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2014 DIGILAW 1977 (MAD)

K. Gowtham Chand v. G. S. Chandra Pushpa

2014-07-04

P.R.SHIVAKUMAR

body2014
Judgment : 1. The tenant Gowtham Chand, in respect of the petition premises viz., a non-residential portion with an extent of 172 sq.ft on the ground floor in the building bearing Door No.2A, Sivaprakasam Street, T.Nagar, Chennai-17, was sought to be evicted by his landlord G.S.Chandrapushpa by filing R.C.O.P.No.1853 of 1998 under Sections 10(2)(i), 10(2)(iii) and 10 (2)(v) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 on the grounds of: 1) Willful default in payment of rent; 2) Acts of waste as are likely to materially impair the value and utility of the building; and 3) Acts of nuisance to the occupants of the other portions of the same building. The said eviction petition was taken on file by the Rent Controller (X Judge, Small Causes Court, Chennai) as R.C.O.P.No.1853 of 1998. Another petition for eviction was filed as R.C.O.P.No.1854 of 1998 before the very same Rent Controller for evicting the tenant under Section 10(2)(ii) (a) of the Tamil Nadu Buildings Lease and Rent Control Act alleging that he had unauthorizedly sub-let the premises to one Navin Kumar. 2. R.C.O.P.No.1853 of 1998 was resisted by Gowtham Chand (the tenant) contending that he had not committed any default in payment of rent, much less willful default and that on the other hand, a false averment had been made in order to evict him so as to enable the landlord to let out the petition premises for an enhanced rent and to get higher advance and also pagadi. It was also contended therein that Navin Kumar was the nephew of Gowtham Chand and the said Navin Kumar was making payment of rent to the landlord. It was also contended therein that Navin Kumar was the nephew of Gowtham Chand and the said Navin Kumar was making payment of rent to the landlord. Regarding the prayer for eviction on the ground of acts of waste, it was contended that since the father of Navin Kumar (brother of Gowtham Chand) was murdered in the demised premises, for safety purposes, he was compelled to erect an iron grill at the entrance of the demised shop and erect an iron gate after obtaining permission from the landlord; that the said act would not amount to act of waste as contemplated under Section 10(2)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and that on the other hand, the said act was sought to be projected as a ground for eviction because the unjust demand of the landlord for enhancing the monthly rent from Rs.800/ to Rs.2000/-was not acceded to. Regarding the allegation of nuisance, he had contended that by erecting the iron grill and putting a gate, no hardship or inconvenience was caused to the other tenants. 3. After enquiry, the learned Rent Controller, allowed the petition R.C.O.P.No.1853 of 1998 in part in respect of the prayer for eviction on the ground of willful default alone and negatived the prayer for eviction in respect of other prayers, namely eviction on the ground of acts of waste and nuisance. As against the said order of eviction dated 26.07.2002 made in R.C.O.P.No.1853 of 2003, directing eviction of the tenant on the ground of willful default, the tenant preferred an appeal before the Rent Control Appellate Authority in R.C.A.No.831 of 2002. 4. As against the said order of eviction dated 26.07.2002 made in R.C.O.P.No.1853 of 2003, directing eviction of the tenant on the ground of willful default, the tenant preferred an appeal before the Rent Control Appellate Authority in R.C.A.No.831 of 2002. 4. The other eviction petition R.C.O.P.No.1854 of 1998 was resisted by the tenant denying the allegation of unauthorized subletting made by the landlord in the eviction petition and contending that the alleged sub-tenant Navin Kumar was none other than the nephew (brother's son) of Gowtham Chand, the tenant; that in view of the relationship between Gowtham Chand and Navin Kumar as paternal uncle and nephew, the rent was regularly paid by Navin Kumar; that previously Manak Chand, the father of Navin Kumar, was looking after Gowtham Chand's business in the petition premises and after the demise of Manak Chand, his son Navin Kumar was looking after the family business and hence, the same would not amount to subletting, much less unauthorized subletting and that in the light of the fact that for about 5 years prior to the filing of the R.C.O.P, rent was paid by Navin Kumar for which no objection was raised by the landlord and on the other hand, accepted the rent from him will be enough to negative the charge of unauthorized subletting. 5. The learned Rent Controller, after enquiry, allowed R.C.O.P No.1854 of 1998 holding that the tenant Gowtham Chand had unauthorizedly sublet the demised premises to Navin Kumar and hence, he was liable to be evicted under Section 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. As against the said order of eviction dated 26.07.2002 made in R.C.O.P.No.1854 of 1998, the tenant Gowtham Chand, preferred an appeal on the file of the Rent Control Appellate Authority (VII Judge of the Court of the Small Causes), Chennai in R.C.A.No.830 of 2002. 6. After the passing of the eviction order and during the pendency of the appeals and, the landlord Mrs.G.S.Chandrapushpa passed away, her name was removed from the array of parties and her legal representatives were brought on record as respondents 1 to 4 in the appeals. The learned Rent Control Appellate Authority heard both the appeals together and dismissed them by a common judgment and decrees dated 10.04.2006 confirming the findings of the Rent Controller. Hence, Gowtham Chand, the tenant has come forward with the present revision petitions. 7. The learned Rent Control Appellate Authority heard both the appeals together and dismissed them by a common judgment and decrees dated 10.04.2006 confirming the findings of the Rent Controller. Hence, Gowtham Chand, the tenant has come forward with the present revision petitions. 7. C.R.P.No.331 of 2007 has been filed against the decree of Rent Control Appellate Authority dated 10.04.2006 passed in R.C.A.No.830 of 2002 confirming the order of eviction made in R.C.O.P.No.1854 of 1998 under Section 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act on the ground of unauthorized subletting. C.R.P.No.332 of 2007 has been filed against the decree of the Rent Control Appellate Authority dated 10.04.2006 made in R.C.A.No.831 of 2007 confirming the order of eviction passed in R.C.O.P.No.1853 of 1998 on the ground of willful default under Section 10(2)(i) of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Even though separate orders of eviction had been passed by the Rent Controller since both the revisions have arisen out of R.C.O.Ps filed by the same landlord against the same tenant in respect of one and the same premises for eviction on different grounds and since the Rent Control Appeals were jointly heard and disposed of by a common judgment by the Rent Control Appellate Authority, the learned counsel appearing for the parties in the Civil Revision Petitions requested this Court to hear both the Civil Revision Petitions jointly and dispose of the same by a common order. 