Even if the petitioners do not demand the payment of the rent, the respondent is statutorily liable to pay the rent and he cannot be allowed to keep quiet on the footing that the petitioners had not demanded the rent from him and unless and until the petitioners demand the rent, he is not liable to pay the same. No doubt, there has been no specific demand from the petitioners to the respondent to pay the rent. But, that by itself would not absolve the liability of the respondent in paying the rent, when it becomes due and when it is seen that even prior to the litigation between the parties, the respondent had been in the arrears of rent, despite the same he having not taken necessary steps as per law to pay the rent to the petitioners, the Appellate Authority is found to be fully justified in coming to the conclusion that the respondent had committed wilful default in the payment of the rent.
IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
C.R.P.(NPD) (MD) No. 709 of 2008
Decided On: 04.01.2019
Ganapathy Murugan Vs. Madaswamy and Ors.
Hon'ble Judges/Coram:
T. Ravindran, J.
Citation: 2019(1) RCR(Rent) 346
1. The civil revision petition is directed against the Judgment and Decree, dated 25.02.2008, passed in R.C.A. No. 22 of 2005, on the file of Principal Subordinate Court, Nagercoil, reversing the fair and decreetal orders, dated 28.01.2005, passed in R.C.O.P. No. 32 of 2003, on the file of the Rent Controller, Nagercoil.
2. The parties are referred to as per their rankings in the rent control original petition for the sake of convenience.
3. Shorn of unnecessary details, the case of the petitioners, in brief, is that they are the landlords of the petition property and the respondent is occupying the same as tenant on a monthly rent of Rs. 250/- and the tenancy is only as regards the running of a dyeing factory in the petition property and not for conducting any other business and the respondent had been paying the rent to the petitioners' mother, who died on 07.06.1999 and contrary to the terms of the tenancy, in the year 1996, the respondent had attempted to install a flour mill in the petition property and objecting to the same, the petitioners' mother preferred a suit in O.S. No. 1055 of 1996, on the file of the Principal District Munsif Court, Nagercoil, restraining the abovesaid initiative of the respondent and despite the order of injunction in favour of the petitioners' mother, the respondent had started the flour mill, without any authority and further stated that the respondent had paid the rent upto and inclusive of Adi 1171 M.E. (1996 A.D.) to the petitioners' mother and thereafter, failed to pay the rent and though it is seen that the respondent had deposited some amount towards the rent in the suit preferred by the petitioner's mother abovestated, but that cannot be construed as the proper remittance of the rent and thereby, according to the petitioners, the respondent had committed wilful default in the payment of the rent from Avani 1172 M.E. (1197 A.D.). The rented portion is partly put up with thatched roof and partly put up with tiled roof and the entire building is in a bad and dilapidated condition and the thatched portion is not fit to be used by the respondent anymore and the entire petition property requires immediate demolition and re-construction and the rent paid by the respondent is very low and the petitioners seek to augment their income out of the petition property and accordingly, require the building for bona fide reasons for demolition and re-construction and accordingly, they had also obtained sanction from the Municipality concerned to put up new construction and the petitioners are having sufficient means for the same and undertake to complete the construction works within the stipulated time and therefore, sought for eviction of the respondent/tenant, on the grounds of willful default, demolition and re-construction and also putting the petition property for a different user.
4. Insofar as the ground put forth by the petitioners for evicting the respondent/tenant from the petition property, on the ground of different user having been negatived by the Rent Controller as well as the Rent Control Appellate Authority and as against the said determination of the Courts below, no challenge had been made by the petitioners, as such, the aspects with reference to the same are not detailed.
5. The case of the respondent, in brief, is that the petition property had been demised to him along with vacant site and excluding the trees standing therein. The petition property has not been properly described and further, according to him, the sheds put up by the respondent had been suppressed by the petitioners and the respondent is making periodical improvements in the building by changing the thatched roof and the respondent is running a dyeing factory and using the vacant site as a drying yard and the rent is Rs. 250/- per month and there is no restriction on the part of the respondent from carrying on any other lawful business in the petition property and therefore, the case of the petitioners that the petition property had been leased out only for conducting dyeing factory is false and with the consent and knowledge of the petitioners as well as their mother, the respondent had installed a flour mill in the tiled portion of the petition property and also obtained necessary permission from the Authority concerned with reference to the same and spent huge amount for the erection and running of the flour mill and admitted that the rent has been paid upto Adi 1171 M.E. However, according to the respondent, as no one turned up to receive the rent, the rent could not be paid and as the petitioners' mother refused to receive the rent deliberately and on the other hand, preferred a false suit in O.S. No. 1055 of 1996, the respondent had been forced to deposit the rent in the abovesaid suit and after the disposal of the abovesaid suit, the respondent is regularly depositing the rent in the present rent control proceeding, without any default and the same is being done only bona fidely and with the knowledge of the petitioners and therefore, there is no default on the part of the respondent in paying the rent much less wilful default and the extent of the property leased out to the respondent, inclusive of the building, is 24 Cents and the respondent's father had constructed an additional building in the petition property and the case of the petitioners that the petition property had become old and dilapidated and therefore, requires immediate demolition and re-construction is false. Even the proposed construction by the petitioners can be done without disturbing the respondent's business in the petition property and the plan had been obtained by the petitioners only as a devise to evict the respondent from the petition property one way or the other. The requirement of the petitioners for demolition and re-construction is not bona fide and invented and therefore, the petition is devoid of merits and liable to be dismissed.
