Dr. R. Arulmozhi vs M. Sadasivam

S. Rajeswaran, J.—This Revision has been filed u/s 25 of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 (hereinafter called

''the Act'') against the judgment dated 19.10.2005 made in RCA No. 1/2005 on the file of the Appellate Authority, (Sub-Court) Poonamallee,

confirming the order dated 24.9.2004 made in R.C.O.P. No. 22/2000 on the file of the Rent Controller (District Munsif), Ambattur.

The unsuccessful tenant before both the authorities below has filed the above revision petition. The respondent/landlord filed RCOP No.

22/2000 on the file of the learned Rent Controller, Ambattur praying for an order of eviction u/s 10(2)(i), 10(2)(ii)(b) and 10(3)(a)(i) of the Act.

The Rent Controller by order dated 24.9.2004 ordered eviction on the ground of wilful default and owner''s occupation and dismissed the

RCOP on the ground of different use by the tenant. Aggrieved by the same, the tenant filed RCA No. 1/2005 and the Appellate Authority by

order dated 19.10.2005 dismissed the same thereby confirmed the order of the Rent Controller. Challenging the concurrent judgments, the above

revision petition has been filed by the tenant.

The respondent/landlord is the absolute owner of the ground floor flat bearing Door No. 45/7, Shanthiniketan Colony, Anna Nagar Western

Extension, Chennai.600 101. The petitioner and the respondent herein entered into a lease agreement on 28.8.1996, according to which, the

tenant agreed to pay a sum of Rs. 1,600/- p.m towards rent and a sum of Rs. 2,000/- p.m towards amenities. Thus the total monthly rent payable

by the tenant is Rs. 3,600/-. A sum of Rs. 21,600/- has been paid by the tenant as advance. The relationship between the parties got strained

resulting in the tenant sending a letter dated 28.12.1999 informing the landlord that he would be sending a sum of Rs. 1,600/- only from December

1999, as the promised amenities were not provided by the landlord. The tenant further informed in the above letter that he had paid a sum of Rs.

2,000/- every month in excess during the past three years and therefore the excess amount paid towards the amenities should be refunded by the

landlord. The landlord sent a legal notice dated 12.2.2000 claiming arrears of rent not only at the admitted rate of Rs. 3,600/- but also on the basis

of the proposed enhancement as stated in the agreement. He claimed arrears and the payment of rent from the month of August 1997 to January

1999 and also March 1999 to February 2000. He further informed the tenant that he wanted the property for his own use and occupation and

blamed the tenant for using the property for non-residential purpose, even though it was let out for residential purpose. The petitioner/tenant sent a

reply dated 27.2.2000 claiming that a sum of Rs. 78,000/- was paid by him as an excess amount towards the amenities and an excess advance

amount of Rs. 20,000/- held by the respondent/landlord. In such circumstances, the petitioner/tenant called upon the respondent/landlord to return

the excess amount of Rs. 98,000/- (78,000 + 20,000) and till such time adjust the excess amount held at the rate of Rs. 1,600/- per month from

the month of January onwards. After sending a reply dated 15.3.2000 the respondent/landlord filed the RCOP as stated above.

The Rent Controller after evaluating the evidence held that having accepted to pay a sum of Rs. 3,600/- per month by entering into a lease

agreement, the petitioner/tenant cannot be permitted to say that he is entitled to pay only a sum of Rs. 1,600/-per month and the alleged excess

amount paid by him in the past towards amenities should be adjusted in the future rents. While rejecting the petition on the ground that the property

was used for some other purpose, the Rent Controller accepted the case of the respondent/landlord that the premises was required for his own use

and occupation. The Appellate Authority was in agreement with the order of the Rent Controller and therefore dismissed the appeal.

Heard both the learned Counsel appearing on either side. I have also perused the documents filed in support of their submissions.

Learned counsel for the petitioner/tenant contended that both the authorities did not consider and discuss the facts, pleadings, contents of the

exhibits and depositions with reference to the ingredients to Section 10(2)(i) and 10(3)(a)(i) of the Act. The learned Counsel has also submitted

that the excess amount lying in the hands of the respondent/landlord should be adjusted towards the rent payable as per Section 7 of the Act. As

both the authorities below did not consider the issue in the proper perspective, the order of the authorities below is liable to be interfered with by

this Court.

