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2017 DIGILAW 1828 (MAD)

P. Leelavathi v. N. Sanjeeviraj

2017-06-30

G.JAYACHANDRAN

body2017
ORDER : G. Jayachandran, J. 1. This revision petition is directed against the order passed by the appellate authority confirming the order passed by the Rent Control Tribunal. 2. The brief facts of the case is that the revision petitioner is the landlord of the demised premises. The respondent herein has entered into a tenancy agreement with her in respect of the demised premises on 28.07.1993 along with his partners. The tenancy was for a period of five years and rent was fixed @ Rs. 850/- per month for first two years and for the remaining period @ Rs. 1000/- per month. While so, from October 1998, the respondent stopped paying the rent despite several demands. Meanwhile, the landlord has entered into a sale agreement with one Balaji on 12.09.1998 with a specific clause prescribing time for completing the agreement within three months. The said Balaji has failed to perform his part of contract and it is now stated by the counsel for the petitioner that the said Balaji filed a suit for specific performance which was ultimately dismissed. 3. Though there is an admitted default on the part of the tenant, the tenant has stated that based on the assignment of the sale agreement in his favour by Balaji, possession of the premises is for part performance of the agreement entered into between the landlord and Balaji and therefore, there is no wilful default. 4. Both the Courts below have accepted the plea of the respondent/tenant and has held that there is no wilful default on the part of the tenant. 5. Aggrieved by the concurrent finding, the present revision is filed on the ground that the Courts below have failed to appreciate Ex.R17 in proper perspective and has come to erroneous assumption that there is no landlord-tenant relationship after Ex.A17. Further, when the tenant cannot claim any right on the basis of the alleged agreement of sale dated 12.09.1998 entered into between the landlord and one Balaji, the Court has come to a wrong conclusion that based on the said agreement, the nature of possession of the respondent has changed. 6. The learned counsel for the revision petitioner submitted that the respondent herein failed to pay the agreed rent of Rs. 1,000/- per month since October 1998 till date. He also caused damage to the property during the month of December 2000. 6. The learned counsel for the revision petitioner submitted that the respondent herein failed to pay the agreed rent of Rs. 1,000/- per month since October 1998 till date. He also caused damage to the property during the month of December 2000. Hence, petition for eviction on the ground of wilful default and act of waste was filed. Claiming advantage of the so-called sale agreement entered between the landlord and one Balaji, the tenant has successfully misled the Courts below on the ground that after the sale agreement by the landlord/revision petitioner with one Balaji on 12.09.1998 which was subsequently assigned in his favour, the landlord-tenant relationship has come to an end. The agreement could not be executed due to dispute between the neighbouring land owner on the north western side and the revision petitioner. Once the sale agreement was assigned to the tenant on 10.04.2001, the character of the relationship has changed. Since there is no landlord-tenant relationship, in view of the sale agreement and part performance, there is no wilful default. 7. The learned counsel for the revision petitioner further submitted that both the Courts below have dismissed the eviction petition on a wrong premise as if the sale agreement Ex.R17 entered into between the landlord and one Balaji has changed the character of the property and the relationship between the revision petitioner and the respondent. Therefore, there is no necessity for the respondent to pay the rent. However, the Courts below failed to consider that once the suit filed by Balaji for specific performance belatedly was dismissed and till date no appeal is preferred, the respondent as assignee of the agreement has lost the right to enforce the specific performance and his status as tenant alone prevails, hence, he is bound to pay the rent. A wilful refusal to pay the rent is per se sufficient for ordering eviction. 8. The learned counsel for the respondent submitted that though the agreement was with one Balaji, in fact substantial sale consideration was paid by this respondent who was already a tenant under the revision petitioner and the said Balaji is none other than his own brother in law. It is also admitted in the course of trial that part of sale consideration of Rs. 1,00,000/- was received from the respondent/assignee. It is also admitted in the course of trial that part of sale consideration of Rs. 1,00,000/- was received from the respondent/assignee. Therefore, a suit for specific performance of a sale agreement can be laid by the assignee of the said agreement and there is no legal bar for the assignee to claim possession based on the agreement and pursue the specific performance suit. Further, the possession given in pursuant to the agreement even if it is barred by limitation for filing a suit for specific performance, his possession as such can be used as a shield. 9. It is further contended that though under the law of limitation, the right to enforce the performance of the contract may be extinguished, but the defence to protect possession is always available. Therefore, the law of limitation does not extinguish the defence, but only bars the remedy. In support of his submission, the counsel for the respondent relied upon the judgment in the case of Rathinam Chettiar vs. Embar Naidu, 1999 MLJ (Supp) 115, wherein, the High Court has held when the recital of the sale agreement enables the agreement holder to seek execution of the sale deed in his name or in the name of the assignee, any assignment of the agreement is not contrary of law. In this case also, the sale agreement Ex.R17 entails the purchaser to seek execution of the sale deed in his favour or assignee. Hence, assignment under Ex.R19 in favour of the respondent who is already a tenant is perfectly valid. 