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Judgment
A.C. Arumugaperumal Adityan, J.—This revision has been directed against the Judgment in RCA. No. 69 of 2007 on the file of the VII
Judge, Court of Small Causes, Chennai, which had arisen out of the order in RCOP. No. 916 of 2004 on the file of the XV Judge, Court of Small
Causes, Chennai. The unsuccessful tenant before the Courts below is the revision petitioner herein.
The short facts of the petition in RCOP. No. 916 of 2004 runs as follows:- The petitioner is the owner of the property bearing New Door No.
42, Old Door No. 16/1, Valmiki Street, Thiruvanmiyur, Chennai. The first respondent is the tenant in respect of the shop premises in the property
bearing New No. 42 Old No. 16/1, Valmiki Street, Thiruvanmiyur, which is the petition scheduled property. The petition schedule property was
let out to the first respondent for non-residential purpose. The first respondent is carrying on wine shop business in the petition scheduled property.
The petitioner has also consented the first respondent to carry on wine-shop business in the said property. The first respondent carried on business
under the name and style of M/s. Thiruvanmiyur Wines in the petition schedule property. The monthly rent for the premises is Rs. 5,500/- exclusive
of electricity charges and the same is to be paid as per the meter readings. The monthly rent is to be paid on or before 5th of every succeeding
English calendar month. The Government of Tamil Nadu has passed a GO under which the licence granted in favour of the 1st respondent came to
an end. Instead of handing over the vacant possession of the shop premises to the petitioner, the 1st respondent erected a wall in the petition
scheduled property and thereby divided the shop portion into two portions. The 1st respondent let out one of the shop portion to Tamil Nadu
State Marketing Corporation, the second respondent, to carry on the wine shop business in the petitioner''s shop premises without the consent and
knowledge of the petitioner. The said act of the 1st respondent invites action for eviction on the ground of subletting of the shop premises to the
2nd respondent. On account of the erection of dividing wall, the 1st respondent has damaged the floor and roof of the building, thus has committed
the act of waste. The first respondent has also set up a fast food shop in the remaining portion of the shop premises and thereby changed the
business for which the shop premises was originally let out to him. Apart from the act of sub-letting, act of waste and change of business, the first
respondent has also committed default in payment of rent for the period from January-2004 onwards. The first respondent caused an undated
letter in the month of April-2004 and alleged that he has paid corporation tax for the entire property. Infact the petitioner has not authorized him or
permitted him or consented to pay tax on her behalf to the Municipal authorities. The payment of Municipality Tax to the petition schedule property
by the first respondent is an unilateral act. The petitioner has sent a suitable reply dated 11.5.2005 to the above said undated letter sent by the first
respondent. The petitioner has also terminated the tenancy and called upon the first respondent to vacate and handover the vacant possession of
the petition scheduled property. The said reply letter was returned with an endorsement as ''information-delivered''. The first respondent has
withheld the payment of rent for the period from January-2004 to May 2004. The said non-payment of rent is nothing but deliberate, wilful and
supine indifference on the part of the first respondent. Apart from that the first respondent has also sublet the portion of the petition scheduled
property to the second respondent by erection of dividing walls without the consent of the petitioner. The petitioner has not recognized the tenancy
of the second respondent as such the occupation of the second respondent is illegal. Hence, the petition for eviction.
