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M.K. Natesa Mudaliar and Sons by Partner M.K. Natesa Mudaliar and anr. Vs. P. Subramaniam - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1984)1MLJ56
AppellantM.K. Natesa Mudaliar and Sons by Partner M.K. Natesa Mudaliar and anr.
RespondentP. Subramaniam
Cases ReferredSri Raja Lakshmi Dyeing Works v. Rangaswamy
Excerpt:
- .....have sent a cheque for rs. 600 along with exhibit b-19 dated 28th october, 1978 towards four months' rent including the rent due for october, 1978, even though the rent due for october need not have been remitted in october itself. finding that the landlord would take eviction proceedings alleging wilful default in the payment of rent for the previous months, probably, the tenants might have sent the rent due for october, 1978 also. the stand, that in order to show the bona fides of the tenants they had sent the rent due for october, 1978 also, is belied by the contention that the tenants were waiting for a stamped receipt and confirmation about the purchase of the property and that is why they were waiting for sending the rent. if they were really waiting for a stamped receipt and.....
Judgment:

M. Fakkir Mohammed, J.

1. The tenants are the revision petitioners. The landlord filed R.C.O.P. No. 165 of 1978 on the file of the Rent Controller (District Munsif); Salem, for eviction of the tenants on three grounds, namely, (1) wilful default in the payment of arrears of rent for the months of July, August and September, 1978 under Section 10(2) (i) of Tamil Nadu Act XVIII of 1960; (2) for own occupation for the business of the landlord under Section 10(3)(a)(iii) of the said Act; and (3) requirement of the building for demolition and reconstruction under Section 14(1) (b) of the said Act. The building is a non-residential building and the landlord had purchased the the building on 15th March, 1978 under the original of Exhibit B-2. The defence raised by the tenants was that because there was a competition between the landlord and the tenants in the purchase of the building from the previous owner and because there was no immediate reply from the landlord confirming the purchase of the demised building from the previous owner and no stamped receipt was issued by the landlord for the rents remitted for the months of March, April and May, the tenant waited for some months, that immediately after the receipt of the notice from the landlord, the tenants sent a cheque for Rs. 600 towards the rents due not only for September, but also for October, on 28th October, 1978 and that, therefore, there was no wilful default. So far as the other two grounds are concerned, the defence was that the requirement of the landlord is not true and bona fide.

2. On the side of the landlord, the landlord and his brother have been examined as P. Ws. 1 and 2 and on the side of the tenants in addition to the tenant, one Engineer has been examined in order to prove that the condition of the building is quite strong and sturdy and does not require demolition. After considering the evidence adduced on both sides, learned Rent, Controller upheld the first two grounds urged by the landlord, namely, wilful default and requirement for own occupation and negatived the third ground of requirement for demolition and reconstruction. The tenants preferred C.M.A. No. 27 of 1981 before the appellate authority as against the adverse findings on the first two grounds. It appears that arguments were advanced on the side of the landlord before the appellate authority regarding the third ground also, which was negatived by the learned Rent Controller. Therefore, the appellate authority has upheld all the three grounds urged by the landlord. Hence, the tenants are challenging the correctness and legality of the findings of the appellate authority in this revision petition.

3. So far as ground Nos. 2 and 3, namely, requirement for own occupation and requirement for demolition and reconstruction are concerned, it is better that they are disposed of in the first instance. In paragraph 4 of the eviction petition, the landlord has simply stated that the petitioner requires the building in question 'for his personal use and occupation'. It is bereft of any of the particulars or detsils regarding the requirement so that the tenants might meet those details in their counter and the tenants are deprived of setting up the necessary defence regarding the requirement for personal use and occupation. The nature of the business or any business that has been carried on by the landlord, the place of the business of the landlord and the ownership of the building in which the alleged business is carried on by the landlord, have not been mentioned. It is quite vague.

