Madras High Court

Sri Durga Fancy Store vs R.Keyerikrishnan on 7 December, 2022

                                                                             CRP(MD)No.424 of 2022

                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT


                                                  DATED : 07.12.2022

                                                        CORAM:

                                     THE HONOURABLE MR.JUSTICE B.PUGALENDHI

                                             CRP(MD)No.424 of 2022
                                                      and
                                             CMP(MD)No.1984 of 2022

                1.Sri Durga Fancy Store
                  Represented by one of its partner
                  Durairaj

                2.Durairaj

                3.Maheswari

                4.Kalpana

                5.Balakrishnan

                6.Jawahar @ Jawaharlal                                      ... Petitioners
                                                             Vs
                R.Keyerikrishnan                                            ... Respondent

                PRAYER: Civil Revision Petition is filed under Section 227
                of      the        Constitution    of   India,    as   against   the   fair   and
                executable order passed in RCA No.17 of 2020 on the file of
                the Rent Control Appellate Tribunal (Principal Sub Court),
                Madurai dated 26.11.2021 against the fair and executable
                order passed in RCOP.No.272 of 2014 on the file of the Rent
                Controller (Principal District Munsif), Madurai Town dated
                18.11.2019.
                                   For Petitioner        : Mr.V.Srinivasan
                                   For Respondent        : Mr.R.G.Shankar Ganesh

                1/10

https://www.mhc.tn.gov.in/judis
                                                                                 CRP(MD)No.424 of 2022

                                                           ORDER

This Civil Revision Petition is filed as against the

order dated 26.11.2021 passed in RCA No.17 of 2020 by the

learned Rent Control Appellate Authority, Madurai

confirming the order dated 18.11.2019 passed in RCOP.No.272

of 2014 by the learned Rent Controller, Madurai Town.

2.The petitioners are the tenants. The respondent/

landlord filed a petition for eviction as against the

petitioners/ tenants on the ground of wilful default and

for own use and it was allowed by the rent controller.

Challenging the said order, the petitioners filed an appeal

before the rent controller appellate authority and it was

dismissed. Aggrieved over the dismissal order, the present

civil revision petition is filed.

3.The learned Counsel for the petitioners submits that

the petitioners are the tenants based on the rental

agreement executed between them and the father of the

landlord / respondent dated 01.08.1988. Originally the rent

was fixed as Rs.1,200/- and advance amount was fixed as

Rs.20,000/-, later on the rent was increased as Rs.25,315/-

https://www.mhc.tn.gov.in/judis CRP(MD)No.424 of 2022

and advance was increased as Rs.2,50,000/- by way of latest

agreement dated 25.08.2011 and the petitioners have also

paid the advance amount and have been paying the rent as

per the agreement dated 25.08.2011. While so the landlord

has filed the eviction petition as against the petitioners

on the ground of wilful default from the month February

2014 to September 2014 and for own use. The petitioners

paid a sum of Rs.2,50,000/- as advance. However, the

arrears of rent for the particular period is only

Rs.2,02,520/-, which can be adjusted in the advance amount

by the landlord. Even if it adjusted so, an excess amount

of Rs.47,480/- lies with the landlord. While so, without

adjusting the advance amount, the landlord has no cause of

action to file an eviction petition. Therefore, the

question of wilful default does not arise at all. In so far

as the ground of own use is concerned, the landlord is

having several non residential buildings and he can choose

any one of them for his business. So requirement of the

building for own use is not a bonafide one. However, both

Courts below have failed to consider the above and passed

the orders mechanically.

https://www.mhc.tn.gov.in/judis CRP(MD)No.424 of 2022

4.The learned Counsel for the respondent / landlord

submits that the tenants failed to pay the rent from the

month of February 2014 till September 2014, despite

repeated demands. Further the landlord was also in need of

the suit premises for expanding his business further. Hence

the tenants should be evicted on the grounds of willful

default and for own use. The rent controller and the rent

control appellate authority considered the above facts and

rightly passed the orders and therefore, there is no need

to interfere with the said orders.

5.Heard the learned Counsel on either side and perused

the materials placed on record.

6.The petitioners are the tenants. The respondent is

the landlord. The petitioners are running their business in

the property in question, which is a non residential

property. Admittedly there is a rental agreement between

the parties and there is no dispute with regard to the

same. However the tenants have failed to the pay the rent

from February 2014 till September 2014. Therefore, the

landlord filed petition for eviction as against the tenants

https://www.mhc.tn.gov.in/judis CRP(MD)No.424 of 2022

on the ground of willful default and for own use. The rent

controller allowed the said petition and the appeal filed

by the petitioners was dismissed. This civil revision

petition is filed by the petitioners/ tenants on the ground

that the landlord can have only one month rent as advance

amount and the remaining amount can be adjusted towards the

arrears of rent and when the petitioners already paid a sum

of Rs.2,50,000/- as advance and the landlord can very well

adjust the same from it and the claim of the respondent

regarding the requirement of the suit building for own use

is not bonafide, since the landlord is having several non

residential buildings and he can choose any one of them for

his business.

