(Prayer: Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Act 18/1960) as amended by Act 23/1973 and Act 1 of 1980) against the judgment and decree dated 01.10.2009 and made in R.C.A.No.5 of 2007 on the file of the Subordinate Judge, Srivilliputur in reversing the fair and final order dated 05.03.2007 and made in R.C.O.P.No.3 of 2005 on the file of the Rent Controller (Principal District Munsif), Srivilliputtur.
1. The judgment and decree dated 01.10.2009 and made in the Rent Control Appeal in R.C.A.No.5 of 2007 on the file of the learned Subordinate Judge, Srivilliputur are under challenge in this memorandum of Civil Revision. The revision petitioners herein are the landlords, whereas the respondent is the tenant.
2. For easy reference and also for the sake of convenience, the revision petitioners and the respondents may herein after be referred to as the petitioner and the respondent, wherever the context so require.
3. Originally the petitioners have filed a petition in R.C.O.P.No.3 of 2005 as against the respondent under Section 10(2)(i), 10(2)(vii) and 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (herein after be referred as the Act") seeking the following reliefs:
a) directing the respondent to vacate and surrender the vacant possession of the schedule mentioned premises on the ground of wilful default;
b) own occupation for the 1st petitioner's son and on the ground of denial of title.
4. This petition was strenuously contested by the respondent. In his counter statement, the respondent has specifically stated that he had not denied the title of the petitioners in respect of the petition mentioned property and since the respondent himself had admitted this fact, the ground of denial of title goes out automatically. Therefore, on the remaining two grounds i.e., a) Willful default and b) owners occupation, the petition was allowed by the learned Rent Controller directing the respondent to vacate and surrender the vacant possession of the petition mentioned premises within three months.
5. It is also to be noted that the respondent seems to have filed another petition in R.C.O.P.No.5 of 2005 under Section 8(5) of the Act seeking permission to deposit the arrears of rent before the Tribunal. That petition was dismissed by the learned Rent Controller. However, no reference is available to show as to whether the respondent has preferred any appeal before the Rent Control Appellate Authority challenging the order of dismissal of the petition in R.C.O.P.No.5 of 2005. It is significant to note there that the learned Rent Controller has proceeded to dispose both the Rent Control Original Petitions in R.C.O.P.No.3 and 5 of 2005 in a common order dated 05.03.2007.
6. The facts which are absolutely necessary for the disposal of this revision petition are as under:
i) During the year 1999, the respondent came to be in occupation of the petition mentioned premises as a tenant agreeing to take the property on rent for the purpose of running a TV showroom and agreed to pay a sum of Rs.1000/- per mensem as rent. The tenancy is oral in nature.
ii) It is the case of the petitioners that with malafide intention, the respondent had begun to send the monthly rent through Money Order in the name of the second petitioner. On coming to know about the evil intention of the respondent, the second petitioner had returned the money order. The scheduled mentioned property is required for establishing third petitioner's business who is carrying on the manufacturing unit in industrial power electronic equipments at Chennai. When the petitioners had expressed their intention of requiring the petition mentioned premises for their business purpose, the respondent had originally agreed to vacate and surrender vacant possession, but at the later point of time, he had been giving out that he would not vacate and surrender vacant possession of the property. The petitioners have no other non-residential building excepting the schedule mentioned premises and its adjoining premises in Srivilliputtur Town. The third petitioner had availed financial facilities from the Bank for the purpose of meeting out the sales business and without establishing his business, he cannot clear the loan account without any default. Hence, the petitioners claim is bonafide. Therefore, they came forward with the above said petition for eviction.
7. According to the petitioners they had issued a legal notice dated 21.09.2004 through their lawyer and thereby terminated the respondent's tenancy by the end of 31.10.2004 and called upon the respondent to vacate and surrender vacant possession of the schedule mentioned premises without any let or hindrance. The respondent, according to the petitioners, is in arrears of rent for the period from 01.07.2004 to till date i.e, for the period of 14 months which comes to Rs.14,000/-.
