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2018 DIGILAW 3057 (MAD)

Chandrasekaran v. Marimuthu

2018-09-19

G.R.SWAMINATHAN

body2018
ORDER : 1. The respondents herein are the petitioners in RCOP No.5 of 2005 before the Rent Controller cum District Munsif at Pattukkottai. The said RCOP was filed for evicting the revision petitioner herein from the petition premises. The grounds of willful default and demolition and reconstruction were projected in the said RCOP. The revision petitioner herein filed his counter denying the title of the landlord over the superstructure. His defence is that the tenancy was only in respect of the site and that the petitioners in RCOP did not have title over the superstructure. According to the revision petitioner, the superstructure was put up by him and that there is nothing malafide in his denial of title of the landlords in respect of the superstructure. 2. The learned Rent Controller by order dated 29.07.2010 dismissed RCOP No.5 of 2005. Aggrieved by the same, the respondents herein filed RCA No.1 of 2011 before the Appellate Authority/Sub Court, Pattukkottai. The appellate authority by order dated 30.08.2016 allowed the appeal. Challenging the order passed by the appellate authority, this civil revision petition has been filed. 3. Heard the learned counsel on either side. 4. The learned counsel appearing for the revision petitioner pointed out that before the institution of RCOP No.5 of 2005, notices were exchanged between the parties. Ex.P3, dated 07.02.2005 was issued by the landlord. In response thereto, the revision petitioner caused to issued reply dated 15.02.2005 (Ex.P4) in which the title of the land lord over the superstructure was denied. But then, RCOP No.5 of 2005 came to be filed only under Section 10(2)(i) and Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It is relevant to point here that notwithstanding the denial of title of the landlord by the revision petitioner herein in respect of the superstructure, the ground available under Section 10(2)(vii) was not taken. 5. In the meanwhile, the revision petitioner filed O.S No.47 of 2005 before the District Munsif Court, Pattukkottai seeking the relief of permanent injunction that he must be evicted only by due process of law. The suit was decreed on 29.07.2010 by the trial court after holding that the landlords did not own the building. 5. In the meanwhile, the revision petitioner filed O.S No.47 of 2005 before the District Munsif Court, Pattukkottai seeking the relief of permanent injunction that he must be evicted only by due process of law. The suit was decreed on 29.07.2010 by the trial court after holding that the landlords did not own the building. This decree dated 29.07.2010 made in O.S No.47 of 2005 on the file of the District Munsif Court, Pattukkottai was confirmed in A.S No.2 of 2011 on the file of the Sub Court, Pattukkottai. The First Appellate Court dismissed the appeal filed by the landlords on 31.03.2013. The landlords did not file any Second Appeal challenging the judgment and decree dated 31.03.2013 made in A.S No.2 of 2011. 6. In the light of these developments, the learned counsel appearing for the revision petitioner contended that the landlord ought to have filed an interlocutory application calling upon the Rent Controller to render a finding as regards the bonafides of the tenant in the matter of denial of title. This should have been framed as a preliminary issue. In as much as such an exercise was not undertaken either by the landlords or by the Rent controller, the entire proceedings became vitiated. In this regard, the learned counsel drew the attention of this Court to the decision reported in 2009 (3) CTC 852 (S.Sundram vs. Meer Hameed). His further contention is that the a specific finding had been rendered in the civil proceedings instituted by the revision petitioner to the effect that the superstructure belongs to the revision petitioner and not to the respondents herein. That finding holds good and is binding on the respondents herein in as much as the judgment was rendered inter-parties. It would constitute as a res judicata. 7. The learned counsel placed reliance on the decisions of the Hon'ble Supreme Court 1994 (2) SCC 14 and 1997 (2) SCC 552 . He also faulted the respondents for not having invoked Section 10(2)(vii) of the Act while filing the RCOP. This is all the more so because, even prior to the filing of the RCOP, notices have been exchanged between the parties. He also contended that in matters involving denial of title, all that the authorities below ought to see is only the bonafides and nothing else. This is all the more so because, even prior to the filing of the RCOP, notices have been exchanged between the parties. He also contended that in matters involving denial of title, all that the authorities below ought to see is only the bonafides and nothing else. A finding must be recorded as to whether the denial of title of the landlord was malafide or bonafide. He therefore wanted this Court to set aside the order passed by the appellate authority and allow this civil revision petition. 