This Civil Revision Petition has been filed against the fair and decretal order dated 13.11.2006 made in R.C.A.No.515 of 2000 on the file of the VII Judge, Court of Small Causes, Chennai (Learned Rent Control Appellate Authority) reversing the fair and decretal order dated 28.06.2000 made in R.C.O.P.No.2906 of 1997, on the file of the XVI Judge, Court of Small Causes, Chennai (Learned Rent Controller).
2. The deceased first petitioner is a landlady/petitioner and first respondent is the tenant/respondent in R.C.O.P.No.2906 of 1997 on the file of the XVI Judge, Court of Small Causes, Chennai and first respondent and appellant respectively in R.C.A.No.515 of 2000 on the file of VII Judge, Court of Small Causes, Chennai. During pendency of Civil Revision Petition, the first petitioner died. The second petitioner and the daughters of deceased first petitioner were brought on record as second petitioner and respondents 10 and 11 as per the order dated 31.10.2011 made in M.P.Nos. 1 to 4 of 2009 in the above Civil Revision Petition. The first respondent is the tenant and respondents 2 to 9 are the sisters and brothers of the first petitioner. The deceased first petitioner filed R.C.O.P.No.2906 of 1997 against the first respondent for eviction on the ground of wilful default and additional accommodation. According to the deceased first petitioner, in the entire property, the first respondent is tenant in a portion of the said building and is carrying on business in the name and style "Sri Madurai Muniyandi Vilas" belonged to her father. First respondent became the tenant under his father K.Duraisamy Naicker on a monthly rent of Rs.450/- per month. The first respondent has committed wilful default and hence K.Duraisamy Naicker filed R.C.O.P.No.1368 of 1983 for eviction of the first respondent. By the order dated 30.01.1987, the eviction of the first respondent was ordered. The first respondent filed R.C.A.No.238 of 1987 and the said R.C.A was dismissed. The first respondent filed C.R.P.No.1173 of 1988. During the pendency of the said Civil Revision Petition, K.Duraisamy Naicker died. The first petitioner and the respondents 2 to 9 were brought on record as his legal representatives. There was a settlement among the first petitioner and respondents 2 to 9, whereby the entire building bearing Door No.53 Venkatakrishna Iyer Road, Mandaveli, Madras 600 028 had been allotted to the share of the first petitioner. On such allotment, the first petitioner and first respondent entered into a fresh agreement of tenancy and first respondent agreed to pay Rs.750/- per month as rent and paid a sum of Rs.5,000/- as advance. In view of the said fresh agreement, the first petitioner and first respondent entered into a compromise and first respondent withdrew the C.R.P.No.1173 of 1988 and by the order dated 12.09.1994, this Court dismissed the Civil Revision Petition as not pressed. The first respondent sent the rent for the months of June, July and August, 1994 by separate money order at the rate of Rs.750/- per month and failed to pay the rent from September 1994 to October 1997 for 37 months, despite several demands made by the petitioners 1 and 2. The first respondent failed to pay the rent which is deliberate and supine indifference in payment of rent. The non payment of rent is wilful. Even after adjustment of advance of Rs.5000/-, there is wilful default from 01.03.1995 to 31.10.1997 for 32 months, totalling Rs.24,250/-. The second petitioner is residing with the first petitioner and the portion under their occupation is not sufficient for them. The respondents 10 and 11, who are the daughters of the first petitioner also visited the first petitioner often. The second petitioner is doing an artistic work, painting work and he is a decorator. On account of limited accommodation, he is unable to carry out the order he has received from companies. The first petitioner bonafide requires the portion under occupation of the first respondent as additional accommodation. On these averments, the first petitioner filed the above R.C.O.P for eviction against the first respondent.
