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2013 DIGILAW 3805 (MAD)

R. M. Sethuraman v. R. Raghu

2013-11-05

B.RAJENDRAN

body2013
Judgment : 1. This revision petition is filed by the tenant aggrieved by the Judgment and Decree dated 22.11.2011 passed in R.C.A. No. 1 of 2011 on the file of the learned Principal Subordinate Judge, Krishnagiri confirming the Judgment and Decree dated 23.12.2010 passed in R.C.O.P. No. 6 of 2008 on the file of the learned Rent Controller (District Munsif) Krishnagiri. 2. The first respondent herein has filed R.C.O.P. No. 6 of 2008 under Section 10 (2) (i) and 10 (3) (i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter called as The Act, for evicting the tenants on the grounds of wilful default in payment of rent and for owners own use and occupation. According to the first respondent herein, the petition mentioned property was let out to tenants 19 years back and the tenancy was oral. Since the tenants did not pay the rent inspite of many reminders made by the erstwhile owner of the petition mentioned property, they did not pay the rent. The tenants also filed O.S. No. 293 of 2001 against the erstwhile owner of the petition mentioned property and are squatting on the property without paying the rent. In those circumstances, the erstwhile owner of the petition mentioned property decided to dispose of the property to the first respondent herein. Accordingly, on 21.04.2008, the petition mentioned property was purchased by the first respondent herein by a registered sale deed. On purchase, the first respondent intimated the tenants to pay the arrears of rent of Rs.51,200/- to the erstwhile owner of the petition mentioned property and also to vacate the house and handover vacant possession to him. On 10.05.2008, the first respondent, along with the erstwhile owner of the petition mentioned property namely Kabali, have sent a legal notice to the revision petitioner herein, who according to them was in actual possession of the house, and demanded the arrears of rent and also to vacate the same. On receipt of the notice dated 10.05.2008, a reply dated 29.05.2008 was sent falsely claiming that the erstwhile owner Kabali has to pay him some amount and that he is not liable to pay any arrears of rent, as claimed. Under those circumstances, the first respondent herein has filed RCOP No. 6 of 2008 before the learned Rent Controller. 3. On receipt of the notice dated 10.05.2008, a reply dated 29.05.2008 was sent falsely claiming that the erstwhile owner Kabali has to pay him some amount and that he is not liable to pay any arrears of rent, as claimed. Under those circumstances, the first respondent herein has filed RCOP No. 6 of 2008 before the learned Rent Controller. 3. A counter affidavit was filed before the learned Rent Controller by the revision petitioner herein by denying the entire allegations made in RCOP No. 6 of 2008. It was also contended that the first respondent herein cannot demand him to pay the rental arrears, which he is liable to pay the erstwhile owner Kabali for a period of five months. 4. Before the learned Rent Controller, on behalf of the landlord, the landlord/first respondent herein examined himself as PW1, one Mary Josphine Rani as PW2 and Exs. P1 to P6 were marked. On behalf of the tenants, the second respondent herein was examined as RW1 and Exs. R1 to R22 were marked. The learned Rent Controller, on appreciation of the oral and documentary evidence held that the tenants are guilty of non-payment of rent and that the requirement of the landlord/first respondent herein is bonafide. The findings rendered by the learned Rent Controller was also affirmed by the Appellate Authority and dismissed the appeal filed by the tenants. 5. The main ground of attack made by the learned counsel for the tenant/ revision petitioner is that the landlord/first respondent has purchased the petition mentioned property only on 21.04.2008 by virtue of a registered sale deed. Immediately thereafter, the petition in RCOP No. 6 of 2008 was filed on 16.08.2008 and therefore, the Rent Control Original Petition itself is not maintainable and the landlord is prohibited from filing the same as per the proviso to Section 10 (3) (a) (iii) of the Act. As the landlord/first respondent herein has acquired title to the property only on 21.04.2008 by means of a registered instrument, he is not entitled to maintain the Rent Control Original Petition within three months of the purchase of the petition mentioned property from his vendor. As the landlord/first respondent herein has acquired title to the property only on 21.04.2008 by means of a registered instrument, he is not entitled to maintain the Rent Control Original Petition within three months of the purchase of the petition mentioned property from his vendor. The landlord/first