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Prabhakar Rao Vs. Papayee Armnal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 238 of 1984
Judge
Reported inAIR1985Mad206
ActsTamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 10(2); Tamil Nadu Buildings (Lease and Rent Control) (Amendment) Act, 1973
AppellantPrabhakar Rao
RespondentPapayee Armnal
Appellant AdvocateR.S. Venkatachari, Adv.
Respondent AdvocateR. Balakrishnan, Adv.
Cases ReferredSri Raja Lakshmi Dyeing Works v. Rangaswami Chettiar
Excerpt:
.....had committed willful default in payment of rent and should be evicted - prior to application of eviction notice was issued to petitioner where rent as well as period during which petitioner has committed default in payment had been mentioned - petitioner received notice but did not reply - having regard to absence of reply on part of petitioner default could be nothing but willful - clearly established that petitioner had committed willful default in payment of rent - petition dismissed. - - 1. on a consideration of the oral as well as the documentary evidence, the learned rent controller found that the petitioner had committed wilful default in the 'payment of rents as claimed by the respondent and, therefore, an order of eviction should be passed against him under s. 5. in the..........up to the time of his death. the petitioner cannot, therefore, contend that the application for eviction filed against the petitioner was not maintainable in the absence of the other heirs.7. even from the evidence of r.w.1 referred to above, it is clear that he had been paying the rents in discharge of his obligations as a tenant of the premises and, therefore, the application for eviction filed against the petitioner was quite in order. in view of this factual position arrived at on the basis of the evidence, the reliance placed by the learned counsel for the petitioner upon the decisions referred to earlier, does not in any manner assist in advancing the case of the petitioner. thus, the first contention of the learned counsel for the petitioner cannot be accepted.8. the learned.....
Judgment:
ORDER

1. The tenant in occupation of the premises bearing door No. 121 Bazar St, Ambattur, Madras 53, is the petitioner in this civil revision petition. The respondent herein is the owner of that premises. Alleging that the premises had been let out to the petitioner on a monthly rental of Rs. 125 for residential purposes and that the tenancy was a monthly one according to English calendar, the respondent attributed wilful default in the payment of rents by the petitioner for a period of 10 months from 1-5-1976. Besides, the respondent stated that she required the premises in the occupation of the petitioner for the purpose of the education of her children. A notice terminating the tenancy was issued by the respondent on 7-11-1976, but as the petitioner did not surrender possession of the premises in his occupation in accordance with that, the respondent herein filed R.C.O.P. 72 of 1977 before the Rent Controller (District Munsif), Poonamallee, under S. 10(2)(i) and S. 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act IN of 1960, as amended by Act 23 of 1973, (hereinafter referred to as the Act) praying for an order of eviction against the petitioner.

2. In his first counter filed on 10-8-1977. the petitioner put forth the plea that the application for eviction had been filed in the name of a wrong person, as the father of the petitioner alone was the tenant and, therefore, no rents were due by the petitioner, as claimed by the respondent. The bona fides of the requirements of the respondent was also challenged. In the additional counter filed by the petitioner on 16-12-1981, the petitioner raised a dispute regarding the quantum of rent and the petitioner claimed that the rent agreed upon between his father and the respondent was Rs. 385 per month.. It was further stated by the petitioner that he had said so in the written statement filed by him in O.S. 1170 of 1978, Additional District Munsif's court, Poonamallee. The petitioner also contended that if the payments made into Court are taken into account at the rate of Rs. 85 per month, no amount would be due to the respondent. An objection was also raised by the petitioner that the application for eviction was not sustainable without impleading the other legal heirs of his deceased father. On these grounds, the petitioner prayed for the dismissal of the application for eviction. On 28-6-1982 by an endorsement made by the counsel for the respondent on the application for eviction, the requirement of the respondent under S. 10(3)(a)(i) of the Act was given up.

