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2017 DIGILAW 2134 (MAD)

V. Durairaj v. S. Saroja

2017-07-20

T.RAVINDRAN

body2017
JUDGMENT : 1. In this Civil Revision Petition, the petitioner/tenant has impugned the fair and decretal orders dated 13.04.2005, passed in R.C.A.No.25 of 2000, on the file of the Rent Control Appellate Authority [2nd Additional Subordinate Court], Tirunelveli, confirming the fair and decretal orders, dated 24.02.2000, passed in R.C.O.P.No.78 of 1999, on the file of the 1st Additional Rent Controller [1st Additional District Munsif Court], Tirunelveli. 2. The petitioner has levied the petition under Section 8(5) of the Tamil Nadu Buildings [Lease and Rent Control] Act, 1960. 3. The case of the petitioner in brief is as follows: The petition schedule property (hereinafter referred to as, ''the property'') belongs to the respondent and the petitioner is a tenant in respect of the property under the respondent and the monthly rent is fixed at Rs.500/- and the petitioner has paid the rent upto April 1999. However, the respondent is not in the habit of issuing receipt for payment of the rent. While so, the respondent attempted to evict the petitioner from the property unlawfully with the aid of police. Hence, the petitioner had been constrained to lay a suit in O.S.No.188 of 1999 on the file of the 1st Additional District Munsif Court, Tirunelveli and the petitioner had sent the rent for the month of May 1999 by way of money order. However, the respondent has refused to receive the same without proper reason and therefore, the petitioner issued a notice to the respondent, dated 16.06.1999 and called upon the respondent to specify a Bank, so as to enable him to deposit the rent. Thereafter, the petitioner sent the rent for May and June 1999 by way of money order. However, the same was also refused to be received by the respondent and hence, the petition. 4. The case of the respondent in brief is as follows: The petition is not maintainable either in law or on facts. The property description is not properly given. The petition has been laid by the petitioner to grab the entire property belonging to the respondent. It is admitted that the petitioner is a tenant under the respondent. 4. The case of the respondent in brief is as follows: The petition is not maintainable either in law or on facts. The property description is not properly given. The petition has been laid by the petitioner to grab the entire property belonging to the respondent. It is admitted that the petitioner is a tenant under the respondent. However, the monthly rent is fixed at Rs.1,500/- and not Rs.500/- as stated by the petitioner and it is false to state that the respondent is not in the habit of issuing receipt for payment of rent and further false to state that the petitioner has paid the rent upto March 1999 and also false to state that the respondent has attempted to evict the petitioner from the property unlawfully with the aid of police. The petitioner is only a tenant in respect of the portion of the property i.e., occupying one of the two shops facing east and situated on the northern side and the petitioner is not in the habit of paying rent regularly and committed default in payment of rent from December 1998 onwards. The respondent is running a Bakery shop and also a telephone booth in Door No.89 and thereafter, extended the Bakery shop as a Mess and therefore, the petitioner, who has been running a Food Stall, did not like the respondent carrying on Mess at the property and therefore, threatened the respondent and also stopped paying the rent and in such circumstances, the respondent was constrained to prefer a police complaint against the respondent. No doubt, the petitioner had sent the rent by way of money orders. However, inasmuch as the rent sent by way of money orders did not represent the correct rent, the same had been refused to be received and hence, this petition is liable to be dismissed. 5. In support of the petitioner's case, P.W.1 has been examined and Exs.P.1 to P.4 have been marked. On the side of the respondent, R.W.1 has been examined and no documentary evidence has been adduced. 6. On a consideration of the oral and documentary evidence adduced by the respective parties, the learned Rent Controller was pleased to dismiss the petition. 7. Challenging the same, the petitioner has preferred an appeal. 8. On the side of the respondent, R.W.1 has been examined and no documentary evidence has been adduced. 6. On a consideration of the oral and documentary evidence adduced by the respective parties, the learned Rent Controller was pleased to dismiss the petition. 7. Challenging the same, the petitioner has preferred an appeal. 