Raju and Others vs Jawahar Hasan

G. Rajasuria, J.—This Civil Revision Petition is focussed to get set aside the order dated 1.7.2005 passed in R.C.A. No. 6 of 2004 on the

file of the Subordinate Court, Uthamapalayam (Appellate Tribunal), confirming the order dated 17.9.2003 passed in R.C.O.P. No. 2 of 2003 on

the file of the District Munsif Court (Rent Controller), Uthamapalayam. The parties are referred to hereunder as landlords and tenant.

The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this Civil Revision Petition, would

run thus:

The landlords namely Raju, Ravi, Suresh, Hariharan and Karthikeyan, represented by their Power Agent namely Manickavasagi, filed the

R.C.O.P. No. 2 of 2003 on the ground of willful default in paying the rent. Up went the enquiry, during which P.W. 1 to P.W. 3 were examined

and Exhibits P-1 to P-3 were marked on the side of the petitioners. On the side of the respondent, R.W. 1 to R.W. 3 were examined and Exhibits

R-1 to R-3 were marked. Ultimately, the Rent Controller, dismissed the said petition finding that there was no willful default, as against which the

appeal was filed by the landlords for nothing but to be dismissed.

As such, against the concurrent findings, the landlords filed this Civil Revision Petition challenging and impugning the orders of both the Courts

below on various grounds.

The learned counsel for the landlords would put forth his arguments to the effect that both the Courts below committed error in holding that the

tenant was not at all in default in paying the rent and that a murky situation allegedly resulted because of the attitude of the landlords in refusing to

receive the rent.

Whereas the learned counsel for the tenant would submit that in the counter affidavit itself, the tenant raised the plea that huge advance amount

of Rs. 1,00,000/- (Rupees One Lakh only) was with the landlords and that the monthly rent being Rs. 1,100/- (Rupees One Thousand and One

Hundred only), the arrears as on the date of filing of the R.C.O.P., for fifteen months, was only a sum of Rs. 16,500/- (Rupees Sixteen Thousand

and Five Hundred only), even by phantasmagorical thoughts, it cannot be labelled or dubbed that the tenant committed willful default. As such,

both the Courts below correctly decided the case based on this point. However, they decided in favour of the tenant on various other points.

The point for consideration is as to whether the landlords were justified in filing the R.C.O.P. complaining as against the tenant, that the latter

committed default in paying the rent for fifteen months while admittedly, the landlords were in retention of huge advance amount of Rs. 1,00,000/-

(Rupees One Lakh only)?

The Point:

At the outset itself, I would like to fumigate my mind with the following decisions:

(i) Modern Hotel, Gudur, Represented by M.N. Narayanan Vs. K. Radhakrishnaiah and Others,

(ii) K. Narasimha Rao Vs. T.M. Nasimuddin Ahmed,

(iii) Latha and K.P. Sadhanandan Vs. L. Thangaraj,

A perusal of the aforesaid precedents would palpably and pellucidly, clearly and glaringly, demonstrate and display that the landlord who is

having with him huge advance amount, cannot approach the Rent Controller complaining that the tenant committed willful default in paying the rent.

The law enjoins the landlord to adjust the advance amount towards the arrears of rent.

A mere running of the eye over the same would also make the point amply clear that it is not necessary that the tenant should approach the

landlord with a request to adjust the arrears towards the part of the advance amount. The landlord is expected to retain only a month''s advance.

This being the law point, could be raised at any stage including the revisional stage.

The factual aspect of the payment of the said advance by the tenant to the landlords, is an admitted one. In such a case, I could see no

embargo for the tenant to raise such a plea. No doubt, the Courts below dealt with various factual aspects and held that there was no willful

default. In view of the obvious and axiomatic factual position that the landlords filed the R.C.O.P, while they were in retention of huge advance sum

of Rs. 1,00,000/- (Rupees One Lakh only) and that the monthly rent being Rs. 1,100/- (Rupees One Thousand and One Hundred only), the

arrears as on the date of filing of the R.C.O.P., for fifteen months, was only a sum of Rs. 16,500/- (Rupees Sixteen Thousand and Five Hundred

only). Even by phantasmagorical thoughts, it cannot be labelled or dubbed that the tenant committed willful default in paying the rents.

The learned counsel for the tenant would explain and expound by inviting the attention of this Court that even the alleged non-payment of

arrears during the pendency of R.C.O.P, would not be equal to that of the advance amount available with the landlords which was not

contradicted by the learned counsel for the landlords.

I would like to lay down as a rule that the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, being the beneficial legislation, the

authorities under the said Act, should act in stricto sensu in concinnity and in consonance with the same and even suo motu the authorities are

expected to apply the correct provision of law from the factual scenario available. May, be that the tenant might not have been shrewd enough in

pleading as to the availability of the huge advance amount with the landlord, nevertheless, if the Rent Controller is posted with the fact that such

huge advance amount is available with the landlord, then he should refrain from ordering eviction. In view of the ratiocination as above, I am of the

view that there is no merit in this Civil Revision Petition. The point is answered accordingly. In the result, this civil revision petition is dismissed. No

costs.