S. Chhaganmull Bafna and ors. Vs. Miss. C.G. Rajalakshmi - Court Judgment

SooperKanoon Citationsooperkanoon.com/805147
SubjectTenancy
CourtChennai High Court
Decided OnSep-04-1992
Reported in(1993)1MLJ20
AppellantS. Chhaganmull Bafna and ors.
RespondentMiss. C.G. Rajalakshmi
Cases ReferredM. Meenakshisundaram v. S. Venkatesan
Excerpt:
- - the tenants failed and neglected to pay the rent from 1.9.1981 to 31.7.1982 and thus committed wilful default in payment of rent and thereby rendering themselves liable to be evicted under section 10(2)(1) of the act. the landlady sent a notice dated 28.4.1982 to the tenants calling upon them to pay the arrears of rent as well as to quit and deliver vacant possession of the petitioner premises. the tenants failed and neglected to pay the rent for both the residential and non-residential portions from 1.9.1981 to 31.7.1982 and thus committed wilful default in payment of rent and thereby rendering themselves liable to be evicted under section 10(2)(i) of the act. it is not correct to state that the landlady and his brother are not in good terms. in so far as the wilful default in payment of rent is concerned, the 1st appellate court on appraising the facts arising in this case held that the tenant committed wilful default in payment of rent for both residential as well as non-residential portions. a-2) dated 28.4.1982 to the tenants, wherein she has clearly stated that the rent for residential and non-residential portions are rs. 14. the landlady submitted that the tenants committed wilful default in payment of rent from 1.9.1981 to 30.1.1982. according to the landlady, inspite of repeated demands, the tenants failed and neglected to pay the rent for the petition period. the landlady sent a notice to the tenants on 28.4.1982 calling upon the tenants to pay the arrears of rent as well as to vacate and hand over vacant possession. the tenants submitted that the sister and the brother are not in good terms.orderthanikkachalam, j.1. civil revision petition no. 26 of 1987 is directed against the order passed in r.c.a. no. 1293 of 1984, which in turn arose out of the order passed in r.c.o.p. no. 3583 of 1982. c.r.p. no. 27 of 1987 is directed against the order passed in r.c. a. no. 1314 of 1984, which in turn arose out of the order passed in r.c.o.p. no. 3798 of 1982. the tenants are the petitioners in both these revisions. the 1st petitioner and the 2nd petitioner are the husband and wife. the landlady is common in both these revisions. the petition premises is situate at no. 3, kariappa mudali street, purasawalkam, madras-7.2. the case of the landlady in h.r.c.o.p. no. 3583 of 1982 is as under:this petition for eviction was filed under section 10(2)(i) and section 10(3)(a)(i) of the tamil nadu buildings (lease and rent control) act, act 18 of 1960 as amended by act 23 of 1973 (hereinafter referred to as 'the act'). the tenants are in occupation of a residential portion consisting of four big rooms, a bath room and a flush-.out in the downstairs of the premises at no. 3, kariappa mudali street, purasawalkam, madras on a monthly rent of rs. 400. besides the rent, a sum of rs. 70 is payable for electricity charges every month. the tenants failed and neglected to pay the rent from 1.9.1981 to 31.7.1982 and thus committed wilful default in payment of rent and thereby rendering themselves liable to be evicted under section 10(2)(1) of the act. the landlady's brother c.b. gopalakrishnan is residing in a rented premises at no. 64, guruvappa chetty street, chintadripet, madras-2. the landlady's brother is not having any premises of his own in madras city. he is paying rs. 275 per month towards rent for the premises in which he is residing. the landlady is an unmarried person and she is residing with her aged mother in the front of the premises at no. 3, kariappa mudali street, purasawalkam, madras. for the sake of protection and assistance, she is desirous of having her brother with her in the premises in which she is residing. therefore, she required the petition premises under the occupation of the tenants bona fide under section 10(3)(a)(i) of the act. the landlady sent a notice dated 28.4.1982 to the tenants calling upon them to pay the arrears of rent as well as to quit and deliver vacant possession of the petitioner premises. on 11.5.1982 the tenants sent a reply refusing to vacate the petition premises.3. in the counter filed by the tenants, it is stated as under:the rent for the petition premises is rs. 180 per month, and not rs. 400 per month as alleged by the landlady. so far as the electricity charges are concerned, it is only rs. 25 per month and not rs. 70 per month as alleged by the landlady. it is not correct to state that the tenants committed wilful default in payment of rent. the tenants paid the rent regularly upto june, 1979. on 5.6.1979, the landlady executed a promissory note for a sum of rs. 40,000 with interest at 18% per annum in favour of the 2nd respondent, who is the wife of the 1st respondent. on the very same date, a rental agreement was also executed between the parties. according to the rental agreement, the tenants need not pay the rent and the landlady need not pay the interest on the sum of rs. 40,000. therefore, it is not correct to state that there is arrears of rent from 1.9.1981 to 31.7.1982. therefore, the tenants did not commit any wilful default in payment of rent. there is no bona fide on the part of the landlady in requiring the petition premises for the occupation of her brother. her brother is living along with his family elsewhere and there is no need for him to come and reside in the petition premises. the landlady is being looked after by her mother and her maternal uncle. therefore, it is not correct on her part to state that she requires the presence of her brother for her help and protection. it was, therefore, pleaded that there is no bona fide on the part of the landlady in requiring the petition premises under section 10(3)(a)(i) of the act.4. the landlady examined herself as p.w.1 and her brother was examined as p.w.2. chhaganmull bafna examined himself as r.w.1. the landlady filed three documents. the tenants filed 31 documents.5. considering the facts arising in this case, the rent controller came to the conclusion that the tenants did not commit wilful default in payment of rent as alleged by the landlady. however, the rent controller came to the conclusion that the requirement of the petition premises by the landlady for the occupation of her brother is bona fide. accordingly, the rent controller ordered eviction under section 10(3)(a)(i) of the act. aggrieved, the tenants preferred an appeal, r.c.a. no. 1293 of 1984. the rent control appellate authority, on appraising the facts arising in this case came to the conclusion that the rent controller was correct in holding that the landlady required the petition premises bona fide under section 10(3)(a)(i) of the act. in so far as the ground relating to wilful default in payment of rent is concerned, the rent control appellate authority set aside the order passed by the rent controller and held that the tenants committed wilful default in payment of rent for the petition period. accordingly, eviction was ordered under section 10(2)(i) of the act also. in the result, the rent control appellate authority ordered eviction on both these grounds.6. in so far as the petition for eviction h.r.c.o.p. no. 3798 of 1982 is concerned, it was filed under sections 10(2)(i) and 10(3)(a)(i) of the act. in the said eviction petition, the case of the landlady is as under:the tenants are in occupation of a portion admeasuring 14 feet x 11 feet in premises no. 3, kariappa mudali street, purasawalkam, madras-7. according to the landlady, the portion is meant for a garage to park the