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2021 DIGILAW 2100 (MAD)

Raja v. K. G. Ilangkumaran

2021-08-13

R.THARANI

body2021
JUDGMENT : (Prayer: Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18/1960 as amended by Tamil Nadu Act 23/1973, against the fair and decreetal order, dated 17.07.2018, passed in R.C.A.No.06 of 2016, on the file of the Rent Control Appellate Authority (Sub-Court), Thoothukudi, reversing the fair and decreetal order, dated 11.01.2016, passed in R.C.O.P.No.7 of 2014, on the file of the Principal District Munsif Court (Rent Controller Court), Thoothukudi.) 1. This Civil Revision Petition is filed against the order, dated 17.07.2018, passed in R.C.A.No.06 of 2016, on the file of the Rent Control Appellate Authority (Sub-Court), Thoothukudi, reversing the order, dated 11.01.2016, passed in R.C.O.P.No.7 of 2014, on the file of the Principal District Munsif Court (Rent Controller Court), Thoothukudi. 2. The revision petitioner is the second landlord, the second respondent herein is the first landlord, the first respondent herein is the first respondent/tenant and the respondents 3 and 4 herein are the respondents 2 and 3 in R.C.O.P.No.7 of 2014. 3. The landlords, viz., Stalin and Raja, filed a petition for eviction in R.C.O.P.No.7 of 2014. 4. On the side of the landlords, one witness was examined and five documents were marked. On the side of the tenants, two witnesses were examined and four documents were marked. 5. After hearing both sides, the Principal District Munsif Court (Rent Controller Court), Thoothukudi, has allowed the Petition and ordered for eviction. Against that order, the tenants filed an appeal before the Rent Control Appellate Authority (Sub-Court), Thoothukudi, in R.C.A.No.06 of 2016. 6. After hearing both sides, Rent Control Appellate Authority, Thoothukudi, set aside the order passed by the Principal District Munsif Court (Rent Controller Court), Thoothukudi. Against the same, the second landlord/Raja has preferred this Civil Revision Petition on the following grounds:- 6.1. The Rent Controller Appellate Authority committed an error in holding that the respondents have not committed any wilful default without adverting to the scope and ambit of Sections 7 and 10(2)(i) of the Rent Control Act. 6.2. The respondents committed wilful default in paying the rent from June-2012 till February-2014 and the respondents failed to send any notice or communication, requesting the landlord to adjust the rent from the advance amount and the question of invoking Section 7 of the Rent Control Act is unsustainable. 6.3. 6.2. The respondents committed wilful default in paying the rent from June-2012 till February-2014 and the respondents failed to send any notice or communication, requesting the landlord to adjust the rent from the advance amount and the question of invoking Section 7 of the Rent Control Act is unsustainable. 6.3. Though the tenants claimed that they have sent the rent through Money Order, they have not proved the same. The Rent Control Appellate Authority failed to consider that the tenants did not take steps to deposit the entire balance of rent, immediately after the filing of the R.C.O.P. petition and they have not taken any steps by invoking Section 8(5) of the Tamil Nadu Buildings (Lease and Rent) Control Act. 6.4. The Rent Control Appellate Authority failed to consider the necessity for the premises for the own use of the revision petitioner. The Appellate Authority has wrongly decided that an extent of one Cent will not be convenient for the revision petitioner to conduct the business and failed to consider that R.W.1 has admitted in his evidence that they are doing business in another building, which is situated opposite to the suit property and prayed the order of the Rent Control Appellate Authority to be set aside. 7. On the side of the revision petitioner, it is stated that the property is situated in a prime locality in Thoothukudi. There was wilful default in payment of rent from June-2012 till February-2014, for a period of 21 months. After the filing of the R.C.O.P. petition, ie.30.05.2014, the tenant has paid Rs.59,800/- as balance of rent in a lumpsum. The payment of rent in lumpsum was received by the landlords, without any prejudice to the pendency of the petition. The property is situated near the Harbour and advance amount cannot be treated as rent, unless it was so requested by the respondent. 8. The payment of rent in lumpsum amounts to wilful default. To substantiate this claim, a judgment of this Court reported in 2004 (3) CTC – 462 [ Varadhan Vs. Kannammal and others] is cited, wherein, it is stated as follows:- 18. In this context, the learned counsel for the 1st respondent/landlady has relied on the judgment of this Court rendered by Dr.AR. To substantiate this claim, a judgment of this Court reported in 2004 (3) CTC – 462 [ Varadhan Vs. Kannammal and others] is cited, wherein, it is stated as follows:- 18. In this context, the learned counsel for the 1st respondent/landlady has relied on the judgment of this Court rendered by Dr.AR. LAKSHMANAN, J. (as he then was), in R.Srinivasan and another V. K.S.Muthu Mudaliar and Sons (1996 T.N.L.J. 364) in support of his contention that the tenant cannot dictate terms that the area which is required by way of additional accommodation is not sufficient for the purpose of business of the landlord and that the premises in the occupation of the tenant is sufficient to run the business. On a careful reading of the said decision, I am of the considered view that in this case also, the minimum space of the petition premises is no ground for the revision petitioner/tenant to contend that the requirement of the petition premises by the 1st respondent/landlady is not bona fide. Hence, on this aspect of the mater also, I find that the revision petitioner/tenant has to fail. 9. The learned counsel for the revision petitioner relied upon another judgment of this Court reported in 2017(2) L.W.