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2014 DIGILAW 4394 (MAD)

Vishnuvarathan v. K. C. Sivakaran

2014-11-24

K.KALYANASUNDARAM

body2014
ORDER This revision is directed against the order passed in RCA.No.13 of 2012 by the Rent Control Appellate Authority/Principal Sub Court, Erode confirming the order passed by the Rent Controller/Principal District Munsif, Erode in RCOP.No.17 of 2005. 2. The petitioner is the tenant. The respondent had instituted a case in RCOP.No.17 of 2010 against the petitioner seeking eviction on the ground of willful default and sub-lease. The respondent/landlord has alleged in the petition that the tenant took the petition premises for a monthly rent of Rs.1500/- from his father namely Chandrasekaran and after his demise continues to pay rent to him and whenever the tenant pays rent the landlord issued receipt. It is further contended that the tenant failed to pay rent for the month of February 2010 to August 2010. 3. The landlord has further alleged that the tenant taking advantage of the landlord working at Chennai, inducted the second petitioner Ms.Veni as sub-tenant in the petition mentioned property and the main tenant was doing business at No.13, Venkatachalam Chetty Street, Erode and as such the sub-tenant alone is in possession and enjoyment of the petition premises; that the main tenant allowed several other persons for selling textile goods in front of the tenant premises; that the main tenant has locked out toilet rooms available in the building and kept the keys in his custody thereby prevented the other tenants in the shopping complex from using the toilet. Due to the activities of the main tenant the other tenants suffered much. 4. On 10.02.2010, the landlord questioned the illegal activities and also demanded the tenants to vacate the premises and the main tenant agreed to vacate the premises on or before 28.02.2010. Since the tenants failed to pay rent and failed to keep up the assurance, the landlord issued a notice on 28.08.2010. Despite receipt of notice, the tenants failed to pay the arrears of rent and also to vacate and hand over the petition premises. Hence the petition. 5. The tenant resisted the petition contending that he took the petition premises from the father of the landlord on a monthly rent of Rs.1000/- and paid Rs.1,00,000/- towards advance. The said lease was oral and after one year, the father of the landlord demanded more additional rents or otherwise demanded Rs.1,00,000/- as additional advance, so the main tenant paid Rs.1,00,000/- as additional advance. The said lease was oral and after one year, the father of the landlord demanded more additional rents or otherwise demanded Rs.1,00,000/- as additional advance, so the main tenant paid Rs.1,00,000/- as additional advance. It is further stated that after two years the father of the landlord Mr.Chandrasekar demanded more additional rent and advance and he received Rs.2,00,000/- and finally in the year 2007 the said Chandrasekaran demanded Rs10,000/- as monthly rent and Rs.2,00,000/- as additional advance. The main tenant was not agreeable for the said sudden rise and after compromise the rent was fixed for Rs.5,000/- and totally Rs5,00,000/- advance and also agreed not to raise rent and advance for a period of another 10 years. 6. The tenant has denied the sub-lease and stated that the second respondent in the eviction petition was working as Sales Manager in his concern and also denied the allegation of causing nuisance by locking the toilets. The tenant has further stated that he sent a reply dated 22.09.2010 along with a demand draft for the arrears of rent for a sum of Rs.30,000/-, but the same was returned as unclaimed and the tenant is ready to vacate the building after receiving the advance amount of Rs.5,00,000/- with 12 percent interest per annum. 7. The parties adduced oral and documentary evidence to substantiate their rival contentions. The learned Rent Controller ordered eviction on both the grounds. Aggrieved by the order, the tenant filed an appeal in RCA.No.13 of 2012. The learned Appellate Authority confirmed the judgment of the trial court. Against the concurrent finding, the tenant has filed the present revision. 8. Heard Mr. R.Subramaniam learned counsel on behalf of M/s. Ma.P.Thangavel learned counsel for the petitioner and Mr. S.Sridhar learned counsel for the respondent and perused the records. 9. The learned Appellate Authority confirmed the judgment of the trial court. Against the concurrent finding, the tenant has filed the present revision. 8. Heard Mr. R.Subramaniam learned counsel on behalf of M/s. Ma.P.Thangavel learned counsel for the petitioner and Mr. S.Sridhar learned counsel for the respondent and perused the records. 9. The learned counsel submitted that the landlord issued notice on 28.08.2010 alleging arrears of rent, for which the tenant sent a reply on 22.09.2010 along with demand draft, but the landlord has deliberately returned the reply and filed the eviction petition in 05.10.2010; that as per the proviso to Section 10(2)(1) of Tamil Nadu Building (Lease and Rent Control) Act, the landlord has not waited for two months period; that the tenant has paid Rs.5,00,000/- as advance and as per Section 7 of the Act, the landlord is entitled to retain one month rent and he has to adjust advance amount towards the rents; that there is no specific averment that the main tenant has parted with actual and physical possession to the sub tenant and on the other hand the pleading of the landlord would show that the main tenant is in actual possession of the tenanted premises. 