Following the decision of the Supreme Court above, it has to be held that no notice under Section 106 need to be issued to the tenant before filing the petition for eviction and that is not a pre-requisite one. Even if the tenant carries out the repairs, it should be with knowledge and consent of the landlord for which Section 22 of the Act contemplates issue of notice to the tenant by the landlord as to making of necessary repairs of the building. In the absence of such notice, the tenant cannot carry out any repair and come forward to say that the rent could be adjusted in the case of repair.
Print Page
Madras high court
K.A.Jaganathan vs S.Shanju on 9 December, 2009
This petition has been filed under Section 25 of the Tamil Nadu Buildings (Lease & Rent control) Act 1960 as amended Act XXIII of 1973 and Act 1 of 1980 against the fair and final order passed in R.C.A.No.12 of 2005, dated 18.06.2005, on the file of the Rent Control Appellate Authority (1st Additional Sub-Court), Erode in confirming the fair and final order in R.C.O.P.No.6 of 2002, dated 08.11.2004, on the file of the Rent controller (1st Additional District Munsif Court) Erode.
2. In the petition for eviction filed by the respondents under Section 10(2)(i) of the Tamil Nadu Building (Lease and Rent Control) Act 1960, the following are stated:-
2.(i) On 30.05.1996, under a registered Lease Deed, the respondent took the scheduled premises on lease for the period from 30.05.1996 to 29.05.2001. He paid an advance amount of Rs.10,000/- on the same day. The rent was agreed to at the rate of Rs.2,000/- per month payable on or before 7th day of every succeeding English month. The petitioners are issuing receipts for the payment of rent. The respondent agreed to vacate and surrender vacant possession on the expiry of five years. i.e.on 29.05.2001. The respondent also agreed in writing to receive the advance amount of Rs.10,000/- without any interest after surrendering the vacant possession to the petitioners.
2.(ii) It is also mentioned in the Lease Deed that if the respondent failed to vacate the premises, the petitioners are at liberty to file a petition for eviction. He paid the rent for the month of May 2001 on 02.06.2001 and obtained receipt from the petitioners. Afterwards, he did not pay the rent from the month of June 2001 till this date. He is in arrears of 12 months rent. In spite of demands, he did not pay the arrears of rent. It is wilful default. Hence, he is liable to be evicted on this ground.
3. In the counter filed by the tenant / respondent, the following are averred:-
3.1. Earlier, this respondent was tenant on oral lease from one M.Chickaiyan Naicker, on 19.10.1996, for a monthly rent of 150/-. The petitioners inherited the demised building. The respondent continued to pay the rent and thereafter, the Registered Deed dated 30.05.1996 was entered into. The petitioners agreed to repair the godown and promised to lease out the extreme southern portion of godown measuring an area of 20' x 10' for additional accommodation of the business stocks of the respondent. The godown was constructed in or about the year 1936. The roof is covered with zinc sheet. There is no alteration of the zinc sheet ever since 1936. Due to rust, there are holes in the roof of the godown, through which there is leakage of rain water during rainy season. The roof of the front portion is covered with Calicut tiles. 3.2. In the course of his tenure of tenancy, when the respondent was a tenant of Smt.Krishnammal, the broken calicut tiles were replaced and the front shutter was put up and partition wall was raised between the godown and the front portion where the respondent is keeping his office and displaying sample hardwares etc, at his own costs. The floor of the godown gets damaged. It is stated that neither the said M.Chickaiya Naicker nor his wife Krishnammal had repaired the demised building during their lifetime in spite of so many requests made to them by the respondent. The respondent had reposed faith in the petitioners and believed bona fide that they would keep up their promise in repairing the demised building and leasing out the additional portion of an area of 20' x 10'. 3.3. As agreed by the landlord, the respondent had been paying the rent at the rate of Rs.2,000/- per month from 01.12.1995 to 29.05.2001. In spite of so many requests by the respondent, the petitioners had not cared either to repair the demised building nor to extend the lease-hold portion. But on the other hand, the petitioners had closed the door and windows provided in the partition wall from east to west that divides the southern and northern godown portions and thereby, ventilation was curtailed and the godown has been put into dark for want of light drawn from outside. 3.4. The petitioners have leased out the southern extremity portion of the godown measuring to an area of 20' x 10' to one M/s.Veerappan Agencies, Hardware and Paint Merchant. As the petitioners had committed breach of their promise, the respondent has no other option, but to withhold the payment of rent from June,2001 upto date. However, the respondent has filed a lodgment schedule for depositing the arrears of rent due for the period from June,2001 to August,2002 and is also ready to deposit rent in this Court for future months.
