The petitioner/appellant/respondent has projected this Civil Revision Petition as against the order dated 23.07.2006 in R.C.A.No.877 of 2006 passed by the learned Rent Controller viz., VIII Small Causes Court, Chennai confirming the order dated 12.07.2006 in RCOP No.1434 of 2005.
2. The respondents/respondents/petitioners have filed RCOP No.1434 of 2005 on the file of the learned Rent Controller viz., XV Small Causes Court, Chennai under Section 10(2)(i) of Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 praying for the relief of ordering eviction against the revision petitioner/tenant in directing him to vacate and deliver vacant possession of portion measuring 100 sq.ft. in ground floor shop in the premises Old No.12, New No.23, B.C. Press Road, Royapuram, Chennai 13 and to put the landlords in the possession.
3. The revision petitioner/respondent/tenant has filed a detailed counter affidavit before the learned Rent Controller viz., XV Small Causes Court in the RCOP proceedings. The learned Rent Controller viz., XV Small Causes Court, Chennai, on an appreciation of oral and documentary evidence and upon perusing the available materials on record, has come to the conclusion that the revision petitioner/tenant has committed wilful default in payment of rent and allowed the petition and granted two months time to the revision petitioner/tenant to vacate the property portion occupied by him in the petition mentioned.
4. Being dissatisfied with the orders passed by the learned Rent Controller viz., XV Small Causes Court, Chennai in RCOP.No.1435 of 2005 dated 12.07.2006, the revision petitioner/tenant as appellant has the filed Rent Control Appeal No.877 of 2006 before the learned Appellate Authority viz., VIII Small Causes Court, Chennai.
5. The Appellate Authority, after hearing the contentions advanced on both sides in R.C.A.No.877 of 2006 dated 23.07.2009, has passed orders in dismissing the R.C.A.No.877 of 2006 filed by the revision petitioner/tenant with costs and confirmed the order of the learned Rent Controller viz., XV Small Causes Court, Chennai passed in RCOP.No.1435 of 2005 dated 12.07.2006.
6. Thereupon the revision petitioner/appellant/respondent/tenant has approached this Court in revision as an aggrieved person as against the orders passed by the learned Appellate Authority viz., VIII Small Causes Court, Chennai in R.C.A.No.877 of 2006 dated 23.07.2009.
7. The learned counsel for the revision petitioner/tenant urges before this Court both the learned Rent Controller as well as the learned Appellate Authority have passed orders contrary to law and while ordering eviction, both the Authorities have committed an error, which is wholly perverse and therefore, it is liable to be set aside by this Court sitting in revision and further the revision petitioner / tenant has not been informed of the execution of the sale deed in favour of the respondents/landlords and these aspects of the matter have not been appreciated by both the Authorities and on this score alone, the Rent Control petition is liable to be dismissed. Moreover, the revision petitioner/ tenant has already deposited a sum of Rs.9350/- as dues before the Small Causes Court, Chennai in R.C.A.No.877 of 2006 in M.P.No.706 of 2006 and Ex.R1 and R2 clearly establish that the revision petitioner/ tenant has not committed any default in payment of rent and apart from the above, from the date of Ex.P3 notice dated 17.06.2005 by means of the ingredients of the Rent Control Act and Judgment of the Hon'ble Supreme Court holding that once the notice has been issued, the landlord will have to wait for a statutory period of two months and contrary to these ingredients of the Section 10(2) explanation of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 the respondents/landlords have filed RCOP.No.1434 of 2005 within one month time, which is invalid and illegal one and therefore, the RCOP petition ought to be dismissed in law and added further, the fact that there is no relationship existing between revision petitioner and the respondents/landlords has not been taken note of by both the Authorities and the land belongs to the temple and the revision petitioner/tenant has been a tenant under the erstwhile landlord and in any event, the Authorities should have seen that though the revision petitioner/tenant has committed a default the same is not a wilful one, inasmuch as the revision petitioner/tenant has no knowledge of the execution of the sale deed etc. and therefore, prays for allowing the Civil Revision Petition in furtherance of substantial cause of justice.
