F. Dominic Sagayam vs C.P. Hariharan rep. by his power of attorney Mr. D. Jegarayan

Honourable Mr. Justice G. Rajasuria

Inveighing the judgement and decree dated 18.8.2009 passed by the Sub Court, Poonamallee, in RCA No. 9 of 2008, confirming the order

dated 8.2.2008 passed by the District Munsif, Poonamallee, in RCOP No. 9 of 2007, C.R.P. No. 3564 of 2009 is filed and as against the order

dated 8.2.2011 passed by the Principal District Munsif, Poonamallee in E.P. No. 118 of 2010, C.R.P. No. 677 of 2011 is filed. The parties, for

the sake of convenience, are referred to hereinunder according to their ranking before the Rent Controller.

The long and short of the germane facts could succinctly and precisely be set out thus:

(i) The respondent herein/landlord filed the RCOP for eviction, invoking Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent) Control

Act, (hereinafter referred to as ''the Act'' for short) on the ground of ''wilful default'' in paying the rents for eight months, so to say, from June 2006

to January 2007.

(ii) The petition was resisted by the revision petitioner/tenant on the main ground that he paid a sum of Rs. 70,000/- as advance and if that is

adjusted, absolutely there could be no question of ''wilful default'' being attributed as against the tenant.

(iii) During enquiry, the tenant (Dominic Sagayam) examined himself as P.W.1 and marked Exs. P1 to P12. The Power of Attorney of the

landlord-Hariharan (Jagarayan) examined himself as R.W.1 and marked Exs. R1 to R3.

(iv) Ultimately, the Rent Controller ordered eviction on the ground of ''wilful default'' in paying the rents, as against which, the appeal was filed for

nothing but to be dismissed by the appellate authority.

Being aggrieved by and dissatisfied with the said judgement and order of the respective authorities concerned, C.R.P. No. 3564 of 2009 was

focussed and as against the order passed in the E.P. No. 118 of 2010, which was filed by the landlord/decree holder, C.R.P. 677 of 2001 was

focussed, on various grounds.

The learned counsel for the revision petitioner/tenant, by placing reliance on the grounds of revisions would submit that Ex. P8, dated 23.3.1965

is the receipt, which would evince and evidence that the revision petitioner/tenant paid to the present landlord''s father, a sum of Rs. 70,000/- on

2.3.2003 itself as advance; however, both the Courts below, erroneously disbelieved the said document and held as though there was ''wilful

default'' in paying the rents.

In a bid to torpedo and pulverise the arguements as put forth and set forth on the side of the revision petitioner, the learned counsel for the

respondent/landlord would pyramid his arguements, which could pithily and precisely be set out thus:

(i) The landlord filed as many as three documents Exs. R1 to R3 to highlight and spotlight the fact that the signature of the landlord''s father C.P.

Samy did not tally with the purported signature in Ex. P8.

(ii) The Courts below considered in depth the pros and cons of the matter and ordered eviction, warranting no interference in the revision.

The point for consideration is as to whether both the Courts below committed any error in ordering eviction on the ground of ''wilful default in

paying the rents on the part of the tenant and that too, ignoring Ex. P8?

The bedrock of the defence of the tenant is that the present landlord''s father, under whom the tenant entered into the premises as tenant,

received a sum of Rs. 70,000/- as revealed by Ex. P8.

At this juncture, I recollect the following maxims:

(i) Affirmantis est probare He who affirms must prove.

(ii) Affirmanti, non neganti incumbit probatio The burden of proof lies upon him who affirms, not upon one who denies.

The burden of proof is on the tenant to prove that the signature found in Ex. P8 was that of the present landlord''s father, so to say, the original

landlord. But absolutely there is no evidence in that regard.

The deposition of P.W.1-the tenant remains only his ipse dixit. There is no need to go into Exs. R1 to R3 without expert''s opinion for the

purpose of making comparison of the signatures of the original landlord with that of the purported signature in Ex. P8, as normally it is deprecated

and the landlord was not even duty bound to produce Ex. R1 to R3 at all in the absence of any initiative to get expert opinion on the impugned

signature in Ex. P8 by the tenant (P.W.1). No expert assistance also was taken by the tenant to prove that the purported signature of the

landlord''s father C.P. Samy in Ex. P8 was genuine. Hence, in such a case, I could see no perversity or illegality in the order passed by both the

Courts below.

In the absence of Ex. P8, it is glaringly and pellucidly clear that there was ''wilful default'' in paying the rents on the part of the tenant and

whereupon eviction was ordered, warranting no interference in revision. Accordingly, C.R.P. No. 3564 of 2009 is dismissed. However, there is

no order as to costs. C.R.P. No. 677 of 2011 is focussed as against the order passed in E.P. No. 118 of 2010 and in view of the revision petition

focussed as against the eviction order is being dismissed, the question of allowing C.R.P. No. 677 of 2011 does not arise, as E.P. has to be

proceeded with. Accordingly, C.R.P. No. 677 of 2011 is dismissed. However, there is no order as to costs. Consequently, connected

miscellaneous petitions are dismissed.