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R. RATHINAM versus P. NITYANANDAM

High Court of Madras

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R. Rathinam v. P. Nityanandam - CIVIL REVISION PETITION (NPD)NO.2342 OF 1996 [2003] RD-TN 699 (20 August 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 20/08/2003

CORAM

THE HONOURABLE MR JUSTICE V. KANAGARAJ

CIVIL REVISION PETITION (NPD)NO.2342 OF 1996

R. Rathinam ... Petitioner

-Vs-

P. Nityanandam ... Respondent

Civil Revision Petition filed under Section 25 of the Act 18 of 1960 as amended Act 23 of 1972 and Act 1 of 1980 of the Tamil Nadu ( Lease and Rent Control) Act.

For Petitioner : Mr. P.B. Ramanujam

For Respondent : Ms. Lakshmi Narain

:O R D E R



The above civil revision petition is directed against the judgment and decree dated 31.10.1995 rendered in R.C.A.No.5 of 1992 by the Rent Control Appellate Authority (Subordinate Judge), Krishnagiri thereby reversing the fair and decretal order dated 7.1.1992 made in R.C. O.P.No.14 of 1989 by the Rent Controller and the District Munsif, Krishnagiri.

2. Tracing the history of the above Civil Revision Petition coming to be filed before this Court, what comes to be known is that it is the Rent Control Petition in R.C.O.P.No.14 of 1989 that has been initially filed by the landlord-respondent herein seeking fixation of fair rent enhancing the same to Rs.900/= per month, under Section 4 of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 (hereinafter referred to as the "Act") on the averments such as that the petitioner/tenant herein, who is the respondent before the Rent Controller, based on an agreement with the landlord/respondent herein is in possession of the petition property bearing Door No.211, Bangalore Road, Krishnagiri from the year 1981 on agreement that he would pay a monthly rent of Rs.125/- but the tenant defaulted; that the relatives of the landlord have filed a suit in O.S.No.256 of 1983 on the file of the Court of District Munsif, Krishnagiri claiming the ownership of the petition property and the adjacent properties, which came to be decided on 28.4.1989 thereby declaring that the ownership of the landlord to the petition property; that the rent was fixed eight years back; that due to spiralling of crisis, he demanded an enhanced rent from the tenant for which the tenant did not agree, as a result of which the landlord had to issue a notice on 5.5.1989 for which the tenant also sent a reply dated 6.6.1989. On such averments, the landlord, would pray for the relief in the RCOP.

3. On the contrary, the tenant-respondent would submit before the Rent Controller in his counter, denying generally all the allegations of the Rent Control Petition and further specifically stating that as against the decision of the Original Suit No.256 of 1983, mentioned supra, an appeal has been preferred by the relatives of the landlord and therefore, the fair rent cannot be fixed at present; that the relatives of the petitioner have filed RCOP.No.3 of 1983 for vacating the building and the said RCOP is still pending and therefore, prayer of the petitioner seeking for an enhanced rent of Rs.900/= and praying for fixation of the same as fair rent is neither justified, nor feasible in law and hence would pray for the dismissal of the RCOP with costs.

4. An additional counter would be filed by the respondent-tenant to the effect that the rent is not Rs.150/= but it is Rs.125/=; that the terraced building in the suit property has been constructed by him spending a sum of Rs.7,000/=; that the respondent has parted with a sum of Rs.5,000/= as advance, which is still with the petitionerlandlord that expending from his pocket, he got the pipe connection through Municipality and since, the petitioner has not paid the property tax, the respondent has paid a sum of Rs.612.20 towards the same on 19.12.1980 and therefore, there is no justification for the enhancement of the rent sought for by the petitioner-landlord and would pray to dismiss the petition.

