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2018 DIGILAW 3354 (MAD)

Lilly v. K. Devaraj (Died)

2018-09-28

P.T.ASHA

body2018
JUDGMENT 1. The above Civil Revision Petition is filed challenging the concurrent order of eviction passed by the Authorities below against the revision petitioner. Landlord's Case:- 2. The Revision Petitioner is a tenant in respect of two portions in the ground floor with RCC roof and the entire first floor with Asbestos shed bearing Door No. 7, Ekkankipuram, 3rd Cross, Ayanavaram, Chennai-23. The respondent herein who is the owner of the premises had inducted the revision petitioner as a tenant in respect of one portion of the ground floor in the year 1989 on a monthly rent of Rs. 250/- for which an advance of Rs. 2,000/- was paid. Thereafter, in the year 1994, the revision petitioner had requested the respondent to lease out the other portion in the ground floor as well and thereupon he became the tenant with reference to both the portions in the ground floor and the rent was fixed at Rs. 400/- and an additional advance of Rs. 2,000/- was paid. It was the case of the respondent that the rent was periodically enhanced and as on the date of filing of Rent Control Petition the rent was Rs. 900/- p.m. for each of the portions. Meanwhile, the revision petitioner, in the year 1999, had requested the respondent to rent out the first floor to him and accordingly the respondent had put up a Asbestos shed and inducted the revision petitioner as tenant on a monthly rent of Rs. 500/- and the advance of Rs. 4,000/- which was paid in respect of the ground floor was treated as advance for the entire premises, now in occupation of the tenant. The rent for the first floor was enhanced to a sum of Rs. 1,000/- as on the filing of the Rent Control Petition. In all the revision petitioner was to pay a monthly Rs. 2,800/-. 3. The respondent had requested the revision petitioner to vacate and handover the vacant possession of the premises in her occupation since he was in need of the property as the property in which he was residing was only 450 sq. ft. and his family consisted of the petitioner, his wife, their sons, daughter-in-law and their grand-children. However, the revision petitioner refused to vacate and handover the vacant possession and added to it she stopped paying the rent with reference to the first floor portion claiming title to the same. ft. and his family consisted of the petitioner, his wife, their sons, daughter-in-law and their grand-children. However, the revision petitioner refused to vacate and handover the vacant possession and added to it she stopped paying the rent with reference to the first floor portion claiming title to the same. The revision petitioner had issued a legal notice dated 02.07.2006 which was replied to by the respondent and instead of paying the rent of Rs. 2,800/- the revision petitioner had filed R.C.O.P. No. 1380 of 2006 on the file of the XV Small Causes, Chennai, stating that she was liable to pay a rent of Rs. 1,800/- and that the respondent had refused to receive the same. She therefore, sought for depositing the rents into Court. Therefore, the respondent had filed R.C.O.P. No. 1919 of 2006 on the file of the XV Small Causes Court, Chennai for evicting the respondent on the grounds of owner's occupation, wilful default and denial of title. Tenant's Case:- 4. The Revision petitioner had filed a counter in which she would admit that she is the tenant in respect of the ground floor portions and that the monthly rent had been enhanced in the month of July 2004, to a sum of Rs. 1,800/- for both the portions. She would contend that a further advance of Rs. 6,000/- was received in July-2004 by the respondent and therefore, the rental advance in the hands of the respondent was a sum of Rs. 10,000/- in respect of the two portions let out in the ground floor. The revision petitioner further contended that she had been conducting prayers where her neighbours and relatives would also join and therefore the revision petitioner had approached the respondent for providing space in the first floor and the respondent had also granted permission to the revision petitioner to put up a construction in the first floor, on condition that she provides the funds for putting up the construction with an assurance that she would convey the same in her favour. The revision petitioner would further contend that in pursuance of this assurance, she had also put up a small prayer hall spending upto a sum of Rs. 30,000/- in the year 1999 and in 2001 a pucca prayer hall was put up by spending over a sum of Rs. The revision petitioner would further contend that in pursuance of this assurance, she had also put up a small prayer hall spending upto a sum of Rs. 30,000/- in