8. This Court heard the learned counsel appearing for the parties on either side and noticed their contentions.
9. Before the learned Rent Controller, the respondents/landlords have averred in RCOP.No.1434 of 2005 proceedings initiated under Section 10(2)(i) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 to the effect that the revision petitioner/tenant has been a tenant earlier under Mrs.Kathira in respect of a portion in the premises No.12, B.C. Press Road, Royapuram, Chennai-13 on a monthly rent of Rs.300/- and the tenancy being month to month according to English Calendar and subsequent to the purchase of the building by the respondents/ landlords despite the revision petitioner/tenant being informed to pay the rent instead of he has failed to pay the rent etc.
10. Also it is the contention of the respondents/landlords that they have issued a lawyer notice Ex.P3 dated 17.06.2005 calling upon the revision petitioner to hand over vacant possession of the portion occupied by her and also to pay the arrears of rent Rs.6460/- within one week from the date of receipt of the notice and further that the revision petitioner/tenant has received the said notice on 21.06.2005 and failed to send a reply.
11. The substratum of the plea of the respondents/landlords is to the effect that the revision petitioner/tenant has failed and neglected to pay the monthly rents from 06.02.2002 till date of the filing of the RCOP petition i.e. on 11.07.2005 and the arrears comes to Rs.6,460/- and in spite of repeated demands and in spite of notice being issued to the revision petitioner/tenant, the same has not been paid and therefore, the revision petitioner/tenant has committed wilful default by showing his supine indifference in regard to the payment of monthly rent and therefore, the respondents/landlords are entitled to seek the relief of eviction being ordered against the revision petitioner/tenant directing him to vacate and deliver the vacant possession of portion measuring 100 Sq.ft in ground floor shop in the petition mentioned premises.
12. Contending contra, the learned counsel for the revision petitioner/tenant submits that the land belongs to Arulmegu Kalikambal Kamadeswarar Devasthanam and the superstructure in the land belongs to Mr.L.A.Gani Mohammed and subsequent to his death his wife Mrs.Kathira is the absolute owner of the superstructure of the property inherited by way of succession and that the revision petitioner is running a shop in a portion situated in door No.23/12 (Old No.12) Bruton Cotton Press Road (B.C.P. Road), Royapuram, Chennai - 600 013, for the past 40 years continuously without interruption and that he has entered as a tenant under Mrs.M.S.Kathira during the year 1961 in the aforesaid portion on a monthly rent of Rs.23/- and subsequently the same has enhanced to Rs.23/-, Rs.27/-, Rs.35/-, Rs.65/-, and Rs.80/-, Rs.130/- and Rs.170/- and that the revision petitioner has been paying rent to his landlady Mrs.M.S.Kathira regularly without arrears. Moreover, the plea of the revision petitioner/tenant is that he has filed a suit in O.S.No.1446 of 2002 for the relief of Permanent Injunction on the file of learned VIII Assistant Judge, City Civil Court, Chennai praying for the relief of permanent injunction and that an interim injunction has also been granted in the said suit and thereafter, he has tendered the monthly rent of Rs.170/- for the month of February 2002 to his landlady but the same has been refused and that he has sent the letter to landlord to inform the particulars of the Bank where she is having account which will enable him to deposit his rent in the said account and since there is no reply from his landlord he has been sending the monthly rent regularly to her and the same has not been received by her and it has returned.
13. In the counter filed to the RCOP proceedings, the revision petitioner/tenant has stated that he has come to know from the written statement filed by his landlords stating that the property has been sold to them etc. and from the Legal Notice dated 17.06.2005 issued by the respondents/landlords to him it has been mentioned that the monthly rent is only Rs.170/- per month to his shop and therefore, the contentions of the respondents/landlords as if monthly rent to his shop is Rs.300/- has been arrived without any basis and he has given a reply notice dated 24.06.2005 to the landlords to their Legal Notice Ex.P3 dated 17.06.2005 and he has taken all the steps to pay the rent as stated supra and he has not a wilful defaulter in regard to payment of monthly rent.
