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Judgment
S. Manikumar, J.—Being aggrieved by the Order of the learned Rent Controller cum Principal District Munsif, Puducherry, made in I.A No. 90 of 2012 in HRCOP No 36 of 2011, dated 14.9.2012 and the fail and decretal Order in RCA No. 20 of 2012, dated 23.1.2013, on the file of the learned Appellate Authority-cum-III Additional District Judge, Puducherry, the present Civil Revision Petition has been filed.
Short facts leading to the Civil Revision Petition are as follows:
The Respondent/Landlord is the absolute owner of the schedule mentioned property, for which eviction has been sought for, under Sections 10(2)(i) and 10(3)(c) of the Puducherry Buildings (Lease and Rent Control) Act 1969 on the grounds of wilful default and additional accommodation lie is also the owner of the adjacent property, bearing Door No.2, Remain Holland Street. Puducherry-1, running a hotel, in the name and style of Qualithe Hotel - Bar and Restaurant in Door No.3, Mahe De Labourdonnais Street, Puducherry-1, by virtue of a last Will and Testament, dated 2.10.2003, executed by the mother of the Respondent/Landlord, Mrs. Philomena Rajarathnam, W/o P.F.G. Rajarathnam, in his favour.
It is the further case of the Respondent Landlord that on 16.10 2003, his mother, Mrs. Philomena Rajarathnam, died at Bangalore Prior to her death, she wrote a Will, dated 2.10.2003 and as per the said Will, he has become the absolute owner of the schedule mentioned property and other properties During the lifetime of his mother, Mrs. Philomena Rajarathnam, the Revision Petitioner Tenant has approached his mother and offered to take the schedule mentioned property on lease for non-residential purpose and his mother also accepted the same and leased out the schedule mentioned property to the Revision Petitioner/Tenant, by virtue of a Lease Agreement, dated 24 1 1994, to run a readymade garments business m the name and style of "Future Crafts" and that the lease was valid upto 23rd January 1995. By efflux of time, the lease expired and subsequently, it was not extended The Revision Petitioner/Tenant has agreed to pay Rent, by way of commission @ 15% on the total sales of readymade garments Till the month of December 2000, the Revision Petitioner Tenant has paid the Commission (by way of Rent) directly into the Petitioner''s mother''s Bank account. But from the mouth of January 2001 onwards, the Revision Petitioner/Tenant did not pay the commission and as such he has violated the terms and conditions of the Lease Agreement, dated 24.1 1994.
The Respondent Landlord has further submitted that the Revision Petitioner Tenant has changed the name of his business from "M/s. Future Crafts" to "M/s Vasa Boutique" and obtained Trade Licence from Puducherry Municipality, Vide Licence No.2780/PM RO II TL A4/2003. dated 26 12.2003 After the demise of his mother, the Landlord has informed the factum of attomnent of tenancy and during the month of January 2008, a copy of the Will, dated 2.10.2003, was also handed over to the Revision Petitioner/Tenant. In spite of repeated demands. Rent was not paid and hence, he sent a registered letter to the Revision Petitioner/Tenant on 22.4.2010, demanding him to immediately vacate the demised premises and handover vacant possession, as the premise was required for his additional accommodation to extend his hotel and bar business. In response, a reply, dated 27.4.2010, was sent by the Revision Petitioner/Tenant, stating that he is looking for a suitable place to shift his business and he requires some more tune for vacating the demised premises.
Again the Landlord has sent another registered Letter on 13.5.2010, requesting the Revision Petitioner Tenant to specify the exact time for vacating the premises. In the said Letter, he has also made a demand for payment of Rental arrears. Despite, acknowledging the above said registered Letter, there was no response. Again, the Landlord has sent a Letter on 6.6.2011, requesting the Revision Petitioner Tenant to submit the Statement of Accounts and Sale records, including Commercial Tax Returns for Ms. Future Crafts and Ms. Vasu Boutique from January 2001 to June 2001, and to intimate his convenient date and time, so as enable him to make inspection. The Revision Petitioner Tenant has evaded furnishing the above mentioned Accounts and Sale returns to the Landlord. Therefore, the Landlord has tentatively fixed the Rent at Rs. 10,000/- per month and calculated the Rent from January'' 2001 onwards. On 27.6.2011, the Revision Petitioner/Tenant has sent a frivolous reply to the Landlord, alleging that the mother of the Landlord has borrowed a sum of Rs. 5,18,700/- from him, for purchasing a land at Kottakuppam Revenue Village However, in the said Letter, the Revision Petitioner/Tenant has admitted that he is in huge arrears of Rent and according to him, he has paid Rent to the Landlord''s mother @ Rs. 3.000/- per month upto March 2002. The Landlord has denied the allegations in his reply, dated 22.6.2011 that his mother owed Rs. 4,68,700/- and his father received a sum of Rs. 50,000/- and therefore, on 13.8.2011, the Landlord has sent a Rejoinder Letter, refuting the allegations and contentions mentioned in the reply and demanded the Revision Petitioner Tenant to pay the Rental arrears at the rate of Rs. 3,000 - per month for the scheduled mentioned property, from the month of April 2002 till August 2011, totalling Rs. 3.39.000/- (113 months x Rs. 3,000 = Rs. 3,39,000). The Rejoinder Letter contained all the particulars of the Rent.
