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LOURDURAJ versus HENDRY

High Court of Madras

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Lourduraj v. Hendry - CRP.NPD.2102 of 1999 [2007] RD-TN 1873 (11 June 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



Dated: 11.6.2007

Coram:

The Hon'ble Mr.JUSTICE S.RAJESWARAN

C.R.P.(NPD) Nos.2102/1999 & 3871/2001

Lourduraj .. Petitioner in both C.R.Ps. vs.

Hendry .. Respondent in both C.R.Ps. Revision Petitions filed against the orders dated 12.8.1998 and 10.10.2001 made in R.C.A.Nos.12/97 and 10/99, on the file of the Appellate Authority, (Principal Sub-Judge) Mayiladuthurai confirming the orders dated 9.4.97 and 10.8.99 made in RCOP Nos.10/96 and 32/97 on the file of the rent controller (Principal District Munsif) Mayiladuthurai, respectively. For Petitioner : Mr.P.Rajagopal

For Respondents : Mr.S.V.Jayaraman, Senior counsel, for Mr.S.Sounthar. COMMON ORDER



These Revision Petitions have been filed against the order dated 12.8.1998 and 10.10.2001 made in R.C.A.Nos.12/97 and 10/99, on the file of the Appellate Authority, (Principal Sub-Judge) Mayiladuthurai confirming the orders dated 9.4.97 and 10.8.99 made in RCOP Nos.10/96 and 32/97 on the file of the rent controller (Principal District Munsif) Mayiladuthurai, respectively.

2.As the parties are one and the same and the property involved in all the revision petitions is the very same property, a common order is being passed to dispose of both the revision petitions.

3.The brief facts are as under: These revision petitions are filed by the tenant. RCOP No.10/1999 was filed by the respondent herein, hereinafter called 'the landlord', against the revision petitioner, hereinafter called 'the tenant', for eviction on the ground of wilful default and owner's occupation. The case of the landlord in RCOP No.10/1999 is that he purchased the petition property on 25.3.1996 from one T.R.Anthonysamy represented by his Power of Attorney. The tenant was already there in the property even before his purchase and therefore he became his tenant after purchase. As he did not pay the rent from 25.3.1996 to 25.5.96, the tenant committed wilful default in the payment of rent. The landlord further stated in his petition that he purchased the property from the erstwhile owner for the specific purpose of his own occupation and he did not have any other residential property other than the petition property.

4.The tenant resisted the RCOP by contending that he was not aware of the purchase of the property by the landlord on 25.3.1996. He further pleaded that he became a tenant of the property under his possession through one Paul Iruthayaraj, the brother of the owner of Anthonysamy and he has been in occupation of the property since 1982 by paying a monthly sum of Rs.125/-. Therefore the tenant denied that the landlord is competent to evict him as he has never been a tenant under the landlord. The rent controller after going through the evidence found that the landlord is competent to file the eviction petition and the landlord has become the owner by virtue of his purchasing the property from the said Anthonysamy. Insofar as the wilful default aspect is concerned, the rent controller found that the default was not wilful. As regards the question of owner's occupation is concerned, even though the rent controller found that the landlord proved his bonafide in requiring the petition property, the rent controller dismissed the RCOP on this ground also as eviction petition was filed within 3 months from the date of purchase of the property.

5.Even though the RCOP was dismissed on technical ground, that is, filing the RCOP for eviction on the ground of bona fide requirement for owner's occupation within 3 months from the date of purchase, the tenant was aggrieved by the findings of the rent controller that the landlord is competent to file an eviction petition on the basis of the sale deed dated 25.3.1996 and that the landlord bonafidely required the property for his own occupation. Therefore he filed RCA No.12/1997 against those findings alone and the rent control appellate authority after re-evaluating the evidence confirmed the findings of the rent controller. Aggrieved by the order of the appellate authority dated 12.8.98 made in RCA No.12/1997 confirming the findings of the rent controller dated 9.4.97 made in RCOP No.10/1996, the tenant has filed CRP.NPD.No.2102/1999.

6.After the dismissal of the RCOP No.10/1996 on 9.4.97, the landlord filed RCOP No.32/1997 for evicting the tenant on the ground of owner's occupation alone. The rent controller by order dated 10.8.99 allowed the RCOP against which the tenant filed RCA No.10/99 and the appellate authority by order dated 10.10.2001 dismissed the appeal and confirmed the order of the rent controller. Aggrieved by the order of the appellate authority the tenant has filed the CRP.NPD.No.3871/2001.

7.Heard the learned counsel for the tenant and Mr.S.V.Jayaraman, the learned Senior Counsel for the landlord. I have also perused the documents filed and the judgments referred to by them in support of their submissions.

