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V.S. Devadoss Vs. S. Velu and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P. Nos. 3237 and 3238 of 1982
Judge
Reported inAIR1984Mad150; (1984)1MLJ301
ActsTamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 10, 11 and 23; Code of Civil Procedure (CPC), 1908 - 0rder 14, Rule 2
AppellantV.S. Devadoss
RespondentS. Velu and anr.
Appellant AdvocateV. Swamlnathari, Adv.
Respondent AdvocateV. Krishnan, Adv.
Cases ReferredLakshmiammal v. Sivasubramaniam.
Excerpt:
.....of rent on ground of denial of being landlord - tenant did not pay rent even at rate of earlier rent fixed - sale deed executed by previous owner genuine - relationship of landlord and tenant appears to be genuine - tenant directed to pay rent. - - to create difficulties and he was also imp leaded as second respondent in the application for eviction so that any order passed may be binding on him as well, 2. in the counter-statement filed by the respondent. he stated that the relationship of landlord and tenant subsisted between the petitioner and the respondent as shown by certain prior proceedings as well and that. 11(4) of the act praying for direction to the respondent to day or deposit the arrears of rent and for the stoppage at all further proceedings on his failure to do..........concerned. he. would also be in the position of a tenant. who was tinder an obligation to pay the rent to kamalammal so tone as she was the landlady and thereafter to the petitioner af ter the sale by kamalammal and her son as in ex. r-2. indeed. it is seen from ex. r-1 that for the non-pavement of the rents by the respondent. the, petitioner initiated distress proceedings and in the course of those proceedings. the respondent had admitted that he had deposited the monthly rent at rs. 190 per mensem legally due to the petitioner as per the lease deed and referred to in his reply notice. this statement of the petitionerclearly shows that the respondent had acceated the petitioner as his landlord and had also paid the rent, which. even according to the respondent. was legally due to him......
Judgment:
ORDER

1. These civil revision petitions. at the instance of the landlords. are directed against the common order (if the Appellate Authority (11 Judge. Court of Small Causes). Madras in R. C. As. 66 and 67 of 1992. arising out of M. Ps. 361 and 256 of 1980 respectively In H.R.C. 3643 of 1979 on the file of the Rent Controller (XII Judge. Court of Small Causes). Madras. In that proceeding. the landlord prayed for an order of eviction against the respondent in these civil revision petitions and one Rajanaam under S. 10(3)(a)(iii) (wrongly stated as S. 10(3)(a)6) of the Tamil Nadu Buildings (Lease and Rent Control) Act. 18 of 1960 as amended by Tamil Nadu Act 23 of 1973 (hereinafter referred to as the 'Act'). The petitioner crafted that he is the landlord in res0ect of the premises bearing old door No. 21 new door No. 30 Millers Road, and that the respondent was a tenant in modulation thereof. the tenancy being for non-residential pogroms of carrying on a business under the name and style of 'Sivasakthi Unavu Vidhuthi'. The petitioner stated that- he was carrying on his business in, a rented building at door. NO. 10/31. New door No. 86 Millers Road. having a modern at Nos. 34. 42 and 44. Millers St.. Kilvauk. Madras. and that he did not own any building of his own. The further case of the petitioner was that he required this treatises in the occupation of the respondent for his own use and occupation and the respondent through one Soundararafan and the respondent. though agreed to vacate and deliver vacant possession of the premises. did not do so. The name of Rajarmam, according to the petitioner. was inserted in the sale tax register as proprietor with a view. to create difficulties and he was also imp leaded as second respondent in the application for eviction so that any order passed may be binding on him as well,

