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Madras High Court · body

2013 DIGILAW 616 (MAD)

M. R. Gopinathan v. R. B. Manikandan

2013-01-29

G.RAJASURIA

body2013
JUDGMENT 1. This Civil Revision Petition has been filed to set aside the fair and executable order dated 19.10.2012 passed in R.C.A.No.37/2011 on the file of the Principal Sub Court, Madurai confirming the fair and executable order dated 07.09.2011 passed in R.C.O.P.No.266 of 2005 on the file of the Principal District Munsif of Madurai Town (Rent Controller). 2. Heard both the sides. 3. A recapitulation and resume of the germane facts absolutely necessary for the disposal of this Civil Revision Petition would run thus: (i) Indisputably and indubitably, the respondent happened to be the landlord under whom the revision petitioner happens to be the tenant in respect of the demised premises for a monthly rent of Rs.1,600/- (Rupees One Thousand Six Hundred Only). While so, the respondent filed R.C.O.P. for eviction on the ground of wilful default in paying the rent. However, the tenant resisted the application on various grounds. (ii) Up went the trial, during which on the landlord's side, one R.R.Balasubramanian was examined as P.W.1 and documents Exs.P1 to P26 were marked, and on the side of the tenant, he examined himself as R.W.1 and documents Exs.R1 to R8 were marked. (iii) Ultimately, the Rent Controller passed an order of eviction as against which an appeal was preferred for nothing but to be dismissed, confirming the order of the Lower Court. 4. Being aggrieved by and dissatisfied with the orders passed by both the fora below, this Civil Revision Petition has been focussed on various grounds. 5. The learned counsel for the tenant/revision petitioner, placing reliance on the grounds of revision, would pyramid his arguments, which could succinctly and tersely be set out thus: Due opportunity was not given to the tenant to expose the falsity in the case of the landlord. As on the date of filing of R.C.O.P. by the landlord, no arrears of rent at all was there, and Ex.R4, series, were unjustifiably rejected even though Ex.R4 series are genuine documents. The tenant is a railway employee residing in Mumbai. However, every now and then, he comes to the demised premises and stays there. For that purpose alone, he took on lease and that fact was known to the landlord. The tenant is a railway employee residing in Mumbai. However, every now and then, he comes to the demised premises and stays there. For that purpose alone, he took on lease and that fact was known to the landlord. As such, the tenant is in the habit of paying the rents in lumpsum, because, whenever he visits Madurai from Mumbai, he would pay the rents for two months and three months like that and the calculation memo filed on the side of the revision petitioner also would evince and evidence the same. However, the appellate Authority simply confirmed the order passed by the Rent Controller and disposed of the C.M.A. 6. The learned counsel for the revision petitioner would submit that pending R.C.O.P., the tenant was in the habit of paying the past months' rents, present month's rent and also future month's rent. In that fashion, he has been paying the rents pending litigation. However, the bona fide attitude of the tenant was not taken note of. Ex.P2, is the document which emerged out of coercion and fraud on the part of the landlord. Virtually, the tenant has been bludgeoned on into signing the said document and no importance or significance could be attached to Ex.P2. Regarding the application filed by the landlord under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act (“Act” in short), before the Rent Controller, the counter affidavit was filed. However, that order was passed ex-parte, as against which no appeal could be filed, because, the Lawyer for the tenant died in the mean while. Subsequently, as against the final order passed by the Rent Controller in ordering eviction, C.M.A. was filed, but the appellate Authority, as stated supra, simply confirmed blindly the order of the Rent Controller, warranting interference in revision. 7. Whereas, in a bid to slap down and torpedo the arguments as put forth and set forth on the side of the tenant, the learned counsel for the landlord would advance his arguments, which could precisely and briefly be set out thus: The contentions as put forth by the tenant are not borne by pleadings. Ex.R4 series have been found to be concocted ones and that was not taken note of. There is concurrent finding by both the Courts below on that aspect. Ex.R4 series have been found to be concocted ones and that was not taken note of. There is concurrent finding by both the Courts below on that aspect. Payments were not paid as per Ex.R4 series by the tenant to the landlord and only as an afterthought on the part of the tenant, they were fabricated. If at all there is any genuineness attached to Ex.R4, then certainly he would have filed them along with the Counter in the RCOP or along with the counter affidavit in the application filed under Section 11(4) of the Act. Only along with his proof of affidavit, he chose to present Ex.R4 and both the Courts below looked askance at them, warranting no interference by the revisional Court. The details as furnished in the calculation memo filed by the revision petitioner are not accepted by the landlord. Accordingly, he would pray for the dismissal of the Civil Revision Petition. 