vehicle. the tenants are carrying on their pawn broking business in the said portion. the landlady required the said portion bona fide for the purpose of parking her vehicle and the vehicle of her brother. according to the landlady, the rent for that petition premises is rs. 100 per month. apart from that the tenant is also liable to pay electricity charges amounting to rs. 20 per month. according to the landlady, the tenants committed wilful default in payment of rent from 1.9.1981 to 31.7.1982 and thereby rendering themselves to be evicted under section 10(2)(i) of the act. the landlady sent a notice on 5.12.1982 calling upon the tenants to pay the arrears of rent and to quit and deliver the vacant possession of the petition premises. the tenants sent a reply on 11.5.1982 refusing to vacate the petition premises. hence, the petition for eviction.7. in the counter filed by the tenants, it is stated as under:the tenants are using the petition premises for the purpose of their pawn broking business and the rent for the petition premises is rs. 50 and not rs. 100 per month as alleged by the landlady. according to the tenants, the electricity charge is rs. 20 per month as alleged by the landlady. the tenants submitted that the landlady is not having any vehicle of her own. therefore, her requirement of the petition premises for parking her vehicle bona fide is not correct. in so far as the arrears of rent is concerned, according to the tenants, they did not commit any wilful default in payment of rent as alleged by the landlady. according to the tenants, the landlady executed a promissory note for a sum of rs. 40,000 in favour of the wife of chhaganmull bafna, promising to repay the same with interest at 18% per annum. on the very same date, an agreement was also entered into between the parties. according to the said agreement, the tenants need not pay the rent for the petition premises and the landlady need not pay the interest on the abovesaid sum of rs. 40,000. it was, therefore, pleaded that there is no arrears of rent as alleged by the landlady. 8. considering the fact arising in this case, the rent controller came to the conclusion that there is no bona fide on the part of the landlady in requiring the petition premises under section 10(2)(a)(ii) of the act. so also the rent controller came to the conclusion that the tenants did not commit wilful default in payment of rent as alleged by the landlady. accordingly, the petition for eviction was dismissed. on appeal, appraising the facts arising in this case, the rent control appellate authority came to the conclusion that the rent controller was correct in holding that there is no bona fide on the part of the landlady in requiring the petition premises under section 10(3)(a)(ii) of the act. in so far as the ground relating to section 10(2)(i) of the act is concerned, the rent control appellate authority held that the tenants committed wilful default in payment of rent for the petition period. accordingly, the rent control appellate authority reversed the order of the rent controller passed under section 10(2)(i) of the act, and ordered eviction.9. aggrieved over the orders passed by the rent control appellate authority in r.c.a. nos. 1293 of 1984 and 1314 of 1984, the tenants are in revision before this court.10. learned counsel for the tenants/petitioners herein submitted as under:the authorities below were not correct in holding that the rent for the residential portion is rs. 400 per month and the rent for the non-residential portion is rs. 100 per month. the authorities below were also not correct in holding that the electricity charges for the residential portion is rs. 70 per month. on the other hand, the rent for the residential portion is rs. 180 per month and the rent for non-residential portion is rs. 50 per month. ex.r-28 is the corporation tax receipt, which would go to show that the half yearly tax is only rs. 351.66. therefore, the authorities below ought to have accepted the contentions of the tenants that the rent is only rs. 180 per month. in fact, if the rent is rs. 400 per month for the petition premises, then the half yearly tax would have been more than rs. 600. therefore, the authorities below were not correct in determining the rent at rs. 400 per month for the petition premises. the electricity charges for both these portions is only rs. 50 per month. there is no evidence on the side of the landlady to prove the rate of rent and the electricity charges as pleaded by her. since the landlady is in occupation of the premises, the petition for eviction ought to have been filed under section 10(3)(c) of the act. the petition premises is predominantly a residential one. the landlady, her mother and her mother's brother are residing in the front portion of the premises at no. 3, kariappa mudali street, purasawalkam, madras-7. the portion under their occupation is sufficient for their use. therefore, they are not in need of the portion under the occupation of the tenants. the landlady filed these eviction petitions only as a counterblast to the suit o.s. no. 5402 of 1982 filed by the tenants to recover a sum of rs. 40,000 due from the landlady on a promissory note executed by her. ever since the marriage, the brother of the landlady and his family were happily living elsewhere and they do not require the petition premises for their own occupation. the landlady is also having a portion in the upstairs. she let out the same recently. if she really required any further accommodation she could have been utilised the same. but she did not do so. the present premises where the brother of the landlady is residing is situate by the side of his mother-in-law's house. therefore, there is no necessity for him to come and reside in the petition premises along with the landlady. therefore, her requirement of the petition premises for the use and occupation of the brother is not bona fide. on the date when the promissory note was executed by the landlady in favour of the 2nd petitioner herein., an agreement was entered into between the parties. according to the said agreement, the tenants need not pay the rent and the landlady need not pay interest on the amount due on the promissory note. therefore, it is not correct to state that the tenants committed wilful default in payment of rent for the petition period. the originals of exs. r-30 and r-31 had stolen away as evidenced by exs.r.29 and r-32 which are complaints made to the police. in view of the above said agreement exs.r-30 and r-31 the tenants are not bound to pay the rent for the petition premises to the landlady. since the originals of exs.r-30 and r-31 were lost, the xerox copies of the same were filed. under section 65 of the indian evidence act, secondary evidence is permissible when the original is got lost. it was, therefore, pleaded that the rent control appellate authority was not correct in ordering eviction under section 10(2)(i) of the act in so far as both the petitions are concerned and under section 10(3)(a)(i) of the act in so far as the petition r.c.o.p. no. 3583 of 1982 is concerned. 