Mrs. A.C. Benjamin (Nee A.C. Wicks) vs A.C. Newman Family Trust

Swamikkannu, J.—This is a civil revision petition filed u/s 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960) as amended by the Tamil Nadu Act XXIII of 1973 by the Respondent herein in House Rent Case No. 2060 of 1979 before the Court of the learned 10th Judge, Court of Small Causes, Madras against the revision Petitioner herein Mrs. A.C. Benjamin (Nee A.C. Wicks) u/s 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960) for eviction of the revision Petitioner herein on the ground of willful default in payment of rent.

The case of the Respondent herein, who was the Petitioner in House Rent Case No. 2060 of 1979 viz., A.E. Newman family trust by its sole trustee O.B. Newman, can be stated briefly as follows: The Petition premises (No. 40, Paramananda Mudali Street, Madras) and the other properties originally belonged to one A.E. Newman. He created a trust over all these properties including the Petition property by a trust deed dated 20th November 1944. As there was some difference of opinion between the beneficiaries, the Petitioner in the Rent control Petition the Respondent herein, and another filed Civil Suit No. 106 of 1977 on the file of High Court, Madras. By Order dated 9th August 1977, in the said suit, the Respondent herein was appointed as the sole trustee of the said trust. He had entered office and had been doing all acts of necessity in furtherance thereof. The revision Petitioner is a tenant under the Respondent in respect of the said premises on a monthly rent of Rs. 35. The Tenant has not paid the rents for the months of April to June. In a letter dated 7th June 1979 addressed to the Respondent. The revision Petitioner has admitted her default. The default committed by the revision Petitioner for the month of April and May was willful and intentional. The revision Petitioner is liable to be evicted on the ground of willful default in payment of rent.

On the other hand, the case, that was put forward by the revision Petitioner herein, before the Rent Controller, as seen from the counter-statement that was filed by her for the above allegations contained in the rent control Petition by the Respondent herein was, that he is one of the beneficiaries of the trust properties and as such need not pay any rent to the Respondent and that therefore the Petition is liable to be dismissed with costs.

On the above pleadings, the following points were taken for consideration on the evidence available before the learned Rent Controller and they are these:

Whether there exists the relationship of landlord and tenant between the Petitioner and tenant?

Whether the Respondent has committed willful default in payment of rent?

To what relief the Petitioner is entitled?

On behalf of the Respondent herein, O.B. Newman was examined as P.W. 1. The exhibits that were marked before the learned Rent Controller on behalf of the Petitioner therein were seven in number. Exhibits P.l is page 3 of the account book regarding payment of rent maintained by the revision Petitioner herein for the month of January 1977. Exhibit P.2 is the certified copy of the application No. 330 of 1978 in Civil Suit No. 106 of in the Original Side of the High Court dated 16th March (judgment by Natarajan J.). This Order is with respect to the applicant therein and the revision Petitioner herein wherein the prayers were:

(1) the Respondent be directed to pay Rs. 1,340 collected from the tenants of the trust properties and not made over to the applicant sole trustees;

(2) that the Respondent be directed to pay rent for the trust property in her occupation at Rs. 100 per mensem from 18th December 1976 to the applicant-sole trustee; and

(3) that the costs herein be allowed.

Exhibits P. 3 is the letter dated 27th June 1979 sent by the revision Petitioner to the Respondent. Exhibit P. 4 is the certified copy of the decree dated 9th August 1977 made in Civil Suit No. 106 of 1977 on the file of this Court. The parties in Civil Suit No. 106 of 1977 are: O.B. Newman and D.J. Newman (Plaintiffs) and W.A. Newman, Mrs. S.T. Mayard, Mrs. A.C. Benjamin (the revision Petitioner herein), Brazil Newman and Mrs. B. Moses nee Boryl Newman. It is pointed out that by virtue of this Order, the Respondent herein, who was appointed as the sole trustee had to submit a preliminary report as to his taking possession as trustee of the said trust before this Court from 23rd August 1977. Item 3 therein, the premises in question, figures in the schedule to the said Order in Civil Suit No. 106 of 1977 dated 9th August 1977. Exhibits P.5 is the Order dismissing the Application No. 4372 of 1978, filed in Civil Suit No. 106 of 1977. This Order has emanated from the Original Side of this Court on 1st March 1979. It is pointed out that the premises in question in the rent control Petition, whose Appellate Order is the subject matter of this revision, was also dealt with by the High Court in the said Order. Exhibit P. 6 is the bunch of counterfoils of the rent receipts issued by the revision Petitioner herein for the months of January 1977 to July, another receipt dated 7th July 1977 for the month of June 1977 for No. 2, P. Mudali Street, for the month of June 1977, receipt dated 7th August 1977 for No. 63, St. Zavier Street, for the month of July 1977. and receipt dated 7th August 1977 for Rs. 50 as rent for 28, Portuguese Street and rent receipt dated 7th August 1977 for Rs. 35 for No. 2, P. Mudali Street for the month of July, 1977. Exhibit P. 7 series are the money Order coupons.

