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2018 DIGILAW 3965 (MAD)

M. JOGHEE GOWDER v. GEORGE

2018-10-26

P.T.ASHA

body2018
JUDGMENT P.T. ASHA, J. 1. Since the issue involved in these revisions are similar and both the authorities below have dealt with the Rent control proceedings and disposed of the same by way of a Common Order, this Court is also passing a Common Order. 2. The following are the details of the revisions: (a)C.R.P.(NPD).No.1482 of 2009 is filed challenging the order of the learned Sub Judge, Ootacamund, The Nilgiris, in R.C.A.No.36 of 2005 confirming the fair and decreetal order of the learned Rent Controller, Coonoor, in R.C.O.P.No.22 of 1999 in respect of Door No.29C and the tenant is one George. (b)C.R.P.(NPD).No.1483 of 2009 is filed challenging the order of the learned Sub Judge, Ootacamund, The Nilgiris, in R.C.A.No.37 of 2005 confirming the proceedings of the learned Rent Controller, Coonoor, in R.C.O.P.No.21 of 1999 in respect of Door No.28 and the tenant is one Poovaswamy. 3. The revision petitioner, who is the owner of the non residential premises in which the respondents are the tenants, had decided to start a fertilizer agency in Coonoor for which he required the petition premises. It is the case of the revision petitioner that the tenants had willfully neglected to pay the monthly rents and despite notice given to pay the rents, they have failed to pay the arrears of rents. Insofar as the tenant in R.C.O.P.No.22 of 1999 is concerned, the period of arrears was 01.04.1993 to 31.05.1999 totaling a sum of Rs. 11,100/- as a monthly rent was a sum of Rs. 150/-. As regards the tenant in R.C.O.P.No.21 of 1999, the period of arrears was similar as also the amount of the rents due. In the case of the tenant in R.C.O.P.No.23 of 1999, though the period of arrears was the same, the total arrears was Rs. 6,700/- as a monthly rent was a sum of Rs. 50/-. The tenant was one K.Velayutham. 4. The respondents in each of these rent control petitions had taken a similar defence that they have been tenants under the petitioner's father one Moracha Gowder, who was in the habit of collecting rents in a lump sum and this procedure continued after the petitioner's father's demise. All of a sudden, when the respondents had tendered the rents, the petitioner did not receive the same stating that he would receive it after enhancing the rent. He had also demanded additional amount as advance. All of a sudden, when the respondents had tendered the rents, the petitioner did not receive the same stating that he would receive it after enhancing the rent. He had also demanded additional amount as advance. This was followed by a Legal Notice wherein the revision petitioner had claimed certain amounts as arrears which was totally false and further, requested the tenants to vacate the premises as he required the property for his own use and occupation. Along with a reply, the tenants had also sent the rents by Demand Draft and the said Demand Draft was returned by the revision petitioner stating that he had already initiated eviction proceedings. They further contended that the petitioner had not waited for the statutory period of two months and therefore, there was no bonafides in the claim of the revision petitioner. The learned Rent Controller on an evaluation of the oral and documentary evidence dismissed the petition on both counts. The revision petitioners and the said K.Velayutham took up the orders and challenged in R.C.A.No.36 to 38 of 2005 on the file of the learned Sub Judge, Ottacamund, The Nilgiris. The appellate authority concurred with the findings of the learned Rent Controller and dismissed the appeals. Challenging these orders, the revision petitioners had filed the above revisions and K.Velayutham had filed C.R.P.No.1484 of 2009 which was disposed of by this Court by ordered dated 23.09.2011. 5. Heard Mr.Kingston Jerold, learned counsel appearing for the revision petitioners and Mr.B.Prashanth Nadaraj appearing on behalf of M/s.AL. Ganthimathi for the respondents. 6. Mr.Kingston Jerold, learned counsel would argue that the duty is cast upon the tenant to pay the rents without a demand being made by the landlord. That apart, the tenants who had come forward with the case that they were in the habit of paying the rents in the lump sum had failed to prove the same. He would further argue that the authorities below have for extraneous reasons rejected the petitioner's claim for eviction on the ground of owner's occupation. 7. Per contra, Mr.B.Prashanth Nadaraj learned counsel would contend that the tenants had tendered the rents even before the expiry of the statutory period of two months and it was the revision petitioner, who had refused to receive the Demand Draft and had contended that he was not receiving the same as he has already initiated eviction petition. 7. Per contra, Mr.B.Prashanth Nadaraj learned counsel would contend that the tenants had tendered the rents even before the expiry of the statutory period of two months and it was the revision petitioner, who had refused to receive the Demand Draft and had contended that he was not receiving the same as he has already initiated eviction petition. Therefore, there is no default much less a wilful default. He had produced the Judgment reported in [Raja Muthukone (Dead) by LRs v. T.Gopalasami and another, (2002) 4 SCC 204 ] to buttress the above contention. He would further argue that as regards the owner's occupation, the revision petitioner had not shown his bonafides since there was no evidence forthcoming on his side to show that he has taken steps to start a fertilizer agency and both the authorities below have rightly considered the above and dismissed the appeal. 8. Heard the submissions made on either side and perused the material available on record. 9. The appellate authority has dismissed the claim of the revision petitioner for eviction on the ground of wilful default as follows: "..The counsel for the petitioner in all the petitions in his usual fairness would admit that the tenant in all the petitions have paid the admitted arrears of rent on the first date of hearing and paid the rent subsequent to the first hearing also. Since there is no previous proceedings between the petitioner and the tenants regarding the wilful default in payment of rent, or any dispute between the landlord and tenant, there is no necessity for the tenant to withhold the rent in all the petitions for the alleged period of non payment of rent. The case of the tenant in all the petitions is highly probable as their case is inconsonance with their evidence. The case of the tenant in all the petitions is highly probable as their case is inconsonance with their evidence. 37.Since the tenants have tendered the rent before the expiry of two months time and since the said amount has been validly paid to the landlord on the first date of hearing, the landlord having been refused to receive the rent before the expiry of two months period as per the decision of our Hon'ble High Court and since the landlord has filed a petition before the expiry of two months as contemplated under the statute and as well as against the decision held by the (end of page 18 in the original) Hon'ble Supreme Court of India, there is absolutely no default on the part of the tenants, much less wilful default in payment of rent to the premises involved in all the three petitions." 10. No exception can be taken to this finding. As regards the second point of owner's occupation, both the authorities below have held that the premises in which the respondent proposes to conduct his business belongs to the Coonoor Municipality and that the respondent cannot run this business in the premises and the same has to be demolished and reconstructed. The learned counsel for the revision petitioner has not been able to refute these findings. I therefore find no infirmity in the orders of the authorities below. The Civil Revision Petitions are dismissed. There shall be no order as to costs.