4. The following are the further averments found in the additional counter filed by this petitioner along with I.A.No.146 of 2006 before the appellate authority.
4.1. When the demised shop was let out to this respondent by the petitioners, the later had let out the shop bearing door No.93 on the east of the demised shop to M/s.Veerappan Agencies, Hardward and Paint Merchant. The aforesaid agencies had accepted to pay the rent with 75% above from the rent paid to Smt.Krishnammal, provided if the petitioners had reparied the shop bearing door No.93 by replacing the front roof the Calicut tiles with zinc sheet. 4.2. Accordingly, the petitioner repaired the shop No.93 before letting it out to the Agency. But at the same time, though this respondent had agreed to pay the enhanced rent as claimed by the petitioners, on the assurance given by the latter that they would carry out repair in the demised shop and lease out the souther portion measuring an area of 200 Sq.ft, the petitioners committed breach of their obligations. This respondent, having hoped that the petitioners would repair the building, had been paying the rent regularly. 4.3. It is alleged that after having noticed that they had not fulfilled their promise, this respondent had no other option but to withhold the rent payable by him prior to the filing of the petition in R.C.O.P. The legal obligations that resulted from the promise by the petitioners must precede before insisting this respondent to pay the rent. This being so, it cannot be said that this respondent has committed wilful default to pay the rent and so he is liable to be evicted from the demised shop. 4.4. Apart from that, during the third week of last Aadi, 2005, when the first petitioner with his friends entered into the demised shop, this respondent asked him to let him know the purpose of entering into the demised shop. The first petitioner replied that he wanted to verify the damaged condition of the roof, floor, walls etc and construct RCC building after removing the old zinc sheet roof and Calicut tiles roof for the occupation of this respondent. His conduct would amply prove that he is still keeping his assurance to repair the demised shop.
5. Even though it was agreed by the respondent that he would vacate the building, the petitioners failed to extend the period of lease for rent enhanced to 15% to 20% of the original rent as claimed from the other tenants of the petitioners. No demand was made by the petitioners to pay the arrears of rent. But on the other hand, the respondent represented the petitioners that if the repairs of the building were carried and southern extreme portion of the godown was let out, he would have paid the entire arrears of rent to them.
5.1. For the foregoing reasons, he has not committed any default to pay the arrears of rent wilfully as alleged by the petitioners. The petition is not maintainable without issuing any notice under Section 106 of the Transfer of Property Act to the respondent.
6. After considering materials on record, the learned Rent Controller, Erode passed an eviction order directing delivery of the property in favour of the landlords within three months. Aggrieved against the said order, this petitioner preferred an appeal in R.C.A.No.12 of 2005. Pending the hearing of the appeal, the petitioner filed an application in I.A.No.146 of 2006 under Order 8 and 9 and Section 151 CPC to receive an additional counter and the same was allowed. 6.1. After hearing both parties, the appellate authority dismissed the appeal on 14.02.2007. The said order was challenged before this Court in CRP(NPD).No.3852 of 2007. This Court after hearing both the learned counsel, remanded the matter to the Rent Control appellate authority to exercise his powers under Section 23(3) of the Act and dispose of the appeal. Consequently, Rent Control Appeal was again taken up by the appellate authority and disposed of on 18.06.2008. The said order passed in appeal is under challenge before this Court in this revision.
