Balakrishnan vs N.K.N.R.M.Kumarappan Chettiar

Mr. N.Kiruba Karan, J.—The person, who was sleeping like a Rip Van Winkle suddenly woke up from his slumber and tried to build a castle in the air without any substance, is the petitioner.

The petitioner, who is said to be a tenant under the respondent, has filed this Civil Revision Petition in C.R.P.(MD)No.602 of 2010, against the order of eviction passed by the Rent Controller as confirmed by the Rent Control Appellate Authority.

The case of the respondent before the Rent Controller is that the petitioner''s father one Mr. Seenivasan entered into the premises as a tenant on 01.05.1999 for a monthly rent of Rs.1,550/-. From 01.03.2000 onwards he committed a wilful default, which compelled the respondent herein to file Rent Control Proceedings in R.C.O.P.No.36 of 2001. In the said petition, I.A.No.19 of 2004 under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Controller) Act, 1960, was filed for depositing the rent arrears. The said petition was ordered on 05.10.2004, by directing the petitioner to deposit the arrears.

Against the said order, the petitioner preferred a Civil Revision Petition in C.R.P.No.397 of 2005. This Court dismissed the Civil Revision Petition with liberty to the petitioner to file R.C.A. before the Appellate Authority. Thereafter, the petitioner preferred R.C.A.No.8 of 2005 and on contest, the said appeal was dismissed on 16.02.2006. C.R.P.NO.635 of 2006 was filed by the petitioner herein against the dismissal of R.C.A.No.8 of 2005 and the said Civil Revision Petition was also dismissed after contest on 26.10.2007.

Consequent to the confirmation of the order passed in the petition filed under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Controller) Act 1960, by the Appellate Authority as well by this Court, the Rent Controller passed the consequential order of eviction on 19.01.2009. Another R.C.A.No.2 of 2009 was preferred against the said final order and the said appeal was also dismissed. Therefore, challenging the said order only, the present Civil Revision Petition in C.R.P.No.602 of 2010 has been filed by the petitioner.

Mr. M.S.Balasubramania Iyer, learned Counsel appearing for the petitioner would contend as follows:

(i) The tenant did not become tenant in respect of the building and he took only a vacant plot on rent;

(ii) When the vacant plot was taken and a building was put up by the tenant himself, no rent control proceedings could be initiated against the tenant;

(iii) It is only the civil Court, which has got jurisdiction to consider as to whether the building was put up by the tenant or by the landlord and thereafter only the question of eviction would be considered.

He would further contend that merely because the tenant did not raise the jurisdiction regarding the Rent Controller at the earliest point of time, it will not prevent him raising from any such plea in the Civil Revision Petition. In this regard, he relied upon good old judgment of this Court in Parthasarathy and another v. Krishnamoorthy and another reported in (1948)2 MLJ 391 and in the Raleigh Investment Company Limited v. The Governor General in Council reported in (1947) 2 MLJ 16 and in Sardar Mohammed Nawaz Khan v. Bhagata Nand (Gurdwara Committee Panja Sahib at Hassan Abdal since substituted) reported in (1938)2 MLJ 323 and another judgment in The Secretary of State represented by the Collector of South Arcot v. Mask & Co reported in (1940)2 MLJ 140, to drive home the point that the jurisdiction can be raised at any point of time.

The above judgments are referred by the learned Counsel for the petitioner with regard to the jurisdiction and the right of the party to raise the jurisdiction at any point of time.

Heard Mr. T.Srinivasa Raghavan, learned Counsel appearing for the respondent/landlord.

The learned for Counsel for the respondent opposes the contentions of the petitioner by stating that the points raised by the petitioner cannot be allowed to be raised at the revisional stage.

Heard both parties and perused the materials available on records.

A close scrutiny of the pleadings would reveal that the tenant categorically admitted that he became tenant only in respect of the building. At no point of time, he pleaded that he is a tenant only in respect of the vacant land and he only put up the superstructure. Paragraph No.7 of the counter statement filed by the petitioner herein in the main R.C.O.P.NO.36 of 2001 reads as follows:

(7) cz;ikapy; ne;j vjph;kDjhuUila jfg;gdhh; rPdpthrd; kDf;fl;olj;ij, xU KGikahd mstpy;, midj;J bjhHpy; El;gA;fisa[k; cs;slf;fpathW, xU Bkhl;lhh; thfd bjhHpw;Tlk; cUthf;fg;gl Btz;Lbkd;Bw fUj;BjhL thliff;F te;Js;shh;. mJKjy;, mth; nwf;Fk; fhyk;tiu, ve;jtpj thlif ghf;fpa[kpd;wp thliffs; brYj;jg;gl;L te;Js;sJ. mtiuj; bjhlh;e;J, ne;j vjph;kDjhuUk; fle;j gpg;uthp khjk; 2000 tiu thliffs; brYj;jp te;Js;shh;."