respondent herein purchased the property on 21.04.2008 and the three months time, as contemplated under the proviso to Section 10 (3) (a) (iii) of the Act expires only on 20.07.2008, but the landlord/ first respondent herein filed the Rent Control Original Petition on 16.06.2008 before the learned Rent Controller. Therefore, as on the date of filing of the Rent Control Original Petition, the three months time stipulated under the Act was not over. Further, the landlord/first respondent herein had issued the legal notice on 10.05.2008, for which a reply dated 29.05.2008 was sent by the revision petitioner/tenant and immediately thereafter, on 16.06.2008, the Rent Control Original Petition was filed and it is not maintainable. 6. In this connection, the learned counsel for the tenant/revision petitioner relied on the decision of the Honourable Supreme Court reported in (T.K. Lathika vs. Seth Karsandas Jamnadas) (1999) 6 Supreme Court Cases 632 to contend that the Rent Control Original Petition filed by the landlord/first respondent is not maintainable in view of the proviso to Section 10 (3) (a) (iii) of the Act. According to the learned counsel for the tenant/revision petitioner, the courts below ought to have decided the maintainability of the Rent Control Original Petition as a preliminary issue before dealing with the case on merits, but it was not done. Therefore, on this technical ground, the learned counsel for the tenant/ revision petitioner prayed this Court to set aside the orders passed by the courts below. 7. On the contrary, the learned counsel appearing for the landlord/first respondent would contend that before the learned Rent Controller or the Appellate Authority, the plea as regards maintainability of the Rent Control Original Petition was not pleaded or raised. Therefore, the revision petitioner is estopped from raising such plea before this Court in this Civil Revision Petition. Even otherwise, the proviso to Section 10 (3) (a) (iii) of the Act will not apply to petitions filed under Section 10 (3) (a) (i) and (ii) of the Act. Therefore, the revision petitioner is estopped from raising such plea before this Court in this Civil Revision Petition. Even otherwise, the proviso to Section 10 (3) (a) (iii) of the Act will not apply to petitions filed under Section 10 (3) (a) (i) and (ii) of the Act. Therefore, the learned counsel for the landlord/first respondent would contend that the courts below are justified in ordering eviction on merits and she prayed for dismissal of the Civil Revision Petition. 8. I heard the counsel for both sides. The main argument advanced on behalf of the tenant/revision petitioner is that the Rent Control Original Petition filed by the landlord/first respondent is not maintainable in view of the proviso to Section 10 (3) (a) (iii) of the Act. According to the learned counsel for the revision petitioner, there is an embargo for the landlord/first respondent to file the Rent Control Original Petition as per the proviso to Section 10 (3) (a) (iii) of the Act and the landlord/first respondent ought to have waited for expiry of the three months time contemplated therein. 9. A reading of the proviso to Section 10 (3) (a) (iii) of the Act would indicate that when a person has become a landlord after the commencement of the tenancy by an instrument, then, he will have to apply to the Rent Controller after expiry of three months from the date on which he purchased the property by a registered instrument. In this case, it is an admitted fact that the petition mentioned property was purchased by the landlord/first respondent herein on 21.04.2008. Even in the Petition in RCOP No. 6 of 2008, the landlord/first respondent herein has stated in para-10 that he purchased the petition mentioned property on 21.04.2008 from his vendor Kabali by a registered sale deed and on the same day, he had intimated the purchase of the property to the tenants and requested them to vacate and handover the vacant possession of the property. The landlord/first respondent herein also sent a legal notice dated 10.05.2008 calling upon the tenants to pay a sum of Rs.51,200/-to his vendor Kabali towards rental arrears and also to handover the vacant possession of the petition mentioned premises to him, who is the purchase of the petition mentioned property for his own use and occupation. 10. The landlord/first respondent herein also sent a legal notice dated 10.05.2008 calling upon the tenants to pay a sum of Rs.51,200/-to his vendor Kabali towards rental arrears and also to handover the vacant possession of the petition mentioned premises to him, who is the purchase of the petition mentioned property for his own use and occupation. 