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2015 DIGILAW 2320 (MAD)

N. Sanjay Kumar Jain v. S. Krishnamurthy

2015-07-01

M.DURAISWAMY

body2015
JUDGMENT : 1. The above Civil Revision Petitions are preferred by the tenant. Civil Revision Petition No.955 of 2014 arises against the order passed in RCA No.22 of 2011, on the file of Subordinate Court, Vellore, confirming the order passed in RCOP No.No.38 of 2008 on the file of Principal District Munsif Court, Rent Controller, Vellore. Civil Revision Petition No.956 of 2014 arises against the order passed in I.A No.103 of 2012 in R.C.A.No.22 of 2011. Civil Revision Petition No.957 of 2014 arises against the order passed in RCA No.25 of 2011, on the file of Subordinate Court, Vellore, confirming the order and decreetal order dated 12.4.2011 passed in RCOP No.41 of 2008 on the file of Principal District Munsif Court, Rent Controller, Vellore. Civil Revision Petition No.958 of 2014 against the order and decreetal order dated 5.2.2014 by the Subordinate Judge, Rent Control Appellate Authority, Vellore passed in I.A No.105 of 2013 in R.C.A.No.25 of 2011. 2. The respondent/landlord filed a petition in R.C.OP No.38 of 2008, on the file Principal District Munsif, Rent Controller, Vellore, for eviction on the ground of wilful default and own use and occupation. After contest, the Rent Controller ordered eviction, against which, the tenant preferred an appeal in RCA No.22 of 2011, which was also dismissed by the Rent Control Apellate Authority, against which, the tenant has filed the above Civil Revision Petition in C.R.P.No.955 of 2014. 3. In the Rent Control Appeal, the tenant filed applications in I.A.No.103/2012 in R.C.A.No.22 of 2011 and I.A.No.105 of 2013 in R.C.A.No.25 of 2011, to permit him to file additional documents. The Rent Control Appellate Authority dismissed both the applications, against which, the tenant has filed the Civil Revision Petitions in CRP Nos. 956 and 958 of 2014. 4. The tenant also filed an Original Petition in R.C.O.P.No.41 of 2008 on the file of Principal District Munsif, Rent Controller, Vellore under Sec.8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, to deposit the rent into Court. The trial Court dismissed the Original Petition, against which, the tenant preferred an appeal in R.C.A No.25 of 2011, which was also dismissed by the Subordinate Court, Rent Control Appellate Authority, Vellore, against which, the tenant has filed the Civil Revision Petition in CRP No.957 of 2014. 5. The trial Court dismissed the Original Petition, against which, the tenant preferred an appeal in R.C.A No.25 of 2011, which was also dismissed by the Subordinate Court, Rent Control Appellate Authority, Vellore, against which, the tenant has filed the Civil Revision Petition in CRP No.957 of 2014. 5. During the pendency of the Rent Control Appeal, the respondent/landlord sold the petition mentioned property to one C. Arjun Kumar Jain. The sale Deed was executed on 28.11.2011. However, the subsequent purchaser has not taken any steps to get himself impleaded in the Rent Control Appeal. Now, the subsequent purchaser has filed applications in M.P.No.2 of 2014 in CRP No.955 of 2014; M.P.No.1 of 2014 in CRP No.956 of 2014; M.P.No.1 of 2014 in CRP No.957 of 2014 and M.P.No.1 of 2014 in CRP No.958 of 2014 to get himself impleaded in the above Civil Revision Petitions. 6. When the matter is taken up for hearing today, Mr. K. Ramu, learned counsel appearing for the revision petitioner/tenant submitted that since the respondent/landlord had already sold the property to the proposed party, under a registered sale deed dated 28.11.2011, the Civil Revision Petitions are liable to be dismissed and that the subsequent purchaser cannot prosecute the civil revision petitions now. 7. Further, the learned counsel for the revision petitioner submitted that the respondent/landlord, having sold the property to C. Arjun Kumar Jain, he cannot prosecute the civil revisions petitions as landlord of the premises. Further, the learned counsel submitted that the proposed party cannot be impleaded in the present civil revision petitions, in view of the settled position, laid by the Hon'ble Apex Court as well as by this Court. In support of his contention, the learned counsel relied on the following