8. Before the learned Rent Control Appellate Authority, the petitioner has also filed an application in I.A.No.4 of 2005 for marking the complaint preferred by the respondent as additional document. The learned Rent Control Appellate Authority allowed the said application and marked the said complaint as Ex.P.5 and the learned Rent Control Appellate Authority also on an appraisal of the materials placed before him, confirmed the order of the learned Rent Controller and dismissed the appeal. 9. Impugning the same, the present Civil Revision Petition has been preferred. 10. From the materials placed, it is found that the petitioner is occupying a portion of Door No.89 as a tenant under the respondent. It is also found that in respect of the other portions in the above said door number, the respondent is carrying on a Mess and also running a telephone booth. Now, according to the petitioner, inasmuch as the respondent did not receive the rent tendered by the petitioner and also attempted to evict him from the property unlawfully with the aid of Police, he had been constrained to send the rent by way of money orders and the same has been refused to be received by the respondent without proper reason and therefore, according to the petitioner, he called upon the respondent by way of a notice to specify the Bank, so as to enable him to remit the rent therein and the respondent did not respond the same. Hence, according to the petitioner, he has been necessitated to lay the petition. 11. According to the petitioner, the monthly rent is at Rs.500/-. However, the same had been disputed by the respondent. Now, according to the respondent, the monthly rent is Rs.1,500/-. Further, the case of the petitioner is that he had paid the rent upto April 1999. If according to the petitioner, he had paid the rent upto April 1999, there would be some materials on his part to evidence that the rent paid by him upto April 1999 is at the rate of only Rs.500/-, as pleaded by him. Further, the case of the petitioner is that he had paid the rent upto April 1999. If according to the petitioner, he had paid the rent upto April 1999, there would be some materials on his part to evidence that the rent paid by him upto April 1999 is at the rate of only Rs.500/-, as pleaded by him. However, with regard to the above claim of the petitioner that the monthly rent is Rs.500/-, there is no material forthcoming on the part of the petitioner. When the specific case of the respondent that the monthly rent is only at Rs.1,500/- as rightly held by the Courts below, the petitioner should prima facie establish the fact that the monthly rent is Rs.500/- as pleaded by him and not Rs.1,500/- as claimed by the respondent. 12. The petitioner, in support of his case, has relied upon the additional document marked before the learned Rent Control Appellate Authority as Ex.P.5, being the complaint preferred by the respondent and its allied records. According to the petitioner, the respondent has admitted that the rent is only Rs.500/- before the Police and the same could be evidenced from Ex.P.5 and therefore, it is contended that the rent is only at Rs.500/- and not Rs.1,500/-. 13. However, as rightly determined by the learned Rent Control Appellate Authority, in particular, the alleged admission on the part of the respondent before the Police, cannot be relied as legal evidence as per the Indian Evidence Act. Therefore, it is found that no safe credence could be attached to Ex.P.5, so as to hold that the monthly rent is only Rs.500/- and not Rs.1,500/-. Apart from Ex.P.5, no other material is forthcoming on the part of the petitioner, who has laid the petition to prove that the monthly rent for the property is only at Rs.500/-. 14. The case of the petitioner is that the respondent had refused to receive the rent sent by him by way of money order without assigning proper reason and therefore, according to him, he has been constrained to lay the petition seeking permission to deposit the rent in Court. 15. Per contra, according to the respondent, inasmuch as the rent sent by the petitioner by way of money order did not represent the correct quantum of rent fixed for the petition schedule property, she has refused to receive the same. 16. 15. Per contra, according to the respondent, inasmuch as the rent sent by the petitioner by way of money order did not represent the correct quantum of rent fixed for the petition schedule property, she has refused to receive the same. 16. As seen above, the petitioner has not established that the rent for the property is only at Rs.500/- per month. From the materials, it is found that the respondent had refused to receive the said amount sent by the petitioner by way of money order, as it did not represent the correct rent. Therefore, no adverse inference as such could be made as against the respondent for refusing to receive the money order, so as to accept the case of the petitioner. 