10. It is seen from the decree passed in RCOP No. 6 of 2008 that the Rent Control Original Petition was presented on 16.06.2008. If this date is taken into consideration, definitely, the Rent Control Original Petition was filed within the three months period contemplated under the proviso to Section 10 (3) (a) (iii) of the Act and it is not maintainable. 11. Now, when we look into the proviso to Section 10 (3) (a) (iii) of the Act, it is clearly stated that the person who becomes a landlord after the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply under this clause before the expiry of three months from the date on which the instrument was registered. In the present case, the landlord/first respondent has filed the RCOP No. 6 of 2008 seeking for a direction to the tenant to vacate and handover the vacant possession of the premises for his own use and occupation and on the ground of wilful default in payment of rent. As far as the plea with regard to wilful default in payment of rent, such rent has to be paid only to the vendor of the landlord/first respondent herein and it is continued even after purchase of the property by the landlord/first respondent herein. As far as the landlord/first respondent herein, he sought for eviction of the tenants only on the grounds of owners own use and occupation for which there is an embargo by way of proviso to Section 10 (3) (a) (iii) of the Act. This proviso is applicable only to Section 10 (3) (a) (iii) and not to 10 (3) (a) (i) or (ii) especially when all the three sub-clauses (i) (ii) and (iii) are separately indicated by applying semicolon. Thus, it is evident that the proviso will apply only to Section 10 (3) (a) (iii) alone and not to the other provisions of Section 10 (3) (a) of the Act. Thus, it is evident that the proviso will apply only to Section 10 (3) (a) (iii) alone and not to the other provisions of Section 10 (3) (a) of the Act. This proviso specifically bars filing of a petition by a person who becomes landlord by means of a registered instrument, within three months from the date on which he purchased the property. As mentioned above, the landlord/first respondent filed the RCOP No. 6 of 2008 even before expiry of the three months time contemplated under the proviso to Sec.10 (3) (a) (iii) of the Act especially when the landlord/first respondent herein seeks for eviction of the tenants on the grounds of his own use and occupation. 12. In the decision of the Honourable Supreme Court reported in (T.K. Lathika vs. Seth Karsandas Jamnadas) (1999) 6 Supreme Court Cases 632 the Honourable Supreme Court had an occasion to deal with a similar question arising out of Kerala Buildings (Lease and Rent Control) Act, 1965. Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 contain a similar bar as has been contemplated under the proviso to Section 10 (3) (a) (iii) of the Act. Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, as extracted in the decision of the Honourable Supreme Court mentioned above, is reproduced hereunder:- "11 (3). A landlord may apply to the Rent Control Court for an order directing the tenant to put the and lord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to put in possession until the expiry of one year from the date of the instrument." 13. It is evident that under Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, there is a bar for the landlord, who acquired title to the petition mentioned premises, to file the petition seeking eviction of the tenant for one year. In other words, any petition filed within the period of one year is not maintainable. While considering the maintainability of the Rent Control Original Petition in that case, the Honourable Supreme Court held in para Nos. In other words, any petition filed within the period of one year is not maintainable. While considering the maintainability of the Rent Control Original Petition in that case, the Honourable Supreme Court held in para Nos. 8, 9, 10, 17, 18 and 19 as follows:- "8. The case of the landlord that she needed the building bona fide for her own occupation was then considered by the High Court on merits and learned Single Judge entered upon a finding that it is not bona fide. The writ petition was, hence, dismissed. 9. If the ban contained in the third proviso to Section 11(3) of the Act applies, its corollary is that the petition filed by the landlord has to be expelled on the sole ground that the landlord was then not entitled to file it. In such a situation the court should not enter into the merits because whatever is said or found on the merits would then be without jurisdiction. High Court should have first decided the question of maintainability of the petition and only if that point was found in the affirmative the merits need have been gone into. 10. Thus the question is whether appellants right to recover possession of the building arose under Ext.B.10 Gift Deed or under the new lease agreement Ext.A.1 dated 18.8.1980. No doubt appellant got the right to recover possession when she got the gift executed by her father. The contention is that the said lease came to an end when the new lease agreement was executed. The aforesaid contention is based on Section 111 (f) of the Transfer of Property Act on the premise that there was an implied surrender of the old lease when the new lease was executed. 