M. Rathinavelu Vs. S. Udayasankaran - Court Judgment

SooperKanoon Citationsooperkanoon.com/829049
SubjectTenancy
CourtChennai High Court
Decided OnAug-21-1997
Reported in(1998)1MLJ485
AppellantM. Rathinavelu
RespondentS. Udayasankaran
Cases ReferredK.M.M. Kathar Hussain v. O.M.R. Selvaraj
Excerpt:
- constitution of india article 141; [a.p. shah, c.j., f.m. ibrahim kaliffulla &v. ramasubramanian, jj] reference to larger bench - precedent - full bench decision held, it is binding on the division bench. only if the full bench comes to conclusion that earlier full bench decision is incorrect, there is scope for making reference to larger bench. division bench doubting correctness of full bench decision cannot direct registry for placing papers before chief justice to make reference to larger bench. s.m. abdul wahab, j.1. this civil decision has been preferred against the order, dated 11.1.1997 in r.c.a. no. 674 of 1991 on the file of the vii assistant judge, court of small cause, madras confirming the order of the rent controller, x judge, court of small causes, madras, dated 19.11.1990 in r.c.o.p. no. 3403 of 1986.2. the respondent filed the petition for eviction under sections l0(2)(a)(i) and 14(1)(b) of the tamil nadu buildings (lease and rent control) act and on other grounds. after considering the evidence the rent controller allowed the petitioner for eviction on the ground of default and demolition. as against that order the petitioner preferred an appeal before the appellate authority. the appellate authority also con-curred with the rent controller and found that there was wilful default in the payment of rent and the building is required for immediate demolition. hence he has also confirmed the order of eviction. as against the said order the revision petition has been filed by the tenant.3. the main points urged by the learned counsel for the petitioner are firstly, the petitioner became a tenant in 1935 in respect of a very big building consisting of land and superstructure. now the petition has been filed only for a portion of the building. he was not aware of the partition and he has not attorned the tenancy in respect of this specific portion of the building to the petitioner. hence the petition itself is not maintainable.secondly he contended that when he became the ten-ant for a larger extent of the building and after the partition when the building was allotted to the respondent when no specific rent was fixed for the building in question he cannot be found fault in not paying the rent. at any rate, as there was some bona fide doubt with reference to the quantum and ownership of the building in question the default if any should not be taken as wilful. thirdly, he contended that the building is not very old requiring demolition and reconstruction.4. regarding these contentions the appellate authority has clearly found that the petition relates only to the building allotted to the petitioner. from the evidence, it is seen that after the partition in 1983, the petitioner has been paying rent at the rate of rs. 60 p. m. to the father of the respondent. the father of the respondent has been examined and he has spoken about the payment of rent. the petitioner has also in his counter has stated in paragraph 6 that mr. d. sambantha mudaliar collected rents from the petitioner herein after 1983 and wrote a letter threatening the petitioner herein to vacate the portion in his occupation or face dire consequences. since the said sambantha mudaliar threatened the petitioner to disposses the portion in his occupation by use of force, the petitioner filed a suit for injunction and obtained an injunction restraining the sambantha mudaliar from dispossessing him by use of force. further in paragraph 7 it was admitted that the respondents' father collected the rent upto april, 1995 at the rate of rs. 60. in the light of the fact that the petitioner himself had filed a suit in respect of the building alleging that he was threatened with forc-ible eviction and from the evidence of the father of the respondent herein as p.w. 2 the petitioner cannot contend that he is not aware of the partition and the allotment of the building in question to the respondent. the appellate court considered this aspect in paragraph 10 and has come to a conclusion that the petition is maintainable. the rent controller has also referred to exs. r. l to r. 4 letters. these letters have been written by the father of the respondent with ref-erence to the building only. in the circumstances the finding of the appellate court is fair and just.4. the learned counsel contended that since there was some doubt in the mind of his client as to the real ownership of the building he could not pay the rent. further his client has also paid water tax and property tax. therefore, even if there was any default it should not be treated as wilful default. the partition has taken place in 1983. he has paid the rent to the father at the rate of rs. 60 p. m. till 1985. he has also filed a suit when there was a threat of eviction by force. the father of the respondent has also written letters exs. r. l to r. 4. there was also notice