A. Raju and Others vs T.S. Krishnamurthy

G. Rajasuria, J.—Heard both the sides. A resume of facts absolutely necessary for the disposal of this Civil Revision Petition would run thus:

One Krishnamurthy, the respondent herein, filed an application under Sections 10(2)(i), 10(2)(vi), 10(2)(ii), 10(2)(iii) and 10(3)(a)(i) of the Tamil

Nadu Buildings (Lease and Rent Control) Act, 1960 (""Act"" in short), for eviction of the tenants, viz. A. Rengaraju and R. Raju, who are the father

and son, on five grounds, viz, wilful default, owner''s occupation, act of waste, differential user and non-occupation of the demised premises. The

petition was resisted by the tenants.

Up went the enquiry, during which, on the landlord''s side, P.Ws. 1 and 2 were examined and the documents Exs. P1 to P10 were marked. On

the side of the tenants, the first petitioner herein was examined as R.W. 1 and the documents Exs. R1 to R5 were marked. Ultimately the Rent

Controller ordered eviction on all the five grounds.

Being aggrieved and dissatisfied with the same, the landlord preferred the appeal; whereupon the Appellate Court confirmed the order of

eviction on the grounds of wilful default, owner''s occupation and act of waste and rejected the claim for eviction on other two grounds, viz.

differential user and non-occupation of the demised premises. Being aggrieved by and dissatisfied with the order of eviction passed, the tenant

preferred the present Civil Revision Petition on various grounds.

The learned counsel for the revision petitioners, placing reliance on the grounds of revision, would pyramid his arguments which could succinctly

and precisely be set out thus: There is no default in payment of the rent much less wilful default. Even before filing of RCOP, the entire arrears due

and payable were sent by demand draft and it was received. In such a case, there is no question of default in payment of rent would arise. The

prayer of the respondent herein, viz. Krishnamurthy for eviction of the tenants on the ground of personal occupation of one Suryanarayanan, the

respondent''s brother''s son, is something not contemplated in law. Over and above that, the said Suryanarayanan for whose benefit

Krishnamurthy, the petitioner in RCOP sought for eviction of the tenants, is admittedly occupying a building which belongs to the same family. The

family of Krishnamurthy as well as Suryanarayanan are owning 30 to 40 buildings admittedly in the same town and in such a case, the question of

seeking eviction of the tenant on the ground of personal occupation is something not contemplated. The definition ""member of his family"" as

contemplated u/s 2(6-A) of the Act does not encompass the brother''s son of the landlord. There is no wastage caused by the tenant as he

constructed only a bath room and septic tank, because as on the date of taking on lease the premises, there was only a dry latrine, wherefore such

bath room and septic tank were constructed. He did not effect any partition of the hall, but already there was a door-less threshold inside the

house and the tenants simply provided door to it for the purpose of achieving certain privacy of the female members of the house. As such, he

would pray for setting aside the order of the appellate Court and for dismissing the RCOP by allowing this revision.

Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the revision petitioners, the learned counsel

for the respondent would pyramid his arguments which could succinctly and precisely be set out thus:

There was huge arrears of rent for a period of 148 months and no doubt after issuance of pre-litigation notice by Krishnamurthy, the respondent

herein, to the tenants, they sent through their Advocate, the demand draft, but that was received without prejudice. Over and above that, pending

litigation, there were huge arrears and Exs. P3 to P5 would evidence the same. Admittedly, over and above that, only after filing of the revision, the

remaining arrears were paid and all those facts will establish the wilful default in payment of the rent by the tenants.

The learned counsel for the respondent would further state that the very fact that the rent was send by the tenants to Suryanarayanan, for whom

the premises is sought for, bespeaks that he also could be termed as one of the landlords and he is admittedly a co-owner. In such a case, one co-

owner can file a petition on behalf of the other co-owner''s benefit. Eviction ordered on the ground of personal occupation of one of the co-owners

(Suryanarayanan) cannot be found fault with. There is nothing to indicate and exemplify that there was any vacant premises owned by

Suryanarayanan as on the date of filing of RCOP. No doubt he stays with his mother, wife and child in the house, where Krishnamurthy is staying

and since the said house is not sufficient for Suryanarayanan''s family to occupy, the said RCOP was filed by Krishnamurthy so as to

accommodate Suryanarayanan and his family over which there could be no controversy. As such considering the relevant facts, the appellate Court

ordered eviction warranting no interference in revision.

