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W.V. Kandaswami Chettiar Vs. A.a Arunachala Mudaliar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1958)2MLJ392
AppellantW.V. Kandaswami Chettiar
RespondentA.a Arunachala Mudaliar
Cases ReferredLimited v. Satya Niranjan Shaw
Excerpt:
- - so the petitioner, at long last got peaceful possession of the entire premises from the respondent as well as from the two obstructors. it is also obvious that the above decision of the privy council is in consonance with justice, equity and good conscience, and with sense and commonsense alike......he filed h.r.g. no. 187 of 1954, before the house rent controller, madras, for fixation of fair rent, urging that he had been paying an exorbitant rent of rs. 75-0-0 per month, and had also paid a premium of rs. 300--besides an advance of rs. 150--being the rent for two months, and that the fair rent for the premises let out to him, namely, 2 rooms (a third room covered with asbesto roofing being claimed to have been put up by him) would be only worth rs. 15-4-6 calculating from the municipal valuation and adding the allowable increase. the petitioner contended that, as the respondent had vacated the premises before he filed the petition, he could not file a petition for fixation of fair rent, even though he was in arrears of rent. the rent controller held that it was not proved.....
Judgment:

Panchapakesa Ayyar, J.

1. This is a petition filed by one Kandasawamy Chettiar, a landlord, for revising and setting aside the orders of the Rent Controller and Appellate Authority fixing the rent of the premises leased out by him to the respondent, Arunachala Mudaliar, at Rs. 27-8-0 per month. The facts were briefly these:

2. The petitioner, Kandaswami Chettiar, let out the suit premises No. 9, Thanda-varoya Mudali Street, Triplicane, Madras, to the respondent, Arunachala Mudaliar and one Kanagasabai Mudaliar for a rent of Rs. 75 per month from 1st May, 1952. Then he filed an eviction petition against them, H.R.C. No. 3115 of 1952, on 31st day of July, 1952, on grounds of default of payment of rent, sub-letting without consent of the landlord wanton waste, etc. Kanagasaba Mudaliar, the more timid of the two tenants, submitted to an order of eviction. But Arunachala Mudaliar, the respondent, remained ex parte and an eviction order was passed against him on 27th October, 1952. He applied to the Rent Controller, by I.A. No. 66 of 1952, to set aside the ex parte order. He was absent, and that I.A. was dismissed on 26th November, 1952.

3. The petitioner filed E.P. No. 2814 of 1952 on the file of the City Civil Court, Madras, for delivery of possession, and delivery was ordered. But when the plantiff went with the bailiff to the suit premises, on 10th January, 1953, to take delivery there was obstruction by two persons claiming to be licensees from Arunachala Mudaliar, one a partner of a firm called Rheno Arts, and another Dr. M.R. Raju. On 12th January, 1953, the petitioner filed E.A. No. 55 of 1953 to remove the obstruction. The respondent, Arunachala Mudaliar, filed a second petition, I.A. No. 753 of 1952, for setting aside the ex parte order of eviction and got an order for stay of eviction. But, again, he was absent, and I.A. No. 752 of 1952 was dismissed on 9th March, 1953, and the stay was vacated. The indefatigable respondent filed a third petition, I.A. No. 180 of 1953, for setting aside the ex parte order of eviction. That too was dismissed on 23rd April, 1953. Thereafter, the petitioner's petition to remove the obstruction ; E.A. No. 55 of 1953 was ordered on 29th April, 1953.

4. But the partner of Rheno Arts, the first obstructor, filed E.A. No. 558 of 1953 to set aside the orders passed in E.A. No. 55 of 1953. It was dismissed, after enquiry, on 22nd July, 1953. The petitioner then took out a warrant for delivery of possession and got possession of the premises. Thereafter the partner of Rheno Arts, the first obstructor, entered into an agreement of lease with the petitioner, and became his tenant for the entire premises from 1st August, 1953. The other obstructor, Dr. Raju, had already ceased his obstruction. So the petitioner, at long last got peaceful possession of the entire premises from the respondent as well as from the two obstructors.

5. But his troubles were not over. The respondent owed him some arrears of rent for the period of his occupation. He filed H.R.G. No. 187 of 1954, before the House Rent Controller, Madras, for fixation of fair rent, urging that he had been paying an exorbitant rent of Rs. 75-0-0 per month, and had also paid a premium of Rs. 300--besides an advance of Rs. 150--being the rent for two months, and that the fair rent for the premises let out to him, namely, 2 rooms (a third room covered with asbesto roofing being claimed to have been put up by him) would be only worth Rs. 15-4-6 calculating from the Municipal valuation and adding the allowable increase. The petitioner contended that, as the respondent had vacated the premises before he filed the petition, he could not file a petition for fixation of fair rent, even though he was in arrears of rent. The Rent Controller held that it was not proved that the petitioner had vacated the premises before he filed H.R.C. No. 187 of 1954, and so, he had the right to file the petition for fixation of fair rent. In that view he did not discuss the further question whether if he had vacated the premises and had to pay only arrears of rent, he could file a petition for fixation of fair rent. Regarding the fair rent payable for the period of occupation by the respondent, the Rent Controller, after discussing the Corporation Valuation, and allowing for a 37 1/2 per cent, increase on the Rs. 20 fair rent admissible therefrom fixed the fair rent at Rs. 27-8-0.

