Raja Mohammed vs V.D. Murugesan

l. The landlord is the revision petitioner. He sought the eviction of the respondent/tenant u/s 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent

Control) Act, 18 of 1960 as amended by the Act 23 of 1973, hereinafter referred to as the Act'' on the ground of wilful default in the payment of

rent.

The allegations in the petition for eviction are as under:

The respondent became a tenant under the revision petitioner on a monthly rent of Rs.130 in the year 1983, the rent being payable before the end

of every English calendar month. He is a chronic defaulter in the payment of rent and he also inducted a third party into the possession of the

building. The revision petitioner filed an application for eviction in R.C.O.P.No.62 of 1983 before the District Munsif, Mayiladuthurai on the

grounds of wilful default and unauthorised sub-letting. Eviction was ordered on 14.3.1986 against which the respondent filed an appeal in

R.C.A.No.15 of 1986 and the appeal was dismissed by the Appellate Authority on 24.4.1989. However, the respondent filed C.R.P.No.1353 of

1989 before this Court and at the time of filing the present eviction petition the revision was still pending. Even after the commencement of the

proceedings in the year 1983 the respondent had been very irregular and was paying the rent only in lump sum. On 6.7.1988 he made a lumpsum

payment of Rs.1,040, on 15.2.1989 he made an another lumpsum payment of Rs.910, on 27.7.1989 Rs.650, on 7.9.1989 Rs.260, on 3.3.1990

Rs.700 and after a lapse of one year Rs.1,950 on 1.6.1991 towards rent due till May, 1991. The respondent had been making consolidated

payments notwithstanding the warning administered by the revision petitioner that the rent should be paid every month. The rent for June and July,

1991 in a sum of Rs.260 remained unpaid.

Again, the respondent is bound to pay the additional tax imposed by the municipality on the buildings in his occupation as per Section 16 of the

Act. The half yearly tax in respect of the building was only Rs.189.05 till 1983-84. The tax was enhanced to Rs.257.90 from 1984-85 to 1986-87

for six half years and to Rs.386.80 from 1987-88 and the said tax is being paid by the revision petitioner. On 31.7.1989 the respondent was

informed about the enhancement in the municipal tax and was also called upon to pay the difference due till that date. There was a reply sent by the

respondent advising the petitioner to file a revision or appeal against the enhancement and also contended that he was bound to pay the excess tax

as levied by the municipality. The stand taken by the respondent is not tenable. He is bound to pay the excess tax levied by the local body when

there has been no increase in the rate of rent paid to the landlord. Till the end of 1991 a sum of Rs.1,995.10 is due from the respondent in this

respect. Inspite of his having been put on notice to pay the amount he had denied his liability to pay the same and this would amount to wilful

default. This amount forms part of the rent and is climbable as such. The respondent deliberately denied his liability which would amount to wilful

default.

In the counter filed by the respondent, it is contended that the rent for July, 1991 and for subsequent months were sent by money order. There

was no default. Even with regard to the additional tax imposed, the petitioner can prefer revision or appeal before the authorities concerned. The

claim for Rs.1,995.10 by way of enhanced tax alleged to have been paid by the petitioner to the municipality is not maintainable. Most of the

claims are barred by time. It cannot be called as arrears of rent or non payment of rent. The respondent cannot be characterised as a wilful

defaulter. The petitioner''s sole aim is to evict the respondent somehow. The claim cannot be agitated before the Rent Control Court. The petition

has to be dismissed.

The learned Rent Controller, Mayiladuthurai framed necessary points for consideration and on the oral and documentary evidence, held that the

revision petitioner had not established that the rent for June and July, 1991 had not been paid by the respondent wilfully, that the respondent was

liable to pay the increase in the tax namely Rs.1,995.10; that merely because the respondent did not pay up immediately on receipt of the notice

from the revision petitioner that would not amount to wilful default and that no case had been made out for eviction. Ultimately, the learned Rent

Controller allowed the application filed by the revision petitioner to the extent of finding that the respondent was liable to pay the difference in the

tax namely Rs.1,995.10 and dismissed the eviction petition in other respects.