2. In the counter-statement filed by the respondent. he contended that the site over which the building stood belonged to eased out the site in 1926 to we Lakshmi Ammal. who out up a superstructure and thereafter settled the Property in favour of one Karnalammal. There after. Kamalammal continued to be the tenant under the Mutt and on 7th May 1979. Kamalammal sold the superstructure with the leasehold to the petitioner. The respondent ;dated that the sale deed in favour of the Petitioner was not valid in law as Kamalammal had no right to transfer the leasehold right. The further contention of the respondent was that on con-dria to know that the Mutt was the owner of the site. he so approached the Mutt with a view to secure a sale of the site and 'paid an advance towards the same. The respondent thus attempted to raise a cloud over the title of the Petitioner with reference to the Property in his occupation. In an additional co unter filed by the respondent he pleaded that the assignment of . the rights of a tenant in favour of the petitioner was invalid in law under the provisions of the Tamil Nadu City Tenants Protection Act and the Petitioner did not Oet any right or title as a landlord. Besides. the respondent out forth a plea that S. 10(3)(a)(I) of the Act had no application and the non-Davinent of the court-fee'in so far as the relief of eviction prayed for against Raiangam was concerned would be fatal to the maintainability of the application -for eviction. Certain other defences were also raised by the respondent which need not be adverted to in extenso for the purpose of these civil revision Petitions. Suffice it to say that Raianeam. Who was irribleaded as the second respondent in H.R.C, 3643 of 1979 also raised the Plea that he is only the brother-in-law of the respondent herein. that he was managing the hotel abd assisting the respondent that there was no sublease in his favour. that he is aji unnecessary party to the application for eviction and that the application for eviction should therefore be dismissed. In the reply filed by the Petitioner. he stated that the relationship of landlord and tenant subsisted between the Petitioner and the respondent as shown by certain prior proceedings as well and that. the denial of title of the petitioner by the respondent was, not at all bona fide.

3. In M.P 361 of 1981 in H.R.C. 3643 of 1979. the Petitioner applied under S. 11(4) of the Act praying for direction to the respondent to Day or deposit the arrears of rent and for the stoppage at all further proceedings on his failure to do go. as according to the petitioner. the respondent-tvilant was in arrears of rent to the tune of Rs. 11400. That an resisted by the respondent on more or less the same ground as in the main application for eviction and it was stated that the petitioner was not the landlord and. therefore. no question of any deposit or payment would arise, The respondent in his turn filed M. R 256 of 1980 In H. R. C. 3643 of 1979 Porting to be one under Section 10(1) of the Act. Praying for the holding of a preliminary enquiry regarding the respondent's bonafide denial of the title of tile petitioner and for recording a finding to that effect before entering,upon the merits oH. R. C. 3643 of 1979. That application was opposed by the Petitioner herein. who reiterated that there was no auction of any preliminary enquiry at all relating to the bona fides of the denial title especially when the petitioner was the owner of the superstructure and the respondent was a tenant thereof and the relationship of landlord and tenant continued to exist between the parties.

4. In so far ap M. P. 361 of 1981 is concerned. the learned XII Judge, Court of Small Causes. Madras. bv his order dated 17-11-1981. on a consideration of the rival stand taken by the petitioner and the respondent. found that the Petitioner was entitled to collect the rents. that the respondent had not paid the rents to the Petitioner even at the admitted rate of Rs. 190 Per mensern. which he was paying to Kamalammal. front whom the petitioner had Purchased the property and that. therefore. the respondent should deposit the arrears Or rent into court for the Period from 7-9~-1979 when the property was purchased by the Petitioner from Kamalammal. till the date of this application. at the rate of Rs. 190 Per mensern prori or before 27-11 -1081. failing which all further Proceeding were directed to be stopped and the respondent was directed to out the Petitioner Into Possession of the premises. In M. P. 2,' of 1980 filed by the respondent herein. by an order dated 17-11-1081 the learned XII Judge. Court of Small Causes. Madras. found that the objection raised by the respondent with reference to the title of the petitioner to the premises in the occupation of the respondent cannot be dealt with or disposed of summarily without examining-the parties and in the absence of material documentary evidence and. therefore. the enquiry could be conducted only in the course of the hear in a of the application for eviction and cannot be tried as a preliminary issue. In that view. that application was dismissed.