6. The petitioner took the matter in Appeal and urged before the learned Appellate Judge the same old two points, namely, the non-maintainability of the petition, and the unreasonably low fair rent fixed. The learned Appellate Authority found, on the evidence, that the respondent had actually vacated the premises before filing H.R.C. No. 187 of 1954, but held that, as he was in arrears regarding the rent for the period when he was the tenant, he could maintain the petition for the fixation of fair rent so that he might not be saddled with a pie more than what would be due from him as arrears of rent under the law. Regarding the figure of the fair rent fixed by the House Rent Controller, he again discussed evidence and upheld the fair rent of Rs. 27-8-0 per month fixed by the Rent Controller, and dismissed the Appeal. Hence this Civil Revision Petition.

7. In this Civil Revision Petition the respondent, Arunachala Mudaliar, has remained absent, though served, and has been declared ex parte. Possibly, this tenant of long ago no longer feels himself vitally interested, or is unwilling to spend more time, money and energy in contesting once again in this Court, or perhaps he feels that this Court will not in revision interfere with the concurrent findings of the Courts below.

8. I have perused the records, and heard Mr. Manickavachagam, the learned Counsel for the petitioner. Mr. Manickavachagam did not urge before me that the fair rent fixed by the Rent Controller and the Appellate Authority, namely, Rs. 27-8-0 per month, was wrong regarding the period of occupation by the respodent and the condition of the premises then, though he said that, after the respondent vacated the premises, the petitioner made several improvements to the premises at great cost at the instance of one of the obstructors, the partner of Rheno Arts and can claim a higher fair rent now from him. Of course, that fact is not relevant for our purpose though it may be relevant in any future petition for fixation of fair rent, relying on the alleged improvements, filed either by the partner of Rheno Arts or hy the petitioner.

9. So, only one point now remains to be decided, namely, whether H.R.C. No. 187 of 1954, for fixation of fair rent, was maintainable by the respondent, after he had vacated the premises, simply because there were arrears of rent due by him in respect of the premises for the period of his occupation. I accept the finding of fact of the Appellate Authority that the respondent had vacated the premises before filing H.R.C. No. 187 of 1954. Mr. Manickavachagam urged that the Appellate Authority went wrong in holding that the respondent, simply because he had to pay the petitioner some arrears of rent for the period of his occupation, had the right to file a petition for fixation of fair rent. Indeed, he offered, before me, on behalf of the petitioner, to give up all claims for arrears against this respondent, on condition that the fair rent petition by him is held not to be maintainable, and the fair rent fixed is set aside. I have no doubt that if the petitioner had made such an offer to the respondent immediately after the respondent filed H.R.C. No. 187 of 1954, the respondent might have withdrawn his petition. But the petitioner did not do so, then, or even before the Appellate Authority. He had made this offer only now. As Shakespeare had said, there is a tide in the affairs of men, and an advantage which can be had at one time cannot be had at a later time, a common instance being the refusal of a man to marry a nice girl offered to him. and this foolish refusal becoming incapable of rectification after the girl has married another man!

10. We are now left only with the legal question whether a tenant who has vacated the premises but has arrears of rent to pay in respect of those premises, and contests that those arrears are really not due, and will not be due if a fair rent is fixed, has got a right to file a petition for fixation of fair rent. I have no doubt whatever that he has such a right. Though there is no direct decision of this Court on this point, the decision of the Privy Council in Karnani Industrial Bank, Limited v. Satya Niranjan Shaw , relied on by the Appellate Authority is directly in point, though it is not a ruling under the House Rent Control Act. It was held in that ca e that a tenant includes an ex-tenant, as a tenant is a person by whom or on whose account rent is payable. No doubt, that decision was given under the Bengal Tenants' Protection Act. But the definition of a 'Tenant' in the House Rent Control Act is very similar to that in the Bengal Tenants' Protection Act. It is also obvious that the above decision of the Privy Council is in consonance with justice, equity and good conscience, and with sense and commonsense alike. If a tenant has been got evicted, and has therefore vacated the premises after a long term of payment of exorbitant rent, is not given the remedy of filing a petition for fixation of fair rent for that period, in order to wipe out or at least to reduce drastically the exorbitant arrears demanded of him, it will be perpetuating an injustice on the tenant and depriving the tenant of one of the vital benefits intended to be conferred on him by the House Rent Control Act. So I agree with the Appellate Court that the respondent is entitled to maintain the petition for fixation of fair rent. Of course an ex-tenant of years ago, with no arrears to pay or excess to recover, cannot file a petition for fixation of rent.

11. Mr. Manickavachagam pointed out that the petitioner had effected improvements at high costs at the instance of one of the obstructors, the partner of Rheno Arts, and that this partner of Rheno Arts is trying to take advantage of the fair rent fixed by the Rent Controller and the Appellate Authority in the respondent's petition, and is denying the higher rent for the premises he had willingly undertake to pay for inducing the petitioner to make vast improvements at great expense at his request. It is obvious that if the facts are as stated by Mr. Manickavachagam, the petitioner may have a right to claim a higher fair rent in a petition to be filed against that man, but I give no opinion on the point. The petitioner cannot, for that reason, attack the fair rent fixed by the Rent Controller and the Appellate Authority which fair rent, it must be remembered was only with reference to the premises as they were during the occupation by the respondent. So there can be no real grievance for the petitioner landlord if he has really effected costly improvements at the instance of the new tenant after the first fair rent was fixed as regards the old tenant.

12. This Civil Revision Petition deserves to be and is hereby dismissed.


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