5. On the above facts and circumstances pleaded, the Rent Controller, has conducted enquiry, wherein on the part of the petitioner, three witnesses have been examined for oral evidence as P.Ws.1 to 3 of whom P.W.1 is none but himself and on the part of the respondent also, in the same manner, the respondent besides examining himself has also examined two other witnesses for oral evidence as R.Ws.1 to 3. For documentary evidence, the petitioner would mark four documents as Exs.P1 to P4, Ex.P1 being the challan for payment of the property tax, Ex.P2 dated 5.5.1989 being the legal notice issued by the petitioner to the respondent, Ex.P3 dated 6.6.1989 being the reply, Ex.P4 dated 2 6.4.1982 Deed of Power Attorney. On the part of the respondent, only one document would be marked as R.W.1 dated 12.10.1979, which is the special report of the Inspector of Municipalities.

6. Thereupon, the learned Rent Controller having framed one point, `whether the enhancement of rent is necessary and whether the same should be ordered?', and having traced the history of the case as pleaded by parties, and in appreciation of the oral and documentary evidence, particularly attaching importance to the evidence of P.Ws.2 and 3, that is the Inspector of Municipalities and the Civil Engineer, who have examined for giving estimate the value of the property and on further consideration of the fact that P.W.2 deposed that the lands adjacent to the petition property are being sold at Rs.150/= per sq.ft and the Civil Engineer-P.W.3 has also deposed to the effect that the demised property is measuring 10x16 ft and the value of sq.ft is Rs.50 0/=, but the trial court would find that in support of the claim, no documentary evidence has been placed through these witnesses by the landlord.

7. On the contrary, the trial court would give credence to the evidence of the respondent-tenant denying the allegation that there was arrears in the payment of monthly rent; that he has been paying the rent in Court; that he has spent Rs.2000/= for getting pipe connection; that for construction purposes, he has spent Rs.7,000/=. The trial court would also consider that even though the petitioner has argued for fixation of the fair rent for the building in question at Rs.900/=, still the Court is at liberty to fix it even over and above the amount prayed for in the petition. But, however, observing that while arriving at the total cost of the building, the market value of the site on which the building is constructed should also be taken into consideration as per Section 4 of the Act and rejected the plea of the petitioner based on the decision of the Apex Court in Raval's case reported in 1974-2-SCR 629. Since the land belongs to the Bramma Gnana Sabha for which the petitioner is paying only a very meagre rent and the building being old one and in consideration of various factors, ultimately, the Rent Controller would enhance the monthly rent of the building from Rs.125/- to Rs.200/- and had passed a decree to that effect with costs.

8. Against the said fair and decretal order passed by the Rent Controller, the landlord would prefer an appeal in RCA.No.5 of 1993 on the file of the Appellate Authority (Subordinate Judge), Krishnagiri and the said Court also being traced the facts as pleaded before the Rent Controller by both the parties and in consideration of the arguments made on the part of the appellant that the Rent Controller without following the procedures that are to be followed for the purpose of deciding the fixation of fair rent under Section 4 of the Act approximately has fixed the fair rent of Rs.200/-, which is irregular; that it should have been considered in accordance with Section 4 of the Act ascertaining the cost of the land, facilities available and adding 12 for the annual tax and if it is calculated in the above sense, the value of the building could be arrived at Rs.92,000/- and the 12 tax would be arrived at Rs.11,040/=and the monthly rent could be fixed at Rs.920/- and therefore, the conclusion arrived at by the Rent Controller in fixing the fair rent at Rs.200/= not sustainable and would seek to enhance the rent to that extent. But on the contrary on the part of the respondent-tenant, it would be argued that the rent is at Rs.125/= from the year 1979 and a shop is constructed at his cost; that at any point of time, he was never in the habit of delay in committing default in payment of rent; that he had paid an advance of Rs.5,000/= and has spent Rs.2,000/= for getting pipe connection and the property tax, he has paid to the expenditure of Rs.618.20 and subsequently Rs.2317.80; that the ground is belonging to to Bramma Gnana Sabha, the extent of which is 16x8 ft that it is false to have alleged in the petitioner; that the extent of the land is 66x10ft ; that at any cost, it is justifiable to seek for fixation of the fair rent at Rs.900/= and to pray to dismiss the appeal.

