Madras High Court
Sethuraj (Died) vs Sivanandam on 23 December, 2021
C.R.P.(NPD) (MD) Nos.2643 & 2644 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(NPD) (MD) Nos.2643 & 2644 of 2010
1.Sethuraj (Died)
2.Girija Bhai
3.S.Balaji
4.S.Arunkumar .. Petitioners
in both CRPs
[Petitioners 2 to 4 are brought on record as
LRs of the deceased sole petitioner vide order
dated 01.04.2019 in CMP(MD) Nos.3114 & 3115/2019
in CRP(MD) Nos.2643 & 2644 of 2010]
-vs-
Sivanandam .. Respondent
in both CRPs
Prayer :- Petitions filed under Section 25 of the Tamil Nadu Buildings
(Lease and Rent Control) Act, 1916 to set aside the order made in
R.C.A.Nos.29 and 30 of 2007 in R.C.O.P.No.221 of 2002 on the file of
Rent Control Appellate Authority cum Principal Sub Judge, Trichy dated
on 09.08.2010 in modifying the order made in R.C.O.P.No.221 of 2002
on the file of Rent Controller cum Principal District Munsif, Trichy dated
on 28.11.2006.
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For Petitioners : Mr.Veerakathiravan
Senior Counsel
for M/s.Veera Associates
For Respondent : No appearance
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COMMON ORDER
Considering the events subsequent to the filing of these Civil
Revision Petitions, this Court is proceeding to pass a common order in
both the Civil Revision Petitions.
2.The details of the petitions are hereinbelow given:-
2.1. C.R.P.(NPD) (MD) No.2643 of 2010 is filed challenging the
judgment dated 09.08.2010 in R.C.A.No.29 of 2007 passed by the
learned Principal Subordinate Judge (Appellate Authority), Trichy, in
reversing the order dated 28.11.2006 in R.C.O.P.No.221 of 2002 of the
learned Principal District Munsif (Rent Controller), Trichy.
2.2. C.R.P.(MD) No.2644 of 2010 is filed challenging the
judgment dated 09.08.2010 in R.C.A.No.30 of 2007 passed by the
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learned Principal Subordinate Judge (Appellate Authority), Trichy, in
reversing the order dated 28.11.2006 in R.C.O.P.No.221 of 2002 of the
learned Principal District Munsif (Rent Controller), Trichy.
3.R.C.O.P.No.221 of 2002 is filed for evicting the respondent on
the grounds of wilful default, owners occupation and demolition and re-
construction.
4.These two Civil Revision Petitions emanate from a single rent
control proceedings viz., R.C.O.P.No.221 of 2002.
5.The Rent Controller had ordered eviction on the ground of wilful
default, but had however, rejected the Landlord's plea with reference to
demolition and re-construction and owners occupation. The Landlord
challenged the dismissal of his petition on the ground of owners
occupation and demolition and re-construction by filing R.C.A.No.30 of
2007 and the tenant has filed R.C.A.No.29 of 2007 on the file of the Rent
Controller (Appellate Authority), Trichy. The appeal filed by the tenant
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was allowed and the appeal filed by the Landlord was dismissed.
Therefore, the Landlord has come up with these petitions.
6.When the matter had come up on 29.11.2021, it was informed by
the learned Senior Counsel appearing on behalf of the petitioners that
there is no building in existence in the demised premises and therefore,
there is no question of there being a tenancy, since the building is not
available on site. After hearing the parties, this Court had proposed to
appoint an Advocate Commissioner to go over to the demised premises
and take possession of the same in the presence of both parties, since
property is a vacant site.
7.Learned counsel, who had appeared for the tenant was also
agreeable to the above arrangement on instruction of his client.
Therefore, this Court had directed that a sum of Rs.50,000/- be paid to
the Advocate Commissioner and the sum was payable by the Tenant.