3. The first respondent filed counter statement and submitted that he has not committed any default much less wilful default. He denied family arrangement and that the petition property was allotted to the share of first petitioner. By mistake, first respondent entered into an agreement with first petitioner and first petitioner made false promises and failed to adhere to the same. The first respondent has already filed petition to deposit the rent under Section 9 (3) of Tamilnadu Building (Lease and Rent) Control Act, 1960 (herein after referred to as 'the Act') and the same is pending before the VII Small Causes Court. There is a dispute between the first petitioner and respondents 2 to 9 that the respondents 2 to 9 have objected to pay the rent to the first petitioner. The first respondent is depositing the rent in a separate account in a scheduled bank. The first respondent has not committed any wilful default and there is no supine indifference in payment of rent. The second petitioner is not residing with first petitioner and disputed the fact that the petition premises is required for additional accommodation. The relative hardship caused to the first respondent is more than the hardship caused to the first petitioner and requirement of first petitioner is not bonafide.
4. Before the learned Rent Controller, the first petitioner was examined as PW1 and 3 documents were marked as Exs.P1 to P3. The first respondent examined himself as RW1 and fifth respondent as RW2 and 5 documents were marked as Exs.R1 to R5.
5. The learned Rent Controller, considering the pleadings oral and documentary evidence, held that the first respondent has committed wilful default and requirement of the first petitioner is bonafide and ordered eviction on both the grounds.
6. Against the said order dated 28.06.2000 made in R.C.O.P.no.2906 of 1997, the first respondent filed R.C.A.No.515 of 2000 on the file of the VII Judge, Court of Small Causes, Chennai. In the R.C.A, first respondent impleaded respondents 2 to 9, who are the sisters and brothers of first petitioner as respondents 2 to 9 in R.C.A. Before the learned Appellate Authority, the first respondents marked additional documents as Exs.R6 to R8. The learned Appellate Authority held that there is dispute between the legal heirs of K.Duraisamy Naicker and first petitioner is not the sole owner of the petition premises, the first respondent is depositing the rent in a bank account and had deposited Rs.63,000/- into Court as per the order in M.P.No.547 of 2000 filed by the first petitioner in R.C.A and held that the respondents 2 to 9 have filed O.S.No.5834 of 2000 for partition against the first petitioner and a preliminary decree has also been passed; first petitioner failed to prove that the requirement of additional accommodation is bonafide. On these findings, the learned Appellate Authority allowed the R.C.A filed by the first respondent.
7. Against the said judgment and decree dated 13.11.2006, made in R.C.A.No.515 of 2000, reversing the fair and decretal order dated 28.06.2000 made in R.C.O.P.No.2906 of 1997, the present Civil Revision Petition is filed by the petitioner.
8. The learned Senior counsel appearing for the Second petitioner contended that the first respondent entered into rental agreement with first petitioner and based on the said rental agreement, he withdrew the C.R.P.No.1173 of 1988 filed by him against K.Duraisamy Naicker and respondents 2 to 9 were brought on record as legal heirs of deceased K.Duraisamy Naicker. The respondents 2 to 9 were aware of the rental agreement between the first petitioner and first respondent and they did not object to the same in the proceedings in the Civil Revision Petition, based on which the first respondent withdraw the Civil Revision Petition. The alleged letter dated 12.09.1994, said to have been sent by the respondents 2 to 9 to the first respondent is not sent on 12.09.1994, as the Civil Revision Petition itself was withdrawn on 12.09.1994. K.Duraisamy Naicker, the father of the first petitioner and respondents 2 to 9 had written to Tamil Nadu Slum Clearance Board to allot entire property to the first petitioner and Tamil Nadu Slum Clearance Board also agreed to the same. The first respondent without any reason, sent the rent for the months of June, July and August, 1994 and committed wilful default for subsequent months. The first respondent has not deposited Rs.750/- per month in the bank account but has deposited only Rs.450/- per month in the bank. The first respondent admitted first petitioner as landlady and entered into a rental agreement and it is not open to the first respondent to subsequently dispute the title of the first petitioner. The learned Appellate Authority failed to see that the respondents 2 to 9 have not taken any legal proceedings till 2000, when R.C.O.P was pending and subsequently was allowed by learned Rent Controller. No document was produced before the learned Rent Controller as well as before the Appellate Authority with regard to the partition suit initiated by the respondents 2 to 9. The Appellate Authority without any material produced before him has erroneously concluded that the respondents 2 to 9 had filed O.S.No.5834 of 2000 for partition