17. Assuming that Ext.A.1 has created a new lease after terminating the erstwhile lease, the difficulty is that the grip of the ban contained in the third proviso would still continue to foreclose the landlord from filing the petition for a period of one year from the new lease deed. This is because the landlords right to recover possession would then arise under that instrument of lease, which would also be a transfer inter vivos as envisaged in the third proviso. In Blacks Law Dictionary the expression inter vivos is given the following meaning: Between the living; from one living person to another. This is because the landlords right to recover possession would then arise under that instrument of lease, which would also be a transfer inter vivos as envisaged in the third proviso. In Blacks Law Dictionary the expression inter vivos is given the following meaning: Between the living; from one living person to another. Where property passes by conveyance, the transaction is said to be inter vivos, to distinguish it from a case of succession or devise. 18. So the landlord had to wait for a still further period if he were to root his right in Ex.A1 to recover possession of the building. 19. As the third proviso to Section 11(3) disentitles a landlord from applying for eviction of the tenant before the expiry of the quarantine period, the petition filed by the landlord in this case has to be dismissed only on that ground. Any observation made on the merits of the case in the proceeding based on such a non-maintainable petition must stand erased from judicial notice. If the present landlord files a new petition for eviction under the Act, as the ban period is over, the same has to be considered and disposed of uninfluenced by any of the observations made by the High Court or the courts below thereto." 14. It is evident from the above decision of the Honourable Supreme Court that courts should not go into the merits of the case by overriding the express provisions contained in the statute. 15. The argument of the counsel for the landlord/first respondent is that the tenant/revision petitioner never raised such a plea before the courts below and the courts below had no occasion to deal with such a contentions. No doubt, before the courts below, the plea as regards maintainability of the Rent Control Original Petition in view of the express bar under the proviso to Section 10 (3) (a) (iii) was not raised by the tenants. Of course, there was a bald allegation in the counter that the Rent Control Original Petition is not maintainable and it was not made with reference to maintainability of the petition under the proviso to Section 10 (3) (a) (iii). But this is a question of law regarding maintainability of the Rent Control Original Petition and it can be raised at any time. But this is a question of law regarding maintainability of the Rent Control Original Petition and it can be raised at any time. When there is a bar for filing the Rent Control Original Petition under the proviso to Section 10 (3) (a) (iii) it cannot be simply brushed aside by this Court by dealing the case only on merits. 16. Time and again, this Court has held that pleadings in a summary proceedings cannot be taken into consideration in the sense that merely because a specific stand regarding maintainability of the Rent Control Original Petition was not taken before the courts below, it cannot be raised subsequently. The stand taken by the tenant/revision petitioner as to the maintainability of the Rent Control Original Petition, therefore, has to be sustained and accordingly, I hold that the plea raised on behalf of the tenant/ revision petitioner as regards maintainability of the Rent Control Original Petition is legally sustained. 17. In the result, the Civil Revision Petition stands allowed by setting aside the orders passed by both the courts below. No costs. Consequently, connected miscellaneous petition is closed. Resultantly, the RCOP No. 6 of 2008 filed by the landlord/first respondent herein on the file of the learned Rent Controller shall stand dismissed. It is always open for the landlord to file a separate application for eviction of the tenant inasmuch as now the period contemplated under the Act has long expired. It is also made clear that the Rent Control Original Petition itself is dismissed only on the ground of maintainability, the merits of the same have not been going into by this Court.