4-A. Aggrieved by the dismissal of M. P. 256 of 1980. the respondent herein Preferred an appeal in R.C.A. 67 of 1982 to the Appellate Authority . (11 Judge. Court of Small Causes) Madras. The respondent also preferred an appeal in R.C.A. 66 of 1982 to the Appellate Authority (11 Judge. Court of Small Causes Madras. No last the order Passed on the application in M., P. 361 of 1981. direction the respondent to deposit the arrears of rent. as stated earlier. Both the appeals were heard together and disposed of together by the Appellate Authority. The Appellate Authority while , accepting that the site over which the superstructure stands belongs to the Mutt at Kancheepuram. took the view that in view of the agreement of sale entered into by the respondent with the Mutt with reference to the site. a bona fide dispute over the title to the Property would arise and that the matter should be referred to a civil Court for adiudication. Considering the proDrietv of the order directinst the respondent to deDosit the arrears of rent, the Appellate Authority was of the view that since there was a bona fide denial of the title of the Petitioner by the respondent. the remedy open to the petitioner was to Proceed aqainst the respondent in a civil Court and that no question of filing an application under S. 11(4) ~of the Act would arise. In view of these conclusions. the Appellate Authority not only allowed R.C.As. 66 and 67 of 1982. and set aside the orders in M. Ps. 361 of 1981 and 256 of 1982. respectively. but also dismissed H.R.C. 3642 of 1979 with a direction that the Petitioner should seek his remedy in a civil Court. It' is the correctness of these orders that is challenized by the landlord in these civil revision petitions.

5. The first contention of the learned counsel for the Petitioner is that there is no Provision or procedure under the Act or the Rules framed under the Provisions of the Act for holding a Preliminary enquiry in cases arising before a civil Court and. therefore. the Appellate Authority was in error In having proceeded to consider the question of the bona fides of the denial of title and in deciding it as a preliminary issue and dismissing the application for eviction. An objection was also raised by the learned counsel for the Petitioner that the appeal Preferred by the respondent in R.C.A. 67 of 1982. Was against the order of the Rent Controller declining to hold an enquiry into the denial of title as a preliminary question and that did not in any manner affect the right of the respondent or the petitioner 4th. therefore. such an order could not have been appealed astainst under the provisions of S. 23(1)(b) of the Act. It was also further Ddnted out .by the learned counsel for the Petitioner that on the facts of this case.denial of title by the respondent was nothing but mala fide especially when the respondent had admitted the title of Kamalammal to the superstructure and the Purchase thereof by the Petitioner under the sale deed Ex.2 dated 7-5-1979 executed Karnalammal and her son Mohan. Attention was also drawn to the payments of rents by the respondent to Kamalammal and it was submitted that after the Purchase of arisen and that would be a bona fide dispute and that. therefore. no direction for deposit of rents -by the respondent could be made.

6. A consideration of the sections of the Act as well as the Rules does not indicate that there is any provision hereunder to hold any enquiry in proceedings under the Act in the nature of a preliminary enquiry on one of the points in dispute between the parties. Therefore. The course adopted by the Appellate Authority in proceeding to deal with the question of the bona fide denial of title as a preliminary point does not have any statutory support. Even as a matter of Practice. before civil courts. a trial within a trial. as it were. has not been encouraged at all by Courts. as by adopting such a course. in the event of the superior court not agreeing with the conclusion of the trial court. the matter necessarily has to be remitted for being reconsidered. It is only with a view to obviate the proceedings being shunted from court to court. That courts have been uniformly following a very salutary Principle that all disputes arising between the Parties bold be dealt with and adjudicated upon as' a whole and not piecemeal. It is. therefore. evident that the Procedure adopted by the Appellate Authority in having considered the bona fide denial of the respondent as a Preliminary issue has no statutory support and also ' runs counter to the Practice in vogue even before civil court& The Rent Controllers and the Appellate Authorities though they otherwise function % civil courts. are special authorities designated , under the Act for the Purpose of disposing of eviction application and appeals arising there from under the provisions of the Act and they have. been constituted with specific Powers outside which. they cannot arrogate to themselves. other or further powers. Taking into account these aspects. it is clear that the Appellate Authority erred in proceeding to deal with the bona fides of the denial of title as a Preliminary issue and in dismissing the application for eviction in limine.