8. Accordingly, the arguments advanced by the learned counsel for the revision petitioner / tenant and the arguments advanced on behalf of the respondents / landlord were heard. The materials produced in the form of typed-set of papers and the materials available on record were also perused. 9. It is a fact not in dispute that the revision petitioner became a tenant in respect of the petition premises, namely a shop in the ground floor of the building bearing Door No.2A/2, Sivaprakasam Street, T.Nagar, Chennai -600 017, under the original landlord M/s.Chandrapushapa in the year 1982 on a monthly rent of Rs.400/-. It is also an admitted fact that subsequently by mutual agreement, the rent was enhanced to Rs.800/- per month and the rent applicable for the relevant period was Rs.800/-per month. It is also an admitted fact that the property was let out to the revision petitioner for a non-residential purpose. It is also an admitted fact that subsequently by mutual agreement, the rent was enhanced to Rs.800/- per month and the rent applicable for the relevant period was Rs.800/-per month. It is also an admitted fact that the property was let out to the revision petitioner for a non-residential purpose. However, there is nothing in the eviction petitions and the rental agreement produced and marked as Ex.R2 in R.C.O.P.No.1853 of 1998 that the tenancy was for carrying on a particular business. It has been simply stated in the said rental agreement that the said portion was let out for business purposes. The counter statement of the revision petitioner/tenant filed in R.C.O.P.No.1853 of 1998 alone contains a reference to the nature of business carried on in the petition premises. It refers to the business of Auto Consultant and Finance Business. The absence of any averment regarding the nature of business for which the petition premises came to be let out is immaterial and insignificant, since no claim for eviction has been made on the ground of different user. 10. R.C.O.P.No.1853 of 1998 came to be filed for eviction on three grounds, which are as follows: 1) Under section 10 (2)(i) for willful default in payment of rent; 2) Under Section 10(2)(iii) for acts of waste; and 3) Under Section 10(2)(v) for causing nuisance to the occupiers of other portions. The nuisance alleged in the eviction petition is that the tenant erected a grill in front of the demised premises and caused obstruction to the common passage resulting in hardship to other tenants occupying the neighbouring portions of the said premises. The said act of putting up a grill was also projected as an act of waste as it was contended by the landlord that holes were made in the concrete beams in the building to support the grill and the said damage caused to the concrete beams materially affected the utility of the building. 11. On appreciation of evidence, the learned Rent Controller held that putting up of grill gate did not materially affect the utility of the building and on the other hand, it could be viewed as an improvement to the utility of the building. Accordingly the learned Rent Controller disallowed the claim for eviction on the ground of act of waste under Section 10(2)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Accordingly the learned Rent Controller disallowed the claim for eviction on the ground of act of waste under Section 10(2)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The learned Rent Controller also held that the unnatural death of the brother of the revision petitioner in the petition premises necessitated providing more safety measures, pursuant to which the grill gate came to be provided by the revision petitioner herein/tenant and the same did not cause any nuisance to the tenants of the other portions of the building as projected by the landlord and accordingly, disallowed the claim for eviction on the ground of nuisance under Section 10(2)(v) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. 12. As against that part of the order made in R.C.O.P.No.1853 of 1998, disallowing the prayer seeking eviction on the ground of acts of waste and nuisance, no appeal was preferred either by the landlord or by her legal representatives, who figured as the respondents in the R.C.A.No.831 of 2002 filed by the revision petitioner herein/tenant against the order of eviction on the ground of willful default. Hence, that part of the order of the Rent Controller dismissing R.C.O.P.No.1853 of 1998 in respect of the plea of eviction on the ground of acts of waste and nuisance has attained finality. The only question that was raised before the Appellate Authority in R.C.A.No.831 of 2002 was the sustainability of the order of eviction passed in R.C.O.P.No.1853 of 1998 directing eviction of the revision petitioner herein/tenant on the ground of willful default under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. So far as the eviction order passed on the ground of unauthorized subletting is concerned, the order of the Rent Controller passed in R.C.O.P.No.1854 of 1998 was challenged before the Appellate Authority in R.C.A.No.830 of 2002. The learned Rent Control Appellate Authority by a common judgment dated 10.04.2006 and the even dated decrees passed in each one of the Rent Control Appeal, namely R.C.A.No.831 of 2002 and R.C.A.No.830 of 2002 respectively, confirmed the orders of eviction passed on the ground of willful default in R.C.O.P.No.1853 of 1998 and on the ground of unauthorized subletting passed in R.C.O.P.No.1854 of 1998. Aggrieved by the said decrees of the Rent Control Appellate Authority, the present revisions have been filed. 13. Aggrieved by the said decrees of the Rent Control Appellate Authority, the present revisions have been filed. 