K.R. Sathappan Selvi vs A.R. Renganayagi

K.K. Sasidharan, J.—This Civil Revision Petition is directed against the judgment and decree dated 18.12.2008 in R.C.A. No. 4 of 2008 on the file of the Rent Control Appellate Authority at Devakottai, whereby and whereunder, the order passed by the Rent Controller dated 20.03.2008 in R.C.O.P. No. 1 of 2005 on the file of the Rent Controller, Karaikudi was reversed and a decree of eviction was passed against the Petitioners.

THE CONSPECTUS OF FACTS:

The brief facts, which are relevant to dispose of the Civil Revision Petition, are recapitulated as under:

(a) The property described in the schedule to the Rent Control Original Petition absolutely belongs to the Respondent. The property was given on lease to the first Petitioner for residential purpose on 17.10.1993 subject to condition of payment of a sum of Rs. 120/-per month as rent. The rent was subsequently enhanced to Rs. 200/-during the year 1997.

(i) According to the landlord, the first Petitioner was irregular in the matter of payment of rent. He has been using the building for non-residential purposes, inasmuch as he was storing the edible oils and other essential ration commodities in the subject premises.

(ii) The husband of the Respondent was taking treatment for his kidney problem and he requires further treatment. Therefore, the subject building was required for the bona fide use of the husband of the Respondent as well as her family members for their convenient residence. Therefore, the Respondent/landlord filed an application for eviction under Sections 10(2)(i), 10(2)(ii)(b), 10(2)(v) and 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, praying for an order to evict the Petitioners on account of their willful default, different user, act of nuisance and bona fide need.

(b) The eviction petition was resisted by the revision Petitioners and in the counter filed in answer to the contentions raised in the Rent Control Original Petition, they would contend thus:

(i) the first Petitioner was discharging the rent very promptly. The rent happened to be in arrears only after filing a suit by the second Petitioner against the Respondent/landlord in O.S. No. 353 of 2004.

(ii) He has been using the premises only for residential purpose. There was no act of nuisance caused at his instance. The landlord has no bona fide need and it was only a ruse for eviction.

(iii) The very eviction proceeding initiated was only on account of the suit filed by the second revision Petitioner in O.S. No. 353 of 2004 for injunction against the landlord.

PROCEEDINGS BEFORE THE TRIAL COURT:

Before the learned Rent Controller, the Respondent was examined as P.W.1 and Exs.A.1 to A.4 were marked on her side. The revision Petitioners were examined as R.W.1 and R.W.2. Exs.B.1 to B.9 were marked on their side.

THE VIEWS OF THE LEARNED TRIAL JUDGE:

The learned Rent Controller considered the pleadings in the light of the evidence adduced by both parties. The learned Rent Controller was of the view that there were certain admissions made by the Respondent in O.S. No. 353 of 2004 pertaining to the payment of monthly rent. By referring to those admissions, the learned Rent Controller arrived at a conclusion that there was no willful default on the part of the Petitioners. The learned Rent Controller also found that the Petitioners have taken steps to deposit the rent. The second Petitioner filed R.C.O.P. No. 32 of 2005 u/s 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the amount was accordingly deposited. Accordingly, the plea regarding arrears of rent was negatived.

The learned Rent Controller also opined that neither there was act of nuisance nor different user of the building by the first Petitioner. The claim regarding bona fide need was also rejected, as according to the learned Rent Controller, there were no materials to show that the Respondent requires the building for her bona fide purpose. In short, the learned Rent Controller rejected all the contentions raised on behalf of the Respondent. Accordingly, the Rent Control Original Petition was dismissed, as per order dated 20.03.2008.

The order in R.C.O.P. No. 1 of 2005 was taken up in appeal before the learned Subordinate Judge, Devakkottai functioning as the Rent Control Appellate Authority. The appeal was taken on file in R.C.A. No. 4 of 2008.

THE JUDGMENT UNDER REVISION:

The Rent Control Appellate Authority considered the respective claims in the light of the evidence, both oral and documentary and arrived at a finding that the Respondent has made out a case for eviction. Accordingly, the appeal was allowed. It is the said judgment which is impugned in the present Civil Revision Petition.