After the order was dictated and before it was signed, the learned counsel
for the respondent made a mentioning stating that the respondent was not
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in a position to pay Advocate Commissioner's fee. Therefore, the matter
was directed to be listed under the caption 'for being mentioned'. On
30.11.2021, the respondent's son Ramachandran was present before the
Court and had stated that he was not willing to pay the Advocate
Commissioner's remuneration. However, no objection was made
regarding the appointment of the Advocate Commissioner for taking
possession. Since it was the respondent's son who had appeared, the
Court directed the respondent to appear either in person or virtually
before the Court on 07.12.2021. On 07.12.2021, the counsels for the
respondent had appeared and submitted that the respondent's son had
taken back the bundle with change of vakalat and that they are not
appearing for the respondent. Though the respondent was directed to
appear virtually before the Court, he failed to appear. A medical
certificate, authenticity of which was questionable, was presented by the
counsel who had stated that they had given change of vakalat. However,
considering the fact that the respondent was aware of the revisions being
posted on the said date, this Court had proceeded to appoint an Advocate
Commissioner to take down photographs of the demised premises, to
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note down the nature of the buildings surrounding the petition mentioned
premises and submit a report regarding the same. The matter was
adjourned to 09.12.2021. The Advocate Commissioner, pursuant to her
visit, had submitted a report dated 09.12.2021. In paragraph 5 of the
report, she has described the nature of the demised premises as it now
stands. The same is extracted hereinbelow:-
“5.When I went to the petition mentioned
property, its entrance was closed with tin sheet and
the same was unscrewed and we went in. the
measurement of the building is 9 feet 4 inches east-
west and 39 feet north-south. The shop faces
southwards. The building in the petition mentioned
property has been fully demolished. Now, the
building has no roof. As far as side walls of the
building are concerned, in the eastern side, it is a
common wall and in the western side, a separate wall
is available. It seems that the northern wall and the
wall over the shutter beam of the southern wall were
knocked down and demolished. The remnants of the
eastern and western wall go to show that they slope
towards north and south and the petitioners 3 and 4
represented that the roof of the building was covered
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with asbestos sheets and the same sloped towards
north and south. On the north-western corner of the
building, I found a pit. The debris of the demolished
portions of the wall and the earth excavated from the
above said pit, have been stored inside the petition
mentioned property. The shutter of the shop was also
in a damaged condition. I took photographs of the
present nature of the building and I request that the
said photographs may also be perused to know about
the condition of the building. I submit that I hereby
attach the hard copy and soft copy of the said
photographs and sketch.”
8.Photographs have also been attached by the Advocate
Commissioner, perusal of which, clearly show that the entire building is
uninhabitable and open to the sky. Therefore, by no stretch of
imagination, can it be said that the tenant is still in possession of the
property and in occupation of the same. Therefore, the relief of
demolition and re-construction, by efflux of time, has been granted to the
petitioner, though the orders of the court below were against the landlord.
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9.Another factor which has been brought to the notice of the Court
is that pending the revision petitions, the tenant is not paying the rent and
therefore, has committed a default of the rents. Therefore, it is clear that
the respondent is guilty of committing a default, which is wilful and he is
liable to be evicted from the premises. The order of the learned
Appellate Authority that the payment made towards electricity deposit
had to be adjusted towards the rents, with due respect, is not sustainable
for the simple reason that the tenant has not let in any evidence
whatsoever to show that his Landlord has expressly permitted him to
adjust the rents payable by him towards the above expenses. Therefore,
the finding of the learned Appellate Authority in reversing the judgment
and decree of the learned Rent Controller is unsustainable and is
accordingly, set aside. Therefore, C.R.P.(MD) No.2643 of 2010 is
allowed.
10.As regards C.R.P.(MD) No.2644 of 2010, this Court has to take
note of the subsequent events particularly the fact that there is no
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building whatsoever in existence. The authorities below have negated
the plea of owner's occupation as well as demolition and re-construction.
11.In the judgment in Pasupuleti Venkateswarlu vs. Motor and
General traders reported in (1975) 1 SCC 770, the Hon'ble Supreme
Court had summed up the legal position regarding the Court's authority
to take note of subsequent events in the following lines:-
"If a fact, arising after the lis has come to court
and has a fundamental impact on the right to relief or
the manner of moulding it, is brought diligently to the
notice of the tribunal, it cannot blink at it or be blind to
events which stultify or render inept the decretal
remedy. Equity justifies bending the rules of procedure,
where no specific provision or fairplay is violated, with
a view to promote substantial justice - subject, of
course, to the absence of other disentitling factors or
just circumstances. Nor can we contemplate any
limitation on this power to take note of updated facts to
confine it to the trial court. If the litigation pends, the
power exists, absent other special circumstances
repelling resort to that course in law or justice. Rulings
on this point are legion, even as situations for
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applications of this equitable rule are myriad. We affirm
the proposition that for making the right or remedy
claimed by the party just and meaningful as also legally
and factually in accord with the current realities, the
Court can, and in many cases must, take cautious
cognisance of events and developments subsequent to
the institution of the proceeding provided the rules of
fairness to both sides are scrupulously obeyed."