7. That apart. there is a more vital objection to the maintainability of the appeal in R.C.A. 67 of 1082. The order appealed against declined to enquire the question of bona fides of the denial of title of the Petitioner by the respondent (as a preliminary issue. The order did not in any manner decide or even our port to affect in any manner any right of either the Petitioner or the respondent. It is now very well settled that such orders are not appealable under S. 23 of the Act. In Central Bank of India Ltd. v. Gokul Chand. : [1967]1SCR310 the question of the maintainability of an appeal against an interlocutory order under the provisions of the Delhi Rent Control Act came up for consideration before the Supreme Court. Pending an application for eviction. the tenant made an application for the appointment of a Commissioner to visit the proverty and to Prepare a plan. which was recieted by the Rent Controller. An appeal was Preferred against that order to the Appellate Authority which rejected the appeal h9ldina that no appeal lav. The High Court also agreed with the decision of the Tribunal. When the matter came up before the Supreme Court. it had to consider on the language of Section 38(1) of the Delhi Rent Control Act whether an appeal was competent. Though S. 38(1) of the Delhi Rent Control Act used the expression 'every order of the Controller made under this Act'. the Supreme Court held that it did not include Procedural interlocutory orders not affecting the rights or liabilities of the Parties and such order cannot be appealed against. To similar effect is the decision in Bant Singh Gill V. Shanti DevL : [1967]3SCR59 . In that case. a auestion arose whether the relection, of an application to record the abatement of the suit and the continuance of the suit was an order of such a nature against which an appeal could -be filed under S. 34 of the Delhi and Aimer Rent Control Act. 1953. A contention was raised before the Supreme Court that the word 'order' used in Section 34 did not carry with it any limitations excepting that it should be an order Passed by a Court under the Act and an appeal would lie. Revellina this contention. the Supreme Court referred to its earlier decision in Central 'Bank of India Ltd. v. Gokul Chand. : [1967]1SCR310 and held that the decision rendered is only in the nature of a finding on a preliminary issue on which would defend the maintainability of the suit and the rights and liability should be decided after the full trial is gone through and further that such a finding cannot be held to be an order for the Purpose of S. 34 and no appeal against such an order would be maintainable. Lakshmiammal v. Sivasubramaniam. (1981) 2 MLJ 206 : AIR 1981 NOC 171 dealt with a case where the question of the maintainability of an appeal filed by the legal representatives of a deceased tenant. who were impleaded in the place of the tenant after overruling their objections. came to be considered. An order on the application for bringing on record the legal representatives was held to be merely procedural in that it assisted the landlord to continue the -proceedings already initiated by him and did not in any manner adjudicate upon or affect any of the rights of the legal representatives and. therefore. the appeal filed was incompetent and a further civil revision petition would also share the same fate. In this case also. there is no question of the Rent Controller having decided any of the rights of the parties by declining to hear the objection raised by the respondent relational to the bona fides of the denial of title as a preliminary issue. No appeal. therefore. could have been preferred against that order under S. 23(1)(b) of the Act. even though it used the expression 'an order'. Consequent. it must, be held that the appeal preferred by the respondent in R.C.A. 67 of 1982 before the Appellate Authority was not maintainable.