10. The learned counsel further submitted that in the Erode Town, every Tuesday the trader are selling the goods in front of the shops on the road side and the traders on weekly shandy cannot be treated as sub-tenants; that the tenant has proved the payment of advance amount of Rs.5,00,000/- through RW 1 and there is no cross-examination on the aspect by the landlord; that PW 1 is only a power agent and he cannot depose on behalf of the landlord for the transactions between the landlord and tenant, as he had no knowledge about the transaction. The learned counsel has relied upon the judgements reported in 2005 2 SCC 217 ; 2003 (1) MLJ 225 ; 2014 2 CTC and 2009 3 CTC 248 . 11. Per contra the learned counsel for the respondent submitted that the landlord has specifically pleaded about the willful default committed by the tenant and the act of sub-lease in the eviction petition. 11. Per contra the learned counsel for the respondent submitted that the landlord has specifically pleaded about the willful default committed by the tenant and the act of sub-lease in the eviction petition. The tenant in paragraph 4 of the counter alleged that he paid advance of Rs.5,00,000/- on various occasions, but the tenant has not stated about the dates and mode of payment; that PW 1 in his evidence has categorically denied the payment of advance amount of Rs.5,00,000/-; and that the tenant has committed default from February 2010 to August 2010, but he has not sent the demand draft to the correct address of the landlord. It is further submitted that even if the demand draft was not received by the landlord, the tenant ought to have taken proceedings under Section 8(5) of the Tamil Nadu Building Lease and Rent Control Act; and that the only reason given by the tenant for non-payment of rents is that some unidentified persons have demanded rent from the tenant, if that is true then there is no impediment for the tenant to deposit the rent as provided under Section 8(5) of the Act. 12. The learned counsel further contended that the tenant filed the petition under Section 8(5) of the Act long after the filing of the eviction petition raising the same allegation of payment of advance of Rs.5,00,000/-. In the counter the landlord has specifically denied about the receipt of Rs.5,00,000/- as advance. The learned Rent Controller rejected the case of the tenant, but the tenant has not filed any appeal, so the finding of the rent controller in the Section 8(5) petition has become final. It is contended that the tenant admittedly did not deposit the rent for defaulted period of 8 months, but deposited the amount only in compliance of the order of this court dated 26.08.2013. It is further submitted by the learned counsel that the original tenant has leased out the property to the second respondent in the eviction petition. Though the original tenant pleaded that the sub tenant was working as Sales Manager in his concern, he has not produced any evidence to show that she was his employee and the main tenant himself is carrying on business in the tenanted premises. Though the original tenant pleaded that the sub tenant was working as Sales Manager in his concern, he has not produced any evidence to show that she was his employee and the main tenant himself is carrying on business in the tenanted premises. The learned counsel vehemently contended that the tenant, who was engaged in the business of textile could have produced, the sales bills, income tax returns and other documents to substantiate his case. 13. It is the contention of the learned counsel for the respondent that the explanation to Section 10(2)(1) does not contemplate that before the default could be construed as willful, two months notice is mandatory in all the cases and that the Rent Controller and Appellate Authority on appreciation of evidences have concurrently held that the tenant has committed the willful default and also sublet the premises and ordered eviction, so this court in exercising revision jurisdiction under Section 25 of the Tamil Nadu Building Lease and Rent Control Act cannot re-appreciate the evidence to come to a different conclusion. The learned counsel relied on the judgments reported in. 2014 (5) CTC 217 in support of his contentions. 14. In Vasavambal vs. Chenniappa Gounderreported, this court following the unreported judgment in CRP.No.406 of 1978 held that the explanation to Section 10(2)(1) is not exhaustive of all cases of willful default and it is unnecessary for a landlord to issue a notice to a tenant giving him two months clear time before seeking eviction. Hence the contention of the petitioner that two months notice as per explanation is mandatory cannot be countenanced. 15. This court in R.Angappan vs. A.G.Srinivasan and 3 others reported in held that the deposit made without compliance with the statutory provision Section 8 of the Act cannot be considered as valid deposit. Hence the contention of the petitioner that two months notice as per explanation is mandatory cannot be countenanced. 