Madras High Court
Hirachand vs V.M.Muthukumar on 29 October, 2021
C.R.P.(NPD).No.477 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.10.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(NPD).No.477 of 2017
and
C.M.P.Nos.2324 & 2325 of 2017
Hirachand .. Petitioner
Vs.
1.V.M.Muthukumar
2.Jayanthilal .. Respondents
Prayer in C.R.P.(NPD).No.477 of 2017: This Civil Revision Petition is filed
under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act,
1960, against the order dated 30.11.2016 passed in R.C.A.No.1043 of 2006
by the Appellate Authority namely the VIII Judge, Small Causes Court,
Chennai, confirming the order dated 14.09.2006 passed by the Rent
Controller namely the XIII Judge, Small Causes Court, Chennai, in
R.C.O.P.No.249 of 2006.
Prayer in C.M.P.No.2325 of 2017: This Civil Miscellaneous Petition is filed
under Order 41 Rule 27 of AS Rules R/W Section 151 of the Civil Procedure
Code to receive the duplicate copy of the lease deed dated 01.07.1999 as
additional evidence in this Civil Revision Petition.
1/24
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C.R.P.(NPD).No.477 of 2017
For Petitioner : Mr.R.Madanagopaal
For R1 : Mr.K.Bijai Sundar
ORDER
This Civil Revision Petition is filed against the order dated 30.11.2016
passed in R.C.A.No.1043 of 2006 by the Appellate Authority namely the VIII
Judge, Small Causes Court, Chennai, confirming the order dated 14.09.2006
passed by the Rent Controller namely the XIII Judge, Small Causes Court,
Chennai, in R.C.O.P.No.249 of 2006.
2.The petitioner is the 1st respondent in R.C.O.P.No.249 of 2006 on the
file of the XIII Small Causes Court, Chennai. The 1st respondent is the
petitioner in the said R.C.O.P. The 1st respondent filed the said R.C.O.P.
against the petitioner, 2nd respondent and one Ramesh for eviction of
petitioner and two others on the ground of subletting. According to 1st
respondent, he is the owner of petition premises and he leased out the petition
premises to the petitioner on 01.07.1999 for three years on a monthly rent of
Rs.8,625/-. In the year 1999, the petitioner was permitted to sublease the back
portion of the petition premises. The petitioner sublet the back portion of
petition premises to one Ramesh and 2nd respondent herein. The 2nd
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C.R.P.(NPD).No.477 of 2017
respondent and the said Ramesh are partners of S.K.Metals. They were
inducted as sub tenants by the petitioner. There is no privity of contract
between the 1st respondent and 2nd respondent and the said Ramesh. The
contract is between the petitioner and 2nd respondent and the said Ramesh.
The 1st respondent is unaware of the rent collected from the sub tenants, who
are carrying on business on the rear side of the petition premises. The term of
tenancy was entered on 01.07.1999 for three years. The 1st respondent did not
execute any fresh lease deed. The erstwhile rent of Rs.8,625/- alone is paid
even on the date of filing of the petition. The 1st respondent is entitled to get
possession from the petitioner and sub tenants. The 1st respondent through his
counsel issued notice dated 18.12.2005 to the petitioner expressing his
willingness to continue the petitioner as tenant in front portion of the petition
premises on terms and conditions to be agreed upon and called upon the
petitioner to surrender the vacant portion of petition premises occupied by
sub tenants. The petitioner through his advocate sent a reply dated
13.01.2006, expressing his willingness to pay 15% enhanced rent alleging
that sub tenancy continues and called upon the 1st respondent to give consent
and execute the lease deed within 7 days. The 1st respondent did not give any
consent. When there is no right to continue in the petition premises, the sub
tenants, the 2nd respondent and the said Ramesh, who have no privity of
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C.R.P.(NPD).No.477 of 2017
contract are liable to be vacated as claimed in the notice. The 2nd respondent
and the said Ramesh are unauthorized occupants not only under the 1st
respondent, but also under the petitioner and prayed for ordering eviction.