judgments: 8. (i) 2003 (7) SCC 321 (Sheikh Noor and another vs Sheikh G.S. Ibrahim (dead) by L.Rs, wherein the Apex Court has held that only if there is assignment of rent due, would the transferee/landlord be entitled to recover the same from the tenant as arrears of rent. 9. (i) 2003 (7) SCC 321 (Sheikh Noor and another vs Sheikh G.S. Ibrahim (dead) by L.Rs, wherein the Apex Court has held that only if there is assignment of rent due, would the transferee/landlord be entitled to recover the same from the tenant as arrears of rent. 9. However, in the ratio laid down by the Apex Court, this Court, in the judgment reported in 2011 (5) CTC 486 (Alaudin vs Sathar), held that in the absence of any specific assignment of arrears of rent, transferee landlord is not entitled to continue proceedings invoking Section 10(2)(i) or maintain an Eviction Petition for wilful default pertaining to period prior to transfer. 10. In 2007 (6) MLJ 222 (A. Jaganathan vs S. Kalyani), during the pendency of the appeal, the landlady sold the property, in that case, this court held that when the appeal was heard, the landlady did not have any subsisting interest, the cause of action available to the landlady will not ensure to the subsequent purchasers. On this ground, this Court set aside the order of eviction. 11. (ii) 1997 (1) L.W. 527 (S.V. Periasamy & Sons vs R. Senthil Kumar and other), wherein this Court, held that the cause of action regarding wilful default does not survive, after the sale of property and the relationship of landlord-tenant ceases and the eviction petition, on the ground of wilful default, cannot be continued on the basis of same cause of action. Further, this Court held that the previous landlord becomes a creditor and the tenant becomes a debtor even if there is an assignment, that will amount to only an actionable claim and will cease to be arrears of rent and arrears of rent loses its character as arrears and can be transferred only as dctionable claim under S.130 of Transfer of Property Act. 12. Countering the submissions made by the learned counsel for the petitioner, the learned counsel appearing for the respondent submitted that both the courts held that the tenant had committed wilful default in payment of rent and that the property, in question, is required for landlord's own use and occupation and the subsequent purchaser is entitled to prosecute the Civil Revision Petitions. 13. 13. The learned counsel appearing for the subsequent purchaser relied on an unreported judgment made in CRP Nos.1923 and 1924 of 2010 dated 2.3.2011, wherein, this Court held that 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. 14. On a reading of the order passed in the above Civil Revision Petitions, it could be seen that the judgment reported in 2003 (7) SCC 321 (Sheikh Noor and another vs Sheikh G.S. Ibrahim (dead) by LRs and 2011 (5) CTC 486 (Alaudin vs Sathar) were not brought to the notice of this Court. Therefore, the this Court had no occasion to take into consideration those judgments. 15. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, there is no dispute that the respondent/landlord sold the property to C. Arjun Kumar Jain, by a registered Sale Deed dated 28.11.2011 and eviction was ordered on the grounds of wilful default in payment of rent and own use and occupation. 16. When the respondent/landlord sought for eviction on the ground of own use and occupation, it is personal to him and therefore, the subsequent purchaser cannot evict the tenant on that ground. The subsequent purchaser has to establish his case that the property is required for his own use and occupation. 17. So far as the ground of wilful default is concerned, the Hon'ble Supreme Court in the judgment reported in 2003 (7) SCC 321 (Sheikh Noor and another vs Sheikh G.S. Ibrahim (dead) by LRs held that only if there is assignment of rent due would the transferee landlord be entitled to recover the same from the tenant as arrears of rent. Following the ratio, laid down by the Apex Court, this Court, in the judgment reported in 2011 (5) CTC 486 (Alaudin vs Sathar) held that in the absence of any specific assignment of arrears of rent, transferee landlord is not entitled to continue the proceedings invoking Section 10(2) (i) or maintain an Eviction