7. It is the bottomline contention of the landlords that the tenant miserably failed to pay the rent after May,2001. On the date of filing of the eviction petition, the arrears for 12 months was kept by the tenant and the attitude of the tenant has been described as wilful default.
8. On the contrary, the tenant says that at the time of leasing the property on 30.05.1996, the landlords agreed to repair the godown which is with an extent of 200 Sq.feet and to make certain repairs in the premises. In the additional counter, the defence has been further clarified to the effect that after having received the rent, the landlords had not fulfilled the promise, that is to say, to repair the demised shop and to lease out the godown area in question, therefore, this respondent has no other option but to withhold the rent payable to him prior to filing of RCOP.
9. This petitioner as RW1 would state in his chief examination that after receipt of summons from the Court, he deposited Rs.30,000/-, on 03.10.2002, being arrears of rent from June,2001 to August 2002. Since the landlords refused to receive the rent in June, from February 2001, he did not pay the rent. He also did not send the money by money order or through Advocate. It is an admitted fact that he did not pay the rent from June 2001 to May 2002, on the date of filing of the eviction petition. It is stated in the grounds of revision that an advance of Rs.10,000/- is in the hands of the landlords and that the arrears of rent should have been adjusted in the advance. But one month rent may be retained by the landlord and hence, if the contention of the petitioner is to be accepted, only Rs.8,000/- has to be adjusted towards rental arrears for four months. Even then, from October 2001 and till May 2002, there is continuous default on the part of the tenant to pay the rent. It has to be observed that it is wilful. 9.1. It is not pleaded in the counter that the landlords refused to receive the rent. He did not take any steps before the Court to deposit the rental arrears. It is the version of the petitioner that he effected certain repairs in the godown. He fixed shutter spending a sum of Rs.1,000/-. In the counter, it is further stated that inspite of a promise of the landlords that they would repair the godown and lease the same to him, they did not do it, but leased the same to one M/s.Veerappan Agencies. Hence, he (this petitioner) withheld the payment of rent from June,2001 to upto date.
10. In the agreement, dated 30.05.1996, no such promise was explicitly made by the landlords. When there is no express agreement between the parties with regard to repair and leasing out towards sq.ft godown, it is futile on the part of the petitioner to contend that he withheld the payment of rents on the promise that the same would be done by the landlords.
11. In this context, Mr.S.Parthasarathy, learned Senior Counsel for the respondents, would place reliance upon a Division Bench decision of this Court reported in 2000 (III) CTC 642, Raymonds Woollen Mills Ltd, Madras Vs. Mrs.Azra and two others, wherein it is hled that the statutory tenant would not make any improvement, alteration, repair or reconstruct in the demised premises without the consent or permission of the landlord. The relevant portion of the judgment goes thus:- 13.The argument that the tenant may reconstruct or make improvements as he pleases as there is no prohibition in the Act, against the tenant carrying out reconstruction or improvement, cannot be accepted at all. The Act does not in any of its provisions authorise the tenant to carry out improvement or structural alteration at his sweet will. The statutory tenant may not do anything to the property owner by the landlord except to the extent permitted by the Act. The statutory right not to be dispossessed except in accordance with the provisions of the Rent Control Act, does not comprehend a right to do anything that the tenant desires, such as alteration, addition, improvement etc. except to the extent permitted by the Special Act. There is no inherent right in a statutory tenant to improve, alter, repair or reconstruct against the wishes of the landlord.
12. In the absence of any agreement empowering the tenant to withhold the rent, it is his statutory obligation to pay the rent as agreed in the terms of lease. If he violates the said agreement and commits default for more than two months, he has to be termed as 'wilful defaulter'
13. In 2008 (1) CTC 692, M.Venkatachalam and others Vs. N.Palanisamy Thevar, it is held that the obligation to pay the rent is not merely contractual but it is also a statutory. It is for the landlord to prove the case of wilful default and when the landlord has proved his case of wilful default, the burden shifts on the tenant to disprove the same.