3.The petitioner and 2nd respondent filed counter statement and denied
all the averments in the petition. The petitioner and 2nd respondent have stated
that initially the petitioner was inducted as tenant for the entire ground floor
with permission of subletting. The petitioner sublet the back portion of the
petition premises to the 2nd respondent, who is the proprietor of S.K.Metals.
The 2nd respondent in R.C.O.P. is not a partner and he has nothing to do with
tenancy. During lease period, the 2nd respondent was inducted lawfully as sub
tenant. The 1st respondent cannot split the tenancy. By issuing of notice, the
permission granted for subletting cannot be withdrawn and the sub tenant is
not an unauthorized occupant and prayed for dismissal of R.C.O.P.
4.Before the learned Rent Controller, the 1st respondent examined
himself as P.W.1 and marked three documents as Exs.P1 to P3. The petitioner
examined himself as R.W.1 and marked four documents as Exs.R1 to R4. The
learned Rent Controller considering the pleadings, oral and documentary
evidence, held that petitioner inducted the sub tenants without permission of
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the 1st respondent and hence, the petitioner and 2nd respondent and said
Ramesh are liable to be vacated.
5.Against the said order dated 14.09.2006 made in R.C.O.P.No.249 of
2006, the petitioner and 2nd respondent filed R.C.A.No.1043 of 2006.
6.Before the Appellate Authority, the petitioner and 2nd respondent
filed M.P.No.746 of 2012 under Rule 11 & 16(2) of the Tamil Nadu
Buildings (Lease and Rent Control) Act, 1960, read with Section 151 of
C.P.C. to mark the rental receipts as additional documents. The learned
Appellate Authority heard both the Miscellaneous Petition and R.C.A. and
allowed M.P.No.746 of 2012 and marked the documents filed by the
petitioner and 2nd respondent as Exs.R5 to R8. The learned Appellate
Authority considering the pleadings, oral and documentary evidence and the
order of the learned Rent Controller, dismissed the R.C.A., holding that the
petitioner did not obtain any written consent from the 1st respondent for
subletting after expiry of three years as mentioned in the lease agreement and
confirmed the order of the learned Rent Controller.
7.Against the said judgment dated 30.11.2016 passed in
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R.C.A.No.1043 of 2006 by the Appellate Authority namely the VIII Judge,
Small Causes Court, Chennai, confirming the order dated 14.09.2006 passed
by the Rent Controller namely the XIII Judge, Small Causes Court, Chennai,
in R.C.O.P.No.249 of 2006, the petitioner has come out with the present Civil
Revision Petition.
8.The learned counsel appearing for the petitioner contended that the
Courts below failed to consider that as per lease deed dated 01.07.1999, the
1st respondent gave permission to the petitioner to sublet the petition
premises. The permission given to the petitioner is not for any particular
period. On expiry of lease period, the sub tenant will not automatically
became unauthorized occupant. After expiry of lease period, the petitioner as
per the provisions of Rent Control Act, has become statutory tenant. The Act
protects the rights of statutory tenant. By deliberately not extending the lease
period, the 1st respondent / land lord is not entitled to ask the petitioner, who
is the chief tenant to hand over the petition premises. The Courts below failed
to see that as per lease deed dated 01.07.1999, the petitioner was inducted as
tenant with permission of sub lease and even after expiry of lease period, the
1st respondent issued notice only in the year 2005, which shows that lease
period was extended. The Courts below caused an injustice by not marking
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the lease deed dated 01.07.1999 on the objection of 1st respondent that lease
deed is not stamped and registered. The Courts below erroneously held that
no written consent was given to the 1st respondent. The judgment of the
learned Appellate Authority is only non-speaking order and the learned
Appellate Authority has not independently applied his mind, merely endorsed
the order of the learned Rent Controller. In support of his contention, the
learned counsel relied on the following judgments and prayed for allowing
the Civil Revision Petition.
