CRP/1429/2000 of SHARBUDIN & OTHERS Vs K.SUBRAMANI on 31 December 2003

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This Civil Revision Petition is directed against the judgement anddecree dated 7.10.1999 rendered in R.C.A.No.3 of 1994 by the Court of thePrincipal Subordinate Judge, Trichy thereby setting aside the fair anddecreral order dated 30.11.1993 rendered in R.C.O.P.No.168 of 1986 by theCourt of the Rent Controller (II Additional District Judge), Trichy.2. Tracing the history of the above civil revision petition havingcome to be filed, it comes to be known that the petitioners/landlords hereinhave filed R.C.O.P.No.168 of 1986 before the Court Rent Controller (IIAdditional District Judge),Trichy for eviction on the ground of wilful defaultin payment of rent and also for owner's occupation and the above RCOP wasallowed, further granting two months time was for eviction. Aggrieved by thesaid order of eviction, the respondent-tenant preferred an appeal inR.C.A.No.3 of 1994 on the file of the Court of Principal Subordinate Judge,Trichy praying to set aside the order of eviction and the learned AppellateAuthority( Principal Subordinate Judge)Trichy allowed the appeal setting asidethe order of eviction and dismissing the eviction petition with costs.Aggrieved by the same, the petitioners/landlords have come forward to file theabove civil revision petition on certain grounds as brought forth in thegrounds of revision such as that the learned appellate authority had failed toappreciate that there is no proof that the tenant had paid the rents from December, 1984 and the finding of the court below that the issuance of legalnotice and money order would establish that there is no default is perverse;that the court below should have seen that the refused money order despatchedby the tenant is for the period from July, 1985 onwards; that it is not opento the tenant to despatch the rent for any particular month; that the learnedJudge should have seen that the allegation made in Exs.B6 and B7 are grosslyirregular and unjustifiable; that the lower appellate court should have seenthat the judgement in 1997 II Law Weekly 181 would have no application to thefacts of the case; that the learned Judge should have seen that the documentunder Ex.B6 had not been proved; that the conclusion of the learned AppellateAuthority that the landlord is having excess amounts is not substantiated andin any event deserves to be rejected. Hence, the present civil revisionpetition.

3. During arguments, the learned counsel appearing on behalf of the the petitioners besides tracing the facts and circumstances of the case as tohow the present petitioners/landlords initiated the rent control proceedingbefore the Rent Controller on grounds of default in payment of the monthlyrent and for owner's occupation and how the Rent Controller decided it infavour of the landlords thereby allowing the petition and directing the tenantto vacate the premises and hand over vacant possession and that the appellateauthority on appeal allowed the same on both grounds as a result of which thelandlords have come forward to file the above Civil Revision Petition. Tosubstantiate his case, the learned counsel would also cite a judgementreported in 1999(I) CTC 221 (T. EASWARA RAO VS. N.E. ANSARI (DECD) AND SIXOTHERS) and would pray to allow the above Civil Revision Petition.4. In reply, the learned counsel appearing on behalf of therespondent/tenant besides factually dealing with the subject would cite ajudgement reported in 1996(II) CTC 78 (K. NARASIMHARAO VS. T.M. NASIMUDDINAHMED) and would ultimately pray to dismiss the above Civil Revision Petition.

5. In consideration of the facts pleaded, having regard to the materials placed on record particularly the fair and decretal order of theRent Controller and the Judgment and decree of the Appellate Authority andupon hearing the learned counsel for both what could be assessed from theabove facts is that it is a Rent Control proceeding initiated by thelandlords/petitioners herein seeking eviction of the tenant on grounds ofwilful default in payment of monthly rent and requiring the premises forowner's occupation and the Rent Controller (II Additional District Munsif)Tiruchirapalli, having regard to the facts and circumstances of the case haspermitted the parties to record their evidence during which on the part of thepetitioners/landlords they have examined one witness as P.W.1 who is the thirdparty as the sole witness and on the part of the respondent/tenant he hasexamined himself as R.W.1.

6. So far as the documentary evidence is concerned, two documents have been marked on the part of the petitioners/landlords as Exs.A1 and A2,Ex.A1 dated 11.12.1985 being the legal notice issued to the respondent, Ex.A2dated 16.12.1985 being the reply for Ex.A1. On the part of therespondent/tenant 20 documents would be marked as Exs.B1 to B20, Ex.B1 is thenote-book having entries towards the payment of rent, Ex.B2 is the unservedpostal cover, Ex.B3 dated 24.8.1985 is the letter sent to the first petitioner by the respondent, Ex.B4 is the Savings Pass-book, Exs.B5 and B6 respectivelyare the legal notice and the reply, which have already been marked as Exs.A1and A2, Ex.B7 dated 19.12.1985 is the Money Order coupon, Exs.B8 to B11 arethe returned Money Order forms, Ex.B12 dated 7.11.1985 is the receipt forhaving paid a sum of Rs.180/- in the Bank, Exs.B13 to 18 are the receipts forhaving paid the different amounts on different dates, Exs.B19 and B20 are theRental Value Certificates issued by the Trichy Municipality. Having regard toall these evidence placed on record the Rent Controller having found that fromDecember 1984 to June 1986 the respondent/tenant did not file any document forhaving paid the rent and therefore, without agreeing that he was not inarrears of the monthly rent to the landlords, would give effect to theevidence of P.W.1 deposing to the effect that he was running a mutton stall ina Municipal premises and now for the sale of leather he requires the premises,but no proof has been submitted in confirmation of his claim which accordingto the Rent Controller was not necessary and that even though on the part ofthe respondent it has been contended that the petitioners/landlords have otherproperties in Trichy Town, no proof has been submitted on the part of thetenant to that effect and therefore, on these grounds it would order evictionof the tenant, thus allowing the Rent Control Original Petition.

