CORAMTHE HONOURABLE MR v. Venkatasubba Reddiar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27-7-2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMC.R.P.NPD Nos.257 to 261 of 2006andCMP Nos.2105 to 2109 of 2006Arumugam.. Petitioner in CRP 257/2006Periasamy.. Petitioner in CRP 258/2006Mayakrishnan.. Petitioner in CRP 259/20061.Narayanasamy (died)2.Janabai3.Govindasamy4.Venkatesan5.Gunavathi (Petitioners 2 to 5 brought on record as LRs of the deceased 1st petitioner (Narayanasamy) and impleaded as petitioners 2 to 5 in CRP 260/2006 vide order of Court dt.16.7.2007 made in CMP Nos.10392 & 10393/2006).. Petitioners 1 to 5 in CRP 260/20069.Kannan @ Devarasu.. Petitioner in CRP 261/2006vs1.Venkatasubba Reddiar 2.Vanasatchi3.Subbulakshmi.. Respondents in all CRPsCivil revision petitions preferred under Sec.25 of PondicherryBuilding (Lease and Rent Control) Act 1960 as amended by Act 80 of 1980against the judgment and decree dated 18.10.2005 in RCA Nos.7, 8, 9, 10and 11 of 2005 on the file of the Principal District Judge, Pondicherry,allowing the appeal by setting aside the order dated 25.2.2005 in HRCOPNos.80, 81, 82, 83 and 84 of 2001 on the file of the Rent Controller,Pondicherry.For Petitioners: Mr.AR.L.Sundaresan Senior Counsel for Mr.K.Raja SrinivasFor Respondents: Mr.V.Raghavachari for R1 https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERThis order shall govern these five revisions in C.R.P.Nos.257 to 261of 2006. 2.The tenants are the revision petitioners herein who challenge thejudgments of the Rent Control Appellate Authority namely the PrincipalDistrict Judge, Pondicherry, in RCA Nos.7 to 11 of 2005 whereby the ordersof the Rent Controller of the said place dismissing the petitions in RCOPNos.80 to 84 of 2001 on the ground of willful default, were reversed byallowing the appeals.3.The Court heard the learned Counsel on either side.4.The first respondent herein filed all the above RCOPs five innumber, alleging that the respondents in the RCOP namely the petitionersherein, were occupying the premises which belonged to his fatherRamakrishna Reddiar; that he died in 1992; that the first respondentbecame the owner of the property; that the petitioners became the tenantsunder him; that they were making payments of rental; that it was enhancedto Rs.605/- per month for the year 1999; that the tenants were irregularin paying the rent; that they paid rent upto December 1999; that there wasa panchayat convened for the revision of the rent; that the tenantsrefused to accept the revision; that following the same, each petitionersent a sum of Rs.400/- by way of money order on 1.2.2000; that the samewas rightly refused; that thereafter, the tenants issued a noticeincluding the name of the mother of the first respondent which wassuitably replied; that further, they gave another notice demanding thebank account number of the first respondent in order to enable them todeposit the rent in the bank; and that following the notice issued throughthe Counsel which was of no avail, the first respondent filed the RCOPsfor eviction on the ground of willful default. 5.Pending the RCOPs, since the tenants averred in the course of theircounter that the property belonged to the mother and sister of the firstrespondent also, and they should have also been added as parties, theyalso became impleaded as parties to the proceedings. Thereafter,amendment application was filed stating that there was denial of title ofthe first respondent, and the same must also be taken as a ground. 6.The tenants filed counter stating that the property originallybelonged to the father of the first respondent Ramakrishna Reddiar; thathe died intestate in 1992 leaving behind the first respondent and also hiswife and daughter, the respondents 2 and 3 respectively, and hence, theyall became the owners of the property; that under the circumstances, thecase of the first respondent that he was entitled to the propertyexclusively was false; that it was a case in which the respondents 2 and 3herein were also claiming the rental share; that accordingly, it was paid;that the balance was sent to the first respondent, which he refused toreceive; that thereafter, the RCOPs were filed for depositing the rental;that they deposited the same before the Court; that under thecircumstances, it was not a case where the RCOPs were filed by the firstrespondent as the co-owner representing the other co-owners also, nor wasit filed with the consent of the co-owners also, but filed claiming to bethe exclusive owner of the property; and that under the circumstances, thepetitions were not maintainable. https://hcservices.ecourts.gov.in/hcservices/