On behalf of the Respondent, as already seen, the revision Petitioner herein had examined herself as R.W. 1 Exhibit R.1, the registration copy of the deed dated 20th November 1944 executed by one Albert Edward Newman creating a trust in favour of his children. Exhibit R. 2 is the certified copy of the judgment dated 5th February 1975 in Original Suit No. 4964 of 1973 on the file of the Court of the learned fifth Assistant City Civil Judge, Madras. By the said judgment, the suit for injunction filed by Mrs. A.C. Wicks (the revision Petitioner herein) against W. A. Newman and O. B. Newman was decreed against the first Defendant, and the Plaintiff (the revision Petitioner herein) was entitled to a permanent injunction restraining the first Defendant, W.A. Newman, from letting out the premises No. 3, Paramanandia Mudali Street, Madras-1 to third parties and the suit was also dismissed against the said O.B. Newman (the Respondent herein) as no relief was sought. An endorsement was made to that effect on the plaint and P.W. 1 in the said suit also deposed to that effect saying specifically that she was restricting his claim against the first Defendant alone. Hence the learned fifth Assistant Judge City Civil Court, Madras, exonerated the second Defendant from any claims in the said suit. In the result, the suit was decreed against the first Defendant as mentioned above. It is also relevant in this connection, to note as pointed out by Mr. A. Subramanian learned Counsel for the revision Petitioner herein that the said Court, while delivering the judgment, has observed as follows in paragraph 10 of the said judgment:

Taking all the facts into consideration I have come to the conclusion that the Plaintiff who is a beneficiary in the trust deed is entitled for the possession of No. 3, Pararmanandia Mudali Street and that the Defendant is not entitled to let it out to others contrary to the terms of the trust deed. I am convinced that the Plaintiff has made out a case for injunction. Accordingly I find in favour of the Plaintiff on issue No. 2.

Issue No. 2 in the suit was:

Whether the Plaintiff was entitled to injunction?

It is also relevant, in this connection, to note that in the said suit, the present revision Petitioner as P.W. 1 and the, first Defendant, viz., W. A. Newman had examined himself as D.W. 1. In Exhibits R. 2, we find, Exhibit A.1, the registration copy of the Settlement deed dated 20th November 1944, which was executed by Albert Edward Newman in favour of his children and grand children was exhibited. Exhibit A-2, the copy of the notice dated 9th July 1973 from learned Counsel for the Plaintiff in that suit, to the Defendants was also exhibited. Exhibit A-3 the postal acknowledgment dated 13th July 1973 sent in reply to exhibits A-2 was also exhibited. Exhibit A-4 is another postal acknowledgment signed by the second Defendant for Exhibit A-2, Exhibit B-1 is the property tax receipt dated 3rd September 1973 issued by the Corporation of Madras. These particulars are taken from the contents of the judgment as seen from the extremely of the said judgment, the certified copy of which has been filed as exhibit R-2. They are not before this Court now, viz. the evidence adduced or exhibits that were filed before the learned fifth Assistant Judge City Civil Court, Madras in Original Suit No. 4964 of 1973, which was disposed of by this Court on 5tb February 1975.

It is the main attack of Mr. A. Subramanian, learned Counsel for the revision Petitioner, that this document, exhibit R-12 was not taken into consideration in the proper perspective by the Courts below viz., by the Court of the Rent Controller as well as the Court of the learned Appellate Authority while disposing of the Petition as well as the appeal preferred thereon. In other Words, the contention raised on behalf of the revision Petitioner by Mr. A. Subramanyan is, that the beneficiaries of the trust that had been created by virtue of the document, the registration copy of which is exhibit R-1, will show that the relationship between the revision Petitioner herein and that of the Respondent, is not that of a tenant and the landlord as contemplated by the provisions of the Tamil Nadu Buildings (Lease and Rent Control), Act (XVIII of 1960) as amended by the Act XXIII of 1973. In other words Mr. A. Subramanian, learned Counsel for the revision Petitioner, submits inter alia that the first and the foremost point that had to be adverted to by the Tribunal constituted under the provisions of the Act XVIII of 1960 must be to see whether there is a relationship of landlord and tenant before actually applying its mind regarding the allegations that are made in the application either for eviction of the tenant or for any other reliefs that could be granted under the provisions of the said special enactment.

