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Madras High Court · body

2018 DIGILAW 2878 (MAD)

G. Sumarmal v. K. Rajathi Ammal

2018-09-12

S.S.SUNDAR

body2018
ORDER : 1. C.R.P.(MD) No.1933 of 2013 is preferred against the order of Principal Subordinate Judge cum Rent Control Appellate Authority, Madurai in R.C.A.No.70 of 2007, dated 05.06.2013, reversing the order dated 05.03.2007 in R.C.O.P.No.15 of 2003 on the file of the Additional District Munsif cum Rent Controller, Madurai Town. 2. C.R.P.(MD) No.1934 of 2013 is preferred against the order of the Principal Subordinate Judge cum Rent Control Appellate Authority, Madurai in R.C.A.No.71 of 2007, dated 05.06.2013, reversing the order dated 05.03.2007 in R.C.O.P.No.327 of 2002 on the file of the Additional District Munsif cum Buildings Rent Controller, Madurai Town. 3. R.C.O.P.No.15 of 2003 was filed by the respondent/landlady for eviction on the ground of wilful default, acts of waste and additional accommodation. Though the Rent Controller, Madurai Town, dismissed the petition for eviction, the appellate authority ordered eviction. Aggrieved by the same, the tenant has preferred the civil revision petition. The same tenant is also the revision petitioner in C.R.P.(MD) No.1934 of 2013. 4. The revision petitioner filed R.C.O.P.No.327 of 2002 on the file of the Rent Controller/Additional District Munsif, Madurai Town, to permit the petitioner to deposit the rent under Section 8 (5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, and the same was allowed by the Rent Controller, but on an appeal filed by the respondent, the order of Rent Controller was set aside. Aggrieved by the same, the civil revision petition in C.R.P.(MD).No. 1934 of 2013 has been filed. 5. The case of the revision petitioner in R.C.O.P.No.327 of 2002 is that he is the tenant in respect of the first and second floors of the building owned by the respondent and that he carried on the business of stationary and cosmetics in the name and style of “S.R. Enterprises” as a tenant for more than 13 years. It is stated by the petitioner that the contractual rent is Rs.1,200/- and that the landlady used to give receipt only for a sum of Rs.400/-. Since the revision petitioner demanded the receipt for a sum of Rs.1,200/-, it is stated that the respondent refused to give receipt and stopped to give receipt for the payment of rent by the tenant. 6. Since the revision petitioner demanded the receipt for a sum of Rs.1,200/-, it is stated that the respondent refused to give receipt and stopped to give receipt for the payment of rent by the tenant. 6. It is also the case of the revision petitioner that he has no arrears of rent upto May-2002 and the respondent/landlady refused to receive the rent but from the Month of June 2002, demanded enhanced rent at Rs.3,000/- per month and further advance of Rs.30,000/-. It is also stated that the revision petitioner went to the respondent's house and tendered two months rent for the month of June and July 2002 and that the respondent refused to receive the same. It was further stated that thereafter, the revision petitioner sent the rent for the period of two months through money order, and it was also refused. 7. It was therefore stated that a petition under Section 8 (5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, is warranted. The respondent/landlady filed a counter denying the contention of the tenant. It is stated by the landlady that originally the rent was Rs.1,200/-. It is stated that only at the request of the tenant, receipt was issued for a sum of Rs.400/- and that the remaining amount was entered in the pocket note book maintained by the tenant himself for the reasons known to him. It is the specific case of the landlady that the current monthly rent is Rs.2,300/- from the year 1999 as per the unregistered rental agreement dated 27.01.1999. 8. The payment of rent upto May 2002 as pleaded by the tenant, was specifically disputed. It is also the case of the respondent that the monthly rent was paid up to December 1999 and that no rent was paid after January 2000. Since the tenant sent the money order only for two months, it is stated by the respondent that arrears of rent was more than Rs.96,600/- as on June 2003 and the respondent could not receive the amount. 9. The respondent/landlady filed R.C.O.P.No.15 of 2003 for evicting the petitioner on the ground of wilful default, acts of waste and additional accommodation. Since the tenant sent the money order only for two months, it is stated by the respondent that arrears of rent was more than Rs.96,600/- as on June 2003 and the respondent could not receive the amount. 9. The respondent/landlady filed R.C.O.P.No.15 of 2003 for evicting the petitioner on the ground of wilful default, acts of waste and additional accommodation. The case of the respondent in this revision petition is that the revision petitioner took the first and second floor of the building owned by her from the year 1989 for the purpose of running stationary and cosmetics business under the name and style of “.R. Enterprises” It is the case of the respondent that the monthly rent was Rs. 1,200/- at the time of inception and it was increased periodically and the rent was agreed at Rs.2,300/- per month in the year 1999. It is also admitted that the tenant has paid an advance of Rs.20,000/-. 