In response to the Rejoinder Letter, a reply, dated 2.9 2011, was issued by the Revision Petitioner/Tenant, for which, a further reply, dated 4.9.2011, has also been sent by the Landlord. As the tenant was a chronic defaulter in payment of Rent and that the premises were also required for expansion of hotel restaurant, the Landlord has sent a lawyer''s Notice, dated 5.9 2011. calling upon the Revision Petitioner/Tenant to forthwith vacate the demised premises and deliver vacant possession of the same The Revision Petitioner Tenant was also directed to pay the Rent Notice has been served and the Revision Petitioner/Tenant entered appearance through his Counsel. The Rent Control proceedings was posted on 27.1.2012 for filing counter.
Pending disposal of the same, I.A. No.90 of 2012, was filed under Section 11(4) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969, to stop all further proceedings in HRCOP No. 36 of 2011, until the Revision Petitioner/Tenant pays the arrears of Rent for a sum of Rs. 3,54.000/- for the period from April 2002 to January 2012 at the rate of Rs. 3,000 - per month and to pay the future Rent also.
The Revision Petitioner /Tenant has filed a Counter Affidavit, admitting payment of Rent upto March 2002. He has reiterated that a sum of Rs. 4,68,700/- was incurred by him for the purchase of land in Kottakuppam Revenue Village, for an extent of 13.25 Cents in R.S. No.361 from Sri Aurobindo Society and furnished the Statement of Accounts Apart from the above, the Revision Petitioner Tenant has also submitted that Landlord''s father had received a sum of Rs. 50,000/-, by cheque on 28.9.2009. He therefore submitted that the Landlord can adjust a sum of Rs. 3,33.000/-, arrears of Rent from April 2002 upto June 2011 (111 Months). He also submitted that the very fact that neither the deceased Landlady, nor his son, the present Landlord made any demand for payment of Rent till April 2010, which would prove the factum of adjustment of the Rental arrears.
Upon considering the pleadings, the learned Rent Controller, has framed the following point for consideration.
"Whether the Petition is liable to be allowed or not ?"
The learned Rent Controller, vide Order, dated 14.8 2012. allowed I A No.90 of 2012 and directed the Tenant to pay a sum of Rs. 3,75,000/-, towards arrears of Rent on or before 14.9.2012 and in default, further proceeding in the RCOP would be stopped. When the matter came up on 14.9.2012, instead of paying the above said amount to the Landlord, the tenant sought for permission to deposit the amount into the Court Rejecting the said Petition, the learned Rent Controller held that there was no order for deposit of arrears amount of Rs. 3,75,000/- into the Civil Court. Taking note of the fact that the conditional order has not been complied with, the learned Rent Controller had kept the matter passed over and thereafter, when the matter was called, the Tenant was absent and that there was no representation till 05:30 p.m. In the above said circumstances, the learned Rent Controller has stopped the proceedings and ordered eviction, granting a month''s time.
Being aggrieved by the same, the Tenant has filed an Appeal in RCA. No of 2012, before the IInd Additional District Judge, Pondicherry. Considering the pleadings and arguments, the learned Rent Control Appellate Authority has framed the following points for consideration,
"Whether the Order, dated 14.8.2012, passed in I.A. No.90 of 2012, in HRCOP No 16 of 2011, by the Rent Controller, Puducherry, is liable to be dismissed.