11. on the other hand, learned counsel appearing for the landlady/respondent herein submitted as under:the landlady is employed as superintendent in industrial investment corporation of india. she is unmarried and living with her mother and her mother's brother. four big rooms, one bath-room and a flush-out in the downstair of premises no. 3, kariappa mudali street, purasawalkam, madras were let out to the tenants on a monthly rent of rs. 400. the garage in the abovesaid premises was let out to the tenants on a monthly rent of rs. 100. the electricity charges for the residential portion is rs. 70 per month and for the non-residential portion is rs. 20 per month. the tenants are carrying oh their pawn broking business in the garage. the tenants failed and neglected to pay the rent for both the residential and non-residential portions from 1.9.1981 to 31.7.1982 and thus committed wilful default in payment of rent and thereby rendering themselves liable to be evicted under section 10(2)(i) of the act. it is not correct to state that the rent for the residential portion is rs. 180 per month and the rent for the non-residential portion is rs. 50 per month. it is also not correct to state that electricity charges for both these portions is rs. 50 per month as alleged by the tenants. there is no evidence on the side of the tenants to. substantiate their version on this aspect. it is not correct to state that the landlady executed a promissory note as alleged by the tenants. there is also no agreement between the parties as alleged by the tenants. the tenants did not produce the originals of the alleged promissory note and the alleged agreement. the tenants filed a false suit against the landlady to recover the alleged amount of rs. 40,000 due on the promissory note with interest. in the absence of any evidence on the side of the tenants, the authorities below were correct in accepting the rate of rent and the electricity charges as stated by the landlady. since the landlady is a spinster living with her aged mother and the aged brother of her mother, she requires some protection. therefore, she is desirous of having her brother with her. her brother is residing with his family in a rented premises. he is not having any premises of his own in the city of madras. it is not correct to state that the landlady and his brother are not in good terms. simply because half yearly corporation tax for the premises at no. 3, kariappa mudali street, purasawalkam, madras-7 is rs. 351-66, it does not mean that the rent should not be at rs. 400 plus rs. 100 per month as alleged by the tenants. it is not correct to state that premises at no. 3, kariappa mudali street, purasawalkam, madras-7 is predominantly a residential building. the tenants are carrying on their pawn broking business in a portion of the building. therefore, it is both residential and non-residential. under such circumstances, the tenants were not correct in stating that the petition should be filed under section 10(3)(c) of the act instead of section 10(3)(a)(i) of the act. the landlady required the inspection of the promissory note. but that was not given to her. in o.s. no. 5402 of 1982, the alleged agreement is not the subject matter. both the authorities concurrently came to-the conclusion that the requirement of the landlady of the residential portion for the use and occupation of her brother is bona fide under section 10(3)(a)(i) of the act. therefore, no interference is called for with the findings on this aspect. in so far as the wilful default in payment of rent is concerned, the 1st appellate court on appraising the facts arising in this case held that the tenant committed wilful default in payment of rent for both residential as well as non-residential portions. inasmuch as this conclusion was arrived at on the basis of facts, no interference is called for with regard to this finding also. no argument was advanced with regard to the bona fide requirement of the garage portion. 12. i have heard the rival submission. 13. the fact remains that the respondent in both these revisions is the landlady in respect of the premises no. 3, kariappa mudali street, purasawalkam, madras-7. the petitioners herein are husband and wife. they are tenants under the landlady in respect of four big rooms, a bath-room and a flush-out in the downstairs of the said premises. the tenants are also in occupation of a garage in the abovesaid premises. the same is being used by the tenants for conducting their pawn broking business. there is no dispute with regard to the relationship of landlord and tenant between the parties. so far as the extent of the portion occupied by the tenants also there is no dispute. the dispute is with regard to the monthly rent and the rate of electricity charges payable by the tenants. according to the landlady, the rent for the residential portion is rs. 400 per month along with the electricity charges of rs. 70 per month. in so far as the non-residential portion is concerned, the rent is rs. 100 per month and the electricity charge is rs. 20 per month. but according to the tenants, the rent for the residential portion is rs. 180 per month and the rent for the non-residential portion is rs. 50 per month. in so far as the electricity charges are concerned, for both these portions the amount payable is rs. 50 per month. in support of their contention that the rent is only rs. 180 per month for residential portion and rs. 50 per month for the non-residential portion and the electricity charges payable for both is rs. 50 per month, the tenants relied upon ex.r-28 corporation tax extract. according to ex.r-28, the half yearly tax is only rs. 351-66 for the abovesaid premises. therefore, according to the tenants, the rent could not be rs. 400 for residential portion and rs. 100 for the non-residential portion. but this line of argument based upon ex.r-28 cannot be accepted because it is always not necessary that the premises should be let out in accordance with tax payable per half year. apart from this, there is no other evidence on the side of the tenants to show that the electricity charges for both these portions is rs. 50 per month. the tenants submitted that there is a written rental agreement between the parties. the original of the said agreement was not produced. the landlady sent a notice (ex.a-2) dated 28.4.1982 to the tenants, wherein she has clearly stated that the rent for residential and non-residential portions are rs. 400 and rs. 100 respectively and the electricity charges for both is rs. 90 per month. since there is no evidence on the side of the tenants to prove the rate of rent as alleged by them, both the authorities below accepted the rate of rent furnished by the landlady for both these portions. even before this court, no further material was produced to dislodge the concurrent findings given by the authorities below on this aspect. therefore, i do not see any infirmity in the findings given by the authorities below, that the rent for the residential portion is rs. 400 per month and the rent for the non-residential portion is rs. 100 per month and the electricity charges payable for the residential and non-residential portions are rs. 70 per month and rs. 20 per month respectively.14. the landlady submitted that the tenants committed wilful default in payment of rent from 1.9.1981 to 30.1.1982. according to the landlady, inspite of repeated demands, the tenants failed and neglected to pay the rent for the petition period. therefore, they are liable to be evicted under section 10(2)(i) of the act. according to the tenants they are not liable to pay the rent to the landlady. they pleaded that the landlady executed a promissory note on 5.6.1979 for rs. 40,000 in favour of the 2nd petitioner herein, promising to repay the same with interest at 18% per annum. according to the tenants on the very same day, an agreement was entered into between the parties, whereby it was agreed that the landlady need not pay the interest due under the promissory note and the tenants need not pay the rent to the landlady. the landlady sent a notice to the tenants on 28.4.1982 calling upon the tenants to pay the arrears of rent as well as to vacate and hand over vacant possession. no doubt the tenants sent a reply on 11.5.1982, refusing to vacate the petition premises. according to the tenants, the rent is adjustable towards the interest payable on rs. 40,000 borrowed by the landlady. therefore, it is for the tenants