Research › Search › Judgment

Madras High Court · body

2020 DIGILAW 1503 (MAD)

Manuel Gnanaprakasam v. Prema

2020-09-15

K.KALYANASUNDARAM

body2020
ORDER : K. Kalyanasundaram, J. 1. Since the issues involved in the civil revision petitions are interlinked and interwoven with each other, they are being disposed of by this common order. 2. These civil revision petitions arise out of the common order dated 12.07.2007 made in R.C.A. Nos. 53 & 64 of 2004, by the Rent Control Appellate Authority-cum-Principal Sub Court, Tiruchirappalli, reversing the common order, dated 19.03.2004, made in R.C.O.P. Nos. 264 of 2001 & 182 of 2000, by the Rent Controller-cum-Principal District Munsif Court, Tiruchirappalli. 3. The brief facts of the case are as follows: 3.1. R.C.O.P. No. 182 of 2000 was filed by the respondent - Vijayakumar, under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, (hereinafter referred to as "the Act") claiming to be the tenant under the revision petitioner - Manuel Gnanaprakasam, in respect of the petition property and seeking permission to deposit the rents in the Court. It is the case of the respondent that he is the tenant of the petition property under the revision petitioner and the monthly rent was Rs. 500/- payable on or before 10th of every English calender month. The tenancy for the petition property was oral. It is alleged that the landlord/revision petitioner received the rents till May, 2000 and when he tendered the rent on 27.07.2000, the revision petitioner refused to receive the same. Hence, he issued a notice dated 01.08.2000, through an Advocate, calling upon the landlord to specify the Bank Account enabling him to deposit the rent. It is further alleged by the said Vijayakumar that the landlord attempted to dispossess him by unlawful means, which necessitated him to file a suit in O.S. No. 668 of 2000, before the Subordinate Court, Trichy, for declaration, permanent injunction and other consequential reliefs. However, belatedly, a reply dated 12.08.2000 was given by the landlord with false allegations and hence, the rent control original petition. 3.2. The rent control original petition was opposed by the landlord/revision petitioner contending that the respondent - Vijayakumar is not a tenant under him, but his wife Smt. V. Prema is the actual tenant of the petition property. It is further stated that the monthly rent was not Rs. 500/- as alleged by the respondent. 3.2. The rent control original petition was opposed by the landlord/revision petitioner contending that the respondent - Vijayakumar is not a tenant under him, but his wife Smt. V. Prema is the actual tenant of the petition property. It is further stated that the monthly rent was not Rs. 500/- as alleged by the respondent. It is the case of the revision petitioner that the said Prema was inducted as a tenant of the ground floor portion of the petition property on 04.10.1990 and at that time, he borrowed a sum of Rs. 1,25,000/- from the said Prema by mortgaging his property and the interest for the said mortgage was agreed to be adjusted towards the rent. The oral agreement was reduced into writing as "Anuboga Varthamanam". The period of redemption of the mortgage was five years. Thereafter, on 22.11.1995, another sum of Rs. 1,75,000/- was borrowed by the landlord from the said Prema by mortgaging the petition property and accordingly, the total mortgage amount comes to Rs. 3,00,000/-. The said Prema agreed to adjust the interest for the total mortgage amount of Rs. 3,00,000/- at the rate of 18% per annum, which comes to Rs. 4,500/- per month, towards the rent. However, before expiry of the redemption period of five years, the revision petitioner issued a notice to the said Prema calling upon her to receive the mortgage amount in order to redeem the petition property and only after receipt of the notice, the said Prema along with her husband Vijayakumar filed the suit in O.S. No. 668 of 2000. The revision petitioner denied the allegation that he attempted to dispossess her from the petition property unlawfully. 