14. Ex.P-1 is the Xerox copy of the Power of Attorney dated 22.10.2002 issued in favour of P.Manoharan by the second and third respondents/petitioners/landlords. By virtue of this power deed, the agent/first respondent has been appointed by the second and third respondents to manage the schedule property of the power deed, to let out for rent, collection of rent and also in case if the tenants if they failed to pay rent evict them and also to initiate proceedings under the Rent Control Act as per law etc.
15. Ex.P-2 is the letter dated 20.02.2002 issued by the second respondent/power agent of R-2 and R-3 and in favour of the revision petitioner/tenant by pointing out that the revision petitioner is a tenant in respect of a waste paper shop in the premises on a monthly rent of Rs.170/- and that he has not paid any advance that the tenancy is attorned in respect of the portion occupied him and he has been directed to pay the rent with effect from 06.02.2002 directly to the respondents/landlords.
16. Ex.P-3 is the Lawyers' Notice dated 17.06.2005 addressed to the revision petitioner/tenant informing the revision petitioner that he has not paid the rent despite knowing the fact that the respondents/landlords purchased the property and they are the landlords and in spite of repeated demands, the revision petitioner has not paid the rent committed and wilful default and consequently the petitioner has been called upon to hand over the vacant possession of the portion in his occupation is and to pay arrears of rent of Rs.6460/- within two weeks from the date of receipt of the notice etc.
17. Ex.P-7 is the reply notice issued by the revision petitioner/tenant's lawyer addressed to the respondents/ landlords' lawyer inter alia stating that the revision petitioner has filed a suit in O.S.No.1446 of 2002 before the learned VIII Assistant Judge, City Civil Court, Chennai and that an interim injunction has been granted against the landlords etc. and bonafidely the revision petitioner has sent monthly rent of Rs.170/- for his shop regularly from February 2002 to till date through money order in the name of Mrs. M.S.Kathira and the same has been returned by the erstwhile landlady and the contention of the respondents/landlords that the revision petitioner is a defaulter in regard to the payment of monthly rent is incorrect and specifically has been developed for the purpose of the case etc. Ex.R-2 is the revision petitioner/tenant's lawyer's notice copy addressed to the respondents/landlords' Advocate.
18. It is useful to refer to the evidence of first respondent/PW1 which is to the effect that the revision petitioner/tenant has been informed about the purchase of the property by the respondents/landlords as per Ex.P2 and from the date of sale of the petition mentioned property dated 06.02.2002 the revision petitioner/tenant has not paid the rent and for Ex.P2 letter no reply has been sent by the revision petitioner/tenant and again the Ex.P3 notice has been issued by the landlords to the revision petitioner/tenant and that in Ex.P7 the Lawyer's Notice of the revision petitioner/tenant the tenant has informed that the rent from February 2002 has been paid to the erstwhile landlady Mrs.M.S.Kathira and that Ex.P8 is the Xerox copy of the sale deed which indicates that the respondents have purchased the petition mentioned property from one Mrs.Naggima Rafia.
19. The revision petitioner/tenant as RW1 before the learned Rent Controller has deposed that he has come as tenant under Mrs.M.s.Kathira and that he has come as tenant in the petition mentioned property from the year 1961 and that he has been a tenant from his father's died and originally he has paid monthly rent of Rs.23/- to the petition mentioned property and after periodical increase he has been paying a rent of Rs.170/- per month and that he has been paying the said monthly rent of Rs.170/- to Mrs.M.S.Kathira and while has been tendering the monthly rent to the said Mrs.M.s.Kathira, she has refused to receive the rent in the meanwhile and that she has informed him that she is to sell the petition mentioned property to different person and that he has informed her that she will purchase the petition mentioned property but he has come to know that she has sold the petition mentioned property to another individual and from February 2002 till date he has been paying the monthly rent through money order and later he has been sending the rent through money order and Ex.R-1 series is the document to show that he has sent the rent through money order and Ex.R-2 is the reply notice through his counsel dated 24.06.2005 to the landlords advocate.