to prove that the landlady borrowed the sum of rs. 40,000 and executed a promissory note as alleged by the tenants. the originals of the said promissory note and the subsequent agreement dated 5.6.1979 were not produced before the court. the tenants have produced only the xerox copies of the said documents. according to the tenants, the originals of these two documents were stealthily removed by somebody which were kept in a bag in a two-wheeler, while the 1st petitioner was attending to the repairs towards the two-wheeler. according to the tenants they have also given a police complaint. the original police complaint given to the police is marked as exs.r-29 and r-32. the authorities below were not prepared to act upon the xerox copies of the documents filed before them by the tenants. therefore, the rent control appellate authority came to the conclusion that there was no evidence on the side of the tenants to show that they are not liable to pay the rent as alleged by them. according to the learned counsel for the tenants based upon these two documents the authorities below ought to have held that there is no wilful default in payment of rent for the petition period as alleged by the landlady. in support of this contention, the learned counsel for the tenants relied upon a decision of this court reported in m. meenakshisundaram v. s. venkatesan : air1981mad277 . the learned counsel further submitted that exs.r-29 and r-32 would go to show that what was stated by the tenants in respect of the loss of the original documents is true and believable. ex.r-37 is the xerox copy of the alleged agreement. this was not written in the regular stamp paper. the tenants seem to have paid rs. 27.50 by way of penalty. as already stated it is the tenants who came forward with the case that there was a promissory note and an agreement and according to those documents, they are not liable to pay the rent, therefore, the burden is on them to prove the same. but they did not discharge the burden placed upon them. further, the facts on record would go to show that the tenants are unable to establish the case put forward by them in this regard. the authorities below rightly refused to act upon these xerox copies. according to the tenants, the landlady always used to obtain financial assistance from them. in support of this contention ex.r-2 was filed by the tenants. according to the 1st appellate court, this document would go to show that the 1st petitioner is rendering financial assistance to the landlady. according to the 1st petitioner the landlady used to borrow monies for the purpose of putting up constructions in the premises at no. 3, kariappa mudali street, purasawalkam, madras-7 and in that process she owes a sum of rs. 40,000 to him. it is under these circumstances, the 1st petitioner states that the promissory note was executed by the landlady in favour of the 2nd petitioner, who is the wife of the 1st petitioner. the landlady sought permission to inspect those two disputed documents by notices dated 9.6.1982 and 10.6.1982. but she was not permitted to inspect those documents. but the fact remains that in the absence of original promissory note the case put forward by the 1st petitioner cannot be accepted. it is significant to note that the tenants filed the suit o.s. no. 5402 of 1982 against the landlady to recover the amount due on the alleged promissory note along with the interest. when the tenants demanded the amount due on the promissory note along with interest, at the same time they cannot plead that the interest due on the promissory note is adjustable for the arrears of rent. further according to the alleged promissory note the interest is payable on the principal sum at the rate of 18% per annum. the interest at the rate of 18% per annum on rs. 40,000 would come to rs. 7,200 per year. if that is so, for a month it amounts to rs. 600. if the rent is adjustable towards interest due as alleged by the tenants, the interest should be proportionate to meet the liability of the rent. the rate of rent as pleaded by the tenants and the rate of interest chargeable under the promissory note do not go to support the case put forward by the tenants. therefore, ultimately the fact remains that the tenants did not pay the rent for the petition period. hence, in the absence of the alleged original promissory note and the agreement, the rent control appellate authority was not prepared to accept the defence put forward by the tenants that they are not liable to pay the rent and therefore they did not commit wilful default in payment of rent. on a careful consideration of the facts arising in this case, i am also of the opinion that the rent control appellate authority was correct in coming to the conclusion that the tenants committed wilful default in payment of rent for the petition period in respect of both the residential and non-residential portions and hence they are liable to be evicted on this ground. therefore, the order of eviction passed by the rent control appellate authority in respect of both residential and non-residential portions under section 10(2)(i) of the act, is in order. accordingly, i am not inclined to interfere with the same.15. in r.c.o.p. no. 3583 of 1982, the landlady required the petition premises bona fide under section 10(3)(a)(i) of the act. according to her she is a spinster. she is residing along with her aged mother and her mother's aged brother. therefore, she required the assistance of her brother, who is residing in a rented premises. the landlady stated that her brother is residing in a rented premises at no. 28, guruvappa chetty street, madras-2 on a monthly rent of rs. 275. when the landlady states that her brother is residing in a rented premises and he is not having any premises of his own, there is no evidence contra on the side of the tenants to disprove this version. the fact remains that the landlady is an unmarried person and she is residing with her aged mother and her aged mother's brother. therefore there is some substance in stating that she requires some male assistance and protection from her brother. the tenants submitted that the sister and the brother are not in good terms. but there is no evidence on record to support this version. the tenants further submitted that her brother is residing in a premises which is next to the premises of his mother-in-law. therefore according to the tenants he would not come to the petition premises. this line of argument is not acceptable because it is always not proper for a son-in-law to live by the side of the premises of his mother-in-law. in fact, there is nothing wrong or improper or unreasonable on the part of an unmarried sister in seeking the help of her brother for her protection. therefore, the conclusion arrived at by the authorities below that the landlady required the residential portion under the occupation of the tenants bona fide for the use and occupation of her brother is in order. accordingly, i am not inclined to interfere with the order of eviction passed by the authorities below under section 10(3)(a)(i) of the act in so far as the residential portion is concerned. on the side of the landlady the ground relating to the requirement of the non-residential portion for parking the vehicle under section 10(3)(a)(ii) of the act was not pressed. in that view of the matter, the order of eviction passed by the rent control appellate authority under section 10(2)(i) of the act in respect of both the residential and non-residential portions is sustained. in addition to that the order of eviction passed under section 10(3)(a)(i) of the act in respect of the residential portion is also sustained. 16. accordingly, both the revisions are dismissed with costs. time of eviction three months.
Judgment:
ORDER

