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PETITIONER:

C.CHANDRAMOHAN

Vs.

RESPONDENT:

SENGOTTAIYAN (DEAD) BY LRS & ORS.

DATE OF JUDGMENT: 04/01/2000

BENCH:

Syed Shah Mohammed Quadri

JUDGMENT:

J U D G M E N T SYED SHAH MOHAMMED QUADRI,J. Thesethree appeals, by special leav

e, arise out of the common

judgment of the High Court of Madras in C.R.Ps.3796 to 3798

of 1994 dated November 17, 1997. The common appellant is

the landlord and respondents are the tenants of the three

shops, Door Nos.19, 20 and 21, R.K.V.Road, Erode,

(hereinafter referred to as the premises). The facts

giving rise to these appeals may be noticed here. The

father of the appellant, Late Chockalingam who was the

owner, let out the shops on rent bearing - Door No.19 to T.

Subramaniam @ Rs.75/- per month; Door No.20 @ Rs.250/- per

month to M. Sengottaiyan who died during the pendency of

the proceedings (his legal representatives are brought on

record as respondents 2 to 6), and Door No.21 to Nachimuthu

@ Rs.200/- per month. They are said to be in occupation for

the last 25 to 40 years. On June 8, 1978 the said

Chockalingam executed release deed (Exhibit P-4) in favour

of the appellant and thus he became the absolute owner and

landlord of the premises. The landlord claimed that the

rent of the shops, Door Nos.19, 20 and 21, was enhanced to

Rs.400/-, Rs.850/- and Rs.700/- respectively. He issued

notice to the said three tenants stating that the premises

were required for demolition and reconstruction and asking

them to vacate the same. They replied that he was only a

co- owner as the original landlord (Chockalingam) died

leaving behind three daughters and a widow also, therefore,

he could not seek eviction for demolition and reconstruction

of the premises. On the allegation that the appellant was

not receiving rent, the respondents issued notices to him to

nominate a bank and furnish account number to which the rent

may be credited but no reply was given by him. Thereafter,

they filed applications under Section 8(5) of the Tamil Nadu

Buildings (Lease & Rent Control) Act, 1960 (for short the

Act) seeking permission of the Rent Controller to deposit

the rent in his Court. While so, the appellant filed three

eviction petitions under Sections 10(2) and 14(1)(b) of the

Act against them seeking their eviction from the premises on

three grounds, namely, (i) wilful default in payment of

rent; (ii) for demolition and reconstruction of the

premises and (iii) denial of the title of the landlord.

They resisted those petitions pleading that the quantum of

rent claimed by the appellant was not correct; the agreed

rent for the Shops bearing Door Nos.19, 20 and 21 was

Rs.75/-, Rs.250/- and Rs.200/- respectively and reiterating

the plea taken in the reply notice that he is a co-owner and

cannot seek eviction of the premises for demolition and

reconstruction. It was also submitted that the transfer of

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the premises in favour of the appellant was not known to

them and that they were paying the rents regularly to him

and that there was no wilful and malafide denial of title of

the appellant. The Rent Controller, on the basis of the

evidence led before it by the parties, held that all the

three grounds were proved by the appellant and allowed the

eviction petitions by order dated April 09, 1992; however,

the petitions filed by them for deposit of rent were

dismissed. Appeals were preferred before the Appellate

Authority against both the orders directing eviction and

dismissing applications for deposit of rent. The Appellate

Authority found that the quantum of rent pleaded by them was

correct and that the appellant failed to establish that the

rent was enhanced to the amounts claimed by him. But it

held that as the applications filed by them for deposit of

rent before the Rent Controller were without any valid

reasons, they committed wilful default in payment of rent.