8. The learned counsel appearing for the respondents controverted the aforesaid contentions. The learned counsel on either side filed their written submissions. The first issue that calls for determination is whether the landlord was obliged to have filed the RCOP by invoking Section 10(2)(vii). Tamil Nadu Act 18 of 1960 was enacted to prevent unreasonable eviction of tenants from the rented buildings. Once a person was inducted as a tenant, the landlord can evict him only if any of the grounds set out in Sections 10, 12 and 14 are made out. It is open to the landlord to seek eviction of the tenant on any of the grounds. The landlord cannot be compelled to invoke a particular provision. 9. It is true that in the present case, even before the filing of the RCOP, the tenant had denied the title of the landlord in respect of the superstructure. Therefore, the landlord could have very well invoked Section 10(2)(vii) of the Act. But then, the landlord had chosen not to file the petition under the aforesaid provision. He chose to project the grounds available under Sections 10(2)(i) and Section 14(1)(b) of the Act. 10. Therefore, when the landlord has chosen to consciously not file the petition under Section 10(2)(vii) of the Act notwithstanding the prior denial of title by the tenant, this Court can only hold that he has waived the right to seek eviction of the tenant on that ground. In other words, even if this Court comes to the conclusion that the denial of the landlords' title by the tenant is not bonafide, still eviction cannot be made on that ground. It is not for this Court to throw out a tenant on a ground which has not been projected by the landlord. In other words, even if this Court comes to the conclusion that the denial of the landlords' title by the tenant is not bonafide, still eviction cannot be made on that ground. It is not for this Court to throw out a tenant on a ground which has not been projected by the landlord. Therefore, the contention raised by the learned counsel appearing for the revision petitioner has force only to this limited extent. In other words, the RCOP filed by the landlord cannot be held to be not maintainable only for the reason that the landlord has not chosen to invoke Section 10(2)(vii) of the Act. 11. The other major ground strongly urged by the learned counsel for the revision petitioner is that the landlord ought to have filed an interlocutory application calling upon the rent controller to give a finding as to whether denial of title of the landlord by the tenant is bonafide. It is no doubt true that His Lordship Mr.Justice G.Rajasuria in the decision reported in 2009 (3) CTC 852 (S.Sundaram vs. Meer Hameed) observed that as per the second proviso to sub-section (1) of Section 10 of the Act, the Controller should have taken up the issue of denial of title as a preliminary point and given its verdict thereon. 12. I am however not persuaded by the said submission. This is for two reasons. His Lordship Mr.Justice G.Rajasuria in the aforesaid decision while allowing the civil revision petition directed to rent controller to dispose of the RCOP by deciding on merits, including the point relating to title under Section 10 of the Act. That apart, there is a direct authority on this point. It was held in the decision reported in (1984) 97 LW 100 (V.S.Devadoss vs. S.Velu) as follows : “A consideration of the sections of the Act as well as the Rules does not indicate that there is any provision thereunder to hold any enquiry in proceedings under the Act in the nature of a preliminary enquiry on one of the points in dispute between the parties. Therefore. The course adopted by the Appellate Authority in proceeding to deal with the question of the bona fide denial of title as a preliminary point does not have any statutory support. Therefore. The course adopted by the Appellate Authority in proceeding to deal with the question of the bona fide denial of title as a preliminary point does not have any statutory support. Even as a matter of practice, before civil courts, a trial within a trial, as it were, has not been encouraged at all by Courts, as by adopting such a course, in the event of the superior court not agreeing with the conclusion of the trial court, the matter necessarily has to be remitted for being reconsidered. It is only with a view to obviate the proceedings being shunted from court to court, that courts have been uniformly following a very