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2020 DIGILAW 332 (MAD)

T. Elamurugan v. G. Jayachitra

2020-02-14

V.BHARATHIDASAN

body2020
ORDER : V. Bharathidasan, J. 1. Against the order of eviction, the tenant is before this Court with this Revision. 2. The case of the respondent/landlady is that, the petition mentioned property has been leased out to the petitioner on a monthly rent of Rs. 4,500/- and the tenancy is for the residential purpose. The petitioner/tenant has willfully committed default in paying the rent, from the month of June 2005 till April 2012. In the above circumstances, eviction petition has been filed by the respondent/landlady in RCOP No. 1202 of 2012 on the file of the XI Small Causes Court, Chennai. 3. The petitioner/tenant contested the above petition on the ground that, there is no jural relationship of landlord and tenant exists between the petitioner and the respondent. The respondent/landlady, has entered into a sale agreement on 13.05.2005 with the petitioner/tenant for the sale of petition mentioned property and the total sale consideration was fixed at Rs. 7,50,000/-. On the date of Agreement, a sum of Rs. 2,00,000/- has been paid as an advance. Pursuant to the same, the tenant also paid a further sum of Rs. 50,000/- on 29.06.2005. Even though the tenant is ready and willing to pay the balance of sale consideration and also expressed his willingness to get the sale deed executed on 10.10.2007, it is only the landlady has refused to perform his part of contract. In the above circumstances, the tenant filed a suit in O.S. No. 14552 of 2010 on the file of the XV Assistant City Civil Court, Chennai for specific performance to execute a sale deed pursuant to the Sale Agreement entered into between the parties. The jural relationship of landlord tenant has come to an end as the petitioner/tenant has been put in possession pursuant to the Sale Agreement. Hence, the eviction petition is not maintainable. That apart, the petitioner/tenant has already paid substantial amount towards part of sale consideration. Hence, there is no necessity to pay the rent, and non-payment of rent is not willful. 4. Earlier the Eviction Petition has been allowed and the same was also confirmed by the lower Appellate Court. Hence, the eviction petition is not maintainable. That apart, the petitioner/tenant has already paid substantial amount towards part of sale consideration. Hence, there is no necessity to pay the rent, and non-payment of rent is not willful. 4. Earlier the Eviction Petition has been allowed and the same was also confirmed by the lower Appellate Court. Thereafter, in a revision filed by the tenant in CRP(NPD) No. 3255 of 2015, this Court by an order dated 12.07.2016 set aside the order of eviction on the ground that the landlady was not examined herself before the Rent Controller and remanded the matter back to the Rent Controller to give an opportunity to the landlady to let in a oral evidence. Thereafter, the landlady filed S.L.P. against that order and the Hon'ble Supreme Court dismissed the S.L.P. On remand, the landlady examined one K. Vekatadri, as PW1 and marked 3 documents. The tenant examined himself as RW1 and exhibited as many as 11 documents. The Rent Controller, after considering both the oral and documentary evidences, allowed the petition and ordered eviction. Challenging the same, the tenant filed an appeal in RCA. No. 449 of 2018 on the file of the VIII Court of Small Causes, Chennai and the Rent Control Appellate authority also concurred with the finding of the Rent controller and dismissed the Appeal, by an order dated 23.09.2019. Now, challenging the same, the present revision has been filed. 5. Mrs. R. Varalakshmi, learned counsel for the petitioner would submit that in view of the sale agreement entered into between the parties, which is marked as Ex. R1, the jural relationship of landlord-tenant came to an end and the petitioner was put in possession pursuant to the sale agreement. In the said circumstances, the eviction petition itself is not maintainable. That apart, in view of the payment of substantial amount towards the part of sale consideration, the tenant cannot be compelled to pay the rent. In support of her contention, the learned counsel strongly relying upon the judgment of the Hon'ble Supreme Court in Kanthimathi & another vs. Mrs. Beatrice Xavier reported in 2000(2) L.W. 805. The learned counsel also further submits that already the tenant has filed a suit for specific performance to execute the sale deed pursuant to the sale agreement. In support of her contention, the learned counsel strongly relying upon the judgment of the Hon'ble Supreme Court in Kanthimathi & another vs. Mrs. Beatrice Xavier reported in 2000(2) L.W. 805. The learned counsel also further submits that already the tenant has filed a suit for specific performance to execute the sale deed pursuant to the sale agreement. When the suit is pending, the landlady has deliberately filed the present petition for eviction without even disclosing the pendency of the suit and there is no bonafide in the petition, and on that ground the eviction petition is liable to be dismissed. 