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2019 DIGILAW 1958 (MAD)

V. S. Balasaravanan v. S. Santha

2019-07-30

P.T.ASHA

body2019
JUDGMENT : 1. The unsuccessful tenant and its sole proprietor before the Authorities below are the revision petitioners before this Court. 2. The parties are referred to as landlady and tenant. 3. The facts which have culminated in filing of the present revision petition is hereinbelow narrated: Landlady’s Case: The landlady had filed R.C.O.P.No.4 of 2012 on the file of the learned Principal District Munsif-cum-Rent Controller, Poonamallee, for evicting the tenant on the ground of wilful default, owner’s occupation and nuisance. It is the case of the landlady that she had let out the demised premises which was the property measuring an extent of 2 grounds and 98 sq.ft. in Avadi, Chennai-71 to the tenant. The monthly rental was a sum of Rs.4,000/- per month and the lease was given to the tenant for non residential purpose. The tenant was cutting and making wooden packing cases under the name and style of Veni Packers. 4. The landlady would contend that up to September 2010, the tenant had paid the monthly rentals and in fact, the default was from October 2010 onwards. Therefore, she would contend that the tenant was liable to be evicted on the ground of wilful default. The landlady would also contend that she has been receiving complaints from the neighbours about the nuisance that has been created by the tenant and therefore, he was to be evicted on the ground of nuisance as well. She would further contend that she wanted to develop the property in a profitable manner and requested the tenant in the month of September 2010 to vacate and hand over the vacant possession of the premises to her. The tenant, who had initially sought for six months time to vacate the premises, however, failed to do so. On 12.08.2011, the landlady had issued a legal notice calling upon the tenant to vacate the premises and though the said notice was received by the tenant on the very next day, he has not chosen to send any reply. Tenant’s Case: 5. On entering appearance, the tenant would contend that the tenancy was in respect of a vacant site and that a superstructure has been put up by him. He further contended that the rental advance of Rs.2 lakhs was paid on the date of entering tenancy and subsequently, a sum of Rs.3,00,000/- was paid. Tenant’s Case: 5. On entering appearance, the tenant would contend that the tenancy was in respect of a vacant site and that a superstructure has been put up by him. He further contended that the rental advance of Rs.2 lakhs was paid on the date of entering tenancy and subsequently, a sum of Rs.3,00,000/- was paid. He would further contend that the rent had been paid up to the month of September 2011 and the rent for the subsequent period could not be paid since the landlady who is living in Hyderabad did not come down to collect the rent. He would further contend that the landlady was in the habit of receiving the rents in lump sum. The tenant would further contend that the lease in his favour was for non residential purpose and therefore, the request for owner’s occupation for residential purpose is not maintainable. The tenant further contend that for the past 15 years, he has been carrying on the business and none of the neighbours have complained that the tenant was causing nuisance. He would submit that these allegations were nothing but an after thought. He therefore sought for the dismissal of the proceedings. Proceedings pending RCOP and order of Rent Controller: 6. Pending the rent control proceedings, the landlady had filed M.P.No.128 of 2012 invoking the provisions of Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, as amended by Act 23 of 1973, for a direction to the tenant to pay a sum of Rs.1,20,000/- that was due. The said petition was allowed by the learned Rent Controller by order dated 15.04.2013 who observed that no documents have been filed by the tenant to show that the building had been put up by him and on the contrary, the landlady had filed Tax receipts in respect of the building which stand in her name. The learned Rent Controller has further held that there was no proof to show that the tenant had paid the advance amount of Rs.5,00,000/-. The said application was allowed and a direction was given to the tenant to pay the said amount on or before 29.04.2013. On 29.04.2013, when the matter was listed, the respondent had produced proof to show that the payment of Rs.1,20,000/- had been made by Demand Draft and the same had been received by the landlady. The said application was allowed and a direction was given to the tenant to pay the said amount on or before 29.04.2013. On 29.04.2013, when the matter was listed, the respondent had produced proof to show that the payment of Rs.1,20,000/- had been made by Demand Draft and the same had been received by the landlady. Despite complying with the order dated 15.04.2013 the tenant had taken up the order on appeal in R.C.A.No.15 of 2013 and ultimately, by order dated 16.07.2014, the said Rent Control Appeal was dismissed confirming the order M.P.No.128 of 2012 in R.C.O.P.No.4 of 2012. 7. The learned District Munsif-cum-Rent Controller, after hearing both the parties, allowed R.C.O.P.No.4 of 2012 by granting the order of eviction on the ground of wilful default and owner’s occupation. With reference to eviction on the ground of nuisance, the petition was dismissed. Appellate Authority: 8. Challenging the said fair and decreetal order in R.C.O.P.No.4 of 2012, the tenant had moved R.C.A.No.15 of 2013 on the file of the learned Subordinate Judge (Appellate Authority), Poonamallee. The learned Appellate Authority confirmed the order of the learned Rent Controller. It is challenging this order that the tenant is before this Court. Submissions: 9. Mr.J. Ravikumar, learned counsel appearing on behalf of the revision petitioners would contend that both the authorities below have totally overlooked the fact that a sum of Rs.5,00,000/- had been paid to the brother of the landlady, which according to him, has been admitted by P.W.1, the daughter-in-law of the landlady. He had also produced a statement showing the details of the rents paid from September 2010 till 15.04.2016 totalling a sum of Rs.2,68,000/-. He would further submit that the landlady cannot seek owner’s occupation for residential purposes in respect of a property which has been let out for non residential purpose. 