Research › Search › Judgment

Madras High Court · body

2023 DIGILAW 3290 (MAD)

J. Packiams v. P. Raje

2023-11-10

P.B.BALAJI

body2023
JUDGMENT (Prayer: Civil Revision Petitions filed under Article 227 of the Constitution of India, to strike off the R.C.O.P.No.3 of 2018, pending on the file of the Rent Controller (District Munsif Court), Theni.) 1. This Civil Revision Petition is at the instance of the second and third respondents in R.C.O.P.No.3 of 2018, on the file of the Rent Controller (District Munsif Court), Theni, praying to strike off R.C.O.P.No.3 of 2018 on the grounds that the first and second respondents herein who filed the eviction petition, were not landlords and they are not entitled to claim rents or seek eviction on the ground of non-payment of rents, alleging wilful default committed by the tenant. 2. I have heard the learned counsel for the revision petitioners as well as the learned counsel for the contesting respondents, viz., the petitioners in the R.C.O.P proceedings. 3. The case of the respondents 1 and 2 before the Rent Controller is that the petition premises originally belonged to Late M.Jeyaram, who is the father-in-law of the first respondent and grandfather of the second respondent. The said Jeyaram died on 14.08.2017 leaving behind the respondents 2 and 3, viz., revision petitioners herein, besides themselves, who were wife and son of the pre-deceased son Poongundran. According to the respondents 1 and 2, the said Jeyaram died intestate and they were entitled to 1/3rdshare in the property and consequently, 1/3rdshare in the rents that were due and payable by the tenant, namely, the first respondent in the R.C.O.P., who has been cited as third respondent in the Civil Revision Petition. It is further stated in the eviction petition that the respondents 1 and 2 sent a notice to the tenant calling upon him to pay Rs.7,333/- per month towards their share of the rent and that the tenant had sent an undated reply stating that he was not in any default and that he is paying the rent to the second respondent, viz,. first revision petitioner herein and further contended that he had paid Rs.8,00,000/- to Late Jeyaram and therefore, he was not liable to pay anything to the respondents 1 and 2. first revision petitioner herein and further contended that he had paid Rs.8,00,000/- to Late Jeyaram and therefore, he was not liable to pay anything to the respondents 1 and 2. The revision petitioners were impleaded as respondents 2 and 3 in the R.C.O.P proceedings and it has been specifically stated in the R.C.O.P that the respondents 2 and 3 had brought about some agreement and arrived at an understanding with the tenant and the same would not bind the respondents 1 and 2. The revision petitioners have filed a counter in the said R.C.O.P stating that no doubt, the said M.Jeyaram was the owner of the property. However, during his life time, he had executed a Will on 13.08.2017, bequeathing the petition premises to the third respondent, viz., second revision petitioner herein and that even during the life time of his father, it was only the second revision petitioner, who was collecting rents and that he has also filed O.P.No.2 of 2017 for probating the said Will of his father. He has also stated that the respondents 1 and 2 have filed a suit for partition in which suit also, the petition premises has been included as one of the items available for partition and therefore, prayed for dismissal of the R.C.O.P. on the ground that it was not maintainable. 4. Pending the said R.C.O.P., the above Civil Revision Petition has been filed under Article 227 of the Constitution of India, for the aforementioned grounds which have already been set out hereinabove, seeking to strike off the R.C.O.P. 5. I have heard the learned counsel for the revision petitioners and the learned counsel for the respondents 1 and 2. I have also perused the records. 6. Admittedly, the claim of the respondents 1 and 2 is only consequent to the demise of the original owner of the property, viz., Jeyaram and they being legal heirs of pre-deceased son of the said Jeyaram, it is not a disputed fact that the respondents 1 and 2 have already filed a suit for partition and that the petition premises, which is subject matter of the R.C.O.P proceedings, is also one of the items set out as available for partition in the said suit. It is also not in dispute that the third respondent, viz., second revision petitioner herein claims under the Will said to have been executed by his father and that in respect of the said Will, Probate O.P.No.2 of 2017 is pending, before the District Court, Theni. 7. The respondents 1 and 2 have not stated in the R.C.O.P. petition that they are the landlords and that the third respondent is a tenant under them. On the contrary, their case itself is that out of the rents being paid by the tenant, they are entitled to a 1/3rdshare and therefore, non payment of such 1/3rdshare of rent to them would render the tenant liable to be evicted on the ground of wilful default. It is trite law that insofar as Rent Control proceedings are concerned, the landlord need not be the owner of the premises. The definition of landlord is set out under Section 2(6) of the said Act, which reads as follows:- “(6) " landlord " includes the person who is receiving or is entitled: to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent o r be entitled to receive the rent, if the building were let to a tenant ; Explanation.-A tenant who sub-lots shall be deemed to be a landlord within the meaning of this Act, in relation to the sub-tenant. [(6-A) ' member of his family' in relation to a landlord means his spouse, son, daughter, @ and-child or dependent patent]” 8. In order to invoke the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, first and foremost, the petitioners, who seeks relief under the said Act, should establish a jural relationship of landlord and tenant. Mere statement that the petitioners who approached the Rent Controller are entitled to a share in the rents being paid by a tenant would not be sufficient to bring their claim within the purview of the Rent Control Act. Here, admittedly, it is not the case of the respondents 1 and 2 that they have a rental agreement or a relationship of landlord or tenant with the third respondent. Here, admittedly, it is not the case of the respondents 1 and 2 that they have a rental agreement or a relationship of landlord or tenant with the third respondent. It is their specific case that the father-inlaw of the first respondent and grandfather of the second respondent, is M.Jeyaram. Even in the R.C.O.P petition, it is stated that the tenant had sent a reply that he has paid rents only to the second respondent, viz., the second revision petitioner. Therefore, even if the respondents 1 and 2 may be entitled to a 1/3rdshare in the property, subject to the final outcome of the partition suit and probate proceedings, insofar as the relationship of landlord and tenant between them and the third respondent, the same has not been in existence at any point of time. The stand of the tenant in the reply notice, which is referred to in R.C.O.P petition as well also clearly states that after the demise of Jeyaram, the rents have been paid to the second revision petitioner, viz., the third respondent in the R.C.O.P and that the respondents 1 and 2 herein are not entitled to claim rents from the tenant / third respondent. 