7.The tenants further added that in the instant case, there was noapplication of Sec.10(2)(1) of the Act to the present facts of the case;that there was a rental payment made by way of money order; but, it wasrefused; that thereafter, a notice was also issued calling upon the firstrespondent to name the bank so that it could be deposited; but, it was notdone; that under the circumstances, there was no willful default at all,and hence, the petitions were to be dismissed.8.The second and third respondents who are the mother and sister ofthe first respondent respectively, filed their respective counter statingthat they opposed the petitions; that consent was never obtained fromthem; and that actually, they are also the owners of the property alongwith the first respondent.9.The learned Rent Controller conducted an enquiry in all the RCOPs,where the evidence both oral and documentary, was adduced. The RentController came to the conclusion that all the petitions were notmaintainable and hence, dismissed the same. Aggrieved, the firstrespondent preferred appeals in the RCAs referred to above, which wereallowed by the appellate forum. The aggrieved tenants have brought forththese revisions before this Court.10.The learned Senior Counsel advancing his arguments on behalf of thepetitioners-tenants, would submit that in the instant case, the RCOPs werenot maintainable since the first respondent filed the petitions originallystating that he was entitled to the property, and he has been collectingthe rents, and there was willful default, and eviction was to be ordered;that the respondents 2 and 3 filed applications to implead themselves asco-owners of the property; that the first respondent took out an amendmentapplication wherein he filed an affidavit again maintaining the stand thathe was the exclusive owner of the property, and thus, there was a denialof title of the first respondent, and under the circumstances, it was alsoto be added as a ground; that in the instant case, the Rent Controller hasdismissed the petitions rightly holding that not only the firstrespondent, but also the respondents 2 and 3 were the co-owners of theproperty, and without their consent, the petitions have been filed, andunder the circumstances, the petitions were not maintainable; thatfurther, in the instant case, the appellate forum has erroneously reversedthe said orders; that there was a counter filed by the respondents 2 and 3categorically stating that they were also co-owners of the property, andthe petitions were to be dismissed; that in the instant case, one of theco-owners namely the mother, has also been examined as R.W.2 where she hascategorically deposed that no consent was received from her for filing thepetitions; that if a petition has been filed ordinarily by a person foreviction on the ground that willful default is committed, it can bepresumed that he represents the other co-owners also; that in the absenceof any consent given by other co-owners and that too, when it is objectedto by making their presence in Court, it would be highly difficult tostate that it can be presumed that their consent was available, and it canbe inferable; and that under the circumstances, the appellate authoritywas not correct in recording a finding that the petitions aremaintainable. https://hcservices.ecourts.gov.in/hcservices/

11.Added further the learned Senior Counsel that in the instant case,the rent was actually sent by way of money order; but, it was refused;that thereafter, procedural formalities were followed for the purpose ofdepositing the rent in the bank; that despite that, the first respondentwas not coming forward to name the bank which necessitated them to filepetitions for depositing the rental before the Court; that even assumingthat there were arrears of rental, it cannot be termed as willful defaultcommitted by the tenants, and under the circumstances, the orders of theappellate authority have got to be set aside. 12.In support of his contentions, the learned Senior Counsel relied onthe following decisions:(i) (2004) 3 SUPREME COURT CASES 178 (INDIA UMBRELLAMANUFACTURING CO. AND OTHERS V. BHAGABANDEI AGARWALLA AND OTHERS)and(ii) (2006) 2 SUPREME COURT CASES 724 (MOHINDER PRASAD JAIN V.MANOHAR LAL JAIN.13.Contrary to the above, it is contended by the learned Counsel forthe first respondent that in the case on hand, the main question would bewhether the first respondent could be termed as landlord or not; that itis an admitted position that in 1992, Ramakrishna Reddiar died; that fromthe time onwards, for a period of eight years, the tenants have beenmaking payment of rental without any murmur only to the first respondent;that this fact is also admitted not only by the tenants, but also by thesecond respondent who is the mother of the first respondent; that even anynotice that was issued was only to the first respondent; that having madepayment of rental all along the years and having recognised the firstrespondent as landlord then and there, they are estopped from questioninghis status as the landlord; that it is a case where the first respondenthas proved that he is the landlord in respect of the property, and he hasbeen collecting the rent also; that in a give case like this, a person whois entitled to collect rent, can maintain a petition; that it has beenclearly shown that there was willful default on the part of the tenants;and that having committed willful default, now the tenants cannot bepermitted to say that the first respondent is not the landlord, and othershave got ownership in the property, and they have also not joined, nor hadthey given consent to file the petitions, and hence, they were to bedismissed. 