10. The learned counsel appearing on behalf of the revision petitioners had also relied on the following Judgments: 1. 2006-3-L.W.713 - Chellammal v. Krishnaveni Ammal 2. 2010 (83) AIR 722 - Man Kaur (dead) by Lrs. v. Hartar Singh Sangha 3. 2005(2) KLJ 46 - Ratheesh Kumar v. Jithendra Kumar T. Lodhaya 11. He further argued that the evidence of P.W.1 had to be eschewed and since she is a power agent, the power agent cannot adduce evidence on behalf of the Principal. 12. 2010 (83) AIR 722 - Man Kaur (dead) by Lrs. v. Hartar Singh Sangha 3. 2005(2) KLJ 46 - Ratheesh Kumar v. Jithendra Kumar T. Lodhaya 11. He further argued that the evidence of P.W.1 had to be eschewed and since she is a power agent, the power agent cannot adduce evidence on behalf of the Principal. 12. Mr.Ashok Menon, who argued on behalf of the landlady would submit that the very fact that a sum of Rs.1,20,000/- had been paid after the orders in M.P.No.128 of 11 would itself establish that the tenant has not been paying the rents on time. He would further submit that the tenant had come forward with a case that an advance amount had been paid, however, he has not substantiated the same by filing any evidence and the authorities below have rightly come to the conclusion that the tenant is guilty of wilful default. He would further submit that the property was required for developing the same and the landlady has stated that she is developing the same to augment income and therefore, the application for owner’s occupation is very much maintainable. Discussion: 13. Heard the learned counsel for the revision petitioners and the learned counsel for the respondent and perused the material on record. The authorities below have granted an order of eviction on the ground of Willful default and owner’s occupation and these are the two issues that have to be considered by this Court. Willful Default: 14. The landlady has come forward with the contention that the tenant has been in arrears from the month of October 2010 and the defence to this contention was that (a)The tenancy was only with reference to a vacant site and (b)The tenant had paid an advance of a sum of Rs.5,00,000/-. 15. Though the tenant has taken the above defence, however there is not a shred of evidence to prove the said facts and both the authorities below, after taking into consideration the evidence, have come to this conclusion that the tenant, who claims in his counter that the rents had been paid up to September 2011 has failed to prove the same particularly when the landlady had refuted it by stating the rents were paid only upto September 2010. On the contrary, on 29.04.2013, the tenant has paid a sum of Rs.1,20,000/- as directed in M.P.No.128 of 2012 which clearly shows that the tenant has been in arrears of rents since October 2010. Even as per the statement provided by the learned counsel for the petitioners showing the payment details, it is evident that the tenant has not been paying the rents on time. On 29.04.2013, a total sum of Rs.1,20,000/- has been paid. Thereafter, on 20.08.2014, Rs.64,000/- has been paid. On 17.03.2015, Rs.24,000/- has been paid. On 31.10.2015, Rs.32,000/- has been paid and on 15.04.2016, Rs.20,000/- has been paid. Therefore, it is evident that the tenant is guilty of wilful default. The factum of paying an advance of Rs.5,00,000/- has also not been proved by the Tenant. Owner’s Occupation: 16. The next contention is with reference to owner’s occupation. It is the case of the tenant that the building let out for non residential purpose is sought for owner’s occupation for a residential purpose. In the petition filed by the landlady, she would submit as follows: “(7). I submit that the petitioner has intended to develop her property in a profitable manner and so, the petitioner intimated to the respondents in the month of September 2010 to vacate for the use of the petitioner and her family members.” 17. Therefore, it is evident that she wanted to develop the property for a non residential purpose where she could earn income. However, no question has been posed by the tenant to P.W.1 with reference to the purpose for which the Owner’s occupation was sought for. 18. The contention of the tenant that the evidence of P.W.1 has to be ignored since she was a Power of Attorney and a Power Agent is not empowered to adduce evidence has to be necessarily rejected. 19. A perusal of the evidence of P.W.1 would indicate that she has not adduced evidence as power agent and on the contrary, she has given evidence only on the basis of the authorization letter given to her by the landlady. It is needless to state that being the daughter-in-law of the landlady, she is also competent to adduce evidence as the facts are very much within her knowledge. Therefore, this contention of the tenant is also got to be rejected. It is needless to state that being the daughter-in-law of the landlady, she is also competent to adduce evidence as the facts are very much within her knowledge. Therefore, this contention of the tenant is also got to be rejected. In view of the above, I do not find any infirmity in the order passed by the Authorities below. Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.