15. This court in R.Angappan vs. A.G.Srinivasan and 3 others reported in held that the deposit made without compliance with the statutory provision Section 8 of the Act cannot be considered as valid deposit. It would run thus; ''The law is well settled that for filing an application under Section 8(5) of the Act for deposit of rent into Court, the other ingredients of the said provision, viz., the previous tender of the rents on the respective months, in the event of refusal of receipt of the rent, a demand to be made by notice in writing requiring the landlord to specify within 10 days from the date of receipt of such notice, a bank into which the rent might be deposited by the tenant to the credit of the landlord and in the event of the landlord not specifying the bank account as per Sub Section 2 of Section 8 of the Act, the tenant should remit the rent by Money Order after deducting the Money Order commission. Only if the landlord refused to receive the rent remitted by Money Order as provided under Sub Section 4 of Section 8, it is open to the tenant to seek for deposit of the rent into Court under Sub Section 5 of Section 8.'' 16. In the present case indisputably the tenant has not followed the procedure contained in Section 8 of the Act and further he did not deposit the rent regularly in the petition. As rightly contended by the learned counsel for the respondent, payment of advance amount on various dates was categorically denied by the landlord in the counter filed to the petition filed by the tenant under Section 8(5) of the Act. Despite PW 1 denied payment of advance amount, the tenant has not even stated the mode of payment and the dates. Admittedly the tenant is carrying on Textile Business, so he could have proved the payment of the advance amount through documentary evidence, but except the bald and vague averment, the tenant has not produced any material to substantiate his case. In such factual position the contention of the tenant with regard to payment of advance amount cannot be accepted. 17. Admittedly the tenant is carrying on Textile Business, so he could have proved the payment of the advance amount through documentary evidence, but except the bald and vague averment, the tenant has not produced any material to substantiate his case. In such factual position the contention of the tenant with regard to payment of advance amount cannot be accepted. 17. Further RW 1 has deposed about the payment of rent of Rs.5,000/- in the month of February 2010. The authorities below referring to the evidence of PW 1 and Ex.P3 receipt, held that the tenant has paid rent up to January 2010 and further held that the tenant did not produce any evidence to show the payment of rent for the subsequent period, which would amount to willful default. 18. (1) In judgments relied on by the petitioner, in 2009 3 CTC 248 , this court held that as per Section 7 of Tamilnadu Buildings Lease and Rent Control Act the landlord is entitled to retain one months rent and the excess advance amount has to be adjusted towards arrears of rent. (2) In 2014 2 CTC this court has observed that the tenant is not required to call upon the landlord to adjust monthly rent from the excess advance amount as per Sub-clause (a) to Section 7(2) of the Act, the landlord can only receive the amount not exceeding one month rent by way of advance from the tenant. (3) In 2003 1 MLJ 225 in that case the tenant remitted the entire arrears of rent even prior to initiation of the eviction proceedings. This court found that there was no cause of action to file the eviction petition, but the authorities below ordered eviction on the ground of willful default. In the above facts, this court observed that the courts below have committed illegality in coming to the conclusion contrary to law and set aside the concurrent finding by exercising the power under Section 25 of the Act. In my considered opinion the judgments are not helpful to the case of the petitioner. 19. It is settled law that to evict the tenant on the ground of subletting, the landlord has to prove that the tenant has parted with the possession of the whole or any part of the tenanted premises. In my considered opinion the judgments are not helpful to the case of the petitioner. 19. It is settled law that to evict the tenant on the ground of subletting, the landlord has to prove that the tenant has parted with the possession of the whole or any part of the tenanted premises. RW 2 in her evidence admits her signature in Ex.P3, Rental receipt, in which the tenants agreed to vacate the premises in 28.02.2010, however RW 2 denies the endorsement. 20. It is to be noted that the specific case of the landlord is that RW 2 is the subtenant and she is in physical possession and she carries on business. Even though the main tenant claimed that RW 2 is the sales manager, but he did not produce any documentary evidence for his running business in the petition premises and she is his employee. Both the authorities below on appreciation of evidence held that the revision petitioner has committed willful default in payment of rent and he is also liable to be evicted on the ground of subletting. 21. The Hon'ble Apex Court in the recent judgment in Hindustan Petroleum Corporation Ltd., Vs. Dilbahar Singhreported in 2014 (5) CTC 217 it has been held that; ''We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on reappreciation of the evidence, its view is different from the Court/Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.'' 22. Keeping in mind the principles laid down in the above judgments and in view of my findings supra, I do not find any perversity or material irregularity and illegality in the impugned order. 23. In the result this civil revision petition is dismissed. Connected miscellaneous petition is closed. No cost. The petitioner is granted six months time to vacate and handover the possession to the landlord. The tenant shall continue to pay rent regularly.