13. Learned counsel for the revision petitioner/tenant contended that there was no default, much less willful default, on the part of the revision petitioner/tenant; that on the other hand, the original landlord G.S.Chandrapushpa (deceased), was regularly receiving the rent paid by Navin Kumar, the brother's son of the revision petitioner without any protest; that when the landlord demanded enhancement of rent from Rs.800/- to Rs.2,000/-per month, the same was not conceded by the tenant; that hence with a view to evict the tenant on the ground of willful default in payment of rent, suddenly refused to receive the rent tendered by Navin Kumar on behalf of the revision petitioner/tenant and that thereafter, projecting the said period to be the period of willful default in payment of rent, the eviction petition R.C.O.P.No.1853 of 1998 came to be filed. The learned counsel for the revision petitioner contended further that the Rent Controller as well as the Rent Control Appellate Authority failed to properly appreciate the fact that for the notice dated 26.06.1998 sent by the landlord, a proper reply was issued on 20.07.1998 informing the landlord that the business was run by the revision petitioner in partnership with Navin Kumar; that Navin Kumar was a partner of the revision petitioner and that the rental agreement itself contained a clause permitting the tenant to use the premises for his business either run by him individually or in partnership with others. The further contention raised by the learned counsel for the revision petitioner is that the Rent Controller and the Rent Control Appellate Authority failed to properly appreciate the fact that a sum of Rs.4000/-representing the rent for the months of February to June 2008 sent by pay orders dated 06.04.1998 and 29.06.1998 by Navin Kumar was accepted by the landlord, but despite the same she chose to file the eviction petition and the further fact that even on the first hearing date, the rent was tendered to the landlord. Regarding C.R.P.No.331 of 2007 filed against the decree of the Rent Control Appellate Authority made in R.C.A.No.830 of 2002 confirming the order of eviction in R.C.O.P.No.1854 of 1998 on the ground of subletting, learned counsel for the revision petitioner argued that the rental agreement itself permitted the revision petitioner to do business either individually or in partnership; that the plea of the revision petitioner that he was running the business in partnership with Manak Chand and after the death of Manak Chand, his son Navin Kumar was inducted as a partner from 1993; that the evidence let in by the tenant in this regard were not properly considered and appreciated by the learned Rent Controller and Rent Control Appellate Authority resulting in an erroneous finding to the effect that the revision petitioner had sublet the petition premises to Navin Kumar and the business was not run as a partnership business having the revision petitioner and Navin Kumar as partners and that the said finding could even be termed perverse. 14. On the other hand, the learned counsel for the respondents contended that the learned Rent Controller and the learned Rent Control Appellate Authority, on a proper consideration of the pleadings and on a proper appreciation /re-appreciation of evidence, came to a correct conclusion that the revision petitioner had unauthorizedly sublet the property to Navin Kumar and also committed willful default in payment of rent and hence, the revision petitioner was liable to be evicted on the ground of subletting under Section 10(2)(ii)(a) of the Tamil Nadu Lease (Rent and Control) Act, 1960 and on the ground of willful default under Section 10(2)(i) of the Tamil Nadu Lease and Rent Control Act; that the said concurrent finding did not suffer from any defect or infirmity, much less perversity and that any interference by this Court in exercise of its power of revision under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 would not be justified. 15. This Court paid its anxious consideration to the above said submissions made on both sides. C.R.P.No.332 of 2007: 16. Eviction was sought for in R.C.O.P.No.1853 of 1998 on the ground of willful default based on the contention of the landlord that the revision petitioner/tenant committed default in payment of rent for the period from February 1998 to August 1998. 15. This Court paid its anxious consideration to the above said submissions made on both sides. C.R.P.No.332 of 2007: 16. Eviction was sought for in R.C.O.P.No.1853 of 1998 on the ground of willful default based on the contention of the landlord that the revision petitioner/tenant committed default in payment of rent for the period from February 1998 to August 1998. Admittedly, the monthly rent fixed at the inception of tenancy was Rs.400/-per month and the tenancy was evidenced by a rental agreement in writing dated 30.09.1982. The said document has been marked as Ex.R2 in R.C.O.P.No.1853 of 1998. It recites that an advance amount of Rs.5000/- was paid and the agreed monthly rent was Rs.400/-. Clause 4 of the rental agreement contains a covenant to the effect that the monthly rent would be subject to upward revision at the end of every 5 years period as would be mutually discussed between the owner and the tenant. The landlord herself admitted that the rent was subsequently increased and during the relevant period, the monthly rent was Rs.800/-p.m. The revision petitioner/tenant also admitted the fact that the initial rent was Rs.400/- per month and it was subsequently increased by mutual consent and that the rent for the relevant period and at the time of filing of the eviction petition was Rs.800/- per month. 17. The period of default, as per the averments made in the eviction petition R.C.O.P.No.1853 of 1998 was 7 months from February 1998 to August 1998. It is also an admitted fact that a lawyer's notice came to be issued by the landlord through her advocate on 26.06.1998 calling upon the revision petitioner/tenant to vacate and deliver vacant possession of the petition premises as he had committed acts of waste and nuisance, demanding payment of the defaulted rent and also calling upon the revision petitioner to vacate the premises on the ground of unauthorized subletting. A copy of the said lawyer's notice has been marked as Ex.P2 in R.C.O.P.No.1853 of 1998. The original of Ex.P2 has been produced on the side of the revision petitioner/tenant and marked as Ex.R3 in the said R.C.O.P.No.1853 of 1998. The reply notice dated 11.08.1998 sent by the revision petitioner through his lawyer has been marked as Ex.R5 in R.C.O.P.No.1853 of 1998. The original of Ex.P2 has been produced on the side of the revision petitioner/tenant and marked as Ex.R3 in the said R.C.O.P.No.1853 of 1998. The reply notice dated 11.08.1998 sent by the revision petitioner through his lawyer has been marked as Ex.R5 in R.C.O.P.No.1853 of 1998. Copies of the said documents, namely notice dated 26.06.1998 and a copy of the reply notice sent by the revision petitioner/tenant through his lawyer on 20.07.1998 have been produced as Exs.P2 and P3 respectively in R.C.O.P.No.1854 of 1998. Copy of the notice dated 26.06.1998 has been marked as Ex.P2 and the original was marked as Ex.R3 in R.C.O.P.No.1853 of 1998. The reply notice dated 20.07.1998 sent by the revision petitioner / tenant through his lawyer has been marked as Ex.P3 in R.C.O.P.No.1853 of 1998. Subsequent to the receipt of notice, a sum of Rs.1600/-was sent by Navin Kumar by a pay order bearing No.355740 drawn on Dena Bank, a copy of which has been marked as Ex.R4 in R.C.O.P.No.1853 of 1998 and the landlord Chandrapushpa returned the pay order along with a covering letter dated 26.06.1998 informing that the pay order was being returned as it was sent by Navin Kumar, who was not her tenant. The R.C.O.Ps came to be filed in the month of August 1998. Subsequently, the said Demand Draft along with another Demand Draft for a sum of Rs.2400/- came to be sent to the landlord's lawyer in August 1998 with a covering letter to which a xerox copy of the revision petitioner's bank passbook was annexed. The landlord encashed the said amount and gave credit to the said amount towards the arrears of rent. However, the said amount was appropriated towards the rent for the months of February, March, April, May and June 1998. Even as on the date of filing of the R.C.O.Ps, the rent for the months of July and August 1998 was due. Of course, the rent for the said months came to be paid on the first hearing date of the R.C.O.Ps. But the landlord claimed that subsequent payment of the rent for the months of February to May 1998 on 11.08.1998 and the payment of rent for the months of July and August 1998 in the Court was accepted without prejudice to the right of the landlord to proceed against the tenant for eviction on the ground of willful default. 