The revision petitioner filed appeal in R.C.A.No.15 of 1993 before the Appellate Authority namely, the Principal Subordinate Judge,

Mayiladuthurai, who by his judgment dated 12.3.1996 confirmed the decision of the Rent Controller and dismissed the appeal. While dismissing

the appeal, the Appellate Authority held that for June and July, 1991 the respondent had paid the rent on 9th October, 1991 and the revision

petitioner had also received it; that the revision petitioner had not specifically made it a cause of action that the respondent was paying the rent in

lump sums and that what had been pleaded by the revision petitioner was that the revised municipal tax had not been paid by the respondent and

therefore he had committed wilful default in the payment of rent. He also found that as regards this, only a petition u/s 6(2) of the Act was

maintainable and in the absence of a petition u/s 6(2) of the Act, the application u/s 10(2)(i) of the Act was not maintainable. An application u/s

10(2)(i) of the Act could be only for the purpose of finding out whether there had been wilful default in the payment of rent or not. Ultimately, he

found that there was no wilful default on the part of the respondent.

Aggrieved, the present civil revision petition has been filed.

The respondent has taken out an application for reception of additional evidence under Order XLI Rule 27 read with Section 151, C.P.C. in

C.M.P.No.20803 of 1999. The affidavit in support of the application for reception of additional evidence alleges that in the earlier proceedings in

RCOP No.62 of 1983 the revision petitioner sought the respondent''s eviction on the grounds of wilful default, subletting and personal occupation;

the eviction was ordered on the ground of subletting and was confirmed by the Appellate Authority; that C.R.P.No.1353 of 1989 filed by the

respondent was allowed by this Court and the order of eviction was set aside; that in the said proceedings the petitioner has admitted in his petition

that he had been paid an advance of Rs.390 by the respondent and if that is taken into consideration there can be no default, much less wilful

default in the payment of rent for June and July, 1991. The petition filed in the earlier proceedings is sought to be received as additional evidence.

The learned counsel relied on the judgment of Justice T.Somasundaram, J S.K.Babu Sayed and another v. A.Zubeda Bee represented by P.A.,

1991 (2) L.W. 249.

Though no counter has been filed by the revision petitioner, Mr.Ramamurthi, learned counsel made submission opposing the application that for

reception of additional evidence it must be supported by facts and in the instant case necessary pleadings are missing in the counter and therefore

the additional evidence cannot be entertained. The learned counsel also submitted that out of the said sum of Rs.390 if the amount is adjusted for

June, 1991 and for a part of the tax as claimed by the respondent, still there would be a balance due from the respondent and this would amount to

wilful default. The learned counsel in support of his submissions relied on the decision in M/s. The Calcutta Chemicals and Limited Vs. Taiyeb

Yusufbhai Vakharia and another, .

Mr.S.Ramamurthy, learned counsel for the revision petitioner made the following submissions in die CRP. It has been specifically stated in the

petition for eviction that the rent for June and July, 1991 and tax had not been paid and in the counter there is no denial with regard to non payment

of rent for June, 1991. The learned counsel in this connection referred to the oral evidence of the revision petitioner as P.W.1 and that of the

respondent as R.W.1. The authorities below, in particular, the Appellate Authority mixed up the whole thing and found fault with the revision

petitioner in not mentioning about the non payment of rent in the notice issued and marked in the proceedings, overlooking that the notice had been

issued in the year 1989 and there could be no reference to non payment of rent for June and July, 1991 in that. The respondent admitted that there

were receipts given by the landlord and those receipts had been produced. The learned counsel also relied on the judgment of this court in G.

Nandagopal v. Pratap Raval, 1969 (82) L.W. 69 by Ramaprasada Rao, J. (as the learned Judge then was). The learned Counsel also relied on

the judgment of the Supreme Court in Padmakar v. Madhukar, 1995 (2) S.C.C. 537, where pending decision in a fair rent proceedings the tenant

did not pay even the admitted rent and it was held that the tenant was a habitual defaulter and was liable to be evicted.

Countering the arguments of Mr.S.Ramamurthy, Mr.Chandramouli, learned Senior Counsel appearing for Mr.A.Muthukumar, learned counsel

for the respondent, submitted that the rent due on the date of filing of the eviction petition, namely on 9.8.1991, if at all was only for June, 1991

and the rent for July, 1991 had not become due till the end of August, 1991 and as regards the rent for June, 1991, the eviction petition filed by the

revision petitioner in R.C.O.P.No.66 of 1983 clearly establishes that the revision petitioner had received three months'' rent as advance and if the

rent for June, 1991 is also adjusted there would be no default. As regards the non payment of the tax the learned Senior Counsel submitted that

the respondent has always been willing and ready to pay and in any event in view of the decision of Ramaprasada Rao, J. (as the learned Judge

then was) made in G.Nandagopal''s case, 1969 (82) L.W. 69 cited above, at the most, the finding by the authority that the respondent was liable

to pay the tax arrears is only declaratory and the revision petitioner could have such remedies as are available to him to get the amount and that

could not be made a cause of action in the present proceedings.

