A. Raja vs Ingnasi

The unsuccessful tenant has preferred the revision aggrieved against the order of eviction passed by the Rent Control Appellate Authority

Madurai in R.C.A.No.127 of 1992.

The respondent/landlord filed a petition for eviction against the tenant on the ground of wilful default in payment of rent and also for own use and

occupation. The tenant was in arrears from September, 1982. When the landlord intended to sell the building in question, the tenant never allowed

him to do so and the demised property is required for his own use and occupation as he has no other building. The tenant, however, resisted the

application for eviction and contended that he has paid the rent regularly upto May, 1984 and he had also entered into an agreement of sale with

the landlord on June, 1984. Ever since June,1984. there is no jural relationship of landlord and tenant and, as such, the present application is not

maintainable under law. The request of own use and occupation is also not true. There is absolutely no arrears of rent on and from June, 1984

since he is occupying the property in part performance of the agreement of sale. The landlord agreed to convey the property for a sum of Rs.

57,500 and he paid a sum of Rs.10,000 even on the date of agreement and subsequently another sum of Rs.20,000 was also paid on 19.3.86 and

endorsement under Ex.B.3 was also taken.

On behalf of the petitioner/landlord Exs.A.1 to A9 were marked and P.W.1 was examined. On the side of the respondent/tenant Exs.B1 to B

13 were marked and D.W.1 was examined. The trial Court allowed the application filed by the landlord and aggrieved against this, the tenant

preferred R.C.A. 127 of 1992 on the file of Principal Sub Judge, Madurai and that court upheld the order of eviction only on the ground of wilful

default in payment of rent and so far as the own use and occupation, the order of the trial court was set aside. Aggrieved against this, the tenant has

come forward with the present revision petition.

The learned counsel for the petitioner contended that the landlord is a purchaser of the property after the tenant''s induction and the rent at the

time was only Rs.40 per month. There was no subsequent lease agreement between the parties with regard to the rent and, therefore, the alleged

rent of Rs.400 per month is not correct. The landlord is always in the habit of buying and selling the properties. The Appellate Authority erred in

fixing the monthly rent at 400 per month without any evidence. When there is a sale agreement, non-payment of rent would not amount to wilful

default as per the decision of the Apex Court in Rakapalli Raja R.G. Rao., v. Naragani G. Sekararao 1990(I) L.W. 558. Further more, the tenant

has deposited the rent upto November, 1996 into the court and, as such, there is no arrears at all. There was no default on his part, much less,

wilful default. Towards the sale consideration of Rs.57,500, the tenant had paid Rs.30,000 and, as such, he is entitled to the benefit of section 53A

of the Transfer of Property Act.

Heard the learned counsel appearing for either parties.

The points that arise for consideration are (1) Whether the tenant has committed wilful default in payment of rent as alleged by the landlord? (2)

Whether the eviction order passed by the authorities below is proper and correct? and (3) To what relief?

Points: It is admitted that the revision petitioner is a tenant of the premises in question, even prior to the purchase by the landlord. The present

landlord purchased the property from the erstwhile owner on 22.5.82 and according to the landlord, the tenant is in arrears from September, 1982

and the premises is also required for his own use and occupation. Although the Rent Controller allowed the application on both the grounds, the

Appellate Authority ordered eviction only on the ground of wilful default in payment of rent and set aside in respect of the other ground viz., own

use and occupation. Under the circumstances, for the purpose of this revision, it is just and necessary to go into the question whether the

tenant/revision petitioner has committed default in payment of rent and whether the default is wilful in order to pass an order of eviction.

The landlord has come forward with a specific case that since September, 1982 the tenant is in arrears of rent and he has not paid the same in

spite of repeated demands. The tenant is said to have committed wilful default in payment of rent for a period of 30 months from September, 1982

to June, 1985 at a monthly rent of Rs. 400 per month. The tenant has taken a specific stand that he was in occupation of the premises only on a

monthly rent of Rs. 40 per month from the erstwhile owner and the rent was never increased to Rs. 400 per month. In fact, P.W.1 admitted in the

course of evidence that there was no tenancy agreement between the parties relating to quantum of rent viz., is Rs. 400. The landlord has also not

chosen to examine the erstwhile owner to prove this aspect. In the absence of any sufficient and reliable material, the finding given by the authorities

below that the rent was increased to Rs.400 per month is without any basis. Furthermore, the landlord has not filed any record to show that the

monthly rent was fixed at Rs.400 per month. It is also necessary to state that according to P.W.1, the tenant is in possession of pocket notebook

and whenever rents are paid, the landlord used to make entry therein. I am of the view that this has been introduced only to evict the tenant from

the premises on the ground of wilful default in payment of rent.

Ex.B.1 is the agreement of sale entered into between the landlord and the tenant on 20.6.84. Now, the landlord has come forward with a case

of eviction on the ground of wilful default in payment of rent by the tenant for the period September 82 to June 85. If really the tenant was in wilful

default in payment of rent, the landlord would not have failed to make a mention of the same in the agreement of sale. There is no whisper, in

Ex.B1 to point out that the tenant was in arrears of rent and the quantum of rent was also Rs.400 per month. In the absence of any such material,

under Ex.B 1, the present version of the landlord that the tenant was in arrears from September, 1982 is only invented for the purpose of this case

only to get a cause of action to file this petition for evicting him from the said premises.