3.3. R.C.O.P. No. 264 of 2001 came to be filed by the revision petitioner/landlord, under Sections 10(2)(i)(ii)(b)(c) and 10(3)(a)(b) of the Act seeking eviction of the respondent/tenant-Prema from the petition property on the grounds of wilful default, nuisance and for owner's occupation. Besides reiterating the averments in the counter affidavit filed by the revision petitioner in R.C.O.P. No. 182 of 2000, it is averred in the eviction petition that the respondent has committed wilful default in paying the monthly rents from November, 2000 at the rate of Rs. 4,500/- per month. Besides reiterating the averments in the counter affidavit filed by the revision petitioner in R.C.O.P. No. 182 of 2000, it is averred in the eviction petition that the respondent has committed wilful default in paying the monthly rents from November, 2000 at the rate of Rs. 4,500/- per month. The revision petitioner had no intention to sell the petition property to any person and the basis on which the suit in O.S. No. 668 of 2000 was instituted as if there is an agreement for preferential sale of the property to her is incorrect. It is further stated that the respondent along with her husband Vijayakumar had unlawfully used the petition property for the illegal business of counterfeit currency notes and hence, a criminal case was registered against both of them. It is specifically stated that the machines that were used for the said illegal business were also seized by the Police Authorities from the petition property. According to the revision petitioner, this unlawful activities committed by the respondent and her husband caused nuisance to him. It is the further case of the revision petitioner that he is residing in the first floor portion of the petition property and recently, he met with an accident, in which, his left leg got fractured and hence, he could not climb the stairs easily. Therefore, he needs the ground floor portion of the petition property for his own use and occupation. 3.4. The respondent - Prema filed a counter affidavit, wherein while admitting the borrowal of Rs. 3,00,000/- by the revision petitioner from her, denied the execution of Anuboga Varthamanam dated 07.10.1990 and 22.11.1995. The respondent denied the allegation that she and her husband used the petition property for the illegal business of counterfeit currency notes and it is her case that the revision petitioner, by using his political influence, had taken action through Police Authorities, as a last resort, to take delivery of possession of the petition property. The respondent has specifically denied the claim of the revision petitioner that he met with an accident. 3.5. Both the rent control original petitions were taken up together by the learned Rent Controller and the parties let in evidence in R.C.O.P. No. 264 of 2001. On behalf of the landlord/revision petitioner, he examined himself as P.W.1 and Exs. The respondent has specifically denied the claim of the revision petitioner that he met with an accident. 3.5. Both the rent control original petitions were taken up together by the learned Rent Controller and the parties let in evidence in R.C.O.P. No. 264 of 2001. On behalf of the landlord/revision petitioner, he examined himself as P.W.1 and Exs. P1 to 12 were marked and on behalf of the tenant/respondent, no witness was examined, but Exs. R1 to R9 were marked. 3.6. The Rent Controller, on appreciation of evidence adduced by the parties, by a common order dated 19.03.2004, allowed the eviction petition filed by the landlord/revision petitioner, while dismissing the Section 8(5) petition filed by the tenant/respondent. 3.7. Aggrieved over the order of the Rent Controller, the respondent - Prema filed a rent control appeal in R.C.A. No. 53 of 2004 and R.C.A. No. 64 of 2004 was filed by both husband and wife before the Rent Control Appellate Authority. The Rent Control Appellate Authority, by a common Judgment dated 12.07.2007, set aside the findings of the Rent Controller and dismissed the eviction petition filed by the revision petitioner and allowed the Section 8(5) petition filed by the respondent. Assailing the same, the landlord has come up with the present civil revision petitions. 4. Mrs. N. Krishnaveni, learned Senior Counsel, assisted by Mr. N. Thiagarajan, learned counsel on record for the revision petitioner/landlord, would argue that the entire ground floor portion of the petition property was let out to the respondent - Prema. The mortgage deeds, dated 04.10.1990 and 22.11.1995 and Anuboga Vardhamanam deeds, dated 07.10.1990 and 22.11.1995, marked as Exs. P1 to P4, would amply prove that it has been agreed by the revision petitioner and the said Prema that the interest for the mortgage amount at the rate of 18% per annum has to be adjusted towards the monthly rent. The learned Senior Counsel would further submit that though the execution of the deeds of Anuboga Vardhamanam, marked as Exs. P3 and P4, were disputed by the respondent/tenant, but, no one was examined to disprove the contents of the said documents, whereas, the father-in-law of the said Prema has signed as a witness in Ex. P3 and the father-in-law and brother-in-law of the said Prema have attested in Ex. P4 as witnesses. 5. It is further submitted that the revision petitioner has proved that the rent was Rs. P3 and the father-in-law and brother-in-law of the said Prema have attested in Ex. P4 as witnesses. 