under ex. p. 2. the petitioner has sent a reply also under ex. p. 3. even after the receipt of the notice, he has not chosen to pay the refits and that only after section 11(4) of the tamil nadu buildings (lease and rent control) act, petition was filed he has chosen to deposit the rent into court. from the circumstances i am satisfied that the petitioner has committed wilful default. he has deliberately attempted to take ad-vantage of the partition and chose to ignore the fact of partition over after he learnt about it. in the circumstances, above stated, the appellate court is justified in holding that the default is wilful.5. the learned counsel raised a contention with ref-erence to the question of rent. according to him the courts below have not specifically found the quantum of rent. this is not currect. the appellate court after discussing the evidence has found in paragraph 10 that the rent was rs. 60 p. m. he has disbelieved the version of the respondent that the rent was rs. 100 and accepted the claim of the petitioner that the quantum of rent was only rs. 60. while arriving at the said conclusion the appellate authority has referred to exs. a. l to a. 4 and also the notice and reply. in the said circumstances, there is no substance in the contention that the quantum of rent has not been fixed. the learned counsel for the petitioner cited a judgment of this court in k.m.m. kathar hussain v. o.m.r. selvaraj (1997) 2 m.l.j. 57 and contended that the points for determination were not framed by the courts below. as per the said judgment, the appellate court must raise points for determination which arise for decision. this contention also is without any substance. after elaborately referring to the circumstances the appellate authority has considered the points one after another. in paragraph 9, he considered the point with reference to the tenancy and thereafter considered as to whether the eviction petition was maintainable or not and in paragraph 10. he has considered about the quantum of rent and given a finding. thereafter he goes to dicusss about the wilful default. finally in paragraph 11 he has considered in detail about the requirement of the building for demolition and reconstruction.6. as per section 23(3) of the tamil nadu buildings (lease and rent control) act the procedure for dis-posal of the appeal is set out. section 23(3) is as follows:the appellate authority shall call for the records of the case from the controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as he thinks fit either personally or through the controller. shall decide the appeal.rules also have been framed for the disposal of the appeals. rule 16 is the relevant rule. rule 16 which contains three sub-clauses and number of provisos does not show that the appellate authority must frame issues or points for determination.7. the decision cited by the learned counsel for the petitioner in k.m.m. kathar hussain v. o.m.r. selvaraj (1997) 2 m.l.j. 57 is with reference to the procedure to be adopted in a civil court. the appellate authority is not a court bound to follow the civil procedure code. in the said case the learned judge has not considered the evidence at all and that was the main reason for setting aside the judgment. but here in the case on hand each point has been specifically and separately dealt with and discussed and further findings have been arrived at giving reasons. it cannot be contended that merely because the points were not set out earlier before taking the points for consideration, the order of the appellate authority is vitiated. because the framing of the points or issues for determination are not specifically contemplated by the provisions of the tamil nadu buildings (lease and rent control) act, 1960 and the rules framed thereunder. therefore, the contention of the learned counsel for the petitioner on this aspect also is unacceptable. however, the appellate authority would have done better, if he had set out the points in separate paragraph before taking up the points for consideration.8. with reference to the contention of the building requiring immediate demolition both the rent controller as well as the appellate authority have considered all the relevant facts and circumstances of the case. it has been found that the building has been constructed prior to 1933. an engineer has been examined and from his evidence the condition of the building has been found to be very bad. by producing exs. p10 to p12 the respondent has proved the means also for reconstruction. as per exs. p6 to p9 the respondent has obtained the permission for demo-lition also from the corporation. after discussing the evidence the appellate authority has found that the requirement of the respondent for demolition and reconstruction is bona fide one. for the foregoing reasons, i am of the view that no interference is called for from this court.9. in the result, the revision petition is dismissed. however, there will be no order as to costs. consequently, c.m.p. no. 10238 of 1997 is also dismissed. the petitioner is given three months time for vacating the premises.
Judgment:

S.M. Abdul Wahab, J.