RIVAL SUBMISSIONS:

The learned Senior Counsel appearing for the Petitioners contended thus:

(i) The second Petitioner has taken steps to deposit the rent and her application u/s 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 was allowed by the learned Rent Controller as per order dated 27.03.2007 in R.C.O.P. No. 32 of 2005. Therefore, it cannot be said that the Petitioners were in arrears and it was a willful default.

(ii) The Respondent, in her evidence in O.S. No. 353 of 2004, clearly admitted the receipt of rent and as such, the appellate authority clearly erred while arriving at a conclusion regarding arrears.

(iii) The Petitioners were sought to be evicted for the occupation of the husband of the Respondent. According to the Respondent, the building was necessary for the residence of her husband in connection with his treatment. However, the husband died during the pendency of the proceedings. Therefore, Section 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 was not available to the Respondent to evict the Petitioners from the premises.

(iv) There was no evidence to show that the first Petitioner was using the building for a different purpose or he was causing nuisance. Therefore, the findings on such issues were also perverse.

(v) The learned Rent Control Appellate Authority failed to take note of the subsequent events regarding the death of the husband of the Respondent and, therefore, erred in allowing the eviction petition on the ground of bona fide need.

The learned Counsel appearing for the Respondent would contend thus:

(i) The first Petitioner has taken up a contention that it was only after the filing of suit in O.S. No. 353 of 2004, the relationship got strained between the landlord and the tenant and as such, rent was not received. The suit in O.S. No. 353 of 2004 was filed on 24.11.2004. Therefore, the rent was in arrears at least from November, 2004. The second Petitioner preferred R.C.O.P. No. 32 of 2005 to deposit the rent. However, only Rs. 400/-, equivalent to two months rent alone was deposited in the said proceedings. This also clearly shows that the tenant was in arrears.

(ii) The bona fide need was not restricted to the residence of the husband of the Respondent. It was also for the purpose of residence of the family members. Therefore, the learned appellate Judge was fully justified in ordering eviction on the ground of bona fide need.

(iii) The first Petitioner was dealing in essential commodities. He was running a ration shop. He was keeping the ration articles in the subject premises and he converted the subject premises into a non -residential premises. Therefore, the Respondent has proved her case on those grounds also.

DISCUSSION AND ANALYSIS:

The building in question was given on lease to the first Petitioner as per lease agreement dated 17.10.1993. The lease was given for residential purposes. The monthly rent originally was a sum of Rs. 120/-per month and it was subsequently enhanced to Rs. 200/-in the year 1997. The Respondent appears to have directed the first Petitioner to deposit the rent in her SB account and initially, he was making deposit in the said account.

Subsequently, the second Petitioner filed a suit in O.S. No. 353 of 2004 before the learned District Munsif, Karaikudi against the Respondent. It was a suit for injunction. The Respondent, in the meantime, initiated proceedings for eviction by filing R.C.O.P. No. 1 of 2005. The said proceeding was instituted on 30.12.2004.

The second Petitioner filed R.C.O.P. No. 32 of 2005 on 28.10.2005 praying for an order to deposit the rent before the Rent Controller. According to the second Petitioner, the Respondent has not received the rent for a period of two months and this resulted in filing the Rent Control Original Petition to deposit the rent. The application was ultimately allowed as per order dated 27.03.2007. Accordingly, the second Petitioner has deposited Rs. 400/-being the rent for two months.

THE FIRST GROUND:

The first issue is as to whether the tenant has committed willful default.

The eviction proceedings in R.C.O.P. No. 1 of 2005 was instituted on 30.12.2004. The landlord claimed 18 months arrears. The first Petitioner, instead of complying with the mandatory provisions of Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, one after another, filed a petition u/s 8(5) through the second Petitioner to deposit the rent. In the said Rent Control Original Petition, it was her contention that the rent was in arrears only for two months. The falsity in the said contention is writ large. The second Petitioner has no case that subsequent to the institution of proceedings in R.C.O.P. No. 1 of 2005, she has paid the rent to the Respondent either directly or by money order or by cheque.R.C.O.P. No. 32 of 2005 was filed only on 28.10.2005. Therefore, the first Petitioner was bound to prove that he has paid the rent at least upto July, 2005. The first Petitioner has not produced even a scrap of paper to show that the rent was paid subsequent to the institution of proceedings for eviction.