7.The main contention of the petitioners is that there

is no wilful default, since advance amount is with the

landlord and arrears of rent can be adjusted from it. The

Hon'ble Apex Court in Bhoja Vs Rameshwar Agarwala and

others reported in AIR 1993 SC 1498, has held that a tenant

cannot save himself from the consequences of eviction

under the Act on the ground of default in the payment of

rent by claiming automatic adjustment of any excess rent

https://www.mhc.tn.gov.in/judis CRP(MD)No.424 of 2022

paid consequent upon mutual enhancement of rent, even if

illegal unless there is an agreement between the parties

for such an adjustment. The tenant may also in a given

case seek adjustment of the excess rent in the hands of

the landlord against the arrears by specifically asking the

landlord for such an adjustment before filing of the suit

or in response to the notice to quit and even in the

written statement by way of set off within the period

of limitation and by following the procedure for claiming

such a set off, while resisting the claim for eviction on

the ground of default in payment of arrears of rent

but, he cannot claim 'automatic adjustment'.

8.Thus it is clear that unless there is a specific

clause in agreement, mandating adjustment of arrears from

the advance amount amount, tenant cannot escape from the

liability by citing the advance amount remains with the

landlord, after initiation of eviction proceedings for

default. When the tenants raised a ground of automatic

adjustment, they have to prove that such a clause is

existing their agreement. Perusal of the records shows that

in the cross examination RW1 himself has stated he does not

https://www.mhc.tn.gov.in/judis CRP(MD)No.424 of 2022

have any knowledge about any such clause is existing in the

agreement. Further, the petitioners have not produced the

rental agreement in support of their plea of automatic

adjustment nor had offered any explanation for non

production of the rental agreement. Therefore, the plea of

the petitioners with regard to the automatic adjustment

cannot be accepted.

9.The other ground raised by the petitioners is that

suit property is a non residential building and the

requirement of building for own use is not bonafide, since

the landlord is having several other buildings. In this

regard it is relevant to refer to the decision of the

Hon'ble Apex Court in Hasmat Rai and another vs Raghunath

Prasad reported in 1981 3 SC 103, wherein it has been held

that if a landlord bona fide requires possession of a

premises let for residential purpose for his own use, he

can sue and obtain possession. He is equally entitled to

obtain possession of the premises let for non-residential

purposes if he wants to continue or start his business.

10.Further, the Hon'ble Apex Court in Ragavendra Kumar

Vs Firm Prem Machinery and Co, reported in AIR 2000 SC 534

https://www.mhc.tn.gov.in/judis CRP(MD)No.424 of 2022

reiterated that it is an exclusive choice of the landlord

to choose the place for his business, which would be more

suitable to him and in that regard he has got a complete

freedom in the matter and it has been observed that the

need of the landlord is to be seen from the date of the

application and hence the tenant cannot in his advisory

capacity enjoy a privilege to take a defence that the need

of the landlord is not bonafide of the fact that there was

other available shops, as it has been pleaded in the

instant case and the relevant portion is extracted as under:

“10.The learned Single Judge of the High Court while formulating first substantial question of law proceeded on the basis that the plaintiff-

landlord admitted that there were number of plots, shops and houses in his possession. We have been taken through the judgments of the courts below and we do not find any such admission. It is true that the plaintiff-landlord in his evidence stated that there were number of other shops and houses belonging to him but he made a categorical statement that his said houses and shops were not vacant and that suit premises is suitable for his business purpose. It is settled position of law that the landlord is best judge of his requirement

https://www.mhc.tn.gov.in/judis CRP(MD)No.424 of 2022

for residential or business purpose and he has got complete freedom in the matter, (See: Prativa Devi (Smt.) v. T.K Krishnan, [1996] 5 SCC 353. In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted.”

11.In the light of the above discussion this Court is

not inclined to entertain this revision petition on the

grounds raised by the petitioners and there is no reason to

interfere with the orders of the rent controller appellate

authority. Accordingly the civil revision petition is

dismissed. Consequently connected miscellaneous petition

stands dismissed. No costs.

07.12.2022

Index: Yes/No.

dsk

1.The Rent Control Appellate Authority/ The Principal Sub Judge, Madurai.

2.The Rent Controller / The Principal District Munsif, Madurai Town.