12.Likewise in the judgment of the Hon'ble Supreme Court in
Maganlal Son of Krishanlal Godha vs. Nanasaheb son of Udhaorao
Gadewar reported in [2010 3 SCC 470], the Hon'ble Supreme Court has
held as follows:-
“17.While it is true that the right to relief must
be judged by reference to the date suit or the legal
proceedings were instituted, it is equally true that if
subsequent to the filing of the suit, certain
developments take place that have a bearing on the
right to relief claimed by a party, such subsequent
events cannot be shut out from consideration. What
the Court in such a situation is expected to do is to
examine the impact of the said subsequent
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development on the right to relief claimed by a party
and, if necessary, mould the relief suitably so that the
same is tailored to the situation that obtains on the
date the relief is actually granted.”
13.These judgments would amply demonstrate that the Courts
should take into account the subsequent conduct as well while dealing
with litigation especially when the same has a direct bearing not only on
the facts of the case, but also on the relief to be given to the party.
14.In V.Kannadasan vs. K.Swaminatha Pathar reported in
2007-4-L.W.435, this Court was called upon to consider the fact that
after the filing of the proceedings, the tenant had committed default in
the payment of rents. The Court had held as follows:-
“21. The learned counsel for the
petitioners/tenants vehemently contended that when
there is no wilful default prior to the filing of the
petition, the subsequent arrears cannot be taken as
wilful default. This contention does not merit
acceptance. Let us take a case when the tenant
committed default and continued to commit default or
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bring irregular in paying the rent during the
pendency of proceedings. Is it fair to hold that there
was no wilful default. This is all the more so, where
the tenants have challenged the sale deed in favour of
the respondent landlady.”
22. The conduct of the tenant in not paying the
rent regularly during the pendency of the proceedings
will amount to wilful default and such subsequent
conduct of the tenant can be taken into consideration
in deciding the matter. In the decision reported in
Anraj Pipada vs. Umayal (1998(2) MLJ 524 =
1998-3-L.W. 159), S.Jagadeesan, J. has held that
when the eviction proceedings have been initiated on
the ground of wilful default, one would expect the
tenant to pay the rent regularly every month at least
after the initiation of the proceedings. When the
tenant has failed to pay the rent regularly even during
the pendency of the proceedings, then there is no
doubt that his conduct in paying the rent as he likes,
will amount to wilful default.
15.The above proposition would squarely apply to the case on
hand where pending the proceedings, the building has itself fallen down
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and what remains today is only structure. Therefore, C.R.P.(NPD) (MD)
No.2644 of 2010 is also allowed and the judgment dated 09.08.2010 in
R.C.A.No.30 of 2007 is set aside. Considering the fact that there is no
building in existence, it is open to the petitioner/landlord to take steps for
executing the order.
16.In the result,
(i) Both these Civil Revision Petitions are allowed; and
(ii) The judgment, dated 09.08.2010, passed in R.C.A.Nos.29 and
30 of 2007 is set aside. No costs.
23.12.2021
Index : Yes/No
Speaking/Non-Speaking Order
abr
Note:-
In view of the present lock down owing
to COVID-19 pandemic, a web copy of
the order may be utilized for official
purposes, but, ensuring that the copy of
the order that is presented is the correct
copy, shall be the responsibility of the
Advocate / litigant concerned.
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C.R.P.(NPD) (MD) Nos.2643 & 2644 of 2010
P.T.ASHA, J.
abr
To
1.The Principal Sub Court (Rent Control
Appellate Authority), Trichy.
2.The Principal District Munsif
(Rent Controller), Trichy.
C.R.P.(NPD) (MD) Nos.2643 & 2644 of 2010
Dated: 23.12.2021
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