Let us dispose of the petition relating to the reception of additional evidence. As far as the decision in M/s. The Calcutta Chemicals and

Limited Vs. Taiyeb Yusufbhai Vakharia and another, is concerned, A.Raman, J. has held that the Court will not be justified in receiving the

additional evidence while sitting in its revisional jurisdiction. In holding so, the learned Judge relied on a judgment of Chandurkar, C.J. in the cases

of The Collector of Madras v. A.N.Gajendran, 1988 (2) L.W. 49 Voora Mahalaksmamma v. Veera Reddy, 1994 (I) M.L.J. 383 and also Bank

of Baroda represented by its Chairman v. Mahendra Dhadha and two others, 1982 TLNJ 319.

Mr.T.Somasundaram, J. on the other hand in S.K.Babu Sayed and another v. A.Zubeda Bee, 1991 (2) L.W. 249 has relied on the case of

T.N. Krishnamoorthy Vs. Jagat Textiles, and Arya Vaisya Samajam v. Murugesa Mudaliar, 1990 TLNJ 82 : 1990 (1) L.W. 645. The learned

Judge has observed that the provisions of the CPC are applicable to the revision petition filed before this Court u/s 25 of the Act and from this it

follows that a petition filed under Order XLI Rule 27 of the CPC to receive the documents as additional evidence in the revision petition filed u/s

25 of the Act is maintainable and the documents may be received as additional evidence provided the requirements of Order XLI Rule 27 of the

CPC are satisfied.

This aspect of the matter can be disposed of on the reasoning that what is sought to be filed as additional evidence is the petitioner''s own

pleadings in the proceedings between the same parties in respect of the same property and which came up to this Court by way of revision and this

vital admission by the revision petitioner that he had received Rs.390 as advance for the property is also not disputed on behalf of the revision

petitioner. There can be no absolute rule that the document cannot be received as evidence in the revision filed u/s 25 of the Act though a case has

to be made out under Order XLI Rule 27 of the Code of Civil Procedure, Now a case has been made out for reception of additional evidence

under Order XLI Rule 27 of the Code of Civil Procedure, particularly, when the document sought to be marked is the petitioner''s own admission

regarding the receipt of advance of three months rent from the respondent. The petition stands allowed and the document is received as additional

evidence and it will be marked as Ex.R.1 on the side of the respondent.

As to whether the respondent had specifically pleaded or not as to the payment of rent for June, 1991 the fact remains that the landlord had

with him more than a month''s rent as advance and it cannot be said that on the date of the filing of the eviction petition the respondent had

committed default in payment of rent for June, 1991. The omission to mention about the payment of rent for June, 1991 in the counter, in my view,

cannot be made much of and as regards the rent for July, 1991 the claim made in the eviction petition filed on 9.8.1981 was clearly premature.

Thus, the finding by the Appellate Authority that the revision petitioner had not made out a case with regard to wilful default in payment of rent for

June and July, 1991, though not happily reasoned, still cannot be faulted. Indeed, the Appellate Authority in particular, is not quite right in

observing that the revision petitioner had not made lump sum payment subsequent to the filing of the earlier eviction petition as the cause of action,

still it cannot be said that the respondent had committed default by paying the rent in lump sum and the specific allegation is with regard to non

payment of rent for June and July, 1991 and the non payment of tax. I am not holding a brief for the respondent that after disputes had arisen

between the parties it was not at all proper in making the payment in lumpsum. However, it has to be held, on the materials available, that the

respondent had not committed default in payment of rent for June and July, 1991.

As regards the tax payment, both the authorities entered a finding that the respondent was liable to pay the tax for the period mentioned in the

petition in a sum of Rs.1,995.10. It is in this connection that the learned counsel for the revision petitioner vehemently argued that the respondent

had, in so many words, admitted in his oral evidence that if the Court found that he was liable to pay, he would pay and when once the Rent

Controller found that the respondent was liable to pay the tax arrears but the respondent wilfully did not pay, this would amount to wilful default

and the petitioner is entitled to an order of eviction on the ground of wilful default. Of-course, the learned Senior Counsel for the respondent was

unable to justify the conduct of the respondent, but then relied on the judgment in G.Nandagopal''s case, 1969 (82) L.W. 69 already referred to.

