Balasubramanian vs Srinivasan
2021 Latest Caselaw 22958 Mad

                                                                                   CRP.PD.No.873/2019




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 24.11.2021

                                                           CORAM:

                                     THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                                    CRP.PD.No.873/2019

                                                    [Video Conferencing]

                    Balasubramanian                                                   .. Petitioner

                                                              Vs.

                    Srinivasan                                                        .. Respondent

                    Prayer:- Civil Revision Petition filed under Section 25 of the Tamil Nadu
                    Buildings [Lease and Rent Control] Act, 1960, against the order and
                    decree dated 22.11.2018 passed in RCA.No.9/2018 on the file of the
                    learned Subordinate Judge, at Chidambaram reversing the order and decree
                    dated 12.06.2018 passed in RCOP.No.2/2013 on the file of the learned
                    District Munsif-cum-Judicial Magistrate at Kaatumannarkoil.

                                         For Petitioner             :   Ms.N.Mala
                                         For Respondents            :   Mr.B.Manimaran

                                                           ORDER

(1) This Civil Revision Petition is directed against the judgment dated

22.11.2018 passed by the Rent Control Appellate Authority, viz.,

the learned Subordinate Judge, Chidambaram, in RCA.No.9/2018,

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reversing the order of the Rent Control Authority, viz., the learned

District Munsif-cum-Judicial Magistrate, Kaatumannarkoil.

(2) Brief facts that are necessary for the disposal of this Civil Revision

Petition are as follows.

(3) The revision petitioner is the landlord and the respondent is the

tenant under him. The revision petitioner/landlord filed a petition

for eviction in RCOP No.2/2013 before the learned District

Munsif-cum-Judicial Magistrate, Kattumannarkoil, for eviction of

the respondent/tenant on the ground of willful default and also on

the ground of demolition and reconstruction.

(4) It is the definite case of the revision petitioner/landlord that the

respondent/tenant has committed default in payment of rent from

January 2009. It is admitted that the monthly rent is Rs.1,500/-. It

is also stated that the default committed by the respondent/tenant

was wilful and that, therefore he is liable to be evicted on the

ground of wilful default. As regards the ground of demolition and

reconstruction, the revision petitioner/landlord has not raised any

ground. It is admitted that the Rent Controller rejected the

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contention to order eviction on the ground of demolition and

reconstruction and the revision petitioner/landlord has not

preferred any appeal. Hence, the Lower Appellate Court did not

entertain the plea raised by the revision petitioner/landlord to evict

the respondent/tenant on the ground of demolition and

reconstruction. As regards wilful default, the Trial Court has given

a categorical finding that the respondent/tenant has committed

default for the period at least from 17.06.2009.

(5) The revision petitioner/landlord is in the habit of giving receipts

and the respondent/tenant has produced rent receipts under Exs.R1,

R4 to R7 to show that the respondent/tenant was paying rent finally

on 17.06.2009. Thereafter, till December 2011. admittedly no rent

was paid. However, the respondent/tenant did not pay rent from

December 2011. The conduct of the respondent/tenant in failing to

pay rent for a period of five years from 2011 is a clear indication

that he was not sincere in paying rent even during the pendency of

the proceeding.

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(6) It is admitted that the respondent filed a petition in the year 2016 in

IA.No.1/2016 permitting him to deposit the rent for the period from

December 2011. That petition was ordered on 04.07.2016 [chk]. It

was only thereafter it is stated that the respondent/tenant deposited

the arrears in two instalments. After recording the facts, as borne

out from records, the Rent Controller gave a definite finding that

the respondent/tenant has committed wilful default. In the course

of evidence, the respondent/tenant admitted that he has committed

default. However, the explanation offered by the respondent/tenant

was to the effect that the revision petitioner/landlord wanted a sum

of Rs.3 lakhs as advance and to enhance the rent from Rs.1,500/- to

Rs.6,000/- and that therefore, rent was not paid by him. It is not

the case of the respondent/tenant that he tendered rent at any point

of time before a petition was filed for eviction on the ground of

wilful default. Even after filing the petition for eviction on the

ground of wilful default, it took five years time to file a petition

seeking permission to deposit rent in Court after the petition was

filed for eviction. In such circumstances, this Court is of the view

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that the findings of the Rent Controller is convincing and

supported by evidence.

(7) The Appellate Authority without considering factual details,

observed that the conduct of respondent/tenant, whether it is wilful

or not, has to be taken as an incident to support the original cause.

It was observed by the Lower Appellate Court that the revision

petitioner/landlord cannot take advantage of lump sum payments

towards rent by the respondent/tenant during the pendency of rent

control proceedings or the appeal. The finding of the Appellate

Authority that the cause of action for the revision

petitioner/landlord to file a petition for eviction on the ground that

the respondent/tenant was a chronic defaulter from January 2009, is

false, cannot be sustained by referring to the fact that the revision

petitioner/landlord had not taken any action from January 2009 till

May 2011.

(8) The provisions of the Rent Control Act clearly mandate the

requirement of respondent/tenant to tender rent without any

default. The respondent/tenant has come before the Trial Court

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with a definite stand that he has not committed any default from

January 2009 till May 2011, the period of default as per the petition

filed by the petitioner/landlord. Though the respondent/tenant has

produced some document to show that he made payments

subsequent to January 2009, the respondent/tenant has failed to

prove that the payment made up to 17.06.2009 was just for the

period upto January 2009. The burden of proof lies on the

respondent/tenant to prove that he had paid rent when the revision

petitioner/landlord dispute the said fact.

(9) In the factual circumstances, the Appellate Authority ought to have

taken into account, the conduct of the respondent/tenant to pay

lump sum amount in the year 2016, the rental arrears for the period

from December 2011.

(10) From the factual and materials relied upon by the Trial Court and

the Lower Appellate Court and the submissions by the learned

counsels on either side, this Court is of the firm view that the wilful

default committed by the respondent/tenant is proved beyond

reasonable doubt. The Appellate Authority ignored the documents

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and the conduct of the respondent/tenant while making lump sum

payment even during the pendency of the proceedings before the

Rent Controller.

(11) This Court having regard to the reasons stated above, is of the view

that the order of the Appellate Authority in RCA.No.9/2018 is

unsustainable and is liable to be set aside.

(12) In the result, the Civil Revision Petition is allowed, setting aside

the judgment of the Lower Appellate Court, viz., the Subordinate

Judge, Chidambaram, in RCA.No,9/2018 dated 22.11.2018 and the

order of the Rent Controller, viz., the learned District Munsif-cum-

Judicial Magistrate at Kaatumannarkoil, dated 12.06.2018 passed

in RCOP.No.2/2013 is restored. The respondent/tenant shall

vacate the premises within a period of three months from the date

of receipt of a copy of this order. No costs.

24.11.2021 AP Internet : Yes

CRP.PD.No.873/2019

S.S.SUNDAR, J.,

AP

To

1.The Subordinate Judge Chidambaram.

2.The District Munsif-cum-Judicial Magistrate Kaatumannarkoil.

CRP.PD.No.873/2019

24.11.2021