Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 3104 (MAD)

Vellingiri v. T. S. Ravendran

2014-09-04

S.VIMALA

body2014
Judgment 1. The tenant is the Revision Petitioner herein. 1.1. The original landlords / petitioners 1 to 5 filed an Eviction Petition, under Section 14 (1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, (hereinafter will be referred to as "the Act") (demolition and reconstruction) and under Section 10 (2) (1) (willful default in the payment of rents) of the Act, seeking eviction of the tenant (respondent therein) from the rented premises. 1.2. The said eviction petition was allowed. The eviction on the ground of demolition and reconstruction was declined. But, eviction on the ground of willful default in the payment of rents was ordered. 1.3. Challenging the same, the tenant has filed RCA No.2 of 2005, which ended in dismissal. As against the same, this Civil Revision Petition has been filed. 2. The first contention of the learned counsel for the revision petitioner / tenant is that, there is no default at all in the payment of rents, much less any wilful default, and therefore, there is no cause of action for the petition and hence, the petition is not maintainable. The learned counsel has pointed out that the tenant has already paid a sum of Rs.10,000/-, as advance, and the tenant is entitled to the deduction of the rent from the advance amount and if that is taken into account, there is no arrears of rents to be paid and therefore, there is no wilful default in payment of rents. 3. The learned Rent Controller, in paragraph 11 of the judgment, has pointed out that the tenant has not paid the rent: (a) after the receipt of Ex.A-1-notice; (b) after entering appearance before the court on 14.11.2000 through lawyer ; (c) from April 2000 to June 2000 and (d) during the pendency of the RCOP proceedings. 4. So far as the judgment of the learned Rent Control Appellate Authority is concerned, while discussing issue No.2, the learned Appellate Authority has discussed the denial of title made by the tenant during cross-examination of P.Ws.1 and 2 and in the evidence of the tenant also; the examination of R.W.2 which speaks about the issuance of Ex.R-1-rent reciept, which stood in the name of the temple and not in the name of the landlord. The learned appellate authority has considered the fact that the tenant has admitted the relationship as the tenant and landlords in O.S.No.82 of 2000 and also in the reply notice, under Ex.A-3 and despite, the admissions made at several stages, at a later point of time, the tenant has denied the relationship of landlords and tenant, only with an intention not to pay the rents to the landlords and hence, the tenant is liable to be evicted. 5. There is no answer for the findings given by the learned Rent Controller as well as by the learned Rent Control Appellate Authority. When the learned Rent Controller has pointed out the specific period and the specific event during which there is failure in payment of rent, it is for the tenant to furnish a calculation, regarding arrears of rent, covering those periods. It is not enough to merely contend that there was advance amount left with the landlords, which is for the benefit of the tenant, and therefore, there is no wilful default. The tenant is expected to satisfy the Court that there was no wilful default for the period during which there is an alleged default in payment of rent. 5.1. Moreover, when there is an allegation that the tenant has chosen to deny the title of the landlords only for the purpose of evading payment of the rent, then it is for the tenant to show that there is bona fides in the denial of the title. When the bona fide is not shown, then the inference is that, the denial of title itself was towards denial of payment of rent. Under such circumstances, the finding of the Tribunal below that there is willful default in the payment of rent cannot be said to be unreasonable. 6. The another important contention of the learned counsel for the Revision Petitioner / tenant is that the landlords had sold the property on 25.04.2010, and as the transferee landlords are not entitled to collect the arrears of rent, the tenant cannot be evicted on the ground of wilful default in the payment of rent by the transferee landlord. 6.1. 6. The another important contention of the learned counsel for the Revision Petitioner / tenant is that the landlords had sold the property on 25.04.2010, and as the transferee landlords are not entitled to collect the arrears of rent, the tenant cannot be evicted on the ground of wilful default in the payment of rent by the transferee landlord. 6.1. The contention of the tenant is two fold .the first is that the tenant has already paid a sum of Rs.10,000/-, as advance, and the tenant is entitled to the deduction of the rent from the advance amount and if that is taken into account, there is no arrears of rents to be paid and therefore, there is no wilful default in payment of rents. 