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2013 DIGILAW 4002 (MAD)

Meena Srinivasan v. George

2013-11-26

T.MATHIVANAN

body2013
JUDGMENT 1. Challenge is made to the judgment and decree dated 29.01.2004 and made in RCA.NO.42 of 2002 on the file of the learned Appellate Authority (Subordinate Judge, Oothagamund). 2. The facts which are absolutely necessary for the disposal of this memorandum of civil revision are given as hereunder: The revision petitioner is the owner of the non-residential premises bearing Door No.10/285 situated in Jagathala road, Jagathala Panchayat in Aruvankadu, Nilgiris. Originally, it was belonged to one D. Hiriya Gowder who is none other than the father of the revision petitioner and under his last Will and Testament dated 08.05.1986, he had bequeathed the above said property to the revision petitioner and thereby, he has become the owner of the above said premises. 3. When the revision petitioner's father was alive, the respondent herein had been inducted as a tenant. In respect of the above said premises, the monthly rent was determined at Rs.300/- and the tenancy was only oral. When the petitioner's father died on 05.04.1987, the revision petitioner was a minor. After the death of the revision petitioner's father, his mother had notified the respondent that the revision petitioner's late father had bequeathed the said premises in question to the petitioner and that as the petitioner was then a minor, the respondent was asked to pay the rent to the petitioner's mother on behalf of the petitioner. Accordingly, after the death of the father of the revision petitioner, the petitioner's mother had been collecting the rent on behalf of the petitioner. Even after the petitioner attaining majority, his mother had continued to collect the rent from the respondent and handed over the same to the petitioner. In the year 1995, the petitioner got married and subsequently moved to Ootacamund to her husband's house and evenafter her marriage, the revision petitioner's mother had been in the habit of collecting rent from the respondent on behalf of the petitioner. Thereafter, the respondent had committed default in the payment of rent for the period from 01.10.1997 to 30.04.1998 amounting to Rs.2,100/- 4. The conduct of the respondent is willfull and therefore a legal notice was issued to the respondent directing him to pay the arrears of rent from 01.10.1997 to 31.03.1998 amounting to Rs.1800/- and also to quit and deliver the vacant possession of his premises. The conduct of the respondent is willfull and therefore a legal notice was issued to the respondent directing him to pay the arrears of rent from 01.10.1997 to 31.03.1998 amounting to Rs.1800/- and also to quit and deliver the vacant possession of his premises. However, the respondent had not either chosen to pay the arrears of rent or to quit and deliver the possession of the demised premises. Therefore, the petitioner was constrained to file the petition in RCOP.No.42 of 1998 u/s 10 (2) (i) The Tamil Nadu Buildings (Lease & Rent Control) Act, 1960. 5. This petition was resisted by the respondent herein by filing his counter wherein he has stated that he has been running a Typewriting Institute in the said premises and after the death of D.Hiriya Gowder, he began paying the monthly rent in respect of the premises to the widow Chennamma as she had asked the respondent to attorn the tenancy to her and thereafter, he had been paying the monthly rent to her. 6. He has further contended that he had never been notified either about the said bequest or to attorn the tenancy to the petitioner. The respondent was also not informed that the monthly rent was collected by the said Chennamma on behalf of the petitioner. The respondent had recognized the mother of the revision petitioner as a landlady. Apart from this, he has also contended that the petitioner's mother used to collect the monthly rent through her son, Ravi who is the petitioner's brother and all rents upto June, 1998 were paid to the revision petitioner's mother through the said Ravi and only on receipt of the notice in respect of RCOP, the respondent refrained from handing over the monthly rent to the petitioner's brother, Ravi and therefore, he never committed, any kind of default in the payment of monthly rent as alleged in the petition. 7. The revision petitioner as well as her mother were examined as PW1 and PW2 respectively and during the course of their examination, P1 to P3 were marked. On the other hand, the respondent was examined as RW1 and during the course of his examination, two documents were marked. 8. Based on the material proposition of the facts, the following three points were formulated for the consideration of the learned Rent Controller. "i. Whether the revision petitioner is the owner of the petition mentioned premises? On the other hand, the respondent was examined as RW1 and during the course of his examination, two documents were marked. 8. Based on the material proposition of the facts, the following three points were formulated for the consideration of the learned Rent Controller. "i. Whether the revision petitioner is the owner of the petition mentioned premises? ii. Whether the respondent had committed any wilful default in payment of rent? iii. Whether the respondent is liable to be vacated and handover the demised premises to the revision petitioner. iv. To what relief the revision petitioner is entitled? 1. On appreciation of the evidence, both oral and documentary, the learned Rent Controller has ultimately found that the revision petitioner is the owner of the demised premises. 