7. On the contrary the Appellate Authority not only having traced the facts and circumstances pleaded by the parties, but also framing three pointsfor proper consideration of the case and having regard to the evidence placedon record, further having its own discussions would ultimately find that theappellant/tenant before him had not been in arrears of rent nor had thelandlords on their part proved to the effect that they really required thepremises for their personal use and occupation and these aspects having notbeen properly established on the part of the landlords and further findingthat the tenant had been regular in his payment of monthly rents either makinghonest attempts to pay rents or deposit the same in the manner required underlaw and further having placed on record the documents by means of Ex.B seriesto the said effect the Appellate Authority found that the

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respondents/landlords before him did not prove on both grounds and therefore,he has arrived at the conclusion that the fair and decretal order passed bythe Rent Controller in favour of the respondents/ landlords therein wasinconsistent and not sustainable in law and on evidence and would ultimatelyallow the appeal preferred by the tenant, setting aside the fair and decretalorder passed by the Rent Controller and it is only aggrieved, against the saidjudgment and decree passed by the Appellate Authority the landlords have comeforward to file the above Civil Revision Petition.

8. The learned counsel for the Revision Petitioners would rely on ajudgment reported in 1999(I) CTC 221 (T. EASWARA RAO VS. N.E. ANSARI (DECD)AND SIX OTHERS), wherein a learned single Judge of this Court in another CivilRevision Petition has held "In the present case, after the purchase of thepremises by the respondent on 24.3.1986 he issued the notice under Ex.A-1dated 1.4.1986, asking the tenant to pay the rent. But, till 30.9.1987,admittedly, except for the six months, the tenant did not pay the rent tillthe date of filing of the R.C.O.P., and deposited the same on the date of thefirst hearing of the R.C.O.P. Moreover, the tenant in the R.C.O.P. has notgiven any valid explanation for non-payment of the said rent, except saying that he sent the rent by money order but it was refused. It is well settledthat merely an attempt to send the rent by money order and thereafter if therent kept quiet, it cannot be said that the tenant has not committed wilfuldefault in payment of rent. Admittedly, the tenant has not taken any st epsunder Section 8 of the Act. The authorities below have also taken intoconsideration of the explanation given by the landlord for refusing to receivethe rent sent by the tenant. In view of the above, the findings of theauthorities below holding that the tenant has committed wilful default inpayment of the rent cannot be interfered with."

So far as the above judgment is concerned adhering to the facts in thatparticular case wherein the tenant has not taken any step under Section 8 ofthe Act, but in the case in hand, this tenant has taken all steps necessary inthe circumstance of the case has been pointed out by the Appellate Authorityand therefore, this decision cited on the part of the learned counsel for theapplicant cannot be applied to the case in hand.

9. On the contrary, the learned counsel appearing on behalf of the respondent would cite a judgment reported in 1996(II) CTC 78 (K. NARASIMHARAOVS. T.M. NASIMUDDIN AHMED) wherein the learned Judges while appreciating theTamil Nadu Buildings (Lease and Rent Control)Act 1960 in a civil Appeal haveheld that "the landlord is not entitled to claim eviction of tenant on groundof wilful default when he was having excess amount of advance which thelandlord is bound to adjust towards the rent due from the tenant and in whichevent the tenant cannot be held to be a wilful defaulter in payment of rent".

10. Yet another judgment cited on the part of the learned counsel for

the respondent is of the Apex Court reported in 1998(I) CTC 729 ( Sree BalajiKrishna Hardware Stores v. Srinivasaiah) wherein it is held that "therequirement of the landlord was not bona fide since several other tenantedportions occupied by others for business purposes fell vacant during thependency of the proceedings and the landlord was not acting bona fide in notusing the same for the business of his son" .

11. Since both the above judgments cited on the part of the respondents would serve the purpose for both the grounds raised on the part ofthe landlords in the given case that is, the first one for wilful default andthe other one for owners occupation and in the case in hand since in spite ofthe attempt made on the part of the tenant to hand over the monthly rents, thelandlord evaded the responsibility, which is patently reveal in the case asper the evidence of P.W.1, further proving to the effect that the building wasfactually occupied by the tenant and that no proper evidence comes forth fromthe side of the landlords to the effect that they bona fide require thepremises for their personal use and occupation, as a result of which theAppellate Authority has found that the Rent Controller having committed graveerrors, has rightly set aside the order of the Rent Controller, allowing theappeal preferred by the tenant and therefore, the judgment and decree passedby the Appellate Authority does not require any interference by this Court andhence the following order:

(i) the above Civil Revision Petition is without merit and the same isdismissed as such;

(ii) the judgment and decree dated 7.10.1999 rendered in R.C.A.No.3 of1994 by the Court of the Principal Subordinate Judge, Trichy thereby settingaside the fair and decreral order dated 30.11.1993 rendered in R.C.O.P.No.168of 1986 by the Court of the Rent Controller ( II Additional District Judge),Trichy is confirmed;

(ii) there will be no order as to costs; Index:YesInternet:Yes gr.