After considering the pleadings and evidence, adduced by both parties, submissions and also taking note of the decisions of this Court in Dhanasekaran v. The A.R.C. School Board, 2009 (1) CTC 779; and P. Rajamani Gurukal v. Rama, 2010 (2) CTC 660, the learned Rent Control Appellate Authority, found that the contention of the Tenant that the deceased Landlady has owed a sum of Rs. 4,68,700/- and the said amount has been adjusted in the payment of Rent, as not substantiated. The learned Rent Control Appellate Authority has held that the Tenant has admitted the Landlord and Tenant relationship and after the death of Landlord''s mother, the Will executed by her. has come into effect. Finding that the Tenant had committed a wilful default and not paid the Rent, during the tenancy of the Rent Control proceedings, the learned Rent Control Appellate Authority, IInd Additional District Judge, Pondicherry, confirmed the Order of the Rent Controller.
Mr. Ilanthirayan, learned Counsel for the Tenant submitted that both the authorities under the Rent Control Act, has omitted to consider that the issue of jural relationship of the Landlord and Tenant, can be adjudicated only during the trial and inasmuch as, there is no Lease Agreement in existence, the authorities ought to have dismissed the Application in I.A. No 90 of 2012. He further submitted that the question of adjustment of Rent from the money owed by Landlord''s mother, had not been considered at all and that it amounts to failure on the part of the Rent control authorities in adjudicating the Application under Section 11(4) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969, in proper perspective. He also submitted that when there was no demand for a period of 10 years, it would prima facie establish the existence of the adjustment of Rent and that there is a balance paid by the Respondent.
Heard the learned Counsel for the parties and perused the materials available on record.
In the tenancy between the Revision Petitioner/Tenant and Landlord''s mother, for the Schedule mentioned property, it was agreed by the Revision Petitioner Tenant to pay Rent, by way of commission @ 15% on the total sales of readymade garments. According to the Tenant, it was the commission paid and not the Rent. In the Rent Control proceedings, he has disputed the relationship of Landlord-Tenant and therefore, the Rent Control proceedings, he has no jurisdiction to entertain the HRCOP Whereas, the Landlord has submitted that the premises was taken on lease under Ex PI.
Material on record discloses that Ex P12, Reply Notice given by the Tenant, he has admitted the Landlord-Tenant relationship. Learned Rent Control Appellate Authority has extracted the relevant portion, as follows:
"As regards the payment of Rent, it is true that initially the Rent was to be paid on profit sharing but over a period of time your late mother agreed to accept a Rent of Rs. 3,000/- per month and this has been duly paid by me."
Material on record further discloses that though the tenant had contended that the Landlord''s mother had borrowed a sum of Rs. 4,68,700/-, the Tenant has not filed a single document. It could be further deduced that he had not paid Rent from April 2002. Though the learned Counsel for the Revision Petitioner/Tenant has submitted that both the authorities under the Rent Control Act, have failed to consider a case of adjustment of Rent from the amount, due and payable by the erstwhile Landlord, as rightly contended observed by the authorities under the Rent Control Act, mere averments does not stand the test of proof.
It is also hard to believe that a sum of RS. 4,68,700/- has been spent by the Tenant, for which, there is no document and that the entire amount was spent, on the basis of mutual understanding with the deceased Landlady. From the documents considered by the authorities under the Rent Control Act, it is evident that the tenant has admitted the jural relationship of Landlord-Tenant and that the Revision Petitioner/Tenant had committed a wilful default of Rent, during the pendency of the Rent Control proceedings Therefore the Petition under Section 11(4) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969, is maintainable and both the authorities under the Rent Control Act, after considering the pleadings and evidence, have adjudged the rival contentions properly.
The Tenant has been squatting over the property for so many years for payment of Rent and though the Will, dated 2.10.2003, has come into effect, and by virtue of the same, the Respondent has become the owner of the property, the Tenant has denied the jural relationship of Landlord-Tenant. The intention of the Tenant reflects mala fide. Though arrears of Rent directed to be paid, has not been paid within the stipulated tune and on the date of reporting payment, the Tenant has come forward to file a Petition for making deposit in the Court, in respect of payment as ordered in I.A No 90 of 2012.
There is absolutely no merit in the Civil Revision Petition, challenging the concurrent findings of fact. Useful reference can be made to few decisions:
(i)In Sri Rajalakshmi Dyeing Works v. Rangaswamy, 1980 (4) SCC 259, the Supreme Court has observed that-
"Despite wide language employed in the Section, the High Court quite obviously should not interfere with the findings of fact merely because it does not agree with the finding of the Subordinate Authority."
