K.R. Savundappa Chettiar vs K.M. Indrani Ammal and another

Sadasivam, J.—Petitioner Savundappa Chettiar seeks to revise the order of the District Judge, Coimbatore in C.R.P. No. 3235 of 1968 on

his file refusing to interfere with the order of the Appellate Authority confirming the order of eviction passed by the Rent Controller. The

respondents sought for eviction of the petitioner on three grounds, namely, willful default in payment of rent, commission of acts of waste and bona

fide requirement of the premises by the respondents for carrying out repairs under Ss. 10(2)(i), 10(2)(iii) and 14(1)(a) respectively of the Madras

Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act). Although the Rent Controller found that the building was in a

damaged condition, he found against the respondents in respect of the claim for eviction under S. 10(2)(iii) of the Act and that has become final.

But the Rent Controller and the Appellate authority ordered eviction on the other two grounds put forward by the respondents. The petitioner has

pleaded in his counter filed before the Rent Controller that the petition for eviction was not maintainable as there was no notice determining the

lease in his favor. Paragraph 7 of the counter in which the plea has been raised is as follows:

This respondent denies that any notice was sent to him. He did not receive or refuse to receive any such notice by or on behalf of the petitioners.

The petition does not state that any valid notice to quit has been given to the respondent in accordance with the previsions of the T.P. Act. No

such notice was in fact given. So this petition for eviction is unsustainable. On this sole ground this application is liable to be rejected in limine.

But the Rent Controller has not dealt with this plea in alt order for eviction against the petitioner. The petitioner failed to take this plea of want of

notice in the appeal preferred by him to the Appellate authority, but he subsequently filed additional grounds of appeal in which he has taken this

specific plea that there was no valid termination of tenancy by notice as required by law. But the Appellate authority also has failed to deal with this

additional ground raised by the petitioner. The petitioner has not taken any ground in his revision petition to the District Court about the absence of

valid notice terminating the tenancy in his favor and the point does not also appear to have been argued before the learned District Judge,

Coimbatore. The petitioner has in this civil revision petition taken the plea that in the absence of termination of the tenancy by notice as required by

law, there could be no order for eviction against him.

The learned Advocate for the respondents relied on the decision of Kailasam, J. in C. R. P. No. 687 of 1968 that it is open to a tenant to waive

the requirement of notice under S. 106 of the Transfer of Property Act. He also referred to the Bench decision in B. Kalyanasundaram Vs. A.R.

Natarajan, in which it wee held that so long at the contractual tenancy is not terminated in the manner provided by S. 106 read with S. 111 (h) of

the Transfer of Property Act, the tenant is protected in his possession and the landlord cannot evict him, with the necessary corollary that there is

no need for the tenant to seek protective refuge under the Act and the landlord cannot, during subsistence of the tenancy, resort to eviction on

grounds provided by the Act irrespective of the protection available to the tenant under the subsisting contractual tenancy. It is clear from the

penultimate paragraph of that decision that a contention was raised in that case that the tenant should be deemed to have waived his right as the

objection as to want of notice had not been raised before the Controller, but this contention was rejected on the ground that the lower appellate

court allowed the point to be taken. Thus the mere fact that the tenant had failed to raise the point before the Rent Controller was not considered in

that case, to be sufficient to constitute waiver. It is true that if a tenant has failed to raise a plea about validity or Insufficiency of the notice before

the Rent Controller and the Appellate authority, It would be sufficient justification to hold that be had waived the plea; but it could be hardly stated

on the facts of this case that there was any such waiver. It Is clear from the narration of facts that the petitioner has taken the plea that the lease in

his favor has not been terminated by valid notice both before the Rent Controller and the Appellate authority. Thus it could not be said that there

was any waiver of the plea by the petitioner. It Is true he has not taken the plea before the District Court In revision; but be has takes the plea in

this Court. It is sufficient to state that there are no circumstances from which it could be found that the petitioner has waived or given up his plea

that there was no valid termination of tenancy by notice as required by law. It is represented by the learned advocate for the respondents that

notices terminating the tenancy have been issued to the petitioner. Hence the Rent Controller has to go into the question whether there was valid

notice terminating the tenancy In favor of the petitioner. The eviction petition has to be remanded for the said purpose.

The learned advocate for the petitioner attacked both the grounds on which eviction has been ordered against him. According to the

respondents, the petitioner has willfully defaulted to pay rent for a period of 26 months amounting to Rs. 1950; but the petitioner admitted non-

payment of rent only for 22 months. Courts below have not deter mined whether the default in payment of rent was for 22 or 26 months. There are

(sic)-rent findings of the Rent Controller and the appellate authority that the respondent did not authorize the petitioner to put up a shed and that

the petitioner is therefore not entitled to adjust the expenses incurred for putting up the shed towards the arrears of rent payable by him. The

petitioner has also claimed that he had effected repairs and that he was entitled to deduct the costs of the same from the arrears of rent payable by

him; but this was also negative by the Rent Controller and the appellate authority. The District judge has in his order agreed with the above concur

rent findings of fact. There is no ground to interfere with the said findings and in fact the learned advocate did not attempt to question the said

findings.