6.2. The second one is that the arrears of rent, after the transfer of property, becomes a debt, of which, the remedy open to the transferee landlord is to file a suit to collect the debt and not to file petition for eviction. In support of these two contentions, the following decisions are relied upon and the relevant dictum laid down therein are extracted for convenient reference:- (i) 2013 (4) CTC 574 : (2013) 7 MLJ 49 (M.K.Selvaraj and M.K.Jayakodi v. Hameed Fathima Ghani): "The Apex Court after considering various aspects of the matter and also the provisions under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 came to the conclusion that excess amount available with the landlord is only for the benefit of the tenant and the liability to refund the same to the tenant being immediate unless the tenant exercises the option to get it adjusted otherwise. It is further held therein that the provision of adjustment of the excess amount at the option of the tenant clearly visualises its adjustment towards the rent due from the tenant since the jural relationship envisages payment only of rent by the tenant to the landlord towards which it can be adjusted. It is further held therein that the provision of adjustment of the excess amount at the option of the tenant clearly visualises its adjustment towards the rent due from the tenant since the jural relationship envisages payment only of rent by the tenant to the landlord towards which it can be adjusted. After having observed so, the Hon'ble Supreme Court at the penultimate paragraph has thus concluded that the landlord was bound to immediately refund that excess amount even before the arrears accrued and he not having made the refund was bound to adjust it towards the rent due from the tenant." (ii) 1997-1-L.W. 527 (S.V.Periasamy & Sons and others v. R.Senthil Kumar and Others):- "A reading of the document shows that from the date of sale, first respondent has ceased to be the owner and all his rights over the property are conveyed to respondents 2 and 3. There is no recital enabling respondents 2 and 3 to collect the rent which has already become due to the previous landlord, i.e., first respondent. The said deed only says that the right, title and interest over the property of the first respondent are transferred to respondents 2 and 3. ..... In view of the settled position of law, the cause of action on the basis of which first respondent filed eviction petition no more survives. The cause of action is that the tenant committed wilful default in paying the rent. On that date, the first respondent was entitled to collect the amount as arrears of rent. Once he ceased to be the landlord, he can recover the amount only as a debt, and, by the time eviction order was passed, he ceased to be a landlord. Right as landlord, which entitles to sue for eviction, is transferred to respondents 2 and 3" (iii) 1995 (5) SCC 261: AIR 1995 SC 448 (N.M.Engineer and Others v. Narendra Singh Virdi and another): "21. .... What is important to be noted is that the lease deed was executed on 8.6.67 in favour of the appellant. In that lease deed, no where is any assignment of rent. .... What is important to be noted is that the lease deed was executed on 8.6.67 in favour of the appellant. In that lease deed, no where is any assignment of rent. Section 109 of the Transfer of Property Act reads as under: If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him: Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again not transferee. 22. In view of the proviso, the appellant-assignee is not entitled to rent before the assignment." (iv) 2011 (5) CTC 486 (Alaudin and Safya Kader Moideen v. A.Sathar): "In the case of A. Jaganathan Vs. S. Kalyani reported in (2007) 6 M.L.J. 222 , a learned single Judge of this Court, after careful consideration of the relevant provisions of law, held that in a case of sale of the property by the landlord, pending eviction proceeding on the ground of wilful default, the cause of action originally available to the landlord will not survive and the order of eviction in favour of the transferee cannot be sustained." .... From a bare reading of the aforesaid provision it is manifest that if the lessor transfers the property leased, or any part thereof, the transferee in the absence of any contract to the contrary, shall possess all the rights of the lessor as to the property or part thereof transferred so long as he is the owner of it. The proviso to this section makes it clear that the assignee has the right to receive rent from the tenant, in the absence of any contract to the contrary. The proviso to this section makes it clear that the assignee has the right to receive rent from the tenant, in the absence of any contract to the contrary. In other words, on and from the date of transfer of the property leased, the transferee steps into the shoes of the landlord and he becomes entitled to receive the rent from the tenant, who is in possession of the leased property. However, so far as arrears of rent due and payable by the tenant before the transfer was effected in favour of the transferee is concerned, in the absence of any contract to that effect, the transferee cannot be entitled to recover the rent from the tenant". (v) 2012 (5) CTC 283 : 2012-5-L.W.242 : 2012 (2) RCR (Rent) 381 (Lalitha and K.P.Sadhanandan v. L.Thangaraj): "(iii) The decision of this Court reported in (2000) II M.L.J.202 MAHALINGAM V. PICHAIAMMAL, certain excerpts from it would run thus: "12. In view of the law declared by the Honourable Supreme Court, it has to be held that landlady has no cause of action to file application for eviction on the ground that tenant has committed default in paying rent. As stated earlier, landlady has taken advance of 60 months rent, though law permits to take advance of only one month rent. Excess advance is liable to be adjusted in the rent payable by tenant as and when becomes due even without any demand from tenant. If that be so, landlord cannot expect payment of rent for the alleged period of default. If landlord cannot demand any rent for that period, notice issued by her intimating default also will be invalid and of no legal consequence. On the date when notice was issued, no rent was due nor payable by tenant. If notice issued is invalid merely because tenant did not pay rent within a period of two months, he also cannot be deemed as defaulter. Appellate authority has not taken into consideration the above legal position while confirming the order of eviction". 