The subsidiary question is as to whether an order obtained by the second Petitioner u/s 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 would come to her rescue to convert the willful default to one of simple default.

Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 mandates that before filing an application to deposit rent, the tenant has to comply with sub-clauses 2,3 and 4 in succession. It is true that the second Petitioner has produced copies of the cheques dated 02.09.2005 in R.C.O.P. No. 32 of 2005. Those cheques were drawn long after the institution of the eviction proceedings. There is nothing on record to show that the Petitioners have called upon the Respondent to specify the bank into which the rent could be deposited. Similarly, as a second step, they have not sent the rent by money order after deducting the money order commission. It was only in the event of complying with the mandatory provisions of Section 8(2), 8(3) and 8(4), the Petitioners can invoke Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Any deposit made u/s 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, without complying with the earlier provisions of Section 8, will not convert the willful default into one of simple default.

The Supreme Court in E. Palanisamy Vs. Palanisamy (D) by Lrs. and Others, , indicated that the procedure contemplated u/s 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 should be followed by the tenant step by step and an earlier step is a pre-condition for the next step. The relevant observation reads thus:

Mr Sampath, the learned Counsel for the Appellant argued that since the Appellant tenant had deposited the arrears of rent in court, it should be taken as compliance with Section 8 of the Act. This would mean there is no default on the part of tenant in payment of rent and therefore, no eviction order could have been passed against the Appellant on 14 that ground. According to the learned Counsel, the court should not take a technical view of the matter and should appreciate that it was on account of refusal of the landlords to accept the rent sent by way of money orders that the tenant was driven to move the court for permission to deposit the arrears of rent. Since there is a substantial compliance with Section 8 inasmuch as the arrears of rent stand deposited in court, a strict or technical view ought not to have been taken by the High Court. We are unable to accept this contention advanced on behalf of the Appellant by the learned Counsel. The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh v. Ganpat Lal and M. Bhaskar v. J. Venkatarama Naidu.

The first Petitioner in his evidence clearly admitted that it was only after filing the suit in O.S. No. 353 of 2004, the Respondent refused to receive the rent. Therefore, the Petitioners were bound to prove the payments subsequent to November, 2004.

During the course of arguments, I have asked the learned Senior Counsel for the Petitioners to produce the documents marked on the side of the first Petitioner evidencing payment of rent for the period at least from December, 2004 to October, 2005. The learned Senior Counsel was not in a position to produce any such documents. However, the learned Senior Counsel contended that there was an admission by the Respondent in her evidence that she has received the rent even after the institution of the suit in O.S. No. 353 of 2004. The evidence of the Respondent referred to by the learned Senior Counsel has to be seen in the context in which it was made. Even the first Petitioner has no case in his evidence that he has paid the rent even after filing the suit in O.S. No. 353 of 2004. Therefore, there is nothing on record to show that for the period from June, 2003 to December, 2004 or from the date of institution of the eviction proceedings to the date of passing the order in R.C.O.P. No. 1 of 2005, the Petitioners have made payments towards the arrears. These material facts would clearly give an idea that the Petitioners have kept the rent in arrears willfully. The order passed by the Rent Controller in R.C.O.P. No. 32 of 2005 will not come to the rescue of the Petitioners to save them from the consequences of willful default. Therefore, the learned Rent Control Appellate Authority was fully justified in arriving at a conclusion that the Petitioners were liable for eviction on the ground of willful default.

THE SECOND GROUND:

The Respondent wanted the premises to be vacated for the purpose of treatment of her husband. Her husband was a kidney patient and as such, he required continuous treatment. It is also a matter of record that the husband of the Petitioner died during the pendency of the Rent Control Original Petition. This subsequent event was taken advantage of by the Petitioners to contend that the ground regarding bona fide need was no longer available to the Respondent to obtain an order of eviction. Therefore, the core question is whether the bona fide need was only to accommodate the husband of the Respondent. The averments in the eviction petition clearly indicates that the bona fide need was not confined to the husband of the Respondent but it was rather a need of the entire family. The Respondent has clearly stated that the building requires for the accommodation of the family. While claiming accommodation for bona fide purpose, the Respondent has primarily projected the need of her husband. That does not mean that the eviction was not for the entire family. The bona fide need of the family was not considered by the Rent Controller. This also resulted in the denial of eviction on the ground of bona fide need.

