finding of the Rent Controller. Thus, the present C.R.P.No. 4889 of 2011 is preferred by the petitioners challenging the concurrent order of eviction. 6. C.R.P.No. 4890 of 2011 is in respect of D.No. 40B located at first floor of the same building. The landlord filed RCOP No. 8 of 2004 seeking for eviction of the petitioners herein on the ground of wilful default and subletting. The case of the landlord is that the monthly rent payable is Rs.700/-and the first petitioner/tenant had committed default from the month of July 2003 to March 2004 for the period of nine months. 7. On the other hand, it is the contention of the petitioners herein that monthly rent payable for the premises at D.No.40B and 40C is only Rs.80/-in total and therefore, the claim of the landlord with regard to the quantum of rent is not correct. 8. Insofar as the ground of subletting is concerned, the contention made in this case and in the other RCOP is identical. The learned Rent Controller allowed the eviction petition in RCOP No.8 of 2004 on both grounds by accepting the contentions of the landlord. The appeal preferred by the petitioners herein in RCA No. 3 of 2009 came to be dismissed thereby confirming the order of eviction passed by the Rent Controller. 9. CRP No. 4891 of 2011 is in respect of the premises in D.No.40C situated at the first floor (thatched shed). The landlord filed RCOP No. 9 of 2004 seeking for eviction on the ground of wilful default. According to him, the monthly rent payable is Rs.80/-and the tenant had committed default in paying the monthly rent commencing from July 2003 to March 2004. On the other hand, the contention of the tenant is that the monthly rent payable is not Rs.80/- as contended by the landlord and it is only Rs.80/-for both the D.Nos. 40B and 40C. The learned Rent Controller allowed the RCOP No. 9 of 2004 and the appeal preferred in RCA No. 4 of 2009 by the tenant came to be dismissed. 10. Thus in all the three CRPs., the wilful default is the common ground. Insofar as the ground of subletting is concerned, the same is raised in the CRP Nos. 4889 and 4890 of 2011. 10. Thus in all the three CRPs., the wilful default is the common ground. Insofar as the ground of subletting is concerned, the same is raised in the CRP Nos. 4889 and 4890 of 2011. Apart from these two grounds, one more ground of additional accommodation has also been raised in CRP No. 4889 of 2011. Thus, if CRP No.4889 of 2011 is taken and decided, the same would cover the issues in other two civil revision petitions also since the defaulted period in all these cases is one and the same. 11. Learned counsel appearing for the petitioners submitted that insofar as the issue of wilful default is concerned, the quantum of rent payable is disputed and when such dispute is made by the petitioners, then the question of wilful default does not arise. He further submitted that when the rent was sent through money order and when the landlord had refused to receive the same, then he cannot be permitted to say that the default committed by the petitioners as wilful. The learned counsel for the petitioner also relied on Ex.R1 series-rental receipts issued by the landlord to indicate that the rent payable is only Rs.700/-. 12. Per contra, the learned counsel appearing for the respondent/ landlord submitted that as per Ex.P2 agreement, the rent payable by the first petitioner/ tenant with the previous owner is only Rs.1700/- and when the execution of such agreement is not disputed, then the petitioners cannot be permitted to dispute the quantum in the absence of any contra materials. 13. In these cases, insofar as the ground of wilful default is concerned, it is not disputed that rent for the period from July 2003 to March 2004 was not paid and the reason for not making such payment, as contended by the petitioners is that the rent payable is not Rs.1700/- as claimed by the landlord and on the other hand, it is only Rs.700/-. Therefore, it has to be seen that whether the rent payable is Rs.1700/- or Rs.700/-p.m. Both the Courts below, by considering the Ex.P2 agreement and also by considering Ex.R1-rental receipts as well as the counter foils of those receipts marked on the side of the landlord, came to the conclusion that the monthly rent payable is only Rs.1700/- as claimed by the landlord. 14. 14. First of all, the execution of Ex.P2 rental agreement dated 07.1.1990 was not disputed by the petitioners. A perusal of the said document would show that the first petitioner entered into a rental agreement with the erstwhile owner of the petition premises on 7.1.1990 by taking the petition mentioned property at D.No.40 on a monthly rent of Rs.1700/- by paying an advance amount of Rs.10,000/-. W hen that agreement was referred to in the eviction petition filed by the landlord before the Rent Controller, the first petitioner as the tenant has not specifically denied the execution of the said agreement. On the other hand, the first petitioner as R.W.1 has admitted such execution during his cross examination. However, the petitioners sought to raise an objection during the cross examination of first petitioner as R.W.1, as if, the rent payable referred to under Ex.P2-rental agreement was not correctly stated while it is only Rs.700/-p.m. If that is their contention, then it is their bounden duty to prove the same either by examining the party to the document viz., the erstwhile owner-Fakruddin or other attesting witnesses. Admittedly, none of them were examined in these cases by the petitioners. Therefore, their simple contention that the rent payable is only Rs.700/- p.m. cannot be accepted as true statement especially, under the circumstances that R.W.1 has admitted the execution of the