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2022 DIGILAW 2807 (MAD)

Babu v. RameesaBeevi

2022-08-18

R.N.MANJULA

body2022
JUDGMENT (Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India to set aside the fair and decretal order dated 14.02.2022 passed in MP.No.1 of 2021 in RLTOP.No.7 of 2020 on the file of learned XVI Judge, Court of Small Causes Court, Chennai.) 1. This civil revision petition has been preferred challenging the order of the Rent Controller (XVI Judge, Small Causes Court), Chennai, dated 14.02.2022 made in MP.No.1 of 2021 in RLTOP.No.7 of 2020. 2. The revision petitioner herein and the 7th respondent herein are husband and wife and are tenants, against whom, respondents 1 to 6 have filed eviction proceedings in RLTOP.No.07 of 2020. During the pendency of the said proceedings, the petitioner herein filed a petition in MP.No.1 of 2021 under Section 47(2) of the Tamilnadu Regulation of Rights and Responsibilities of Landlords and Tenants Act,2017 by raising maintainability point and prayed to dismiss the eviction petition as not maintainable. The said petition was dismissed by the impugned order. Aggrieved over that, the revision petition has been preferred. 3. Heard the learned counsel for the petitioner and the learned counsel for respondents 1 to 6 and also perused the materials available on record. 4. The learned counsel for the civil revision petitioner submitted that before filing the present petition for eviction, respondents 1 to 6 filed an eviction petition in RCOP.No.286 of 2018 under the Old Act namely the Tamilnadu Buildings (Lease and Rent Control ) Act, 1960 on the ground of wilful default; the said petition was dismissed for default on 05.09.2019; the New Act namely the Tamilnadu Regulation of Rights and Responsibilities of Landlords and Tenants Act,2017 came into effect from 22.02.2019; as per Section 47(2) of the New Act, the time limit fixed for the landlords to switch over to the New Act would expire on 17.11.2019; even within the said time, respondents 1 to 6 did not express their option to shift the coverage from the Old Act to the New Act; having failed to do so, the landlords have filed the present eviction petition in RLOTP.No.7 of 2020 and the same is not maintainable and should be dismissed. 5. 5. Per contra, the learned counsel for respondents 1 to 6 submitted that the old eviction petition in RCOP.No.286 of 2018 was filed on the ground of wilful default; after the said petition was dismissed for default, respondents 1 to 6 did not prefer to restore the same; instead, they had filed the present petition for eviction on the ground of failure on the part of the tenants to enter into the written tenancy agreement as per Section 21(2)(a) of The Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act 2017; since there is no petition pending during the relevant point of time, the question of switching over will not arise and hence, the petitioner herein cannot state that the present petition is not maintainable. 6. The fact that respondents 1 to 6 have filed the earlier eviction petition in RCOP.No.286 of 2018 was not denied. The contention of the revision petitioner is that since the New Act has come into effect at the time when the above petition was pending, the landlords ought to have expressed their option to switch over to the New Act under Section 47(2). 7. For ready reference, the provision under Section 47(2) of the New Act is extracted as hereunder: “47. Repeal and Savings:- (1)...... 7. For ready reference, the provision under Section 47(2) of the New Act is extracted as hereunder: “47. Repeal and Savings:- (1)...... (2) Notwithstanding such repeal and subject to the provisions of this Act, all cases and other proceedings under the said Act pending, at the commencement of this Act, shall be continued and disposed of in accordance with the provisions of the said Act, as if the said Act had continued in force and this Act had not been passed: Provided that the plaintiff within a period of 180 days of coming into force of this Act shall be entitled to withdraw any suit or appeal or any other proceeding pending under the repealed Act with liberty to file fresh application in respect of the subject matter of such suit or appeal or any other proceeding under and in accordance with the provisions of this Act, and for the purposes of limitation, such application if it is filed within a period of 270 days from the commencement of this Act be deemed to have been filed on the date of filing of the suit which was withdrawn and in case of withdrawal of appeal or other proceedings on the date on which the suit was filed out of which such appeal or proceeding originated. ” 8. It is no doubt true that the New Act came into effect from 22.02.2019. The earlier petition filed in RCOP.No.286 of 2018 was dismissed for default on 05.09.2019. Even though the earlier eviction petition was pending when the New Act was notified, the landlords did not opt to switch over to the New Act nor continued the proceedings in RCOP.No.286 of 2018 under the New Act. Instead, they allowed the earlier eviction petition to be dismissed for default. The landlords have filed the present petition in RLTOP.No.7 of 2020 on a new ground that the tenants failed to execute the written tenancy. The said ground was not available under the Old Act. Further, respondents 1 to 6 never sought to restore the earlier petition filed by them for eviction on the ground of wilful default. 