10. It is the case of the landlady that the revision petitioner and the respondent entered into an unregistered rental agreement on 27.01.1999, wherein, the revision petitioner has agreed to pay a sum of Rs.2,300/- as monthly rent. It is the case of the respondent that the revision petitioner was paying monthly rent up to the month of December 1999 and that he did not pay monthly rent from January 2000. It is also the case of the respondent that despite repeated oral demands, the revision petitioner did not take any care to pay arrears from January 2000 and that the revision petitioner is liable to pay the rental arrears for 36 months from January 2000 to December 2002. The respondent/landlady further stated that she was running the business in the ground floor portion of the building under the name and style of “M/s. S.R. Rama Vilas Note Book Enterprises”. Though the business of the respondent was conducted by a partnership firm, in which, the respondent is a partner, it is stated that the premises is required for their business and that therefore, the building is required for additional accommodation of the respondent/landlady. It is also the case of the respondent that the tenant has damaged the floor and walls by putting up racks and heavily storing goods. Hence, the premises was required on the ground of acts of waste. 11. It is also the case of the respondent that the tenant has damaged the floor and walls by putting up racks and heavily storing goods. Hence, the premises was required on the ground of acts of waste. 11. The revision petitioner has denied the averments stated in the petition for eviction. The trial Court allowed the petition filed by the tenant in R.C.O.P.No.327 of 2002, and dismissed the petition filed by the landlady for eviction in R.C.O.P.No.15 of 2003. The Rent Controller disbelieved the case of the landlady with regard to the quantum of rent as well as the period of default. It was for the said reason, the Rent Controller found that the revision petitioner has not committed any default in payment of rent, as the landlady has failed to prove her case. Since the rent for two months sent by the revision petitioner was not accepted by the landlady, the Rent Controllor also found that the revision petitioner should be permitted to deposit the rent in Court. Thus, the Rent Controller allowed the petition filed by the revision petitioner in R.C.O.P.No.327 of 2002. 12. The Rent Controller further held that the landlady as a partner of a firm, has not produced any documents to show that the business and partnership has been developed or not, to prove that the premises is required for additional accommodation. Further, the Rent Controller found that the tenant will be put to much hardship, in case, the eviction is ordered against the revision petitioner. The Rent Controller also held that the landlady has not proved acts of waste to seek eviction on that ground. Aggrieved by the findings of the Rent Controller, the respondent/landlady preferred R.C.A.No.70 of 2007 as against the order dismissing the eviction petition in R.C.O.P.No.15 of 2003. The respondent/landlady also filed another appeal in R.C.A.No.71 of 2007 as against the order in R.C.O.P.No.327 of 2002 permitting the revision petitioner to deposit the rent. 13. The Rent Control Appellate Authority, however, allowed both the appeals in R.C.A.Nos.70 and 71 of 2007. Thus, the appellate authority dismissed the petition filed by the tenant in R.C.O.P.No.327 of 2002 and allowed the petition for eviction. The Appellate Authority found that the tenant has not proved his case that he has been paying rent regularly. 13. The Rent Control Appellate Authority, however, allowed both the appeals in R.C.A.Nos.70 and 71 of 2007. Thus, the appellate authority dismissed the petition filed by the tenant in R.C.O.P.No.327 of 2002 and allowed the petition for eviction. The Appellate Authority found that the tenant has not proved his case that he has been paying rent regularly. Since the tenant has not proved the payment of rent for the period from January 2000 to April 2002, the Rent Control Appellate Authority found that the tenant has committed wilful default. Further, the Rent Control Appellate Authority found that the landlady was doing business in the name and style of "Sri Ramavilas Notebook Industries" for more than 40 years and that therefore, the bona fide requirements of landlady for additional accommodation cannot be doubted. Since the landlady has also produced Ex.B6 and the requirement of note books has increased over a period of time, the appellate authority accepted the case of landlady regarding additional accommodation. Aggrieved by the order of Rent Control Appellate Authority in R.C.A.Nos.70 and 71 of 2007, the tenant has preferred the above civil revision petitions. 