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2013 DIGILAW 4246 (MAD)

Raja v. Balasubramania Chettiar

2013-12-19

P.R.SHIVAKUMAR

body2013
JUDGMENT 1. Notice before admission was issued and after service of such notice, the respondent is before this court represented by a counsel. The arguments advanced by Mr.S.Sounthar, learned counsel for the petitioner and by Mr.J.Franklin, learned counsel for the respondent are heard. The materials produced in the form of typed set of papers are also perused. 2. Admittedly the revision petitioner was a tenant in respect of the petition premises, namely a non-residential portion, under the respondent herein and the agreed rent is Rs.500/- per month. The petition premises was taken by the revision petitioner for running his biscuit and candy business. The respondent herein (landlord), alleging willful default in payment of rent and also bonafide requirement for his son's business as additional accommodation, filed RCOP No.2/2008 on the file of the Rent Controller (District Munsif, Nagapattinam) seeking eviction of the revision petitioner/tenant under Sections 10(2)(i) and 10(3)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. 3. The Rent Control Original Petition was resisted by the revision petitioner/tenant contending that he himself has obtained electricity service connection in his name for the petition premises making the necessary deposit to the Electricity Board; that in 1985 when the building was found with dilapidation making it unfit for running the business, he himself renovated the building with his own money with the consent of the landlord; that the respondent/landlord demanded a sum of Rs.1,00,000/- for the development of his son's business with an offer to adjust the interest towards the rent and that when the revision petitioner/tenant expressed his inability, the respondent/landlord, besides intimidating the revision petitioner/tenant with goondas, chose to file the RCOP for eviction. It was also contended by the revision petitioner that for the month of May 2008, the rent (Rs.500/-) was sent to the respondent/landlord by a demand draft dated 13.06.2008 and that the rents for the subsequent months were also sent in the form of demand drafts without leaving any arrears of rent to be paid by the revision petitioner/tenant. It was his further contention that the respondent herein/landlord, who was not in the habit of issuing receipts for the rents received, suppressing the said facts, had approached the Rent Controller for eviction on the ground of willful default. It was also contended that the requirement for additional accommodation was also not bonafide. 4. It was his further contention that the respondent herein/landlord, who was not in the habit of issuing receipts for the rents received, suppressing the said facts, had approached the Rent Controller for eviction on the ground of willful default. It was also contended that the requirement for additional accommodation was also not bonafide. 4. The learned Rent Controller (District Munsif, Nagapattinam), after enquiry, came to the conclusion that requirement of the respondent herein/landlord as additional accommodation for the expansion of his son's business was bonafide and ordered eviction on that ground. Regarding willful default, the learned Rent Controller observed that though the revision petitioner/tenant did take a stand that the rent for the month of May 2008 and also the rents for the subsequent months were sent by way of demand drafts, the revision petitioner, did not furnish the particulars of the demand drafts and proof of such payments. The learned Rent Controller also referred to the admitted fact that the revision petitioner (tenant) chose to file a petition in RCOP No.2 of 2009 seeking permission to deposit the rents into the court and that even after obtaining an order in the said RCOP No.2/2009 for depositing the rent, he had failed to produce the proof of depositing the rent regularly and that such default after getting an order for depositing of rent and during the pendency of the eviction proceedings, would no doubt, amount to willful default and that on that score alone the revision petitioner/tenant was liable to be evicted. Thus the learned Rent Controller passed an eviction order on the grounds of willful default as well as the ground of landlord's requirement for additional accommodation for the expansion of the business of his son. 5. The said order of the learned Rent Controller dated 21.06.2010 made in RCOP No.2/2008 was challenged by the revision petitioner/tenant before the Rent Control Appellate Authority, namely Subordinate Judge, Nagapattinam in R.C.A.No.7/2010. The learned Rent Control Appellate Authority, after hearing, reversed the order of eviction on the ground of bonafide requirement of the landlord for additional accommodation and at the same time, confirmed the order of eviction on the ground of willful default. As against that part of the judgment of the Appellate Authority setting aside the order of eviction on the ground of additional accommodation, the respondent herein/landlord has not preferred any revision. As against that part of the judgment of the Appellate Authority setting aside the order of eviction on the ground of additional accommodation, the respondent herein/landlord has not preferred any revision. Hence the dismissal of the RCOP seeking eviction on the ground of bonafide requirement for additional accommodation stands confirmed, as the order of the Appellate Authority in this regard remains unchallenged. 6. So far as the order of eviction on the ground of willful default under section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, is concerned, both the Rent Controller and the Rent Control Appellate Authority have given a concurrent finding that the revision petitioner/tenant had willfully committed default in payment of rent and thereby made himself liable to be evicted on the ground of willful default in payment of rent. 7. As rightly pointed by the learned counsel for the respondent/landlord, though the revision petitioner/tenant would have made a plea that the rent for the month of May 2008 was sent by way of a demand draft dated 13.06.2008, the revision petitioner/tenant has not produced clinching evidence to show that such a demand draft was sent to the respondent/landlord. In the counter statement of the revision petitioner, two dates are given as the date on which the demand draft was purchased. It is not clear as to whether the demand draft was purchased on 03.06.2008 or 13.06.2008, as both the dates are found mentioned in the counter statement. Similarly, though the revision petitioner/tenant would have stated that for the subsequent months, namely for the months subsequent to May 2008, rents were sent through demand drafts, the revision petitioner was not able to furnish the particulars of the date of demand drafts. Even otherwise it is obvious from the records that the RCOP came to be filed on 12.06.2008 and the averment made in the counter is that the rent for the month of May 2008 sent by demand draft on 13.06.2008. Though there is an admission by the landlord who deposed as PW1, that the rent for four months subsequent to the filing of the RCOP were paid along with a notice sent by the advocate for the tenant, the revision petitioner/tenant seems to have committed default in payment of rent even during the pendency of the RCOP for eviction. 