The first respondent in his counter would contend that the petition filed u/s 10(2)(i), 10(2) and Rule ii(a) of the Tamil Nadu Building (Lease and
Rent Control) Act is not maintainable. This respondent is a tenant under the petitioner in respect of the building bearing New Door No. 42, Old
Door No. 16/1, Valmiki Street, Thiruvanmiyur, Chennai, on a monthly rent of Rs. 5,500/-. This respondent also paid a sum of Rs. 60,000/- as
advance and agreed to pay Rs. 5,500/- per month to the petitioner towards rent. There is no arrears of rent. This respondent had spent more than
Rs. 8 lakhs for putting up a superstructure and for interior decoration as the said place is being used by the respondent for the purpose of running a
liquor shop. While so, in view of the recent GO passed by the Government of Tamil Nadu, the liquor shop has been handed over to TASMAC,
which can run the liquor shop in Tamil Nadu. Accordingly, this respondent''s shop was also taken over by the TASMAC for running the liquor
shop. While so, the petitioner issued a legal notice dated 20.12.2003 threatening this respondent that he will take action on the ground of subletting
and also filed a case before the Rent Controller in RCOP. No. 2051 of 2000 on the ground of willful default in payment of rent. The petitioner has
given only the vacant land on lease to this respondent. The entire superstructure was put up by this respondent after spending around Rs. 8 lakhs.
With a malafide intention the petitioner has filed this petition, which is liable to be dismissed.
The second respondent in his counter would contend that the first respondent obtained a valid licence from the Government of Tamil Nadu to
carry on wine-shop business in the petitioner''s land and it was suggested to take over the building to run the TASMAC wine shop. As per the
Agreement Deed, Tmt. Govindammal has let out the property bearing New Door No. 42, Old Door No. 16/1, Valmiki Street, Thiruvanmiyur,
Chennai for non-residential purposes to the 1st respondent. Hence, the 1st respondent has let out the shop building to TASMAC and also set up a
fast food shop in the remaining portion of the shop premises. Even though the land is owned by the petitioner, the buildings of the shop was
constructed by the first respondent. Due to urgency the said building was selected for running TASMAC wine shop. In fact of the land dispute
between them was not known during the time of taking over of the wine shop building. Tmt. Govindammal has filed a case in WP. No. 15599 of
2004 regarding her representation dated 7.4.2004. The said writ petition was disposed of with the direction to dispose of the representation of the
petitioner-Govindammal. In pursuance of the order of the High Court, the Managing Director conducted personal enquiry on 7.12.2004 and
14.12.2004 and passed an order to vacate the shop from the premises of the petitioner. Subsequently, the petitioner preferred the petition for
eviction. At the time of entering into the agreement with the 1st respondent, the 1st respondent was in possession and enjoyment of the property as
a lawful tenant. The 1st respondent is not barred from sub letting the property as per the agreement dated 4.5.2001 entered into between the
petitioner and the first respondent. There is no specific clause in the agreement to prevent the first respondent to sublet the property. The period of
agreement is for three years from 1.6.2001 to 1.5.2004 is over and the agreement deed is not renewed beyond 1.5.2004 and the rent of the wine
shop is with-held from June 2004. Since there is litigation between the petitioner and the 1st respondent, TASMAC is ready to vacate the wine
shop from the premises. Hence, the petition is liable to be dismissed.
Before the learned Rent Controller, P.W.1 was examined and Ex.P.1 to Ex.P.8 were marked on the side of the petitioner. On the said of the
respondents R.W.1 was examined and Ex.R.1 was marked. After giving meticulous consideration to the oral and documentary evidence, the
learned Rent Controller finding that the tenant has committed willful default in payment of rent and has also sublet the petition scheduled premises
without the consent of the landlord-petitioner and also committed waste by constructing a wall across the petition scheduled premises, had ordered
eviction giving two months time to the respondents to vacate and handover vacant possession of the property to the petitioner. Aggrieved by the
findings of the learned Rent Controller, the first respondent has preferred an appeal in RCA. No. 69 of 2007 before the Rent Control Appellate
Authority. The Rent Control Appellate Authority after giving due deliberations to the submissions made by the learned Counsel on both sides, as
per the order passed in M.P. No. 86 of 2007 in RCA. No. 69 of 2007 after receiving two documents produced by the respondents in appeal as
Ex.R.2 and Ex.R.3 respectively and after scanning the evidence both oral and documentary, finding no reason to interfere with the well considered
order of the learned Rent Controller, has dismissed the appeal thereby confirmed the order of the learned Rent Controller in RCOP. No. 916 of
2004, which necessitated the tenant/first respondent to approach this Court by way of this revision.