14. The learned counsel appearing for the revision petitioner submitted that the claim of the respondent that the building is required by her for additional accommodation has no bona fide and the Rent Control Appellate Authority has not considered the relevant materials and evidence before holding that the tenant has committed wilful default. The learned counsel for the petitioner pointed out that the landlady has never issued any receipts from the year 1999. Since the rent offered for the month of June and July 2002 was refused by the landlady, it is stated that the revision petitioner sent a reply calling upon the landlady to furnish the details as to the bank account of the landlady. It is pointed out by the learned counsel for the petitioner that the landlady did not sent a reply to the said notice and that thereafter, the tenant had sent the rent by money orders, which was also refused by the landlady. 15. The learned counsel for the petitioner further submitted that the landlady would not wait for accumulation of huge arrears of rent. 15. The learned counsel for the petitioner further submitted that the landlady would not wait for accumulation of huge arrears of rent. Since the landlady in this case, though alleges that the tenant has committed default from January 2000, has not issued any notice to the tenant, till the notice was issued by the tenant calling upon the landlady to name the bank. The learned counsel for the petitioner further submitted that the landlady has failed to sent any reply/rejoinder notice to the reply notice dated 22.02.2006 sent by the tenant and hence, adverse inference should be drawn against the landlady. The learned counsel for the petitioner further stated that the landlady has not initiated eviction proceedings immediately after issuance of notice by the tenant under Ex.B6 dated 16.08.2002, but only after four months from the date of notice. It is submitted that the landlady chose to file the eviction petition in R.C.O.P.No.15 of 2003 after waiting for four months after the notice. 16. Regarding the petition filed by the tenant for deposit of rent, the learned counsel for the petitioner submitted that the landlady is not in the habit of issuing monthly receipts. Since the landlady refused to receive the rent for the months of June and July'2002, when it was tendered by the tenant in person, the learned counsel for the petitioner stated that the tenant sent the amount by way of money order. It was further contended that the landlady sent a legal notice dated 16.08.2002 alleging wilful default from January 2000 and claiming a sum of Rs.71,300/- as arrears of rent. It is further contended that the tenant immediately sent a reply under Ex.B8 dated 22.08.2002, requesting the landlady to furnish the bank account, since the landlady refused to accept the rent and as the landlady did not furnish the particulars of the bank accounts, the learned counsel for the revision petitioners submitted that the revision petitioner filed a petition in R.C.O.P.No.327 of 2002 seeking permission to deposit the rent into Court. 17. Sum and substance, by referring to the sequences of events, the learned counsel for the tenant submitted that the revision petitioner had no option, but to seek permission under Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, to deposit the rent into Court. 17. Sum and substance, by referring to the sequences of events, the learned counsel for the tenant submitted that the revision petitioner had no option, but to seek permission under Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, to deposit the rent into Court. The learned counsel for the revision petitioners relied upon the judgment of this Court in the case of M.K. Selvaraj and others Vs. Hameed Fathima Ghani reported in 2013 (4) CTC 574 , wherein, this Court has held as follows: “13. First of all it is not in dispute that for a monthly rent of Rs.275/-, an advance amount of Rs.10,000/- was received by the landlady and the same is lying with her. The tenant had also proved through Exs. R3, R5, R6 and R7 that he had made all attempts to make the payments first through money order and again by D.D. and thereafter by calling upon the landlady to furnish the bank details for depositing the rent. When all these attempts failed, the tenant had chosen to file RCOP on 5.9.2005 under Section 8(5) of the said Act. No doubt, the tenant had not taken steps immediately after returning of the demand draft by the landlady. But the fact remains that the tenant had sent Ex.R5 reply on 26.7.2005 and the landlady refused to receive the D.D. sent along with the said reply. Most likely the DD would have been returned either at the end of July 2005 or during first week of August 2005. 