9. The learned counsel for the revision petitioners would also place reliance on three decisions of this Court. The first case relied on by the counsel is the case of A.K.Gopal V. S.Vasanthan reported in 1993- LW-580 for the proposition that any eviction petition against the tenant must be instituted by either all the landlords or at least by one or more of them, on behalf of all of them. 10. In A.Alagiyanathan V. M.Swaminatha Pillai reported in 1978-2-MLJ-234 = 1991-LW-519, this Court held that a co-owner cannot file an application for eviction, without the consent of the co-owners. The third decision on which reliance was placed by the learned counsel for the revision petitioners is Kanta Udharam Jagasia (miss) V. C.K.S. Rao reported in 1998-1-SCC-403, where the Hon'ble Supreme Court held that even one co-owner can maintain an eviction petition in the absence of any objection from the other co-owners and when the tenants were paying the rents to one of the co-owners, he cannot raise an objection in eviction petition that such co-owner is not a landlord. 11. 11. The next case relied on by the learned counsel in the case of Indhumathi V. Prithviraj reported in 2022-1-MWN-Civil-159, for the proposition that the Court cannot compel the revision petitioner to face trial which is an empty formality and allow a civil case to be kept pending for years and that the Court will never encourage any litigation by wasting the time of the litigant and the Court. 12. At the risk of reiteration, merely because the respondents 1 and 2 may be co-owners of the petition premises, they cannot automatically claim to be landlords. From a reading of entire R.C.O.P., I am unable to find a single averment that the respondents 1 and 2 claim to be landlords within the definition of Section 2(6) of the Act. This coupled with the fact that the third respondent / second revision petitioner has already filed a Probate O.P to prove the Will executed by his father in respect of the petition premises and also the pendency of the partition suit where this petition premises is also shown as one of the schedule properties, at this juncture, pending both these substantial proceedings, the respondents 1 and 2, cannot, without the consent of the other co-owners file an eviction petition against the tenant. Unfortunately, the tenant has taken advantage of the inter se dispute between the family members and stop paying rents, besides also taking a stand that a sum of Rs.8,00,000/- has been paid to the deceased person and therefore, he is not liable to pay any rents. Merely because the revision petitioners have been impleaded as respondents 2 and 3 in the R.C.O.P, it will not render the eviction petition maintainable. It is the specific case of the respondents 1 and 2 that there is a counter claim made by the said respondents 2 and 3 and in such view of the matter, it is an admitted position that the respondents 1 and 2 do not have the consent of the other co-owners, viz., revision petitioners. Moreover, the respondents 1 and 2 have not been able to even show that there is a jural relationship between the landlord and tenant. 13. Moreover, the respondents 1 and 2 have not been able to even show that there is a jural relationship between the landlord and tenant. 13. The learned counsel for the contesting respondents, viz., the petitioners in R.C.O.P would state that there is no stay granted by this Court and therefore, the trial Court proceeded with the R.C.O.P and now the R.C.O.P is at the stage of cross-examination of the respondents witness and considering that the R.C.O.P itself is on the verge of being concluded, this revision petition should not be entertained and the parties can as well await the final orders of the Rent Controller. I am unable to countenance the said submission. Merely because the trial of the case has progressed up to the stage of respondents' evidence, it does not render this Court powerless to invoke Article 227 of the Constitution of India. The R.C.O.P itself is a clear abuse of process of law. Without a semblance of material to show a jural relationship between the owner and the tenant, the R.C.O.P has been filed. Even in the R.C.O.P, the petitioners therein have admitted that their claim is only in respect of 1/3rdin the rents payable by the tenant, consequent to the demise of the original owner of the property, one Jeyaram. This issue is at large before the probate Court and the suit for partition. In the absence of even a semblance of right to be entitled to rent, the respondents 1 and 2 cannot claim to be landlords and initiate R.C.O.P proceedings. 14. In view of the above, I hold that R.C.O.P is liable to be struck off from the file as the R.C.O.P petition does not disclose any relationship of landlord and tenant and moreover, admittedly, the petitioners therein do not have the consent of the other two co-owners, who, in fact, claim that the petitioners in the R.C.O.P have no right in the petition premises, in view of the Will executed by the original owner Late Jeyaram, which matter is, of course, subjudice. Insofar as the summary proceedings before the Rent Controller are concerned, the respondents 1 and 2 are not justified in invoking the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act and seeking eviction of the tenant, who is admittedly paying the rent to the second revision petitioner. Insofar as the summary proceedings before the Rent Controller are concerned, the respondents 1 and 2 are not justified in invoking the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act and seeking eviction of the tenant, who is admittedly paying the rent to the second revision petitioner. Moreover, it is specifically stated that the second revision petitioner had entered into a rental agreement with the tenant on 07.11.2017, subsequent to which, he has already claimed to be a landlord and thus, the respondents 1 and 2 cannot maintain the R.C.O.P claiming to be landlords, within the definition Section 2(6) of the Act 1960 as amended by Act of 1973. 15. In fine, the instant Civil Revision Petition stands allowed and the R.C.O.P.No.3 of 2018, pending on the file of the Rent Controller (District Munsif Court), Theni, is struck off from its file. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.