S. Herbert vs C. Shanmugam

M.M. Sundresh, J.—The two revisions have been filed by the tenant challenging the rent control proceedings. The landlord has preferred an eviction in R.C.O.P. No. 262 of 1997 on the file of Principal District Munsif Court, Madurai on the ground of wilful default. The Court below has ordered eviction and challenging the same, C.R.P. No. 67 of 2006 has been filed. Pending the revision, the petitioner has obtained an order of stay and the stay was granted on condition that the petitioner shall pay the amount fixed by the Courts below. In view of the non-payment of the said amount execution proceedings have been initiated and an order of eviction has been ordered. Challenging the same, C.R.P. No. 216 of 2009 has been filed.

The eviction petition has been filed by the respondent herein being the power agent of the one Sooran. The said petition has been filed seeking eviction on the ground of wilful default. It is the case of the respondent that the petitioner is liable to pay a sum of Rs. 800/- per month as rent. Since the petitioner has not paid the rent from 04.07.1995 to 04.08.1997, the petition has been filed seeking eviction on the ground of wilful default. The petitioner has taken a stand that the rent is only Rs. 400/- per month and the said amount has been paid by him regularly. The petitioner has also contended that the power agent cannot represent the principal. However, the Court below accepted the contention of the respondent ordered eviction in R.C.O.P. No. 262 of 1997.

Challenging the same, an appeal in R.C.A. No. 6 of 2002 on the file of Principal Subordinate Court, Madurai. During the pendency of the said proceedings additional document was marked in Ex.P6 indicating the fact that the petitioner has agreed to vacate the premises within 15 days and also the petitioner is unable to pay the rent and arrears. Based upon the said document, the Appellate Court confirmed the order of the Rent Controller. Challenging the same, the revisions have been filed.

The learned Counsel for the petitioner submitted that the respondent being a power agent cannot represent the principal. According to the learned Counsel that the power agent cannot depose on behalf of the principal, since the same is not authorised under Order 3, Rule 1 & 2 CPC. It is further submitted that the Courts below have committed an error in fixing the onus on the petitioner to prove that the rent is only Rs. 400/- per month instead of directing the respondent to prove that the rent is Rs. 800/- per month. Another submission of the petitioner is that the petitioner having paid the rent of Rs. 400/- per month, the order passed by the Court below in E.P. No. 155 of 2006 is liable to be set aside since the Rent Controller on the earlier occasion has not fixed any amount as rent.

It is seen that the tenancy itself has been entered into between the petitioner and the respondent acting as a power agent of the principal. Therefore, the contention of the petitioner that the power agent cannot depose about the facts which only the principal is aware. It is also the case of the parties that the power agent has been receiving the rent. Therefore, the said contention of the petitioner cannot be accepted. The petitioner has relied upon the judgment reported in Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. and Others, to contend that a power agent cannot depose any such way to replace the principal. As mentioned earlier, the above said judgment of the Hon''ble Supreme Court is not applicable to the present case on hand in view of the facts mentioned earlier.

In so far as the contention of the petitioner that the onus is on the respondent to prove about the quantum of rent is concerned, the same is also liable to be rejected. The Appellate Court has relied upon Ex.P6, which has not been objected by the petitioner. The Appellate Court has given a clear finding that Ex.P6 clearly stipulates that the petitioner has accepted that he is unable to pay the rent and arrears and he will vacate the premises within 15 days. In so far as the third contention of the petitioner is concerned, the same is also liable to be rejected, since the Courts below have ordered eviction only on the ground that the rent is Rs. 800/- per month and therefore it is not for the petitioner to contend that no amount has been fixed by the Courts below. When an eviction has been ordered on the ground of wilful default that the rent of Rs. 800/- per month has not been paid, it can be very well inferred that the rent is only Rs. 800/- per month. Therefore, the said contention of the petitioner is also liable to be rejected.

In the judgment reported in (2009 (2) CTC 705 Batco Roadways rep. by its partner Mr. M.H. Patni, No. 21, Muthu Mari Street, Chennai - 600001 v. A. Radhammal), the Hon''ble High Court has held that when there is a concurrent finding of fact given by the Courts below, the revisional Court while exercising the power u/s 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 cannot review the same. Similarly in the judgment reported in Shamshad Ahmad and Others Vs. Tilak Raj Bajaj (Deceased) through LRs. and Others, . the Hon''ble Supreme Court has held that power under Article 227 is supervisory in nature and the High Court cannot act as a Court of appeal of a Court of error. It was further held that the High Court can neither review nor reappreciate nor reweigh the evidence upon which the Courts below have come to the conclusion. The Hon''ble Supreme Court has also observed that even a High Court cannot correct the error of fact and even a error of law and to substitute its own decision with that of the inferior Court or tribunal. The Hon''ble Supreme Court in the judgment reported in 2003 (6) SCC 461 State v. Navjot Sandhu, has held that the power under Article 227 should be exercised sparingly and the same cannot be used to correct mere error.

Hence applying the above said principle, this Court is of the opinion that the revisions filed by the petitioner are liable to be dismissed. Accordingly they are dismissed. The learned Counsel for the petitioner seeks five months time for handing over possession and the respondent who is a party in person does not have any objection for the same. Accordingly five months time is granted to the petitioner for handing over possession on condition the petitioner files an undertaking affidavit before this Court within a period of two weeks from the date of receipt of copy of this order and also on further condition the petitioner continues to pay the rent. With this observation, the revisions are dismissed. No costs. Consequently the connected C.M.P. and miscellaneous petition is closed.