On the point of denial of the title, the order of the Rent

Controller was confirmed. However, the Appellate Authority

was not satisfied that the landlord required the premises

for demolition and reconstruction and on that point the

finding of the Rent Controller was reversed. In that view

of the matter, the Appellate Authority dismissed all the

appeals filed by them on September 27, 1992. Dissatisfied

with the order of the Appellate Authority, the respondents

filed three revision petitions before the High Court of

Madras. By a common order dated November 17, 1997, the High

Court allowed the revision petitions and set aside the order

of eviction passed against them. The present appeals arise

from that order. Mr.R.Venkataramani, learned senior counsel

appearing for the appellant, challenged the order of the

High Court on both the points and submitted that as the plea

of deposit of rent in the court of the Rent Controller by

the respondents was rejected, they committed wilful default

in payment of admitted rent for the months of May, June,

July and August, 1987 and as such the High Court erred in

setting aside the well considered findings of the lower

authorities. The impugned order non-suited the appellant in

regard to eviction of the respondents under Section 10(2)(i)

and (vii) which are extracted hereunder : 10. Eviction of

tenants (2). A landlord who seeks to evict his tenant

shall apply to the Controller for a direction in that

behalf. If the Controller, after giving the tenant a

reasonable opportunity of showing cause against the

application, is satisfied

(i). that the tenant has not paid or tendered the

rent due by him in respect of the building, within fifteen

days after the expiry of the time fixed in the agreement of

tenancy with his landlord or in the absence of any such

agreement, by the last day of the month next following that

for which the rent is payable,

(ii) to (vi) * * *

(vii). That the tenant has denied the title of the

landlord or claimed a right of permanent tenancy and that

such denial or claim was not bona fide, the Controller shall

make an order directing the tenant to put the landlord in

possession of the building and if the Controller is not so

satisfied, he shall make an order rejecting the application

:

Provided that in any case falling under clause (i) if

the Controller is satisfied that the tenants default to pay

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or tender rent was not wilful, he may, notwithstanding

anything contained in Section 11, give the tenant a

reasonable time, not exceeding fifteen days, to pay or

tender the rent due by him to the landlord up to the date of

such payment or tender and on such payment or tender, the

application shall be rejected.

Explanation. - For the purpose of this sub- section,

default to pay or tender rent shall be construed as wilful,

if the default by the tenant in the payment or tender of

rent continues after the issue of two months notice by the

landlord claiming the rent.

From a combined reading of clause (i) of sub-section

(2), the proviso and the Explanation, it is manifest that it

is only when the Rent Controller is satisfied that a

tenants default to pay or tender the rent is wilful, that

he can order eviction of the tenant. The question of wilful

default to pay or tender rent to a landlord by a tenant is a

mixed question of law and fact. Where the findings recorded

by the Appellate Authority are illegal, erroneous or

perverse, the High Court, having regard to the ambit of its

revisional jurisdiction under Section 25 of the Act, will be

well within its jurisdiction in reversing the findings

impugned before it and recording its own findings. It is

true that the applications under Section 8(5) of the Act

filed by the respondents for permission to deposit the rent

of the premises were dismissed by the Rent Controller and

the result of the appeals filed against those orders before

the Appellate Authority was no different, as such the

monthly rent deposited in those proceedings cannot be a

valid payment or tendering of rent to the appellant. But,

Mr.S.Sivasubramaniam, learned senior counsel for the

respondents, brought to our notice that the appellant had

withdrawn the rent deposited by the respondents for the

months of May, June, July and August, 1987 before the filing

of the eviction petition on January 30, 1988. Having

accepted the rent deposited, the appellant cannot

legitimately contend that the respondents committed default

in payment of rent for that period. That being the

position, on the date the appellant filed eviction petitions

against the respondents, cause of action on the ground of

wilful default in payment of rent was not subsisting to

claim their eviction from the premises. See: Dakaya @

Dakaiah vs. Anjani [1995 (6) SCC 500]. Further, admittedly

in this case no notice as contemplated by the Explanation,

quoted above, was issued by the landlord to the respondents.

That apart, in the order under challenge, the learned Judge

of the High Court considered the plea of the appellant in

the eviction petitions and noted that the ground for seeking

eviction of the respondents was that the respondents failed

to tender correct rent and that was termed as wilful

default in payment of rent. We have gone through the

pleadings of the parties. Mr.Venkataramani could not point

out any averment in the eviction petitions regarding

non-payment of rent by the respondents for any specified

month or period; he has, however, contended that if the

pleadings are understood in the light of the notices

exchanged between the parties, the plea of wilful default in

payment of rent can be culled out. We are afraid, we cannot

accede to this contention. That is not the way the

pleadings are construed. We are inclined to agree with the

submission of Mr.S.Sivasubramaniam, learned counsel for the

respondents, that the eviction petitions were not filed on

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the ground of non-payment of rent for any specified period