Thanikkachalam, J.

1. Civil revision petition No. 26 of 1987 is directed against the order passed in R.C.A. No. 1293 of 1984, which in turn arose out of the order passed in R.C.O.P. No. 3583 of 1982. C.R.P. No. 27 of 1987 is directed against the order passed in R.C. A. No. 1314 of 1984, which in turn arose out of the order passed in R.C.O.P. No. 3798 of 1982. The tenants are the petitioners in both these revisions. The 1st petitioner and the 2nd petitioner are the husband and wife. The landlady is common in both these revisions. The petition premises is situate at No. 3, Kariappa Mudali Street, Purasawalkam, Madras-7.

2. The case of the landlady in H.R.C.O.P. No. 3583 of 1982 is as under:

This petition for eviction was filed under Section 10(2)(i) and Section 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, Act 18 of 1960 as amended by Act 23 of 1973 (hereinafter referred to as 'the Act'). The tenants are in occupation of a residential portion consisting of four big rooms, a bath room and a flush-.out in the downstairs of the premises at No. 3, Kariappa Mudali Street, Purasawalkam, Madras on a monthly rent of Rs. 400. Besides the rent, a sum of Rs. 70 is payable for electricity charges every month. The tenants failed and neglected to pay the rent from 1.9.1981 to 31.7.1982 and thus committed wilful default in payment of rent and thereby rendering themselves liable to be evicted under Section 10(2)(1) of the Act. The landlady's brother C.B. Gopalakrishnan is residing in a rented premises at No. 64, Guruvappa Chetty Street, Chintadripet, Madras-2. The landlady's brother is not having any premises of his own in Madras City. He is paying Rs. 275 per month towards rent for the premises in which he is residing. The landlady is an unmarried person and she is residing with her aged mother in the front of the premises at No. 3, Kariappa Mudali Street, Purasawalkam, Madras. For the sake of protection and assistance, she is desirous of having her brother with her in the premises in which she is residing. Therefore, she required the petition premises under the occupation of the tenants bona fide under Section 10(3)(a)(i) of the Act. The landlady sent a notice dated 28.4.1982 to the tenants calling upon them to pay the arrears of rent as well as to quit and deliver vacant possession of the petitioner premises. On 11.5.1982 the tenants sent a reply refusing to vacate the petition premises.

3. In the counter filed by the tenants, it is stated as under:

The rent for the petition premises is Rs. 180 per month, and not Rs. 400 per month as alleged by the landlady. So far as the electricity charges are concerned, it is only Rs. 25 per month and not Rs. 70 per month as alleged by the landlady. It is not correct to state that the tenants committed wilful default in payment of rent. The tenants paid the rent regularly upto June, 1979. On 5.6.1979, the landlady executed a promissory note for a sum of Rs. 40,000 with interest at 18% per annum in favour of the 2nd respondent, who is the wife of the 1st respondent. On the very same date, a rental agreement was also executed between the parties. According to the rental agreement, the tenants need not pay the rent and the landlady need not pay the interest on the sum of Rs. 40,000. Therefore, it is not correct to state that there is arrears of rent from 1.9.1981 to 31.7.1982. Therefore, the tenants did not commit any wilful default in payment of rent. There is no bona fide on the part of the landlady in requiring the petition premises for the occupation of her brother. Her brother is living along with his family elsewhere and there is no need for him to come and reside in the petition premises. The landlady is being looked after by her mother and her maternal uncle. Therefore, it is not correct on her part to state that she requires the presence of her brother for her help and protection. It was, therefore, pleaded that there is no bona fide on the part of the landlady in requiring the petition premises under Section 10(3)(a)(i) of the Act.

4. The landlady examined herself as P.W.1 and her brother was examined as P.W.2. Chhaganmull Bafna examined himself as R.W.1. The landlady filed three documents. The tenants filed 31 documents.

5. Considering the facts arising in this case, the Rent Controller came to the conclusion that the tenants did not commit wilful default in payment of rent as alleged by the landlady. However, the rent controller came to the conclusion that the requirement of the petition premises by the landlady for the occupation of her brother is bona fide. Accordingly, the Rent Controller ordered eviction under Section 10(3)(a)(i) of the Act. Aggrieved, the tenants preferred an appeal, R.C.A. No. 1293 of 1984. The Rent Control Appellate Authority, on appraising the facts arising in this case came to the conclusion that the Rent Controller was correct in holding that the landlady required the petition premises bona fide under Section 10(3)(a)(i) of the Act. In so far as the ground relating to wilful default in payment of rent is concerned, the Rent Control Appellate Authority set aside the order passed by the Rent Controller and held that the tenants committed wilful default in payment of rent for the petition period. Accordingly, eviction was ordered under Section 10(2)(i) of the Act also. In the result, the Rent Control Appellate Authority ordered eviction on both these grounds.

6. In so far as the petition for eviction H.R.C.O.P. No. 3798 of 1982 is concerned, it was filed under Sections 10(2)(i) and 10(3)(a)(i) of the Act. In the said eviction petition, the case of the landlady is as under:

The tenants are in occupation of a portion admeasuring 14 feet x 11 feet in premises No. 3, Kariappa Mudali Street, Purasawalkam, Madras-7. According to the landlady, the portion is meant for a garage to park the vehicle. The tenants are carrying on their pawn broking business in the said portion. The landlady required the said portion bona fide for the purpose of parking her vehicle and the vehicle of her brother. According to the landlady, the rent for that petition premises is Rs. 100 per month. Apart from that the tenant is also liable to pay electricity charges amounting to Rs. 20 per month. According to the landlady, the tenants committed wilful default in payment of rent from 1.9.1981 to 31.7.1982 and thereby rendering themselves to be evicted under Section 10(2)(i) of the Act. The landlady sent a notice on 5.12.1982 calling upon the tenants to pay the arrears of rent and to quit and deliver the vacant possession of the petition premises. The tenants sent a reply on 11.5.1982 refusing to vacate the petition premises. Hence, the petition for eviction.