18. But the landlord claimed that subsequent payment of the rent for the months of February to May 1998 on 11.08.1998 and the payment of rent for the months of July and August 1998 in the Court was accepted without prejudice to the right of the landlord to proceed against the tenant for eviction on the ground of willful default. 18. In this regard, it is pertinent to note that PW1, the third respondent in the revision petitions (son of the original landlord), during cross-examination in R.C.O.P.No.1853 of 1998 admitted that a sum of Rs.5000/- had been received by his mother as rental advance at the time of letting out the petition premises to the revision petitioner and that the said fact was not referred to either in the notice dated 26.06.1998 or in the eviction petitions. It has also been admitted by PW1 that apart from payment of Rs.4000/-by two demand drafts / payment orders, which was appropriated towards the rent for the months of February 1998 to June 1998, a Demand Draft for a sum of Rs.7200/- came to be handed over to the landlord on 26.11.1998 and that, after taking a sum of Rs.2400/- towards the rent for the months of July, August and September 1998, the balance amount was sent back to the revision petitioner even though the rent for the months of September and October could have been taken by the landlord. PW1 has admitted that the rent for the month of August 1998 was received by the landlord without prejudice to her case in the eviction petitions. But, nowhere in the evidence of PW1, it has been stated that the advance amount of Rs.5,000/- was adjusted towards rent retaining the permissible portion alone as advance. 19. The evidence of RW1 is to the effect that rent upto the month of January 1998 was regularly paid; that the landlord used to come for collecting the rent and that the rent for the months of February and March 1998 was not paid since the landlord did not come for collecting the rent. 19. The evidence of RW1 is to the effect that rent upto the month of January 1998 was regularly paid; that the landlord used to come for collecting the rent and that the rent for the months of February and March 1998 was not paid since the landlord did not come for collecting the rent. It is his further testimony that the rent for the months of February and March, namely a sum of Rs.1600/- was sent by way of a Demand Draft by registered post on 06.04.1998 and that the landlord, who received the same, kept it without encashing and sent it back along with a letter marked as Ex.R3 to the revision petitioner. The said letter marked as Ex.R3 shows that the same was returned on 26.06.1998 stating that the same was sent by RW1-Navin Kumar and he was not the tenant under the petitioner in the R.C.O.P/landlord. But, the said Demand Draft /Pay Order does not bear any indication that the same was sent by Navin Kumar as the tenant in respect of the petition premises. On the other hand, evidence was adduced on both sides pointing out the fact that Navin Kumar was making payments of rent even on prior occasions and the same was accepted by the petitioner in the R.C.O.P/landlord as payment on behalf of the revision petitioner/tenant and that the receipts were issued only in favour of the revision petitioner Gowtham Chand. 20. Section 7(1)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act prohibits receipt of an amount exceeding one month's rent by way of advance. Sub-clause (b) states that any amount received in excess of one month's rent shall be refunded by the landlord to the person by whom it was paid. Section 7(2) of the Rent Control Act provides that where fair rent has not been fixed in accordance with the provisions of the Act, the landlord shall not claim, receive or stipulate for the payment of, any premium or other like sum in addition to the agreed rent. However, proviso to sub-clause (a) enables the landlord to receive or stipulate for the payment of an amount not exceeding one month's rent, by way of advance. However, proviso to sub-clause (a) enables the landlord to receive or stipulate for the payment of an amount not exceeding one month's rent, by way of advance. Sub-clause (b) of Section 7(2) says that any amount paid in excess of the agreed rent as provided in clause (a) shall be refunded by the landlord to the tenant or at the option of the tenant, shall be otherwise adjusted. Sub-clause (1) of Section 7 provides similar stipulation in respect of buildings for which fair rent has been fixed by the Rent Controller. Sub-clause (3) of Section 7 makes stipulations in the lease deed or rental agreement in contravention of sub-sections (1) or Section (2) null and void. 21. Admittedly, at the inception of tenancy, the agreed rent was Rs.400/- per month. If the said provision is strictly applied, then the landlord was liable to refund the balance of advance amount after retaining Rs.400/- alone as advance rent for one month. Since it has been admitted that subsequently the monthly rent has been increased to Rs.800/-, the petitioner in the R.C.O.P No.1853 of 1998/landlord was liable under Section 7(2)(b) to refund Rs.4200/- retaining only a sum of Rs.800/- representing one month's rent as advance out of the advance amount of Rs.5,000/-. As it was not done, the tenant shall have a right to ask the landlord to adjust the said amount towards the rent or any other amount payable by the tenant to the landlord. In this case, no amount other than rent was due to the petitioner in the R.C.O.P/landlord. The default period as per the petition averments was from February 1998 to August 1998. On 6th April 1998 itself, a sum of Rs.1600/- came to be sent by way of Demand Draft to the petitioner in the R.C.O.P/landlord. The same was kept idle with her till 26.06.1998 and was returned along with Ex.R5 letter by Registered Post. Therefore, the non-payment of rent for the month of February and March 1998 could not be termed a willful default, as the amount sent by the Demand Draft was improperly returned after retaining the same without encashing till the fag end of June 1998. Therefore, the non-payment of rent for the month of February and March 1998 could not