5. It is further submitted that the revision petitioner has proved that the rent was Rs. 4,500/- and the respondent has committed wilful default in paying the monthly rent from November, 2000. She further added that the Rent Controller has given categorical findings on the basis of the evidence adduced by the parties, but the Rent Control Appellate Authority, without considering the material evidence available on record, held that the landlord failed to disprove the case of the tenant. The learned Senior Counsel, by placing reliance on the decision of the Apex Court in the case of Narayan Vishnu Hendre vs. Baburao Savalaram Kothawale, reported in (1995) 6 SCC 608 , would contend that on redemption, the pre-existing tenancy of the mortgagee stood revived as under the said mortgage, there was no implied surrender of tenancy and the doctrine of merger does not apply where the tenanted premises mortgaged in favour of the lessee. 6. Per contra, Mr. H. Lakshmi Shankar, learned counsel for the respondents, would urge that Exs. P1 and P2 are the registered mortgage deeds, dated 04.10.1990 and 22.11.1995, executed by the landlord in favour of the tenant and as per the said documents, the landlord continues to be in possession of the petition property and therefore, Exs. P3 and P4, deeds of Anuboga Vardhamanam dated 07.10.1990 and 22.11.1995, cannot be relied on to give a finding that the mortgagee had agreed for adjustment of the interest towards the monthly rent. According to the learned counsel, Exs. P1 to P4 do not establish the landlord - tenant relationship between the revision petitioner and the respondent herein and even for collateral purpose, the unregistered Exs. P3 and P4 cannot be relied on. He further added that in view of filing of redemption original petition No. 1 of 2001, before the Sub Court, Trichy, by the landlord, treating the tenant - Prema as a mortgagee of the petition property, the eviction petition filed by him is not maintainable. In this regard, the learned counsel placed reliance on the decision of this Court in the case of Muniammal vs. Jagannathan, reported in (2001) 3 MLJ 775 . In this regard, the learned counsel placed reliance on the decision of this Court in the case of Muniammal vs. Jagannathan, reported in (2001) 3 MLJ 775 . According to the learned counsel, the conclusion of the Rent Controller is baseless and contrary to the records, which was rightly reversed by the Rent Control Appellate Authority and therefore, prayed for dismissal of the civil revision petitions. 7. Heard Mrs. N. Krishnaveni, learned Senior Counsel, assisted by Mr. N. Thiagarajan, learned counsel on record for the revision petitioner and Mr. H. Lakshmi Shankar, learned counsel for the respondents and carefully perused the materials available on record including the written submissions filed on both sides. 8. In the instant case, it is not disputed that the revision petitioner is the owner of the petition property. It is equally not disputed that the respondents in C.R.P. (MD) No. 1830 of 2008, namely, Vijayakumar and Prema are husband and wife and they are residing under the same roof. There is no conflicting interest between them. A perusal of the averments in R.C.O.P. No. 182 of 2000 would reveal that no details, with regard to the commencement of tenancy, the original rent and enhancement of rent, were furnished by Vijayakumar. It is his case that he paid the rents at the rate of Rs. 500/- till May, 2000 and when he tendered the rent for the months of June and July, 2000, the landlord had refused to receive the same. The landlord has come up with a categorical case that tenancy has begun on 04.10.1990. The mortgagor agreed to redeem the petition property within five years and the rate of interest 18% per annum is not in dispute. The due execution of both mortgage deeds, marked as Exs. P1 and P2, have been admitted by the tenant. It is seen that the deeds of Anuboga Vardhamanam, marked as Exs. P3 and P4, were produced by the landlord in support of his case that the interest for the mortgage is to be adjusted towards the monthly rent. 9. A perusal of Exs. P3 and P4 would reveal that both the mortgagor and mortgagee have signed in the said documents and the father-in-law of the said Prema has signed as a witness in Ex. P3 and father-in-law and brother-in-law of Prema have signed as witnesses in Ex. P4. 