The points for determination in this revision are as follows:
1) Whether the tenant had paid Rs. 60,000/- towards advance to the landlord in respect of the petition scheduled building and when the said
advance amount is with the landlord, the eviction ordered by the learned Rent Controller on the ground of willful default of payment of rent is
sustainable?
2) Whether the tenant/first respondent/revision petitioner herein had committed the act of waste in the petition scheduled premises and whether,
had sublet the premises to the 2nd respondent without the permission of the landlord/first respondent herein?
Point No. 1:-The learned Counsel appearing for the revision petitioner relying on Ex.R.2-written statement filed by Govindammal/landlord/first
respondent herein would contend that the landlord had admitted in Ex.R.2-written statement filed by her in O.S. No. 86 of 2000 on the file of the
XII Assistant Judge, City Civil Court, Chennai, that the revision petitioner herein/tenant had paid a sum of Rs. 60,000/- as advance for the suit
premises and that the admitted rent is Rs. 5,500/- for the suit premises. According to the landlord, the rent due from the tenant/first respondent is
from January-2004 onwards. Both the Courts below have concurrently held that the rent due from the tenant for the month of January-2004 to
September-2004 comes to Rs. 49,500/-. While RCOP was pending, the landlord had filed a petition u/s 11(3) of the Act on the ground that even
after filing of the RCOP, the tenant has failed to pay the rent and hence, he is liable to be evicted. Even though the tenant as R.W.1 had deposed
before the learned Rent Controller that he had sent the arrears of rent due for the month January-2004 to April-2004 by way of money order there
was no material placed to substantiate this contention. The learned Rent Controller has also directed the tenant to pay Rs. 49,500/- being the
arrears of rent for the months from January-2004 to September-2004. u/s 11(3) petition (M.P. No. 851 of 2004) the tenant/first respondent has
not paid the arrears of rent. Now the learned Counsel appearing for the revision petitioner would contend that since it is evident from Ex.R.2 that a
sum of Rs. 60,000/- is with the landlord towards advance, a sum of Rs. 49,500/- towards the rent for the period from January-2004 to April-
2004 cannot be considered as willful default.
7(a) The learned senior counsel appearing for the first respondent herein to meet these contentions of the learned Counsel for the revision petitioner
relied on a ratio in Raminder Singh Sethi Vs. D. Vijayarangam, wherein the exact observation of the Honourable Apex Court runs as follows:
Every tenant is obliged to pay or tender rent to the landlord within 15 days of the month to which the rent relates. The purpose of advance rent is
to protect the landlord from the unscrupulous tenant who may run into arrears and vacate the premises and comfortably walk away with arrears.
The advance rent is available for adjustment or is liable to be refunded at the time of vacating of the premises except where the law or the contract
between the parties provides to the contrary.
For the same proposition of law the learned senior counsel based his reliance on 2007(2) CTC 127 (Kannadasan v. K. Swaminatha Pathar)
wherein the dicdum relevant for deciding this CRP runs as follows:
The conduct of the Tenant in not paying the rent regularly during the pendency of the proceedings will amount to wilful default and such subsequent
conduct of the Tenant can be taken into consideration in deciding the matter. In the decision reported in B. Anraj Pipada Vs. V. Umayal, , S.
Jagadeesan, J, has held that when the eviction proceedings have been initiated on the ground of wilful default, one would expect the tenant to pay
the rent regularly every at least after the initiation of the proceedings. When the Tenant has failed to pay the rent regularly even during the pendency
of the proceedings, then there is no doubt that his conduct in paying rent as he likes, will amount to wilful default.
...