8. The point for consideration is as to whether as on the date of filing of the RCOP, the tenant committed any wilful default in paying the arrears of rent from July 2004 to November 2005? The Point: 9. At the outset, I would like to extract hereunder the calculation memo filed by the revision petitioner herein: 10. The calculation memo as referred to supra, would connote and denote that on five occasions, virtually as per Ex.R4 series, various amounts towards arrears were paid by the tenant to the landlord. However, the landlord would deny the same. When this Court raised a query as to whether those five payments were paid in cheque or by cash, the learned counsel for the tenant would state that those payments were made by cash. However, the learned counsel for the revision petitioner would hasten to add that without prejudice to the contention, that those amounts were covered under Ex.R4, his client once again sent by way of demand draft those amounts so as to show his bona fides, after an order under Section 11(4) was passed by the Rent Controller. However, the learned counsel for the revision petitioner would hasten to add that without prejudice to the contention, that those amounts were covered under Ex.R4, his client once again sent by way of demand draft those amounts so as to show his bona fides, after an order under Section 11(4) was passed by the Rent Controller. It is also the contention of the learned counsel for the tenant that Ex.P2 is an unreliable document, whereas, the learned counsel for the landlord would implore and entreat by highlighting and spotlighting the fact that Ex.P2 is a Notary attested document and witnesses also signed it and if at all such a document was brought under coercion, then the tenant, being a Railway servant, would not have kept quiet. As such, the contention that Ex.P2 was brought about forcefully is nothing but an afterthought on the part of the tenant. 11. At this juncture, I would like to concentrate much on this issue. Indisputably and indubitably, Ex.P2 would demonstrate and display that it is a Notary attested document and it bears the date as 23.04.2005; the recitals therein would evince and evidence that as on that date, the arrears of rent from December 2003 till March 2005 were due payable to the landlord to the tune of Rs.25,600/-and such an acknowledgement is found in Ex.P2. I would like to refer to the calculation memo, extracted supra; wherein it is stated that even as early as on 02.01.2004, 03.03.2004 01.06.2004, 04.10.2004 and 05.02.2005, various amounts totalling a sum of Rs.25,600/-was paid. If really Ex.R4 series are genuine, I am at a loss to understand as to how in Ex.P2 such sentence to the effect that arrears of rent to the tune of Rs.25,600/-was due payable. As such, both the Courts below felt that Ex.R4 series are dubious documents and no authenticity could be attached to them. The Courts below also held that Ex.R4 series were not filed along with the counter in RCOP or along with the counter filed in the application under Section 11(4) of the Act, but only along with the proof affidavit of the tenant. As such, I could see no perversity or illegality in the findings of both the Courts below, in doubting the genuineness of Ex.R4 series. 12. Trite the proposition of law is that witnesses might lie but the circumstances would not do so. As such, I could see no perversity or illegality in the findings of both the Courts below, in doubting the genuineness of Ex.R4 series. 12. Trite the proposition of law is that witnesses might lie but the circumstances would not do so. Here, applying the robust common sense, if the matter is viewed, it is quite pellucidly and palpably clear that Ex.P2 is on a stronger footing. If Ex.R4 series should be given importance, then, the clause in Ex.P2 would be rendered nugatory. Then the question arises as to whether there is anything to doubt the recitals in Ex.P2 and whether there are evidence to that effect. The preponderance of probabilities would govern the adjudication in civil cases. The tenant is a railway servant. Had really he been compelled so, certainly soon after such emergence of document Ex.P2 in March 2005, he would have given a complaint to the police for that purpose. It is the consistent case of the tenant that thereafter also, he continued to pay the rent. As such, absolutely there is no perversity or illegality in the findings of both the fora below in disbelieving Ex.R4 series and in believing Ex.P2. It is the case of the landlord that from July 2004 till November 2005, rents were not paid. In the calculation memo filed, there is nothing to indicate that during that period, any such payment was made. In fact, as per the calculation memo itself, after the passing of the order by the Rent Controller under Section 11(4) of the Act only, such arrears were paid and that itself is indicative of the fact that as on the date of filing of RCOP, there were huge arrears of rent for a period of 17 months. At this juncture, I would like to fumigate my mind with the decision of the Honourable Apex Court in E.Palanisamy v. Palanisamy (D) by LRs and others reported in (2003) 1 Supreme Court Cases 123. Certain