The Supreme Court in Gaya Prasad v. Pradeep Srivastava reported in 2001(2) SCC 604 held that while considering the bona fides of the requirement of the landlord, the crucial date is only the date of petition. The observation reads thus:

We cannot forget that while considering the bona fides of the need of the landlord the crucial date is the date of petition. InRamesh Kumar v. Kesho Ram a two-Judge Bench of this Court (M.N. Venkatachaliah, J., as he then was, and N.M. Kasliwal, J.) pointed out that the normal rule is that rights and obligations of the parties are to be determined as they were when the lis commenced and the only exception is that the court is not precluded from moulding the reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations. What the learned Chief Justice observed therein is this: (SCC pp.626-27, para 6) "6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a ''cautious cognizance'' of the subsequent changes of fact and law to mould the relief.

In Rishi Kumar Govil Vs. Maqsoodan and Others, , the Supreme Court considered the earlier judgments on the question of bona fides and observed thus:

In Ragavendra Kumar Vs. Firm Prem Machinary and Co., it was held that it is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter. In Gaya Prasad Vs. Sh. Pradeep Srivastava, it was held that the need of the landlord is to be seen on the date of application for release. In Prativa Devi Vs. T.V. Krishnan, it was held that the landlord is the best Judge of his requirement and courts have no concern to dictate the landlord as to how and in what manner he should live. The bona fide personal need is a question of fact and should not be normally interfered with..............................................................."

The learned Senior Counsel appearing for the Petitioners, during the course of his submissions, contended that the Respondent has been living along with her children at Bangalore and as such, she is not in need of the subject premises. The said contention was opposed by the learned Counsel appearing for the Respondent, as according to him, the Respondent is very much available in the locality and she was constrained to assign a portion of the subject property, where the house stands, to meet the expenses for the treatment of her husband.

Merely because the children are in Bangalore, it cannot be said that the Respondent does not require the subject premises for her own occupation. The Respondent''s home town is admittedly Azhagapuri in the District of Karaikudi. Like, any other individual, the Respondent is also desirous of staying in her own village. Therefore, the fact that she lived elsewhere along with her family earlier, does not preclude her from claiming her own premises. It is not as if the Respondent has filed the eviction petition immediately after granting the lease in favour of the Petitioners. The Petitioners are in in possession of the property for the last 17 years. The first Petitioner is stated to be a ration dealer and he has also made an offer to purchase the premises in question. Therefore, it is not as if the first Petitioner is not in a position to find out alternative accommodation. While considering an issue like this, the comparative hardships also assumes significance. The Respondent is a widow and we cannot find fault with her when she expresses a desire to reside in her own premises.

Therefore, I am of the view that the appellate authority was fully justified in ordering eviction on the ground of arrears of rent and bona fide need. Since the pleadings and the evidence are lacking in material particulars, with respect to the claim regarding change of user and nuisance, I am not in a position to confirm the order passed by the appellate authority, on those two grounds.

In short, I confirm the order of eviction passed by the learned appellate authority under Sections 10(2)(i) and 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and dismiss the claim under Sections 10(2)(ii)(b) and 10(2)(v) of the said Act. The Petitioners are granted time till 31.05.2011 to hand over vacant possession of the subject premises to the Respondent subject to the production of an affidavit of undertaking before the learned Rent Controller, Karaikudi, agreeing to vacate the premises. Such undertaking shall be filed within a period of two weeks from today, failing which, it will be open to the Respondent to execute the order of eviction.

TO CONCLUDE:

In the upshot, I dismiss the Civil Revision Petition by confirming the judgment under Sections 10(2)(i) and 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Consequently, the connected miscella neous petitions are also dismissed. No costs.