P.Kannaiah v. V.R.Chinnaraj

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:10.2.2009CORAMTHE HONOURABLE Mr. JUSTICE A.C.ARUMUGAPERUMAL ADITYANC. R. P. (NPD) No.1809 of 2006andM.P.Nos.1 of 2006 and 1 of 2008P.Kannaiah .... Petitioner/TenantVs.V.R.Chinnaraj .... Respondent/LandlordCivil Revision Petition is filed under Section 25 of the TamilNadu Buildings (Lease and Rent Control) Act 1960, against the fairand decretal order dated 5.12.2006 in R.C.A.No.61 of 2006 on the fileof the Rent Control Appellate Authority(Principal Subordinate Judge)Coimbatore confirming the fair and decretal order dated 7.4.2005 inR.C.O.P.No.187 of 2003 on the file of Rent Controller(PrincipalDistrict Munsif) Coimbatore.For Petitioner : : Mr.P.Valliappan,AdvocateFor respondent : : Mr.S.Parthasarathy,Senior Counsel for Mr.J.Ramakrishnan, Advocate. O R D E R The concurrent finding of the Rent Controller in R.C.O.P.No.187of 2003 and the learned Rent Control Appellate Authority in RCA No.61of 2006 under Section 10(2)(1) of the Tamil Nadu Buildings( Lease andRent Control) Act 1960(hereinafter referred to as "Act") for an orderof eviction is under challenge before this Court under this revision.2. The facts in brief in the petition filed by the landlord inRCOP No.187 of 2003 before the learned Rent Controller runs asfollows: The petitioner is the owner of the premises bearing doorNo.245 and Door No.248. Coimbatore. The respondent became a tenantunder one Mr.Rajagopal previously. The petitioner had purchased thepetition schedule property from Rajagopal as per the registered saledeed dated 25.11.1985. The tenancy was attorned in favour of thepetitioner and the respondent was paying the rents to the petitionerafter his purchase. The respondent is in occupation of the premisesbearing door No.248 and he is carrying on Hotel Business thereon. https://hcservices.ecourts.gov.in/hcservices/ The rear portion bearing door No.245 is being used by the respondentfor his residential purpose. After the purchase of the petitionschedule premises, the respondent was paying a sum of Rs.500/-towardsrent for door No.245 and subsequently it has been increased from timeto time and the present rent payable is Rs.2,500/-. As far as doorNo.248 is concerned, the rent was originally fixed as Rs.450/- permonth and it has been increased from time to time and the presentrent is Rs.1,500/- per month. Thus the total rent payable by therespondent to door Nos. 245 and 248 comes to Rs.4,000/- per month.At the time of inception of tenancy, the respondent has paidRs.1,000/- towards advance. Both door Nos.245 and 248 are contiguousin nature. The petitioner's son Boopathy is running a Bakery andHotel under the name and style of "Boopathy Bakery and Hotel"in therented premises belonging to Mr.Elango at Aerodrome Road,Singanallur, Coimbatore. He is paying Rs.3000/- per month towardsrent. His landlord Mr.Elango had demanded him to vacate and hand overvacant possession. The petitioner, therefore, requires the petitionschedule premises for the own use and occupation of his son Boopathy.The requirement of the petitioner is a bonafide one. The rent payablefrom February 2003 has not been paid. The respondent has sent twomoney orders of Rs.1,500/- each alleging that the rent is Rs.1500/-per month. Inspite of repeated demands, the respondent has wilfullyand deliberately failed to pay the rent. The default committed by therespondent is wilful and therefore he is liable to be evicted fromthe petition premises. The respondent had filed O.S.No.747 of 2003 onthe file of Court of District Munsif, falsely contending that thepetitioner is attempting to interfere with his possession. The saidsuit is still pending. The petitioner had sent a legal notice dated30.6.2003 calling upon the respondent to vacate and surrender thepossession of the premises to enable his son to do his business.The respondent received the said notice and gave reply notice dated7.7.2003 containing false and frivolous allegations. Hence thepetition for eviction.3. The respondent in his counter would contend that thepetitioner along with his two wives had purchased the property, buthe alone had filed the petition. There is no document produced by thepetitioner to show that his two wives also authorised the petitionerto file this petition. Hence this petition is liable to be dismissedfor non joinder of necessary parties. The rent was fixed for thepetition schedule premises as Rs.425/- per month at the beginning ofthe tenancy and it was subsequently increased at the rate of Rs.25/-by every two years. The respondent has paid Rs.5,000/- towardsadvance and the rent paid by the petitioner to the petition scheduledpremises was Rs.1,500/- per month. The respondent has also paidadditional advance of Rs.10,000/- in the year 1987 and has paid a sumof Rs.15,000/- in the year 1987 and he has also spent aboutRs.30,000/- for getting electricity and water connection. There is noagreement for paying separate rent for door Nos.245 and 248. Therespondent has paid the agreed rent to the petition schedule premises https://hcservices.ecourts.gov.in/hcservices/ without any default till today. The