be termed a willful default, as the amount sent by the Demand Draft was improperly returned after retaining the same without encashing till the fag end of June 1998. It is also an admitted fact that subsequent to the issuance of notice dated 26.06.1998, the said Demand Draft/pay order dated 06.04.1998 for a sum of Rs.1600/-and another Demand Draft/pay order dated 29.06.1998 for a sum of Rs.2400/-came to be sent by the advocate of the revision petitioner/tenant to the advocate of the landlord on 11.08.1998 representing the rent for the months of February to June 1998. The same was accepted and was encashed by the petitioner in the R.C.O.P/landlord. As the landlord was holding more amount than one month's rent as advance, till the advance is reduced to an amount equal to one month's rent, the tenant shall be entitled to adjust the same towards the rent and any non-payment till such adjustment shall not be construed to be willful default. The amount sent by Demand Drafts on 11.08.1998 representing the rent for the months of February to June 1998 was Rs.4000/-, which amount could have been adjusted from the advance amount lying in the hands of the landlord. Therefore, the non-payment of rent till the end of June 1998 could not be termed a willful default. Apart from that, the amount tendered towards the rent for the months of February and March 1998 was improperly rejected by the landlord. 22. Of course the landlord claimed that even after the receipt of the above said sum of Rs.4000/-under the two demand drafts, the rent for the months of July and August 1998 was not paid. After the improper rejection of the rent sent by Pay Order for the months of February and March 1998, the revision petitioner/tenant chose to make payment of a sum of Rs.4000/- towards the rent for the period between February and June 1998. On such payment, the advance amount became adjustable towards the rent for the subsequent months, namely July and August 1998. Accordingly, the advance amount was available for adjustment towards the rent for the months of July and August 1998. On such payment, the advance amount became adjustable towards the rent for the subsequent months, namely July and August 1998. Accordingly, the advance amount was available for adjustment towards the rent for the months of July and August 1998. Hence, the period of default projected in the R.C.O.P No.1853 of 1998 as the period of willful default in payment of rent stands explained by the revision petitioner/tenant that the non-payment or belated payment of the rent for the said period would not amount to willful default. 23. PW1 admits the receipt of Demand Draft for a sum of Rs.7200/-on 26.11.1998, namely the first hearing of the R.C.O.P No.1853 of 1998. However, he would contend that after encashing the Demand Draft, retaining three months rent, the balance amount was sent back to the revision petitioner/tenant. But there is no reliable evidence to prove the same. In any event, there is clear admission by PW1 that rent for the months of July and August 1998 was received in Court and the rent for the subsequent months was also received without prejudice to the contention of the landlord in the Rent Control proceedings. The same will make it abundantly clear that the petitioner in the R.C.O.P No.1853 of 1998/landlord was all along receiving payments made by Navin Kumar on behalf of the revision petitioner/tenant and the petitioner with ulterior motive, returned the amount paid by way of Demand Draft/Pay Order representing the rent for the months of February and March 1998. The preponderance of evidence also shows that the petitioner in the R.C.O.P No.1853 of 1998/landlord chose to retain the Demand Draft till 26.06.1998 and then returned the same with the intention of proceeding against the revision petitioner/tenant for eviction on the ground of willful default. As pointed out supra, the delayed payment of rent for the entire period projected as default period will not amount to willful default. 24. As pointed out supra, the delayed payment of rent for the entire period projected as default period will not amount to willful default. 24. The learned Rent Controller and the learned Rent Control Appellate Authority failed to properly appreciate the facts and circumstances and the evidence adduced in this case and thus arrived at an erroneous conclusion that the revision petitioner/tenant had committed willful default in payment of rent for the period from February 1998 to July 1998, which led to the passing of the eviction order directing eviction of the revision petitioner on the ground of willful default under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act. Perhaps the learned Rent Controller and the learned Rent Control Appellate Authority were carried away by the fact that the landlord had also filed a petition for eviction in R.C.O.P.No.1854 of 1998 on the ground of unauthorized subletting and that the contention of the revision petitioner/tenant as to in what capacity RW1 Navin Kumar was running the business in the petition premises was not uniform and he had taken three different stands. The fact that R.C.O.P.No.1854 of 1998 for eviction on the ground of subletting was tried simultaneously with R.C.O.P.No1853 of 1998 for eviction on the ground of willful default, act of wastes and nuisance has lead to the learned Rent Controller's finding, which cannot be sustained, that the revision petitioner/tenant had committed willful default in payment of rent for the period from February 1998 to July 1998, the period of default mentioned in the eviction petition R.C.O.P.No1853 of 1998. This Court is of the considered view that the said finding is not only erroneous, but also perverse which ought to have been reversed by the Rent Control Appellate Authority, provided Appellate Authority had properly reappraised the evidence and applied the correct principles of law. The learned Rent Control Appellate Authority committed a grave error in concurring with the findings of the Rent Controller regarding the plea of willful default and hence, it is a fit case in which this Court has to interfere with the same in exercise of its power of revision. 25. The learned Rent Control Appellate Authority committed a grave error in concurring with the findings of the Rent Controller regarding the plea of willful default and hence, it is a fit case in which this Court has to interfere with the same in exercise of its power of revision. 