20. In the present case, it is the categorical evidence of the revision petitioner/RW1/tenant that while he has been tendering rent regularly to his landlord Mrs.M.S.kathira during interregnum she has refused to receive monthly rent and also informed that she is going to sell the petition mentioned property to another individual and that he has told him that he will purchase the property but presently he has come to know that the property has been sold to a different person etc. Therefore, according to the version of the RW1, he has come to know that the petition mentioned property has been sold to another person atleast on 01.03.2006 when he has tendered evidence before the learned Rent Controller.
21. At this juncture, the learned counsel for the revision petitioner/tenant vehemently contends that the RCOP petition No.1434 of 2005 has been filed by the respondents/landlords before the learned Rent Controller on 12.07.2006 and that Ex.P3-lawyer's notice issued on the side of respondents/landlords to the revision petitioner/tenant is dated 17.06.2005 and therefore, it is candidly clear that the respondents/landlords have initiated the RCOP petition within one month from the date of Ex.P3 dated 17.06.2005 and the same is not per se maintainable in law and the same is contrary to the explanation to Section 10(2) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 . In this connection, this court aptly quotes Section 10(2) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 which runs as follows:-
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied-
(i) that the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable, or
(ii) that the tenant has after the 23rd October, 1945 without the written consent of the landlord-
(a) transferred his right under the lease or sub-let the entire building or any portion thereof if the lease does not confer on him any right do do so, or
(b) used the building for a purpose other than that for which it was leased, or
(iii) that the tenant has committed or caused to be committed such acts of waste as are likely to impair materially the value of utility of the building, or
(iv) that the tenant has been convicted under any law for the time being in force of an offence of using the building or allowing the building to be used for immoral or illegal purposes, or
(v) that the tenant has been guilty of such acts and conduct which are a nuisance to the occupiers of other portions in the same building or of buildings in the neighborhood, or
(vi) that where the building is situated in a place other than a hill-station, the tenant has ceased to occupy the building for a continuos period of four months without reasonable cause, or
(vii) that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bona fide, the Controller shall make an order directing the tenant to put the land lord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application:
Provided that in any case falling under clause (i) if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may, notwithstanding anything contained in Section 11, give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him to the landlord upto the date of such payment or tender and on such payment or tender, the application shall be rejected.
[Explanation.- For the purpose of this sub-section, default to pay or tender rent shall be construed as wilful, if the default by the tenant in the payment or tender of rent continues after the issue of two months notice by the landlord claiming the rent].
22. Expatiating his submissions, the learned counsel for the revision petitioner/tenant cites the decision of this Court in T.K.Sundaram vs. V.Balraj, C.R.P.No.43 of 1982, dated 30.06.1982, T.N.L.J at Page No.297 wherein it is held that 'Section 144 of the Civil Procedure Code is applicable to the Rent Control Proceedings and since in the instant case, delivery has been ordered in EP proceedings, the revision petitioner is not estopped from seeking restitution and redelivery of possession occupied by him in respect of the petition mentioned property.'
23. He also seeks in aid of the decision of the Hon'ble Apex Court in The State of Rajastan v. Kalyan Singh (Hegde.J) in AIR 1971 Supreme Court 2018 (V 58 C 416) whereby and where-under it is observed that 'the plea of non-maintainability of suit is a legal plea and can be accepted although no specific plea was taken or precise issue framed.'