respondent was sending the rentof Rs.1500/- to the petitioner every month through money orderregularly which was also received by the petitioner. Adjacent to thepetition schedule premises, there are seven more shops belonging tothe petitioner. But the petitioner has chosen only this shop in theirown use and occupation which itself is proved that their claim is nota bonafide one and only to harass the respondent, this petition hasbeen filed by the petitioner. From the beginning of the tenancy, therent was paid totally ie., the rent was paid for both door Nos.245and 248 at the rate of Rs.1500/- per month. So the petitioner cannotclaim that the respondent has paid the rent for one property. Therespondent has not committed any wilful default. Since the petitionerhad made an attempt to evict the respondent by force, the respondenthas filed O.S.No.746 of 2003 which is pending before this Court.Since the respondent has filed the above case against the petitioneras a counterblast the petitioner has filed this petition for evictionalleging false and frivolous allegations. Hence the petition isliable to be dismissed.4. Before the Rent Controller, the petitioner has examinedhimself as P.W.1 besides examining his son Boopathy as P.W.2. On theside of the petitioner, Exs P1 to P17 were exhibited. On the side ofthe respondent, the respondent was examined as R.W.1 and Exs R1 to R5were marked. After going through the evidence both oral anddocumentary, the learned Rent Controller has held that the petitioneris not entitled to the relief under Section 10(3)(a)(iii) of the Actbut allowed the petition under Section 10(2)(1) of the Act holdingthat the tenant/respondent had committed wilful default in payment ofrent. Aggrieved by the findings of the learned Rent Controller, thetenant had preferred the appeal in RCA No.61 of 2006 before thelearned Rent Control Appellate Authority, Coimbatore who afterhearing the submissions made by the learned counsel on both sides,finding no reason to interfere with the findings of the learned RentController had dismissed RCA No.61 of 2006 which necessitated thetenant to approach this Court by way of this revision.5. Now the point for consideration in this revision petition iswhat is the rent for the petition schedule premises? and whether therevision petitioner/tenant had committed any wilful default inpayment of rent?6. Heard Mr.P.Valliappan, the learned counsel appearing for therevision petitioner and Mr.S.Parthasarathy, learned Senior counselappearing for the respondent and considered their respectivesubmissions.7.The Point:According to the petitioner, P.W.1, the rent for the petitionschedule shop(bearing door No.248) is Rs.1,500/- per month and the https://hcservices.ecourts.gov.in/hcservices/ rent for the house bearing door No.245 is Rs.2,500/- per month andthat at the inception of the tenancy, the respondent had paid a sumof Rs.1000/- towards advance and that the tenant had committeddefault in payment of rent from February 2003. Both the Courts belowhave held that for the letter of demand under Ex P14 dated 5.6.2003,the respondent/tenant had not send any reply which will lead to apresumption that the monthly rent for the petition schedule premisesis Rs.4000/- and not Rs.1,500/- as contended by the tenant. Ex P14letter was followed by a legal notice sent through a lawyer dated30.6.2003 under Ex P11 for which a reply was sent by the tenantunder Ex P13 dated 7.7.2003 . Even under Ex P13, reply notice, thetenant had denied that the monthly rent for the petition schedulepremises is not Rs.4,000/- per month as alleged in the legal noticeunder Ex P11 dated 30.6.2003 ,but it was only Rs.1,500/- per month.Apart from the pleadings in Ex P11 and Ex P13, there is nodocumentary evidence produced before the trial Court to show that themonthly rent for the petition schedule premises was Rs.4,000/-. Thepetitioner/landlord as P.W1 would admit in the chief examinationitself that the respondent was sending the monthly rent through moneyorder at the rate of Rs.1,500/- per month. Under such circumstancesonly if the landlord/respondent herein proves that the agreed monthlyrent between the parties is Rs.4,000/-, he cannot claim, that thetenant/revision petitioner had committed default much less wilfuldefault in payment of rent from February 2003 to the petitionschedule premises.8. The learned counsel appearing for the revision petitionerrelying on a decision reported in C.Chandramohan-v- Sengottaityan(dead) by Lrs (2000(1)CTC 239 =AIR 2000 S.C.568) would contend thatunless it is shown by the petitioner/landlord that there is a wilfulin payment of rent by the tenant, he is not entitled to get an orderin his favour under Section 10(2)(1) of the Act for eviction. Theexact observation on which reliance was placed by the learned counselfor the revision petitioner at paragraph 14 of the above said dictumruns as follows:"That apart, in the order under challenge, thelearned Judge of the High Court considered theplea of the appellant in the eviction petitionsand noted that the ground for seeking eviction ofthe respondents was that the respondents 'failedto tender correct