M.Chinniyan v. Tmt.Kasthuri Radhakrishnan2.R.Murali3.R.Saravanan Land lords4.R.Kanjana

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11-7-2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMC.R.P.NPD No.337 of 2002andCMP Nos.3661 and 3662 of 2002M.Chinniyan .. Petitioner/Tenant vs1.Tmt.Kasthuri Radhakrishnan2.R.Murali3.R.Saravanan Land lords4.R.Kanjana .. RespondentsCivil revision petition preferred under Sec.25 of the Tamil NaduBuildings (Lease and Rent Control) Act 18 of 1960 as amended by Act 23/73against the decree and judgment dated 28.6.2001 passed in RCA No.5/2001 bythe Principal Subordinate Judge, Erode, confirming the order of evictionpassed in RCOP No.26/98 on 31.10.2000 by the Rent Controller (I AdditionalDistrict Munsif), Erode.For Petitioner: Mr.T.R.Rajagopalan Senior Counsel for Mr.R.SubramanianFor Respondents: Mr.V.K.Muthusamy Senior Counsel for Mr.P.Sengottuvel for RR1 to 3 Mr.M.M.Sundresh for R4ORDERChallenge is made to a judgment of the Principal Subordinate Judge,Erode, made in RCA No.5 of 2001 affirming an order of eviction made by theRent Controller of the said place in RCOP No.26 of 1998 a petition foreviction on the ground of willful default and personal use and occupationfiled by the respondents herein. 2.The Court heard the learned Senior Counsel on either side. 3.The respondents 1 to 3 herein filed the said RCOP alleging thatthey are the absolute owners of the property described in the Schedule tothe petition; that the revision petitioner was put in possession by oneDhanapal, the power agent of Radhakrishnan, the husband of the firstrespondent and father of the respondents 2 and 3; that the revisionpetitioner-tenant filed O.S.No.87/89 before the Sub Court, Erode, againstthe said Radhakrishnan and the respondents 1 to 3 herein alleging thatthey attempted to evict him forcibly, and hence, permanent injunction https://hcservices.ecourts.gov.in/hcservices/ should be granted restraining them from interfering with his possessionexcept by due process of law; that from that time onwards, he calledhimself as a tenant; but, he has not paid rental for more than a decade,and thus, he has committed willful default; that apart from that, afterthe death of her husband Radhakrishnan in 1994, she has been living allalong in her parental home at Salem; that she is to come back to hermatrimonial home; that both her sons are in different places; that due toher old age, she wanted to be in her own house; that except the premisesin question, they had no other property, and under the circumstances, theyrequired the same bonafide for their own occupation, and hence, he was tobe evicted.4.The revision petitioner-tenant resisted the petition inter aliastating that originally, he was put in possession as a tenant by oneDhanapal, the power agent of Radhakrishnan; that there was an agreementexecuted between one Pongianna Gounder and the said Radhakrishnan, whichwas assigned in favour of the revision petitioner; that there was a noticeissued by Radhakrishnan; that the stand that was taken by him was that therevision petitioner was only a trespasser; that after that, the revisionpetitioner filed O.S.No.87/89 wherein he sought for a permanent injunctionstating that both Radhakrishnan and the respondents 1 to 3 herein weremaking attempts to evict him from the premises unlawfully, and hence, theyshould be injuncted; that the written statement was filed by all thedefendants therein stating that he was a trespasser; that while the matterwas pending so, he filed RCOP No.2/91 for deposit of rental; that he madethe deposits accordingly for a period of three years; that pending thesame, the respondents 1 to 3 filed O.S.No.53/89 showing Radhakrishnan asfirst defendant and others as other defendants, wherein it has beenclearly stated that the petitioner was only a trespasser; that theysought for a declaration that the property exclusively belonged to them;that Radhakrishnan took a stand that the suit was to be decreed; that theyalso called the revision petitioner as a trespasser; that when the matterwas pending, the said Radhakrishnan died on 23.9.1994; that on 5.1.1999,O.S.No.53/89 was withdrawn by them; that O.S.No.87/89 was decreed on21.12.1998 in view of the endorsement made by the opposite partyrecognising the revision petitioner as a tenant; that in all theseproceedings, he has been termed only as a trespasser; that since he hasbeen called as a trespasser all along, no question of allowing therespondents 1 to 3 to call him suddenly