9. The appellate court would find that the respondent-tenant is agreeing a monthly rent of Rs.175/=- in spite of having come forward to say that he only constructed the building, but at the same time is not seeking any ownership regarding the building and assessing the ingredients of Section 4 of the Act, the appellate court would find that 1 2 from out of the yearly income could be fixed as monthly rent and having taken up the point to determine the market value would find the age of the building is more than sixty years and would rely on the case in RAJA PONNUTHAMBI VS. K. AUGUSTINE & TWO OTHERS reported in 19 99-L.W. 320, wherein it is held as follows:- "Fixation of fair rent for a building-market value of the site to be included even though the landlord is not the owner of the site, but only its lessee" The appellate Court further finding that the property tax has been enhanced to Rs.1206/- from Rs.618.20 for half year and the said notice has been sent by the Municipality on 30.6.1990 to the landlord and taking into consideration of that document, which has been permitted to be marked as a spiralling document of Ex.P1, and in consideration of the aspects considered in the said document, would find that while the tax itself has been paid at Rs.261/= as an average per month, how the rent could be fixed at Rs.125/= and accepting the calculation of the petitioner-landlord based on P.W.3's evidence to the effect that the monthly rent would come about Rs.920/=, ultimately, the appellate court would not only set aside the order of the Rent Controller but also would fix the fair rent for the petition building at Rs.900/=. It is only testifying the authority of this enhancement and fixation of the fair rent at Rs.900/= from Rs.125/= , the petitioner-tenant has come forward to file the above civil revision petition on certain grounds as brought forth in the civil revision petition.

10. During arguments, the learned counsel appearing on behalf of the petitioner, besides tracing the facts of the case and the procedures followed by the Rent Controller on the decision arrived at by him and the evidence placed on record before the said Court, would point out that the landlord does not give the age of the building, the nature of the construction, the type of the building and what are the similar occupations available in the locality and without going into all these aspects, the fixation of the fair rent for the building, which stands in the land belonging to the Theosophical Society, is not proper and furthermore, there is a dispute between the landlord and his cousin regarding the ownership of the property in question; that he also admits his tenancy of the land with the Theosophical Society; that he is an officer of the Merchant Navy often goes overseas and his wife Mangala Gowry is only looking over the property. The learned counsel would also cite the judgment in SRINIVASA GOUNDER VS. K. VENKATESAN reported in 1997-3 L.W. 193, wherein it is held as follows:-

" In this case since no materials has been placed before the Rent Controller, he was of the opinion that the fair rent could not be fixed, and the petition was dismissed with costs. An application for fixation of fair rent cannot be dismissed, and the procedure adopted by the Rent Controller is wrong. If no evidence is let in, law presumes that the agreed rent should be fixed as fair rent."

"For determination of the market value, transaction between a willing purchaser and a willing seller, will have to be considered, and the value fixed by the Government for the purpose of stamp duty has no relevance (See. 1996-2-L.W. 637, Para-17). Since the Appellate Authority has relied upon only the hearsay evidence of P.W.1, and that too on the basis of the information ascertained by him from the Sub Registrar's Office where registers have been kept for the purpose of determining stamp duty, the same cannot be accepted as correct.

"It is well-settled that in a case regarding fixation of fair rent, Court is bound to decide the same according to statutory provisions and not on the basis of mere statement of either party. There is a duty cast on the Court to abide by the statutory provisions and then determine the fair rent. This has not been done by the Appellate Authority, which has occasioned grave failure of justice."

Citing the above judgment, the learned counsel would ending of his argument with the prayer to allow the above appeal set aside the judgment of the appellate authority.