The evidence in this case and the findings of the courts below show that the petitioner has paid tax for the period from September 1958 to

September 1965 amounting in all to Rs. 1759-94, but the courts below refused to allow the petitioner to adjust the said amount towards the rent

payable by him. The reason given by the courts below is that the petitioner had agreed to pay the entire municipal taxes from out of his own

pocket. It is true that the respondents have adduced evidence to support the said finding; but there is absolutely no plea. It is needless to state that

no amount of evidence can take the place of pleadings and in the absence of relevant pleadings it is not open to the respondent to claim that in

addition to the rent, the petitioner had subsequent to the commencement of the tenancy agreed to pay taxes. In paragraph 2 of the petition for

eviction filed by the respondents it is stated that the petitioner herein took the building on rent by about December 1952, agreeing to pay Rs. 75

per mensem for the purpose of running his business. In his counter the present petitioner has alleged that the rest for the building was Rs. 75 per

mensem throughout. Thus it is clear from the pleadings of the parties that the rest agreed to be paid by the petitioner was Rs. 75 per mensem. It

appears from the evidence in this case that the tax for the building has been steadily increased from Rs. 48 per half year to Rs. 136-20 per half

year. It appears from the order of the District Judge that it is the case of the respondents that a few years after the tenancy commenced the

petitioner was requested to pay enhanced rent and while refusing to pay enhanced rent the petitioner agreed to bear the full burden of municipal

taxes for all these years.

The learned advocate for the petitioner relied on S. 7(2)(a) of the Act that the landlord shall not claim, receive or stipulate for the payment of

any premium or other like sum in addition to agreed rent and that under the proviso to that section the landlord may receive or stipulate for the

payment of an amount not exceeding one month''s rent by way of advance. He urged that the tenant is entitled under S. 7(2)(b) of the Act to adjust

any sum paid in excess towards arrears of real. In my opinion S. 7(2)(a) only refers to payment of premium or other like sum. There is nothing to

prevent a lesser and lessee agreeing at the time of entering into the tenancy for the payment of tax either by the lesser or by the lessee. But it is

clear from the evidence In this case that, at the commencement of the tenancy, the taxes were payable by the landlord. Under S. 108(g) of the

Transfer of Property Act, if the lesser neglects to make any payment which he is bound to make, and which, if not made by him, is recoverable

from the lessee or against the property, the lessee may make such payment himself, and deduct it with interest from the rent, or otherwise recover it

from the lesser. If the respondent in this case failed to pay the taxes, the taxes could certainly be recovered from the petitioner who is a lessee la

occupation. He is therefore entitled to rely on S. 108(g) of the Transfer of Property Act and claim deduction of taxes paid by him from the rent.

Hence the courts below have erred in not allowing the petitioner to deduct the taxes paid by him from the rent payable by him or In other words

refusing to allow him to adjust tax amount out of the rent payable by him. The Rent Controller should definitely find the arrears of rent after giving

credit for the payment of taxes and find if there was still arrears of rent and if there was arrears of rent whether there was any willful default.

The learned advocate for the respondents relied on the decision in M.K. Palaniappa Chettiar and Another Vs. A. Pennuswami Pillai, as to the

powers of this Court under S. 115 C.P. Code. It was held in that decision that the mere error of law will net justify interference under S. 115

C.P.C. and that only in cases of error of jurisdiction this Court could interfere under S. 115.

Under S. 108 (g) of the Transfer of Properly Act and S. 7(2)(b) of the Madras Build lags (Lease and Rent Control) Act, the petitioner is

entitled to deduct the taxes from out of rent payable to the respondents and If there were no arrears In rent the Rent Controller weald have no

jurisdiction to order eviction of the petitioner. Further, the question whether there was willful default in rent would have to be considered in the light

of the observations made by me.

The courts below have erred la the exercise of jurisdiction even In dealing, with the claim for eviction based an S. 14(1)(a) of the Act. The

averments in the petition for eviction filed by the respondents in respect of this ground are found in paragraph 6 of the eviction petition. It is stated

in that paragraph that the respondents wanted to effect a partition of the property and that, in order to make an equal division, they wanted to

terrace the rear portion of the building as the front portion is a terraced one. It is stated chat in order to carry out this object, substantial repairs to

the building have to be carried out which would also necessitate suitable alterations by providing doors and windows. The learned advocate for the

petitioners rightly urged that the courts below have not considered the claim for eviction made by the respondent under S. 14(1)(a) of the Act in

the light of the relevant provisions of the Act. There is a distinction between a claim for eviction made by a landlord under clause (a) and clause (b)

of S. 14(1) of the Act. When a landlord bona fide requires immediate possession of building for demolishing the building and reconstructing a new

building, the statutory tenant ceases to have rights in the building. Bat when a landlord bona fide requires the building only for carrying out repairs

which cannot be carried out without the building being vacated, he has to give an undertaking before the order of aviation is passed In hit favor that

he will offer the premises again to the tenant on completion of the repairs. No such undertaking has been given in this case. The word ''repairs'' at

used in S 14(1)(a) of the Act has been defined in S. 2(7) of the Act at meaning the restoration of a building to a sound or good state after decay or

Injury but does not include additions, Improvement or alterations except in so far as they are necessary to carry out such restoration. Thus the

patting up of a terrace cannot be considered to be repairs within the meaning of the word at defined under S. 2(7)of the Act. Who convenient

division of the premises into two portions by putting up doors, windows, etc., cannot be considered at repairs as defined in S. 2(7) of the Act.

Neither the Rent Controller nor the Appellate Authority can have jurisdiction to order eviction under S. 14(1)(a) of the Act to long at the

respondents failed to bring their case within the ambit of that section. It clear from what I have stated that the order for eviction passed under S.

14(1)(a) cannot be justified. For the foregoing reasons, the order of eviction passed by the Rent Controller and confirmed by the appellate

authority is set aside. The petition for eviction is remanded to the Rent Controller to determine whether there was valid termination of the tenancy

by notice at required by law and if so there was willful default in payment of rent to justify eviction having regard to the observations made in this

judgment. The costs of the parties shall be provided for in the revised order of the Rent Controller.