14. The tenant approached the Rent Controller under Section 8(5) on 5.9.2005. That means there could have been a delay of only 30 days or so, which, in my considered view cannot be construed as an abnormal or an unreasonable delay under the facts and circumstances of this case. May be the tenant might have gone after receipt of Ex.R4 notice dated 14.7.2005 from the landlady. But at the same time, the fact remains that he had not kept quiet before receiving the notice under Ex. R4 and in fact he had sent the rent through money orders on 5.7.2005 itself. Therefore, this shows his bona fide intention in paying the rent. 15. It is also his case that the landlady refused to receive the rent when it was tendered in person. R4 and in fact he had sent the rent through money orders on 5.7.2005 itself. Therefore, this shows his bona fide intention in paying the rent. 15. It is also his case that the landlady refused to receive the rent when it was tendered in person. Therefore, when the tenant had taken all steps before resorting to file a petition under Section 8(5) and when the fact remains that an advance amount of Rs.10,000/- is lying with the landlady, in respect of a tenancy with monthly rent of Rs.275/-, I am of the view that the tenant has not committed any default much less wilful default for the period from May to July 2005.? 18. The learned counsel for the revision petitioner also relied upon a judgment of the Court and submitted that the tenant, who is entitled to succeed in the case of wilful default is also entitled to succeed in the petition filed by him under Section 8 (5) of the Act for depositing the rent. The learned counsel for the revision petitioner further relied upon the judgment of this Court in the case of Gunavathy Vs. Muruganandam reported in (2017) 2 RCR (Rent) 144, wherein, it has been held as follows: “7. Insofar as the first ground namely, wilful default, the evidence available particularly, Exs.R1 to R5 indicate that Jegadeesan has received the rent upto the month of July 2001 sent by Demand Draft. He has returned the DD towards rent for the month of August and September. The tenant has tendered the August month rent through Money Order to Jegadeesan. The said Money Order also refused by Jegadeesan. This has prompted the tenant to file RCOP.No.19/2001 seeking permission of the Court to deposit the rent. ....... ....... 17. The landlady/revision petitioner herein has preferred C.R.P.132/2009 against the order of the appellate Court reversing the judgment of the Rent Controller and allowing the petition filed by the tenant under Section 8 (5) for deposit of rent. In view of the order passed in CRP.1076/2007, holding that the tenant has not committed any wilful default and duly depositing rent, nothing survives in this revision petition. Therefore, without adverting to the other facts, CRP.132/2009 is dismissed. No costs.? 19. In view of the order passed in CRP.1076/2007, holding that the tenant has not committed any wilful default and duly depositing rent, nothing survives in this revision petition. Therefore, without adverting to the other facts, CRP.132/2009 is dismissed. No costs.? 19. As regards bona fide requirement of the landlady for additional accommodation, it is contended by the learned counsel for the petitioner that the burden lies on the respondent/landlady to prove her case. Since the landlady has not produced any other document except document Ex.B6 to prove that she has purchased some raw materials for her business, it is contended that the appellate authority ought to have held that the document Ex.B6 is not sufficient to prove the bona fide requirement of the premises for additional accommodation. The learned Counsel for the revision petitioner further contended that the findings of the appellate authority to the effect that the purchase bills would prove the development of business is perverse and that the eviction directed by the appellate authority on the ground of additional accommodation is liable to be set aside. 20. The learned counsel for the petitioner further stated that the age of the landlady was about 62 years at the time, when she filed the application and that she has now crossed the age of 80 in view of the pendency of this proceedings for more than 16 years. It is submitted that there may not be any possibility of involvement of landlady in business and it was therefore submitted that the requirement of premises on the ground of additional accommodation cannot be believed. Regarding acts of waste, it is not necessary to hear any lengthy arguments, in view of the position that the tenant has succeeded before the Rent Controller and the eviction on the ground of acts of waste, was not argued before the appellate authority by the respondent. Hence, no issue was framed by the appellate authority. From this, it is evident that the landlady is not particular/interested in getting the order of eviction on the ground of acts of waste. Hence, this Court is inclined to follow the Rent Controller. Further, no evidence was let in properly to prove that the tenant has committed acts of waste, which is likely to impair the building or causing threat to the structural stability of the building. 