as a willful defaulter wouldarise; that apart from that, the property originally belonged toRadhakrishnan; that Radhakrishnan left behind him not only the respondents1 to 3, but also one daughter by name Kanjana; that the RCOP itself couldnot be maintained; that as far as the grounds of willful default andpersonal use and occupation were concerned, it lacks thoroughly bonafide,and hence, the petition was to be dismissed.5.The Rent Controller on enquiry found that the grounds put forth bythe respondents 1 to 3 were made out, and it is a fit case for orderingeviction and accordingly, ordered so. The order of the Rent Controllerwas challenged by the revision petitioner-tenant before the appellateforum in RCA No.5 of 2001, which was also dismissed. Under thecircumstances, this revision has been brought forth. https://hcservices.ecourts.gov.in/hcservices/

6.It is brought to the notice of the Court that once this revisionwas heard and orders were passed, a review application was filed by thetenant, and that review has been ordered. Under the circumstances, it isnow placed before this Court for disposal.7.Advancing his arguments on behalf of the petitioner-tenant, thelearned Senior Counsel raised three contentions. (a) Firstly, the RCOPitself was not maintainable for the reason that originally, there was alease agreement entered into between the revision petitioner-tenant on theone part and one Dhanapal, the power agent of the original ownerRadhakrishnan, on the other part. Thus, it would be quite clear that theproperty originally belonged to Radhakrishnan. If to be so, on the deathof Radhakrishnan, the property would have devolved upon the respondents 1to 3 as wife and sons respectively and also one daughter Kanjana. Thiscontention was actually raised in the course of the counter. Therespondents 1 to 3 have called themselves as exclusive owners of theproperty; but, it was not correct. Once the original owner Radhakrishnanthrough the power agent Dhanapal leased out the property, it would befutile on the part of the respondents 1 to 3 to call themselves asabsolute owners of the property. Under the circumstances, in the absenceof non-impleading of the said daughter Kanjana as petitioner-party in theRCOP and getting consent from her to file the petition, the petitionitself could not be maintained. Hence, the petition should have beendismissed. (b) Secondly, as regards the ground of willful default, all along thestand of the respondents 1 to 3 was that he was only a trespasser. Thatapart, they have gone to the extent of filing a suit, wherein they calledhim as a trespasser. In the suit filed by the petitioner herein inO.S.No.87/89, a written statement was filed calling him as a trespasser.Even before the Rent Controller, the first respondent was examined asP.W.1, where she took a stand that the revision petitioner was not atenant, but a trespasser. Under the circumstances, it would be quiteclear that the same was the stand maintained by them all along till theend of the suit in O.S.No.87/89 wherein an endorsement was made by her on21.12.1998 recognising him as a tenant. As far as that period wasconcerned, he was termed as a trespasser. Once these respondents 1 to 3termed him as a trespasser in the past period namely a decade, they shouldnot be now allowed to call him as a defaulter, much less willfuldefaulter. So long as that period was concerned, he should not be termedso. As far as the subsequent period was concerned, on the first day ofthe hearing of the RCOP, the entire payment of arrears was made, andfollowing the same, rental payments have been made regularly in thepending proceedings, and therefore, no question of willful default wouldarise. In such circumstances, the said ground has got to be rejected. (c) Thirdly, as regards the other ground of personal use andoccupation, both the sons who are the respondents 2 and 3, are residing intwo different places, and the first respondent-wife is also residing atSalem. Though she has stated that she has no other property except theproperty in question, she has categorically admitted in evidence that shecould not live alone, and thus, it is doubtful whether they have provedthe bonafide what is the main requisite for eviction on the ground ofpersonal use and occupation. Under the circumstances, the authorities https://hcservices.ecourts.gov.in/hcservices/ below should have dismissed the petition outright. But, the RentController has not adverted its attention either on the legal or on thefactual