7. In the counter filed by the tenants, it is stated as under:

The tenants are using the petition premises for the purpose of their pawn broking business and the rent for the petition premises is Rs. 50 and not Rs. 100 per month as alleged by the landlady. According to the tenants, the electricity charge is Rs. 20 per month as alleged by the landlady. The tenants submitted that the landlady is not having any vehicle of her own. Therefore, her requirement of the petition premises for parking her vehicle bona fide is not correct. In so far as the arrears of rent is concerned, according to the tenants, they did not commit any wilful default in payment of rent as alleged by the landlady. According to the tenants, the landlady executed a promissory note for a sum of Rs. 40,000 in favour of the wife of Chhaganmull Bafna, promising to repay the same with interest at 18% per annum. On the very same date, an agreement was also entered into between the parties. According to the said agreement, the tenants need not pay the rent for the petition premises and the landlady need not pay the interest on the abovesaid sum of Rs. 40,000. It was, therefore, pleaded that there is no arrears of rent as alleged by the landlady.

8. Considering the fact arising in this case, the Rent Controller came to the conclusion that there is no bona fide on the part of the landlady in requiring the petition premises under Section 10(2)(a)(ii) of the Act. So also the Rent Controller came to the conclusion that the tenants did not commit wilful default in payment of rent as alleged by the landlady. Accordingly, the petition for eviction was dismissed. On appeal, appraising the facts arising in this case, the Rent Control Appellate Authority came to the conclusion that the Rent Controller was correct in holding that there is no bona fide on the part of the landlady in requiring the petition premises under Section 10(3)(a)(ii) of the Act. In so far as the ground relating to Section 10(2)(i) of the Act is concerned, the Rent Control Appellate Authority held that the tenants committed wilful default in payment of rent for the petition period. Accordingly, the Rent Control Appellate Authority reversed the order of the Rent Controller passed under Section 10(2)(i) of the Act, and ordered eviction.

9. Aggrieved over the orders passed by the Rent Control Appellate Authority in R.C.A. Nos. 1293 of 1984 and 1314 of 1984, the tenants are in revision before this Court.

10. Learned Counsel for the tenants/petitioners herein submitted as under:

The authorities below were not correct in holding that the rent for the residential portion is Rs. 400 per month and the rent for the non-residential portion is Rs. 100 per month. The authorities below were also not correct in holding that the electricity charges for the residential portion is Rs. 70 per month. On the other hand, the rent for the residential portion is Rs. 180 per month and the rent for non-residential portion is Rs. 50 per month. Ex.R-28 is the Corporation tax receipt, which would go to show that the half yearly tax is only Rs. 351.66. Therefore, the authorities below ought to have accepted the contentions of the tenants that the rent is only Rs. 180 per month. In fact, if the rent is Rs. 400 per month for the petition premises, then the half yearly tax would have been more than Rs. 600. Therefore, the authorities below were not correct in determining the rent at Rs. 400 per month for the petition premises. The electricity charges for both these portions is only Rs. 50 per month. There is no evidence on the side of the landlady to prove the rate of rent and the electricity charges as pleaded by her. Since the landlady is in occupation of the premises, the petition for eviction ought to have been filed under Section 10(3)(c) of the Act. The petition premises is predominantly a residential one. The landlady, her mother and her mother's brother are residing in the front portion of the premises at No. 3, Kariappa Mudali Street, Purasawalkam, Madras-7. The portion under their occupation is sufficient for their use. Therefore, they are not in need of the portion under the occupation of the tenants. The landlady filed these eviction petitions only as a counterblast to the suit O.S. No. 5402 of 1982 filed by the tenants to recover a sum of Rs. 40,000 due from the landlady on a promissory note executed by her. Ever since the marriage, the brother of the landlady and his family were happily living elsewhere and they do not require the petition premises for their own occupation. The landlady is also having a portion in the upstairs. She let out the same recently. If she really required any further accommodation she could have been utilised the same. But she did not do so. The present premises where the brother of the landlady is residing is situate by the side of his mother-in-law's house. Therefore, there is no necessity for him to come and reside in the petition premises along with the landlady. Therefore, her requirement of the petition premises for the use and occupation of the brother is not bona fide. On the date when the promissory note was executed by the landlady in favour of the 2nd petitioner herein., an agreement was entered into between the parties. According to the said agreement, the tenants need not pay the rent and the landlady need not pay interest on the amount due on the promissory note. Therefore, it is not correct to state that the tenants committed wilful default in payment of rent for the petition period. The originals of Exs. R-30 and R-31 had stolen away as evidenced by Exs.R.29 and R-32 which are complaints made to the police. In view of the above said agreement Exs.R-30 and R-31 the tenants are not bound to pay the rent for the petition premises to the landlady. Since the originals of Exs.R-30 and R-31 were lost, the xerox copies of the same were filed. Under Section 65 of the Indian Evidence Act, secondary evidence is permissible when the original is got lost. It was, therefore, pleaded that the Rent Control Appellate Authority was not correct in ordering eviction under Section 10(2)(i) of the Act in so far as both the petitions are concerned and under Section 10(3)(a)(i) of the Act in so far as the petition R.C.O.P. No. 3583 of 1982 is concerned.