21. Hence, this Court is inclined to follow the Rent Controller. Further, no evidence was let in properly to prove that the tenant has committed acts of waste, which is likely to impair the building or causing threat to the structural stability of the building. 21. This Court considered the submissions of the learned counsel appearing for the petitioner on all the issues carefully. The Rent Controller put the burden on the landlady to prove that the tenant has committed default as alleged. Merely because, the respondent is not in the habit of issuing receipts, it cannot be taken that the tenant can be absolved from proving the payment of rent by him. In this case, the tenant has not examined anyone, except himself. The tenant has admitted that the contractual rent is Rs.2,300/- per month and the rental agreement is also marked as Ex.A2. It is the case of the landlady that the tenant paid rent at Rs.2,300/- per month up to December 1999 and that he did not pay the monthly rent from January 2000. When there is huge arrears of rent, the tenant wanted to take advantage of the silence of landlady. 22. From the evidence, it is clear that the respondent/landlady issued notice on 16.08.2002 demanding the rent for the period from January 2000. It is only thereafter, the tenant issued a reply on 22.08.2002 and came forward to pay the rent for the month of June and July 2002. It is not in dispute that the landlady has issued the receipt and that the circumstance was explained, how the receipt was issued for lessor amount. The quantum of rent is not in dispute. Hence, this Court is of view that the case of the landlady is more probable that the revision petitioner has committed default from January 2000. 23. When the burden lies on the revision petitioner to prove that he has paid rent without default from January 2000, the revision petitioner has no independent evidence or document to prove that he has paid rent up to May 2002. Though it is stated that the landlady is not in the habit of issuing receipts after 1999, the tenant has never demanded receipts from the landlady. In such circumstances, the tenant at least has to prove by some evidence that rent is being paid regularly by him. Though it is stated that the landlady is not in the habit of issuing receipts after 1999, the tenant has never demanded receipts from the landlady. In such circumstances, the tenant at least has to prove by some evidence that rent is being paid regularly by him. The rent for two months was paid for the first time and it was refused by the landlady. When the revision petitioner has come forward with a story that he has been paying rent regularly, it is not established by any oral or documentary evidence or at least by showing the accounts book of the revision petitioner. 24. The appellate authority after considering the fact that the tenant has miserably failed to prove his case that he has been paying rent without any default till May 2002, has rightly found that the default is true and that it is wilful. It is held that the tenant has committed wilful default, and the default is from January'2000. He cannot file a petition under Section 8 (5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, on the ground that the payment of rent for two months for June and July 2002 is refused by the landlady. 25. Regarding bona fide requirement of the premises for additional accommodation, it is not disputed before this Court that the business is being run by the landlady for more than half a century in partnership. The landlady is also manufacturing note books. The volume of business would definitely show that the landlady may require additional space. The document Ex.B6, a bunch of bills, is enough to show that the landlady acquired huge raw materials for doing business in note books and stationary. The purchase bills certainly show the volume of business and justify additional requirement. Hence, Ex.B6 is relevant. From the description of the demised property, it is seen that the demised property is situated in a busy commercial area at Madurai Town. 26. It is not the case of the petitioner that the landlady owns some other building or the partnership business can be shifted to some other place to prosper in business. The appellate authority, for reasons, has found that the bona fide requirement of the building by the land lady for additional accommodation is proved. This Court do not see any perversity in the order of the appellate authority. 27. The appellate authority, for reasons, has found that the bona fide requirement of the building by the land lady for additional accommodation is proved. This Court do not see any perversity in the order of the appellate authority. 27. As a result, these civil revision petitions are dismissed and the order passed by the Rent Control Appellate Authority, Madurai in R.C.A. Nos. 70 and 71 of 2007 reversing the fair and decreetal order dated 05.03.2007 made in R.C.O.P.Nos.15 of 2003 and 327 of 2002 on the file of the Additional District Munsif cum Buildings Rent Controller, Madurai Town, is confirmed. No costs. Consequently, the connected miscellaneous petition is dismissed.