11. In reply, the learned counsel appearing on behalf of the respondent/landlord would also cite various facts pleaded and the evidence let in and would cite the judgment in T. PALANISAMY GOUNDER VS. A.V.G.PONNUSAMY CHETTIAR AND SONS reported in 1999(1) MLJ 459 for the proposition that the landlord need not be the owner of the land for fixation of the fair rent. He has also cited yet another judgment in A. ALAGIYANATHAN VS. M. SWAMINATHA PILLAI reported in 93 L.W. 576, wherein it is held as follows:- " Any petition filed against the tenant by the owners of a building must, of necessity, reflect a conjoint action. Otherwise, we will be faced with the anomalous position of a tenant being sought to be evicted simultaneously by different co-owners of the building on different grounds. Such a situation is not contemplated by the Act. Therefore, where there is more than one landlord for a building, it must necessarily be held that any action taken against the tenant of the building seeking his eviction must be instituted by all the landlords, or, at least, by one or more of them on behalf of and for the benefit of all of them."

The learned counsel would say that the tenant agrees that he has been paying the rent to the respondent-landlord and would cite the following judgments reported respectively.

i) In N.A.S. ANSARI VS. M. SARANGAN reported in 1996-2 L.W. 315

ii) In M. NAGALINGAM AND OTHERS VS. T.K. RAMASWAMY CHETTIAR reported in 1976(1) MLJ 149

iii) In S. THANGAPPAN VS. P. PADMAVATHY reported in 2000(1) L.W. 782

iv) In RAJA PONNUTHAMBI VS. K. AUGUSTINE & TWO OTHERS reported in 99 L.W. 320

v) In M. MUTHURAMALINGAM PILLAI ETC. VS. THE

SPECIAL TAHSILDAR & ANOTHER reported in

2003-2-L.W. 241

12. Sofar as the first judgment sited in the judgment, it is held therein as follows:-

" ...... any person, who is entitled to receive rent is a landlord. It has nothing to do with ownership. Tenant is defined only as a person who is liable to pay rent. It also does not say that the person in occupation must be a person who came into possession from an absolute owner."

13. In the second judgment cited above, it is held as follows:- " As far as Rent Control applications are concerned, it is not the ownership of the property that entitles a person to file an eviction petition; but when a person comes under the definition of "landlord" mentioned in Section 2(6) of the Madras Act XVIII of 1960, he is entitled to file a petition for eviction."

14. In the third judgment cited above, it is held as follows:- " The denial of title by the appellant was not bona fide and the default was wilful and the building is required for demolition and reconstruction."

15. In the fourth judgment cited above, it is held as follows:- " There is nothing in the Act to indicate that the landlord should own the building as also the site; on the other hand, it is so plain that the fair rent is fixed for the building alone. But, such fixation should be in accordance with the principles, set out in the subsections. It is pertinent to notice that only in sub-S.(4) of Section 4 there is reference to the site. It may be useful to notice that save in Sub Section (4) of Section, 4, other provisions in the Act and Rules make no reference to the site."

16. In the last judgment cited above, it is held as follows:- " .... the earlier transactions in respect of the acquired lands or part of the acquired lands would be the best evidence and has not ruled that the Court should not take into consideration any other piece of evidence, however, relevant and useful they are."

17. In clarification, the learned counsel on behalf of the petitioner would further submit that the appellant does not know as to who is the actual owner and whom he should pay the rent and therefore, he is depositing the rent in Court and would lay emphasis to the judgment already quoted in in SRINIVASA GOUNDER VS. K. VENKATESAN reported in 1997-3 L.W. 193.

18. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, the facts, circumstances, position of law encircling have been made very clear to the effect of giving expression to Section 4 of the Act under which the landlord has filed the petition praying for fixation of the fair rent for the building said to be belonging to him.

19. On the other hand, the case of the appellant-tenant is clear to the effect that the landlord only constructed the building and that the land belongs not to the respondent but to the Theosophical Society under which he is a lessee and making a meagre payment as rent, he claims to be the owner of the land also for the purpose of the Rent Control proceedings. However, there is a dispute between the respondent-tenant and his relatives for the ownership of the land and building and civil cases have been filed and decided once and they are pending in appeal and at this stage, the respondent/landlord has come forward to file an application for fixation of the fair rent.