25. For all the reasons stated above, this Court comes to the conclusion that C.R.P.No.332 of 2007 is bound to be allowed and the order of eviction passed by the Rent Controller on the ground of willful default in R.C.O.P.No.1853 of 1998, which was confirmed by the Rent Control Appellate Authority in R.C.A.No.831 of 2002, is bound to be set aside with the result that R.C.O.P.No.1853 of 1998 shall stand dismissed in entirety. C.R.P.No.331 of 2007 26. R.C.O.P.No.1854 of 1998 was filed for eviction on the ground of unauthorized subletting. According to the petitioner in the R.C.O.P/landlord, the revision petitioner/tenant having became a tenant in respect of the petition premises for his business, without carrying on the business individually or in partnership with others, chose to sublet the demised premises to one Navin Kumar, who alone is carrying on a business in the said premises in the name and style of "M/s.Darla Finance". It is the further contention of the landlord that such sub-letting to Navin Kumar for running his business was made by the revision petitioner/tenant without the consent of the landlord/petitioner in the R.C.O.P. On the basis of the said contention, the petitioner in R.C.O.P.No.1854 of 1988 prayed for an order of eviction under section 10(2)(ii) (a) of the Tamil Nadu Buildings Lease and Rent Control Act, 1960 on the ground of unauthorized subletting. 27. The revision petitioner, who was the sole respondent in the R.C.O.P/tenant, besides denying the petition plea that there was unauthorized subletting making the revision petitioner/tenant liable to be evicted on the said ground, contended that the said Navin Kumar was none other than the nephew of the revision petitioner (brother's son of the revision petitioner) and that for 5 years prior to the filing of the eviction petition, the said Navin Kumar was paying rent for the said premises for which the landlord (the petitioner in the R.C.O.P) did not raise any objection, but accepted the rent paid by Navin Kumar. However, he has not chosen to make a clear averment that Navin Kumar was a partner and the finance business was run in the name of the M/s.Darla Finance of which he and his nephew Navin Kumar were partners. On the other hand, he had raised a plea in his counter statement to the effect that since Navin Kumar was the nephew of the revision petitioner, at no point of time, the landlord (petitioner in the R.C.O.P) raised objection for the possession of the demised premises by Navin Kumar. It was his further contention that the business of the revision petitioner run in the petition premises was being looked after by Manak Chand (father of Navin Kumar) and that after Manak Chand, Navin Kumar was looking after the business in the petition premises. 28. Two types of pleas came to be made by the revision petitioner. The first one was to the effect that he alone was running the business and Navin Kumar, being his brother's son and before him Manak Chand, father of Navin Kumar, as the brother of the revision petitioner, were looking after the business of the respondent in the petition premises. In short, the first contention of the revision petitioner was that Navin Kumar was looking after the business as an authorized agent/representative of the revision petitioner. The second contention raised by the revision petitioner in his counter statement is to the effect that the business run in the petition premises was his family business and hence, as a member of the family, Navin Kumar was looking after the business. Nowhere in the counter statement filed in R.C.O.P.No.1854 of 1998, the revision petitioner took a stand that the finance business run in the petition premises was a partnership business and Manak Chand, the brother of the revision petitioner, during his life time and after his death, Navin Kumar were partners and as partners they were looking after the business. Even in the counter statement filed in the connected eviction petition, namely R.C.O.P.No1853 of 1998, the revision petitioner took a similar stand that Navin Kumar, being a member of the family of the revision petitioner, was looking after the business and it was he who paid the rent for about 5 years prior to the filing of the eviction petitions. Even in the counter statement filed in the connected eviction petition, namely R.C.O.P.No1853 of 1998, the revision petitioner took a similar stand that Navin Kumar, being a member of the family of the revision petitioner, was looking after the business and it was he who paid the rent for about 5 years prior to the filing of the eviction petitions. Quite a contrary plea had been taken in the reply notice sent by the respondent through his lawyer to the notice of the landlord dated 26.06.1998. Copy of the said notice sent to the revision petitioner and Navin Kumar by the landlord through her lawyer Mr. S.Raghunathan has been produced as Ex.P2. The reply notice dated 20.07.1998 sent by the revision petitioner to the above said notice has been produced and marked as Ex.P3. In the said reply notice, the revision petitioner contended that revision petitioner Gowtham Chand alone was carrying on the business initially in his individual capacity till 15.05.1997; that from 15.05.1997 he started doing the business in the petition premises in partnership, in the name and style of M/s.Darla Finance and that Navin Kumar, who was the brother's son of the revision petitioner, was also a partner in M/s.Darla Finance. From the said reply notice, it is clear that the revision petitioner took a stand that he was running a business in the name and style of M/s.Darla Finance in the petition premises as a partnership business and Navin Kumar was one of the partners with him. The same was given a go by in the counter statements filed in the R.C.O.Ps. He had taken a stand in the reply notice that he was running the business in the petition premises in partnership with Navin Kumar. In the counter statement, he made a deviation from the original stand and took a stand that the business was a family business and Navin Kumar, as a member of he family, was looking after the business. 29. In this regard, it is an admitted fact that the rental agreement marked as Ex.R2 in R.C.O.P.No.1853 of 1998 was executed by the landlord/petitioner in the R.C.O.Ps in favour of the revision petitioner Gowtham Chand in his individual capacity. It has also been recited therein that the tenant could carry on the business in the petition premises in his own name or in partnership with other persons. It has also been recited therein that the tenant could carry on the business in the petition premises in his own name or in partnership with other persons. Because of the said enabling clause, which recites that the revision petitioner could do the business in the petition premises in his own name or in partnership with other persons, the revision petitioner seems to have taken a stand in the reply notice that though previously the business was solely run by him, from 15.05.1997 it was run as a partnership business in which Navin Kumar was a partner. In the counter statement it has been stated that the business was previously looked after by Manak Chand, the father of Navin Kumar and subsequently, it came to be looked after by Navin Kumar. It is obvious from the Newspaper cutting produced as Ex.R2 that Manak Chand died in the year 1991. In the reply notice it has been stated that the revision petitioner was doing the business himself upto 15.05.1997. But, from the newspaper cutting, it is seen that Manak Chand, father of Navin Kumar, was murdered in the petition premises. The newspaper report will show that Manak Chand was actually doing the business and on a holiday, namely Vinayagar Chathurthi, pursuant to the invitation of the miscreants, he went to the shop and opened it to be murdered by the miscreants within a short time thereafter. Perhaps the same was the reason why the revision petitioner had changed his stand in the counter statement from the one taken in the reply notice. 