24. He relies on the decision of Hon'ble Supreme Court in PM.PUNNOSE VS. K.M.MUNNERUDDIN AND OTHERS reported in (2003) 10 Supreme Court Cases 610 wherein the Hon'ble Supreme Court has observed that 'the wilful default can be presumed only after the expiry of two months statutory period following notice by the landlord and after the expiry of the stipulated period onus lies on the tenant to satisfy the Controller that default was the result of the circumstances beyond his control but where no notice of demand is served by the landlord, the burden of proving wilful default is on him, failing which, the Controller can in exercise of power under the proviso give time not exceeding 15 days to the tenant to tender the rent due etc.'
25. Also on the side of the revision petitioner, he draws the attention of this Court in RAJA MUTHUKONE (DEAD) BY LRS VS. T.GOPALASAMI AND ANOTHER reported in (2002) 4 Supreme Court Cases 204 wherein it is observed as follows:
"According to the provisions of Section 10(2)(i) and explanation of the T.N.Buildings (Lease and Rent Control) Act, 1960, once the landlord gave notice to the tenant claiming the rent in arrears, he should have waited for a period of two months from the date of service of notice and it is only of non-payment or non-tender of rent within the period of two months that the landlord could have initiated the proceedings for eviction on the ground of wilful default and then it would have been for the tenant to satisfy the Rent Controller that in spite of non-payment of rent for a period of two months from the date of service of notice, he was not a defaulter for some reason. In the present case, there is an additional fact that before the initiation of the proceedings for eviction, the factum of the tenant having deposited the rent in the Court, though in the proceedings which had stood terminated, was brought to the notice of the landlord and the landlord having initiated the proceedings for eviction withdrew the amount of rent and on the date when he sought for withdrawal, a period of two months from the date of notice had not expired. In such circumstances, in view of the law laid down in the case of S.Sundaram Pillai the tenant cannot be held to be a wilful defaulter."
26. It is to be noted that it is not necessary for the landlords to issue a notice to be sent to the tenant giving him two months clear time before eviction can be sought for on the basis of wilful default in the considered opinion of this Court. Added further, if a tenant does not pay rent at all for a considerable period of time and if a rent control original petition is filed for an order of eviction on the ground that the tenant has committed default without issuance of a notice, then in the absence of convincing explanation by the tenant, the default ought to be construed as wilful as opined by this Court. Indeed, the explanation to Section 10(2)(i) of the Act does not envisage that before a default to be construed as wilful two months notice shall be given.
27. If the arrears of rent is tendered after expiration of two months, the tenant is not entitled to seek possession. To put it preciously even in the absence of notice as visualised by explanation given to the tenant, the Court can examine the issue of wilful default independently and in such a case the explanation to Section 10(2) of the Tamil Nadu Building (Lease & Rent Control) Act 1960 has no application whatsoever.
28. Though the respondents/landlord issued Ex.P2 Notice dated 22.02.2002 to the respondent/tenant intimating him that the tenancy has been attorned in respect of the portion occupied by him and pay the rent with effect from 06.02.2002 directly to the landlords, the said Ex.P2 letter receipt is denied on the side of the revision petitioner/tenant and on the side of revision petitioner/tenant reliance is placed on Ex.P3 notice dated 17.06.2005 issued by the landlords lawyer addressed to the revision petitioner/tenant requiring the revision petitioner to hand over vacant possession of portion under his occupation and also to pay the arrears of rent of Rs.6460/- within one week from the date of receipt of the notice. Also that the revision petitioner/Tenant has not made any earnest endeavour to deposit the arrears of rent before the learned Rent Controller.
29. Significantly, it is relevant for this Court to point out that in Ex.P2 notice dated 20.02.2002 addressed to the revision petitioner/tenant by the first respondent/landlords the revision petitioner/tenant has been informed that the respondents/landlords have purchased the property of house and premises wherein Old No.12, New No.23, B.C.Press Road, Royapuram, Chennai 13 from the owners thereof duly registered as per sale deed dated 06.02.2002.
