This Revision Petition is directed against the concurrent finding of the Rent Control Tribunal as well as the Rent Control Appellate Authority in the petition filed by the landlord for eviction on the ground of own occupation and wilful default.
2.The case of the revision petitioner/tenant is that when the landlord is holding the advance amount in excess of twelve months rent contrary to Section 7 of the Tamilnadu Buildings (Lease and Rent Control) Act, there cannot be any default, more so, wilful default in payment of rent. Further, the finding of the Courts below regarding the bonafide requirement of the petition premises by the landlord is also perverse. Hence, the order passed by the Courts below in evicting of the residential premises occupied by the revision petitioner is against the evidence and probability of the case. The sole intention of the landlord was to evict the tenant by use of force which prompted the revision petitioner to file a suit for injunction not to evict him without following due process of law. Only thereafter, the present R.C.O.P.No.39 of 2008 on the file of the Principal Rent Controller (Principal District Munsif Court), Tirunelveli, has been filed for eviction on the ground of wilful default and owner's occupation. While the Rent Controller has not even properly considered the genuineness and bonafideness of the claim of the landlord seeking eviction of the premises for his own occupation, the Appellate Authority has confirmed the same mechanically without adverting to the evidence let in by the parties concerned.
3.The petitioner has filed additional typed set of papers containing the sale deed dated 30.12.2011, which relates to sale of the petition property by the respondent to one Perumpadaiyar. In the light of the above transaction, it is contented by the learned counsel for the revision petitioner that the cause of action in R.C.O.P does not survive, since the respondent herein, who is the original petitioner in R.C.O.P has alienated the suit property pending revision petition. In support of the above submission, the learned counsel relied upon the judgment of this Court reported in 2016(1) MWN (Civil) 568 in the case of N.Sanjay Kumar Jain vs. S.Krishnamurhy and others, wherein, this Court has held that eviction on the ground of own use and occupation is personal to landlord and therefore, subsequent purchaser cannot continue eviction proceedings. Therefore, the counsel for the petitioner contended that the factual matrix of the above reported case is similar to the case on hand.
4.At this juncture, it is necessary to extract below the relevant portion of the aforesaid order:-
?17.So far as the ground of Wilful Default is concerned, the Hon'ble Supreme Court in the Judgment reported in Sheikh Noor and another V.Sheikh G.S.Ibrahim (dead) by Lrs., 2003 (7) SCC 321 held that only if there is assignment of Rent due would the Transferee Landlord be entitled to recover the same from the Tenant as arrears of Rent. Following the ratio, lid down by the Apex Court, this Court, in the judgment reported in Alaudin v.Sathar, 2011 (5) CTC 486, held that in the absence of any specific assignment of arrears of Rent, transferee Landlord is not entitled to continue the proceedings invoking Section 10(2) (I) or maintain an Eviction Petition for Wilful Default pertaining to period prior to transfer. The ratio laid down in the Judgment reported in Alaudiin v.Sathar, 2011 (5) CTC 486, following the Judgment of the Apex Court reported Sheikh Noor and another V.Sheikh G.S.Ibrahim (dead) by Lrs., 2003 (7) SCC 321, squarely applies to the facts and circumstances of the present case.
18.Similarly, the same ratio was also followed in the Judgment reported in A.Jaganathan V.S.Kalyani, 2007 (6) MLJ 222. In the Judgment reported in S.V.Periasamy & Sons v.R.Senthil Kumar and others, 1997 (1) LW 527, this Court held that even if there is an assignment, that will amount to only an actionable claim and will cease to be arrears of Rent and arrears of Rent loses its character as arrears and can be transferred only as actionable claim and further this Court had held that the previous Landlord becomes a creditor and the Tenant becomes a debtor and therefore, the Subsequent Purchaser cannot continue the proceeding in view of the judgment of the Hon'ble Supreme Court as well as this Court.
19.The learned Counsel appearing for the Respondent submitted that the Petitioner/Tenant is in arrears of Rs.4,05,000/- (Rupees Four Lakhs Five Thousand only) till this date.
20.The learned Counsel for the Petitioner/Tenant submitted that the Petitioner would pay the arrears of Rent, after deducting the Rent already paid and also deducting the amount deposited to the credit of Rent Control Original Petitions filed under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, to the Subsequent Purchaser within a period of eight weeks.?
5.There is no second opinion with regard to the above legal proposition. However, there is a factual difference between the case cited supra and the case in hand. If the property was transferred by the landlord to somebody else pending proceedings, the cause of action for eviction on the ground of owner's occupation under Sections 10(2)(i), 10(3)(a)(iii) of Tamilnadu Buildings Lease and Rent Control Act will become non-est. In the judgment cited supra, the tenant therein undertook to deposit the rent to the credit of RCOP filed under section 8(5) of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 and therefore, the Court has concluded that the question of wilful default pertaining to the period prior to transfer will not enure right to the transferee pendente lite since on the date of transfer, there was no default in paying the rent. Whereas, in this case, till direction was issued by this Court by order dated 19.01.2017 to deposit the arrears of rent from April 2007 to December 2016, the revision petitioner has not shown any interest either to tender the rent or to deposit the rent by resorting to the provisions of Tamilnadu Buildings (Lease and Rent Control) Act. It is only at the instance of the direction issued by this Court that too only after giving extension of time, the tenant has deposited the arrears of admitted rent at Rs.750/- per month for the period from April 2007 to December 2016. This act alone is sufficient to hold that there is a wilful default on the part of the tenant. Therefore, the question remains to be considered is whether there was transfer of the petition premises or not pending revision.
6.In this regard, the learned counsel for the respondent submits that he has no instructions regarding the alleged transfer. If at all, there was any transfer of property, the person, who has purchased the property should have taken steps for recovery of possession independently through his vendor. However, there is no indication to that effect. Therefore, this Court is of the opinion that the copy of the alleged sale deed dated 13.12.2011 cannot be pressed into service at this juncture. The point for consideration is whether there was a wilful default and bonafide requirement of the petition premises by the owner for his own occupation. The Court below has given concurrent finding on this point and the intervening factor without sufficient materials need not be addressed more than what we have discussed earlier. Hence, the revision petition is liable to be dismissed.
7.The learned counsel for the revision petitioner seeks one year time to vacate the premises on his own and to hand over the vacant possession. In that event, the revision petitioner has to file an undertaking in a form of sworn affidavit for probable date of vacating the premises. If it is less then one year, the same may be considered by the landlord. If such affidavit is not filed by 30.06.2017, the order of eviction shall be executed by the landlord on 01.10.2017.
8.With the above direction, this Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous petition is closed.
To
1.The Learned Rent Control Appellate Authority, (Principal Subordinate Judge), Tirunelveli.
2.The Learned Rent Controller (Principal District Munsif Court), Tirunelveli .