11. On the other hand, learned Counsel appearing for the landlady/respondent herein submitted as under:

The landlady is employed as Superintendent in Industrial Investment Corporation of India. She is unmarried and living with her mother and her mother's brother. Four big rooms, one bath-room and a flush-out in the downstair of premises No. 3, Kariappa Mudali Street, Purasawalkam, Madras were let out to the tenants on a monthly rent of Rs. 400. The garage in the abovesaid premises was let out to the tenants on a monthly rent of Rs. 100. The electricity charges for the residential portion is Rs. 70 per month and for the non-residential portion is Rs. 20 per month. The tenants are carrying oh their pawn broking business in the garage. The tenants failed and neglected to pay the rent for both the residential and non-residential portions from 1.9.1981 to 31.7.1982 and thus committed wilful default in payment of rent and thereby rendering themselves liable to be evicted under Section 10(2)(i) of the Act. It is not correct to state that the rent for the residential portion is Rs. 180 per month and the rent for the non-residential portion is Rs. 50 per month. It is also not correct to state that electricity charges for both these portions is Rs. 50 per month as alleged by the tenants. There is no evidence on the side of the tenants to. substantiate their version on this aspect. It is not correct to state that the landlady executed a promissory note as alleged by the tenants. There is also no agreement between the parties as alleged by the tenants. The tenants did not produce the originals of the alleged promissory note and the alleged agreement. The tenants filed a false suit against the landlady to recover the alleged amount of Rs. 40,000 due on the promissory note with interest. In the absence of any evidence on the side of the tenants, the authorities below were correct in accepting the rate of rent and the electricity charges as stated by the landlady. Since the landlady is a spinster living with her aged mother and the aged brother of her mother, she requires some protection. Therefore, she is desirous of having her brother with her. Her brother is residing with his family in a rented premises. He is not having any premises of his own in the city of Madras. It is not correct to state that the landlady and his brother are not in good terms. Simply because half yearly Corporation tax for the premises at No. 3, Kariappa Mudali Street, Purasawalkam, Madras-7 is Rs. 351-66, it does not mean that the rent should not be at Rs. 400 plus Rs. 100 per month as alleged by the tenants. It is not correct to state that premises at No. 3, Kariappa Mudali Street, Purasawalkam, Madras-7 is predominantly a residential building. The tenants are carrying on their pawn broking business in a portion of the building. Therefore, it is both residential and non-residential. Under such circumstances, the tenants were not correct in stating that the petition should be filed under Section 10(3)(c) of the Act instead of Section 10(3)(a)(i) of the Act. The landlady required the inspection of the promissory note. But that was not given to her. In O.S. No. 5402 of 1982, the alleged agreement is not the subject matter. Both the authorities concurrently came to-the conclusion that the requirement of the landlady of the residential portion for the use and occupation of her brother is bona fide under Section 10(3)(a)(i) of the Act. Therefore, no interference is called for with the findings on this aspect. In so far as the wilful default in payment of rent is concerned, the 1st appellate court on appraising the facts arising in this case held that the tenant committed wilful default in payment of rent for both residential as well as non-residential portions. Inasmuch as this conclusion was arrived at on the basis of facts, no interference is called for with regard to this finding also. No argument was advanced with regard to the bona fide requirement of the garage portion.

12. I have heard the rival submission.

13. The fact remains that the respondent in both these revisions is the landlady in respect of the premises No. 3, Kariappa Mudali Street, Purasawalkam, Madras-7. The petitioners herein are husband and wife. They are tenants under the landlady in respect of four big rooms, a bath-room and a flush-out in the downstairs of the said premises. The tenants are also in occupation of a garage in the abovesaid premises. The same is being used by the tenants for conducting their pawn broking business. There is no dispute with regard to the relationship of landlord and tenant between the parties. So far as the extent of the portion occupied by the tenants also there is no dispute. The dispute is with regard to the monthly rent and the rate of electricity charges payable by the tenants. According to the landlady, the rent for the residential portion is Rs. 400 per month along with the electricity charges of Rs. 70 per month. In so far as the non-residential portion is concerned, the rent is Rs. 100 per month and the electricity charge is Rs. 20 per month. But according to the tenants, the rent for the residential portion is Rs. 180 per month and the rent for the non-residential portion is Rs. 50 per month. In so far as the electricity charges are concerned, for both these portions the amount payable is Rs. 50 per month. In support of their contention that the rent is only Rs. 180 per month for residential portion and Rs. 50 per month for the non-residential portion and the electricity charges payable for both is Rs. 50 per month, the tenants relied upon Ex.R-28 Corporation tax extract. According to Ex.R-28, the half yearly tax is only Rs. 351-66 for the abovesaid premises. Therefore, according to the tenants, the rent could not be Rs. 400 for residential portion and Rs. 100 for the non-residential portion. But this line of argument based upon Ex.R-28 cannot be accepted because it is always not necessary that the premises should be let out in accordance with tax payable per half year. Apart from this, there is no other evidence on the side of the tenants to show that the electricity charges for both these portions is Rs. 50 per month. The tenants submitted that there is a written rental agreement between the parties. The original of the said agreement was not produced. The landlady sent a notice (Ex.A-2) dated 28.4.1982 to the tenants, wherein she has clearly stated that the rent for residential and non-residential portions are Rs. 400 and Rs. 100 respectively and the electricity charges for both is Rs. 90 per month. Since there is no evidence on the side of the tenants to prove the rate of rent as alleged by them, both the authorities below accepted the rate of rent furnished by the landlady for both these portions. Even before this Court, no further material was produced to dislodge the concurrent findings given by the authorities below on this aspect. Therefore, I do not see any infirmity in the findings given by the authorities below, that the rent for the residential portion is Rs. 400 per month and the rent for the non-residential portion is Rs. 100 per month and the electricity charges payable for the residential and non-residential portions are Rs. 70 per month and Rs. 20 per month respectively.