Even in the counter statement filed in the petition filed under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Controller) Act 1960, the same admission has been made by the petitioner herein. When the admission has been made categorically admitting the tenancy in respect of the building, the question of putting up a contra argument that the tenant only put up the superstructure, as he became tenant in respect of the vacant land is not sustainable and it has not got no legs to stand before this Court. Put it in other words, he is estopped from denying the admitted fact.

Assuming for a moment that by mistake, the said stand has not been taken, what is the material produced by the tenant to prove his new contention that he became tenant in respect of the vacant site alone and he only put up the building. Nothing is coming from the petitioner. If he really put up the superstructure, he should have obtained No Objection Certificate from the landlord and he should have been purchased raw materials for the purpose of putting up the building and should have got electricity connection in his name. No such material is available or produced before this Court by the petitioner, except the contention made by the learned Counsel for the petitioner stating that the petitioner alone put up the superstructure and no material is available before this Court and the said contention does not deserve any merit at all. Accordingly, it is summarily rejected.

The Rent Control proceedings have been initiated as early as in the year 2001 and the petitioner is able to drag on the proceedings very successfully for 1-1/2 decade. If really the petitioner was not a tenant, the question of payment of rent does not arise at all. Whereas in paragraph No. 7 of the counter statement itself, it has been stated that the tenant''s father Mr. Seenivasan, who became the tenant was paying the rent regularly till his death. If the tenant put up the superstructure, such a statement would not have been incorporated in paragraph No.7 of the counter statement filed in the Rent Control Petition. Therefore, these allegations viz., taking of vacant site on rent and putting up the superstructure have been deliberately made only to harass the respondent/landlord. That apart, this Court has to necessarily come to the conclusion that the tenant is trying to mislead the Court and to get undue advantage out of the misleading.

I.A.No.19 of 2004, filed under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Controller) Act 1960 before the Rent Control Court, was allowed on 05.10.2004. Against the said order only, an appeal would lie. Instead of that, the petitioner had chosen to file the Civil Revision Petition before this Court bypassing the appellate remedy and thereafter, this Court gave liberty to the petitioner to file the appeal, which enabled him to file the appeal in R.C.A.No.8 of 2005, which was also dismissed on 16.02.2006. The Civil Revision Petition filed against the said order viz., C.R.P.NO.635 of 2006, was also dismissed by this Court on merits on 26.10.2007 and Paragraph Nos.6 and 7 of the said order reads as follows:

"6. Counsel for the petitioner herein filed a calculation memo which reads as follows:

Sl. No.

Date

Challan No.

Rupees

1

25.08.2005

264

1550

2

16.09.2005

293

1550

3

17.10.2005

343

1550

4

21.11.2005

388

1550

5

19.12.2005

416

1550

6

31.01.2006

441

1550

7

22.02.2006

497

1550

8

29.03.2006

548

1550

9

14.06.2006

7

1550

10

21.06.2006

78

3100

11

07/07/06

164

1550

12

07/06/06

201

1550

13

02/09/06

259

1550

14

08/10/06

353

1550

15

08/12/06

434

3100

16

02/01/07

476

1550

17

24.03.2007

565

1550

18

24.03.2007

567

1550

19

16.07.2007

715

3100

20

16.07.2007

716

1550

It was pointed even as per the calculation memo the amount was not paid properly to the respondent herein. So it is clear further the plea of expenditure incurred by him towards repair of the building was rejected by the trial Court at this stage. So, it is clear as per the findings of the trial Court that the amount of monthly rent is Rs.1,550/- and the arrears of 48 months and the amount was not paid, even after filing the appeal.

So after a careful consideration, this Court is of the considered view that there is no merit in the revision petition to interfere with the findings of the trial Court."

From the above, it is clear that the plea of expenditure with regard to repairing of the building as raised by the petitioner herein even in the earlier Civil Revision Petition was rejected and the order of eviction was confirmed by this Court as early as on 26.10.2007. Therefore, the finding of the Rent Controller regarding wilful default committed by the petitioner attained the finality even in the year 2007 itself, as the petitioner did not file any Special Leave Petition against the said order.

Thereafter only the consequential order of eviction, pursuant to the order made in the petition filed under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Controller) Act 1960 as confirmed in the appeal and further confirmed in the Civil Revision Petition on 26.10.2007, was passed on 19.01.2009. The said consequential order has also been challenged in R.C.A.No.2 of 2009, which was also dismissed on 21.11.2009. Against the said order only, the present Civil Revision Petition in C.R.P. (MD)No.602 of 2010 has been filed. As stated above, once the positive finding regarding wilful default in favour of the respondent was confirmed by this Court as early as in C.R.P.No.635 of 2006, it is not open to review the order at this stage and the Rent Controller passed the consequential order of eviction, which was confirmed in the appeal. Therefore, the order passed by the Rent Controller and confirmed by the Rent Control Appellate Authority have to be confirmed. Accordingly, they are confirmed.