salutary principle that all disputes arising between the parties should be dealt with and adjudicated upon as a whole and not piecemeal. It is, therefore, evident that the procedure adopted by the Appellate Authority in having considered the bona fide denial of the respondent as a preliminary issue has no statutory support and also runs counter to the practice in vogue even before civil courts. The Rent Controllers and the Appellate Authorities though they otherwise function as civil courts, are special authorities designated under the Act for the purpose of disposing of eviction applications and appeals arising therefrom under the provisions of the Act and they have been constituted with specific powers outside which, they cannot arrogate to themselves, other or further powers. Taking into account these aspects, it is clear that the Appellate Authority erred in proceeding to deal with the bona fides of the denial of title as a preliminary issue and in dismissing the application for eviction in limine.” 13. Thus, there cannot be a trial within a trial. All that the second proviso to Section 10(1) of the Act mandates is that where the tenant denies the title of the landlord, the controller shall decide whether the denial is bonafide. If he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a civil court and the court may pass a decree for eviction on any of the grounds mentioned in the sub section, notwithstanding that the court finds that such denial does not involve forfeiture of the lease. If he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a civil court and the court may pass a decree for eviction on any of the grounds mentioned in the sub section, notwithstanding that the court finds that such denial does not involve forfeiture of the lease. In other words, the only mandate cast on the rent controller in this proviso is that the issue as regards the bonafides of denial must be taken as the primary issue or principal issue or first issue. If the issue is answered in favour of the tenant, the question of embarking upon consideration of the other aspects will not arise. 14. Since the decision reported in 2009 (3) CTC 852 (S.Sundaram vs. Meer Hameed) does not consider the earlier ruling reported in (1984) 97 LW 100 (V.S.Devadoss vs. S.Velu), I am inclined to hold that the ruling in 2009 (3) CTC 852 is not a binding precedent. It is for the very same reason that I am inclined to hold that the other decisions relied upon by the learned counsel appearing for the revision petitioner reported in 1991 (3) SCC 230 , 2010 (4) MLJ 118 and 1992 (2) LW 564 do not have any application to the facts and circumstances of the case. 15. The RCOP was dismissed relegating the landlord to move the civil court for relief against the tenant. Normally, a denial of title of the landlord by the tenant will have the consequence of forfeiture of the lease. But then, in the present case, in as much as the landlord has not invoked Section 10(2) (vii) of the Act, the denial of title of the landlord by the tenant will not have the said consequence. The landlord must satisfy the court that a case for eviction has been made out on grounds of willful default or demolition and re-construction or both. 16. In fact, in the present case, the rent controller had given a finding that the denial of title of the landlord by the tenant in respect of the superstructure is bonafide in nature and therefore, the RCOP is not legally maintainable. The landlords were relegated to move the civil court. This finding had been set aside by the appellate authority. In fact, in the present case, the rent controller had given a finding that the denial of title of the landlord by the tenant in respect of the superstructure is bonafide in nature and therefore, the RCOP is not legally maintainable. The landlords were relegated to move the civil court. This finding had been set aside by the appellate authority. In fact, the appellate authority has elaborately considered this aspect of the matter from Paragraph Nos.23 to 35 of its order. As rightly pointed out by the learned counsel appearing for the landlords, this being a finding of fact is clearly binding on this court. The decision of the Hon'ble Supreme Court reported in 2016 (3) TNLJ 77 (Civil) Boorugu Mahadev & Sons & another vs. Sirigiri Narasing Rao & Ors) relied upon by the learned counsel for the respondents is clearly on the point. The Hon'ble Supreme Court held as under : “(18) The Constitution Bench of this Court settled the law relating to exercise of jurisdiction of the High Court while deciding revision in rent matters under the Rent Control Act in the case of Hindustan Petroleum Corporation Limited (supra). Justice R.M. Lodha the learned Chief Justice speaking for the Bench held in para 43 thus : “43. 