He relied on the following judgments in support of his contentions:

(1) 1979 2 M.L.J. 326 (Pattabiraman v. Accommodation Controller); (2) 1974 T.L.N.J. 245 (K.R. Loganatha Naicker v. S.R. Balasundara

Mudaliar); (3) S.S. Khader Mohammed Rowther and Co. Vs. G.S. Sundaram and Brothers, ; (4) 2000 1 L.W. 853 (Narayanaswamy v.

Raman); (5) C. Chandramohan Vs. Sengottaiyan (Dead) By Lrs. and Others, (6) 2000 2 M.L.J. 202 (Mahalingam v. Pichaiammal) and (7)

Sudhandiran Vs. S. Krishnan, .

Per contra, learned Counsel for the respondent/landlord supported the decision of the authorities and pointed out that by unilaterally choosing to

pay a sum of Rs,1,600/- only towards the monthly rent as against Rs. 3,600/- per month as agreed upon in the lease agreement, which also he

paid for a period of three years from the date of the lease agreement, the tenant is guilty of wilful default.

Both the petitioner and the respondent admit that a lease agreement was entered into on 28.8.1996 and a perusal of the same shows that the

petitioner herein agreed to pay a total sum of Rs. 3,600/- per month consisting of Rs. 1,600/- per month towards rent and Rs. 2,000/- per month

towards amenities to the respondent herein. A sum of Rs. 21,600/- was required to be paid under the agreement as security deposit. It is not

disputed that this amount was paid by the tenant. The petitioner/tenant has also been paying the monthly rent of Rs. 3,600/- for three years and the

documents filed before the rent controller would prove that the petitioner/tenant is not proper and prompt in paying the monthly rent then and there

when it became due. Several letters have been written by the landlord demanding the amount and the petitioner/tenant sent replies promising to pay

the amounts soon.

Admittedly, the relationship between the landlord and the tenant was strained as the respondent/landlord sought to increase the rent by 10% as

per Clause 12 of the lease agreement. By letter dated 28.12.99, the petitioner/tenant informed the respondent/landlord that on and from December

1999, he would send a sum of Rs. 1,600/- per month and he is also entitled to the refund of the excess amount paid by him towards amenities

during the past three years.

This conduct of the petitioner/tenant, in my view, is not bona fide. Admittedly, he has been paying the monthly rent of Rs. 3,600/- as per the

lease agreement and nowhere in the lease agreement it was stipulated that the amenities charges of Rs. 2,000/- per month would become payable

only after some repair works were done by the respondent/landlord, at a cost of Rs. 1,25 lakhs. This was raised by the revision petitioner for the

first time after the relationship got strained. Similarly, the revision petitioner cannot be allowed to say that the amount of Rs. 2,000/- per month paid

by him towards amenities for the past three years should be refunded or adjusted for future rents. Having paid a total sum of Rs. 3,600/- per

month without any demur or protest, the revision petitioner is estopped from saying that the monthly rent is only Rs. 1,600/- per month and not Rs.

3,600/- per month. Therefore I am in agreement with the courts below that the tenant has committed wilful default once he admitted openly that he

is entitled to send a sum of Rs. 1,600/- per month from December 1999 onwards.

Insofar as the adjustment of the rent is concerned, it is true that u/s 7(2)(a)(b) of the Act, the landlord may receive the payment of an amount

not exceeding one month rent by way of an advance and any sum paid in excess shall be refunded or adjusted at the option of the tenant. In the

present case, the revision petitioner has paid six months'' advance amount of Rs. 21,600/-. Whereas, the respondent is entitled to a sum of Rs.

3,600/- alone as advance amount. That means, a sum of Rs. 18,000/- is held by the respondent/landlord in excess, which could be adjusted

towards the monthly rental arrears. That being so, the excess advance amount could be adjusted for five months rental arrears. As per the letter

dated 5.1.2000 sent by the respondent, the revision petitioner did not pay any amount after January 1999 which means the revision petitioner is

due to pay the monthly rent from the month of February 1999 onwards. If these excess advance amount of Rs. 18,000/- is adjusted, still the

revision petitioner is due to pay the monthly rent from August 1999 onwards. In such circumstances, the revision petitioner cannot take shelter u/s

7 of the Act and he has been guilty of wilful default on this score also.