against the first petitioner. The learned Appellate Authority has not properly appreciated the facts that the first respondent deposited a sum of Rs.63,000/-, only after being directed to deposit the same as per the order passed in M.P.No.547 of 2000 filed by the first petitioner in R.C.A under Section 11 (4) of the Act. The learned Appellate Authority failed to see that even though the first respondent was directed to deposit the monthly rent regularly at the rate of Rs.750/- per month, he failed to deposit the same. Even during pendency of Civil Revision Petition, the first respondent has not deposited monthly rent and there by committed wilful default. The petitioner has proved by acceptable evidence that she bonafide requires the petition premises as additional accommodation for the business of her son, the second petitioner herein. The learned Appellate Authority erred in holding that the first petitioner ought to have sought for appointment of an Advocate Commissioner to prove the portion under occupation and requirement of additional accommodation. The fifth respondent, examined as RW2 has deposed that she has given evidence at the request of the first respondent and she has not stated any thing about the legal proceedings initiated by the respondents 2 to 9 against the first petitioner. There is no evidentiary value in the evidence of RW2. The learned Senior counsel appearing for the petitioner, in support of his contentions, relied on the following judgments:
(i) AIR 1985 SC 582 in the case of S.Sundaram Pillai, etc Vs. V.R.Pattabiraman:
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25.Thus, a consensus of the meaning of the words 'wilful default' appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful defaults as contemplated either by the Act or by other Acts referred to above.
(ii) (1999) 7 SCC 474 in the case of S.Thangappan Vs. P.Padmavathy:
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9...........It is only when a tenant denies title of the landlord, the Court has to scrutinise the evidence and come to the conclusion prima facie, whether the denial of title is bona fide or not. It is in this context of course the Court has to go into the evidence to test the veracity of this denial of title. Thus, any finding in this regard could not be a finding on the question of title. There is neither any claim of title set up by the respondent nor is there any such issue between the parties in these proceedings and hence recording of any finding in this regard is only to be understood for a limited purpose of testing the bona fide of the tenant to deny the title of the landlord. .................
14.Thus section puts an embargo on a tenant of an immovable property, during the continuance of his tenancy to deny the title of his landlord at the beginning of his tenancy. The significant words under it are at the beginning of the tenancy. This is indicative of the sphere of the operation of this section. So a tenant once inducted as a tenant by a landlord, later he cannot deny his landlord's title. Thus, this principle of estoppel debars a tenant from denying the title of his landlord from the beginning of his tenancy. However defective the title of such landlord could (sic may) be, such tenant cannot deny his title. But subsequent to his induction as tenant if the landlord loses his title under any law or agreement and there is a threat to such tenant of his eviction by subsequently acquired paramount title-holder then any denial of title by such tenant to the landlord who inducted him into the tenancy will not be covered by this principle of estoppel under this section. In Mangat Ram this Court held: (SCC p. 327, para 11) The estoppel contemplated by Section 116 is restricted to the denial of title at the commencement of the tenancy and by implication it follows that a tenant is not estopped from contending that the tile of the lessor had since come to an end.
(iii) 2002 3 SCC 375 in the case of Sheela and others Vs. Firm Prahlad Rai Prem Prakash:
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16. After the creation of the tenancy if the title of landlord is transferred or devolves upon a third person the tenant is not estopped from denying such title. However, if the tenant having been apprised of the transfer, assignment or devolution of rights acknowledges the title of transferee either expressly or by paying rent to him, the rule of estoppel once again comes into operation for it is unjust to allow the tenant to approbate and reprobate and so long as the tenant enjoys everything which his lease purports to grant, how does it concern him what the title of the lessor is? (See: Tej Bhan Madan V. II ADJ). A denial of title which falls foul of the rule of estoppel contained in
Section 116 of the Evidence Act is onsidered in law a malicious act on the part of the tenant as it is detrimental to the interest of the landlord and does no good to the lessee himself. However, it has to be borne in mind that since the consequences of applying the rule of determination by forfeiture of tenancy as a result of denial of landlord's title or disclaimer of tenancy by tenant are very serious, the denial or disclaimer must be in clear and unequivocal terms...............