14.In support of his contention, the learned Counsel relied on adecision of the Apex Court reported in 2004 (1) CTC 353 (INDIA UMBRELLAMANUFACTURING CO. AND OTHERS V. BHAGABANDEI AGARWALLA AND OTHERS).15.The Court paid its anxious consideration on the submissions made.16.It is not in controversy that the property originally belonged toone Ramakrishna Reddiar, who died in the year 1992. All these persons,who are the revision petitioners before this Court, became the tenants https://hcservices.ecourts.gov.in/hcservices/ under him. From the year 1992 till 2001, when the strained relationshiparose between the parties, the rent was collected by the first respondent.It is also not in controversy that the rent was sent by money order onlyto the first respondent; but, it was refused. Following the same, anotice was also sent to the first respondent calling upon him to name thebank so that the rental could be deposited; but, it was not done. Now, atthis juncture, what is pertinent to point out is that when the firstrespondent filed the petitions at the earliest, he has stated that he isthe owner of the property. Subsequently, when there was an amendment madeafter the impleadment of the second and third respondents, namely themother and sister of the first respondent respectively, it was clearlyaverred that he is the exclusive owner of the property. At this juncture,it is to be pointed out that the statement what was originally found inthe RCOPs, and the subsequent amendment are against the truth. Theproperty originally belonged to Ramakrishna Reddiar, which devolved notonly on the first respondent, but also on the mother and sister, who areshown as respondents 2 and 3 respectively. It can be well stated that therecovery of rental from 1992 till 2001 should have been made by the firstrespondent on behalf of his mother and sister, who are the heirs ofRamakrishna Reddiar, also. When the petitions were filed, he has calledhimself as owner of the property. That apart, he maintained the samestand even after the proceedings and amendment. He further went to theextent of stating that there was denial of title, and that would beclearly indicative of the fact that he wanted to maintain that he is theexclusive owner of the property. At this juncture, it is pertinent topoint out that when there are number of co-owners and when a petition isfiled for eviction, one of the co-owners can maintain a petition if theconsent of the other co-owners was available. It remains to be statedthat when eviction proceedings were initiated by one co-owner in respectof the property generally owned by co-owners, it would imply that such co-owner is the agent of other co-owners. There cannot be any quarrel overthis legal position brought to the notice of the Court by the learnedCounsel for the first respondent. But, in the instant case, that cannotbe applied for the simple reason that the petitioners' side is able toshow the contrary. 17.Apart from the above, the respondents 2 and 3, who are the wife anddaughter of Ramakrishna Reddiar respectively, have appeared before theRent Controller, and they have filed the counter also wherein they haveclearly stated that they are also the co-owners of the property. Oncethey appeared before the Rent Controller and filed counter like that, andit also went against the first respondent, it would be quite evident thatthey have never given consent for filing the petitions; but, on thecontrary, they were against the petitions. They have received a part ofthe rental payment before the initiation of the proceedings from thetenants. Thus, it is a case, where, before the filing of the petitions,the first respondent who happened to be a co-owner of the property alongwith the mother and sister, has not obtained their consent. On thecontrary, they appeared before the Court to show that they have not givenconsent, but opposed the petitions. In the absence of the consent of theother co-owners and in view of the objections made by them, the petitionswere not maintainable. Once the RCOPs are not maintainable in the eye of https://hcservices.ecourts.gov.in/hcservices/ law, no question of commission of willful default would arise forconsideration. Hence, the orders of the appellate authority are setaside. All the civil revision petitions are allowed. No costs.Consequently, connected CMPs are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.To:1.The Principal District Judge Pondicherry2.The Rent Controller Pondicherry3. The Record Keeper, VR Section, High Court, Madras.5 CC To Mr.K.R.Raja Shrinivas, Advocate, SR NO.49820, 47126.10 CC To Mr.V.Raghavachari, Advocate, SR NO.46998 to 47002, 47396 to 47400.Nsv/CRP NPD Nos.257 to 261of 2006JRG(CO)RVL 22.08.2007