(i) Judgment of the Hon'ble Apex Court reported in (1979) 4 SCC 214,
[V.Dhanapal Chettiar Vs. Yesodai Ammal], wherein the Hon'ble Apex Court
at paragraph No.8, has held as follows:
“...8.Before we embark upon a review of
some of the decisions of this Court we think it
necessary and advisable to briefly refer to the
provisions of some of the State Rent Acts in
support of the observations made by us above that
on the question of notice no different result is
possible on the language of any State Act. Section
10 of The Tamil Nadu Rent Act says :- "A tenant
shall not be evicted whether in execution of a
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C.R.P.(NPD).No.477 of 2017
decree or otherwise except in accordance with the
provisions of this section or sections 14 to 16." In
other words if a case is made out for his eviction
in accordance with the provisions aforesaid, he
can be evicted. Even after the termination of the
contractual tenancy under the definition of the
landlord in clause (6) and of the tenant under
clause (8) of section 2 the landlord remains a
landlord and the tenant remains a tenant as clause
(8) expressly says that tenant means "a person
continuing in possession after the termination of
the tenancy in his favour." Section 3 indicated that
no landlord can treat the building to have become
vacant by merely terminating the contractual
tenancy as the tenant still lawfully continues in
possession of the premises. The tenancy actually
terminates on the passing of the order or decree
for eviction and the building falls vacant by his
actual eviction. The giving of the notice, therefore,
is a mere surplusage and unlike the law under the
Transfer of Property Act it does not entitle the
landlord to evict the tenant.”
(ii) Judgment of the Hon'ble Apex Court reported in (2000) 1 SCC 74,
[Habibunnisa Begum and others Vs. G.Doraikannu Chettiar (dead) by Lrs.
and others], wherein the Hon'ble Apex Court at paragraph No.2, has held as
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follows:
“... 2. ... Law, therefore, is that where there
is a single indivisible contract of tenancy, it
cannot be split by a Court unless there is a
statutory provision to that effect. In the present
case it is not disputed that the contract of tenancy
is a single indivisible contract for Doors Nos.27
and 28. It is also not disputed that there is no
provision in the Tamil Nadu Buildings (Lease and
Rent Control) Act empowering the Court to order
partial ejectment of a tenant from the premises by
splitting the single indivisible tenancy. For these
reasons it was not open to the High Court to split
the tenency and order for partial ejectment of the
tenant from the premises.”
9.The petitioner filed C.M.P.No.2325 of 2017 to file the lease deed
dated 01.07.1999. The petitioner has stated that the petitioner called upon the
counsel for respondents to produce the lease deed dated 01.07.1999. The
learned counsel appearing for the petitioner filed a copy of the lease deed
before the learned Rent Controller but the same was not marked. As per the
terms of lease deed, the petitioner is permitted to sublet and no period of
sublease was fixed. The learned counsel appearing for the petitioner prayed
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for allowing the application and mark the document as additional Exhibit.
10.The learned counsel appearing for the 1st respondent submitted that
the document which was not marked before the learned Rent Controller and
Appellate Authority cannot be marked before this Court in the Revision
Petition. The C.M.P. filed by the petitioner is not maintainable. He further
submitted that the petitioner has not filed any statement of account and
receipt relied on by the counsel for petitioner is not acceptable. Provisions of
Order XLI Rule 27 is not applicable to the rent control proceedings and
hence, additional evidence cannot be permitted to be marked before this
Court. The 1st respondent after the expiry of lease period withdrew the
permission given to the petitioner to sublet. In the notice dated 18.12.2005
issued through his counsel, the 1st respondent specifically withdrew the
permission given to the petitioner to sublet and called upon the petitioner to
surrender the vacant possession of the portion under the sub tenant / the 2nd
respondent herein. The petitioner after the expiry of lease period as a
statutory tenant can sublet only after obtaining written consent from 1st
respondent and relied on the following judgments and prayed for dismissal of
the Civil Revision Petition.