20. On the contrary, on the part of the landlord, he would come forward to allege that the tenant is not effecting the payment of rent and is a defaulter. This argument would be shattered on the part of the tenant stating that he was regular in his payment of rent so long as there was no dispute regarding the ownership of the land and building and when a dispute is pending regarding the ownership between the respondent and his relatives, admittedly he started depositing the rent in Court. At this juncture, the respondent claiming to be the owner of the land and building has come forward to file the RCOP before the Rent Controller praying for fixation of the fair rent at Rs.900/= and the Rent Controller having examined the facts and circumstances and permitting the parties to record their evidence and appreciating the same would ultimately arrive at the conclusion to enhance the rent from Rs.125/- to Rs.200/= and on appeal, the appellate authority dealing with the same in a different angle would arrive at his own conclusion to fix the fair rent of the building at Rs.900/= as it has been sought for on the part of the respondent.

21. In these circumstances, the big question that arises for consideration is `whether it is necessary on the part of the Rent Controller and the Appellate Authority to have decided the proceedings in the manner that they have decided regarding the fixation of the fair rent especially in view of the admitted fact that there is a dispute between the respondent and his relatives, wherein the appeal suit is admittedly pending disposal regarding the owner of the land and building?'

22. This Court is not very much concerned with the claim of the landlord to be the full-fledged owner of the land within the meaning of the section, since even if he is a lessee, it is not whether the ownership is with him but whether he is the `landlord' within the meaning of the Section and therefore, so far as this aspect of the case that the land belongs to the Theosophical Society and not to the respondent, there does not seem to be a dispute at all but the dispute is as to who is the real lessee of the land with the original owner, the Theosophical Society, whether it is the respondent or his relatives, who are claiming the ownership of the same in a civil suit, which is pending on appeal. For this question, absolutely no evidence comes forth from the side of the respondent excepting to claim that he is the true owner of the property.

23. Secondly, while the tenant is permitted to deposit the rent in the Court since the ownership of the land and building is not decided by the Civil Court, wherein the dispute is pending, is it necessary on the part of the Rent Controller and the Appellate Authority to have decided the question of fixation of fair rent presuming the respondent to be the owner, is the next question that is to be answered.

24. This Court is clear in this regard that it is an unnecessary exercise that both the courts below have undertaken and in fact the Rent Controller himself should have rejected the petition filed on the part of the respondent seeking an enhancement of the rent and fixation of the fair rent, as though he is the landlord within the meaning of Section, which is yet to be observed and declared by the civil forum of law ultimately and therefore, while the right of ownership as to who is the actual landlord of the land and building itself is in dispute, it is not fair on the part of the Rent Controller and the Appellate Authority to have decided the issue of the enhancement of rent and fixation of the fair rent, which, in the circumstances of the case, is not at all required and in the above circumstances, the only decision that this Court could arrive at is to set aside the findings of both the Courts below. So far as the dispute regarding the ownership in between the respondent and his relatives is not concluded and it is decided as to who is the real landlord, since his relatives have also claimed the rent from the appellant-tenant, besides admitting that the civil proceedings are pending in the appellate court, any decision that is arrived at regarding the fixation of the fair rent presuming the respondent to be the landlord of the land and building is infirm, inconsistance and erroneous and the entire proceedings initiated and decided by the Rent Controller and by the Appellate Authority, in the above circumstances of the case, only becomes liable to be set aside and the same is decided accordingly.

In result,

(i) The above civil revision petition succeeds and the same is allowed. (ii) The judgment and decree dated 31.10.1995 rendered by the Appellate Court(Subordinate Judge), Krishnangiri and thereby modifying the fair and decreetal order dated 7.10.1992 made in R.C.O.P.No.14 of 1989 by the Rent Controller and

the Court of District Munsif, Krishnagiri is

hereby set aside.

(iii)The petition in R.C.O.P.No.14 of 1989 on the file of the Court of Rent Controller and the District Munsif, Krishnagiri stands dismissed. However, in the circumstances of the case, there shall be no order as to costs.

Index: Yes

Internet: Yes

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To

1. The Appellate Authority

(subordinate Judge)

Krishnagiri.

2. The Rent Controller

Krishnagiri.

3. The Record Keeper

V.R. Section,

High Court,

Chennai-104.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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