(iv) 1999 3 MLJ 511 in the case of S.Vanitha Vs. E.Kuppusamy:
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19. According to me, even this deposit cannot be said to be proper deposit in view of the statutory provision under Sec.8(5) of the Act. Under Sec. 8(5) of the Act, the tenant is not entitled to deposit the rent in a bank, and that too in his name. The rent will have to be deposited before the controller as and when it become due. Deposit made by the tenant from November, 1991, and that too irregularly cannot be said to be in terms of Sec. 8(5) of the Act. Subsequent conduct also shows that the tenant was not in the habit of depositing the rent or paying the same, as and when it became due.........
(v) (2001) 3 MLJ 168 in the case of D.Sreenivasa Mudaliar Charity, represented by its Managing Trustee, Saradambal Vs. Dhanasekaran and others:
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18.From the above said decisions, it is clear that if the tenancy is admitted, the tenant has been estopped from denying the landlord's title, however defective it may be. Moreover, the question of title to grant lease is relevant. Such estoppel contemplated under
Section 116 had exceptions. It is open to the tenant even without surrendering possession to allege that since the date of tendency title of the landlord came to an end or that he was evicted by a paramount title holder or that even though there was no actual eviction or dispossession from the property under a threat of eviction, he had attorned to the paramount title holder. Except for this reason, the tenant is estopped from denying title of the landlord.
(vi) (2017) 5 SCC 451 in the case of Om prakash and another Vs. Mishri lal (dead) Represented by his legal representative Savitri Devi:
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32.It is no longer res integra and is settled by this Court in Sri Ram Pasricha v. Jagannath, Dhannalal v. Kalawatibai and India Umbrella Mfg. Co. v. Bhagabandei Agarwalla that a suit for eviction of a tenant can be maintained by one of the co-owners and it would be no defence to the tenant to question the maintainability of the suit on the ground that the other co-owners were not jointed as parties to the suit. The judicially propounded proposition is owned by several co-owners, every co-owner owns every part and every bit of the joint property along with others and thus it cannot be said that he is only a part owner or a fractional owner of the property and that he can alone maintain a suit for eviction of the tenant without joining the other co-owners if such other co-owners do not object. In the contextual facts, not only the compromise decree, as aforementioned, has declared the appellants to be the joint owners of the suit premises, their status as such has not been questioned at any stage by anyone interested in the title thereto.
9. The learned Senior counsel appearing for the first respondent contended that the first respondent by mistake entered into rental agreement with first petitioner thinking that she is the sole landlady of the petition premises. Subsequently only he came to know that the respondents 2 to 9 are also co-sharers and they objected to pay the rent to the first petitioner. The respondents 2 to 9 instructed the first respondent to deposit the rent in a bank account. In view of the dispute between the first petitioner and the respondents 2 to 9, the first respondent filed R.C.O.P under Section 9(3) of the Act to deposit the rent. The said R.C.O.P was dismissed and appeal and revision filed by the first respondent were also dismissed. Pending said proceedings, the first respondent has deposited the rent in a separate bank account every month regularly and therefore, the first respondent has not committed any wilful default. The first petitioner failed to prove that she requires the petition premises as additional accommodation for the business of her son. The first respondent is carrying on business in the said premises from 1977 and if he is evicted, hardship will be more than the hardship that may be caused to the first petitioner if additional accommodation is not ordered. The learned Rent Controller, on erroneous consideration allowed the R.C.O.P, ordering eviction. On the other hand, the learned Appellate Authority has properly appreciated all the materials on record, especially the dispute between the first petitioner and respondents 2 to 9 and partition suit, O.S.No.5834 of 2000 filed by the respondents 2 to 9 against the first petitioner and allowed the R.C.A.
