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Judgment
Thanikkachalam, J.—The tenant is the petitioner herein. The landlord filed a petition for eviction on the grounds of immediate demolition and
reconstruction and wilful default in payment of rent under Sections 14(1)(b) and 10(2)(1) of the Tamil Nadu Buildings (Lease and Rent) Control
Act, 1960 as amended by Act 23 of 1973 and Act 1 of 1980 (hereinafter referred to as ''the Act'').
The case of the landlord is as under:
The premises at old No. 319 and new door No. 4, Murugappa Street, Triplicane, Madras-5 belongs to the petitioner in the eviction petition. The
respondent in the eviction petition is the tenant in respect of the petition premises on a monthly rent of Rs. 8. The petitioner has already filed a
petition for eviction in the year 1968 u/s 14(1)(b)of the Act. Even from that lime onwards the tenant was not paying the rent to the landlord. The
tenant denied the title of the landlord. Counter was filed in R.C.O.P. No. 3112 of 1969 and eviction was ordered in the said petition. The tenant
filed an appeal before the appellate authority and the appeal was dismissed. It is thereafter a revision was filed before this Court, which was also
dismissed. While so, according to the landlord, the tenant committed wilful default in payment of rent from 1.7.1969 to October, 1988. Therefore,
according to the landlord the tenant committed wilful default in payment of rent and thereby rendering himself liable to be evicted u/s 10(2)(1) of
the act. The landlord further stated that the petition premises is an old one and therefore, he required the same for immediate demolition and
reconstruction.
The tenant filed a counter stating as under:
The landlord has already filed a petition for eviction u/s l4(1)(b) of the Act and in the said eviction petition eviction was ordered. But the landlord
did not execute the decree obtained by him for eviction. In the meanwhile 12 years elapsed from the date of passing the decree. Hence the decree
is not executable. In such circumstances the tenant pointed out that a second petition u/s 14(1)(b) of the Act is not maintainable. The tenant also
stated that it is not correct on the part of the landlord to say that the tenant was not paying the rent to the landlord. The landlord did not send any
notice prior to the filing of the present petition. The landlord has not stated as to why he has not taken any steps for the past 20 years, either in the
matter of collecting the rent or in vacating the tenant. The tenant is entitled to the protection under the City Tenants Protection Act, since the super
structure was put up by him. Ultimately the tenant submitted that there is no relationship of landlord and tenant between himself and the petitioner in
the eviction petition. As the time of hearing the eviction petition the petitioner in the eviction petition did not press the ground relating to Section
14(1)(b) of the Act. Therefore the only ground that survives for consideration in the revision is eviction sought for u/s 10(2)(1) of the Act. One
Govindarajan was examined himself as P.W. 2 and his power of attorney agent was examined as P.W. 1. The respondent examined himself as
R.W. 1. The petitioner filed four documents and the respondent filed 10 documents. Considering the facts arising in this case, the Rent Controller
held that there is relationship of landlord and tenant between the petitioner and the respondent in the eviction petition. The Rent Controller further
held that the tenant did not commit any wilful default in payment of rent as alleged by the landlord. Accordingly eviction petition was dismissed.
However, on appeal, the Rent Control Appellate Authority considering the facts arising in this case, came to the conclusion that there is relationship
of landlord and tenant between the petitioner and the respondent in the eviction petition and that the tenant committed wilful default in payment of
rent for the petition period as alleged by the landlord. Accordingly, the Rent Control Appellate Authority reversed the order passed by the Rent
Controller and ordered eviction u/s 10(2)(1) of the Act. It is against that order tenant is in revision before this Court.