(ii)In Sherwood Educational Society v. Abid Namazie, 1997 (1) LW 323, this Court has held as follows:
"13. Sitting in Revision, this Court can exercise its powers under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act only if it is shown that the Judgment by the Appellate Authority is in any way illegal, irregular or improper. It cannot re-appreciate the evidence as a Court of Appeal. If the decision is based on materials and that reason could be arrived on those materials, for the purpose of arriving at a different conclusion, the evidence cannot be re-read or re-appreciated. Learned Senior Counsel for the Petitioner was well aware of the jurisdiction of this Court and that is why he wanted this Court to take into consideration certain additional facts. He, therefore, filed C M.P. No.16992 of 1994, seeking permission to adduce additional evidence in the C.R.P.
Section 14(1)(b) of the Rent Control Act says:
"14(1) Notwithstanding anything contained in this Act, but subject to the provisions of Sections 12 and 13, on an application made by a Landlord, the Controller shall, if he is satisfied,-
(a) (Omitted)
(b) that the building is bona fide required by the Landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished, pass an order directing the tenant to deliver possession of the building to the Landlord before a specified date."
In this connection, the corresponding provision of the Kerala Rent Control Act is also relevant for consideration. It may also be noted that under Section 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965, the Landlord is entitled to get eviction. "If a building is in such a condition that it needs reconstruction and if the Landlord requires bona fide to reconstruct the same and it he satisfies the Court that he has the plan and licence, if required, and the ability to rebuild and if the proposal is not made as a pretext for eviction". Interpreting this Section, V.R. Krishna Iyer, J., as he then was, has taken Kalyani v. Madhavi, 1970 KLT 257, the following view:
"Counsel, however, argues and rightly, that the building must be in such a condition that it needs reconstruction and this ingredient has to be made out apart from the Landlord''s bona fide intention to reconstruct. Here, it is argued that the stress is upon the physical condition of the building. I do not agree. If eviction can be had only on the Court being satisfied that the physical condition of the building is on the verge of collapse, there is no doubt that few buildings could be evicted before they have actually collapsed Knowing the length of time taken in Rent control litigation in Kerala, not unusual to find the period between the institution of an Application and its ultimate disposal in the Revisional Court, lengthening into several years if a building perilously close to sinking alone can justify a petition under Section 11(4)(iv) in a State with heavy monsoons, I do not know what purpose would be served by such a course except to endanger the lives of Tenants. It is obvious, therefore, that a wider and more realistic meaning must be given to the expression condition of the building. The social purpose of this provision is to remove the road blocks in the way of progress in building programmes Old structures in newly developing areas may be like pimples on fair faces. Replacement and renewal of obsolescent and unsightly buildings to make room for larger, modern constructions is a social necessity, provided existing tenants are not thrown into the streets. The condition of the building is a larger concept which includes considerations of social surroundings and allied factors. Where the building is very old and incongruous with the social setting and the surroundings of the place the Court has got to take a more liberal view in applying the provisions of law..."
(Emphasis supplied)
(iii) In Sarla Ahuja v. United India Insurance Co. Ltd, 1998 (3) CTC 679, the Supreme Court explained the power of the Revision under Section of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, at paragraphs 5 to 10, held as follows:
"5 Section 25-B of the Act lays down "special procedure for the disposal of Application for eviction on the ground of bona fide requirement." Sub-section (8) says that every Application for recovery of possession on the ground specified in Section 14(1)(e) of the Act shall be dealt with in accordance with the procedure specified in Section 25-B Sub-section (8) says that no Appeal or Second Appeal shall lie against an order for the recovery of possession of any premises made by the Rent Controller in accordance with the procedure specified in this Section. The proviso that sub-section reads thus:
"Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit."
The above Proviso indicates that power of the High Court is supervisory m nature and it is intended to ensure that the Rent Controller conforms to law when he passes the order. The satisfaction of the High Court when perusing the records of the case must be confined to the limited sphere that the order of the Rent Controller is "according to the law." In other works, the High Court shall scrutinize the records to ascertain whether any illegality has been committed by the Rent Controller in passing the order under Section 25-B. It is not permissible for the High Court in that exercise to come to a different fact finding unless the finding arrived at by the Rent Controller on the facts is so unreasonable that no Rent Controller should have reached such a finding on the materials available.