(i) Order of this Court reported in (1997) I MLJ 376, [Sundaram Steel
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Co. and Ors. Vs. S.Lakshmi], wherein this Court at paragraph Nos.5 & 8, has
held as follows:
“... 5. No doubt, Babu Syed v. Zubaida Bee,
a learned single Judge of this Court, after
pointing out Krishnamurthi v. Jagat Textiles
(1981) 1 M.L.J. 384 and Arya Vaidya Samajam v.
Murugesa Mudaliar 1990 T.L.N.J. 82 (D.B.), has
held that Order 41, Rule 27, C.P.C. is applicable
to a revision under Section 25 of the Act. But even
assuming Order 41, Rule 27, C.P.C. is applicable
to the proceedings under the Act, the said Rule 27
of Order 41, C.P.C. can be, if at all, applied only
to appeals under the Act and not to revisions
under the Act since-the said Rule applied only to
appeals. Further, as already noted, regarding
appeals, under the Act, there is a specific
provision in the abovesaid Rule 16 of the Rules
framed under the Act itself. When such is the case,
normally, only the said Rule 16 will govern, and
not Order 41, Rule 27, C.P.C. No doubt, the
principles behind Order 41, Rule 27, C.P.C, may
be applicable when additional evidence is sought
to be let in appeals under the Act. Anyway, I am
unable to see how Order 41, Rule 27, C.P.C.
could be applied to revisions. In fact in Voora
Mahalakshmamma v. C. Veera Reddy (1995) 1
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L.W.82, another learned Judge of this Court has
held thus:
It is well settled that no additional
evidence can be let in at the stage of
revision. Even though the wordings of
Section 25 of the Act is wider than
Section 15 of the Civil Procedure Code,
yet I am of the view that no additional
evidence can be let in at revision stage.
8.In the above circumstances, there is no
case for admission of this civil revision petition
and hence it is dismissed. Consequently, C.M.P.
Nos. 15891 and 15892 of 1996 are dismissed. No
costs.”
(ii) Order of this Court reported in 2001 (1) RCR (Rent) 550,
[R.Sambandan Vs. S.Krishnaveni], wherein this Court at paragraph Nos.10,
19 & 21, has held as follows:
“... 10. The learned senior counsel for the
respondent contends that this High Court, while
exercising revisional jurisdiction under section 25
of the Tamil Nadu Buildings (Lease and Rent
Control) Act cannot reassess the evidence at the
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time of examining the correctness of the findings
of fact and in support of such contention relied on
the decision reported in Ramdoss v. K.
Thangavelu, 2000 (2) CTC 303 : 2000 (2)
L.W.310. The Apex Court, in the said decision,
has held that the High Court was not justified in
interfering with the finding of fact recorded by the
courts below by reassessing the evidence as if it is
a second appeal. Therefore, this Court concurs
with the concurrent finding of the courts below in
holding that the respondent herein is the owner of
the demised premises and the revision petitioner
has no right to the said premises except the fact
that he is in possession of the demised premises.
19. The learned counsel for the revision
petitioner has filed a petition in C.M.P.No.9325 of
2000 under Order 41, Rule 27(1) (b) CPC seeking
permission of this Court to permit him to file
additional documents viz. copies of the plaint,
written statement, deposition of P.W.I and
judgment and decree in O.S.No.545 of 1991 on the
file of the City Civil Court, Madras, filed by the
respondent herein as plaintiff against the revision
petitioner, seeking for permanent injunction
restraining the revision petitioner from in any way
interfering with the peaceful possession and
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enjoyment of the property bearing No.37, Perumal
Koil St, Choolaimedu, Madras-94 and also from
changing or causing damage to the existing
superstructure in the property described in the
plaint schedule. The respondent has resisted the
petition on the ground that the petitioner has no
locus stand: to file the above said petition in view
of several decisions rendered by this Court that a
petition to receive additional evidence cannot be
entertained by the court sitting in revisional
jurisdiction and that, therefore, the petition filed
for receiving additional documents has to be
dismissed.