Petition for wilful default pertaining to period prior to transfer. The ratio laid down in the judgment reported in 2011 (5) CTC 486 , following the judgment of the Apex Court reported in 2003 (7) SCC 321 , squarely applies to the facts and circumstances of the present case. 18. Similarly, the same ratio was also followed in the judgment reported in 2007 (6) MLJ 222 (A. Jaganathan vs S. Kalyani). In the judgment reported in 1997 (1) L.W. 527 (S.V. Periasamy & Sons vs R. Senthil Kumar and other), this Court held that even if there is an assignment, that will amount to only an actionable claim and will cease to be arrears of rent and arrears of rent loses its character as arrears and can be transferred only as dctionable claim and further this Court had held that the previous landlord becomes a creditor and the tenant becomes a debtor and therefore the subsequent purchaser cannot continue the proceeding in view of the judgment of the Hon'ble Supreme Court as well as this Court. 19. The learned counsel appearing for the respondent submitted tht the petitioner/tenant is in arrears of Rs.4,05,000/- (Rupees four lakhs five thousand only) till this date. 20. The learned counsel for the petitioner/tenant submitted that the petitioner would pay the arrears of rent, after deducting the rent already paid and also deducting the amount deposited to the credit of Rent Control Original Petitions filed under Sec. 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, to the subsequent purchaser within a period of eight weeks. 21. In these circumstances, following the ratio laid down by the Apex Court as well as this Court, I set aside the order of the eviction, granted in R.C.A. No. 22 of 2011, confirming the order of eviction passed in RCOP No.38 of 2008 on the file of Principal District Munsif Court, Rent Controller, Vellore. 22. R.C.A.No.25 of 2011, filed by the tenant against the previous landlord, was also dismissed by the Rent Controller as well as the Rent Control Appellate Authority. Since the petitioner had sold the property to the subsequent purchaser viz., C. Arjun Kumar Jain, the petitioner/tenant has filed an Original Petition in R.C.O.P.No.54 of 2014 under Sec. 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 against the subsequent purchaser for depositing the rents. 23. Since the petitioner had sold the property to the subsequent purchaser viz., C. Arjun Kumar Jain, the petitioner/tenant has filed an Original Petition in R.C.O.P.No.54 of 2014 under Sec. 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 against the subsequent purchaser for depositing the rents. 23. It is also brought to the notice of this court that the subsequent purchaser viz. C. Arjun Kumar Jain has also filed an Original Petition in R.C.O.P.No.24 of 2014 on the file of District Munsif, Vellore for eviction on the ground of own use and occupation. 24. The Rent Controller, District Munsif, Vellore, shall decide both the Civil Revision Petitions, on merits and in accordance with law. 25. The petitioner/tenant shall pay the arrears of rent upto 28.11.2011 to the previous landlord within a period of eight weeks from the date of receipt of copy of this order. The petitioner/tenant shall pay the arrears of rent, after deducting the amount, already paid and also the amount deposited to the credit of Rent Control Original Petitions to the present landlord within a period of eight weeks from the date of receipt of copyof this order. 26. Since the subsequent purchaser has already filed a separate petition in R.C.O.P.No.24 of 2014 and the tenant has also filed a separate petition in R.C.O.P.No.54 of 2014 under Sec. 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, I do not find any reason to implead the subsequent purchaser in the above Civil Revision Petitions. Hence, the impleading petitions in M.P.No.2 of 2014 in CRP No.955 of 2014, M.P.No.1 of 2014 in CRP No.956 of 2014, M.P.No.1 of 2014 in CRP No.957 of 2014 and M.P.No.1 of 2014 in CRP No.958 of 2014 are dismissed. 27. With these observations, all the Civil Revision Petition in C.R.P (NPD) No.955 of 2014 is allowed and and the Civil Revision Petitions in CR.P (NPD) Nos.956, 957 and 958 of 2014 are dismissed. No costs. Consequently, M.P.No.1 of 2014 and M.P.No.1 of 2015 in C.R.P.No.955 of 2014 are closed.