8. The respondent had agreed that he continued as a tenant in the scheduled mentioned premises under the petitioners for a monthly rent of Rs.1000/-. He has also admitted that he had been running a TV Showroom in the demised premises. He would however contend that he was always prompt in paying the rent to the petitioners and the second petitioner, being the co-owner, had received the rent for the months of December 2003 to June 2004 and he had also issued receipts to that effect. He would further contend that when he had tendered the rent to the second petitioner for the month of July, he had refused to receive the rent and therefore the respondent was constrained to send the rent through Money Order, which was also returned as refused by the second petitioner.
9. There was exchange of notices between the petitioners and the respondent with regard to the reiteration of demand of vacating the petition mentioned premises. It is the definite case of the respondent that upto July 2004, the second petitioner had received the rent and he had also issued receipts upto June 2004.
10. The respondent had sent a letter dated 02.11.2004 through his advocate to the first petitioner requesting him to mention the Bank Account Number in which the rent could be deposited. The first petitioner had also issued a reply to the above said notice claiming that there was arrears of rent from 01.01.2004. As already noted, upto July 2004, the second petitioner had received the rent.
11. In the notice dated 31.12.2004, the respondent had requested the petitioners to specify the mode of payment of rent as they had deliberately refused to receive the rent. Since the petitioners had not sent any reply to the respondent, he had sent a Demand Draft bearing No.039187 dated 08.02.2005 for Rs.6,000/- drawn on Canara Bank, Srivilliputtur towards the rent for August 2004 to January 2005. However, the first petitioner had returned the Demand Draft on 09.02.2005 with the reply. Therefore, the respondent was constrained to file a petition in R.C.O.P.No.5 of 2005 under Section 8(5) of the Act before the Rent Controller seeking permission to deposit the rent and accordingly, the respondent had been depositing the rent without any default.
12. As aforestated, the learned Rent Controller happened to try both the petitions viz., R.C.O.P.No.3 of 2005 and R.C.O.P.No. 5 of 2005 and proceeded to allow R.C.O.P.No.3 of 2005 on the ground of wilful default and owners occupation and the petition, on the ground of denial of title was dismissed. The petition in R.C.O.P.No.5 of 2005 was dismissed denying the permission to deposit the rent into Court.
13. The learned Rent Control Appellate Authority has allowed the appeal in R.C.A.No.5 of 2007, which was filed by the respondent herein reversing the fair and decreetal order of the learned Rent Controller. Hence, this revision is preferred by the petitioners (landlords).
14. Heard Mr.M.Vallinayagam, learned senior counsel appearing on behalf of Mr.N.Damodaran, learned counsel on record for the petitioners and Mr.A.Uthaman, learned counsel appearing for the respondent.
15. With the respondent had admitted that he had not disputed the title of the petitioners, the question of disputing title need not be gone into. The remaining two grounds i.e., wilful default and owner's occupation alone are to be decided in this revision.
16. Sub-Section (2) of Section 10 of the Act reads as under:
(2)A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied-
(i)that the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable. ..."
17. As observed by the Apex Court inMurlidhar Aggarwal And Anr. Vs State Of Uttar Pradesh And Orsreported in (1974) 2 SCC 472at Page 483, the provisions of Section 10 and its sub-sections are based on public policy. It is intended to protect the weaker sections of the community with a view to ultimately protecting the interest of the community in general by creating equality of bargaining power. Although the section is purely intended for the protection of tenants only, that protection is based on public policy. In order to get a decree or order for eviction against a tenant, whose tenancy is governed by Rent Control Act, the suitor must make out a case for eviction in accordance with the provisions of the Act.
18. When a petition is contested, the issue goes to trial, the Court passes a decree for eviction only if it is satisfied on evidence that a ground for passing such a decree in accordance with the requirement of the statue has been established. (See Roshan Lal Vs. Mahdan Lal Reported in (1975) 2 SCC 785 at 789).
Ground No.1 Wilful default in payment of rent:
19. Mr.N.Vallinayagam, learned senior counsel, while advancing his argument, has invited the attention of this Court to the petition in R.C.O.P.No.5 of 2005 filed by the respondent seeking permission to deposit the arrears of rent before the Tribunal. In this connection he has maintained that the conduct of the respondent in filing the above said petition seeking permission to deposit the rent would be sufficient to hold that he had committed default, that too, wilful default in payment of rent regularly to the petitioners. He has also pointed out that from 01.07.2004 till the date of filing of application under Section 8(5) of the Act, the respondent had failed to pay the rent and therefore, the Rent Control Appellate Authority had lost sight upon the findings given by the learned Rent Controller saying that considering the factual scenario of this case, it is evident that the rent has become due from July 2004 onwards.