1. This civil decision has been preferred against the order, dated 11.1.1997 in R.C.A. No. 674 of 1991 on the file of the VII Assistant Judge, Court of Small Cause, Madras confirming the Order of the Rent Controller, X Judge, Court of Small Causes, Madras, dated 19.11.1990 in R.C.O.P. No. 3403 of 1986.

2. The respondent filed the petition for eviction under Sections l0(2)(a)(i) and 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act and on other grounds. After considering the evidence the Rent Controller allowed the petitioner for eviction on the ground of default and demolition. As against that order the petitioner preferred an appeal before the Appellate Authority. The Appellate Authority also con-curred with the Rent Controller and found that there was wilful default in the payment of rent and the building is required for immediate demolition. Hence he has also confirmed the order of eviction. As against the said order the revision petition has been filed by the tenant.

3. The main points urged by the learned Counsel for the petitioner are Firstly, the petitioner became a tenant in 1935 in respect of a very big building consisting of land and superstructure. Now the petition has been filed only for a portion of the building. He was not aware of the partition and he has not attorned the tenancy in respect of this specific portion of the building to the petitioner. Hence the petition itself is not maintainable.

Secondly he contended that when he became the ten-ant for a larger extent of the building and after the partition when the building was allotted to the respondent when no specific rent was fixed for the building in question he cannot be found fault in not paying the rent. At any rate, as there was some bona fide doubt with reference to the quantum and ownership of the building in question the default if any should not be taken as wilful. Thirdly, he contended that the building is not very old requiring demolition and reconstruction.

4. Regarding these contentions the Appellate Authority has clearly found that the petition relates only to the building allotted to the petitioner. From the evidence, it is seen that after the partition in 1983, the petitioner has been paying rent at the rate of Rs. 60 p. m. to the father of the respondent. The father of the respondent has been examined and he has spoken about the payment of rent. The petitioner has also in his counter has stated in paragraph 6 that Mr. D. Sambantha Mudaliar collected rents from the petitioner herein after 1983 and wrote a letter threatening the petitioner herein to vacate the portion in his occupation or face dire consequences. Since the said Sambantha Mudaliar threatened the petitioner to disposses the portion in his occupation by use of force, the petitioner filed a suit for injunction and obtained an injunction restraining the Sambantha Mudaliar from dispossessing him by use of force. Further in paragraph 7 it was admitted that the respondents' father collected the rent upto April, 1995 at the rate of Rs. 60. In the light of the fact that the petitioner himself had filed a suit in respect of the building alleging that he was threatened with forc-ible eviction and from the evidence of the father of the respondent herein as P.W. 2 the petitioner cannot contend that he is not aware of the partition and the allotment of the building in question to the respondent. The Appellate Court considered this aspect in paragraph 10 and has come to a conclusion that the petition is maintainable. The Rent Controller has also referred to Exs. R. l to R. 4 letters. These letters have been written by the father of the respondent with ref-erence to the building only. In the circumstances the finding of the Appellate Court is fair and just.

4. The learned Counsel contended that since there was some doubt in the mind of his client as to the real ownership of the building he could not pay the rent. Further his client has also paid water tax and property tax. Therefore, even if there was any default it should not be treated as wilful default. The partition has taken place in 1983. He has paid the rent to the father at the rate of Rs. 60 p. m. till 1985. He has also filed a suit when there was a threat of eviction by force. The father of the respondent has also written letters Exs. R. l to R. 4. There was also notice under Ex. P. 2. The petitioner has sent a reply also under Ex. P. 3. Even after the receipt of the notice, he has not chosen to pay the refits and that only after Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, petition was filed he has chosen to deposit the rent into court. From the circumstances I am satisfied that the petitioner has committed wilful default. He has deliberately attempted to take ad-vantage of the partition and chose to ignore the fact of partition over after he learnt about it. In the circumstances, above stated, the Appellate Court is justified in holding that the default is wilful.