position, and subsequently, it has also been affirmed by theappellate forum erroneously. Hence, the orders of the authorities belowhave got to be set aside.8.In answer to the above, it is contended by the learned SeniorCounsel for the respondents 1 to 3 that the petition filed by therespondents 1 to 3, was in order; that as far as the respondents 1 to 3are concerned, they called themselves as absolute owners of the property;that even in the suit filed by them, they stated that they are the ownersof the property; that even assuming that the property originally belongedto Radhakrishnan and subsequently devolved upon them, any one of the co-owners can maintain a petition for eviction; that in the instant case, allthe respondents 1 to 3 have filed the petition, and thus, it is notlegally defective; that under the circumstances, the petition has beenbrought forth; that the contention that the petition is not maintainablewas not raised before the forums below; that it is for the first time sucha contention being made before this Court, and hence, that contention hasgot to be rejected; that as far as the grounds for eviction are concerned,it is the consistent stand of the revision petitioner that he is a tenant,and he went to the extent of filing a petition in RCOP No.2/91 for depositof rental; that he has also made deposits for a period of 3 years; thatfor the reasons best known to him, he has not continued it thereafter;that having taken a stand that he is a tenant all along, he should havedeposited the rental continuously; and that having failed to do so, now hecannot be allowed to say that he was under the impression that he need notpay the rental since he was termed as a trespasser by the opposite party. 9.Added further the learned Senior Counsel that even during thependency of the RCOP, at no point of time, he was regular in makingpayment; but, he has made the payment in lump sum; that during thependency of the proceedings also, the default continued, and hence, he isa willful defaulter in the eye of law; that as far as the ground ofpersonal use and occupation is concerned, from the evidence of P.W.1, itwould be quite clear that after the death of her husband Radhakrishnan,she is residing at Salem in her mother's house; that it is true that boththe sons are living away; that she wanted to go back to the native placeand live in her own house; that under the circumstances, there cannot beany impediment in law to allow her to be in her own house; that even thereis no contra evidence that she has got any other property anywhere; thatunder the circumstance the ground of personal use and occupation was alsoavailable to them, and hence, the orders of the authorities below have gotto be sustained.10.The Court paid its anxious consideration on the submissions made,and is of the considered opinion that as far as the first question isconcerned, the RCOP is not maintainable for the reasons stated infra.Even as per the averments in the RCOP, the respondents 1 to 3 herein whoare the petitioners therein, and who are the wife and sons ofRadhakrishnan respectively, have called themselves as absolute owners ofthe property, and in that capacity, they have filed the petition. In theRCOP, there is a clear averment that one Dhanapal, the power agent ofRadhakrishnan, actually put the revision petitioner in possession of theproperty as a tenant. Thus, it would be quite clear from the avermentsmade in the petition itself that the revision petitioner was put in https://hcservices.ecourts.gov.in/hcservices/ possession not by the respondents 1 to 3, but by Dhanapal, the power agentof Radhakrishnan. Apart from that, the property was originally allottedin favour of Radhakrishnan, and Radhakrishnan was the owner of theproperty. Therefore, the petitioner has been in possession of theproperty all along. It is also not in controversy that on the death ofRadhakrishnan, the property would have devolved upon his heirs and fell tothe shares of the respondents 1 to 3 and also his daughter Kanjana, Now,the respondents 1 to 3 called themselves as owners of the property. Itwas also brought to the notice of the Court that there was exchange ofnotices between the parties pursuant to the assignment made by onePongianna Gounder with whom the agreement was entered into byRadhakrishnan. In the reply notice, they have categorically denied thatKanjana, the daughter, had no right in the property at all. Thus, theyclaimed that the property belonged to them, and the RCOP was brought bythe