20. He has also drawn the attention of this Court to Paragraph No.16 of the order passed by the learned Rent Controller wherein he has stated that the first refusal of the rent by the petitioner was started on 13.07.2004 as per Ex.R2. The respondent had called upon the petitioners to state the name of the Bank for depositing the rent arrears on 02.11.2004 as per Ex.P2 legal notice. When the petitioners failed to state the name of the Bank as per Section 8(4) of the Rent Control Act, the rent ought to have been sent to the landlord / petitioners by way of money order after deducting money order commission. If the landlord had refused to receive the rent remitted by money order under Sub-section (4), the tenant may deposit the rent arrears into the Court under Section 8(5) of the Act. Further the learned Rent Controller in Paragraph 18 has observed that mere fact that the landlord had refused to receive the rent, it does not mean that the respondent is absolved from the responsibility of payment of rent, for the subsequent months. A mere fact that the tenant has filed a petition for depositing the rent dues would not enable him to wriggle out of the situation in which he is placed on account of non-payment of rent. For arriving at this conclusion, the learned Rent Controller has placed reliance upon the decision of this Court in Kousalya, rep. By her Power of Attorney Holder G.Mohan V. Balsundaram (1999 (3) Law Weekly 76).
21. Besides this, in Paragraph 19 of the order, the Rent Controller has also observed that the respondent had failed to explain as to why he was unable to pay the rent for the periods preceding to filing of application before the Rent Controller. As argued by Mr.M.Vallinayagam, the learned Rent Control Appellate Authority ought to have endorsed the findings of the Rent Controller and ought to have held that the respondent had committed wilful default in payment of arrears of rent. But, unfortunately the Rent Control Appellate Authority has taken a contrary view in total negation of the evidences available on record.
22. Insofar as the ground of wilful default is concerned, this Court would like to place reliance upon the decision of the Apex Court in E.Palanisamy Vs. Palanisamy (D) by Lrs and Others reported in 2002 (4) CTC 572. In this case, Mr.Sampath, the learned counsel for the appellant, while advancing his arguments before the Division Bench of the Apex Court, had contended that since the appellant/tenant had deposited the arrears of rent in Court, it should be taken as compliance of Section 8 of the Act. He has also added that this would mean there was no default on the part of the tenant in payment of rent and therefore, no eviction order could have been passed against the appellant on that ground. With reference to the submission made by the learned counsel for the appellant in the above cited case, while penning down the judgment on behalf of the Division Bench, Hon'ble Mr.Justice J.Arun Kumar in Paragraph 5 has observed as under:
...... According to the learned counsel, the Court should not take a technical view of the matter and should appreciate that it was on account of refusal of the landlords to accept the rent sent by way of money orders that the tenant was driven to move the Court for permission to deposit the arrears of rent. Since there is a substantial compliance of Section 8 in as much as the arrears of rent stand deposited in Court, a strict or technical view ought not to have been taken by the High Court. We are unable to accept this contention advanced on behalf of the appellant by the learned counsel. The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well-settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance of the statutory provisions. Equitable consideration have no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a pre-condition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance of the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh v. Ganpat Lal and Another reported in 1996 (1) SCC 243 and M.Bhaskar v. J. Venkatarama Naidu reported in 1996 (6) SCC 228.
23. Insofar as the present case on hand is concerned, the respondent had, in fact, failed to satisfy the conditions contained in Section 8 as observed by his Lordship in the above cited decision. Mere refusal of the landlord to receive the rent cannot justify the act of the tenant in straight away invoking Section 8 (5) of the Act without following the conditions in the earlier sub-sections i.e., Sub-Sections 2, 3 and 4 of Section 8 of the Act.
24. In an another case in M.Balu V. K.Jawahar and Others reported in 2000 (1) MLJ 535, a learned Judge of this Court (S.S.Subramani,J.,) has observed that the subsequent conduct of the tenant can also be taken into account. The finding that the tenant has committed wilful default is a finding of fact and the tenant has the entire burden to prove that he has paid rent for the period. The burden has not been discharged by the tenant. Merely because police complaint is filed alleging that Landlord has taken away all the rent receipts it cannot be presumed that he had paid the rent.