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 as to 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 reassess 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”?.” 17. It cannot be stated that the finding of fact recorded by the appellate authority is perverse or has been arrived at without considering the material evidence or such finding is based on no evidence. Therefore, the learned counsel appearing for the revision petitioner fell back on the doctrine of res judicata. He would contend that in the civil suit instituted by the tenant in O.S No.47 of 2005 on the file of the District Munsif Court, Pattukkottai, a categorical finding has been given to the effect that the superstructure belongs to him and not to the landlord and that this finding was not vacated or set aside by the First Appellate Court in A.S No.2 of 2011. The submission is that the Appellate Authority ought to have applied the principle of res judicata. In this regard, he placed reliance on the decisions reported in 1994 (2) SCC 14 and 1997 (2) SCC 552 . 18. Again, I am unable to agree with the aforesaid submission. The Hon'ble Supreme Court in the decision reported in (2008) 4 SCC 594 (Anathula Sudhakar Vs. P.Buchi Reddy) held as follows : “But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra). The Hon'ble Supreme Court in the decision reported in (2008) 4 SCC 594 (Anathula Sudhakar Vs. P.Buchi Reddy) held as follows : “But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.” 19. This Court went through the judgment rendered in O.S No.47 of 2005 dated 29.07.2010 on the file of the learned District Munsif, Pattukkotai. Two issues were framed and they read as under : “1.Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ? 2. To what other reliefs, the plaintiff is entitled to?” This Court also notes the Exs.A1 to A16 marked in the said suit. They do not in any way advance the case of the tenant that he put up the superstructure. The court was concerned with only one aspect in O.S No.47 of 2005 and that was whether the tenant should be protected against unlawful dispossession. Relief was granted to the tenant and the same was confirmed in appeal also. The issue regarding ownership over the superstructure did not arise directly and substantially in the said suit. Therefore, the finding rendered in the said suit cannot constitute as res judicata. 20. The revision petitioner admits that the respondents owned the site. The only defence is that they did not put up the superstructure. The learned counsel for the revision petitioner would further contend that in these circumstances, a detailed investigation regarding title is not warranted. In fact, the rent controller would not be competent to undertake such an exercise. All that needs to be seen is whether there is bonafides on the part of the tenant and nothing more. 21. The learned counsel for the revision petitioner would further contend that in these circumstances, a detailed investigation regarding title is not warranted. In fact, the rent controller would not be competent to undertake such an exercise. All that needs to be seen is whether there is bonafides on the part of the tenant and nothing more. 21. But, as rightly pointed out by the learned counsel appearing for the respondents when the tenant had admitted the title of the respondents in respect of the lands, the burden lay squarely on him to prove that it was he who put up the superstructure. As rightly pointed out by the learned counsel for the respondents, in the decision reported in 2018 (2) MWN (Civil) 55 (K.Shyamala vs. Khaleel Basha), it has been held that mere pleading by the tenant that he put up the superstructure would not suffice and that it must be proved by suitable evidence. The respondent has not shown that written permission from the landlord was obtained before the superstructure was put up as claimed by the tenant. In such an event, the superstructure belongs to the landlord and the revision petitioner herein will fall under the definition “tenant”. As rightly pointed out by the learned counsel for the respondents, the revision petitioner was born in the year 1960 while the superstructure was put in the year 1968. He was hardly 8 years then and therefore, his version does not appear to be probable at all. 22. The appellate authority after coming to the conclusion that the denial of title of the landlord by the tenant is not bonafide also noted that admittedly the revision petitioner has not paid the rent from 2010 onwards. Therefore, willful default is clearly made out. Failure to pay the rent during the pendency of the rent control proceedings would also amount to willful default. Therefore, the order passed by the appellate authority is confirmed and this civil revision petition stands dismissed. No costs.