14. The landlady submitted that the tenants committed wilful default in payment of rent from 1.9.1981 to 30.1.1982. According to the landlady, inspite of repeated demands, the tenants failed and neglected to pay the rent for the petition period. Therefore, they are liable to be evicted under Section 10(2)(i) of the Act. According to the tenants they are not liable to pay the rent to the landlady. They pleaded that the landlady executed a promissory note on 5.6.1979 for Rs. 40,000 in favour of the 2nd petitioner herein, promising to repay the same with interest at 18% per annum. According to the tenants on the very same day, an agreement was entered into between the parties, whereby it was agreed that the landlady need not pay the interest due under the promissory note and the tenants need not pay the rent to the landlady. The landlady sent a notice to the tenants on 28.4.1982 calling upon the tenants to pay the arrears of rent as well as to vacate and hand over vacant possession. No doubt the tenants sent a reply on 11.5.1982, refusing to vacate the petition premises. According to the tenants, the rent is adjustable towards the interest payable on Rs. 40,000 borrowed by the landlady. Therefore, it is for the tenants to prove that the landlady borrowed the sum of Rs. 40,000 and executed a promissory note as alleged by the tenants. The originals of the said promissory note and the subsequent agreement dated 5.6.1979 were not produced before the Court. The tenants have produced only the xerox copies of the said documents. According to the tenants, the originals of these two documents were stealthily removed by somebody which were kept in a bag in a two-wheeler, while the 1st petitioner was attending to the repairs towards the two-wheeler. According to the tenants they have also given a police complaint. The original police complaint given to the police is marked as Exs.R-29 and R-32. The authorities below were not prepared to act upon the xerox copies of the documents filed before them by the tenants. Therefore, the Rent Control Appellate Authority came to the conclusion that there was no evidence on the side of the tenants to show that they are not liable to pay the rent as alleged by them. According to the learned Counsel for the tenants based upon these two documents the authorities below ought to have held that there is no wilful default in payment of rent for the petition period as alleged by the landlady. In support of this contention, the learned Counsel for the tenants relied upon a decision of this Court reported in M. Meenakshisundaram v. S. Venkatesan : AIR1981Mad277 . The learned Counsel further submitted that Exs.R-29 and R-32 would go to show that what was stated by the tenants in respect of the loss of the original documents is true and believable. Ex.R-37 is the xerox copy of the alleged agreement. This was not written in the regular stamp paper. The tenants seem to have paid Rs. 27.50 by way of penalty. As already stated it is the tenants who came forward with the case that there was a promissory note and an agreement and according to those documents, they are not liable to pay the rent, therefore, the burden is on them to prove the same. But they did not discharge the burden placed upon them. Further, the facts on record would go to show that the tenants are unable to establish the Case put forward by them in this regard. The authorities below rightly refused to act upon these xerox copies. According to the tenants, the landlady always used to obtain financial assistance from them. In support of this contention Ex.R-2 was filed by the tenants. According to the 1st appellate court, this document would go to show that the 1st petitioner is rendering financial assistance to the landlady. According to the 1st petitioner the landlady used to borrow monies for the purpose of putting up constructions in the premises at No. 3, Kariappa Mudali Street, Purasawalkam, Madras-7 and in that process she owes a sum of Rs. 40,000 to him. It is under these circumstances, the 1st petitioner states that the promissory note was executed by the landlady in favour of the 2nd petitioner, who is the wife of the 1st petitioner. The landlady sought permission to inspect those two disputed documents by notices dated 9.6.1982 and 10.6.1982. But she was not permitted to inspect those documents. But the fact remains that in the absence of original promissory note the case put forward by the 1st petitioner cannot be accepted. It is significant to note that the tenants filed the Suit O.S. No. 5402 of 1982 against the landlady to recover the amount due on the alleged promissory note along with the interest. When the tenants demanded the amount due on the promissory note along with interest, at the same time they cannot plead that the interest due on the promissory note is adjustable for the arrears of rent. Further according to the alleged promissory note the interest is payable on the principal sum at the rate of 18% per annum. The interest at the rate of 18% per annum on Rs. 40,000 would come to Rs. 7,200 per year. If that is so, for a month it amounts to Rs. 600. If the rent is adjustable towards interest due as alleged by the tenants, the interest should be proportionate to meet the liability of the rent. The rate of rent as pleaded by the tenants and the rate of interest chargeable under the promissory note do not go to support the case put forward by the tenants. Therefore, ultimately the fact remains that the tenants did not pay the rent for the petition period. Hence, in the absence of the alleged original promissory note and the agreement, the Rent Control Appellate Authority was not prepared to accept the defence put forward by the tenants that they are not liable to pay the rent and therefore they did not commit wilful default in payment of rent. On a careful consideration of the facts arising in this case, I am also of the opinion that the Rent Control Appellate Authority was correct in coming to the conclusion that the tenants committed wilful default in payment of rent for the petition period in respect of both the residential and non-residential portions and hence they are liable to be evicted on this ground. Therefore, the order of eviction passed by the Rent Control Appellate Authority in respect of both residential and non-residential portions under Section 10(2)(i) of the Act, is in order. Accordingly, I am not inclined to interfere with the same.

15. In R.C.O.P. No. 3583 of 1982, the landlady required the petition premises bona fide under Section 10(3)(a)(i) of the Act. According to her she is a spinster. She is residing along with her aged mother and her mother's aged brother. Therefore, she required the assistance of her brother, who is residing in a rented premises. The landlady stated that her brother is residing in a rented premises at No. 28, Guruvappa Chetty Street, Madras-2 on a monthly rent of Rs. 275. When the landlady states that her brother is residing in a rented premises and he is not having any premises of his own, there is no evidence contra on the side of the tenants to disprove this version. The fact remains that the landlady is an unmarried person and she is residing with her aged mother and her aged mother's brother. Therefore there is some substance in stating that she requires some male assistance and protection from her brother. The tenants submitted that the sister and the brother are not in good terms. But there is no evidence on record to support this version. The tenants further submitted that her brother is residing in a premises which is next to the premises of his mother-in-law. Therefore according to the tenants he would not come to the petition premises. This line of argument is not acceptable because it is always not proper for a son-in-law to live by the side of the premises of his mother-in-law. In fact, there is nothing wrong or improper or unreasonable on the part of an unmarried sister in seeking the help of her brother for her protection. Therefore, the conclusion arrived at by the authorities below that the landlady required the residential portion under the occupation of the tenants bona fide for the use and occupation of her brother is in order. Accordingly, I am not inclined to interfere with the order of eviction passed by the authorities below under Section 10(3)(a)(i) of the Act in so far as the residential portion is concerned. On the side of the landlady the ground relating to the requirement of the non-residential portion for parking the vehicle under Section 10(3)(a)(ii) of the Act was not pressed. In that view of the matter, the order of eviction passed by the Rent Control Appellate Authority under Section 10(2)(i) of the Act in respect of both the residential and non-residential portions is sustained. In addition to that the order of eviction passed under Section 10(3)(a)(i) of the Act in respect of the residential portion is also sustained.

16. Accordingly, both the revisions are dismissed with costs. Time of eviction three months.