25. In Kousalya rep. By her Power of Attorney holder G.Mohan vs. Balasundaram reported in 1999-3-L.W.76 also, a learned Judge of this Court has observed that mere fact that the landlord had refused to receive the rent for 1 month does not absolve the responsibility of tenant to pay rent for subsequent months. Filing of petition for deposit of rent by itself will not enable tenant to wriggle out of the situation unless she explains why she is unable to pay the rent for the period preceding the Rent Control Petition for deposit.
26. In Shabbir Roshan Zaveri Vs. Mrs.Sakinabai Mohsanbhoy reported in 2014-1-L.W.548, a learned Judge of this Court has observed that when the tenant has failed to pay the rent regularly even during the pendency of the proceedings, then there is no doubt that his conduct in paying the rent as he likes would amount to wilful default.
27. As observed by the learned Rent Controller, the respondent had paid the rent at the rate of Rs.1000/- till 03.06.2004. The question as to whether the respondent had denied the payment of rent from July 2004 has not been answered by the respondent. Ex.R2 series are the money order forms containing endorsement refused . This money order form starts from 13.07.2004 onwards. It is thus clear that the respondent had to pay the arrears of rent from July 2004. This is what observed by the learned Rent Controller in Paragraph 16 of his order. Keeping in view of the above fact, this Court is also of the view that mere fact that the respondent had filed a petition for depositing the rent dues would not enable him to wriggle out of the obligation of payment of rent.
28. On the other hand, Mr.A.Uthaman, learned counsel for the respondent has contended that the respondent had never committed default in payment of rent and that the petitioners alone, with malafide intention of evicting the respondent from the petition mentioned premises, had refused to receive the rent and therefore, he was constrained to send the rent through Money Orders, which was also refused to be received by the landlord for which the respondent could not be found fault with.
29. The learned counsel has also, in support of his argument, invited the attention of this Court to Paragraph No.16 of the order of the learned Rent Control Appellate Authority wherein he has stated that from the evidence of PW1 it is revealed that the respondent had not committed default in payment of rent from 01.04.2004 itself. The learned Rent Control Appellate Authority has not considered the order of the Rent Controller in proper perspective. In the petition itself the revision petitioners have wrongly stated that there was an arrears of rent from 01.04.2004. But subsequently, on perusal of the records and the order of the Rent Controller it could be easily deduced that the rent was actually due from July 2004.
30. As already observed by this Court, the respondent has not come forward with any explanation as to why there was an arrears of rent from July 2004. In support of his contention Mr.Uthaman, learned counsel appearing for the respondent has placed reliance upon a decision of the Apex Court in Hari Rao Vs. N.Govindachari and Others reported in 2005 (4) CTC 694, wherein a Division Bench of the Apex Court has observed that Rent Control legislation has to be approached as a beneficial piece of legislation with reasonable protection of tenant as one of its objects. After giving careful consideration to the submission made by the learned counsels and on perusal of the relevant materials available on record, this Court is of the view that the learned Rent Control Appellate Authority has not properly appreciated the available evidences and the nuance of the law under which the eviction is sought for by the petitioners. Considering this aspect, this Court is of the view that the findings given by the learned Rent Controller that the respondent had committed wilful default in payment of rent from July 2004 does not require any interference.
Ground No.2 For the use of own occupation:
31. It is the case of the petitioners that at the time of receiving the rent for the month of June 2004, it was informed to the respondent that the schedule mentioned property was required by the first petitioner for her son's business. The third petitioner is her son. According to the petitioners, he had completed his B.E Degree in the year 1995 and has been running an Industry in the name of M/s.Energy Systems and Controls, at Plot No.24, Siddha Avenue, Poonamallee, Chennai 56. He is also the Proprietor of Manufacturing Industrial Power Electronic Equipments in the above said Company by obtaining TNGST No.1661259/97-98 and C.S.T.No.597972 dated 25.06.1997 and he has been supplying his products to multicrore industries and other parties in the southern part of Tamil Nadu. Therefore, for the purpose of concentrating business in the Southern Part and to increase the sales turn over, the petitioners had informed the respondent that the schedule mentioned premises was required for the occupation of the first petitioner's son as observed by the learned Rent Controller. From Exs.P5 and P6 it is understood that the petitioners had arrangements for carrying on business in the demised property by the third petitioner. It is also the finding of the learned Rent Controller that excepting the demised premises and the adjoining properties, the petitioners had no other non-residential buildings to establish the business of the first petitioner's son (third petitioner).
