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2017 Supreme(Mad) 4165
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. MURALIDARAN, J.
K. Sherifa - Petitioner
Versus
Ahmed Hussain- Respondent
CRP(NPD)No.3436 of 2012 and M.P.No.1 of 2012
Decided On : 14-06-2017
For the Petitioner: Mr. N.A. Nissar Ahmed
For the Respondents: Mr. A. Saddiq Ali
Headnote:
Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Section 7(2) - Lease agreement - Tenant - Arrears of rental amount - Respondents/landlords is that there was on lease agreement dated entered into between respondents/landlords and petitioner/tenan - It is case of respondents/landlords is that as per Clause 11 of lease agreement, petitioner/tenant has agreed to pay enhanced rent of 15% of over and above, then existing rent on expiry of every 3 years namely with effect exclusive of water and electricity consumption charges and thereafter on expiry of 3 years, this petitioner/tenant has agreed to pay enhanced rent by 15% on existing rentexclusive of water and electricity consumption charges - It is further case of respondents/landlords that tenant had been chronic defaulter in payment of rent right from institution of tenancy and therefore, Rent Control Proceedings in RCOP.No. was instituted by the respondents/landlords (herein after called landlords) against petitioner/tenant (herein after called tenant), who is 1st respondent in present RCOP before learned Rent Controller for eviction on ground of willful default in payment of rent - Petitioner, then belatedly paid arrears for month – Held, landlord disputed the receipt of pay order under Ex.R5 and even then no attempt was made by tenant to prove that pay order sent by him was en-cashed by landlord by producing evidence from bank - Therefore, though tenant has stated that he has paid the rent for month except notices no proofs were produced by tenant for having sent rent for all three months and on contrary, Ex.R7 makes it clear that rents for those 3 months were not paid through Ex.R5 - Out of this, balance amount out of this amount and arrears of rental amount still an amount is retained by landlord in excess - When that being factual position, even assuming that there was no option exercised by tenant to adjust rental arrears from advance amount, still landlord cannot maintain eviction petition without refunding said amount to petitioner/tenant - Courts when they have no agree to sublet to 2nd respondent miserably failed to note that advance amount with above calculation even today there is a balance advance amount which can be adjusted - Therefore, orders passed by both Courts namely Rent Control Appellate Authority in RCOP and RCA is warranting necessary interference by this Court - Accordingly, same is liable to be set aside - In result, this civil revision petition is allowed, by setting aside judgment and decree dated - In result, this civil revision petition is allowed by setting aside judgment and decree dated - Consequently, connected miscellaneous petition is closed.
1. The tenant in RCOP.No.2050 of 2003 is the civil revision petitioner before this Court, challenging the order in RCA.No.1710 of 2004against the order in RCOP.No.2050 of 2003 dated 28.06.2012, on the file of the VII Judge, Small Causes Court, Chennai.
2. The case of the respondents/landlords is that there was on lease agreement dated 01.03.1996 entered into between the respondents/landlords and the petitioner/tenant. The petitioner/tenant became a tenant under the respondents herein for residential purpose of the 2nd floor of the premises bearing No.5, Meera Lubai Street, II Floor, Chennai – 600 001, on a monthly rent of Rs.1,600/- exclusive of electricity and water consumption charges.
3. It is the case of the respondents/landlords is that as per Clause 11 of the lease agreement, the petitioner/tenant has agreed to pay enhanced rent of 15% of the over and above, the then existing rent on the expiry of every 3 years namely with effect from March 1999 at Rs.1,840/- exclusive of water and electricity consumption charges and thereafter, on expiry of 3 years, this petitioner/tenant has agreed to pay enhanced rent by 15% on existing rent of Rs.1,840/- viz., Rs.2,116/- exclusive of water and electricity consumption charges. For the current rent payable by the respondent is Rs.2,118/- and in fact, the petitioner/tenant had paid a security deposit of Rs.1,00,000/- with the respondents/defendants.
4. It is the further case of the respondents/landlords that the tenant had been chronic defaulter in payment of rent right from the institution of the tenancy and therefore, the Rent Control Proceedings in RCOP.No.327 of 2001 was instituted by the respondents/landlords (herein after called landlords) against the petitioner/tenant (herein after called tenant), who is the 1st respondent in the present RCOP before the learned Rent Controller for eviction on the ground of willful default in payment of rent with respect to November and December 2000. Thereafter, the RCOP.No.327 of 2001 was dismissed for default, since the 2nd landlord did not appear for the cross examination. Therefore, the petitioner, then belatedly paid the arrears for the month of November and December 2000. Though, the tenant has once again defaulted in payment of any amount towards monthly rent continuously from April 2002 till date or the balance increased rent for the month of March 2002 which amounts to Rs.276/-.
5. It is the case of the landlords that the tenant had issued a letter dated 20.02.2003 to the landlords stating that she had vacated the premises and asked the landlord to refund the advance amount, though the landlords were received the same, immediately on receipt of the said notice dated 20.02.2003, the landlords orally informed the tenant to meet them for setting the accounts. In spite of the oral communication, this tenant failed to approach the landlords, but the tenant has shifted from the second floor premises to the first floor premises belonging to her husband and is still in possession and enjoyment of the second floor portion of the premises till date. The tenant in RCOP.No.2050 of 2003 has also sub let the 2nd floor portion of the premises bearing No.5, Meera Lubai Street, II Floor, Chennai- 600 001. In the said circumstances, the landlords without any alternative were forced to send a legal notice on 02.09.2003, requesting the tenant to pay the rental arrears due from April 2002 to till date, which comes to the amount of Rs.38,088/- along with the arrears of balance increased rent for the month of March 2002 amounting to Rs.276/-, by totaling Rs.38,366/- and deliver vacant possession of the schedule mentioned property.
6. On receipt of the notice, the tenant sent a reply notice on 12.09.2003 denying the averments made in the landlord's legal notice. Therefore, the landlords are constrained to file the petition for eviction in RCOP.No.2050 of 2003 against the tenant and the 2nd respondent one Mr. Sahul Hameed, on the ground that the respondent has