8. Though there is an admission by the landlord who deposed as PW1, that the rent for four months subsequent to the filing of the RCOP were paid along with a notice sent by the advocate for the tenant, the revision petitioner/tenant seems to have committed default in payment of rent even during the pendency of the RCOP for eviction. 8. It is also an admitted fact that the revision petitioner/tenant chose to file RCOP No.2/2009 under Section 9 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and got an order for such deposit. There was no continuity in payment of rent and he has not proved that he was regularly depositing the rent during the pendency of the RCOP, from which the revision has arisen. So far as the period prior to the filing of the RCOP is concerned, the learned Rent Controller as well as the Rent Control Appellate Authority failed to render a clear cut finding as to whether there was any default in payment of rent and whether there was any arrears in payment of rent for the period prior to the filing of the RCOP No.2/2008. On the other hand, the learned Rent Controller, simply chose to hold that the landlord was in the habit of receiving the rent in lumpsum after it got accumulated. But, the tenant had taken advantage of the same. Even then, the learned Rent Control Appellate Authority had not chosen to give a clear cut finding as to whether there was any period prior to the filing of the RCOP during which, the tenant had committed default in payment of rent let apart that default being willful or otherwise. 9. On the other hand, the learned Rent Controller has chosen to refer to the proceedings, namely RCOP No.2/2009 a petition filed under Section 9 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 by the tenant for deposit of rent and made an observation that the tenant had received challans for certain months and omitted to receive challans in respect of one month, namely December 2009. It also held that though rents were paid for the period from 24.07.2009 to 13.04.2010, there was no proof of deposit of rents for December 2009 for payment of rent for the month of November, 2009, as the tenant had not produced the receipt for such deposit even though he got a challan from the court of the Rent Controller for remittance. Though the tenant had obtained challans from the court of the Rent Controller in the months of January 2010 and March 2010 for deposit of rents for the months of December 2009 and February 2010, there was no proof of such deposit, as receipt was not produced. The learned Rent Control Appellate Authority also referred to the above said facts and concurred with the finding of the learned Rent Controller that there was default in payment of rents for the months of October to December 2009 and February 2010. This court wonders where from the Rent Controller and the Rent Control Appellate Authority culled out those facts to render such a finding. 10. It is an admitted fact that the tenant filed RCOP No.2 of 2009 for deposit of rent and got an order for depositing the rent into the court of the Rent Controller. The tenant, who figured as RW1, held out that he was making deposit of rent as per the order of the Rent Controller regularly without any default. When such was the tenor of his evidence in chief examination, surprisingly, there was no cross-examination by the learned counsel for the landlord on this aspect. Not even a suggestion was made to the fact that the rent for the months of October to December 2009 and February 2010 were not deposited into the court. The records in the other proceedings, namely RCOP No.2 of 2009 were also not sent for, for being introduced as evidence in the eviction petition, namely RCOP No.2 of 2008, in which event, the attention of the tenant would have been drawn to the facts and he would have got opportunity to show that he was regular in depositing the rents. Unfortunately, the learned Rent Controller simply referred to the documents allegedly found in the other case without the same being introduced as evidence in the case on hand and without summoning them and placing in the records of the present proceedings to be read in evidence, chose to make such an observation that the rent for the above said months were not deposited. The learned Rent Control Appellate Authority has also closed its eyes to the above said discrepancy in the order of the Rent Controller that for the months of November 2009, December 2009, January 2010 and March 2010, the tenant was default in payment of rent during which the RCOP was pending. Without affording proper opportunity to the tenant to prove that he had not committed default in payment of the rent during the pendency of the RCOP, the Rent Controller as well as the Rent Control Appellate Authority, has chosen to render an erroneous finding relying on extraneous materials. Hence this court comes to the conclusion that the order of the Rent Controller and the judgment of the Rent Control Appellate Authority holding that the tenant had committed willful default in payment of rents for the months of November and December 2009 and January and March 2010, is an erroneous and perverse finding and the same is liable to be set aside. However, considering the fact that there is also absence of finding regarding the allegation that there was default in payment of rent, which was willful according to the landlord for 28 months prior to the filing of the RCOP, this court deems it appropriate to remit the matter back to the Rent Controller to decide the case afresh after giving opportunity to the parties to lead further evidence, if any, regarding the alleged commission of default during the pendency of the RCOP and dispose of the case rendering a clear finding regarding the allegation that the tenant committed default in payment of rent for about 28 months prior to the filing of the RCOP. The Rent Controller is directed to dispose of the RCOP within three months from the date of receipt of a copy of this order. In the result, the civil revision petition is allowed. The Rent Controller is directed to dispose of the RCOP within three months from the date of receipt of a copy of this order. In the result, the civil revision petition is allowed. The judgment of the learned Rent Control Appellate Authority dated 23.09.2011 made in RCA No.7/2010 partly allowing the fair and decreetal order of the Rent Controller (District Munsif, Nagapattinam) dated 21.06.2010 made in RCOP No.2/2008, is set aside. The matter is remitted back to the Rent Controller (District Munsif, Nagapattinam) to decide the case afresh after giving opportunity to the parties to lead further evidence, if any, regarding the alleged commission of default during the pendency of the RCOP and dispose of the case rendering a clear cut finding regarding the allegation that the tenant committed default in payment of rent for about 28 months prior to the filing of the RCOP. The Rent Controller is directed to dispose of the RCOP within three months from the date of receipt of a copy of this order. No costs. Consequently, the connected miscellaneous petition is closed.