Krishnaraj vs M. Karunakaran

Sivasubramaniam, J.—The unsuccessful tenant in R.C.O.P. 1964 of 1983 on the file of the learned Rent Controller (Court of Small Causes,

Madras) and in the appeal in R.C.A. 545 of 1985 on the file of the appellate authority, Madras is the petitioner in C.R.P. 3453 of 1986 and the

unsuccessful landlord in R.C.A. 975 of 1985 is the petitioner in C.R.P. 4234 of 1986. The landlord filed the petition in R.C.O.P. 1964 of 1983,

for eviction of the tenant on the ground of willful default in payment of the rent. The tenant resisted the application on the ground that the landlord

had filed another eviction petition in R.C.O.P. 6074 of 1981 under S. 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act and

an appeal was pending against the order passed by the learned Rent Controller. Therefore he was under the bona fide impression that the rent

payable by him would be adjusted from out of the advance paid by him to the landlord. According to him, the petitioner and his father-in-law are

trying to evict him by hook or crook.

The tenant filed the petition in R.C.O.P. 3078 of 1983, for restoration of amenities. He contended that the landlord had cut off the electricity

connection thereby denying the basic amenities available to him. It was resisted by the landlord on the ground that because of non-payment of

electricity consumption charges it was cut off even before he had purchased the property- According to him, at the time when he purchased the

property, there was no electricity connection for the building. Hence, it is submitted that be was not responsible for the cutting off of the electricity

connection which was done for non-payment of electricity consumption charges.

The learned Rent Controller on a consideration of the evidence adduced by the parties held that the tenant has committed willful default but on

the question of restoration of amenities, he held that the tenant is not entitled to any order of restoration. As against the order in R.C.O.P. 1964 of

1983, the tenant preferred the appeal in R.C.A. 545 of 1985 and he has also filed an appeal in R.C.A. 975 of 1985 against the order passed in

R.C.O.P. 3078 of 1983. The appellate authority passed a common order confirming the order of eviction on the ground of willful default and

holding that the landlord is liable to restore the amenities to the tenant and that the tenant is entitled to restore the amenities and recover the costs

from the landlord. It is against these order, the present revision petitions have been filed.

The learned counsel for the petitioner in C.R.P. 3453 of 1986 contended that the authorities below have not considered the question of willful

default in proper perspective and there is no specific finding by the authority that the default committed by the tenant is willful. It is in evidence that

even though there was some doubt regarding the title of the landlord in the earlier proceedings, the tenant has attorned to the landlord and was

paying rent to him for sometime. It is not in dispute that the tenant failed to pay rents for the period from December 1982 to February 1983. The

only explanation by him is that he was under bona fide impression that it would be adjusted towards the advance paid by him. It is a well

established principle that the rents can be adjusted out of advance only at the option exercised by the tenant and the landlord is not entitled to

adjust the rent suo motu. In this case, there is no evidence to show that the tenant had ever requested the landlord to adjust the rent out of the

advance. There is no other satisfactory explanation by the tenant as to why he had not paid the rents to the landlord for the said period. The

present stand taken by him clearly shows that the default is willful. Both the authorities below have concurrently held that the tenant has committed

willful default and I do not find any ground to interfere with the said concurring finding of fact.

On the question of restoration of amenities concerned in C.R.P. 4234 of 1966, the appellate authority found that the landlord is bound to

restore the electricity connection to the petition premises. Though the learned counsel for the landlord would submit that when the landlord

purchased the property, the electricity connection was already cut off and that he is not liable to restore the same, I am unable to accept the said

contention. It is not as if the respondent in C.R.P. 4234 of 1986 became a tenant under the landlord only after his purchase. It is the admitted case

that he was a tenant even under the vendor of the present landlord. It is also not in dispute that at the inception of the tenancy, the tenant was

enjoying electricity for the demised premises. The fact that the electricity connection was cut off for non-payment of electricity consumption

charges even before the purchase of the properly by the present landlord is no ground to contend that he is not liable to restore the amenity. It is an

amenity which has been provided for the building and the original landlord was bound to continue the said amenities. When the present landlord

purchased the property the said obligation passed on to him along with the property and he is also bound to restore the amenities provided the

tenant pays the electricity consumption charges regularly. However, the appellate authority has passed an order directing the tenant to restore the

electricity connection at his cost and recover the same from the landlord thereafter. The learned counsel for the landlord submits that such a

procedure is not contemplated under the Act. S. 17 of the Act contemplates that the landlord should not interfere with the amenities enjoyed by the

tenant. Sub clause (4) of S. 17 reads as follows-

If the Controller on enquiry finds that the tenant has been in enjoyment of the amenities or that the amenities were in existence during the previous

tenancy and that they were cut off or withheld by the landlord without just or sufficient cause or if the landlord was in any way responsible for the

amenities being cut off or withheld, he shall make an order directing the landlord to restore such amenities.

In view of the said provision, the learned counsel submits that the order passed by the appellate authority directing the tenant to restore the

amenities by himself is against the said provisions and that the appellate authority has no jurisdiction to pass such an order. On a plain reading of

the said provision, it is clear that the direction to res tore the amenities can be passed only against the landlord and there is no provision to enable

the tenant to restore the amenities by himself and recover the cost from the landlord, the reason being the said order is executable under S. 18 of

the Act. In case of default made by the landlord in restoring the amenities, it is open to the tenant to execute the order under S. 18 of the Act.

Therefore, the impugned order passed by the appellate authority in this regard is unsustainable and is liable to be set aside.

In the result, C.R.P.3453 of 1986 is dismissed. No costs. However, the petitioner is granted three months time to vacate the petition premises

and put the landlord in possession of the same. C.R.P. 4324 of 1986 is allowed and there will be a direction to the landlord to restore the

amenities. No costs.