6.3. The dictum laid down that the rent will be recovered only as a debt does not arise for consideration as the landlord has not filed the petition for collection of arrears of rent. The landlords are seeking eviction of the tenant on the ground that there is wilful default in the payment of rent. 6.3. The dictum laid down that the rent will be recovered only as a debt does not arise for consideration as the landlord has not filed the petition for collection of arrears of rent. The landlords are seeking eviction of the tenant on the ground that there is wilful default in the payment of rent. So far as the claim that excess amount of advance is available in the hands of the landlords is concerned, this claim cannot be accepted as no comprehensive account has been produced, which would show that right from the day when the tenant entered into possession of the property as a tenant, and till the date of filing of the petition and thereafter, there is no default and the amount of advance would satisfy the claim of the landlords for rent. 6.4. Per contra, contenting that despite transfer of property, the erstwhile landlords are entitled to an order of eviction on proof of the wilful default in the payment of rents, which was the right available as on the date of filing of the petition and that the benefit of order of eviction would enure for the benefit of the transferee landlord, the learned counsel for the respondents / landlords relied upon the following decisions: (i) 1967 (80) L.W. 514 (Thiruvengadaswamy Naidu v. Nachiappan): "From the trend of opinion, it seems to me to be clear that whenever there is a personal need or requirement of the landlord such as owner's occupation, his legal representatives can continue the proceeding, and that if there is any right or interest involved in the property then his legal representatives or successors-in-interest are also entitled to continue the proceeding initiated by the landlord under the provisions of the Rent Control Act." (ii) 1994 L.W. 435 (Devarajan, N. v. D.V.Muniratnam): "This decision also recognises that the purchaser of the property from a person to whom the rents had not been paid by the tenant can avail himself of the default of the tenant in the payment of such rents to the predecessor-in-title. "13. .... the respondent has also the right to take advantage of the order of eviction secured by his predecessor in interest, especially when the purchase by the respondent has not in any manner been disputed by the petitioner and it is not the case of the petitioner that there was any contract to the contrary. "13. .... the respondent has also the right to take advantage of the order of eviction secured by his predecessor in interest, especially when the purchase by the respondent has not in any manner been disputed by the petitioner and it is not the case of the petitioner that there was any contract to the contrary. The order of the Court below is, therefore, correct and cannot be in any manner assailed, nor does it suffer from any illegality or irregularity in the exercise of jurisdiction...." (iii) 1995 Supp (4) SCC 398 (Azra Abdula v. Asiatic Oxygen and Aceylene Co. Ltd.,) "4. .....The fact that during the proceedings the property in question was under a deed of gift transferred by the mother to the daughter does not on the facts of the case in any manner affect the cause of action pursued by the present landlord. She is entitled to urge all contentions open to the landlord in respect of her application for ejectment" (iv) 1997 (5) SCC 329 (Mahendra Raghunathadas Gupta v. Vishvanath Bhikaji Mogul and Others): "Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights. Since attornment by the tenant is not required a notice under Section 106 in terms of the old terms of lease by the transferor landlord would be proper and so also the suit for ejectment." (v) 2001 (10) SCC 715 (Hukam Chand v. Om Chand and Others): "9. It was also open to such transferee pendente lite to seek leave of the court for coming on record. The Full Bench has opined the Sukhdevo Das Case that such assignment or devolution of right during the pendency of the litigation did not arrest the progress of the litigation. We agree with the view taken by the Full Bench. In our opinion, the only exception is when the transfer of property forming the subject matter of the suit, pendente lite, results in wiping out the cause of action itself or deprives the transferee of the right to decree, such as where the cause of action was personal to the original plaintiff. In our opinion, the only exception is when the transfer of property forming the subject matter of the suit, pendente lite, results in wiping out the cause of action itself or deprives the transferee of the right to decree, such as where the cause of action was personal to the original plaintiff. Otherwise , the only result is that such transferee steps into the shoes of his predecessor-in-interest and remains bound by the result of the suit and would not , at a later stage, be permitted to raise the plea that he was not bound by the result of the litigation because he was not brought on record of the suit and impleaded as a party. The second contention of the learned counsel for the appellant also fails." (vi) (2010) 6 SCC 257 (Speedline Agencies v. T.Stanles & Co. Ltd.,): "25. Particularly in matters governed by the Rent Acts to take into account subsequent events would inflict hardship to landlords, in a case like the present one. In this context, it was held in para 9 of Joginder Pal vs. Naval Kishore Behal (2002) 5 SCC 397 that:- "9. The rent control legislations are heavily loaded in favour of the tenants treating them as weaker sections of the society requiring legislative protection against exploitation and unscrupulous devices of greedy landlords. The legislative intent has to be respected by the courts while interpreting the laws. But it is being uncharitable to legislatures if they are attributed with an intention that they lean only in favour of the tenants and while being fair to the tenants, go to the extent of being unfair to the landlords. The legislature is fair to the tenants and to the landlords – both......" ..... 