the year 1999 and in 2001 a pucca prayer hall was put up by spending over a sum of Rs. 2,50,000/- through funds generated from third parties and by obtaining a GPF loan by her husband. The revision petitioner had contended that she has been paying the rents with reference to the ground floor without a default and since she is owner of the first floor, no rents was paid by her or demanded by the respondent herein. Thereafter, in the month of June 2006, when the rent was tendered for the ground floor portions, the respondent refused to receive the same, prompting the revision petitioner to send the same by the money order which was also refused by the respondent. Thereafter, the revision petitioner had followed the procedure contemplated under Section 9 of the Tamil Nadu Buildings [Lease and Rent Control] Act and ultimately RCOP No. 1380 of 2006 was filed by her seeking permission to deposit the rents with reference to the ground floor portions. The revision petitioner had denied the respondents title over the first floor, the revision petitioner further contended that the claim of owner's occupation was only with an object to evict the revision petitioner and there was no bona-fide need for the landlord to seek eviction on the ground of owner's occupation. It was her case that the respondent is staying very comfortably in the present premises in which she is in occupation. Order of the Rent Controller:- 5. The respondent had examined himself as PW-1 and marked Exs.P1 to P3. The revision petitioner had examined herself as RW-1 and Mrs. M. Ajees Mohideen, Mr. S. Munusamy & Mrs. Alphonsa as RW-2 to RW-4 and marked Exs.R1 to R11 to buttress her case. 6. Though the eviction was sought on the ground of denial of title, this issue was not raised as a point for consideration. However, the Rent Controller rejected the respondents contention with reference to eviction on the ground of wilful default and ordered eviction on the ground of owner's occupation. 6. Though the eviction was sought on the ground of denial of title, this issue was not raised as a point for consideration. However, the Rent Controller rejected the respondents contention with reference to eviction on the ground of wilful default and ordered eviction on the ground of owner's occupation. In dismissing the petition on the ground of wilful default, the learned Rent Controller had observed that the respondent has not proved the leasing out of the first floor portion and with reference to the rents in respect of the ground floor portion it was the respondent who had refused to receive the rents constraining the revision petitioner, tenant to deposit the amounts into Court and therefore, there was no default much less wilful default on the part of the revision petitioner. The Rent Controller had also held that the revision petitioner could not deny the title of the respondent with reference to the first floor alone and putting up the construction by the revision petitioner did not given him a defence from eviction under Section 10 of the Tamil Nadu Buildings [Lease and Rent Control] Act. The Rent Controller held in favour of the respondent with reference to the eviction on the ground of owner's occupation. Proceedings of the Appellate Authority:- 7. The respondent did not challenge the dismissal of the Rent Control Petition on the ground of wilful default. The revision petitioner filed RCA No. 29 of 2008 challenging the order of the Rent Controller granting eviction on the ground of owners occupation. It is seen from the affidavit filed by the counsel for the revision petitioner in M.P. No. 12647 of 2009 in RCA No. 29 of 2008 that the appeal was posted for arguments on 29.07.2009 since there was no representation on behalf of both the parties, the appeal was adjourned to 30.07.2009 and 04.08.2009 were once again both the counsels were not present. Thereafter, the learned Appellate Authority had posted the appeal for orders on 10.08.2009 and it was thereafter adjourned to 14.08.2009 and 28.08.2009. It was finally posted for judgment on 01.09.2009 and on 01.09.2009 the learned Appellate Authority on the basis of the oral and documentary evidence on file proceeded to dismiss the appeal. The revision petitioner would contend that on 23.06.2009 when the appeal had come up for hearing, there was no sitting and the appeal was re-posted on 13.07.2009. It was finally posted for judgment on 01.09.2009 and on 01.09.2009 the learned Appellate Authority on the basis of the oral and documentary evidence on file proceeded to dismiss the appeal. The revision petitioner would contend that on 23.06.2009 when the appeal had come up for hearing, there was no sitting and the appeal was re-posted on 13.07.2009. The revision petitioner had wrongly noted the adjourned dated as 29.08.2009 and thereafter realised that the said dated was a Saturday. She would further contend that the revision petitioner did not immediately realised that 29.08.2009 was a Saturday. On 31.08.2009 the counsel was away at its native place and could therefore not verify the A diary. On 01.09.2009, when she verified the A diary, she realised that the appeal had been dismissed on merits. 