document-Ex.P2. No doubt, they have marked Ex.R1 rental receipts wherein, the rental amount was quoted as only Rs.700/- p.m. The Court below has noted that a perusal of those receipts would show that D.40 was written therein with different ink. Therefore, the Court below doubted about the genuineness of those receipts. It has also taken note of the counter foils filed by the landlord wherein, no such door number was referred to. Therefore, the Court below refused to accept the receipts and consequently, came to the conclusion that Rs.1700/- is the monthly rent payable by the first petitioner/ tenant. W hen admittedly, the said sum was not tendered through money order by the first petitioner, then such tendering of lesser amount cannot be construed as valid tender of rent in order to escape from the ground of wilful default. Unless the tenant tendered the actual rent and only when such tender of rent was refused by the landlord, then, he can be permitted to say that he has not committed any wilful default. Unless the tenant tendered the actual rent and only when such tender of rent was refused by the landlord, then, he can be permitted to say that he has not committed any wilful default. Of course, he could have taken other steps to deposit the rent in the Court in the manner known to law. But in these cases, he has not sent a sum of Rs.1700/- but admittedly, he has sent Rs.700/-only by way of money order. Then the landlord is justified in refusing to receive the same. Both the Courts below rightly held that the petitioners committed wilful default in paying the monthly rent from July 2003 to March 2004. Even assuming that the advance amount of Rs.10,000/- is with the landlord as per the rental agreement Ex.P2, nothing is placed on record or proved by the tenants to show that the said sum of Rs.10,000/- was transferred to the present landlord by the erstwhile owner. Even assuming that it was transferred, when calculating the monthly rent at the rate of Rs.1700/- for nine months, then the advance amount of Rs.10,000/- is lesser than the rental arrears payable by the tenant. Therefore, even that advance amount of Rs.10,000/- assuming to be in the hands of the present landlord, would not come to the rescue of the tenant. Accordingly, I am of the view that both the Courts below have rightly held that the first petitioner/tenant has committed wilful default in paying the monthly rent. Thus, on this ground, the order of eviction passed concurrently is sustainable and does not warrant any interference. 15. In CRP Nos. 4890 and 4891 of 2011, though the tenant pleaded that the monthly rent payable for both Door Nos. Viz., D.No.40B and 40C are totally Rs.80/-, nothing is placed on record to show that any such agreement was entered into between the parties and the said sum was paid and received by the landlord for the earlier periods. Thus, when the amount of Rs.700/-and Rs.80/- respectively being the monthly rent, which has not been paid for nine months, then the order of eviction passed on the ground of wilful default by the Courts below concurrently need not be disturbed. Such factual finding rendered by the Courts below are sustainable in the absence of any contra materials pointed out by the petitioners. 16. The next issue is with regard to the ground of subletting. Such factual finding rendered by the Courts below are sustainable in the absence of any contra materials pointed out by the petitioners. 16. The next issue is with regard to the ground of subletting. The agreement -Ex.P2 is admittedly entered into between the erstwhile owner- Fakruddin and the first petitioner Sudhakar. Further, it is an admitted fact that no other written agreement other than the Ex.P2 came into inexistence between the parties. The present landlord purchased the property in the year 2003. Even after the purchase, there is no written agreement exists between the parties. Therefore, only rental agreement available is under Ex.P2. W hen the landlord disputes and denies that he has not given permission for subletting the premises, then it is the bounden duty of the first petitioner/ tenant to prove that the other person viz., the second petitioner was put in possession as sub-tenant with the permission of the landlord or the said person/ second petitioner is doing the business with the first petitioner jointly. 17. To prove such contention, the petitioners filed Ex.R2, partnership deed. No doubt, Ex.R2 shows that the first and second petitioners are partners of the hotel business to run the same in the petition mentioned property. On the other hand, under Ex.P16, the second petitioner viz., Chellaiah alone filed an application before the Deputy Commercial Tax Officer for running the hotel business showing himself as the Proprietor of the hotel business. Ex.P16 is the document filed before the statutory authority. Whereas, Ex.R2 partnership deed appears to be a self serving document. If really, there was a partnership as per Ex.R2, what prevented the petitioners from placing the said fact before the statutory authority has not been properly and convincingly explained. No doubt, the learned counsel appearing for the petitioners before this Court sought to explain that as per the terms of partnership, one of the partners can be referred to as the proprietor of the hotel business before the authority. what ever may be the explanation, when the second petitioner has chosen to claim himself as the owner of the business and he has not admittedly entered into the rental agreement under Ex.P2, then under what authority he has come into possession of the petition mentioned property is the crucial question. what ever may be the explanation, when the second petitioner has chosen to