In Vasantha Leela Vs. N. Vadivelu Chettiar, , Raman, J, has held as follows:
...Therefore, it is clear from the above circumstances that the Tenant ought to have been diligent in payment of the rent as proceedings have been
pending between the parties with reference to the property and his eviction from the property. The Tenant ought to have been careful and
scrupulous in adhering to his duties as a tenant. The foremost duty of the tenant is to pay the rent in time. Therefore, in the context of the litigations
that went on between the parties and default committed by the Tenant has to be construed as wilful default. The tenant was aware of the legal
consequences of his omission to pay rent. Therefore, he ought to have been more careful. In spite of it he has not chosen to pay the rent which
would only indicate that he has been supinely indifferent and callus in attitude. Therefore, any default committed by the Tenant in this context can be
nothing but wilful default within the meaning of the Act....
7(b)The learned Senior counsel relying on a judgment rendered by this Court in 2008(2) CTC 375 (K. Selvaraj v. J. Narayanan and Anr.)
wherein the claim of the tenant is that the arrears of rent for 19 months i.e., from May-2001 to November-2001 is to be adjusted from out of
advance amount. But it was held that it is not open to the tenant to ask landlord to adjust arrears of rent from out of advance paid until he vacates
premises and handover possession to landlord. In that case reliance was placed on P.M. Punnoose Vs. K.M. Munneruddin and Others, . The
relevant observation in the said case is as follows:
The facts of the case in P.M. Punnoose Vs. K.M. Munneruddin and Others, , decided by the Hon''ble Suprement Court are as follows:
The Petition was filed u/s 10(2)(i) of the Tamil Nadu Building (Lease and Rent Control) Act, 1960, for eviction. The learned Rent Controller had
allowed the Petition evicting the tenant on the ground that he had committed wilful default in payment of rent. The tenant preferred an Appeal which
was allowed by the Rent Control Appellate Authority. The landlord preferred a Revision u/s 25 of the Act which has been allowed, setting aside
the judgment of the lerned Rent Control Appellate Authority, restoring the orders of the learned Rent Controller. Against which, Civil Appeal No.
3121 of 2000 was preferred before the Apex Court.
The landlord in that case had purchased the suit property from the predecessor-in-title under a sale deed dated 9.1.1987. The appellant/tenant
was residing in the building as a tenant from the date of purchase of the building by the landlord on 9.1.1987 for a monthly rent of Rs. 400/-. After
the purchase of the property by the respondents/landlords, the appellant/tenant was paying rent to the respondents/landlords. The rent for the
month January, 1987 was remitted by the appellant/tenant to the landlords who are five in numbers under five money orders at Rs. 80/- each.
Thereafter, the appellant/tenant was paying the rent to the respondents/landlords through money order at the rate of Rs. 400/- to the first
respondent. There was some controversy in respect of the exact rent. Even after January, 1987 that is, the purchase of the Petition schedule
property therein, the tenant was regularly paying the rent to the landlords/respondents through money orders for 17 months. The rent due for
September 1988 was also paid by the appellant/tenant and received by the respondents/landlrods. Thereafter, the dispute arose between the
parties regarding fixation of rent. Before the Appellate Authority, it was contended on behalf of the tenant that the landlords in that case had not
demanded the rent by way of notice and hence the default made by the appellant/tenant in payment of rent cannot be construed as wilful default,
since the tenant has all along been paying the admitted rent to the landlords even after their purchase in January, 1987. Only under such context it
has been held by the Hon''ble Apex Court as follows:
The Explanation appended to Sub-section (2) of Section 10 of the Act enacts a rule of evidence. After the issuance of two month''s notice claming
the rent, the default by tenant shall be construed as wilful raising a presumption in that regard and it will be for the tenant to show availability of
sufficient cause or circumstances beyond his control to escape from consequence of default. The landlord is not prevented from initiating
proceedings for eviction on the ground of default u/s 10(2)(i) of the Act, without serving a notice under the Explanation but in that case it will be for
the landlord to make out a case of wilful default by tenant failing which the Controller may exercise his discretion under the proviso giving the tenant
a reasonable time, not exceeding fifteen days for payment or tender.
...
The other judgment relied upon by the revision petitioner in S. Venkataramanaswami Ayyar v. S. Abdul Wahab (No. 2) 1969 MLJ 137, will not
be applicable to be present facts of the case.