2. It cannot be construed that the respondent had committed willful default in payment of rent. 3. The respondent is not liable to vacate the premises and surrender the vacant possession thereof to the petitioner." 9. With the above findings, the learned Rent Controller had proceeded to dismiss the petition on 22.03.2002 without costs. Impugning the said order, the revision petitioner being landlord had preferred an appeal in RCA. No.42 of 2002 on the file of the learned Appellate Authority, Subordinate Judge, Ootacamund. 10. After hearing both sides, the learned Rent Control Appellate Authority had dismissed the appeal confirming the findings given by the learned Rent Controller. Having been aggrieved by the impugned judgment and decree dated 29.01.2004, the revision petitioner now stands before this Court, with this Revision. 11. Heard Mr. S.K.Rakhunathan, the learned counsel for the petitioner. 12. Despite service of notice on the respondent, he has not chosen to appear before this court, and therefore, excepting to dispose of this matter on merit in the absence of respondent, there is no other go for the Court. As aforestated, there is no representation for the respondent. 13. It is obvious to note here that the revision petitioner, Meena Srinivasan has filed the petition in RCOP.No.42 of 1998 u/s 10 (2) (i) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960, to evict the respondent/tenant on the ground of wilful default in payment of rent. 14. It is revealed from the records that the respondent herein had denied the ownership of the revision petitioner in respect of the petition mentined building. 14. It is revealed from the records that the respondent herein had denied the ownership of the revision petitioner in respect of the petition mentined building. In this connection, this Court finds that it may be relevant to extract the provisions of Sections 10 (2) (i) of the above said Act. Sub section (2) of Section 10 enacts as under: A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied--- (i) that the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable, or ........................ The second proviso of Section 10 enacts that, "Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said sections, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. 15. On coming to the present case on hand, it is significant to note that the respondent in paragraph-4 of his counter statement states that the other averments in para-5 of the petition would make it amply clear that he had never attorned tenancy to the petitioner and it is only the petitioner's mother who has been recognised as the landlady by him. 16. The very denial of the respondent would express the meaning that he had denied the ownership of the revision petitioner in respect of the demised building. 16. The very denial of the respondent would express the meaning that he had denied the ownership of the revision petitioner in respect of the demised building. As envisaged in the second proviso to Section 10 of the Act, Since the respondent denies the title of the revision petitioner, the learned Rent Controller shall decide as to whether the denial or claim is bonafide and in this connection, he shall have to record a finding. When such finding is given saying that the claim of the tenant is bonafide, then the landlord shall sue the tenant for eviction in a Civil Court. 17. In the present case, as already observed in the opening paragraphs, totally four points were formulated by the learned Rent Controller for his consideration. The first point is as to "whether the revision petitioner is the owner of the petition mentioned building;" for which the learned Rent Controller has answered in favour of the revision petitioner saying that as per the Will said to have been executed in her favour by her father, D.Hiriya Gowder (Ex.P1), she had derived the title over the petition mentioned building. This finding has also been accepted by the learned Rent Control Appellate Authority. 18. Keeping in view of the above facts, this Court finds that the concurrent findings of both the Courts need not be interfered with. 19. The next question is as to whether the conduct of the respondent in non - payment of rent is willful. 20. From the averments of the petition in RCOP.No.42/1990, it is revealed that the respondent had occupied the petition mentioned premises as a tenant for a monthly rent of Rs.100/- under the petitioner's father, late D.Hiriya Gowder. This has not been disputed by the respondent. What the revision petitioner has stated in the petition is that the respondent had committed default in payment of rent for the period from 01.10.1987 to 30.04.1998 amounting to Rs.2,100/- and according to the Revision petitioner, the default in payment of rent by the respondent is willful. 21. Besides this, in paragraph No.7 of the petition in RCOP.No.42 of 1998, the revision petitioner/landlord has stated that under her lawyer's notice dated 11.04.1998(EX.P2), the respondent was called to pay the arrears of rent from 01.10.1997 to 31.03.1998 amounting to Rs.1,800/- and also to quit and deliver vacant possession of the premises. 22. 21. Besides this, in paragraph No.7 of the petition in RCOP.No.42 of 1998, the revision petitioner/landlord has stated that under her lawyer's notice dated 11.04.1998(EX.P2), the respondent was called to pay the arrears of rent from 01.10.1997 to 31.03.1998 amounting to Rs.1,800/- and also to quit and deliver vacant possession of the premises. 