claim himself as the owner of the business and he has not admittedly entered into the rental agreement under Ex.P2, then under what authority he has come into possession of the petition mentioned property is the crucial question. If we peruse the rental agreement dated 1.6.2004 , it would show that both the petitioners entered into a rental agreement between themselves by showing the erstwhile owner Fakruddin as owner and the second petitioner as the tenant. Though the recital shows that the said Fakruddin as owner, a perusal of the said document, shows that in the place of the owner, the first petitioner has put his signature, which manifestly show that it is a concocted document apart from establishing the fact that the first petitioner sublet the premises to the second petitioner by signing the document in the capacity of the owner. Thus, the question of subletting also concurrently and rightly found against the petitioners by the Courts below by taking note of the facts and circumstances with which, I do not find any ground to interfere. 18. Then the question of additional accommodation comes for consideration. 19. It is admitted by the petitioners/ tenants that the respondent/ landlord is doing the business at D.No.40A and he seeks additional accommodation at D.No.40. It is the case of the landlord that D.Nos. 40A and 40 are in the same building and only a common wall is dividing both the properties. On the other hand, it is the contention of the petitioners that both are different properties and therefore, the question of additional accommodation does not arise. 20. Learned counsel appearing for the petitioners relied on a decision of this Court reported in Jothi Ammal and three others – Vs. - Kulandai Vadivel and others (1998, 3, CTC 457), wherein, it was held that in respect of two different buildings having two different door numbers, eviction on the ground of additional accommodation under Section 10(3)(c) of the Tamil Buildings (Leans and Rent Control) Act cannot be maintained. 21. It is seen from the factual finding rendered by the Courts below that both D.Nos. 40 and 40A are situated in the same building. 21. It is seen from the factual finding rendered by the Courts below that both D.Nos. 40 and 40A are situated in the same building. The Courts below have come to the conclusion that the petition mentioned property is a single building based on Ex.P4 sale deed executed in favour of the respondent/ landlord wherein, D.No.40 was shown as a single building. It is not disputed that a wall was built to make it two portions by the erstwhile owner. Thus, the fact remains that a single building was divided into two portions with D.No.40 and 40A. W hen that being the factual finding rendered by the Courts below, then, I do not think that any other view or different conclusion can be made in the absence of any contra materials. 22. No doubt, the learned counsel for the petitioners relied on the decision reported in Jothi Ammal and three others – Vs. - Kulandai Vadivel and others (1998, 3, CTC 457). A perusal of the facts of the said case would reveal that the building referred to therein was bearing D. No.18C and 18. It was found therein that D.No.18 is a terraced one whareas D.No.18C is tiled one. Therefore, by taking note of the physical features of the building and also finding that they can be identified separately, the learned Judge had come to the conclusion that they are two different buildings and can be sold separately. Thus, by finding so, the learned Judge held that the application under Section 10(3)(c) of the Act cannot be sustained. 23. Certainly, the facts and circumstances of each case has to be considered independently before applying any such analogy. As I have already pointed out, in this case, it is the categorical finding of the Courts below that both door numbers viz., D.No.40A and 40 are referable to two portions situated in one and the same building and only a common wall was put up to make it as two portions. Two portions of a same building is totally different and cannot be equated with two different buildings with specific physical features as found in the decision cited supra. Therefore, in my considered view, the said decision is factually distinguishable and does not apply to this case. 24. Moreover, admittedly, the property was purchased under Ex.P4 wherein, only one D.No.40 was shown and only one building was shown. Therefore, in my considered view, the said decision is factually distinguishable and does not apply to this case. 24. Moreover, admittedly, the property was purchased under Ex.P4 wherein, only one D.No.40 was shown and only one building was shown. Therefore, having a common wall to make it as two portions cannot be construed as two different buildings. Apart from raising this objection, the petitioners have not adduced any evidence to disprove the claim of the landlord seeking for additional accommodation. On the other hand, it is an admitted case that the landlord is doing a business at D.No.40A. He wants to expand the business by annexing D.No.40 also by removing the common wall, which is dividing the two portions. Thus, the landlord's bonafide cannot be doubted. In my considered view, the Courts below have rightly ordered eviction concurrently as against the petitioners/ tenants even on this ground and such concurrent findings rendered on facts do not require any interference by this Court. Thus, all the three civil revision petitions do not deserve any merits and accordingly, the same are dismissed. Consequently, connected miscellaneous petitions are dismissed. However, the petitioners are given three months time to vacate and handover vacant possession of the premises to the landlord. No costs.