The learned counsel for the respondent would further state that under the guise of achieving some hygiene atmosphere and privacy, the tenant

cannot assume any power under the statute to modify the structure of the demised premises itself. Here, the tenants by their conduct, virtually

modified the structure of the house and caused loss relating to which both the authorities below gave concurrent findings. As such, in respect of

those three grounds, both the for a below gave concurrent findings and there is no perversity or illegality in the orders passed by the for a below.

Hence the counsel for the landlord would pray for dismissal of the Civil Revision Petition.

The points for consideration are:

(1) Whether the for a below are justified in holding that there was wilful default in payment of the rents by the tenants in favour of the landlord?

(2) Whether the finding of the Courts below that the demised premises is required for the personal occupation of one of the co-owners, viz.

Suryanarayanan, is illegal?

(3) Whether there is any evidence to show that as on the date of filing of RCOP, there was any vacant building, belonging to the family of the

landlord available for Suryanarayanan and his family to occupy? (4) Whether the tenants committed any waste as found set out in the RCOP?

(5) Whether there is any illegality or impropriety in the orders passed by the Courts below?

Point No. 1:

At the outset, I would like to fumigate my mind with the following decisions cited by both the sides.

Precedents cited on the side of the revision petitioners:

S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, .

V. Krishna Mudaliar Vs. Lakshmi Ammal, .

Abdul Hameed Vs. M. Sultan Abdul Kader, .

M. Karuppanna Gounder Vs. C. Visuvasam and Others, .

5.Kailashchand Jain & 2 others v. Mohamed Kasim, reported in 1994-2-L.W. 611.

Pratap Narain and another Vs. District Judge, Azamgarh and another, .

Brijendra Nath Bhargava and Another Vs. Harsh Wardhan and Others, .

A. Duraiswami Vs. A. Arumugham, .

T.N. Narayanasamy Vs. N. Govindaraj .

Dakaya alias Dakaiah Vs. Anjani, .

K. Balaraman Vs. K. Ponnurangam, .

Precedents cited on the side of the respondent:

Poorman''s Depot Vs. P.R.M.A. Krishnan, .

Vasantha Leela Vs. N. Vadivelu Chettiar, .

B. Anraj Pipada Vs. V. Umayal, .

Kolandaivelu Chettiar Vs. Koolayana Chettiar

Kanta Udharam Jagasia (Miss) Vs. C.K.S. Rao, .

Nanjappan v. Janaki, reported in 1999 MLJ 68.

R.V. Balasubramania Chettiar and Others Vs. J.B.M. Mohammad Yahaya and Others, .

A.P. Abdul Rasheed Vs. Hotel K.K. Residency, .

A mere running of the eye over the above precedents would highlight and spotlight that the tenant is enjoined to pay the rent regularly and he

should also continue to pay the rent pending litigation, relating to such a proposition, there is no quarrel at all. Admittedly, here the factual matrix is

that on issuance of pre-Iitigation notice by the landlord, the tenants replied and they also sent the arrears of rent for 148 months by way of demand

draft, and presumably that demand draft was received by the landlord. However, the learned counsel for the respondent would submit that such

demand draft was received without prejudice, but, there is no direct evidence in that regard. Be that as it may, one fact is clear that consequent

upon the issuance of notice by the landlord, the tenants sent the rental arrears by demand draft, and it cannot be lost sight of, that for 148 months,

so to say, more than 12 years'', rents were not paid by the tenants. Hence, any one would raise a question as to what prompted the tenants to

defer such payment of rent for such a long period. On the tenants'' side, explanation was sought to be given to the effect that the rents were

tendered, but not received by the landlord. In fact, R.W. 1 the tenant, in his evidence would try to portray and project that the said

Suryanarayanan himself had refused to receive the rent. Even assuming, it was so, yet it would constitute wilful default on the part of the tenants in

one sense in view of the Apex Court''s judgment in E. Palanisamy Vs. Palanisamy (D) by Lrs. and Others, . The tenants are expected to strictly

adhere to the mandate as contained in Section 8 of the Act, but they did not choose to do so. As such, the conduct of the tenants, was deplorable.