8. The cession of denial of title and the bona fides thereof may now be briefly adverted to. Earlier. it had been seen how even according to the respondent the site over which the premises stood belongs to the Mutt at Kancheepuram and how the Mutt had granted a lease in favour of one Lakshmi Ammal in 1926 in order to enable her to put up a superstructure and how subsequently Lakshmi Ammal settled the property in favour of Karnalammal from whom the petitioner had ourchasid the property under the sale deed Ex. R-2 dated 7-51979. So Iona as Kamalammal was the landlady of the respondent. the respondent did not whisper anything about her defective title. On the other hand. the respondent had been paying the rents at the rate of Rs. 190 per mensern to Kamalammal till such time as She continued to be the owner of the premises. It is only after the petitioner became the owner of the superstructure as a result of the sale executed by Kamalanunal and her son Mohan under the sale deed Ex. R-2. dated 7-5-1979. that the respondent had thought fit to raise a cloud regarding the title of the petitioner. Under the sale deed Ex. R-2- Kamalammal had transferred in favour of the petitioner not only the superstructure which belonged to her. but also her leasehold rights in the site. Whether Kamalammal was entitled to the leasehold rights In the site or not. nevertheles4 she had our ported to convey that also in favour of the petitioner. If really she was not competent to convey the leasehold rights in the site in favour of the petitioner. the proper person to raise an objection in that regard would be the Mutt. The Mutt had not raised any objection regarding the sale deed executed by Kamalammal and her son in favour of the petitioner. On the other hand. it is the respondent. who. admittedly Is not the owner of the superstructure. had purported to interfere in the matter by claiming that he had approached the Adheeriakarthar of the Mutt to sell the site to him and he also agreed for that and an advance had also been paid on 14-12-1979. That there was such an agreement W not been established. It is thus clear that even according to the respondent. he had. after coming to know of the sale. in favour of the petitioner. had purported to enter Into an agreement with a view - to create a confusion in the title of the petitioner. if possible. Even assuming that the respondent had an agreement of sale in his favour with reference to the leasehold rights in the site. that would not by itself clothe the respondent with any rights thereto as to enable him to cast a cloud on the title of the petitioner in relation to the superstructure as well as the leasehold rights which had admittedly been conveyed to the petitioner by Kamalammal and her son under 'Ex. R-2. Therefore. when the petitioner had admittedly purchased the superstructure as well as the leasehold right from Kamalammal. and her son. of whom Karnalarnmal was accepted even by the respondent as his landlady. the respondent cannot be heard to contend that the purchaser from Kamalammal would not be a landlord for the purpose of the Act in that he did not have any title by reason Of the purchase under the sale deed Ex. R-2. Even assuming , that Kamalammal was not competent to convey the leasehold right in the qite in favour of the petitioner the superstructure undoubtedly passed to the Petitioner under the sale deed and the peti. tioner became entitled to collect the rent from that superstructure admittedly in the occupation of the respondent and thePetitioner would. Therefore Satisfies thedefinition of a landlord under the Act.Likewise. in so far as the respondent is concerned. he. would also be in the position of a tenant. who was tinder an obligation to Pay the rent to Kamalammal so tone as she was the landlady and thereafter to the Petitioner af ter the sale by Kamalammal and her son as in Ex. R-2. Indeed. it is seen from Ex. R-1 that for the non-pavement of the rents by the respondent. the, Petitioner initiated distress Proceedings and in the course of those Proceedings. the respondent had admitted that he had deposited the monthly rent at Rs. 190 Per mensem legally due to the Petitioner as per the lease deed and referred to in his reply notice. This statement of the Petitionerclearly shows that the respondent had acceated the Petitioner as his landlord and had also Paid the rent, which. Even according to the respondent. was legally due to him. Under these circumstances. the denial of title of the Petitioner by the respondent totally lack% bona fides and has been thought of only with a view to Prolong the Proceedings or even to secure a termination of the Proceed Inns before the authorities constituted under the Act on the around that the Parties should be referred to a civil court for adjudication, On the facts and circumstances of this case. there is, no room for any doubt that the denial of title of the Petitioner by the respondent lacks homelessly in bona fides. The Appellate Authority was in error in hold ina contra and in directing the Parties to a civil suit and further in dismissing the apolication for eviction. while deal inff with an avneal arising out of an interlocutory vroceediniz in a Pending anDlication for eviction.