3. Before the Rent Controller (Distfict Munsif), Poonamallee, on behalf of the respondents, Exs. A. I and A.2 were filed and the grandson of the respondent was examined as P.W. 1, while on behalf of the petitioner Exs. R. I to R. 3 were marked and the petitioner was examined as R.W. 1. On a consideration of the oral as well as the documentary evidence, the learned Rent Controller found that the petitioner had committed wilful default in the 'payment of rents as claimed by the respondent and, therefore, an order of eviction should be passed against him under S. 10(2)(i) of the Act. Aggrieved by this, the petitioner preferred an appeal in R.C. A.83 of 1982 before the appellate authority (Sub Court), Chengalpattu. On a reconsideration of the evidence, the appellate authority upheld the findings of the Rent Controller and dismissed the appeal confirming the order of eviction passed against the petitioner. It is the correctness of this order that is challenged in this civil revision petition.

4. The learned counsel for the petitioner first contended that in the absence of the other heirs of the deceased father of the petitioner as parties to the application for eviction the petition filed by the respondent in that regard against the petitioner only is not maintainable. Reliance in this connection was placed by the learned counsel for the petitioner on the decisions in Valiyaveettil Konnappan v. Mangot Velia Kunnivil Manikkam AIR 1968 Ker 229, Ganga Pershad v. Smt. Tribeni Devi AIR 1976 Del 145 and Ishwarial Pranjivandas v. Labhshankar Hargovindas Bhatt : AIR1982Guj152 . On the other hand, the learned counsel for the respondent. would draw attention to the contents of Ex.AI a notice issued by the respondent to the petitioner, and the evidence of R.W.1, to contend that only the petitioner was the tenant of the premises in question and his father had nothing to do whatever with that and therefore the objection regarding the maintainability of the application for eviction is without substance. It was further pointed out even assuming that the father of the petitioner was the tenant, on the evidence, the other heirs, even if any, have not fulfilled the requirements under S. 2(8) of the Act and, therefore, would not be tenants for the purpose of the Act and the omission to implead them would not be fatal to the maintainability of the application.

5. In the application for eviction, the respondent has clearly stated that the petitioner is the tenant in occupation of the premises on a monthly rental of Rs. 125, and had also committed wilful default in the payment of the rents from 1-5-1977 onwards. Prior to the filing of the application for eviction on 31-3-1977, a notice under Ex.Al D/- 7-11-1976, had been issued to the petitioner through the counselor the respondent. In Ex.Al it is clearly and categorically stated that the petitioner is the tenant of the premises bearing door No. 121 Bazar St, Ambattur, on payment of a monthly rent of Rs. 125. It proceeds further to state that the petitioner had defaulted in the payment of rents from 1-5-1976, amounting in all to Rs. 7SO. A part payment of Rs. 50 by the petitioner towards the arrears is also acknowledged therein. Ex.A2 shows that this notice was served on the petitioner on 18-111976. Admittedly, no reply to Ex.A 1 was sent by the petitioner. In the course of his cross examination as R.W. 1, the petitioner admitted receipt of Ex. A 1 and stated that no notice was given to his father. He would attempt to explain the absence of a reply to Ex.A l on the ground that his father told him that fie would take care of that. He would also state that he does not know whether any reply was sent by his father. It is thus obvious that even from the evidence of R.W. 1. that the notice under Ex.Al had been issued by the respondent even during the lifetime of the father of the petitioner. If really the father of the petitioner was the tenant, there was no reason as to why the respondent should have sent a notice to the petitioner instead of his father. It is difficult to accept the explanation offered by the petitioner for the absence of a reply to Ex.Al. The normal course of conduct of a person who is not a tenant but who has been served with a notice to that effect would be to repudiate his character as such tenant. The petitioner has not done so. His explanation for not having done so is unacceptable. It is further seen from the evidence of R.W.1 that his father died in September 1977. The notice under Ex.A 1 was served on the petitioner on 18-111976 and even according to R.W.1, he had brought the notice under Ex.A 1 to the knowledge of his father. If really the father of the petitioner was the tenant, there was no reason as to why he, after having been informed by the petitioner of the contents of Ex.A1 should have kept quiet, unless it be that the petitioner was, the tenant in respect of the premises in this case. It is further seen from the evidence of R.W. 1 that the rents had been paid only by the petitioner and not on behalf of the father. The petitioner has also admitted the deposit by him into court of the rent at Rs. 125 p.m. He would reiterate in the course of his cross-examination that it was only he who had been paying the rents. The petitioner would thus be a tenant under S. 2(8) of the Act, as the. person by whole rent is payable for the building in his occupation. Under those circumstances, it is not open to the petitioner now to contend that his father was a tenant and that on his death his other heirs should have been impleaded as parties to the application for eviction and in their absence, the petitioner for eviction as instituted is not maintainable.