14. In the evidence, this petitioner has stated that on 03.10.2002 he deposited a sum of Rs.30,000/- into the court which is the rental arrears from June 2001 to August 2002. i.e. for about 15 months. The reason for withholding the rent are contradictory in the counter and the oral testimony. In the counter, it is pleaded that since the landlords did not keep up the promise, he withhold the rent, but in the evidence he has stated that as the landlords refused to receive the rent, he did not pay. A combined effect of the above said circumstances would clearly indicate that the petitioner is a wilful defaulter,since retention of arrears of rent is not bona fide.
15. Yet another contention in the counter that no prior notice was sent to the tenant and the petition is not maintainable without issuing notice under Section 106 of the Transfer of Property Act.
16. Repelling this contention, the learned Senior Counsel for the respondent garners support from a decision of the Constitution Bench of the Supreme Court reported in AIR 1979 SC 1745,V.Dhanapal Chettiar V. Yesodai Ammal, wherein it is held as follows:- In order to get a decree or order for eviction against a tenant under any State Rent Control Act it is not necessary to give notice under Section 106 T.P.Act. Determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the T.P.Act. On the question of requirement of such a notice under Section 106 T.P.Act the difference in the language of various State Rent Acts does not bring about any distinction. It is not correct to say that S.106 of the T.P.Act merely providing for termination of lease either by the lessor or the lessee by giving the requisite notice is an extra protection against eviction. The purpose of this provision is merely to terminate the contract which the overriding Rent Acts do not permit to be terminated. Even if the lease is determined by forfeiture under the Transfer of Property Act, the tenant continues to be a tenant, that is to say, there is no forfeiture in the eye of law. The tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the state Rent Act, not otherwise.
17. This Court in a decision reported in 1999 (III) CTC 199, Majetice Leatherware Vs. Govinda Chetty, has held that under the Rent Control Act before any eviction petition is filed, no notice is required, only in cases the Court has to presume the wilful default, a notice is contemplated and in other cases, the Court can enter a finding taken into consideration, the conduct of the tenant to consider where the default is wilful, no notice is required.
18. Following the decision of the Supreme Court above, it has to be held that no notice under Section 106 need to be issued to the tenant before filing the petition for eviction and that is not a pre-requisite one. Even if the tenant carries out the repairs, it should be with knowledge and consent of the landlord for which Section 22 of the Act contemplates issue of notice to the tenant by the landlord as to making of necessary repairs of the building. In the absence of such notice, the tenant cannot carry out any repair and come forward to say that the rent could be adjusted in the case of repair.
19. In a decision reported in 2002-1-LW.796, Manickkampillai Vs. A.Sakuntala and others, this Court has held that depositing entire arrears before the first hearing does not absolve the tenant's conduct of default.
20. In a decision of the Supreme Court in K.M.Abdul Razzack v. Damodharan, 2001 (1) MLJ SC 37 : 2000 (4) SUPREME 575, in Para 5, it was held as follows:
"5... It is not permissible for the High Court, in exercise of its revisionary jurisdiction to act as an Appellate Court to reappraise or reassess the evidence afresh as an Appellate Court and come to a different finding contrary to the finding recorded by the Court below. We, therefore, hold that the High Court while allowing the revision transgressed its jurisdiction conferred upon it under Section 25 of the Act..."
21. In view of the foregoing reasons, this Court is of the considered view that both the fora below have recorded findings on the basis of careful scrutiny of the evidence on record that the wilful default on the part of the petitioner is explicit. Hence, he has to be non-suited for the relief prayed for since the orders of the authorities challenged before this Court is not perverse nor improbable and there is no need to interfere with the said findings. The civil revision petition is devoid of merits and there is no reason to interfere with the concurrent findings recorded by the Court below which deserve to be confirmed and they are accordingly confirmed. The civil revision petition suffers dismissal.
In fine, the civil revision petition stands dismissed with costs. Consequently, connected M.P. is closed. No costs. Time for delivery two months.
ssm
To
(i)Rent Control Appellate Authority
(1st Additional Sub-Court), Erode
(ii)The Rent controller
(1st Additional District Munsif Court)
Erode
No comments:
Post a Comment