9. No disipute was raised by the respondent that Kamalammal was his landlady till she sold the property in favour of the Petitioner anti that he had Paid the rents also to her. By reason of the sale deed Ex. R-2 executed by Kamalammal and her son in favour'of the Petitioner. in view of S. 109 of' the Transfer of Property Act. the Petitioner. as a Purchaser of immovable property in the occupation of the respondent as a tenant under Karnalanimal. got transferred to him all the rights of the landlord and became entitled to collect the rents from the respondent. For Purposes of the Act. it is not necessary that the landlord should be the owner of the Property in the sense of having exclusive title to it. It would suffice for the power of the Act if a Person was entitled to receive the rent from the tenant in occupation. It is not the case of the respondent that as the purchaser of the property from Kamalammal. the petitioner was not entitled to receive the rent from the respondent in respect of his occupation of the Premises sold to the Petitioner, Under these circumstances. the relationship of landlord and tenant between the Petitioner and the reminding subsisted and inasmuch as the respondent did, not Day any rent all to the Petitioner after the sale in his favour under the sale deed Ex. R-2 dated 7-51979. the Rent Controller was quite justified in directing the respondent to deposit the rent5, at the admitted rate of Rs. 190 Per mensem. The Avvellate Authority was Persuaded to dismiss the avolication under S. 11(4) of the Act on the around that there was a bona fide denial of title of the Petitioner, bv the respondent and the matter ought to be decided by a civil court and till then no. anDlication under S. 11(4) of the Act could be maintained. That when. as Pointed out above. is ulain1v erroneous as the denial of the title of the Petitioner by the resoondent is not at all bona fide and the relationship of landlord and tenant subsisted between the Petitioner and the respondent. which would suffice to maintain the application under Section 11(4) of the Act.

10. That leaves for consideration the contention urged by the learned counsel for the respondent that no direction can be given regarding the deposit of rents under S. 11(4) of the Act. It has earlier been Pointed out that the denial of title by the resoondent is mala fide and that the relationship of landlord and tenant subsisted between the Petitioner and the respondent. It is also not in dispute that after the Purchase bv the Petitioner from Kamalarnmal and her son under the sale deed Ex. R-2 dated 7-5-1979. the resoondent had not Paid any rents at all to the Petitioner and such non-payment had also compelled the Petitioner to resort to distress Proceedings in the course of which the respondent had also admitted having Paid some amounts to the Petitioner as and bv way of rent. As a Purchaser from Kamalammal. the Petitioner staved into her shoes as a landlord in relation to the 'Premises in the occuPation of the respondent and even according to the respondent. he had Paid rents to thePetitioner. though in distress Proceedings. This would suffice to establish the relationship of landlord and tenant between the petitioner and the respondent and in view of the admitted non-payment of the rent even at the rate of Rs. 190 Per mensem which was being Paid by the respondent to the vendor of the Petitioner. namely. Kamalammal. the Rent Controller was quite justified in directional the respondent to deposit the rents at, the rate of Rs. 190 Per mensem 'from 7-5-1979 onwards. The decision in Abdul Mallik v.,Fr. Joseph Samdanam. (1975) 2 MW 204. relied on by the learned counsel for the respondent. related to rights under the Tamil Nadu City Tenants Protection Act. claimed by an assignee from a tenant and cannot. ,therefore. be of any assistance to the respondent.

11. On a careful consideration of all the facts and circumstances the conclusion is irresistible that the Appellate Authority-was totally in error in having.3et aside the orders of the Rent Controller. Consequently. the orders of the Appellate Authority in R.C.As. 66 and 67 of 1982 are set aside and those in M. Ps. 361 of 1981 and 256 of 1980 in H.R.C. 3643 of 1979 Passed by the Rent Controller are restored. The order of dismissal of H.R.C. 3643 of 1979 passed by the Appellate Authority is also set aside and that application will be restored to file to be dealt with in accordance with the law. The civil revision Petitions are. therefore. allowed with costs: one set.

12. Petitions allowed.


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