6. In support of the petitioners' case, P.W. 1 was examined and Exs. P1 to P7 were marked. On the side of the respondent, R.W. 1 was examined and Exs. R1 to R11 were marked. Commissioner's report and plan were marked as Exs. C1 and C2.
7. Based on the materials placed on record, the Rent Controller has held that the grounds of different user and wilful default projected by the petitioners for evicting the respondent are not made out and further noting that the proposed construction mooted out by the petitioners could be done in a portion of the rented premises, accordingly, to that extent allowed the eviction petition only as regards the thatched structure lying in the northeastern side portion of the petition property and accordingly, directed the respondent to vacate the abovesaid portion within the time determined by it. Aggrieved over the abovesaid determination of the Rent Controller, the petitioners preferred the appeal and the Rent Control Appellate Authority, on an appreciation of the materials placed on record, was pleased to set aside the fair and decreetal orders of the Rent Controller and confirmed the decision of the Rent Controller that the ground of eviction for different user is not sustainable, however, held that the respondent/tenant had committed wilful default as put forth by the petitioners and also the requirement of the petition property by the petitioners for demolition and re-construction is bona fide and made out and on that basis, directed the eviction of the respondent/tenant from the petition property. Challenging the same, the present civil revision petition has been preferred.
8. There is no dispute between the parties as regards the landlord - tenant relationship in respect of the petition property and the monthly rent is also admitted to be Rs. 250/-. As abovenoted, the ground of different user projected by the petitioners for evicting the respondent had been declined by the Courts below and the same has become final. Now, according to the petitioners, the respondent had paid the rent only upto Adi 1171 M.E. and thereafter, had failed to pay the rent either to them or their mother and contended that the alleged case of the respondent that he had deposited the rent in the suit proceeding of the petitioners' mother and thereafter, in the present rent control proceedings would not absolve him from the liability in the wilful default of the payment of the rent and therefore, it is contended that inasmuch as the respondent had failed to pay the rent to the petitioners as per the terms of the tenancy and also even assuming for the sake of arguments that for the reasons put forth by the respondent, he was unable to pay the rent, still the respondent having not endeavoured to proceed further in paying the rent as provided under the law, accordingly, contended that he had committed wilful default in the payment of the rent and thereby, liable to be evicted from the petition property.
9. Per contra, it is the case of the respondent that inasmuch as the petitioners' mother had refused to receive the rent, he had started depositing the rent in the suit proceeding laid by the petitioners' mother in O.S. No. 1055 of 1996 and thereafter, after the disposal of the abovesaid suit, continued to deposit the rent in the present rent control proceedings and therefore, there is no default on his part in the payment of the rent, much less wilful default and hence, the abovesaid ground projected by the petitioners for evicting him is not sustainable.