The revision petitioner in the reply notice dated 27.2.2000 claimed that the sum of Rs. 98,000/- being held by the respondent/landlord as

excess amount consisting of Rs. 78,000/- paid by him towards amenities at the rate of Rs. 2,000/-per month and Rs. 20,000/- towards excess

advance amount. I have already held that the tenant cannot be allowed to say that the rent payable by him is only Rs. 1,600/- per month. But, in

this notice, the revision petitioner has deducted a sum of Rs. 1,600/- as one month''s advance and claimed that a sum of Rs. 20,000/- is held by

the respondent/landlord as excess advance amount which is again not correct. Only a sum of Rs. 18,000/-is held by the respondent/landlord in

excess. But in his deposition, the revision petitioner has gone further and deposed that a sum of Rs. 1,20,000/- is held by the landlord as excess

amount consisting of Rs. 78,000/- towards amount paid for amenities, Rs. 20,000/- as excess advance amount and Rs. 22,000/- for repair and

maintenance work done by him on the petition premises. Thus the revision petitioner has been taking different stance without any evidence and

such a conduct of the revision petitioner is not bona fide and I reiterate that the revision petitioner committed wilful default in the payment of agreed

monthly rent.

Now let me consider the judgments cited by the learned Counsel for the revision petitioner.

In N. Pattabiraman Vs. The Accommodation Controller and Another, , this Court has held as follows:

I am unable to agree with the contentions of the learned Government Pleader. In a case where quasi-judicial tribunals adjudicate upon rights of

parties after hearing them it is but elementary that they should give demonstrable reasons so that when it is scrutinised by any one in the higher

hierarchy exercising visitorial powers he should be in a position to appreciate as to what was the real reason behind the order impugned or passed.

It is now well-settled that such judicial authorities ought not to lightly reject petitions by passing a non-speaking order which is totally bereft of any

reasoning. Such reasons ought to form part and parcel of the order itself so that the order could be demonstrated to be one which is sustainable or

otherwise by the superior Court or authority when it has the occasion to refer to it and consider whether such an order is proper or regular. This

view is accepted by the Supreme Court in one of its latest pronouncements in Travancore Rayon Ltd. Vs. Union of India (UOI), , The Supreme

Court said:

When judicial power is exercised by an authority normally performing executive or administrative functions, the Supreme Court insists upon

disclosure of reasons in support of the order on two grounds; one, that the party aggrieved in a proceeding before the High Court or the Supreme

Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous; the other, that the

obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power"".

On the ground that the 1st respondent failed to give any satisfactory reasons and indeed no reason at all to justify the challenged order, the writ

petitions should succeed.

In the above decision this Court held that quasi-judicial tribunals should give demonstrable reasons so that when it is scrutinised by any one in

the higher hierarchy he should be in a position to appreciate as to what was the real reason behind the order impugned or passed.

I do not think that the authorities below failed to give any demonstrable reasons so that this Court was not in a position to appreciate as to

what was the real reason behind the order of eviction.

In C. Chandramohan Vs. Sengottaiyan (Dead) By Lrs. and Others, , the Hon''ble Supreme Court held that only when the Rent Controller is

satisfied that tenant''s default is wilful he can order eviction and whether the default is wilful is a question of mixed facts and law. In the very same

judgment, the Hon''ble Supreme Court held that where findings recorded by Appellate Authority are illegal, erroneous or perverse, High court u/s

25 of the Act 18/1960 may reverse the findings and record its own findings.

In the case on hand, the default of the tenant is unquestionably wilful default and both the authorities have come to a correct finding and

therefore there is no necessity to interfere with those findings.

In 2000 1 L.W. 853 cited supra this Court held as follows:

In the light of the above pronouncements, this Court has to consider the merits of the Second Appeal. Though the findings of the two Courts

below are concurrent, this Court is unable to sustain the judgment of the Courts below as they have miserably failed to consider the material

documents and oral evidence. The omission to consider the material documents and material portion of the evidence by the two Courts below is a

valid ground for interference in the Second Appeal, even if it is against concurrent findings. Merely because, the findings are concurrent, this Court

is not helpless when it is demonstrated that the two Courts below have failed to advert or consider the material portion of the evidence or their

appreciation of evidence is perverse or the findings recorded by the two Courts below are demonstrably incorrect on the face of the documentary

evidence produced before the two Courts below. This Court is considering this appeal being conscious of the pronouncement of the Apex Court

as to the Court''s power u/s 100, C.P.C.