-844 [R.Ranga Banu and others Vs. A.R.Devendran prop. Singer Sewing Machine]. 10. On the side of the respondent, it is stated that the landlord is having the advance amount, the alleged rent due is only a lessor amount. In that situation, the landlord cannot claim wilful default. It is further stated that the tenant was willing to pay the rent, but, it was the landlord, who refused to receive the same. Once the tenant has given an advance amount, the landlord cannot claim default of payment of rent. 11. A judgment of this Court reported in 2017 (3) LW-876 [K.Sherifa Vs. Ahmed Hussain and another] is cited, wherein, it is stated as follows: 18. Even as per the statement given by the tenant that though the 2nd floor is locked, but the key was with the tenant as on date of filing the RCOP. The advance amount paid by the tenant to the landlord for a sum of Rs.1,00,000/- is kept with the landlord. The landlord can be adjusted the said advance amount already paid by the tenant. 12. There is no dispute regarding relationship of landlord and tenant. The advance amount paid by the tenant to the landlord for a sum of Rs.1,00,000/- is kept with the landlord. The landlord can be adjusted the said advance amount already paid by the tenant. 12. There is no dispute regarding relationship of landlord and tenant. There was a rent agreement between the landlord and the father of the first respondent. The rent agreement was dated 17.02.1998, an advance of Rs.1,01,000/- was paid. The monthly rent was fixed as Rs.800/-. When the father of the first respondent was alive, he filed a suit in O.S.No.428 of 2012, not to evict him. 13. The case of the landlord is that there was wilful default from June- 2012 till February-2014. The case of the tenant is that it was the landlord, who refused to receive the rent. But, the tenant has not taken any steps to deposit the rent in the Court and has not sent any notice to the landlord to receive the rent. There is no proof that the tenant sent the rent through Money Order. Only after the filing of the R.C.O.P. petition, the tenant has paid the rent in a lumpsum, on 30.05.2014. 14. The tenant has not addressed the landlord to deduct the rent from the advance amount paid by him. Advance amount is a deposit to ensure the proper maintenance of the building and to ensure the payment of rent. There was no agreement between the parties to deduct the rent from the advance amount. In the above circumstances, the advance amount cannot be treated as a rent. The tenant has not taken any steps to pay rent by way of filing a petition under Section 8 of the Rent Control Act. Hence, it is decided that there is a wilful default on the part of the tenant. 15. On the side of the landlord, it is further stated that the Appellate Authority allowed the Appeal filed by the tenant on the ground that the landlord is having a larger extent of land and there was no necessity for the landlord to shift his business to a smaller extent and decided that the request of the landlord is not bonafide. 16. On the side of the landlord, it is stated that the landlord require the premises for his own occupation. 16. On the side of the landlord, it is stated that the landlord require the premises for his own occupation. It is stated that the landlord is doing export and import business and he is in need of the building. It is stated that the Office of the Excise Department and the Port are near the suit premises and the property is more suitable for the occupation of the landlord. 17. On the side of the landlord, it is stated that the landlord is having right to choose the premises for his own use. A judgment of the Hon'ble Supreme Court reported in 2019 (4) MLJ-739 (SC) [Jagdish Prasad Patel and another Vs. Shivnath and others] is cited. 18. On the side of the landlord, it is stated that the tenant has filed a suit in O.S.No.428 of 2012, not to evict him. Evidence of P.W.1, in O.S.No.428 of 2012 was marked as Ex.P5 and that in Ex.P5, in O.S.No.428 of 2012 the tenant has admitted that he was ready to vacate the premises within a period of two years. 19. It is seen that the tenant has deposed before the trial Court that he is having a property situated opposite to the rented property. The tenant is having his own property in the same locality, but the tenant is claiming that the request of the landlord is not bonafide. Ex.P2 and Ex.P3 are the documents relating to the business run by the landlord. 20. It is seen that the tenant agreed to evict the premises within a period of two years in the earlier proceedings in O.S.No.428 of 2012. Ex.R4 reveals that the tenant paid the arrears of rent only in a lumpsum and the same was received by the landlord without prejudice to the R.C.O.P. filed by him. In the above circumstances, it is decided that there was wilful default in payment of rent and the landlord requires the premises “for own use”. 21. Hence, this Civil Revision Petition is allowed and the order, dated 17.07.2018, passed in R.C.A.No.06 of 2016, on the file of the Rent Control Appellate Authority (Sub-Court), Thoothukudi, is hereby setaside and the order, dated 11.01.2016, passed in R.C.O.P.No.7 of 2014, on the file of the Principal District Munsif Court (Rent Controller Court), Thoothukudi, is hereby confirmed. No costs. 21. Hence, this Civil Revision Petition is allowed and the order, dated 17.07.2018, passed in R.C.A.No.06 of 2016, on the file of the Rent Control Appellate Authority (Sub-Court), Thoothukudi, is hereby setaside and the order, dated 11.01.2016, passed in R.C.O.P.No.7 of 2014, on the file of the Principal District Munsif Court (Rent Controller Court), Thoothukudi, is hereby confirmed. No costs. The respondent/tenant is directed to vacate the premises within a period of one month from the date of receipt of copy of this order.