After admitting the arrears of rent for 19 months, it is not open to the tenant to ask the landlord to adjust the same with the advance amount he had
paid, until he vacates and hand over vacant possession of the building to the landlord.
Under such circumstances, the findings of the Rent Control Appellate Authority that the tenant cannot take a defence that the arrears of rent is to
be adjusted towards the advance amount, which is in the hands of the landlord as per Ex.R.2 cannot be interfered with.
7(c) To show that the tenant had paid the tax to the corporation of Chennai in respect of the petition scheduled property, the tenant had produced
Ex.R.3 before the appellate authority. But there was no evidence to show that only after getting the consent from the landlord Ex.R.3-tax was paid
by the tenant to the corporation. So on the ground of payment of tax to the corporation in respect of the petition scheduled property under Ex.R.3
it is not open to the tenant to contend that he has not committed any wilful default in payment of arrears of rent. The learned Counsel appearing for
the revision petitioner would contend that he had produced an unregistered agreement dated 4.5.2001 along with his petition i.e., M.P. No. 86 of
2007 in RCA. No. 69 of 2007 to receive the additional evidence. But the said document was rejected by the Rent Control Appellate Authority on
the ground that the said document was not a registered one since the agreement under the said document is for more then 11 months. But a perusal
of the said document will go to show that, the said document is in respect of New Door No. 41, but the petition scheduled property is New Door
No. 42. The learned Counsel would contend that the Old Door Number has been correctly mentioned in the said agreement as 16/1. But the Old
Door Number in the said agreement was manipulated and hand written in ink, whereas the said agreement is a type written one.
7(d)The learned senior counsel relying on K.B. Saha and Sons Pvt. Ltd. Vs. Development Consultant Ltd., would contend that the said
unregistered lease agreement cannot also be relied upon for a collateral purpose u/s 49 of the Registration Act unless it is proved that the collateral
transaction is one which does not create extension, title, right or interest etc., in respect of immovable property. The exact observation in the above
said decidendi is as follows:
A document required to be registered is not admissible into evidence u/s 49 of the Registration Act.
Such unregistered document can however be used as an evidence of collateral purpose as proved in the Proviso to Section 49 of the
Registration Act.
A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc., any
right, title or interest in Immovable property of the value of one hundred rupees and upwards.
If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for
the purpose of proving an important clause would not be using it as a collateral purpose.
In our view, the particular clause in the lease agreement in question cannot be called a collateral purpose. As noted earlier, it is the case of the
appellant that the suit premises was let out only for the particular named officer of the respondent and accordingly, after the same was vacated by
the said officer, the respondent was not entitled to allot it to any other employee and was therefore, liable to be evicted which, in our view, was an
important term forming part of the lease agreement. Therefore, such a Clause, namely, Clause 9 of the Lease Agreement in this case, cannot be
looked into even for collateral purposes to come to a conclusion that the respondent was liable to be evicted because of violation of Clause 9 of
the Lease Agreement. That being the position, we are unable to hold that Clause 9 of the Lease Agreement, which is admittedly unregistered, can
be looked into for the purpose of evicting the respondent from the suit premises only because the respondent was not entitled to induct any other
person other than the named officer in the same.
The above said dictum in all four corners applies to the present facts of the case.
7(e)The learned Counsel for the revision petitioner relied on 2001 (2) CTC 47 (Chilakuri Gangulappa v. Revenue Divisional Officer, Madanpalle
and Anr.), wherein the dictum reads as follows:
It is clear from the first sub-section extracted above that the Court has a power to admit the document in evidence if the party producing the same
would pay the stamp duty together with a penalty amounting to ten times the deficiency of the stamp duty. When the court chooses to admit the
document on compliance of such condition the Court need forward only a copy of the document to the Collector, together with the amount
collected from the party for taking adjudicatory steps. But if the party refuses to pay the amount aforesaid the Collector has no other option except
to impound the document and forward the same to the Collector. On receipt of the document through either of the said avenues the Collector has
to adjudicate on the question of the deficiency of the stamp duty. If the Collector is of the opinion that such instrument is chargeable with duty and
is not only stamped ''he shall require the payment of the proper duty or the amount required to make up the same together with a penalty of an
amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof.