rent' and that was termedas"wilful default in payment of rent." We havegone through the pleadings of the parties.Mr.Venkataramani could not point out any avermentin the eviction petitions regarding non payment ofrent by the respondents for any specified month orperiod; he has, howevr, contended that if thepleadings are understood in the light of thenotices exchanged between the parties, the plea of https://hcservices.ecourts.gov.in/hcservices/ wilful default in payment of rent can be culledout. We are afraid, we cannot accede to thiscontention. That is not the way the pleadings areconstrued. We are inclined to agree with thesubmission of Mr.S.Sivasubramaniam, learnedcounsel for the respondents, that the evictionpetitions were not filed on the ground of nonpayment of rent for any specified period but werefiled on the ground that the rent as claimed bythe appellant(namely, at the rate of Rs.400,Rs.850 and Rs.700 per month) was not paid as thesame is justified by the recitals in the evictionpetitions. In view of the findings of theAppellate Authority regarding the quantum of rentpayable by the respondents that the amount aspleaded by the respondents, namely, Rs.75,Rs.250and Rs 200/- is correct and regarding the groundon which eviction is sought recorded on the basisof the pleadings and the statement of theappellant himself that the respondents had failedto tender the correct rent to the appellant andthereby committed wilful default, the High Courtis right in holding that no wilful default wascommitted by the respondents in payment of rent".Relying on M/s Chordia Automobiles-v-S.Moosa (AIR 2000 Supreme Court,1880(1)the learned counsel appearing for the revision petitionerwould contend that the default in payment of rent will be consideredas wilful default only if the tenant after the receipt of noticefailed to pay the rent for a continuous period of two months. But inthis case, admittedly the tenant was sending the rent at the rate ofRs.1500/- per month . Unless the rent for the petition schedulepremises is determined whether it is Rs.4000/- per month as contendedby the landlord or Rs.1,500/- per month as contended by the tenant,it cannot be said that the tenant had committed wilful default inpayment of rent more particularly he had sent the rent due for themonth of February 2003 onwards by money order to the landlord asadmitted by him in his evidence as P.W.1.The relevant observation inthe said Judgment of the Honourable Apex Court relevant for thepurpose of this civil revision petition is as follows:" Wilful default means as act consciously ordeliberately done with open defiance and intentnot to pay the rent. In the present case theamount of rent defaulted firstly is on account offact that the agent of the landlord did not cometo collect the rent for some reason. Further,notice of default contained disputed rent. Thisfact coupled with the fact that eviction suit wasfiled before maturing a case of wilful default in https://hcservices.ecourts.gov.in/hcservices/ terms of Explanation to the proviso of Section 10(2). The dispute of rent admittedly was genuine.Further, we find conduct of the appellantthroughout in the past being not of a defaulter orirregular payer of rent. Thus, all thesecircumstances cumulatively come to only oneconclusion that the appellant cannot be held to bea wilful defaulter... ......... Thus, a consensusof the meaning of the words" wilful default"appears to indicate that default in order to bewilful must be intentional, deliberate, calculatedand conscious, with full knowledge of legalconsequences flowing therefrom. Taking forinstance a case where a tenant commits defaultafter default despite oral demands or remindersand fails to pay the rent without any just orlawful cause, it cannot be said that he is notguilty of wilful default because such a course ofconduct manifestly amounts to wilful default ascontemplated either by the Act or other Actsreferred to above."In support of his contention, the learned counsel for the revisionpetitioner would contend that since the tenant has been paying therent of Rs.1500/- regularly every month to the landlord through moneyorder, it cannot be said that he had committed wilful default unlessthe landlord proves that the monthly rent is Rs.4000/- per month forthe petition schedule premises, relied on a decision reported inP.M.Punnose-v- K.M.Munneruddin(2003(3)CTC 348) wherein the relevantobservation of the Honourable Apex Court is that "there appears tobe a bona fide dispute as to the quantum of arrears, that is, as towhat was the exact amount of rent paid by the tenant- appellant tothe landlord-respondents and consequent upon which payment theliability for how many number of months came to be extinguished. Thefacts found indicate the tenant-appellant remitting the amount ofrent by money orders before and after and even during the pendency ofthe proceedings and some of the money orders having been refused bythe landlord-respondents. The present one is a fit case where theController should have exercised his power under proviso to sub-section (2) of Section 10 of the Act by passing an order thereunderand giving the