6. Even on the assumption that the tenant of the premises was the father of the petitioner the objection raised by the petitioner has no force. The tenancy in this case wits for residential purposes. Under S. 2(8) of the Act. the surviving spouse, son or daughter or the legal representative of a deceased tenant must have been living with the tenant in the building as a member of the tenant's family tip to the death of the tenant in case it is a residential building. The evidence of R.W.1 is to the effect that he and his brother were carrying on business and that his brother, as at the time of his examination carrying on cinema business. The evidence of R.W. 1 is not to the effect that he and his brother or the other legal representatives of his deceased father were living with their father in the building as members of father's family up to the time of his death. The petitioner cannot, therefore, contend that the application for eviction filed against the petitioner was not maintainable in the absence of the other heirs.

7. Even from the evidence of R.W.1 referred to above, it is clear that he had been paying the rents in discharge of his obligations as a tenant of the premises and, therefore, the application for eviction filed against the petitioner was quite in order. In view of this factual position arrived at on the basis of the evidence, the reliance placed by the learned counsel for the petitioner upon the decisions referred to earlier, does not in any manner assist in advancing the case of the petitioner. Thus, the first contention of the learned counsel for the petitioner cannot be accepted.

8. The learned counsel for the petitioner next contended that no order for eviction could be passed against the petitioner on the ground of wilful default in the payment of such rents, especially when there was a dispute with reference to the quantum of rent payable. Meeting this contention, the learned counsel for the respondent submitted that the dispute regarding the quantum of rent was a pure after-thought raised almost after four years after the filing of the application for eviction in the additional counter filed sometime in December 1981 and that having regard to the absence of the reply on the part of the petitioner to the contents of Ex.A. 1, where the rent as well as the period during which the petitioner had committed default in the payment of such rents had been mentioned, the default could be nothing but wilful.