The liability to pay the tax by the respondent was found by the Rent Controller as early as 11-08-1993. The order had become final so far as

the respondent was concerned even in 1993. There was absolutely no justification on his part in not paying the rent and not paying the said amount

all these years. But, then the question is whether that could be a cause of action in the present proceedings themselves. If we are to hold that it

would be wilful default in the present proceedings that it would be straining the language of the section and stretching it a little too far. In the case

before the learned Judge in G.Nandagopal''s case, 1969 (82) L.W. 69 the Corporation of Madras enhanced the tax payable to the owner of a

building on the basis of the market rate of rents and in accordance with the rent paid by the sub-tenants to the chief tenant though the later was

paying to the landlord (owner) only much lesser rent on the basis of a registered instrument of lease. The landlord applied u/s 6 of the Madras

Buildings (Lease and Rent Control Act, 1960) for an adjudication of a dispute then subsisting between himself and the respondent as tenant

regarding payment of excess property tax, which was by then levied by the Corporation of Madras and which amount, according to the petitioner

landlord was recoverable from the tenant. The petitioner claimed a direction to the respondent for the payment of the sum being the total tax which

the petitioner by then paid to the Corporation of Madras. The learned Judge has observed as follows:

The sine qua non for the taxing authority to impose a higher tax is, discovery of material that the tenants in occupation of the building are actually

paying such rent which has no relevancy of the rent agreed to be paid by the chief tenant or lessee to the landlord. The taxing authority under the

Madras City Municipal Corporation Act, is persuaded to find the market rent or prevailing rent in the locality and assess the building to Property

tax. It is not bound by the lease agreement between the landlord and the chief tenant and the agreement provided therein, in case the market rent

or prevailing rent in the locality or actual rent received by the chief tenant from his sub-tenants is far in excess of such agreed rent. Its right to assess

the building to property tax is based on the principle that rent is compensation payable at stated lime for possession of land and/or buildings and

that it is income derived from ownership of the property. The owner of the building is primarily liable to pay such tax, though for easy recovery,

even the occupant is made liable under the Madras City Municipal Corporation Act.

The above right to claim the excess in question is however, dependent upon the fact that such excess has not resulted from an increase of rent in

respect of the building. This is provided in the proviso to S. 6. The increase in rent is obviously attributable to an overt act on the pan of the

landlord. His right to claim the excess cannot be denied to him, if involuntarily the taxes are raised, for no action overt or covert, on his part.

Otherwise, the object of the section would be defeated.

The right to claim excess tax can be negatived to a landlord, if the tax increases by reason of the increase in rent effected by him or under a valid

mutual agreement between the landlord and tenant to increase the previously agreed rent. If a a lessee with option to sub let, as in this case, is the

cause for increase in taxes, it cannot be equated to increase of rent by the landlord, since he does not derive the consequential benefit or advantage

of the increase in rent by the chief tenant or lessee. In such circumstances, under S. 6 the landlord is entitled to claim the excess tax, whatever it

may be, and the Rent Controller is bound on a reference made to him on the subject, to find what would be the ''rent'', which would be payable by

the tenant to the landlord and decide the dispute thereon.

But, the effect of it is obviously declaratory in character and it is for the landlord to take such proceedings as are available to him to recover the

rent. It follows, also, that its wilful non-payment would attract S. 10 of the Act as well.(Italics supplied)

The order of the Rent Controller, in such a case, is declaratory in scope. He may have other remedies, but he cannot seek for an executable

decree.

Prior to the proceedings in the present case in 1989 the petitioner landlord had called upon the respondent-tenant to pay the enhanced tax. The

respondent had disputed his liability to pay that. The revision petitioner instead of making an application u/s 6 of the Act, waited for some time and

in 1993 alleging that the respondent had committed wilful default in the payment of rent for June and July, 1991 and had also defaulted in the

payment of difference in tax, took out an application u/s 10(2)(i) of the Act. Though the section quoted is 10(2)(i) of the Act it must be taken as an

application u/s 6 of the Act. May be the tenant admitted his liability to pay the difference in tax in the course of the proceedings, but as observed

by Ramaprasada Rao, J. in Nandagopal''s case, 1969 (82) LW 69 the effect of the order in the present proceedings is only declaratory in nature.

Though there is deliberate with-holding of the payment by the respondent, this has given a fresh cause of action. In my view the revision petitioner

has to initiate fresh proceedings for eviction of the respondent on the ground of wilful default in the payment of rent as the increase in tax will also

be part of the rent. For the reasons aforementioned, the civil revision petition fails and the same is dismissed. However, there will be no order as to

costs.