30. As far as the present case is concerned, if the respondents/landlords have not issued Ex.P-2 notice dated 20.02.2002 intimating the revision petitioner/tenant that they have purchased the petition mentioned property then the revision petitioner/tenant will have a good and sufficient cause to project a plea that as per the Ex.P3 notice dated 17.06.2005 the petitioner filed the RCOP petition filed on 12.07.2005 is not legally maintainable since the same is in violation of Section 10(2) of the Act. But on the side of the respondents/landlords before the learned Rent Controller, they have marked Ex.P2 notice dated 20.02.2002 clearly mentioning that they have purchased petition mentioned property from the erstwhile owner through registered sale deed Ex.P8 dated 06.02.2002 and since the registration of an immovable property more than Rs.100/- amounts to constructive notice in law. As such, this Court accepts the issuance of Ex.P-2 letter/Notice dated 22.02.2002 addressed to the revision petitioner/tenant and the contra plea taken by the revision petitioner is untenable and not accepted by this Court. Moreover, the petition mentioned property which has been sold out by the erstwhile landlady by means of a registered sale deed dated 06.02.2002 which amounts to notice much less a constructive notice in the eye of law. Resultantly, this court holds that the revision petitioner/tenant has been informed by virtue of Ex.P2 letter dated 22.02.2002 that the respondents/landlords have purchased the property as early as on 06.02.2002 through registered sale deed viz., Ex.P8. Consequently, the reliance placed on to Ex.P3 notice dated 17.06.2005 and further the learned counsel for the revision petitioner/tenants' contention that the RCOP No.1434 of 2005 has been filed on 12.07.2005, within one month from Ex.P3 notice dated 17.06.2005 is not accepted by this Court since the same is contrary to the fact and is opposed to the available material evidence on record which float on the surface.
31. Coming to the aspect of wilful default through Ex.R-1 and R-2, it is seen that the rent has been sent to Mrs.M.S. Kathira and M.S.Shiek Samsudeen erstwhile owners have refused and notwithstanding the fact that Ex.P-2 has been issued to the revision petitioner/tenant, in Ex.P1 and P2 the revision petitioner/tenant, has not paid the monthly rent to landlords and when the property has been sold and purchased as per Ex.P3 by means of registered sale deed on 06.02.2002 by the respondents/landlords from the erstwhile owners and especially when Ex.P2 clearly shows that the respondents/landlords have purchased the petition mentioned building from the erstwhile owner it is the pre mordial duty of the revision petitioner/tenant to pay monthly rent to the respondents/landlords in the present case on hand, the revision petitioner/tenant has not adopted or resorted to such recourse and consequently, the failure on the part of the revision petitioner/tenant to pay the monthly rent periodically to the respondent/landlords, is a clear case of wilful default in regard to the payment of rent for the period from 06.02.2002 till date of filing of the application and therefore, the eviction ordered by the learned Rent Controller as well as the learned Appellate Authority are perfectly valid in law and the order so passed by them looking at any point of view do not suffer from serious infirmity or patent illegality in the eye of law and resultantly, the revision petition fails.
32. In the result, the revision petition is dismissed. The order passed by the learned Appellate Authority in R.C.No.877 of 2006, dated 23.07.2006 and the order passed in R.C.O.P.No.1434 of 2005 dated 12.07.2006 by the learned Rent Controller viz., XV Small Causes Court, is affirmed by this Court for the reasons assigned in this revision. Consequently, connected Miscellaneous Petition is closed. Considering the facts and circumstances of the case, the parties are directed to bear their own costs in the revision.
23.11.2009 Index : Yes/No Internet : Yes/No rns To
1.VIII Small Causes Court, Chennai
2.XV Small Causes Court M. VENUGOPAL, J r n s C.R.P. (NPD) No.3206 of 2009 and M.P.No.1 of 2009 23.11.2009