9. A perusal of Exs. P3 and P4 would reveal that both the mortgagor and mortgagee have signed in the said documents and the father-in-law of the said Prema has signed as a witness in Ex. P3 and father-in-law and brother-in-law of Prema have signed as witnesses in Ex. P4. In both the documents, it has been candidly stated that the second party i.e. Prema is in possession of the ground floor portion of the petition property and she can enjoy the same in lieu of the interest for the mortgage amount. The landlord, who is examined as P.W.1, has deposed that as per Exs. P3 and P4, the said Prema had agreed to adjust the interest amount towards the rent. That apart, in the plaint in O.S. No. 668 of 2000, marked as Ex. P6, Prema admits her signature in Exs. P3 and P4, but she contended that it was obtained by fraud. However, she has not come forward to adduce evidence to establish her case. The filing of O.S. No. 668 of 2000 would show that both Vijayakumar and his wife Prema have a common interest and they failed to deposit the rent as agreed by them under Exs. P3 and P4. Therefore, in my considered opinion, the learned Rent Controller, taking note of the evidence of P.W.1 and Exs. P1 to P4, has rightly come to the conclusion that Prema is the tenant under the revision petitioner herein and the rent was Rs. 4,500/- per month. 10. The Rent Controller, while considering the petition filed by the tenant under Section 8(5) of the Act, found that Vijayakumar failed to deposit the rents regularly and a lumpsum payment of Rs. 18,500/- was deposited on 03.02.2004. It is apposite to mention here that in R.C.A. No. 53 of 2004, which was filed against the order of eviction passed in R.C.O.P. No. 264 of 2001, an interim application in I.A. No. 316 of 2004 was taken out by the landlord under Section 11(4) of the Act seeking direction to the tenant to pay the rental arrears, which comes to Rs. 2,29,500/- till 21.03.2005 and the petition was allowed by the Rent Control Appellate Authority vide order dated 11.03.2005. Challenging the same, the tenant filed C.R.P. (NPD) (MD) No. 477 of 2006. 2,29,500/- till 21.03.2005 and the petition was allowed by the Rent Control Appellate Authority vide order dated 11.03.2005. Challenging the same, the tenant filed C.R.P. (NPD) (MD) No. 477 of 2006. When the civil revision petition was taken up for hearing, it was informed by both the parties that the tenant had deposited a sum of Rs. 3,15,000/-. Therefore, this Court set aside the conditional order passed by the Rent Control Appellate Authority, however, directed the tenant to pay the rents regularly on or before 10th of every English calender month till the disposal of the rent control appeal. With the above direction, the civil revision petition was disposed of on 04.11.2006. 11. The calculation memo filed by Mr. H. Lakshmi Shankar, learned counsel for the tenant, would indicate that after the disposal of the above C.R.P. (NPD) (MD) No. 477 of 2006 on 04.11.2006, the tenant has deposited Rs. 4,500/- on 16.11.2006; Rs. 500/- on 21.11.2006; Rs. 500/- on 08.12.2006 and Rs. 500/- on 05.01.2007. It is not disputed that the rent control appeal was allowed on 12.07.2007 and thereafter, irregular deposits have been made in R.C.O.P. No. 182 of 2000 from the month of January, 2008. It is evident from the calculation memo that the tenant failed to comply with the direction of this Court with regard to deposit of rents till the disposal of the rent control appeals. It is settled principles of law that in the eviction proceedings, the subsequent events can also be taken into consideration. It is to be noted that under the Tenancy Law, the tenant has an obligation to pay the rents regularly to the landlord without fail. Even after filing of the eviction petition on the ground of wilful default, if the tenant commits default in paying the rent, certainly it would amount to wilful default. In the case on hand, as stated supra, the learned Rent Controller, on appreciation of the evidence, has rightly come to the conclusion that the rent was Rs. 4,500/- and it was not paid by the tenant Prema and thereby, she committed wilful default in payment of rent. 12. Insofar as the ground of unlawful use of the petition property, the tenant has not disputed the registration of the criminal case against her and her husband Vijayakumar and search and seizure of material objects from the premises. 