8.The learned counsel for the tenant vehemently contended that both the authorities below in CRP.NPD.No.2102/1999 committed illegality in rendering a finding on merits when the RCOP was to be dismissed on the ground that the same was filed within 3 months from the date of purchase. Instead of simply dismissing the RCOP, the rent controller went into the merits unnecessarily and gave adverse findings against the tenant which are to be set aside in this revision petition. The learned counsel further contended that even otherwise those findings given in RCOP No.10/1996 and RCA No.12/1997 are not binding on the authorities who decreed the RCOP No.32/1997 and RCA No.10/1999, against which CRP.NPD.No.3871/2001 was filed. The learned counsel further added that as the latter authorities were influenced by the findings of the former authorities, the orders are to be set aside and both CRP.NPD.Nos.2102/1999 and 3871/2001 are to be allowed. The learned counsel for the tenant has also pointed out that in the RCOP filed by the landlord there are no proper averments and therefore for the lack of necessary pleadings the RCOP ought to have been dismissed by the rent controller.

9.The learned counsel for the tenant relied on the decision of this court reported in 92 L.W. 766 (Anbiah v. Mercy Bell) to submit that if the petitioner does not satisfy the meaning of the word tenant within the meaning of Sec.2(8)(i) of the Act then the petition for eviction is not maintainable. He further relied on the decision of this court reported in 1994(2) M.L.J.447 (Venkata Naicker Trust v. Muthusamy Chettiar) and the decision of the Supreme Court reported in 2002(5) SCC 337 (A.V.G.P.Chettiar v. T.Palanisamay Gounder) and 1993(1)MLJ 17 (Balu Chettiar v. Solaimalai Chettiar) to submit that when there is a bona fide dispute with regard to the title to the building, the landlord is entitled to claim eviction in a civil court only. For the purpose of lack of proper pleading in the eviction petition, the learned counsel relied on a decision of this court reported in 1993(1) L.W.356 (Ramalingam Pillai v. Murugesan). The learned counsel placed strong reliance on the decision of this court reported in 1976(1)MLJ 406 (Govindarajulu v. Jayaraman) to submit that when there is a mandatory direction, prohibiting the court to pass any eviction order against a person who comes squarely under Sec.10(4)(i), the finding by the court on other issues regarding the bona fide must be construed as void ab-initio and such finding in a prior petition should not be relied on by the courts in the later petition.

10.Per contra, the learned Senior counsel submitted that by his own conduct the tenant has accepted that he is a tenant under the landlord, therefore his denial of the title of the landlord is with malafide intention and in such circumstances the authorities below are within the jurisdiction to pass the order of eviction and also to render proper findings. Further he specifically pointed out that in the second round of litigation both the authorities below have independently gone into the question of the landlord-tenant relationship and therefore it cannot be said that they have simply followed the earlier findings. For the question lack of pleading in the second RCOP filed by the landlord, the learned Senior Counsel submitted that proper pleadings are there in the petition and the question of bonafide has been gone into as many as four authorities below and all of them held that the landlord's requirement for his own occupation is bonafide.

11.I have considered the rival submissions with regard to facts and citations.

12.First let me consider CRP.NPD.No.2102/1999 in which the finding of the authorities below are alone were challenged as unnecessary by the tenant. It is an admitted fact that the first RCOP was filed within 3 months from the date of its purchase. But this point was not specifically raised by the tenant in his counter filed in RCOP No.10/1996. Therefore there was no such issue to that effect. All the issues framed were on merits. At no point of time before the argument stage, this plea was raised by the tenant and only at the time of argument this point was raised before the rent controller and after finding that the property was purchased on 25.3.1996, but the RCOP was filed on 3.6.96, the rent controller dismissed the RCOP on this technical ground after rendering findings on merits on the issues framed by him. Therefore it cannot be said that the rent controller has committed an irregularity in rendering findings on merits, even though the RCOP was dismissed on technical ground. The decision relied on by the learned counsel for the tenant in this regard, i.e., 1976(1) MLJ 406 (cited supra) is easily distinguishable because, there, Sec.10(4)(i) was involved. According to which no order for eviction shall be passed under sub-section(3), against any tenant who is engaged in any employment notified by the Government as an essential service for the purpose of this sub-section, unless the landlord himself is engaged in any employment or clause of employment which has been so notified. Only in that context the learned Judge of this court held that the rent controller should not have decided the other issues in view of the clear prohibition contained in Sec.10(4)(i) of the Act. In the case on hand, Sec.10(4)(i) is not at all applicable and what is relevant is the proviso under Sec.10(3)(a) according to which a person becomes a landlord after the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply under this clause before the expiry of 3 months, from the date on which the instrument was registered. Thus the language employed in Sec.10(4)(i) and the language used in proviso in Sec.10(3)(a) are distinct and different and the decision reported in 1976(1)M.L.J.406(cited supra) is not applicable to the present case.