Learned Counsel appearing for the tenant submitted as under:
The appellate authority erred in reversing the well considered decision of the Rent Controller. The appellate authority was not correct in admitting
the additional evidence produced before it without any proof. It is not correct to state that the petitioner herein committed wilful default in payment
of rent for the petition period as alleged by the landlord. In the earlier proceedings the petitioner herein has categorically denied the title of the
respondent herein and that the finding given therein was not disturbed for more than 16 years. After securing the order of eviction, it is not open to
the respondent herein to file a petition for eviction u/s 100(2)(1) of the Act. The additional evidence produced before the appellate authority were
already considered by the Rent Controller and he gave a categorical finding that the petitioner herein has perfected his title in view
ofthedenialoftitleasearlyasinl970inthecarlier proceedings especially when the petitioner has produced Ex. A-1 to Ex. A-10 which conclusively
would go to show that the petitioner has been enjoying the properly in his own right as the owner. The appellate authority was not correct in stating
that since the respondent herein is residing in a foreign country he was notable to collect the rent periodically. On that score eviction cannot be
ordered. The appellate authority failed to consider the decision rendered in the case of Umar Baksh v. Boldeo Singh 1932 Ind.Cas. 35, wherein it
was categorically held that when the rent was not paid at all by the tenant for a period of more than 20 years and no serious attempt was ever
made to recover the rent, more so when the petitioner having denied on oath that he never intended to pay the rent or regarded the respondent as
landlord, it should be presumed that it was sufficient to establish adverse possession and that the relationship of landlord and tenant ceases. The
appellate authority failed to consider the previous proceedings which was filed for demolition and reconstruction on the ground that the building
was in a dilapidated condition. Nevertheless no steps have been taken to recover possession and that itself shows that the landlord never took any
steps to establish his right and when once it was found that no rent was paid from 1969, the appellate authority ought to have found the relationship
of landlord and tenant ceased and that the eviction proceedings ought to have been dismissed.
On the other hand, learned Counsel appearing for the respondent submitted as under:
The respondent herein originally filed the petition for eviction of the ground of demolition and reconstruction u/s 14(1)(b) of the Act. Eviction was
ordered. The appeal and the revision filed by the tenant were dismissed. In the earlier proceedings, the respondent contended that he is the owner
of the superstructure and denied the title of the landlord. After taking into consideration of contentions put forward by the tenant, both the courts
below concurrently came to the conclusion that the respondent herein is the landlord and the petitioner is the tenant and he should be liable to be
evicted u/s 14(1)(b) of the Act. The fact that the eviction order was not put into execution for a period of more than 16 years would not by itself
go to show that the petitioner herein has become the owner of the petition premises. The petitioner herein say that the relationship of landlord and
the tenant ceased. Admittedly the tenant has not paid the rent for the petition period. No explanation was offered as to why the rent was not paid.
The respondent herein is residing abroad. Therefore he was unable to collect the rent periodically from the tenant. The fact that the rent was not
collected for a long time would not prove that there is no relationship of landlord and tenant between the respondent and the petitioner herein. It is
not correct to state that the petitioner herein established his title over the petition premises by adverse possession. This issue cannot be decided by
the rent control court. Further since the petitioner denied the title of the respondent herein over the petition premises, he is liable to be evicted on
that ground also. Since the order passed by the Rent Controller is not in accordance with the law, the appellate authority set aside the order
passed by the Rent Controller. Under such circumstances, it was pleaded that no interference is called for with the order passed by the appellate
authority.
I have heard the rival submissions.
The fact remains that the petition for eviction was filed on two grounds viz. under Sections 10(2)(1) and 14(1)(b) of the Act. At the time Of
hearing, the ground for eviction u/s 14(1)(b) of the Act was not pressed and the only ground that survived for consideration was eviction sought for
on the ground of wilful default in payment of rent u/s 10(2)(1) of the Act. According to the petitioner in the eviction petition the respondent failed
and neglected to pay the rent from 1.7.1969 to October,1988. Therefore, the tenant is liable to be evicted u/s 10(2)(1) of the Act. It remains to be
seen that earlier the petitioner in the eviction petition filed R.C.O.P. No. 3112 of 1969 against the respondent for eviction on the ground of
demolition and reconstruction. That petition was allowed and eviction was ordered. The respondent filed R.C.A. No. 213 of 1972 and that was
also dismissed. The revision filed, by the respondent was also dismissed. However, the petitioner did not execute the order of eviction obtained by
him u/s 14(1)(b) of the Act. Since eviction was ordered in an earlier eviction petition u/s 14(1)(b) of the Act, the respondent herein could not press
the eviction petition filed u/s 14(1)(b) of the Act. Now the point that arises for consideration is whether the petitioner herein has committed wilful