but were filed on the ground that the rent as claimed by the

appellant (namely, at the rate of Rs.400/-, Rs.850/- and

Rs.700/- per month) was not paid as the same is justified by

the recitals in the eviction petitions. In view of the

findings of the Appellate Authority regarding the quantum of

rent payable by the respondents that the amount as pleaded

by the respondents, namely, Rs.75/-, Rs.250/- and Rs.200/-

is correct and regarding the ground on which eviction is

sought recorded on the basis of the pleadings and the

statement of the appellant himself that the respondents had

failed to tender the correct rent to the appellant and

thereby committed wilful default, the High Court is right in

holding that no wilful default was committed by the

respondents in payment of rent. There is, therefore, no

illegality in the order under challenge on the question of

wilful default in payment of rent by the respondents. It

was next contended by Mr.Venkataramani that the respondents

had denied the title of the appellant and on that point the

Rent Controller held against the respondents, which was

confirmed by the Appellate Authority, so the High Court

ought not to have interfered with that finding of fact. A

plain reading of clause (vii), noted above, makes it clear

that to invoke this clause twin requirements, namely, - (i)

denial of title of the landlord or claim of a right of

permanent tenancy by the tenant and (ii) such denial or

claim is not bona fide, have to be established by a

landlord. To constitute denial of title of the landlord, a

tenant should renounce his character as tenant and set up

title or right inconsistent with the relationship of

landlord and tenant, either in himself or in a third person.

In the case of derivative title of the landlord, in the

absence of a notice of transfer of title in favour of the

landlord or attornment of tenancy, a tenants assertion that

the landlord is a co-owner does not amount to denial of his

title, unless the tenant has also renounced his relationship

as a tenant. The principle of equity that a person cannot

approbate and reprobate finds legislative recognition in

Section 116 of the Evidence Act and Section 111(g) of the

Transfer of Property Act. It is in the light of this

principle, we have to construe clause (vii) of sub-section

(2) of Section 10 of the Act. Adverting to the facts of

this case, it has been noted above that the appellant

derived his title to the premises under release deed

executed by his father, late Chockalingam. The respondents

became tenants of late Chockalingam long prior to his

execution of the release deed Exhibit P-4 in favour of the

appellant. It is a common ground that the appellant had not

intimated the respondents that he became owner of the

premises under the release deed. There is also nothing on

record to show that after execution of the release deed, the

appellant has got fresh lease deeds executed in his favour.

However, after the demise of Chockalingam, the respondents

started paying the rent to the appellant. Indeed, the High

Court has also referred to the evidence of the appellant in

which he admitted that the respondents did not deny that he

was the landlord when depositing the rent in the Court and

that they were paying the rent to him. When a notice was

issued by the appellant to the respondents seeking eviction

of the premises for its demolition and reconstruction, the

respondents replied that he was not the absolute owner of

the property since late Chockalingam had also left behind

him three daughters and a widow. In their counters, the

respondents reiterated the said plea and added that they

were unaware of the execution of release deed in favour of

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the appellant by late Chockalingam and that they had been

paying monthly rent to him and that the denial of absolute

title of the property was not wilful and malafide, as

alleged in the petitions. Now, in this background, when we

consider the conduct of the respondents that from the date

of the said reply notice (Exhibit P- 18) the respondents

neither denied the relationship of landlord and tenant nor

did they stop paying rent to the appellant nor did they set

up any claim adverse to title or interest of the appellant

in themselves or a third party and that after coming to know

of the said release deed in favour of the appellant they did

not persist in their plea that he was a co-owner, it cannot

be said that the respondents denied the title of the

appellant, much less can it be said that such a denial was

not bonafide. For the above reasons, we cannot but hold

that the High Court is right in coming to the conclusion

that but for the release deed the appellant would be a

co-owner and so the respondents were justified in calling

the appellant as a co-owner for lack of knowledge of the

release deed and that the appellant failed to make out a

case of denial of his title to the premises by the

respondents. From the above discussion, it follows that the

appeals are devoid of any merit; they are accordingly

dismissed but, in the circumstances of the case, without

costs.