In the above case this Court has held that when the courts below miserably failed to consider the material documents and oral evidence or their

appreciation of evidence is perverse, this Court can interfere u/s 100 of C.P.C. The facts of the above case are different and they do not support

the case of the revision petitioner.

In (2000) 2 M.L.J. 202 cited supra, this Court held as follows:

In view of the law declared by the Honourable Supreme Court, it has to be held that landlady has no cause of action to file application for

eviction on the ground that tenant has committed default in paying rent. As stated earlier, landlady has taken advance of 60 months rent, though law

permits to take advance of only one month rent. Excess advance is liable to be adjusted in the rent payable by tenant as and when becomes due

even without any demand from tenant. If that be so, landlord cannot expect payment of rent for the alleged period of default. If landlord cannot

demand any rent for that period, notice issued by her intimating default also will be invalid and of no legal consequence. On the date when notice

was issued, no rent was due nor payable by tenant. If notice issued is invalid merely because tenant did not pay rent within a period of two months,

he also cannot be deemed as defaulter. Appellate authority has not taken into consideration the above legal position while confirming the order of

eviction.

I am in entire agreement with the above decision, according to which excess advance is liable to be adjusted in the rent payable by the tenant

as and when it becomes due even without payment from the tenant. I have also already held that even after the adjustment of the excess advance

amount, still the revision petitioner is in arrears of rent which is wilful and wanton warranting an order of eviction.

In the light of the above, the revision petition challenging the order of the appellate authority ordering eviction on the ground of wilful default

fails and the order of eviction on the ground of wilful default has to be upheld and accordingly upheld.

Insofar as the eviction confirmed on the ground of owner''s occupation is concerned, the learned Counsel for the petitioner strenuously

contended that the respondent/landlord has miserably failed to prove his case and both the authorities below have mechanically upheld the

contention of the landlord that he is in bona fide need of the petition premises for his own use and occupation.

The Appellate Authority in the order dated 19.10.2005 held that the tenant was not able to prove by letting in evidence that the

respondent/landlord owns some other building other than the petition premises and upheld the order of eviction on this ground also. The Appellate

Authority has not considered the fact that excepting making averments in the petition and giving oral evidence that the respondent/landlord is not

owning any other property, the respondent/landlord has not let in any other evidence to prove that he is in real need of the petition premises for his

own use and occupation.

In 1974 T.L.N.N.J. 245 cited supra this Court held as follows:

The tenant is the petitioner. The courts below have not given any definite finding as required u/s 10(3)(c); In cases arising u/s 10(3)(c), certain

stated considerations arise besides the normal features which usually come up for decision in courts in the matter of the acceptance or rejection of

application for eviction filed by landlords for additional accommodation. In this case, the court is concerned with an application u/s 10(3)(c). The

common features which are to be taken notice of by the Controller and the appellate authority, while dealing with such applications are that the

Controller or the appellate authority as the case may be, is so satisfied shall make an order directing the tenant to put the landlord in possession of

the part of the building for the possession of which the application for additional accommodation has been filed, and if not so satisfied the

application has to be rejected. The above special feature in an application u/s 10(3)(c) is subject to the proviso to Section 10(3)(c) of the Act. The

crucial aspect therefore, could be charaterised as a special incident in matters arising u/s 10(3)(c) is that there should be a categorical finding by the

statutory authority that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. This special

prescription is not to be considered as otiose or an an irrelevant appendage in the statute. It has been specially provided for so as to avoid

necessary hardship to the tenant, as in the case under consideration the landlord is only seeking additional accommodation in the same premises,

whether for residential or non residential purposes. Therefore, it becomes imperative for the authorities in cases arising u/s 10(3)(c) to give a

specific finding whether the hardship which the tenant is likely to suffer will outweigh the advantage to the landlord or vice versa. Unless this aspect

is noticed and adjudged upon by the statutory authorities there is no complete enquiry on the statute contemplated in regard to the petition arising

u/s 10(3)(c). Such an enquiry has not been undertaken in this case. Therefore, there has not been a proper disposal of the application u/s 10(3)(c).