10. No doubt, the respondent is found to have issued a notice marked as Ex. R2 calling upon the petitioners to furnish their bank account particulars with a view to deposit the rent in the said account and however, according to the respondent, inasmuch as the same had not been responded by the petitioners, he was necessitated to deposit the rent in the rent control proceedings. However, as could be seen from the materials placed on records, all is not well qua the relationship of the parties and accordingly, it is noted that when the respondent took the initiative to run a flour mill in the petition property, objecting to the same, the petitioners' mother had preferred O.S. No. 1055 of 1996 to restrain him from the said endeavour. However, it is found that the respondent had put up the flour mill in the petition property and accordingly, in view of the strained relationship between the parties, the respondent's case is that he had been depositing the rent in the abovesaid suit proceedings. Therefore, it is seen that as determined by the Rent Control Appellate Authority, even at the time of filing of the suit in O.S. No. 1055 of 1996, the respondent had been in arrears of rent for several months and only after the filing of the suit by the petitioners' mother, he had started depositing the rent in the said suit. It is further noted that when, even according to the respondent, he had been in arrears of rent prior to the institution of the lis by the petitioners' mother, as rightly determined by the Rent Control Appellate Authority, the respondent should have adhered to the provisions of the Rent Control Act for depositing the rent as per law and the respondent cannot be allowed to bypass the said procedure and escape from the consequences thereof by putting forth the case that he had deposited the rent in O.S. No. 1055 of 1996. As rightly put forth by the petitioners' counsel, considering the strained relationship between the parties, the respondent should have been more careful in paying the rent and merely because at one point of time, the petitioners had been collecting the rents in lumpsum that would not give a leverage to the respondent in not paying the rent regularly when it becomes due and also punctually and therefore, as determined by the Rent Control Appellate Authority, the respondent having failed to take proper steps to deposit the rent as provided under Section 8 of the Tamilnadu Buildings (Lease and Rent Control) Act and particularly, when the petitioners are not posted with the information as to the alleged deposit of the rent by the respondent in the civil suit proceeding and the rent control proceedings with a view to enable the petitioners to withdraw the same, in such view of the matter, the alleged deposit of the rent by the respondent in the abovesaid proceedings would not amount to a valid tender of the rent and the same had been acceded to by the petitioners. Even if the petitioners do not demand the payment of the rent, the respondent is statutorily liable to pay the rent and he cannot be allowed to keep quiet on the footing that the petitioners had not demanded the rent from him and unless and until the petitioners demand the rent, he is not liable to pay the same. No doubt, there has been no specific demand from the petitioners to the respondent to pay the rent. But, that by itself would not absolve the liability of the respondent in paying the rent, when it becomes due and when it is seen that even prior to the litigation between the parties, the respondent had been in the arrears of rent, despite the same he having not taken necessary steps as per law to pay the rent to the petitioners, the Appellate Authority is found to be fully justified in coming to the conclusion that the respondent had committed wilful default in the payment of the rent.
11. It is the admitted case of both the parties that the rent had been paid upto Adi 1171 M.E. Therefore, from Aavani 1172 M.E. the rent has not been paid regularly. As abovenoted, the respondent had not resorted to the provision of Section 8 of the Tamilnadu Buildings (Lease and Rent Control) Act for depositing the rent in the Court. Materials placed on record go to show that after the filing of the rent control original petition by the petitioners, he had started depositing the rent and it is seen that at one stroke, he had deposited the rent for 45 months amounting to Rs. 10,750/- on 14.10.2003. Therefore, when even prior to the abovesaid 45 months and much earlier, the relationship between the parties had become so strained and the respondent is statutorily bound to pay the rent duly and promptly, in such view of the matter, when it is noted that for nearly four years, the respondent had been keeping quiet without paying the rent to the petitioners one way or the other and thereafter, after the initiation of the civil suit and the rent control proceedings, started depositing the rent in the abovesaid proceedings, not with the consent of the petitioners and not established to be with their knowledge prior to the deposit and though the respondent claimed that he had endeavoured to pay the rent through money order to the petitioners, but when with reference to the same, no material has been produced on his part, it is found that the deposit of the rent for 45 months by the respondent in the Court would not absolve him from the liability of the wilful default in the payment of the rent and therefore, it is found that the intention of the respondent has been not to pay the rent to the petitioners duly and promptly and therefore, the Appellate Authority is found to be correct in determining that the respondent had committed wilful default in the payment of the rent. As rightly determined by the Appellate Authority, when it is seen that despite the strained relationship between the parties, the respondent had not paid the rent for several years without proper explanation and he has also not endeavoured to adhere to the provisions of the Rent Control Act for depositing the rent, he cannot take shelter by contending that as the petitioners had not demanded the rent, he is not liable to pay the same and accordingly, had started depositing the rent in the suit proceedings, the said plea, as such, cannot be countenanced and accordingly, it is found that the Rent Control Appellate Authority, on an appreciation of the materials placed on record and the authorities placed before it for consideration, in the right perspective, finding that the Rent Controller had not appreciated the materials placed on record correctly on an erroneous appreciation of the same, determined that the petitioners had established that the respondent has committed willful default in the payment of the rent and accordingly, acceded to their case that he is liable to be evicted on the abovesaid ground.