13.Now let me consider whether the concurrent findings by the authorities below holding that there is a landlord-tenant relationship and the landlord has proved his requirement bonafidely are to be interfered with or not. The case of the tenant right from day one is that the premises under his occupation was owned by one Anthonysamy and Anthonysamy's brother Paul Irudhayaraj inducted him as tenant in June 1982 on a monthly rent of Rs.125/- after receiving an advance of Rs.1000/-. It is his further case that he was paying the rent up to December 1994 and thereafter deposited the rent in RCOP No.13/1995 in which both Anthonysamy and Paul Irudhayaraj were arrayed as respondents. But it has been established that the very same property was purchased by the present landlord from the previous owner Anthonysamy on 25.3.1996 under a registered sale deed, marked as Ex.A3 before the rent controller. But the tenant is questioning this document by contending that it is sham and nominal.

14.I do not approve of the conduct of the tenant in questioning the sale deed dated 25.3.1996 on so many technicalities. As rightly pointed out by the learned Senior Counsel for the landlord it is not for the tenant to question the bonafide or genuineness of the sale deed in sofar as his previous owner is not demanding any rent from him even after the execution of the sale deed. It is also not the case of the tenant that the previous owner Anthonysamy or his brother Paul Irudayaraj are demanding rent from him even after the execution of the sale deed. In fact, the tenant was depositing the rent in RCOP No.13/1995 in which both Anthonysamy and Paul Irudhayaraj are respondents. The main contention of the tenant is that his owner Anthonysamy did not accept him as his tenant in RCOP No.13/1995 and therefore when Anthonysamy himself stated that there is no landlord-tenant relationship, there cannot be any landlord-tenant relationship between the present landlord and the tenant.

15.I am not able to accept this vacillating stand of the tenant to suit his own convenience. First of all, it is his case that he is a tenant under Anthonysamy and that is why he filed RCOP No.13/1995 for depositing the rent against Anthonysamy and his brother Paul Irudhayaraj. His stand that he is a tenant under Anthonysamy through Paul Irudhayaraj was accepted and he was permitted to deposit the rent even though Anthonysamy questioned his tenancy. Now when the said Anthonysamy sold the property to the present landlord, it is not for the tenant to contend that as Anthonysamy himself did not accept him as tenant, the present landlord could never be his landlord. This contention is fallacious and cannot be accepted at all due to the very conduct of the tenant. Therefore I do not find any illegality in the findings of the rent controller in RCOP No.l0/1996, which was upheld by the appellate authority in RCA No.12/1997 by holding that the landlord is competent to file the eviction petition against the tenant.

16.Similarly there is no real infirmity in the findings of both the authorities below in RCOP No.10/1996 and RCA No.12/1997 that the landlord has proved his bonafide in requiring the tenanted premises for his own occupation.

17.Therefore I do not find any merits in CRP.NPD.No.2102/1999 and hence the same is dismissed. No costs.

18.As his previous eviction petition was dismissed on the technical ground even though there was a finding in his favour with regard to bonafide requirement, the landlord filed RCOP No.32/1997 on the ground that he required the property for his own use and occupation. This was also resisted by the tenant by contending that as there was no landlord-tenant relationship between Anthonysamy and himself as per the statement of the said Anthonysamy, there cannot be any landlord-tenant relationship between him and the present owner. The rent controller after considering the fact that tenant himself admitted that he is a tenant under Anthonysamy through Paul Irududhayaraj in RCOP No.13/1995 and also the fact that the tenant himself filed a suit in O.S.No.745/1995 for a declaration to declare that he is a tenant in the property who is entitled to the benefits of the Tamil Nadu Buildings (Lease & Rent) Control) Act 1960, in which not only Anthonysamy and Paul Irudhayaraj were shown as defendants but also the present owner. In the plaint filed in O.S.No.745/95, it is admitted by the tenant that Anthonysamy was the owner of the property under his occupation and he was inducted as a tenant by Paul Irudhayaraj. The trial court passed a judgment and decree by declaring that the plaintiff is a tenant and the present landlord is the owner of the property now and therefore a decree of prohibitory injunction was granted against the present landlord alone. Considering the rent control proceeding in RCOP No.13/1995, and the civil court proceedings in O.S.No.745/95, both initiated by the tenant, the rent controller came to the conclusion that there is a landlord-tenant relationship. Apart from that the rent controller considered the previous RCOP filed in RCOP No.10/1996 and found that the very same question was already decided in RCOP No.10/1996 and the same would operate as res judicata. Insofar as the question of bonafide requirement is concerned the rent controller has gone into the merits on the basis of the evidence let in and held that the landlord's requirement is bonafide.