In this decision this Court considered the provisions of Section 10(3)(c) of the Act and held that it is imperative for the authorities in cases

arising u/s 10(3)(c) to give a specific finding whether the hardship which the tenant is likely to suffer would outweigh the advantage to the landlord

or vice versa.

This decision is not applicable to the case on hand as the eviction petition has not been filed u/s 10(3)(c) of the Act.

In S.S. Khader Mohammed Rowther and Co. Vs. G.S. Sundaram and Brothers, this Court held as follows:

Section 10(3)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, provides for eviction of tenants in cases where the landlord

requires the building for his own occupation. Sub-clauses (i) to (iii) lay down the particular circumstances under which a landlord can ask for

eviction of the tenant. Sub-clause (i) deals with residential buildings; Sub-clause (ii) deals with non-residential buildings which are meant, or actually

used, for stationing vehicles; Sub-clause (iii) deals with other non-residential buildings. It may be that the language of Sub-clause (iii) as compared

with Sub-clauses (i) and (ii) is susceptible of a narrow, literal, interpretation, but it is the common acceptation of lawyers and Courts that this

provision, like the other two following provisions in the same sub-section, lays down two indispensable conditions for an eviction petition. The

landlord must be in need of the premises under the tenant''s occupation for the purpose of his own business or that of a member of his family. The

landlord must have no other non-residential building of his own elsewhere in the same city, town or village concerned.

This court in the above judgment lays down two indispensable conditions for eviction where the landlord requires his building for his own

occupation. One of the conditions is that the landlord must be in need of the premises under the tenant''s occupation for the purpose of his own

occupation or that of a member of his family. The Rent Control Appellate Authority has failed to examine whether the respondent/landlord satisfied

the two initial requirements and simply proceeded to upheld the order of the Rent Controller. The Rent Controller also has not considered these

aspects and mechanically allowed the eviction petition on the ground of owner''s occupation.

In Sudhandiran Vs. S. Krishnan, , this Court held as follows:

Excepting the above averments, no other averments are available, such as, what is the name of the business, in which building that business is

carried on, who is the owner of that building, what is the rent payable, etc. The landlords cannot escape very easily contending that the pleadings in

the rent control application should not be construed so strictly, and it is sufficient, if some allegations are available for personal occupation. It is

incumbent upon the landlord to plead the minimum requirements, to satisfy the ingredients available u/s 10(3)(a)(iii) of the Act. Section 10(3)(a)(iii)

of the Act says, ''the landlord or the member of the family, if the building is required for the member, must be carrying on business on the date of

filing of the application, that he or the member of the family should not own any non-residential building for the purpose of carrying on the said

business and that the requirement must be bona fide, not aiming at evicting the tenant. Therefore, the landlord must say, whether the member of the

family, since in this case the building is sought for the members of the family, is owning any property, of his own, as nonresidential building, for the

purpose of carrying on business, which is absent here. What is the name of the business, who is the owner of the business is also not specifically

pleaded. In the absence of any proof, by producing some documents at a later stage, the landlords want to make out a case, as if the members of

the family are carrying on the business. If pleadings are available, then only, comparing the same with the evidence, whether the evidence fits-in

with the pleadings, the requirement could be ascertained, in order to have the satisfaction by the Rent Controller or the appellate Authority, as the

case may be, checking the bona fide.

I am in respectful agreement with the above judgment and this decision will definitely apply to the facts before this Court. The

respondent/landlord has not at all satisfied the minimum requirement to attract the ingredients available u/s 10(3)(a)(i) of the Act.

In view of the above discussion, I am inclined to hold that the eviction order passed by the authorities below on the ground of owner''s

occupation is not proper and the same is therefore liable to be set aside. Accordingly, the same is set aside.

In the result, the revision petition is partly allowed, setting aside the order passed by the authorities below on the ground of owner''s occupation

and dismissing the revision petition on the ground of wilful default and the revision petitioner is liable to be evicted from the petition premises on the

only ground of wilful default committed by him. No costs. C.M.P. No. 3447/2006 is closed.