32. On the other hand, it is the case of the respondent that the third petitioner was not going to expand his manufacturing activities in the demised premises and that he was going to utilize the premises as a service centre for which he did not require the present demised portion. In this connection, the evidence adduced by PW1-Ravi, who is the third petitioner herein is very much important. This court has appreciated his evidence and he has fully supported the contention of the petitioners and also substantiated that he is badly in need of demised premises to expand his manufacturing unit as well as to augment the income of his business.
33. In this connection this Court has had reference to the following decisions:
1. A.S.Venkataraman, Proprietor of Kamala Textiles Vs.A.V.Harikrishnan Naidureported in2013-3-L.W.845;
2. B.Kishore, Proprietor Vs. D.Maragathavallireported in 2007 (2) CTC 797;
3. G.C.Kapoor Vs. Nand Kumar Bhasin and Othersreported in AIR 2002 Surpeme Court 200;
4. Sivaraj vs. Esakkimuthu reported in 1999-2-L.W.478; and
5. R.Muruganandham Vs. J.Noor Mohammed and Anotherreported in (2009) 3 MLJ 878.
34. In the decision first cited above (A.S.Venkataraman's case), this Court has observed that non-preparation for commencement of the business cannot be put against the landlord. Owner of a premises must be allowed to occupy a portion of his own choice either to reside or to run his business. Insofar as the present case on hand is concerned, the requisite qualification and the capability of the third petitioner to run the business has not been denied by the respondent. That is why the learned single Judge of this Court in the above cited decision has held that when admittedly both PW2 and her husband were unemployed and both of them are having the requisite qualification to run a Computer Internet Center, the intention to start the business is proved more than what is required with sufficient materials and therefore the bonafide requirement of the landlord having been proved, the order of eviction passed by the Appellate Authority on the ground of owner's occupation is perfectly in order and does not warrant any interference.
35. In the decision second cited supra (B.Kishore's case), a learned Judge of this Court has observed that enough if landlord makes bona fide preparations to commence business and not necessary that landlord or member of the family for whom business is sought should be actually carrying on business on the date of filing of petition.
36. In the decision third cited supra (G.C.Kapoor's case), the Apex Court has observed that the question whether landlord had financial capacity to start the computer centre is irrelevant and that it is sufficient to establish that the landlord requiring premises for starting computer centre of his son holding Diploma in Computer Science. A similar view has been taken in the decision fourth cited supra (Sivaraj's case).
37. In the decision 5th cited supra (R.Muruganandham's case), a learned Judge of this Court has observed that eviction on the ground of own use and occupation can be ordered when the landlord had indicated about type of business that he propose and pleadings need not necessary be so elaborate in detail so as to cover all aspects.
38. It is also to be noted that in 1998 (III) CTC 108[V.Radhakrishnan Vs. S.N.Loganatha Mudaliar], the Apex Court has held that a landlord can seek eviction of the tenant for the abenefit of member of his family notwithstanding that such landlord is himself occupying building of his own for carrying on business so long as such member of family for whose benefit eviction is sought does not occupy any premises of his own in City or Town.
39. On coming to the present case on hand, this Court is also of the view that the petitioners have substantiated their bonafide requirements of the demised premises for expanding the business unit of the third petitioner. The rival submissions made on behalf of the respondent is not justified and not substantiated with supportive legal evidence.
40. Having regard to the related facts and circumstances, this Court finds that the revision preferred by the petitioners, being the landlords, have merits and therefore deserved to be allowed.
In the result, the Civil Revision Petition is allowed and the judgment and Decree of the Rent Control Appellate Authority dated 01.10.2009 and made in R.C.A.No.5 of 2007 are set aside and the fair and decreetal order dated 05.03.2007 and made in R.C.O.P.No.3 of 2005 are confirmed. The respondent is directed to vacate and handover the demised premises to the petitioners / landlords within a period of two months from the date of receipt of a copy of this order.