27. In the present case, subsequent event of amalgamation of a company took place during the pendency of the revision in the High Court. Though, subsequent events which have occurred during the pendency of a revision petition in the High Court or the matter was pending before this Court, have been taken into consideration by this Court in some cases, the question as to the difference between the exercise of jurisdiction in appeal and revision was not argued or decided in those cases. ..... 31. Further, the provisions of Rent Control Act should not be so construed as to frustrate and defeat the legislation. ..... 31. Further, the provisions of Rent Control Act should not be so construed as to frustrate and defeat the legislation. If in a case of landlord requiring the premises for its own use, to amalgamate with another company and expands its business, the rent control legislation may clash with the provisions of the Companies Act. The Companies Act and the Rent Control Act have to be harmoniously interpreted and not to be so interpreted as to result in the one Act destroying a right under the other Act. .... 40. The object of the Act is to prevent unreasonable eviction of the tenant in occupation and to control rents. Similarly, when landlord wants the property for its own purpose, it takes into account the fact of the landlord's occupation of other properties and not its ownership of other properties which does not in occupation. The Act permits eviction on reasonable grounds as provided for in the Act. It may be that there may be cases where it would be reasonable to evict the tenant, but that requirement may not strictly fall in any one of the provisions of Section 10 of the Act to entitle the landlord to evict the tenant. Section 29 of the Act therefore, enables the Government to grant exemption of the building in such cases so that the landlord may be entitled to evict the tenant under the ordinary remedy of suit. 41. The present case being one where the order of eviction is eminently just, fair and equitable as ordered by two authorities and confirmed by the High Court, we do not find any valid ground for interference, on the other hand, we are in agreement with the conclusion arrived at by the authorities as well as the High Court. Taking into consideration the appellant-tenant is continuing in the premises for more than four decades, we grant time for handing over possession till 31.12.2010 on usual condition of filing an undertaking within a period of four weeks." (vii) 2011-2-L.W. 148 (M/s. Sri Annapurna Sri Gowrishankar Hotels Pvt. Ltd., v. N.Andal & Others): "9. Taking into consideration the appellant-tenant is continuing in the premises for more than four decades, we grant time for handing over possession till 31.12.2010 on usual condition of filing an undertaking within a period of four weeks." (vii) 2011-2-L.W. 148 (M/s. Sri Annapurna Sri Gowrishankar Hotels Pvt. Ltd., v. N.Andal & Others): "9. On the other hand, when wilful default was committed by the tenant or when the tenant has sublet the premises without consent of the landlord or committed acts of waste, by reason of the conduct of the tenant, a cause of action was made available to the landlord to file the petition for eviction and it cannot be stated that such cause of action is personal to the landlord. In other words, by reason of the conduct of the tenant, he incurs the disqualification of continuing in the premises as a tenant and when eviction petition is field on the ground of misdeeds committed by the tenant, the eviction petition can be continued and prosecuted by the subsequent landlord. Therefore, when eviction is sought on the ground of wilful default in payment of rent and also on the ground of subletting, the subsequent landlord is entitled to prosecute the case." 6.5. The decisions relied upon by the learned counsel for the respondents / landlords, which are rendered by the Hon'ble Supreme Court are binding and it takes precedence over the decisions rendered by the High Court. In one of the decisions of the Hon'ble Supreme Court relied upon by the tenant / petitioner, it has been held that the assignee is not entitled to rent before the assignment. It is not a case where the assignee / transferee-landlord is seeking for arrears of rent, neither the transferor landlord too. The only claim is eviction of the tenant on the ground that there is wilful default in the payment of the rent. Therefore, the decision relied upon by the learned counsel for the tenant will not help the tenant in establishing his case. 6.6. The decisions, relied on, clearly goes to show that the transferees / landlords are entitled to the benefit of an order of eviction already passed in favour of the transferors / landlords. Therefore, the order of eviction, as concurrently given by the Courts below, would enure for the benefit of the transferors / landlords. 6.7. 6.6. The decisions, relied on, clearly goes to show that the transferees / landlords are entitled to the benefit of an order of eviction already passed in favour of the transferors / landlords. Therefore, the order of eviction, as concurrently given by the Courts below, would enure for the benefit of the transferors / landlords. 6.7. It is not a case, where mere "No-arrears of rent" will prove no default in the payment of rents. The conduct of the tenant during the pendency of the proceedings, as pointed out by the courts below, would clearly go to show that the tenant has wilfully defaulted in the payment of rents. 7. In the result, this Civil Revision Petition is dismissed. The petitioner / tenant shall vacate the premises within a period of three months from today. No costs. Consequently, the connected MP is closed.