10. The learned counsel appearing for the respondents 3 and 7 to 9 reported no instructions for respondents 3 and 7 to 9 and made submissions on behalf of the respondents 4 to 6. According to the learned counsel appearing for the respondents 4 to 6, the respondents 2 to 9 have filed O.S.No.5834 of 2000 for partition against the first petitioner and a preliminary decree has been passed in their favour. The first petitioner is not the sole owner of the petition premises and respondents 2 to 9 are also co-owners of the petition premises. There was no family arrangement and suit property was allotted to the first petitioner as alleged by the first petitioner. The respondents 2 to 9 are also co-owners of the petition building and they are also entitled to receive the rent and as per their instructions only the first respondent has deposited the rent in the bank account. The learned counsel appearing for the respondents 4 to 6 also contended that the first petitioner is not entitled to additional accommodation as she is not the sole owner. The respondents 2 to 9 have filed the suit for partition on 25.08.2000, within two months from the date of order of the learned Rent Controller. The respondents 2 to 9 have taken immediate steps to establish their right.
11. Heard the learned Senior counsel appearing for the petitioner and first respondent and learned counsel for the respondents 4 to 6 and perused the materials available on record and considered the judgments relied on by the learned Senior counsel appearing for the petitioner.
12. Point for consideration in the present Civil Revision Petition is whether the first petitioner is entitled to file R.C.O.P No.2906 of 1997 for eviction of first respondent and whether first petitioner has proved that her requirement of additional accommodation is bonafide.
13. The entire building including the petition premises originally belonged to K.Duraisamy Naicker, father of the first petitioner and respondents 2 to 9, the land being allotted to him by Tamilnadu Slum Clearance Board. During the life time of K.Duraisamy Naicker, he wrote to the Tamilnadu Slum Clearance Board to allot the property to the first petitioner. The Tamilnadu Slum Clearance Board also replied stating that they are taking steps to allot the land to the first petitioner. It is an admitted fact that the first respondent has committed wilful default in payment of rent during life time of K.Duraisamy Naicker and he filed R.C.O.P.No.2906 of 1997 for eviction of the first respondent on the ground of wilful default. The said R.C.O.P was allowed. The R.C.A filed by the first respondent was dismissed and the first respondent filed C.R.P.No.1173 of 1988 against K.Duraisamy Naicker. The K.Duraisamy Naicker died pending Civil Revision Petition filed by the first respondent. All the legal heirs of K.Duraisamy Naicker, first petitioner and respondents 2 to 9 were impleaded as respondents in the C.R.P.No.1173 of 1988. It is an admitted fact that at the time, the first petitioner and first respondent entered into a rental agreement, as per the rental agreement, the first respondent has recognized first petitioner as landlady and paid Rs.5000/- as advance and agreed to pay Rs.700/- per month as rent. Based on these agreement, the first respondent sought permission to withdraw the Civil Revision Petition filed by him against the K.Duraisamy Naicker and this Court dismissed the Civil Revision Petition by the order dated 12.09.1994. The respondents 2 to 9 have not disputed that they were impleaded as respondents in C.R.P.No.1173 of 1988 and as per the rental agreement, the said Civil Revision Petition was withdrawn by the first respondent. The first respondent paid rent up to August 1994 by money order. Subsequently, he failed to pay the rent. According to the first respondent, the respondents 2 to 9 claimed to be co-owners and by the letter dated 12.09.1994, instructed the first respondent not to pay the rent to the first petitioner but to deposit the rent in the bank account. This letter is alleged to be dated 12.09.1994, the date on which the Civil Revision Petition was dismissed by this Court. The learned Rent Controller, taking note of both the dates, has held that there is suspicion as to whether the letter was really dated 12.09.1994 and sent to the first respondent by the respondents 2 to 9. According to the first respondent, based on the said letter, he opened a separate account and was depositing the rent regularly without any default. The first respondent admittedly deposited only Rs.450/- every month and not the agreed