The learned counsel for the tenant contended that after entering into an agreement of sale, there is no relationship of landlord and tenant and,

hence, the landlord cannot file any application on the ground that the tenant has committed default in payment of rent and the default is also wilful. It

is settled position of law that simply because there was some default in payment of the rent, it is not sufficient to pass an order of eviction but the

default should be intentionally wilful and deliberate. The burden is only upon the landlord to show that in spite of the agreement of sale, there was

an agreement that the rent has to be paid each and every month regularly till the execution of the sale deed. It is also seen from Ex.B 1 that the

period of six months has been provided for completing the sale transaction. It is also not in dispute that a sum of Rs. 30000 was paid towards this

sale transaction, which represents more than 50% of the sale amount. Admittedly the tenant has also filed suit against the respondent/landlord for

specific performance based on the agreement of sale and the same is also pending in the court of law.

The learned counsel for the landlord mainly contended that even assuming that there was an agreement of sale, it will not put an end to the

relationship of landlord and tenant and, as such, the tenant is liable to pay rent till the execution of the sale deed and as the tenant has failed to pay

the rent, the default can be construed as wilful and, as such, on this ground, he is liable to be evicted. The learned counsel for the landlord relied

upon a decision of this court in B. Kuppulal, v. V. Sogunthala and another, 1987 (100) L.W. 577 wherein it is observed that ""Mere agreement of

sale will not terminate the landlord-tenant relationship and the liability of the tenant to continue to pay the rent."" Reliance is also placed upon

another decision of this court in Ranganayaki Ammal v. Namagiri Venkataraman, 1994 (2) L.W. 148, wherein it is observed that ""Mere retention

of possession not sufficient and independent material necessary to show that nature of possession changed its character."" The landlord further

relied upon another decision of this Court in Jessie Thavamani Vs. Liakath Basha, wherein it is observed that ""By merely entering into an

agreement of sale, the tenant cannot acquire any right in the property. If possession is traceable to the agreement of sale, then such possession can

be sustained on the basis of the principle of part performance u/s 53A of the Transfer of Property Act."" There is no dispute about this proposition.

Similar view has also been reiterated in Jessie Thavamani Vs. Liakath Basha, , wherein it is observed that ""Mere agreement of sale would note

exonerate tenant from obligation to pay rent unless there is specific and express term providing termination of relationship of landlord and tenant

and absolving tenant from future liability to pay rent.

On the other hand, the learned counsel for the revision petitioner relied on a decision of this court in John V. John. v. Goobamally Estates, a

partnership Firm, Rep, by partner Abbasbhai Akberally Vedenagarvilla, 1989 T.L.N.J. 311, wherein it is observed that if the tenant in possession

entered into an agreement of sale and if the tenant continues in possession, the agreement puts an end to Jural relationship of landlord and tenant

and question of payment of rent does not arise.

The learned counsel for the revision petitioner also relied upon another decision of Apex Court in Rakapalli Raja Rama Gopala Rao Vs.

Naragani Govinda Sehararao and Another, , wherein it is observed that ""non payment of rent by tenant under bona fide belief that he was entitled

to purchase the property under a prior oral agreement pursuant to which he had already paid earnest money, held, default not wilful within the

meaning of proviso to Section 10(2)(1) of A.P. Buildings (Lease Rent and Eviction) Control Act, 1960. Hence tenant should be given the time

under the proviso to pay the rent failure to do so would result in miscarriage of justice."" I am of the view that this decision of the Apex Court is

applicable to the case on hand in all fours. Even in the case cited above, the agreement was oral in nature, but whereas in the case on hand, a

written agreement has been entered into between the parties and in pursuance of the agreement, more than 50% of the sale amount was also paid.

There is nothing in the agreement of sale to show that the tenant should continue to pay the rent as before. Under the circumstances, there is

enough material to come to the conclusion that the tenant must be under a bona fide belief that as he was entitled to purchase the property, there

was no necessity to pay the rent. Furthermore, immediately after the filing of the application also, it is admitted that the rent upto November, 1996

has been deposited into the court. As adverted to, the landlord has come forward with a specific case on the ground of wilful default in payment of

rent since September, 1982 without any material about the quantum of rent agreed between the parties. The Appellate Authority also came to the

conclusion that the landlord was always in the habit of purchasing and selling properties and because of this only, the court came to the conclusion

that the request for own use and occupation is not bona fide and the same was rejected. Moreover, if there was any arrears on the date of the

agreement of sale, the landlord would not have entered into an agreement of sale and furthermore, in the absence of any mention relating to arrears

of rent under Ex.B.1, I am of the view that the present contention of the landlord relating to arrears of rent is only invented to evict the tenant from

the premises in question. Both the authorities below have not rightly appreciated the contentions of the parties and wrongly came to the conclusion

that the tenant has committed default in payment of rent and in my view, the default is not intentional or wilful even assuming to be true"".

Even in the decisions cited, the proviso is incorporated, which reads as follows:

Provided that in any case falling under clause (i), if the Controller is satisfied that the tenant''s default to pay or tender rent was not wilful, he may

notwithstanding anything in section 11, give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him to the

landlord up to the date of such payment or tender, and on such payment or tender, the application shall be rejected.

In my view, when once the parties have entered into an agreement of sale and there is no reference about the arrears of rent, now it is not open to

the landlord to come forward with an application that the tenant has committed wilful default in payment of rent. There is no default in payment of

rent by the tenant, and hence, the order of eviction passed by the authorities below is liable to be set aside.

For the reasons stated above, the revision petition is allowed and the order passed by the authorities below is set aside and the rent control

petition is dismissed. However, there will be no order as to costs. Consequently, CMP No.16677 of 1998 is closed.