4. However, in evidence, the landlord has produced documents to show that he has been carrying on a textile business under the title of 'Shanmugham Textiles' in Door No. 34, Arunachala Asari Street, Salem. The said facts could have been easily pleaded in the petition itself. Thus, the tenants have been deprived of an opportunity to meet the ingredients that have to be put forward in the eviction petition as required by Section 10(3)(a)(iii) of Act XVIII of 1960. So far as the present building No. 34, Arunachala Asari Street in which Shanmugham Textiles is being carried on by the landlord, it has not been proved that the said building does not belong to the landlord or that the same belongs to anybody else. It came to light in the oral evidence that the landlord also has got interest in the said building. If the landlord had pleaded that No. 34, Arunachala Asari Street did not exclusively belong to him and that he has got only a fractional share in the property, the tenants would have been able to collect the necessary materials and evidence to rebut such a contention. Except for the oral statements of P. Ws. 1 and 2, there is no proof that the building, where the landlord is carrying on Shanmugham Textiles business, is a joint family property of himself and his brothers or his father or that it belongs to his father only or that it does not belong to himself exclusively. Thus, the second ingredient of the second limb of Section 10(3)(a)(iii) has not been satisfied and that, therefore, the said section is not attracted. This being a question of law, it cannot be said that the concurrent findings of both the Courts below cannot be interfered with. The findings of the Courts below require to be interfered with, as they are not based on any legal plea or evidence.

5. So far as the requirement for demolition and reconstruction under Section 14(1) (b) of the Act is concerned, it is contended in paragraph 5 of the eviction petition that 'the petitioner bona fide requires the building in question for immediate purpose of demolition and reconstruction'.

6. So far as the requirement for demolition and reconstruction under Section 14(1) (b) of the Act is concerned, it is contended in paragraph 5 of the eviction petition that 'the petitioner bona fide requires the building in question for immediate purpose of demolition and reconstruction'. There is no other plea that the building is aged or old and that it is in a dilapidated condition. P. Ws. No. 1 and 2 also have not adduced necessary evidence with reference to the age of the building or the condition of the building. The tenants have examined one Engineer and Exhibits B-53 and B-54 are the report and plan submitted by R. W. 2 the Engineer. The evidence of R. W. 2 it and Exhibits B-53 and B-54 go to show that the building is not an aged one or that it is in a dilapidated condition requiring demolition. Thus, the landlord has not adduced the necessary evidence on the ground of requirement for demolition and reconstruction under Section 14(1) (b) of Act XVIII of 1960.

7. The learned Counsel for the respondent herein contends that in the grounds of revision, the finding of the appellate authority on this ground has not been specifically challenged and hence the finding on the said ground cannot be canvassed in revision. The first ground of revision is that the decision of the appellate authority is neither correct nor legal. No specific ground attacking the section finding on 14 (1) (b) of the appellate authority has been raised. But once, it is brought to the notice of the Court sitting in revision that the finding of the appellate authority is not based on any legal evidence and the finding cannot be sustained by the provisions of law, the revisional Court, exercising powers under Section 25 of Act XVIII of 1960, has to set right the legal error. The appellate authority, who has also discussed in the order about the evidence of the Engineer, the report and plan of the Engineer and the omission on the part of the landlord to place materials regarding the age and condition of the building, has simply stated that the ground of requirement for demolition and reconstruction has been proved. Therefore, the said finding also cannot be sustained and the landlord fails on this ground.

8. Coming to the vital ground of wilful default, it is the concurrent finding of both the Courts below that the default committed by the tenants is wilful. The learned Counsel for the revision petitioners started his argument by stating that even though the tenancy started from 1941 under the original owner Rajagopala Chettiar and his wife Lakshmi Bai, no default was committed by the tenants till March, 1978, that because the tenants also offered to purchase the demised building from the previous owner and competed with the respondent herein, there was a delay in the payment of rents for three months upto and inclusive of February, 1978, since the previous owner was evading to receive the rent, that consequently the tenants had to send Exhibit B-26 letter dated 22nd June, 1978 with a cheque for Rs. 450 towards the rent for three months, that the same was returned by the previous owner along with Exhibit B.3 dated 26th June, 1978. requesting the tenants to attorn to the respondent herein stating that the demised building had been sold away to the respondent herein and that in the meanwhile the tenant, as he was expecting confirmation of the purchase from the respondent herein along with a stamped receipt, defaulted to pay the rents due for the months of July, August and September, 1978.

9. The learned Counsel for the respondent herein contended that the above contentions advanced on behalf of the tenants are wanting in bana fides and truth in the face of the conduct and inconsistent statements made by the tenants in their counter and in trying to question the status of the landlord on account of the tenants failure to purchase the demised building. He also pointed out the statement made by the tenants in paragraph 4 of the counter to say that 'the respondent was not aware of the purchase of the petition-mentioned property by the petitioner till the respondent received the notice from the petitioner'. To prove that the above statement is a wanton and intentional statement, the learned Counsel pointed to Exhibit B 2, the registration copy of the sale deed produced by the tenants in evidence, which reveals that the registration copy was obtained by the tenants on 28th March, 1978 or some days later. In Exhibit B 3, the tenants have made a reference to their attempt to purchase the demised building from the previous owner and about their alleged payment of Rs. 5,000 towards advance also. The above facts are not disputed. Therefore, the statement made by the tenants in paragraph 4 of the counter is prima facie a false statement. The tenants have chosen to attack not only the respondent herein but also the previous owner in contending that the previous owner evaded to receive the rents upto March, 1978 and that because the present landlord, namely, the respondent herein did not send a stamped receipt as demanded in Exhibit B-3, there was a delay in the payment of arrears of rent for July, August and September, 1978. His very payment of rent by sending a cheque along with Exhibit B-29 dated 18th July, 1978, to the respondent belies the above statement in paragraph 4 of the counter, Evidently, the tenants want to buttress the wilful default committed in the payment of arrears of rent for July to September, 1978 by making the above false statement in paragraph 4 of the counter.