22. As aforestated, this Court finds that the revision petitioner has not been seeking the relief as claimed by her in the lawyer's notice under Ex.P2, dated 11.04.1998. In Ex.P2 lawyer's notice, it has been stated that "our client is now married and settled at Ootacamund, and therefore, she had authorised her mother, Chennamma to collect the monthly rent on behalf of her and accordingly, our client's mother had been collecting the monthly rent from you and handing over the said amount to our client. 23. It has also been stated in Ex.P2 that despite repeated demands from our client's mother you have failed to pay the rent for the period from 01.10.1997 to 31.03.1998 amounting to Rs.1800/- @ 300 p.m. and the default in payment of rent is wilful and deliberate. 24. Now, it has become imperative on the part of this Court to make reference of para-5 of the petition filed by the revision petitioner wherein, it has been stated that after the death of the petitioner's father, the petitioner's mother had notified the respondent that the petitioner's late father had bequeathed the premises in question to the petitioner and that as the petitioner was then a minor, he should pay the rent to the petitioner's mother on behalf of the petitioner. But the respondent herein has resisted this contention vehemently and stated in his counter statement, particularly in paragraph 3, that the respondent had never been notified either about the said bequest or to attorn tenancy to the petitioner. 25. He has also stated that the respondent was not at all informed that the monthly rent in respect of petition mentioned premises was collected by the said Chennamma (mother of the revision petitioner) on behalf of the petitioner. 26. 25. He has also stated that the respondent was not at all informed that the monthly rent in respect of petition mentioned premises was collected by the said Chennamma (mother of the revision petitioner) on behalf of the petitioner. 26. The learned Rent controller, on appreciation of the oral evidence, adduced by the revision petitioner as well as her mother who was examined as PW2 has found that there is no proof to say that the respondent was asked to pay the rent to the revision petitioner's mother, Chennamma, on behalf of the revision petitioner and that the petitioner in her evidence has also admitted that she never received rent from the respondent directly in respect of the petition mentioned premises. 27. It is also revealed from the evidence of the petitioner that the respondent had been in occupation of the demised building as a tenant for about 20 years and the revision petitioner has admitted in her cross examination that the respondent had never recognized her as a landlady. 28. On perusal of the evidence given by PW2 who is none other than the mother of the revision petitioner, she would state in her chief - examination that after inheriting the property through the Will of her husband, it was duly intimated to the respondent. But, she has not stated as to when she had informed the respondent about this fact. Further, she has denied fact that she would collect the rent from the respondent through her son, Ravi. But, the respondent herein was able to demonstrate through Exs. R1 and R2 receipts from which it is explicited that the respondent had paid the rent through one H.Ravi who is the son of PW2 and brother of the petitioner. a) Ex.R1 is the receipt dated 04.04.1998 for having received a sum of house rent for the month of October 1997, November 1997, December 1997 and January, February and March, 1998. 29. As it is revealed from Ex.R2, that a sum of Rs.900/- seems to have been paid on 03.07.1998 towards rent for the month of April, May and June, 1998. These two receipts seems to have been issued by one Ravi, who is none other than the son of PW2, Chennammal who is the mother of the revision petitioner. 30. 29. As it is revealed from Ex.R2, that a sum of Rs.900/- seems to have been paid on 03.07.1998 towards rent for the month of April, May and June, 1998. These two receipts seems to have been issued by one Ravi, who is none other than the son of PW2, Chennammal who is the mother of the revision petitioner. 30. The above said two receipts would go a long way to prove the fact that the respondent had paid the rent for the earlier months of October 1997, November-1997, December-1997 and January-1998 to March-1998 and Ex.R2 also reveals that they had also paid the rent for the month of April to June, 1998. When such being the case, the question of willful default in payment of rent did not arise. Therefore, the claim of the revision petitioner for the eviction of the respondent is not bonafide. It is also revealed from the evidence of respondent that he has denied the relationship of the landlord and the tenant between him and the revision petitioner. 31. Having regard to the above said facts, this Court finds that the learned Rent Controller has correctly come to the conclusion that the respondent had not committed any wilful default in payment of rent since the petition in RCOP.No.42/1998 was filed under Section 10 (2) (i) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 for eviction on the ground of wilful default. 32. This Court, on perusal of the order passed by the learned Rent Controller and judgment passed by the learned Rent Control Appellate Authority, is of the considered view that the respondent has never committed any willful default in payment of rent. Since both the Courts, 'viz' Rent Controller as well as Rent Control Appellate Authority have given a concurrent finding, this Court does not want to disturb the impugned judgment. In the result, the revision petition is dismissed. However, there is no order as to costs.