9. In paras 3, 4 and 8 of the application for eviction, the respondent has stated that the monthly rent is Rs. 125, and that the petitioner had committed wilful default in the payment of such rents since 1-5-1976. Para 7 of the application for eviction also refers to the issue of Ex. A-1 and the receipt thereof under Ex.A.2. In the first counter filed by the petitioner on 10-8-1977, no dispute is raised regarding the quantum of rent at all. Four years thereafter in the additional counter filed by the petitioner on 16-12-1981, in paras 2 to 4, the petitioner has stated that the rent agreed upon is Rs. 85 and not Rs. 125, p.m. As a tenant in the occupation of the premises, the petitioner should have been aware of the rent payable by him viz., whether it was Rs. 125 as claimed by the respondent or Rs. 85 as claimed by the petitioner. The absence of a plea by the petitioner at the earliest possible opportunity when he filed the counter on 10-8-1977 clearly establishes that the dispute regarding the quantum of rent raised by the petitioner in his additional counter filed on 16-12-1981 is a pure afterthought. Besides, in Ex.A.1, which preceded the institution of the application for eviction, the respondent has clearly stated that the monthly rent is Rs. 125 and that the petitioner had committed default in the payment of rents at that rate from 15-1976, onwards. This notice had been received by the petitioner as shown by Ex.A.2 on 18-11-1976. Even with reference to the quantum of rent, the petitioner has not raised any objection by sending a reply notice. The explanation attempted by the petitioner for not sending a reply notice has earlier been referred to and found to be totally unconvincing and unacceptable. Besides this, there is a very significant admission of R.W.1 to the effect that after the receipt of Ex.A.1 under Ex.A.2, he did not pay any rent either in person to the respondent or through her relations. He would also admit that there is no evidence to show that his father paid any rent subsequent to the receipt of Ex.A.1. The further admission of R.W.1 is that no objection was raised regarding the quantum of rent while his father was alive and that. he had been depositing the rent at Rs. 125 per month into court. The conduct of the petitioner in not having demurred to the quantum of rent mentioned in Ex.A.1, the absence of raising of any dispute regarding the rent so long as the father of the petitioner was alive, the omission to raise a plea regarding the quantum of rent till the expiry of more than four years after the filing of the first counter and the subsequent payment or deposit by the petitioner of the rent at Rs. 125 per month would clearly expose the utter falsity and hollowness of the claim of the petitioner that the rent was only Rs. 85, and not Rs. 125 per month.

10. It is thus seen that the petitioner who was the tenant and who was fully alive to his obligation to pay the rents as and when such rents fell due had not attempted to fulfil his obligations in the regard by making payments to the respondent. It is not the case of the petitioner that rents were tendered to the respondent but they were refused. On the other hand, it is seen from para 7 of the order of the Rent Controller that the petitioner has been indulging in lump sum payments towards the arrears of rent payable by him. There is absolutely no justification at all for the delayed as well as the consolidated payments for several months at a stretch after considerable delay. In this case under Ex.A. 1 the petitioner had also been put on notice of the quantum of rent as well as the period for which the petitioner was in arrears. Though the petitioner received that notice on 18-11-1976, as shown by Ex.A.2, no amount at all had been paid by the petitioner to the respondent by way of rent. Indeed, the petitioner had admitted that after the receipt of Ex.A. 1, no amount was paid by him towards rent either to the respondent or to any of her relations. This would therefore be a case where the explanation introduced by the Act would be treated as the default in the payment of rent by the petitioner had continued after the issue of notice under Ex.A l. claiming the rent and after the filing of the eviction petition on 31-3-1977 and subsequently as well. P.W.1, has spoken to the wilful default committed by the petitioner and the authorities below have chosen to accept the testimony of P.W.1 and nothing has been pointed out before this court as to how the authorities below committed any error in doing so. In the light of his evidence and the explanation in the Act referred to earlier, it is clearly established that petitioner had committed wilful default in the payment of rents. Thus, the second contention of the learned counsel for the petitioner has also no merits.

11. Lastly, the learned counsel for the petitioner contended that the application for eviction filed by the respondent was the outcome of an oblique motive to secure a higher rent for the premises in the occupation of the petitioner. To Substantiate this, there is absolutely no material at all. Except merely stating that the respondents were motivated, the learned counsel for the petitioner was not in a position to establish that the application for eviction was motivated by a desire to get or secure higher rent. This contention cannot therefore be countenanced at all and has to be rejected.

12. On a careful consideration of the oral as well as documentary evidence, the authorities below have concurrently found as a fact that the petitioner had committed wilful default in the payment of rents. That conclusion of fact recorded by the authorities below is amply supported by the materials on record and as pointed out by the Supreme Court in Sri Raja Lakshmi Dyeing Works v. Rangaswami Chettiar, : AIR1980SC1253 , concurrent findings of fact based on evidence ought not to be interfered with in the exercise of the revisional jurisdiction under S. 25 of the Act. All the submissions made by the learned counsel for the petitioner having failed, this civil revision petition is dismissed with costs.

13. Petition dismissed.


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