9. Had respondents 1 to 6 restored the earlier eviction petition by intending to pursue the same, it is open to the landlords either to conduct the proceedings in terms of the Old Act or in terms of the New Act. 9. Had respondents 1 to 6 restored the earlier eviction petition by intending to pursue the same, it is open to the landlords either to conduct the proceedings in terms of the Old Act or in terms of the New Act. In that case, there is a statuary time limit to express the preference of the landlords. If the preference is not expressed within the statuary time limit, the presumption would be that the landlords had opted to conduct the proceedings under the Old Act itself. But, here is a case where respondents 1 to 6 had allowed their earlier eviction petition filed in RCOP.No.286 of 2018 to be dismissed for default. The new petition was not filed on the same cause of action and it has been filed on a new ground contemplated under the New Act in Section 21(2)(a). 10. In such situation, the applicability of Section 47(2) of the New Act will not arise. For the purpose of applying Section 47(2) of the New Act, the following conditions ought to have been fulfilled: 1) An eviction petition should be pending at the time when the New Act had come into effect; 2) The option to switch over to the New Act should be expressed within the statuary time limit; and 3) If such option is not expressed, the presumption will be that the proceedings will be covered under the old act itself. 11. In a petition, which has been filed prior to the coming into force of the New Act and which was allowed to be dismissed for default subsequently, there is absolutely no requirement to switch over for the reason that there is no case, in which, a party can express his option. So, the question of applicability of res Judicata is completely alien to the present petition, which has been filed subsequently entirely on a new ground. So, it is up to the landlords either to continue under the Old Act by filing an application to restore the earlier petition or to file a new petition (as any new ground) under the New Act, which governs the field. 12. At the time when the present petition is filed on some other ground, there is no confusion on the point of maintainability. The earlier petition filed by the landlords under the Old Act was dismissed. 12. At the time when the present petition is filed on some other ground, there is no confusion on the point of maintainability. The earlier petition filed by the landlords under the Old Act was dismissed. After the New Act came into force, if a landlord prefers to invoke a new ground for eviction in view of the New Act, there cannot be any denial to maintain his new petition nor can he be forcibly driven to file a suit for eviction. Since the present petition has been filed entirely on a new ground after the New Act came into force, the present petition is in no way relevant to the earlier petition filed in RCOP.No.286 of 2018. Since the petition under Section 47(2) of the New Act has been filed on a thorough misconception, the revision petition is devoid of any merit. 13. In the case of Mohana Vs. Rameesa Beevi and others [CRP.PD.No.708 of 2022, dated 14.03.2022], a learned Single Judge of this Court has expressed a similar view and the same is extracted as hereunder: “5. In the present case, RCOP No.286 of 2018 was not on record on the date on which the landlord invoked the New Act and filed the present RLTOP 3/2020. The only ground of the revision petitioner is that RCOP No.286 of 2018 was dismissed for default after the coming into force of the New Act. In view of the line of reasoning of this Court indicated above, this Court may not be able to appreciate it. As rightly pointed out by the Rent Court, the landlord has filed the present RLTOP No.3 of 2020, not on the same ground that provided cause of action for RCOP No.286 of 2018, but on an entirely different ground in Sec.21(2)(a) which as already indicated has no parallel provision in the old Act. This Court therefore does not find that there exists a circumstance for this court to warrant an interference with the order of the Rent Court.” 14. The Rent Controller rightly dealt with the issue and had chosen to dismiss the petition under Section 47(2) of the New Act. Hence, I find no reason for interference. Thus, the Civil Revision Petition is dismissed. The order dated 14.02.2022 passed by the Rent Controller (XVI Judge, Small Causes Court), Chennai, in MP.No.1 of 2021 in RLTOP.No.7 of 2020 is confirmed. No costs. Hence, I find no reason for interference. Thus, the Civil Revision Petition is dismissed. The order dated 14.02.2022 passed by the Rent Controller (XVI Judge, Small Causes Court), Chennai, in MP.No.1 of 2021 in RLTOP.No.7 of 2020 is confirmed. No costs. Consequently, connected miscellaneous petition is also dismissed.