excerpts from it, would run thus: "4. It would be seen from the above provisions that while the landlord is required to issue a notice of default, on refusal by the landlord to accept rent, the tenant is required to call upon the landlord by way of a notice to specify the name of a bank in which rent could be deposited by the tenant to the credit of the landlord. If the landlord specifies the name of the bank to deposit the rent, there is an obligation on the part of the tenant to make the deposit of arrears of rent in the account of the landlord. However, if the landlord does not specify the name of a bank in spite of being called upon by the tenant through a notice, the tenant is required to send the amount of arrears through a money order to the landlord after deducting the commission payable on the money order. If the landlord still refuses to accept the rent, the tenant is entitled to file an application before the Rent Controller seeking permission to deposit the arrears of rent under sub-section (5) of Section 8 of the Act. 5. Mr. Sampath, the learned counsel for the appellant argued that since the appellant tenant had deposited the arrears of rent in court, it should be taken as compliance with Section 8 of the Act. This would mean there is no default on the part of tenant in payment of rent and therefore, no eviction order could have been passed against the appellant on that ground. According to the learned counsel, the court should not take a technical view of the matter and should appreciate that it was on account of refusal of the landlords to accept the rent sent by way of money orders that the tenant was driven to move the court for permission to deposit the arrears of rent. Since there is a substantial compliance with Section 8 inasmuch as the arrears of rent stand deposited in court, a strict or technical view ought not to have been taken by the High Court. We are unable to accept this contention advanced on behalf of the appellant by the learned counsel. The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. Equitable consideration has no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh v. Ganpat Lal [ (1996) 1 SCC 243 ] and M. Bhaskar v. J. Venkatarama Naidu [ (1996) 6 SCC 228 ]. 6. The counsel for the appellant did not dispute that the tenant had not fulfilled the conditions prescribed in Section 8 of the Act before making deposit of rent in court. Hence similar circumstances and while dealing with almost similar provisions contained in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, this Court in Kuldeep Singh v. Ganpat Lal [ (1996) 1 SCC 243 ] held: (SCC p. 249, para 8) “8. In the present case, the appellant is seeking to avail of the benefit of the legal fiction under Section 19-A(4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. [See Bengal Immunity Co. Ltd. v. State of Bihar [ AIR 1955 SC 661 : (1955) 2 SCR 603 ] (SCR at p. 646).] The appellant can avail of the benefit of Section 19-A(4) if the deposit of Rs 3600 made by him in the Court of Munsif (South), Udaipur, on 29-10-1982, by way of rent for the months of May 1982 to October 1982, can be treated as a payment under Section 19-A(3)(c) so as to enable the appellant to say that he was not in default in payment of rent. Under Section 19-A(3)(c) the tenant can deposit the rent in the court only if the conditions laid down in the said provision are satisfied. Under Section 19-A(3)(c) the tenant can deposit the rent in the court only if the conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present case. The deposit which was made by the respondent in court on 29-10-1982 cannot, therefore, be regarded as a deposit made in accordance with clause (c) of sub-section (3) of Section 19-A and the appellant cannot avail of the protection of sub-section (4) of Section 19-A and he must be held to have committed default in payment of rent for the months of May 1982 to October 1982. This means that the decree for eviction has been rightly passed against the appellant on account of default in payment of rent for the period of six months.” 7. Again in M. Bhaskar v. Venkatarama Naidu [ (1996) 6 SCC 228 ] with reference to similar provisions contained in the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, this Court observed that when the landlord is evading payment of rent, the tenant has to follow the procedure prescribed under Section 8 of the Act i.e. to issue notice to the landlord to name the bank and if he does not name the bank, the tenant has to file application before the Rent Controller for permission to deposit rent. The tenant did not follow that procedure. Omission to avail of the prescribed procedure disentitles the tenant to plead that there was no wilful default on his part. The landlord was, therefore, entitled to seek eviction on the ground of wilful default in payment of rent on the part of the tenant. 