respondents 1 to 3 as if they are the exclusive owners of theproperty. But, it would be quite evident from the available materialsthat no lease agreement was entered into between the petitioner-tenant andthe respondents 1 to 3; but, on the other hand, he was put in possessionby the power agent of Radhakrishnan, and thus, he came into possessionlong back. 11.It is pertinent to point out that when the RCOP was filed, therespondents 1 to 3 called themselves as owners of the property. It is nottheir case that they had got any consent from the said Kanjana, thedaughter of Radhakrishnan. As rightly contended by the learned SeniorCounsel for the respondents 1 to 3, in a case where the property belongedto number of co-owners, one can maintain the application on the groundsavailable. But, in the instant case, the respondents 1 to 3 calledthemselves as exclusive owners of the property. If to be so, that is notactually the true state of affairs. Originally, the property belonged toRadhakrishnan. If found to be so, either Kanjana should have been addedas petitioner-party in the RCOP at the earliest or consent should havebeen obtained from her for filing the RCOP on her behalf; but, either ofthem was not done. Hence, no question of the co-owner filing a petitionwould arise. In such circumstances, the said provision though available,cannot be applied to the present facts of the case. 12.Apart from the above, whether the RCOP itself could be maintainedis also doubtful. From the very beginning, the consistent stand as foundin the written statement filed by Radhakrishnan and the respondents 1 to 3herein in O.S.No.87/89 filed by the revision petitioner seeking an orderof injunction, was that he was a trespasser. The respondents 1 to 3 filedO.S.No.53/89, wherein they also took a stand that the petitioner hereinwas only a trespasser, and it continued till 5.1.1999, when O.S.No.53/89was withdrawn by them. O.S.No.87/89 was decreed on 21.12.1998, whereinthere was an endorsement made by the opposite party to the effect that therevision petitioner was a tenant. But, at the time of the examination,the first respondent herein as P.W.1, again maintained the stand that therevision petitioner was a trespasser. All would go to show that eventoday, they maintained the stand that he was only a trespasser. If to beso, it is highly doubtful, having taken such a stand whether they can beallowed to maintain the RCOP itself, as one done in this case. https://hcservices.ecourts.gov.in/hcservices/

13.For the following two reasons, the Court has to record a findingthat the RCOP itself is not maintainable. Firstly, the respondents 1 to 3continued to have their stand that the revision petitioner was atrespasser, and subsequently, they have recognised him as a tenant inorder to file the RCOP. Secondly, the said Kanjana should have been addedas petitioner-party in the RCOP or consent at least, should have beentaken from her for filing the RCOP on her behalf, but not done so. Underthe circumstances, this Court is of the considered opinion that the RCOPcould not be maintained. The contention put forth by the respondents' sidethat this contention was not raised before the forums below cannot becountenanced since it has been clearly averred in the counter to the RCOPthat the averment made in the application that they are the owners of theproperty is not correct, and Radhakrishnan had a daughter by name Kanjana.In such circumstances, whether the RCOP on that ground was defective wasnot noticed by either of the forum below. But, the Rent Controller hastaken the RCOP on file as maintainable and proceeded so. The appellateforum has also not considered this aspect of the matter. This Court is ofthe view that there is no impediment in considering this legal plea atthis stage. Thus, it can be well stated that the RCOP is notmaintainable. Since the question of maintainability of the RCOP is takenup for consideration and answered above, the other two grounds urged, donot arise for consideration. Accordingly, the orders of the authoritiesbelow are set aside. 14.In the result, this civil revision petition is allowed. No costs.Consequently, connected CMPs are closed.nsv/Sd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo:1.The Principal Subordinate Judge Erode2.The I Additional District Munsif Erode3. The Section Officer, V.R.Section, High Court, Madras.+1 cc to Mr.V.P.Sengottuvel, Advocate Sr.No.41665.+1 cc to Mr.R.Subramanian, Advocate Sr.No.41761.VC(CO)dcp/2.8.07CRP NPD No.337 of 2002