4,500/- and it was not paid by the tenant Prema and thereby, she committed wilful default in payment of rent. 12. Insofar as the ground of unlawful use of the petition property, the tenant has not disputed the registration of the criminal case against her and her husband Vijayakumar and search and seizure of material objects from the premises. Further, the defence that the criminal case was registered at the instigation and influence of the landlord was not substantiated by the respondents. Exs. P7 to P9 would prove that the landlord sustained fracture in the accident during 2001. P.W.1 spoken about the ailment from which he is suffering and the need of the premises for his own use and occupation. It is very unfortunate to note that the Rent Control Appellate Authority, except recording the submissions of the tenant, has not at all considered the evidence adduced by the landlord and allowed the appeals by merely stating that the case of the tenant was not disproved by the landlord. After carefully analyzing the evidence produced by the parties, this Court is of the considered opinion that the landlord has made out the grounds sought for in the eviction petition. 13. The decision in Muniammal (supra) cited by the learned counsel for the respondents is factually distinguishable. In that case, a suit was instituted for the reliefs of declaration of title and delivery of possession of the suit property on the ground that the suit property belonging to one Pushpa Ammal was mortgaged to the defendants and after discharge of the mortgage, the suit property was sold to one Parvathy Ammal, however the suit property was not delivered to the purchaser. According to the plaintiff, the defendants were in illegal possession of the suit property. The suit was contested by stating that the property mortgaged by Pushpa Ammal was a vacant site and the defendants put up a pucca building and hence, she was not entitled to the benefit of City Tenants Protection Act. The Trial Court and the First Appellate Court held that the suit is maintainable and accordingly, granted a decree in favour of the plaintiff. In the second appeal, a point was taken that in view of Section 10(1) of the Act, the suit is not maintainable. In those facts, this Court has held as follows: "13. The Trial Court and the First Appellate Court held that the suit is maintainable and accordingly, granted a decree in favour of the plaintiff. In the second appeal, a point was taken that in view of Section 10(1) of the Act, the suit is not maintainable. In those facts, this Court has held as follows: "13. Lastly, learned counsel for the appellant would urge that the suit was not maintainable in view of the statutory bar under Sec. 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, since what was leased out to the appellant was a building. The Court is afraid whether, it could accept such a plea. The plaintiff did not seek the relief based on any lease of either the vacant site or the building. Nor it was also the defence put forth by the appellant in the trial Court that she was in possession of the property on the basis of the lease of the vacant site. But from the available evidence, it would be clear that the mortgagor when mortgaged the property with the appellant, permitted the appellant to be in possession in lieu of interest and the understanding between the parties could have been to surrender possession on the discharge of the mortgage amount. It was the admitted position that the mortgage was discharged by the appellant and the respondents thoroughly failed to surrender the possession. Under such circumstances, the provisions of Tamil Nadu Building (Lease and Rent Control) Act, 1960 have no application to the present facts of the case." In the case on hand, no such plea was taken and hence, the said decision has no application to the facts of the present case. 14. Furthermore, having submitted themselves to the jurisdiction of the Rent Controller by filing Section 8(5) petition, it is not open to the respondents to turn around to contend that the eviction petition filed by the landlord/revision petitioner is not maintainable. Hence, this Court finds no substance in the contentions of the learned counsel for the respondents. 15. For the foregoing reasons: (i) the civil revision petitions are allowed; (ii) the common Judgment, dated 12.07.2007, made in R.C.A. Nos. 53 & 64 of 2004, on the file of the Rent Control Appellate Authority-cum-Principal Sub Court, Tiruchirappalli, is set aside; (iii) the common order, dated 19.03.2004, made in R.C.O.P. Nos. 15. For the foregoing reasons: (i) the civil revision petitions are allowed; (ii) the common Judgment, dated 12.07.2007, made in R.C.A. Nos. 53 & 64 of 2004, on the file of the Rent Control Appellate Authority-cum-Principal Sub Court, Tiruchirappalli, is set aside; (iii) the common order, dated 19.03.2004, made in R.C.O.P. Nos. 182 of 2000 & 264 of 2001, on the file of the Rent Controller-cum-Principal District Munsif Court, Tiruchirappalli, is confirmed. (iv) The respondents herein are hereby directed to handover vacant possession of the demised premises to the revision petitioner/landlord on or before 30.11.2020. (v) No costs. (vi) Consequently, connected miscellaneous petition is closed.