tenant-appellant a reasonable time, not exceeding 15days, to pay or tender the rent due by him to the landlord upto thedate of such payment of rent." The same proposition of law wasreiterated in M.Salem-v- Josephine Mary(2003(2)TNLJ 438 as follows:The facts of the said case are according to the petitioner, the rentpayable is Rs.1500/- p.m. According to the respondent, it isRs.2000/- per month. According to the landlord, the tenant hadcommitted default in payment of rent from September 1997 to January1998. According to the petitioner/landlord at the time of inceptionie., on 15.2.1989, the rent was fixed at Rs.1000/-. Thereafter, it https://hcservices.ecourts.gov.in/hcservices/ was increased to Rs.1200/- in the year 1992 and the rent was furtherincreased to Rs.1500/- in March 1996 and thereafter there was noincrease. But according to the respondent, the rent was furtherincreased to Rs.2,000/- but there was no material placed before theRent Controller by the landlord to show that the admitted rent wasRs.2000/- per month. The tenant had sent the rent by money order atthe rate of Rs.1500/- per month which was refused to by thelandlord. Immediately, the tenant had issued notice to the landlordto furnish the name of the bank to enable him to deposit the rent inthe account of the landlord. But without furnishing the name of thebank and his account number, the landlord had rushed to the Court.Under such circumstances, it was held that unless the quantum of rentwas ascertained, it cannot be said that the tenant had committeddefault in payment of rent much less wilful default. For the samepoint, the learned counsel for the revision petitioner relied onKhusid Begum -v-Basheer Alam(2001(2)L.W.596) wherein the ratiodecidendi is that unless it is shown by the landlord that the tenanthad committed wilful, deliberate and actionable default , it cannotbe said that he had committed wilful default in payment of rent,warranting an order of eviction against him in a petition underSection 10(2)(1) of the Act. 9.Both the Courts below under assumption and presumption haveheld that the monthly income for the petition schedule premises isRs.4000/- in the absence of any reliable evidence. This Court whileexercising revisional power in a concurrent finding cannot normallyinterfered with the findings of the Courts below unless it is shownthat the finding of the Court below is perverse in nature and hasfailed to consider the evidence placed before the learned RentController. There is absolutely no evidence on record to show thatthe monthly rent for the petition schedule premises was Rs.4000/-.Admittedly, the revision petitioner/tenant had sent the monthly rentto the landlord/respondent herein at the rate of Rs.1,500/- per monththrough money order. Unless it is shown that the agreed monthly rentfor the petition schedule premises is Rs.4,000/- per month, it cannotbe said that the tenant had committed default much less wilfuldefault in payment of rent to the landlord. Under suchcircumstances, I am of the view that the learned Rent Controllershall first decide what was the agreed rent for the petition schedulepremises and thereafter to decide whether the tenant had committedany wilful default in payment of agreed rent. If the rent is onlyRs.1500/- per month for the petition schedule premises as contendedand paid by the tenant through money order, then it cannot be saidthat the tenant had committed wilful default in payment of rent. Thepoint is answered accordingly.10. In fine, this civil revision petition is allowed and theJudgment in RCA No.61 of 2006 on the file of the learned Rent ControlAppellate Authority, Coimbatore is set aside and the matter isremitted to the learned Rent Controller(Principal District Munsif) https://hcservices.ecourts.gov.in/hcservices/ Coimbatore for fresh trial for deciding first what was the rent forthe petition schedule premises and then to decide whether the tenanthad committed wilful default in payment of rent. Both parties shallappear before the learned Rent Controller(Principal District Munsif)Coimbatore on 2.3.2009. Both parties must be given sufficientopportunities to let in further evidence . The learned RentController shall commence the trial, after fixing the date for trialand dispose of R.C.O.P.No.187 of 2003 on or before 30.4.2009. At thisJuncture, the learned counsel for the revision petitioner wouldrepresent that the tenant had deposited a sum of Rs.50,000/- to thecredit of R.C.O.PNo.187 of 2003 on the file of Rent Controller( Principal District Munsif) Coimbatore. The said amount is to beadjusted towards the arrears of rent or future rent by way of filingappropriate application by the landlord at the relevant point oftime. No costs. Consequently, connected M.Ps are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sgTo1. The Principal District Munsif,(Rent Controller) Coimbatore.2. The Principal Subordinate Judge, Rent Control Appellate Authority, Coimbatore.3. The Section Officer, VR Section, High Court, Madras+ 1 CC To M/s.P.Valliappan, Advocate SR NO.5698+ 1 CC To Mr.J.Ramakrishnan, Advocate SR NO.5683 C.R.P.(NPD) NO.1809 of 2006KA {CO}TP/11.2.2009