Though the learned Counsel appearing for the petitioner cited so many judgments, those cases are not applicable to the facts of the present case, as the petitioner admitted the tenancy in respect of the building. Once the landlord, tenant relationship is admitted in respect of a building, naturally the jurisdiction of the Rent Controller would come into effect and therefore, it cannot be said that the jurisdiction was not conferred on the Rent Control Court as contended by the learned Counsel for the petitioner. Neither the jurisdiction was conferred nor it has been taken away, the jurisdiction has arisen as per the facts of the case. Therefore, the said judgments are not applicable and the invocation of Rent Control Act and the jurisdiction of the Rent Control Court are valid in the facts of the case.

Therefore, the Civil Revision Petition in C.R.P.(MD)No.602 of 2010 is dismissed. Consequently, the connected Miscellaneous Petitions are also dismissed. No costs.

As far as the Civil Revision Petition in C.R.P.(MD)No.568 of 2012 is concerned, originally the tenant Mr. Seenivasan died and therefore, the legal representatives filed the suit before the trial Court in an unnumbered O.S., on the file of the District Court, Sivagangai seeking for declaration that the plaintiffs are the owners of the Schedule II property and consequent permanent injunction. The said plaint was rejected without numbering and the said order is the subject mater of the above Civil Revision Petition.

Mr. M.S.Balasubramania Iyer, learned Counsel appearing for the petitioners would submit that in the Rent Control proceedings, all the legal representatives of Seenivasan were not brought on record and therefore, the said eviction order is not binding on the petitioners herein; secondly, there is no jurisdiction for the Rent Controller, as the original tenant himself put up the superstructure as he took only the vacant site. He would further submit that the plan would show that the tenant alone put up the superstructure and therefore, rejection of the plaint is to be set aside.

As already found in the Civil Revision Petition in C.R.P.(MD)No. 602 of 2010, the original tenant Mr. Seenivasan and Balakrishnan, who is the first petitioner herein and the intended plaintiffs in the unnumbered suit were already parties in the Rent Control Proceedings and they have not raised above pleas before the said Court. That apart, only the persons who are assisting and connected with the business of the original tenant are entitled to be impleaded as parties and not all the legal representatives are entitled to be made as parties. Even otherwise, they should have got impleaded themselves in the pending R.C.O.P., after the demise of said Seenivasan. Having kept quiet all these years and having lost the case upto this Court almost in two earlier rounds, it does not lie in the mouth of the petitioners to contend that they were not made as parties and consequently the order passed is to be set aside and therefore, they cannot be dispossessed through E.P.No.65 of 2011 in R.C.O.P.No.36 of 2001. The prayer in the rejected plaint reads as follows:

"1. declaring that the plaintiffs are the owners of the schedule II property and as a consequential relief thereto, the defendant be restrained by a permanent and preventive injunction from any way disturbing the peaceful possession and enjoyment of the Schedule I and II properties either by executing the order made in the RCOP proceeding, R.C.O.P.No.36 of 2001 on the file of (District Munsif), Rent Controller, Karaikudi and E.P.No.65 of 2011 or otherwise.

declaring the order made in the Rent Control proceeding R.C.O.P.No.36 of 2001 is null, void and unenforceable."

A perusal of the above prayer would show that they sought for a declaration that they are the owners of the property. It is nothing but the denial of title of the owners, which is one of the grounds available for the landlord for eviction, as per Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Controller) Act 1960. Therefore, not only as per the grounds made in the Rent Control Petition and also by virtue of the proceedings, which is said to have been filed before the civil Court, the petitioners rendered themselves liable for eviction on the ground of denial of title under Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Controller) Act 1960.

The petitioners sought to declare the order made in rent control proceedings in R.C.O.P.NO.36 of 2001 as null and void and enforceable in the said suit. In effect the petitioners want to declare the order passed by this Court also as null and void, as the eviction order passed by the Rent Controller has been confirmed by the Appellate Authority and further confirmed by this Court. Therefore, the said prayer is not maintainable.

The Civil Court rightly took into consideration the eviction order passed by the Rent Controller as confirmed by the Rent Control Appellate Authority and rejected the plaint stating that the Civil Revision Petition No.602 of 2010 is pending before this Court regarding the eviction. The refusal to entertain the suit by the Civil Court is perfectly valid and the reasons given by the civil Court cannot be set aside.

Accordingly, the Civil Revision Petition in C.R.P.(MD)No.568 of 2012 is dismissed. Consequently the connected Miscellaneous Petition is also dismissed. No costs.

At this juncture, the learned Counsel for the petitioner seeks six month'' time to vacate the premises. However, this Court gives four months'' time to vacate the premises, provided the petitioner files an undertaking affidavit by tomorrow.

For filing undertaking affidavit seeking time to handover the possession by the tenant, call the matter on 12.12.2013.