Although, the work "Revision" is not employed in the Proviso to Section 25-B(8) of the Act it is evident from the language used therein that the power conferred is Revisional power. In legal parlance distinction between Appellate and Revisional jurisdiction is well understood. Ordinarily, Appellate jurisdiction is wide enough to afford a re-hearing of the whole case for enabling the Appellate forum to arrive at fresh conclusions untrammeled by the conclusions reached in the order challenged before it. Of course, the statute which provides Appeal provision can circumscribe or limit the width of such Appellate powers. Revisional power on the contrary, is ordinarily a power of supervision keeping Subordinate Tribunals within the bounds of law. Expansion or constriction of such Revisional power would depend upon how the statute has couched such power therein. In some legislations Revisional jurisdiction is meant for satisfying itself as to the regularity, legality or propriety of proceedings or decisions of the Subordinate Court. In Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar 1980 (4) SCC 259, this Court considered the scope of the words ("the High Court may call for and examine the records .... to satisfy itself as to the regularity of such proceedings or the correctness, illegality or propriety of any decision or order...") by which power of Revision has been conferred by a particular statute. Dealing with the contention that the above words indicated conferment of a very wide power on the Revisional Authority, this Court has observed thus in the said decision:
"The dominant idea conveyed by the incorporation of the words to satisfy itself under the Section appears to be that the power conferred on the High Court under the Section is essentially a power of superintendence. Therefore, despite the wide language employed in the Section the High Court quite obviously should not interfere with findings of fact merely because it does not agree with the finding of the Subordinate Authority."
Dealing with Section 32, Delhi and Ajmer Rent (Control) Act, 1952, which is almost identically worded as in the proviso to Section 25-B(8) of the Act a three judge bench of this Court has stated thus in Hari Shankar v. Rao Girdhan Lal Chowdhury, 1962 Suppl (1) SCR 933:
The Section is thus framed to confer larger powers than the power to correct error of jurisdiction to which Section 115 is limited. But it must not be overlooked that the Section - in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think fit - is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is according to law." It stands to reason that if it was considered necessary that there should be a rehearing a light of Appeal would be a more appropriate remedy, but the Act says that there is to be no further Appeal."
In Malini Ayyappa Naicker v. Seth Menghraj Udhavadas, 1969 (1) SCC 688 another three Judge Bench of this court was considering a similarly worded proviso in Section 75(1) of The Provincial Insolvency Act, 1920. Though, learned Judges did not give an exhaustive definition of the expression "according to law", a catalogue of instance in which the High Court may interfere under the said Proviso was given in the decision as die following:
"They are cases in which the Court which made the order had no jurisdiction or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere."
The bench has, however cautioned that the High Court should not interfere merely because it considered that "possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at."
(iv) In Rafat Ali v. Sugni Bai, 1999 (1) SCC 133, the Supreme Court, while considering the scope of Revisional jurisdiction, held as follows:
"The Application given to the section makes it unmistakably clear that the power conferred there under is Revisional which means, it is a power of supervision. It is well neigh settled that a Revisional jurisdiction cannot be equated with Appeal powers in all its parameters. The power to call for and examine the records is for the purpose of the High Court to satisfy itself as to the "legality, regularity or propriety" of the order of die lower authority. Even such a widely worded frame of the Section may at best indicate that the Revisional powers are not so restricted as in the enactments wherein the words are not so widely trained. Nonetheless, they remain in the realm of supervisory jurisdiction."
(v) In Soundarajan @ Sampath v. Venkataraman, 2001 (3) CTC 237, this Court, at Paragraph 9, held as follows:
"Of course this Court sitting in supervisory jurisdiction under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, cannot interfere in concurrent findings of the Courts below unless there is illegality, impropriety (sic) or irregularity in arriving at such conclusion."
(vi) In M. Gangabai Ammal v. M. Sara straswathama, 2006 (2) MLJ 711 and J.V. Bhoopalan v. Rajamanickammal and others, 2007 (2) CTC 472, it is held that this Court under Section 25 of the above said Act, the Court cannot re-appreciate the evidence to arrive at a different conclusion.
Considering the conduct of the Revision Petitioner/Tenant, the Civil Revision Petition is dismissed, with costs of Rs. 5,000/-, to be paid by the Revision Petitioner/Tenant to the Respondent/Landlord. Four months'' time from the date of receipt of a copy of this order, is granted for eviction No costs. Consequently, connected Miscellaneous Petition is dismissed.