rent of Rs.750/- per month. Further, the first respondent did not take any steps to deposit the rent into Court to the credit of R.C.O.P.No.2906 of 1997 filed by the first petitioner. Only when the order was passed in R.C.A directing the petitioner to deposit the rent into Court, he deposited the rent of Rs.63,000/-. The first respondent has not explained as to why he has not deposited Rs.750/- per month in the bank account and has deposited only Rs.450/- per month. This clearly shows that the first respondent has committed wilful default in payment of rent. The first respondent has exhibited supine indifference in payment of rent. It is pertinent to note that the respondents 2 to 9 have not taken any steps to establish their right till 2000, even though they have alleged to have sent a letter dated 12.09.1994 to the first respondent instructing him not to pay the rent to the first petitioner. The fifth respondent, examined as RW2 has not stated that the respondents 2 to 9 have taken steps for impleading respondents 2 to 9 as parties to the R.C.O.P, have given letter to Slum Clearance Board claiming right over the property and that they have initiated legal proceedings to establish their right. The learned Rent Controller considering these facts held that the letter dated 12.09.1994 marked as Ex.R1 is not genuine and the reason given by the first respondent for depositing the rent in bank account is not proper and acceptable. The first respondent has not taken any steps to find out who are the real legal heirs of the K.Duraisamy Naicker. From the above findings, it is seen that the learned Rent Controller has rightly allowed the R.C.O.P. The learned Appellate authority failed to see that no document was filed either before the learned Rent Controller or before the learned Appellate Authority to show that respondents 2 to 9 have initiated legal proceedings against the first petitioner. The learned Appellate Authority has held that respondents 2 to 9 have filed O.S.No.5834 of 2000 for partition against the first petitioner, there being no evidence. In any event, the learned Appellate Authority failed to see that R.C.O.P was filed in the year 1997 and respondents 2 to 9 have not taken any steps to establish their alleged right over the suit property and to prove that there was no family arrangement to allot entire building to the first petitioner. The learned Appellate authority also committed an irregularity in holding that the first petitioner ought to have appreciated the evidence let in by the parties to come to the conclusion as to whether the requirement of the first petitioner for additional accommodation is bonafide or not. Further, the first respondent having admitted that the first petitioner is the landlady of the petition premises, is not entitled to subsequently dispute the title of the landlady. The respondents 2 to 9 have not established their right over the suit property during pendency of the R.C.O.P and have not produced any evidence to show that a competent Civil Court has declared the right over the suit property. Only in Civil Revision Petition, the learned counsel appearing for the respondents 4 to 6 has produced preliminary decree passed by the Civil Court. The learned counsel appearing for the respondents 4 to 6 admitted that the said suit was filed only on 25.08.2000. It is no doubt true that subsequent event can be taken into account while deciding the issue in question. In the present case, till the Civil Revision Petition is taken up for hearing, no evidence was produced to show that respondents 2 to 9 have established their right over the suit property, while R.C.O.P and R.C.A were pending. It is also a fact that the title of the first petitioner was not disputed till the order of eviction was passed by the learned Rent Controller in R.C.O.P. This fact was also not considered by the learned Appellate authority while reversing the order of the learned Rent Controller. The judgments relied on by the learned Senior counsel appearing for the second petitioner are squarely applicable to the facts of the present case. For the above reasons, the judgment of the learned Appellate Authority in R.C.A is liable to be set aside for irregularity committed by learned Appellate Authority and the judgment of the learned Appellate Authority is hereby set aside.
14. In the result, the judgment dated 13.11.2006 made in R.C.A.No.515 of 2000 is set aside and the order of the learned Rent Controller dated 28.06.2000 made in R.C.O.P.No.2906 of 1997 is restored and the Civil Revision Petition is allowed. No costs.