30. Of course, PW1 would admit that the rent was paid by Navin Kumar and the same was accepted by the landlord as payment on behalf of the revision petitioner and receipts were issued in the name of the revision petitioner. In short, the testimony of PW1 is to the effect that the rent was paid by Navin Kumar as an agent/representative of the revision petitioner and the same was accepted as payment by the revision petitioner. If at all the business was run as a partnership business as claimed in the reply notice, the revision petitioner could have very well produced rental receipts, if any, issued in the name of the partnership firm. If at all the business was run as a partnership business as claimed in the reply notice, the revision petitioner could have very well produced rental receipts, if any, issued in the name of the partnership firm. The fact that no such rental receipt has been produced will probablize the case of the landlord that Navin Kumar was deputed as an agent / representative by the revision petitioner to make payment of the rent on behalf of the revision petitioner and not as a partner in partnership firm. The evidence of PW1 will show that though the revision petitioner had sublet the property to his brother Manak Chand, since the fact of such subletting was not known to the landlord, no case was filed for eviction on the ground of subletting in 1991 when news of the murder of Manak Chand in the petition premises was published. 31. As against such clear evidence adduced on the side of the landlord, there had been a paradigm shift in the stand taken by the revision petitioner when evidence was adduced through Navin Kumar as RW1. Contrary to the stand taken in the reply notice that he was a partner with the revision petitioner in the finance business run in the petition premises and contrary to the stand taken in the reply notice marked as Ex.P3 that the business was run individually by the revision petitioner till 15.05.1997 and only from 15.05.1997, the business was converted into a partnership business in which RW1 Navin Kumar became partner, RW1 ventured to state in his evidence that though the petition premises was taken for rent by his junior paternal uncle from 1982 itself, it was his father Manak Chand, who was in possession and enjoyment of the petition premises as tenant and after his death on 12.09.1991, RW1 Navin Kumar continued the business individually. He has not supported either the case of partnership as projected in the reply notice marked as Ex.P3 or the case of family business being looked after by Navin Kumar as one of the members of the family of the revision petitioner. He has not supported either the case of partnership as projected in the reply notice marked as Ex.P3 or the case of family business being looked after by Navin Kumar as one of the members of the family of the revision petitioner. On the other hand, he has chosen to take a stand in his evidence that though the petition premises came to be taken on rent by the revision petitioner, it was his father who took possession and was doing business in the petition premises from 1982 onwards and that after his death, he (RW1) continued to possess the petition premises and do the business. When Ex.P2 notice came to be issued stating that the revision petitioner had unauthorizedly sublet the property to RW1-Navin Kumar, they chose to issue Ex.P3 reply notice contending that Navin Kumar was a partner in the business from 15.05.1997. As they were not able to produce any document to show that the business was run as a partnership business and the revision petitioner was also a partner in the firm, the revision petitioner gave a go by to the said stand taken in the reply notice and raised a different plea in the counter statement to the effect that the business was a family business of the revision petitioner and RW1 Navin Kumar, being the brother's son of the revision petitioner, was looking after the business as a member of the family of the revision petitioner. But, subsequently during the course of enquiry, both the above said pleas were given a go by and RW1 chose to take a stand in his evidence that though the revision petitioner took the petition premises for rent in 1982, it was his father of RW1 who did the business in the petition premises and after the death of Manak Chand on 12.09.1991, RW1-Navin Kumar continued the business as his own and that the landlord recognized Manak Chand and Navin Kumar as tenants by accepting rent from them. As the said evidence is contrary to the pleadings, the learned Rent Controller as well as the Rent Control Appellate Authority arrived at a correct conclusion and rendered a concurrent finding to the effect that the revision petitioner had sublet the premises to RW1 Navin Kumar. As the said evidence is contrary to the pleadings, the learned Rent Controller as well as the Rent Control Appellate Authority arrived at a correct conclusion and rendered a concurrent finding to the effect that the revision petitioner had sublet the premises to RW1 Navin Kumar. Section 10(2)(ii) (a) of the Tamil Nadu Buildings Lease and Rent Control Act states that the landlord can seek eviction of the tenant on the ground of subletting of the entire building or any portion thereof if the lease does not confer on the tenant any right to sublet. The rental agreement contains a clause that the revision petitioner could do business in the petition premises in his own name or in partnership with other persons. Apart from that, there is no clause in the agreement permitting the tenant (the revision petitioner) to sublet the petition premises. It is also not the case of the revision petitioner that subsequent to the inception of tenancy, he got consent of the landlord in writing for subletting. However, an attempt was made during the course of leading evidence to show that there was an attornment of tenancy in favour of RW1-Navin Kumar. But such a stand was stoutly denied and disputed by the landlord and PW1 examined on the side of the landlord. In addition, such a stand sought to be taken during the course of enquiry is quite untenable in the light of the fact that contrary pleas are sought to be taken. The revision petitioner took a stand in the reply statement dated 26.07.1998 marked as Ex.P3 that he himself was doing the business in the petition premises upto 15.05.1997 and the business was converted into a partnership business from 15.05.1997 in which RW1 Navin Kumar became partner. A comparison of the said stands taken in the reply notice and the evidence of RW1 will make it clear that the revision petitioner took conflicting and confusing stands, which really have betrayed him of his act of unauthorized subletting. A comparison of the said stands taken in the reply notice and the evidence of RW1 will make it clear that the revision petitioner took conflicting and confusing stands, which really have betrayed him of his act of unauthorized subletting. The learned Rent Controller, on a proper appreciation of evidence and the learned Rent Control Appellate Authority, on a proper re-appreciation of evidence, came to a correct conclusion that the landlord was able to prove unauthorized subletting and that on the ground of unauthorized subletting, the revision petitioner was liable to be evicted under Section 10(2)(ii) (a) of the Tamil Nadu Buildings Lease and Rent Control Act, 1960. 