w w w . L a w y e r S e r v i c e s . i n



Bose v/s Chockalingam

    C.R.P.(MD)No. 1751 of 2017 & CMP(MD)No. 9451 of 2017

    Decided On, 06 February 2019

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE M.V. MURALIDARAN

    For the Petitioner: V.R. Shanmuganathan, Advocate. For the Respondent: S.J. Chakkaravarthy, Advocate.



Judgment Text


(Prayer: Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, against the fair and decreetal order dated 21.04.2017 in RCA.No.8 of 2016, on the file of the learned Rent Control Appellate Authority/Subordinate Judge, Devakottai confirming the fair and decreetal order dated 11.03.2016 in RCOP.No.11 of 2012, on the file of the learned Rent Controller and Principal District Munsif cum Judicial Magistrate, Karaikudi.)

1. The unsuccessful tenant has come forward with the above civil revision as against the fair and decreetal order dated 21.04.2017 in R.C.A.No.8 of 2016, on the file of the learned Rent Control Appellate Authority/Subordinate Judge, Devakottai, confirming the fair and decreetal order dated 11.03.2016 in R.C.O.P.No.11 of 2012, on the file of the learned Rent Controller and Principal District Munsif Cum Judicial Magistrate, Karaikudi.

2. The Petition premise originally belonged to one SP.V.Alagappa Chettiar and the revision petitioner was tenant under him. The revision petitioner was running Jewellery shop in the petition premise. In the said circumstances the respondent herein issued notice dated 29.06.2011 and made claim as if he had purchased the property from the said SP.V.Alagappa Chettiar through registered sale deed dated 07.05.2001. Further claimed that revision petitioner/tenant had failed to pay rent from 2001 to 2011 and that the building is more than 50 years old and the same is in dilapidated condition. Hence it needs immediate demolition. For which detailed reply was given by the revision petitioner vide reply dated 13.07.2011. Having not satisfied with reply respondent initiated Rent Control Proceedings before the learned Rent controller under section 14(1)(b), 10(2)(i) and Section 10(3) of the TamilNadu Building Lease and Rent Control Act.

3. The revision petitioner herein contested the RCOP that he was a tenant in petition premise under one SP.V.Alagappan and that he was not informed about the purchase of petition premise by the respondent herein and that the said facts only came to his knowledge only when he received notice dated 29.06.2011. Further previous owner had not given any information about the sale deed executed by him in favour of the respondent herein and that the petition premise is not in a dilapidated condition and that he had not made any willful default in payment of rent. Infact said SP.V.Alagappa Chettiar went abroad and did not claim rent from the revision petitioner and hence the revision petitioner was not able to pay the rent, during relevant time 2001 to 2011.

4. The revision petitioner learned Rent Controller had allowed RCOP by fair and decretal order dated 11.03.2016. As against the same revision petitioner herein preferred RCA and the same was also dismissed by Fair and Decreetal order dated 21.04.2017. Hence this Revision Petition.

5. The learned counsel appearing on behalf of the revision petitioner would contend that the learned Rent Controller and Appellate authority erred in allowing the rent control application filed by the respondent herein and there by ordering eviction of the revision petitioner herein on the ground of willful default in payment of rent. The courts below ought to have seen that there is absolutely and admittedly no relationship of Landlord and tenant between the revision petitioner and the respondent herein. The courts below ought to have seen that in the absence of the said relationship of Landlord and Tenant, the rent control Petition is itself not maintainable. The courts below ought to have seen that Landlord is a person who receives the rent or who is entitled to receive the rent. The revision petitioner was tenant under one SP.V.Alagappa Chettiar, alleged vendor of Respondent herein. either by said SP.V.Alagappa Chettiar or the respondent herein put the Revision Petitioner on knowledge of them. The said facts only came to the knowledge of revision petitioner only when he received legal notice dated 29.06.2011. Therefore the Landlord Tenant relationship exists in the instant case only between the revision petitioner and said SP.V.Alagappa Chettiar. The courts below ought to have seen that in the present case said SP.V.Alagappa Chettiar went to abroad and he had not informed about the execution of sale deed in favour of respondent herein.

6. Further nobody had claimed rent from the revision petitioner and hence the revision petitioner was not able to remit the rent. In such a case question of willful default does not arise. The learned Rent controller having found that initially it is evident that the landlord tenant relation was existing only between the revision petitioner and SP.V.Alagappa Chettiar, had erred in allowing the application for eviction filed by the respondent herein as landlord. The courts below ought to have seen that the tenant is liable to be evicted on the ground of willful default in payment of rent only if the default is deliberate, conscious. If the tenant knowingly neglects to pay the rent even after a specific demand by the landlord, it may amount to willful default. Here the revision petitioner is not tenant under the respondent. Since said SP.V.Alagappa Chettiar went to abroad and he had not informed about the execution of sale deed in favour of respondent herein, and there was no claim of rent from the revision petitioner, therefore there is no a willful default. The courts below ought to have seen that the question as to who is entitled to receive the rent is itself raised before the rent control authority and in the said circumstances the same needs to be decided first. The courts below ought to have seen that respondent herein had not disclosed fact that till 2011, that he had purchased the petition premises from said SP.V.Alagappa Chettiar and that he is attorned with the tenancy and hence he steps into the place of original landlord and the petitioner was put to knowledge of all and that therefore he is not entitled to make any claim for rent from or to seek eviction of the tenant.