default in payment of rent for the petition period. According to the petitioner herein when an order of eviction was passed in an earlier proceeding
in R.C.O.P. No. 3112 of 1969 and after reasonable time for eviction has been elapsed, thereafter the relationship of landlord and tenant would not
exist between the petitioner and the respondent in the eviction petition and the tenant would be deemed to be a trespasser. This ground raised by
the petitioner herein contains sufficient force because once an order of eviction was passed and the time granted for evicting the tenant from the
petition premises is also exhausted, thereafter the respondent in the eviction petition cannot be deemed to be a tenant under the Act, but he would
be considered only as a trespasser. When there is no relationship of landlord and tenant between the parties to an eviction petition the eviction
petition has got to be dismissed for want of relationship of landlord and tenant. After the eviction order was passed in the earlier proceedings in
R.C.O.P. No. 3112 of 1969 till the date of filing the present eviction petition, there was no lease agreement between the petitioner and the
respondent in the eviction petition so as to enable the petitioner in the eviction petition so as to unable the petitioner in the eviction petition to say
that there is relationship of the landlord and tenant between them. The respondent in the eviction petition was all along denied the title of the
petitioner and claiming title in himself. No doubt, in the earlier proceedings eviction was ordered on the basis that the relationship of landlord and
the tenant existed between the petitioner and the respondent in the eviction petition. The point is whether that order would operate res judicata
against the petitioner herein. The answer is that when once an order of eviction is passed against a tenant and that order of eviction was not
executed before twelve years period, the relationship of landlord and the tenant would be ceased and the order would become nullity. Now
therefore what remains to be considered in the present eviction petition is whether the landlord can file the present petition for eviction u/s 10(2)(1)
of the Act. As already seen after the order of eviction was passed and after the time granted in the order of eviction for evicting the tenant also get
exhausted, the respondent in the eviction petition would be deemed to be a trespasser and the amount payable by him cannot be called as rent, but
it would be damages for use and occupation. When the respondent in the eviction petition''s a trespasser, then the petition for eviction cannot be
filed under the Rent Control Act.
It is significant to note that where a Rent Controller passed an order directing the tenant to put the landlord in possession on or before a certain
date, it was held that till that date the tenant was entitled to be in lawful possession of the premises. See : B. Rangaswami Naidu Vs. Vummidi
Bangaru Chetty and Sons and Another, . If the appellate authority grants further time for delivery of possession till the expiry of time, the tenant is
not deemed to be a trespasser. Similarly when the matter is taken in revision or writ under Article 226 of the Constitution to the High Court, the
tenant is not deemed to be a trespasser Manivenkatappa v. Krishna Rao (1956) 1 M.L.J. 7(S.C.). Therefore, in the present case also the
respondent herein cannot file the petition under Sectopm 10(2)(1) of the Act against the petitioner herein since the petitioner herein is now deemed
to be a trespasser. If that is so, the remedy lies elsewhere.
In the petition for eviction, the respondent herein contended that the tenant committed wilful default in payment of rent from 1.7.1969 till
October, 1988. It means for a period of nearly 20 years. The landlord has not chosen to take any steps for collecting the rent from the tenant.
According to the landlord he is abroad and therefore, he is unable to collect the rent periodically. The fact remains that the present petition was
filed by the power of attorney agent of the landlord. It is not known as to what prevented the landlord from appointing the power of attorney agent
to collect the rent from the tenant especially when an order of eviction is passed in favour of him in the earlier proceedings. There is no evidence on
record to show that the respondent herein ever demanded the rent from the petitioner herein after the order of eviction was passed in the earlier
proceedings. It is true that simply because the landlord has not demanded the rent for a long period, that would not disentitle him from collecting
the rent from the tenant, of course, subject to law of limitation.
In the present case, we are concerned whether the tenant has committed wilful default in payment of rent as alleged by the landlord u/s 10(2)
(1) of the act. The facts on record would go to show that the respondent failed to establish that the petitioner herein has committed wilful default in
payment of rent u/s 10(2)(1) of the Act. It remains to be seen that every default would not amount to wilful default unless the landlord established
that there is an element of wilfulness in non-payment of rent in time. The Rent Control Appellate Authority failed to appreciate the facts arising in
this case in proper prospective. The legal principles followed by it are not applicable to the facts of this case. The appellate authority misdirected
himself in coming to the conclusion that the petitioner herein has committed wilful default in payment of rent u/s 10(2)(1) of the Act. For all these
reasons the order of eviction passed by the Rent Control Appellate Authority is not sustainable and hence the same is set aside. Accordingly
petition filed u/s 10(2)(1) of the Act stands dismissed.
In the result the revision stands allowed. No costs.