5. The learned Counsel raised a contention with ref-erence to the question of rent. According to him the courts below have not specifically found the quantum of rent. This is not currect. The Appellate Court after discussing the evidence has found in paragraph 10 that the rent was Rs. 60 p. m. He has disbelieved the version of the respondent that the rent was Rs. 100 and accepted the claim of the petitioner that the quantum of rent was only Rs. 60. While arriving at the said conclusion the Appellate Authority has referred to Exs. A. l to A. 4 and also the notice and reply. In the said circumstances, there is no substance in the contention that the quantum of rent has not been fixed. The learned Counsel for the petitioner cited a judgment of this Court in K.M.M. Kathar Hussain v. O.M.R. Selvaraj (1997) 2 M.L.J. 57 and contended that the points for determination were not framed by the courts below. As per the said judgment, the Appellate Court must raise points for determination which arise for decision. This contention also is without any substance. After elaborately referring to the circumstances the Appellate Authority has considered the points one after another. In paragraph 9, he considered the point with reference to the tenancy and thereafter considered as to whether the eviction petition was maintainable or not and in paragraph 10. He has considered about the quantum of rent and given a finding. Thereafter he goes to dicusss about the wilful default. Finally in paragraph 11 he has considered in detail about the requirement of the building for demolition and reconstruction.

6. As per Section 23(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act the procedure for dis-posal of the appeal is set out. Section 23(3) is as follows:

The Appellate Authority shall call for the records of the case from the controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as he thinks fit either personally or through the controller. shall decide the appeal.

Rules also have been framed for the disposal of the appeals. Rule 16 is the relevant Rule. Rule 16 which contains three sub-clauses and number of provisos does not show that the Appellate Authority must frame issues or points for determination.

7. The decision cited by the learned Counsel for the petitioner in K.M.M. Kathar Hussain v. O.M.R. Selvaraj (1997) 2 M.L.J. 57 is with reference to the procedure to be adopted in a civil court. The Appellate Authority is not a court bound to follow the Civil Procedure Code. In the said case the learned Judge has not considered the evidence at all and that was the main reason for setting aside the judgment. But here in the case on hand each point has been specifically and separately dealt with and discussed and further findings have been arrived at giving reasons. It cannot be contended that merely because the points were not set out earlier before taking the points for consideration, the order of the Appellate Authority is vitiated. Because the framing of the points or issues for determination are not specifically contemplated by the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the rules framed thereunder. Therefore, the contention of the learned Counsel for the petitioner on this aspect also is unacceptable. However, the Appellate Authority would have done better, if he had set out the points in separate paragraph before taking up the points for consideration.

8. With reference to the contention of the building requiring immediate demolition both the Rent Controller as well as the Appellate Authority have considered all the relevant facts and circumstances of the case. It has been found that the building has been constructed prior to 1933. An Engineer has been examined and from his evidence the condition of the building has been found to be very bad. By producing Exs. P10 to P12 the respondent has proved the means also for reconstruction. As per Exs. P6 to P9 the respondent has obtained the permission for demo-lition also from the Corporation. After discussing the evidence the Appellate Authority has found that the requirement of the respondent for demolition and reconstruction is bona fide one. For the foregoing reasons, I am of the view that no interference is called for from this Court.

9. In the result, the revision petition is dismissed. However, there will be no order as to costs. Consequently, C.M.P. No. 10238 of 1997 is also dismissed. The petitioner is given three months time for vacating the premises.