21. The learned senior counsel for the
respondent has brought to the notice of this Court
a decision reported in M/s The Calcutta
Chemicals and Limited v.Taiyeb Yusujbhat
Vakhria and another, and would contend that the
documents produced as additional evidence
cannot be received at the stage of revision. A
learned single Judge of this Court, after referring
to various judgments, including judgments of this
High Court on this point, has held in the said
decision that the High Court will not be justified
in receiving additional evidence while sitting in its
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revisional jurisdiction. This Court agrees with this
decision in the circumstances of this case and held
that the petition filed by the revision petitioner for
reception of additional documents cannot be
entertained by this Court, while sitting in its
revisional jurisdiction. Accordingly, the petition
in C.M.P.No. 92325 of 2000 is dismissed,”
(iii) Order of this Court reported in (2005) 3 MLJ 132,
[R.Ramachandra Raja Vs. M.Nanda Govind], wherein this Court at
paragraph Nos.6 & 37, has held as follows:
“... 6. C.M.P.No. 2491 of 2004 is filed
under Order 41 Rule 27 C.P.C. for permitting the
petitioner to produce additional evidence.
C.M.P.No. 2670 of 2004 is filed for appointment
of an Advocate Commissioner to note down the
new construction put up by the respondent.
...
37. In view of the pronouncement of the
legal principle in the decisions SUNDARAM
STEEL CO v. LAKSHMI (1997 (I) M.L.J. 376) and
VOORA MAHALAKSHMAMMA v. C. VERRA
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REDDY (1995-1-L.W. 82) that no additional
evidence can be let in at the stage of revision
under Section 25 of the Tamil Nadu Act 18 of
1960, this Court is of the view that the additional
evidence sought to be adduced in this revision
(vide) C.M.P.No. 2491 of 2004 cannot be received
at this stage.”
(iv) Order of this Court reported in 2019 (I) LW 555, [The Canara
Bank, Premises and Estate Section, Circle Office, Teynampet, Chennai –
600 018 Vs. G.Meerabai] and submitted that even for collateral purpose,
unregistered document cannot be marked.
11.The learned counsel appearing for the petitioner in reply submitted
that there is no absolute Rule that document cannot be received in Revision
Petition. In support of his contention, he relied on the following judgments:
(i) Order of this Court reported in (1981) I MLJ 394,
(T.N.Krishnamoorthy Vs. M/s.Jagat Textiles, represented by its partner
Lalji Bhujpunia, No.16, Manjanakara Street and No.51, Mahal 6th Street,
Madurai Town), wherein this Court has held as follows:
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“... The power of revision conferred under
Section 25 of the Act XVIII of 1960 is on the High
Court and while entertaining the revision it
exercises the power of a Court created under the
Constitution. It is not a 'persona designata'. When
power is conferred on a Court, and no other
special procedure is prescribed for disposal of
matters under a particular statute, as held in
P.N.Thakershi V. Pradyumansinghji A.I.R. 1970
S.C. 1273, by such conferment 358.”
(ii) Order of this Court reported in 2000 (I) CTC 386, [Raja
Mohammed Vs. V.D.Murugesan], wherein this Court at paragraph No.14,
has held as follows:
“... 14. 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
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rule that the document cannot be received as
evidence in the revision filed under Section 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.”
12.Heard the learned counsel appearing for the petitioner as well as the
learned counsel appearing for the 1st respondent and perused the entire
materials on record.
13.From the materials on record, it is seen that the 1 st respondent is the
landlord of petition premises and leased out the petition premises to the
petitioner as per the lease deed dated 01.07.1999 entered into between the 1st
respondent and petitioner. The lease deed is for a period of three years. In the
lease deed, the 1st respondent gave permission to the petitioner to sublet the
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petition premises. The petitioner sublet the back portion of the petition
premises to 2nd respondent. After expiry of lease period, there was no fresh
lease deed entered into between the 1st respondent and petitioner extending
the lease period. In the year 2005, the 1st respondent issued a notice dated
18.12.2005 through his counsel withdrawing the permission given to the
petitioner to sublet and called upon the petitioner to surrender the vacant
portion of petition premises sublet to the 2nd respondent. The 1st respondent
also called upon the petitioner to negotiate with regard to his tenancy alone.