19.The appellate authority after re-evaluating the evidence concurred with the findings of the rent controller. The appellate authority has also considered the rent control proceedings in RCOP No.13/1995 and the civil court findings in O.S.No.745/1995 found that there is landlord-tenant relationship between the parties. The appellate authority has also considered the previous rent control proceedings in RCOP No.10/1996 and held that the findings would operate as res judicata insofar as questioning the sale deed is concerned.

20.A perusal of the orders of the authorities below would clearly establish that they have applied their mind independently and found that there is a landlord-tenant relationship. No doubt they have referred to previous rent control proceedings, but they have not passed orders only on the basis of the previous findings. I have already held that the findings given by the authorities in the previous rent control proceedings are valid in CRP.NPD.No.2102/1999. Therefore the same could be relied upon by the authorities in the later rent control proceedings. Even assuming that the previous findings are not binding on the authorities in the later proceedings, still I find that the authorities have applied their mind independently to come to the conclusion without being over-influenced by the previous findings.

21.No doubt it is true that when there is a bonafide dispute with regard to title, then the landlord has to approach only the civil court and not the rent control court. In the present case, I do not find any bonafide dispute regarding title and therefore the landlord need not approach the civil court for getting possession of the property. As per the proviso given under Sec.10(1) of the Act, 1960 where the tenant denies the title of the landlord, the controller shall decide whether the denial is bonafide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of a tenant in a civil court. But if the court finds the denial is not bonafide then it can very well proceed with the matter and pass orders on merits. As already decided by me there are enough materials to show that the denial of the present landlord's title by the tenant is not bonafide and therefore the tenant cannot contend that the present landlord should approach only the civil court.

22.The next contention of the tenant that there is no proper pleading in the RCOP No.32/1997 and in the absence of proper and necessary pleadings, the RCOP ought to have been dismissed. It is specifically pointed out by the learned counsel for the tenant that the landlord did not plead that he is not having any other residential property in the same locality and therefore failure to plead this particular statement is fatal to his eviction petition.

23.I am unable to accept this submission of the learned counsel for the tenant. First of all, this issue was neither raised before the rent controller nor before the appellate authority. Further in RCOP No.32/1997 it was specifically pleaded by the landlord that the property itself was purchased for the specific purpose of his own occupation and use as he is not having a separate residential house. He further pleaded that already he filed a RCOP No.10/1996 for the purpose of requiring the building for his own use. Further in his evidence, the landlord deposed that he purchased the property for the purpose of his own use as he did not have a separate residential house. In the previous RCOP ie., RCOP No.10/1996, the landlord has specifically pleaded that he is not having any other residential house other than the petition house. In such circumstances, it cannot be said that there are no proper pleadings in the eviction petition.

24.It is no doubt true that this court in the decision reported in 1993(1)L.W.356(cited supra) held that absence of necessary pleadings to the effect that the landlord's son for whom the building is required does not own any non-residential premises of his own is fatal and the order of eviction has to be set aside.

25.In that case, there is no averment to the effect that the son of the landlord does not own any non-residential premises of his own to invoke Sec.10(3)(a)(iii) of the Act and even in the evidence the son has merely stated that he has no other place and he has no other shop except the suit shop. Only in that context the above decision has been rendered by this court. The facts in the present case are different and therefore the learned counsel for the tenant cannot draw any support from the above decision to contend that the RCOP is to be dismissed for lack of necessary pleadings.

26.In the result, I do not find any ground to interfere with the concurrent findings of the authorities below by exercising the powers under Sec.25 of the Act, 1960.

27.Hence CRP.NPD.No.3871/2001 is also dismissed. No costs.

28.In the result, both the Civil Revision Petitions are dismissed. No costs.

At the time of pronouncement of the order today, the learned counsel appearing for the petitioner-tenant in both the C.R.Ps., seeks six months time to vacate and hand over vacant possession of the property to the respondent-landlord. But the learned counsel appearing for the respondent has serious objection for granting time to the petitioner-tenant.

2.However, considering the facts and circumstances of the case, I am of the view that three months time could be given to the petitioner-tenant to vacate and hand over vacant possession.

3.Therefore the petitioner-tenant is directed to file an affidavit within two weeks from today before this court undertaking to vacate and hand over vacant possession of the property in question to the respondent-landlord within three months from today after duly serving a copy to the learned counsel for the respondent.

4.It is made clear that if no such affidavit is filed within the time stipulated, the respondent is at liberty to pursue the action in the appropriate forum for evicting the tenant. vaan/sks


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