12. As regards the ground projected by the petitioners for eviction of the respondent on the ground of demolition and re-construction, it is seen that the petition property is an old building more than 50 years old and consisting of building made up of thatched roof and tiled roof. Even as per the case of the respondent, the petition property requires unending and constant renovation and it is claimed by the respondent that from the days of his father, the petition property had been renovated periodically and accordingly, it is seen that the entire building is not in a good condition and thereby, requires immediate demolition and re-construction. The same could also be gathered from the Commissioner's report and plan marked as Exs. C1 and C2 and when it is seen that the building is built by mud and bricks and an old building coupled with the photographs projected and when the thatched shed has no permanent walls, in all, it is seen that the petition property is an old building and requires immediate demolition and reconstruction and hence, it is seen that the abovesaid ground projected by the petitioners for evicting the respondent on the ground of demolition and re-construction with a view to augment their income by constructing a new building in the petition property is a sincere one. Therefore, as rightly determined by the Rent Control Appellate Authority, the ground of eviction on demolition and re-construction is not necessarily to be projected only on the footing that the petition property is an old and dilapidated one, but when the petitioners seek eviction for augmenting their income by constructing a new building and thereby, seek the demolition and re-construction of the existing building, that would also be a justifiable ground on their part to evict the respondent. At the most, it has to be only determined whether the requirement of the petitioners is a bona fide one and whether they have the financial capacity to put up the new construction and whether the building in existence requires immediate demolition and reconstruction. As abovenoted, the petition property is an old building and accordingly, it requires constant repairing and maintenance as admitted by the respondent himself and in such view of the matter, when the abovesaid case of the petitioners, with reference to the same, is also supported by the Commissioner's report and plan, in all, the condition of the petition property, as determined by the Rent Control Appellate Authority, requires immediate demolition and re-construction. As regards the financial capacity of the petitioners, the same is not seriously controverted and accordingly, the same has also been upheld by the Rent Control Appellate Authority.
13. As regards the bona fide requirement of the building on the ground of demolition and re-construction, it is seen that the petitioners had already moved the Municipal Authority for putting up new construction and also had obtained necessary approved plans, licence and the same had come to be marked as Exs. P2 to P4 and thereby, from the abovesaid documents, it is found that the petitioners are really endeavouring to put up the new construction in the petition property by demolishing the existing old and dilapidated building. As above noted, according to the petitioners, they seek the eviction on the ground of demolition and re-construction only to augment their income and accordingly, when they proposed to put up a new structure for economic benefits, it is seen that the petitioners' abovesaid requirement is a bona fide one.
14. The respondent contended that of the total extent of 24 Cents demised to him, the proposed construction of the petitioners would only occupy a small portion and therefore, for putting up the proposed construction, it is unnecessary on his part to surrender the possession of the entire demised property and accordingly, contended that the thatched shed lying in north-eastern side alone requires to be vacated for the abovesaid purpose and the said case of the respondent is found to have been accepted by the Rent Controller. However, as rightly determined by the Rent Control Appellate Authority, the respondent is not entitled to dictate as to what portion would be sufficient for the petitioners to put up the new construction and the said determination has to be made only by the petitioners and not by the respondent. As abovenoted, already the petitioners had obtained necessary permission from the Municipality concerned to put up the construction and accordingly, the relative hardship that would be caused to the respondent in the event of his eviction from the petition property not being the essential ingredient for deciding the ground of demolition and reconstruction under Section 14(i)(b) of the Tamilnadu Buildings (Lease and Rent Control) Act and further, noting that if the petitioners are permitted to demolish a portion of the petition property and the other portion is kept intact, in due course, the whole of the building is likely to crumble or disintegrate one way or the other by becoming structurally weak and therefore, the Rent Controller is found to be not correct in holding that a portion of the petition property alone is liable to be vacated by the respondent for the purpose of putting up new construction proposed by the petitioners. As rightly determined by the Rent Control Appellate Authority, the partial eviction ordered by the Rent Controller, for the reasons aforestated, are not tenable and legal and accordingly, when on the whole, it is noted that the ground of demolition and re-construction projected by the petitioners is found to be bona fide and also they having satisfied the other ingredients of Section 14(i) (b) of the Tamilnadu Buildings (Lease and Rent Control) Act, in all manner, the Rent Control Appellate Authority is fully justified in ordering the eviction of the respondent on the ground of demolition and re-construction as put forth by the petitioners.
15. In the light of the above discussions, I do not find any reason to interfere with the well-considered Judgment and Decree of the Rent Control Appellate Authority in setting aside the fair and decreetal orders of the Rent Controller and ordering eviction of the respondent from the petition property.
16. Resultantly, the civil revision petition is dismissed with costs.
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