6. Per contra, Mr. A.E. Chelliah, Senior Counsel for the respondent would submit that Ex. R.1 is not at all a sale agreement and it is not even executed by the landlady. It is only a letter sent by the landlady to one Sakthivel and the petitioner/tenant. At any rate, it cannot be considered as a sale agreement. That apart, even in the alleged sale agreement, there is no specific clause that the tenant has surrendered his possession to the landlady and put in possession pursuant to the sale agreement. In the absence of any specific surrender of possession, the petitioner/tenant only continued to be a tenant and he is liable to pay the agreed contractual rent. When the tenant failed to pay the same willfully, he is liable to be evicted by the authorities. The Court below has considered all the facts, rightly came to a conclusion that the tenant has committed willful default and that concurrent finding need not be disturbed in this revision. 7. I have considered the rival submissions and perused the materials available on records carefully. 8. The petitioner/tenant admitted the lease agreement and admitted his tenancy. Now his only contention is that, subsequent to the execution of the sale agreement in the year 2005, the jural relationship of landlord-tenant came to an end, and the fresh right came into force pursuant to the sale agreement, and in view of the payment of substantial sale consideration, the tenant need not pay any rent to the landlady. The learned counsel for the petitioner to strengthen his contention relied upon the judgment of the Hon'ble Supreme Court in Kanthimathi & another vs. Mrs. The learned counsel for the petitioner to strengthen his contention relied upon the judgment of the Hon'ble Supreme Court in Kanthimathi & another vs. Mrs. Beatrice Xavier referred supra, wherein, the Hon'ble Supreme Court has held that any jural relationship between the parties could be created through agreement and it could also be changed through another agreement subject to the limitation under law and in view of the acceptance of the changed relationship of landlord and tenant ceased to exit. The relevant portion of the judgment reads as follows:- "6. Any jural relationship between two persons could be created through agreement and similarly could be changed through agreement subject to the limitation under the law. Earlier when appellants were inducted into tenancy it only means that both agreed that their relation is to be that of a landlord and tenant. Later, when landlord decided to sell this property to the tenant and tenant agreed by entering into agreement, they, by their positive act changed their relationship as purchaser and seller. When seller-landlord accepts same he actually acts under this agreement. This acceptance preceded by the agreement of sale changes their relationship this is how they intended. Once accepting such a change, then their relationship of landlord-tenant ceases". 9. However, it is the case of the landlady that the alleged Sale Agreement (Ex. R1) is not at all an agreement of sale and even it is only a letter said to have been sent by the landlady to the tenant, wherein, she agreed to enter into a sale and after receipt of balance sale consideration, the sale deed will be executed. According to the landlady, even assuming that it is a sale agreement, there is no express surrendering the possession by the tenant and he has been put in possession pursuant to the sale agreement and the petitioner/tenant is liable to pay the rent. 10. According to the learned counsel for the respondent, now in the suit filed by the petitioner/tenant, the respondent/landlady has raised objection that Ex. R1 is not a sale agreement at all. 10. According to the learned counsel for the respondent, now in the suit filed by the petitioner/tenant, the respondent/landlady has raised objection that Ex. R1 is not a sale agreement at all. The learned Senior Counsel appearing for the respondent relying upon a recent judgment of the Hon'ble Supreme Court in H.K. Sharma vs. Ram Lal reported in 2019(4) Supreme Court Cases 153, wherein the Hon'ble Supreme Court has distinguished the Judgment in Kanthimathi case referred supra, and held that unless the tenant expressly surrender possession, the tenant cannot claim that the jural relationship of landlord-tenant ceased to exist. The relevant portion of the Hon'ble Supreme Court reads as follows: "23. In other words, the question that arises for consideration is when the lessor enters into an agreement to sell the tenanted property to his lessee during the subsistence of the lease, whether execution of such agreement would ipso facto result in determination of the lease and sever the relationship of lessor and the lessee in relation to the leased property ................. 