17. The respondent has specifically pleaded that even the property has not been properly described in the petition laid by the petitioner. The petitioner has shown the entire property comprised in Door No.89, Thiruvandapuram Road, Palayamkottai, in his Petition. However, even according to the petitioner, he is occupying only one of the shops located in the said property. Hence, his claim that he is a tenant of the entire property as such, cannot be countenanced. 18. However, the learned counsel for the petitioner contended that the respondent has not sent a reply to the notice issued by him calling upon the respondent to specify a Bank, for enabling the petitioner to remit the rent. However, considering the facts and circumstances of the case, as rightly pointed out by the respondent's counsel, the non-issuance of reply to the said notice sent by the petitioner is not fatal to the case of the respondent. Firstly, the petitioner has not established that he has paid the rent due to the respondent in respect of the property occupied by him. When according to the petitioner, the rent had been received upto April 1999 by the respondent, there is no reason whatsoever placed by him as to why the respondent should refuse to receive the rent for the ensuing months thereafter. Therefore, it is found that the petitioner has not established a prima facie case that the respondent has deliberately refused to receive rent from him. That apart, even thereafter, the petitioner has not sent the actual rent in respect of the property occupied by him to the respondent by way of money orders. Therefore, it is found that the petitioner has not established a prima facie case that the respondent has deliberately refused to receive rent from him. That apart, even thereafter, the petitioner has not sent the actual rent in respect of the property occupied by him to the respondent by way of money orders. As seen above, the respondent had also rightly refused to receive the same, as the same did not represent the proper rent. 19. In such view of the matter, the failure of the respondent to respond to the notice sent by the petitioner, as such, in my considered opinion would not loom large, considering the facts and circumstances of case, so as to draw adverse inference against the respondent. 20. As rightly discussed above, the only document on which, the petitioner places reliance is that the respondent has admitted before the Police that the monthly rent is only at Rs.500/-. However, with reference to the same, when the document marked as Ex.P.5 cannot be construed as legal evidence as per the Indian Evidence Act, the case of the petitioner as such cannot be accepted. Further, as rightly determined by the Courts below, the petitioner could have established the above said case by summoning the concerned police authority, with whom, the police complaint is said to have been preferred by the respondent. 21. The petitioner also has not established that the respondent has attempted to evict him from the property unlawfully. If that be so, the normal conduct that could have been seen from the petitioner's side is to prefer a complaint against the respondent in the manner known to law or to take appropriate proceedings. On the other hand, as seen from the materials placed, inasmuch as the petitioner attempted to threaten the respondent as regards the extension of his business in the property concerned, it could be seen that the respondent had been forced to prefer the complaint against the petitioner, which was marked as Ex.P.5 and therefore, the case of the petitioner that the respondent had unlawfully made an attempt to evict him from the property as such cannot be accepted in any manner. 22. The learned counsel appearing for the respondent placed reliance on the decision reported in 2014 (1) MWN (Civil) 147 [D. Selvam Vs. K. Shanmugam]. 23. 22. The learned counsel appearing for the respondent placed reliance on the decision reported in 2014 (1) MWN (Civil) 147 [D. Selvam Vs. K. Shanmugam]. 23. The principles of law outlined in the abovesaid decision are taken into consideration and followed as applicable to the case at hand. 24. In the light of the above discussions, I hold that as rightly determined by the Courts below, the petitioner has failed to establish that he is entitled to seek permission to deposit the rent before the learned Rent Controller as provided under the Act and in such view of the matter, it is found that the Courts below have rightly discountenanced the case of the petitioner and therefore, the Civil Revision Petition does not merit acceptance. 25. Resultantly, the fair and decretal orders dated 13.04.2005, passed in R.C.A.No.25 of 2000 on the file of the Rent Control Appellate Authority [2nd Additional Subordinate Court], Tirunelveli, confirming the fair and decretal orders, dated 24.02.2000, passed in R.C.O.P.No.78 of 1999, on the file of the 1st Additional Rent Controller [1st Additional District Munsif Court], Tirunelveli, are confirmed and the Civil Revision Petition is dismissed with costs.