The petitioner sent a reply stating that he is willing to pay 15% enhanced rent
and did not comply with the other demand made by the 1st respondent. In the
notice dated 18.12.2005 issued by the 1st respondent, he has specifically
withdrew the consent given to the petitioner for subletting. When the lease
period expired and no fresh lease deed was entered into or lease period was
not extended, the petitioner becomes statutory tenant. As a statutory tenant,
he cannot sublet the petition premises without written consent by the 1st
respondent / landlord. In the present case, admittedly no fresh lease deed was
entered into between the petitioner and 1st respondent and the lease deed was
not extended. Further, the 1st respondent has specifically withdrawn the
consent given to the petitioner for subletting. In view of the same, the
petitioner has committed illegality by continuing the sub tenancy. The learned
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Rent Controller has considered the pleadings, oral and documentary evidence
and rightly held that without written consent from the 1st respondent, the
petitioner has sublet the back portion of petition premises and is liable to be
evicted. The learned Appellate Authority considering the pleadings, oral and
documentary evidence, order of the learned Rent Controller and also the
petition in C.M.P.No.746 of 2012 filed by the petitioner and 2nd respondent to
file additional documents, held that from the documents Exs.P1 to P4 and R1
to R8, it is proved that no written consent was obtained by the petitioner from
the 1st respondent after expiry of three years mentioned in the lease agreement
and dismissed the R.C.A.No.1043 of 2006 confirming the order of the learned
Rent Controller. The contention of the learned counsel appearing for the
petitioner that the learned Appellate Authority merely endorsed the order of
the learned Rent Controller without independently applying the mind is
contrary to the judgment of the learned Appellate Authority. A reading of the
said judgment shows that the learned Appellate Authority has considered the
entire materials placed and dismissed the R.C.A. by giving valid reason for
confirming the order of the learned Rent Controller.
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14.As far as not marking of lease deed dated 01.07.1999 is concerned,
marking of the same was objected by the 1st respondent on the ground that it
was not registered. The said document was produced by the petitioner. If
really he wanted to rely on the terms of lease deed to substantiate his case, he
ought to have filed the same in time without default as he was also a party to
the said lease deed. The petitioner is not entitled to rely on the document
which was not marked.
15.A party can produce additional evidence in Appellate Court if he
satisfies the conditions in Order XLI Rule 27 C.P.C. In Civil Procedure Code
there is no provision to produce additional evidence in Revision. The
petitioner filed C.M.P.No.746 of 2012 to mark additional documents namely
Rent receipts in the appeal filed by him. At that time, the petitioner did not
seek to mark the lease deed dated 01.07.1999, now sought to be marked. The
petitioner has not given any reason for not seeking permission to mark the
said document. A party is not entitled to seek permission to file additional
documents in Revision Petition. The judgements and orders relied on by the
learned counsel appearing for 1st respondent are squarely applicable to the
facts of the present case. The orders relied on by the learned counsel
appearing for the petitioner do not advance the case of the petitioner.
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16.Considering the materials in its entirety, this Court is of the view
that both the learned Rent Controller and the learned Appellate Authority has
given valid reason for ordering eviction on the ground of subletting. There is
no error or irregularity in the order of the learned Judge warranting
interference by this Court.
17.In the result, this Civil Revision Petition is dismissed.
Consequently, the connected Miscellaneous Petitions are closed. No costs.
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Index : Yes / No
Internet : Yes / No
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C.R.P.(NPD).No.477 of 2017
To
1.The learned VIII Judge,
Small Causes Court,
Chennai,
2.The learned XIII Judge,
Small Causes Court,
Chennai .
V.M.VELUMANI, J.
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