7. The Courts below ought to have seen that reasons stated by the respondent for reconstruction and demolition are not true. The Courts below failed to see that the age of the building is shown as 15 years in Ex-P6 sale deed. Further in the said sale deed it is mentioned that the building was constructed in the year 1986. From the said facts it is clear that the statement made by the respondent/petitioner that the age of building is 50 years is false. Further that PW1/respondent herein in his chief categorically stated that petition premise is required for his business. But plan approval obtained by the respondent herein is only for construction of house which is marked as Ex-P9. Further that the respondent herein purchased property from SP.V.Alagappan through registered sale deed dated 07.05.2001 which is marked as Ex-P6 and the same informed to the revision petitioner only after 10 years that too by way of notice. Delay for not claiming for past 10 years unexplained. The Courts below ought to have seen that “Bonafide” referred under section 10(3)(c) is not the very same bonafide referred under section 14(1)(b). Under section 10(3)(c), it is the bonafide of the landlord which has to be proved whereas under section 14(b), the bonafide is referable to the building. Consideration on bonafide on each ground has to be done independently and therefore, there cannot be any common consideration of bonafide for all the grounds and the same cannot go together.

8. The learned counsel placing reliance on Judgment reported in 2006 (3) CTC 147, Duraisamy and others V. R.Sureshlal and another, would contend that this Court held that both sections 10(3) and 14(1)(b) are mutually destructive and cannot go together. He would conclude that the Courts below ought to have seen that burden of proof is heavily upon the person who approaches the court. In the present case Petitioner/Respondent herein failed to discharge the same by adducing any sufficient evidence, is not entitled for any relief.

9. Per contra, the learned counsel appearing for the respondent landlord would contend that willful default in payment of rent was not only prior to filing of RCOP but after filing of RCOP also. RCOP was filed in February 2012. Prior to that notice was issued in June 2011. Petitioner tendered rent as a lump sum only in October 2012. Thereafter also payments were made in lumpsum. Prior to that from 2001 to 2011 he did not make payment of any rent. Therefore there is willful default which has been established. He would further contend a mere reading of the advocate commissioner?s report would explicate the fact that the petitioner premise require demolition and reconstruction. He would further contend that landlord?s son is doing jewel business and therefore the petition premise is required for his occupation. He would further contend that as against the concurrent finding of facts by both the courts scope of this court under revision is very much limited.

10. I heard Mr.V.R.Shanmuganathan, learned counsel for the petitioner and Mr.S.J.Chakkaravarthy, learned counsel for the respondent and perused the entire materials available on record.

11. It is a case where no rent was paid from 2001 to 2011. The tenant / revision petitioner contends that his erstwhile owner was abroad and therefore he did not make payment. The same is not only unbelievable but against the settled principles of law that it is the duty of the tenant to make payment of rent. No evidence is adduced to show what steps the petitioner/tenant took to make payment of rent for a period of 10 years. Therefore he have had knowledge of the transfer of property. That is the reason why he had kept quiet all along. Simply because the respondent kept quite for these years is no ground for the tenant to keep quite without payment of rent. Either he should have taken steps to pay rent to the erstwhile owner or to find out the new owner or in case of any doubt, take out an appropriate application before the court and deposit the same. As rightly contended by the counsel for the respondent the willful default is there even after the knowledge of such purchase. RCOP was filed in February 2012. Prior to that notice was issued in June 2011. Petitioner tendered rent as a lump sum only in October 2012. Thereafter also payments were made in lumpsum. Prior to that from 2001 to 2011 he did not make payment of any rent. Thus the petitioner, in the considered opinion of the court has committed willful default. In so far as other ground that the petition premise is required for demolition and reconstruction is concerned, Exs.-C1 and C2 makes it clear that the petition premise is in dilapidated condition and is totally damaged and requires reconstruction. Therefore eviction needs to be ordered on that score also. Regarding own use, it is the case of the landlord that he requires the petition premise for his son to run a jewel shop. There is no contra evidence on the side of the revision to disprove the same or to doubt the bonafides of the petition

Please Login To View The Full Judgment!

er. On the other hand fact remains that the petitioner / tenant is not running any jewel shop in the petition premises stands proved by the evidence on record. Therefore, the petitioners needs to be vacated from the petition premises on all grounds sought for, for eviction. Both the courts have concurrently found on facts that the petitioner is liable to be vacated. Exercising revisional jurisdiction, this court finds no infirmity or perversity in the order of the courts below. Therefore civil revision fails. 12. In the result: (a) this Civil Revision Petition is dismissed and the fair and decreetal order dated 21.04.2017 in R.C.A.No.8 of 2016, on the file of the learned Rent Control Appellate Authority/Subordinate Judge, Devakottai, confirming the fair and decreetal order dated 11.03.2016 in R.C.O.P.No.11 of 2012, on the file of the learned Rent Controller and Principal District Munsif Cum Judicial Magistrate, Karaikudi, hereby stand confirmed; (b) the revision petitioner/tenant shall vacate the petition premises in one month from the date of this order and hand over vacant possession to the respondent/landlord. (c) Consequently, connected miscellaneous petition is closed. No costs.
O R