M. Vittal V. Souli, learned Counsel for the Respondent in this revision, on the other hand, vehemently contends that the documents that were filed before the learned Rent Controller were taken into consideration in a judicial manner and it cannot be said that under any circumstances, the Courts below have not taken into consideration the contents of the documents nor the evidence that had been unfurled through the witnesses who were examined in that suit capriciously or exercised a discretion which is not quite judicial and can be subjected itself to the jurisdiction u/s 25 of the special enactment.

The point for consideration in this civil revision Petition is:

Whether the Appellate Order pronounced by the learned Appellate authority has got any infirmity so as to be revised under the provision of Section 25 of the Act XVIII of 1960 as amended by the Act XXIII of 1973 by a special procedure viz., with respect to the procedure of taking evidence.

It is not as if that verbatim the evidence has to be taken, it is sufficient if the notes of the deposition, that is actually emanating from the witness in a witness box, that can be recorded by the Rent Controller and that the same is treated as the material for arriving at a conclusion regarding the point that is actually raised in the Petition. It is also relevant to note that while taking the matter on file and proceed with the same afresh, the learned Rent Controller has to give opportunities to both sides to adduce further evidence if any, both oral and documentary and come to the conclusion. In this view, the judgment and decree of the lower Appellate Court are set aside. The civil revision Petition is allowed and the matter is remitted back to the learned Rent Controller as mentioned above for fresh disposal.

In this view, when the entire judgment that had been pronounced both by the learned Rent Controller as well as the learned Appellate authority, this Court does find that the relationship which will give rise to any treatment of a list that is said to have taken place between the parties for a Petition had not been properly construed and approached. This aspect, it is a pity, that the Appellate authority had also not taken into consideration. It is seen that exhibit R-2 has not been given the treatment, which it ought to have been given so as to take the same as the basis for considering the aspect of relationship of a landlord and a tenant as per the definition of the landlord and tenant contemplated by the special enactment of the Tamil Nadu by its enactment hatched out from the State Legislature as the Act XVIII of 1960 as amended by the Act XXIII of 1973. It is needless to say that this is not a stage at which the contents of the documents that were actually filed before the learned Rent Controller or the findings of the Appellate authority in its judgment could be questioned in this revision, because, the scope of Section 25 of the Act XVIII of 1960 is very limited and at the same time it is also very wide in its scope in that it gives a power of telescopic introspection of the Order that had been subjected to revision under the provisions of Section 25 in that this Court has to go not only into the manner in which the evidence that had been dealt with by the courts below but also the concepts underlying the document were not taken into consideration in the proper perspective, and in the light of the provisions which are in existence in the various enactments. In this view, the document exhibit R-2, ought to have been taken into consideration with the provisions of the Trust Act(II of 1882). When it is the case of the Respondent to the Petition in a rent control matter that he or she is not a tenant obliged to pay the rent to the Petitioner who seeks eviction u/s 10(2)(i) of the Act XVIII of 1960 require the Court or the Tribunal, which deals with it, to apply its mind regarding the relationship in the light of the content of the document, which is taken into consideration as a trust deed. As a matter of fact, the certified copies of Orders that have been filed as exhibits were taken into consideration by this Court while pronouncing the Orders in the Original Side of this Court, disclosed that particulars had been recognised and from time to time the trustees were appointed as per the provisions of the Act. Under these circumstances, when such a document like exhibit R-2 had not been dealt with, which ought to have been done, certainly the Appellate Order, in revision becomes revisable u/s 25 of the special enactment. In this view, the revision Petition is allowed The lower trial Court i.e. the Rent Controller, is directed to take the Petition (House Rent Case No. 2060 of 1979) on its file and to proceed with the same in accordance with the law by applying its mind to the provisions of the special enactment and the provision of the Trust Act as well as other relevant enactments that have got power on the question and give a proper decision, bearing in mind, at the same time, that it is only the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960) are to be taken as the main guiding factor to come to the conclusion in a matter that had been brought before it as the subject matter of the Petition. It is only an incidental and ancillary approach that has to be made with respect to various aspects that are brought to because, the scope of the provisions of the Act is, that Tribunal constituted under the Tamil Nadu Buildings (Lease and Rent Control) Act, the Rent Controller or the Appellate authority is not a Court. There is no Order as to costs in this revision.