29. Perusal of agreement to sell dated 13.05.1993 (Annexure P-1) shows that though the agreement contains 9 conditions but none of the conditions provides, much less in specific terms, as to what will be the fate of the tenancy. In other words, if the parties really intended to surrender their tenancy rights as contemplated in clauses(3) or (f) of Section 111 of the TP Act while entering into an agreement to sell the suit house, it would have made necessary provision to that effect by providing a specific clause in the agreement. It was, however, not done. On the other hand, we find that the conditions set out in the agreement do not make out a case of express surrender under clause (3) of implied surrender under clause (f) of Section 111 of the TP Act. In the light of the above judgment, we have to consider the alleged sale agreement (Ex. R1) relied upon by the petitioner/tenant, which reads as follows: "This has reference to the discussions we had with you regarding the sale of my flat at No. 10, Bhaskaran Sastri Street, Nagarjuna Nagar, Rangarajapuram, Chennai 600024. As confirmed to you the area of the said flat is 750 sq.ft. and the sale rate will be Rs. 1,000/- per sq.ft. and thus the total sale value of the flat will be Rs. As confirmed to you the area of the said flat is 750 sq.ft. and the sale rate will be Rs. 1,000/- per sq.ft. and thus the total sale value of the flat will be Rs. 7,50,000/- (Rupees Seven Lakhs and Fifty Thousand Only). You have confirmed to me that you will be making an initial payment of Rs. 2,00,000/- (Rupees two lakhs only) towards the purchase of this flat and the balance amount of Rs. 5,50,000/- (Rupees Five Lakhs and Fifty Thousand only), will be paid by you after receipt of the loan amount. As such we will enter into an agreement for sale of this flat and immediately after receipt of the balance amount of Rs. 5,50,000/- (Rupees Five Lakh and Fifty Thousand only), the sale deed document may be registered. Please acknowledge receipt and confirm immediately." 11. Whether the Ex. R1 is the sale agreement or not is in dispute, which is now pending before the Civil Court, and this Court is not expressing any opinion on the same at this stage. However, even assuming that Ex. R1 is a sale agreement, there is no specific clause in Ex. R1, that the petitioner/tenant surrendering possession pursuant to the agreement. In the said circumstances, I am of the considered view that the recent judgment of the Hon'ble Supreme Court in H.R. Sharma vs. Ram Lal (supra) is squarely applicable to the facts of this case, in absence of the express or implied surrender of property pursuant to Ex. R1, the tenant cannot contend that the jural relationship of landlord-tenant has ceased to exist. 12. That apart, the petitioner also sent a letter to the respondent/landlord on 21.09.2007, which is marked as Ex. R4, is subsequent to Ex. R1, wherein, the petitioner has specifically stated that the nominal rent amount shall be paid separately on mutual understanding. The relevant portion of the letter reads as follows:- "Requests refer the visit of your manager Mr. Karunakaran. On 21.09.2007. As per letter dated 13 May 05, I am ready to register the property on 10th October 07 by paying balance amount of Rs. 5 lakhs,. The Advance Amount of 2.5 lakhs is with You. Nominal Rent amount shall be paid separately on mutual understanding and my rental advance of Rs. 30,000/- is with you." 13. From the perusal of the above Ex. 5 lakhs,. The Advance Amount of 2.5 lakhs is with You. Nominal Rent amount shall be paid separately on mutual understanding and my rental advance of Rs. 30,000/- is with you." 13. From the perusal of the above Ex. R4, it is clear that the petitioner is willing to pay the rent separately. In the above circumstances, it is not open to the petitioner to contend that by virtue of the agreement, the jural relationship ceased to exist. Considering all the circumstances, the Court below rightly held against the petitioner and ordered eviction. This Court finds no illegality or irregularity in the order passed by the Courts below and there is no reason to interfere with the same. Hence, the Civil Revision Petition is liable to be dismissed. 14. Accordingly, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.