10. The default cannot be considered as casual or unintentional in their default in the face of the rivalry between the tenants and the present respondent herein in attempting to purchase the demised building. Therefore, the tenants have wilfully shut their eyes in making the statement in paragraph 4 of the counter that because they were not aware of the purchase of the demised building by the landlord, the tenants could not pay the rent.

11. The learned Counsel for the revision petitioners further contended that as there was no reply from the respondent and no stamped receipt was received, the tenants were waiting for such thing from the landlord and hence the default cannot be deemed to be wilful If there was no reply from the landlord, it is the duty of the tenants to tender the rent due for every succeeding month within the end of the next succeeding month and if the tenants were very particular about the issue of receipt for the rent paid, it is the duty of the tenants to invoke the provisions of Section 8 of Act XVIII of 1960. The tenants have not invoked the provisions of Section 8 of the Act, either by sending the rent by money order or by making any deposit or by filing any application before the Rent Controller. Therefore, the tenants cannot take advantage of their own fault for contending by way of defence in an action for eviction under the special enactment, since the tenants could not be evicted only on account of the benefits conferred by the special enactment. One, who wants to invoke the benefits of the special enactment, is required to comply with the other conditions and provisions of the Act. In this case, there is no explanation as to why the tenants did not send he rent by money order or deposit the amount within the end of the succeeding month for the months of July and August, 1978 and for haying not sent any letter to the landlord enquiring as to why the receipt was not sent or as to whether the rents due for the succeeding months may be deposited in any Bank or in the Rent Controller's Court. The facts, evidence and the circumstances in this case clearly depict the supine indifference and recalcitrant attitude of the tenants in evading to pay the rents, probably because of their failure to purchase the demised building, since the respondent herein had succeeded in the purchase of the building.

12. The learned Counsel for the revision petitioners further contended that in order to show their bona fides, the tenants have sent a cheque for Rs. 600 along with Exhibit B-19 dated 28th October, 1978 towards four months' rent including the rent due for October, 1978, even though the rent due for October need not have been remitted in October itself. Finding that the landlord would take eviction proceedings alleging wilful default in the payment of rent for the previous months, probably, the tenants might have sent the rent due for October, 1978 also. The stand, that in order to show the bona fides of the tenants they had sent the rent due for October, 1978 also, is belied by the contention that the tenants were waiting for a stamped receipt and confirmation about the purchase of the property and that is why they were waiting for sending the rent. If they were really waiting for a stamped receipt and confirmation of the purchase of the property, there was no need; for the tenants to send the rent for October also in advance and they would have certainly sent a notice to the respondent demanding the receipt for the previous payments.

13. The learned Counsel for the respondent has contended that because the tenants have sent a cheque for three months' rent, it was as good as a receipt for the tenants, since the landlord cannot deny the payment of rent for the months of March, April and May, 1978. There is reasoning in the above said contention. It is in the face of the above evidence, both the Courts below have found concurrently that the default committed by the tenants is wilful and there is absolutely no reason whatsoever to interfere with the said concurrent finding on the question of wilful default. The learned Counsel for the respondent has also cited a decision reported in Sri Raja Lakshmi Dyeing Works v. Rangaswamy (1980) 2 R.C.J. 165 : A.I.R. S.C. 1253, in which it was held that under, Section 25 of Tamil Nadu Act XVIII of 1960, the High Court is not expected to interfere with the concurrent findings of fact. In this case findings of both the Courts below on the question of wilful default cannot be said to be capricious or perverse. Therefore, the concurrent findings of both the Courts below on the ground of wilful default are sustained and in view of the same, the revision petition is dismissed with costs, even though the, findings on ground Nos. 2 and 3 have been found to be erroneous in law. The tenants are granted two months' time from this date, for vacating the building.


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