10. This Court has no second opinion in the said legal proposition. The point in this case is whether such an assignment will take away the right of the landlord seeking eviction on the ground of wilful default. 11. The Courts below have carried away by the fact that the landlord has not initiated any steps to recover the rent or eviction on the ground of wilful default from September 1998 till filing of RCOP on 29.06.2001 which prima facie indicates that the landlord has let the respondent to occupy the premises without rent as part performance of the contract entered with Balaji under Ex.R17 dated 12.09.1998. Such an inference is fallacious, illegal and opposed to common sense and law. 12. On record, the agreement is only with Balaji. He may be a close relative of the respondent. Such an inference is fallacious, illegal and opposed to common sense and law. 12. On record, the agreement is only with Balaji. He may be a close relative of the respondent. It does not mean that on the date of entering into agreement with one Balaji(12.09.1998), anticipating the assignment of agreement in favour of the respondent three years later (10.04.2001), the tenant can stop paying the rent or the failure on the part of the landlord to demand rent immediately cannot lead to an inference that she has allowed the tenant to be in possession of the premises as part performance of the sale agreement. If it is so, she need not have issued a notice for eviction on 13.01.2001 vide Ex.P2. That notice was not received by the respondent and thereafter only the assignment Ex.R19 has come into picture which is dated 10.04.2001. 13. It is the case of the respondent that the suit O.S. No. 880/1997 pending between the landlord and neighboring land owner was the cause for not insisting upon execution of sale agreement Ex.R17 dated 12.09.1998. From the record, it is clear that the said suit was dismissed on 08.04.2002. Notice for specific performance was issued on 01.02.2002, but the landlord immediately on receipt of this notice has repudiated the claim of specific performance. Thereafter, there had been chain of notices exchanged between the parties. However, the suit for specific performance O.S. No. 148/2008 was laid only in the year 2008 and only pending specific performance suit, the tenant has got the sale agreement made over to him. It is now stated that the said specific performance suit got dismissed on 16.06.2012. 14. The counsel for the respondent relying upon the following passage in the judgment of the Hon'ble Supreme Court rendered in Shrimant Shamrao Suryavanshi and Another vs. Pralhad Bhairobe Suryavanshi (D) by LRs. and Others, 2002 (3) LW 211, contended that even if the right to enforce the specific performance is extinguished, the right to be in possession is protected. "It is, therefore, manifest that the Limitation Act does not extinguish a defence, but only bars the remedy. and Others, 2002 (3) LW 211, contended that even if the right to enforce the specific performance is extinguished, the right to be in possession is protected. "It is, therefore, manifest that the Limitation Act does not extinguish a defence, but only bars the remedy. Since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part performance of the contract to protect his possession, though he may not able to enforce that right through a suit or action." 15. This judgment is applicable only when the person who claims possession was put in possession in view of part performance. Admittedly, when the alleged agreement for sale entered upon between Balaji and the landlord in the year 1998, the possession of the respondent herein was only as a tenant and not based on his part performance. Thereafter, some right over the property accrued to the respondent only after assignment vide Ex.R19 dated 10.04.2001. Taking advantage of agreement with his brother in law namely, Balaji, the tenant cannot squat over the property without paying the rent. 16. The sequence of events as found from the record clearly indicates that from September 1998 till 10.04.2001, the day of alleged assignment of agreement, admittedly the respondent has not paid the rent. The character of the relationship as landlord and tenant never changed during that period. There is no recital about possession in the agreement marked as Ex.R17. While so, the plea of part performance is not available for the respondent herein to deprive the landlord his lawful rent just because the agreement holder is a relative to him. The ready and willingness of the original agreement holder Balaji as well as the assignee/respondent herein is also found to be doubtful and the Court has dismissed the specific performance suit filed by Balaji as early as 16.06.2012. In the said circumstances, the so-called plea of change in character either before or even after the assignment is not available to the respondent herein. 17. The counsel for the respondent also submitted that portion of the sale consideration is still with the landlord and therefore, one cannot presume default in rent that too wilful default. In the said circumstances, the so-called plea of change in character either before or even after the assignment is not available to the respondent herein. 17. The counsel for the respondent also submitted that portion of the sale consideration is still with the landlord and therefore, one cannot presume default in rent that too wilful default. This Court is not inclined to accept this plea, for simple reason that whatever money paid as advance by Balaji to the landlord is pursuant to the sale agreement. In the specific performance suit, Balaji or his assignee ought to have sought for execution of sale deed pursuant to the sale agreement or return of sale consideration. The advance paid towards purchase money by Balaji by no stretch of imagination could be considered as advance paid by the respondent in the capacity as tenant. Therefore, due to perverse findings of the Court below without appreciating the law and facts, this Court is constrained to interfere with the concurrent findings of the Courts below. 18. Accordingly, this Civil Revision Petition is allowed. The orders passed by the Rent Controller and Rent Control Appellate Authority are set aside. Time for eviction is three months. No order as to costs. Consequently, connected miscellaneous petitions are closed.