32. An attempt was sought to be made to contend that since eviction was sought for on the ground of subletting, the alleged subtenant Navin Kumar should have been made a party respondent and since he was not made a party respondent in the R.C.O.P, the eviction petition was bad for non-joinder of necessary party. Nowhere in Section 10 it has been stated that in a petition for eviction on the ground of unauthorized subletting, the subtenant should be made a party respondent. The said section does not state that even though the main tenant might have been permitted to sublet, the subtenants should be made a party to the eviction petition filed against the main tenant on any one of the grounds mentioned in Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. However Section 26 of the Act provides as follows: “26. Order under the Act to be binding on sub-tenants. - Any order for the eviction of a tenant passed under this Act shall be binding on all sub-tenants who were made parties in the application for eviction but any person who became a sub-tenant after the date of the application for eviction shall be bound by the order of eviction and be evicted as if he were a party to the proceedings, provided that such order was not obtained by fraud or collusion.” A reading of the said provision may seem to make it possible to contend that subtenants should be made parties in the petition for eviction and that the exemption is only in respect of persons who become subtenant after the date of filling of the eviction petition. The said section has been interpreted in such a way that it is intended to protect the subtenants from orders obtained on collusion between the landlord and the main tenant. In Abdul Jameel v. Simpson and Machonochy Ltd. reported in 1967 (1) MLJ 337 , it has been held that the landlord has a right to evict the lessee and recover possession of the entire premises and the sub-lessee will have no independent right or superior right on the basis of sub-lease in his favour. However, in the said case itself, it has been held that the statutory right of protection given to the subtenant is limited to the derivation of the right against his own landlord, namely the main tenant and it shall not extend any further. In K.K.Krishnan Vs. M.K.Vijaya Ragavan reported in 1980 (4) SCC 88 , the Hon'ble Supreme Court held that the tenant, whose tenancy was secure and protected by the rights conferred by the Act, should alone be entitled to such security and protection and that the tenant should not be allowed to make profit by the protection given to him by subletting the premises and extending the protection to others besides himself, unless the landlord, by his own act, had agreed for such a course. In Parthasarathi Chetti Vs. Chitrapillai reported in (1967) 1 MLJ 83 it has been held that Section 26 of the Act only enables the subtenant to make a claim on the ground of fraud and collusion when the eviction order obtained against the main tenant is sought to be used against him for his eviction. It has been stated therein that while the section seeks to ensure that the subtenants are not evicted straight away in execution by snap orders of eviction obtained behind their back, it saves the landlord from prolonged litigation at the stage of execution. 33. The decisions of this Court and the Apex Court indicate the position that whenever a subtenant is made a party to the eviction proceedings filed against the main tenant, the eviction order can be straight away executed against them and that in case the eviction order against the main tenant was obtained without making the subtenant a party respondent, he shall have a right to obstruct execution against him contending that the order of eviction was obtained playing a fraud or collusively. In such an event, the Executing Court has to decide whether such an obstruction has to be removed and the eviction order is to be executed against him. It is also obvious that even such a right to obstruct will not be available to a person who get inducted as a subtenant after the filing of the eviction petition. Therefore, there cannot be any scope for contending that the eviction petition was bad for non-joinder of necessary parties since RW1, the subtenant, was not made a party respondent and the eviction order was obtained only against the revision petitioner/the main tenant. 34. For all the reasons stated above, this Court comes to the conclusion that the well considered and concurrent finding of the learned Rent Controller and Rent Control Appellate Authority holding the revision petitioner liable to be evicted on the ground of subletting under Section 10 (2)(ii) (a) of the Tamil Nadu Buildings Lease and Rent Control Act, 1960 does not deserve any interference. There is no merit in the revision and that the same deserves to be dismissed. In the result, 1) C.R.P.No.331 of 2007 is dismissed and the eviction order made in R.C.O.P.No1854 of 1998 on the ground of unauthorized subletting under Section 10(2)(ii) (a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 passed by the Rent Controller by order dated 26.07.2002, which was confirmed by the Rent Control Appellate Authority in its decree dated 10.04.2006 made in R.C.A.No.830 of 2002, shall stand confirmed. Two months time is granted for vacating and handing over possession, provided the revision petitioner files an affidavit of undertaking within 15 days from the date of this order, undertaking to vacate and hand over vacant possession of the petition premises to the respondent/landlord and to pay the rent till the date of vacating. In case affidavit of undertaking is not filed within 15 days, then order of eviction shall become executable forthwith despite the fact that the time granted above has not expired. 2) C.R.P.No.332 of 2007 is allowed and the order of eviction passed by the Rent Controller on the ground of willful default in R.C.O.P.No.1853 of 1998, which was confirmed by the Rent Control Appellate Authority in R.C.A.No.831 of 2002 is set aside with the result that R.C.O.P.No.1853 of 1998 shall stand dismissed in entirety.