8. Immediately, the revision petitioner had filed M.P. No. 12647 of 2009 to re-open the appeal RCOP No. 29 of 2008 for arguments on behalf of the appellant. It is seen that the said M.P. No. 413 of 2009 was subsequently withdrawn by the revision petitioner. Challenging the order passed in RCA No. 29 of 2008 the revision petitioner has filed the instant revision petition on 17.10.2010. Submissions:- 9. Heard Mr. Amal Raj, learned counsel appearing for the revision petitioner. It is the contention of the learned counsel that the order passed ex-parte should be set aside since the learned Appellate Authority had passed orders on merits, without hearing the parties. 10. The learned counsel for the petitioner would submit that the eviction of the revision petitioner from the petition premises which includes the first floor is wrong in as much as the Rent Controller has held that the first floor has been constructed by the revision petitioner and there is no lease agreement with reference to the said portion and the tenancy is only with reference to two portions in the ground floor. He would therefore contend that the claim of eviction on the ground of owners occupation lacks bona-fide and should be dismissed. 11. In support of his argument, he had cited the following decision:- (i) Rajrani Devi vs. Yacoob Sheriff, (1989) 1 MLJ 494 (ii) Deena Nath vs. Pooran Lal, (2001) 5 SCC 705 12. He would therefore contend that the claim of eviction on the ground of owners occupation lacks bona-fide and should be dismissed. 11. In support of his argument, he had cited the following decision:- (i) Rajrani Devi vs. Yacoob Sheriff, (1989) 1 MLJ 494 (ii) Deena Nath vs. Pooran Lal, (2001) 5 SCC 705 12. The petitioner would contend that the occupation in the first floor was a vacant possession and therefore would not constitute a building as defined under Section 22 of the Tamil Nadu Buildings [Lease and Rent Control] Act. He would contend that therefore the very petition in respect of the first floor portion is liable to be dismissed. He would contend that the order of the Appellate Authority being an order passed without hearing the parties and giving them an opportunity is liable to be set aside. 13. Mr. R. Balachandran learned counsel appearing for the respondent would contend that the revision petitioner had accepted the ownership of the respondent to the property and the fact that he is denying the title of the respondent to the first floor portion he is liable to be evicted on the ground that the denial of title, more particularly when the denial is not bona-fide. He would further contend that both the authorities have held in favour of the respondent's need for the petition premises for its own use and sitting in revision under Section 25 of the Act, this Court should not interfere with the findings of both the authorities below. He would rely upon the judgment reported in (2002) 3 LW 553 for evicting the revision petitioner on the ground of denial of title. He would contend that a mere reading of the counter to the Rent Control Petition would amply demonstrate that the revision petitioner had denied the respondent title to the first floor of the petition premises and persisted in the statement throughout and therefore the denial is not a bona-fide denial and the revision petitioner ought to be evicted on the ground of denial of title as well. Discussion:- 14. Heard the submissions of the both parties and perusal of papers. 15. The revision petitioner has raised a preliminary objection to the order under challenge on the ground that, it has been passed without hearing the parties to the proceedings. Discussion:- 14. Heard the submissions of the both parties and perusal of papers. 15. The revision petitioner has raised a preliminary objection to the order under challenge on the ground that, it has been passed without hearing the parties to the proceedings. In this regard, useful reference can be made to the provisions of Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act, which deals with the procedure for filing the appeals from the orders of the Rent Controller. 