In the present case, an argument is raised that the instrument is not actually an agreement of sale as envisaged in the Schedule to the Stamp Act
(subject to amendment made by the State of Andhra Pradesh) but it is only a deed of compromise entered into by two disputing persons. We
refrain from expressing any opinion on the said plea as it is open to the parties to raise their contentions regarding the nature of the document
before the trial Court. In the present case the trial Court should have asked the appellant, if it finds that the instrument is insufficiently stamped, as
to whether he would remit the deficient portion of the stamp duty together with a penaly amounting to ten times the deficiency. If the appellant
agrees to remit the said amount the Court has to proceed with the trial after admitting the document in evidence.
The learned Counsel for the revision petitioner would contend that the Rent Control Appellate Authority after levying stamp duty ought to have
received the said agreement dated 4.5.2001. But, as I have already observed, the said document is in respect of Door No. 41, whereas the
subject matter in the RCOP is Door No. 42.
7(f)The learned senior counsel would further contend that both the Courts below have concurrently held that the tenant is liable to be evicted from
the petition schedule premises and unless it is shown before this Court that the findings of the Courts below is perverse in nature and the Courts
below have failed to consider the materials placed before them, this Court cannot interfere with the concurrent findings of the Courts below. For
this proposition of law the learned Senior counsel relied on the following judgments:- J.V. Bhoopalan Vs. Rajamanickammal, S. Srinivasan and S.
Kumaresan, and Hatim and Co. and Others Vs. Radhakrishnan and Others, . Under such circumstances, I hold on point No. 1 that the contention
of the learned Counsel appearing for the revision petitioner that the arrears of rent should be adjusted with the advance amount cannot hold any
water.
Point No. 2 :- It is in evidence before the trial Court that the first respondent had sublet the petition scheduled property to the second
respondent, who had conducted TASMAC wine-shop in the petition schedule premises and as per the government order the TASMAC
conducted by the second respondent was closed and at the time of subletting the petition scheduled premises the first respondent in RCOP/tenant
had constructed a wall across the petition scheduled premises. According to the 1st respondent herein/landlord, without obtaining any consent
from the landlord/petitioner in RCOP, the tenant/first respondent/revision petitioner herein had sublet the petition scheduled premises to the second
respondent herein. The Civil Revision Petition also was given up as against the second respondent by the revision petitioner before this Court. Even
though the tenant/first respondent in RCOP would contend that he had spent Rs. 8 lakhs for constructing the wall in the petition scheduled property
and also interior decorations there was no material placed before the trial Court to show that the tenant had spent Rs. 8 lakhs by way of
improvements. Under such circumstances, on the ground of subletting and also on the ground of act of waste, both the Courts below have
rendered a concurrent findings that the tenant is liable to be evicted. The findings of the Courts below do not warrant any interference from this
Court. Point No. 2 is answered accordingly.
In fine, the Civil Revision Petition is dismissed confirming the judgment of the Rent Control Appellate Authority in RCA. No. 69 of 2007 on the
file of the VII Judge, Court of Small Causes, Chennai. At this juncture, the learned Counsel for the revision petitioner would represent that the
tenant may be given eight months time to vacate the premises. The learned senior counsel appearing for the 1st respondent herein/landlord has no
objection for giving six months time to the tenant for vacating the premises. Under such circumstances, the time for vacating and handing over the
vacant possession of the premises to the landlord by the tenant is six months from this date. Under taking affidavit to be filed by the tenant. The
tenant/revision petitioner herein is directed to pay the rent at the rate of Rs. 5,500/- per month as usual till he vacates and handover the possession
to the landlord. The landlord is entitled to the cost through out. Connected Miscellaneous Petition is closed.