8. Admittedly the tenant did not follow the procedure prescribed under Section 8. The only submission that was advanced on behalf of the appellant was that since the deposit of rent had been made, a lenient view ought to be taken. We are unable to agree with this. The appellant failed to satisfy the conditions contained in Section 8. Mere refusal of the landlord to receive rent cannot justify the action of the tenant in straight away invoking Section 8(5) of the Act without following the procedure contained in the earlier sub-sections i.e. sub-sections (2), (3) and (4) of Section 8. We are unable to agree with this. The appellant failed to satisfy the conditions contained in Section 8. Mere refusal of the landlord to receive rent cannot justify the action of the tenant in straight away invoking Section 8(5) of the Act without following the procedure contained in the earlier sub-sections i.e. sub-sections (2), (3) and (4) of Section 8. Therefore, we are of the considered view that the eviction order passed against the appellant with respect to the suit premises on the ground of default in payment of arrears of rent needs no interference. The impugned judgment of the High Court, therefore, does not call for interference. These appeals are dismissed. We are informed that the landlords have already taken possession of the suit premises, in pursuance of the High Court judgment." 13. A mere running of the eye over the above precedent would convey and portray that it is the duty of the tenant to be sedulous and meticulous in paying the rent by resorting to the methods contemplated under Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act. However, the learned counsel for the tenant would try to press into service the decision of the Apex Court in Ram Deo v. Umrao Singh, reported in (1980) 1 SCC 59 . A bare reading of it would connote and denote that if there is an agreement relating to the payment of arrears of rent in instalments, then in that case, that agreement should be adhered to. In the present case, a perusal of Ex.P2 would clearly exemplify and demonstrate that there is a candid and categorical admission on the part of the tenant that there were arrears of rent to the tune of Rs.25,600/- and there is nothing to indicate that there emerged an agreement between the landlord and tenant that such amount of arrears should be paid within a particular time frame or in instalments. Therefore, the attempt on the part of the learned counsel for the revision petitioner to press into service the said precedent, is not tenable. 14. Therefore, the attempt on the part of the learned counsel for the revision petitioner to press into service the said precedent, is not tenable. 14. The learned counsel for the revision petitioner would try to canvass his case that the conduct of the landlord was deplorable because he consciously and deliberately, and that too, purely for the purpose of mulcting the tenant with undue liability, failed to encash the cheques, whereupon, the tenant was driven to the extent of sending those amounts by way of demand draft. Once again, to the risk of repetition and pleonasm, I would like to observe and clarify so as to dispel any misgivings that the Hon'ble Apex Court mandated that the tenant should necessarily be meticulous in adhering to the methods contemplated under the Tamil Nadu Buildings (Lease and Rent Control) Act and he cannot take shelter under one pretext or the other. As such, the contention of the tenant fails to carry conviction with this Court. Both the Courts below held correctly that there was wilful default on the part of the tenant in paying the rent. 15. The learned counsel for the tenant would spend much time in drawing the attention of this Court that as of now there were no arrears and that bespeaks and betokens the good conduct of the tenant and hence as per him, his client should be permitted to continue as the tenant in the demised premises. Gainsaying and inveighing the same, the learned counsel for the landlord would contend that even as per the calculation memo furnished by the tenant, he did chose to pay the arrears of rents in lumpsum, which would indicate and connote that there were arrears of rent. Not to put too fine a point on it, the argument of the tenant seem to be unacceptable and a tenant even pendants lite should be meticulously paying the rent every month or depositing it in Court. Such procedure has not been adverted to by the tenant. A fortiori no interference in revision is warranted as regarding the finding of facts. Hence, the Civil Revision Petition is dismissed. Consequently, the connected miscellaneous petition is closed. No costs. 16. Such procedure has not been adverted to by the tenant. A fortiori no interference in revision is warranted as regarding the finding of facts. Hence, the Civil Revision Petition is dismissed. Consequently, the connected miscellaneous petition is closed. No costs. 16. On hearing the pronouncement of the order, the learned counsel for the revision petitioner/tenant would make an extempore submission that two years' time may be granted for the tenant to vacate the demised premises, for which the learned counsel for the landlord would submit that six months' time might be granted. On balance, I would like to grant nine months' time, i.e., up to the end of October 2013, for the tenant to vacate the premises concerned and hand over peaceful possession of it to the landlord, but subject to the condition that the tenant pays the rent regularly for the said period without any arrears. An affidavit to that effect shall also be filed by the tenant to that effect, before this Court within a period fifteen days from today, failing which the time granted in this order would not enure to his benefit.