16. Section 23 sub-rule 3 would read as follows:- 23. Appeal - (1)(a) The Government may, by general or special order notified in the [Tamil Nadu Government Gazette] confer on such officers and authorities as they think fit the powers of appellate authorities for the purpose of this Act, in such areas and in such classes of cases as may be specified in the order. (b) Any person aggrieved by an order passed by the Controller may, within fifteen days from the date of such order, prefer an appeal in writing to the appellate authority having jurisdiction. In computing the fifteen days aforesaid, the time taken to obtain a certified copy of the order appealed against shall be excluded. (2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision on the appeal. (3) The appellate authority shall call for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as he thinks fit either personally or through the Controller, shall decide the appeal. 17. A Reading of the sub-rule (3) clearly indicates that what is contemplated is a summary proceeding under the Rent Control Act. This Act contemplates that an opportunity of being heard should be afforded to the parties. From the affidavit filed by the revision petitioner in its application to re-open the hearing in RCA No. 29 of 2008, it is seen that several opportunities have been given to either side to advance their arguments and despite such an indulgence being granted by the Appellate Authority, the revision petitioner who has suffered an order of eviction did not evince interest to proceed with the enquiry. Therefore, the Rent Control Appellate Authority has considered the pleadings and the evidence on record, to arrive at the conclusion that the revision petitioner ought to be evicted from the premises since the same was required by the respondent landlord. 18. It is further seen that the eviction is also sought on the ground of the denial of title. Admittedly the revision petitioner has in very clear terms stated that she is owner of the first floor portion. In paragraph 10 of the Counter filed by her in RCOP No. 1919 of 2006, she has stated as follows:- "I respectfully state that though I am the absolute owner in respect of the first floor portion." 19. It is further evident that the revision petitioner has denied the title of respondents to the first floor portion of the property which she admits belongs to the respondent. The revision petitioner has persisted with the stand even in Rent Control Appeal despite the Rent Controller holding that the respondent is the owner of the entire premises, the denial therefore lacks bona-fides. 20. In the judgment Rajrani Devi Vs. Yacoob Sheriff, (1989) 1 MLJ 494 , this Court has held that with reference to a building put up in the vacant land, the tenancy is only with reference to the vacant land and not the building. This Court has held that the tenant is liable to pay rent for the land utilised by him. The Court has not held that the tenant is the owner of the building put up by him. In the case of reported in (2001) 1 LW 81, the property which was leased out was only a plot of land and therefore the Court has held that there is no tenancy with reference to the super structure that was put up by the tenant and since the lease was only with reference to the vacant site, the Rent Control Act would not apply. In the instant case, the construction which is admittedly a shed has been put up on the building belonging to the respondent and the revision petitioner has not let in evidence to prove that the construction had been put up by him, on an agreement that the same will be convey to him. In the instant case, the construction which is admittedly a shed has been put up on the building belonging to the respondent and the revision petitioner has not let in evidence to prove that the construction had been put up by him, on an agreement that the same will be convey to him. The revision petitioner has also not proved the fact that the construction had been put up by her at her expense particularly when it is the case of the respondent landlord that the construction was put up by him. Therefore, there is a denial of title which is not bona-fide and the revision petitioner is liable to be evicted on this ground of denial of title. 21. As regards the orders of the authorities below relating to the eviction on the ground of owners occupation, both the authorities below have considered the evidence on record and come to the conclusion that the prayer of the respondent for eviction on the ground of owners occupation is bona-fide. This Court, sitting in revision under Section 25 of the Tamil Nadu Buildings [Lease and Rent Control] Act, this Court cannot re-appreciate the evidence and the revision petitioner has not been able to show that the finding is perverse. 22. In the result, the Civil Revision Petition is dismissed. The revision petitioner shall handover the vacant possession of the premises within the period of two months from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is also closed.