However, this Court cannot lose sight of the fact that on receipt of the pre-litigation notice issued by the landlord, the tenants promptly sent the

arrears for 148 months which was received. Placing reliance on that, the learned counsel for the tenants would submit that the question of mulcting

the tenants with the liability on the ground of wilful default in payment of rent would not arise. Even though such argument cannot be turned down,

yet the conduct of the tenants in not paying the rents pending litigation is quite obvious. Exs. P3, P4 and P5 would reveal that the tenants were not

at all regular in paying the rents pending litigation. The Appellate Court, highlighted the fact that such conduct on the part of the tenants would

constitute wilful default in paying rent. In this connection, I would like to reiterate that the decisions referred to supra would highlight the fact that

even if there is default in payment of rent pendente lite, they should be mulcted with the liability that they committed wilful default in paying the rent.

As such, I could see no perversity or illegality in the orders of both the Courts below that the tenants committed wilful default in paying the rent and

that part of the order of the appellate Court requires no interference. Accordingly, Point No. 1 is decided in favour of the landlord.

Point Nos. 2 and 3:

The learned counsel for the revision petitioners elaborated his arguments by pointing out that, the said Suryanarayanan for whose benefit

eviction was sought for, has not filed the application.

The decisions cited supra would also indicate and exemplify that on behalf of one co-owner, another co-owner can very well file an application

for personal occupation. No doubt the term ""member of his family"" as contemplated u/s 2(6-A) of the Act would not refer to landlord''s brother''s

son. However, on behalf of one co-owner another co-owner can seek for eviction of the tenant. The definition ""landlord"" as found envisaged in

Section 2(6) of the Act is an inclusive definition which encompasses a co-owner and that includes even the joint family members and wherefore,

one of the co-owners can file a petition for eviction on behalf of another co-owner.

However, the learned counsel for the tenants would emphasise on one other point that admittedly, the said joint family is owning 30 to 40

houses in the same town and in such a case, they have not proved that no other building is vacant for Suryanarayanan to occupy. Over and above

that, Suryanarayanan is also admittedly occupying one such joint family properties. I would like to point out that absolutely there is no iota or jot,

scintilla or pint of evidence to display and establish that as on the date of filing of the RCOP, any building belonging to the joint family was vacant.

If at all there is any evidence to demonstrate that at least one among the residential houses of the joint family was vacant, then at once, the landlord

could be non-suited. In this connection, absolutely there is no such evidence as against the landlord, however, Ex. P2-the Marriage Invitation

would prove that well before the filing of the RCOP itself, the said Suryanarayanan got married and he also in his evidence pointed out that even

though he had been staying along with his one another co-owner (Krishnamurthy) in a house, he found it difficult to occupy that house along with

his mother, wife and child. It is therefore, clear that the requirement of the premises by the landlord is a bona fide one. As such, I am of the

considered view that eviction ordered on the ground of owner''s occupation cannot be found fault with or looked askance at. As against the

concurrent findings of the Courts below, no interference is warranted. Wherefore, Point Nos. 2 and 3 are decided in favour of the landlord.

Point No. 4:

Relating to the ground of act of waste is concerned, the learned counsel for the tenants would convincingly point out that on hygienic ground

alone the bath room and the septic tank were constructed and that was in commensurate with the social attitude as well as the Government Policy.

I would like to agree with him, as there could be no more days of dry latrine. Hence, I am of the view that both the Courts below were not justified

in ordering eviction of the tenants on that ground. The learned counsel for the landlord would project that the tenants partitioned the hall of the

demised premises, for which no Commissioner was got appointed so as to note down the physical features. The landlord would say that there was

construction of a partition wall in the hall, whereas the tenants would gainsay that there was already a passage in the hall, for which they provided a

door in order to achieve privacy to the female members of the family. In such a case, when the evidence is murky, I do not want to mulct the

tenants with liability on that count. Hence the finding based on the act of waste is liable to be set aside and accordingly set aside. As such, Point

No. 4 is decided in favour of the tenants. On balance, the Civil Revision Petition is ordered, confirming the findings of both the Courts below in

ordering eviction of the tenants on the grounds of wilful default in paying the rents and owner''s occupation and not on the ground of act of waste.

Consequently, the connected miscellaneous petition is closed. No costs.