D. Singaraj Vs. Murthy
EmailAppeal: Civil Appeal No. 4258 of 1999
Petitioner: D. Singaraj
Respondent: Murthy
Apeal: Civil Appeal No. 4258 of 1999
Judges: V.N. KHARE & S.N. PHUKAN, JJ.
Date of Judgment: Apr 19, 2000
Head Note:
RENT CONTROL & EVICTION
Pondicherry Buildings (Lease and Rent Control) Act, 1969
Section 9 – Deposit – Validity – Transferee landlord issuing notice for payment – Before notice could be served, tenant moving under Section 9, for deposit, which were allowed – Recourse to Section 9, if valid without valid ground. Held that there was no valid tender to landlord. Resort to Section 9 was wrong in ab-sence of valid ground.
Held:
It was not open to the tenant to take resort under Section 9 of the Act unless there is a valid ground. The tenant has never tendered the rent to the landlord despite he was informed by the landlord that he has become the owner of the premises. Such a deposit by the tenant before the authorised Officer was not valid deposit and would not absolve him from suffering an order of eviction for committing default in payment of arrears of rent. Moreover, both appellate court and the High Court have recorded concurrent finding of fact that the tenant had committed willful default in payment of arrears of rent.
(Para 5)
JUDGEMENT:
ORDER
1. Appellant herein is the tenant of the premises No. 20, Puliya-ni Salai Road (Thiruvaluvar Road) Ayyanar Nagar, Pondicherry. Initially the said premises was owned by Selvi Arokiya Mary. Subsequently by a sale deed dated 20th March, 1986 the erstwhile owner transferred the said premises in favour of the respondent. On 29th May, 1987 the respondent served, notice on the tenant intimating him that he has purchased the said premises and has become the owner thereof and the tenant is required to pay rent to him. Before the notice could be served the appellant filed RCOP No. 4/1987 under Section 9 of (Pondicherry Buildings Lease and Rent Control) Act, 1969. On 22nd March, 1988 the Authorised Officer passed an order to deposit rent from January, 1987 to November, 1987 and subsequently on 29th March, 1988 the officer further passed an order to deposit rent for the period beginning from December, 1987 up to March, 1988 and also for subsequent months. The tenant in compliance of the aforesaid order deposited a sum of Rs. 1615/-, Rs. 600/- and Rs. 150/- respectively and thereafter, he continued to deposit the rent before the author-ised officer. Subsequently the said application was withdrawn by the tenant.
2. The landlord filed RCOP No. 159/1987, RCOP No. 220/1989 claim-ing arrears of rent but those petitions were dismissed in de-fault. Thereafter, the respondent-landlord filed RCOP No. 94/91 seeking eviction of the appellant-tenant on the grounds of bona fide need as well as for default in payment of arrears of rent. The Rent Controller dismissed the petition on the ground that the landlord has failed to substantiate that he is in bona fide need of the premises inasmuch as tenant has committed any default in payment of arrears of rent. The landlord thereafter, filed an appeal before the learned District Judge. The District Judge was of the view that the tenant has committed default in payment of rent for the period beginning from January 1987 to November, 1987 and from December, 1987 to March, 1988 under Ext. B6 and further the tenant has also committed default for the period beginning from March 1993 to May, 1993 under Ext. B10. The appellate court further found that the need of the landlord is bonafide. Consequently, the appeal was allowed. The appellant preferred a revision before the High Court. The High Court agreed with the view taken by the appellate court that the tenant has committed willful default in payment of arrears of rent for the period under Ext.B6. Consequently the revision was dismissed. However, the findings of the appellate court that the landlord bona fide requires the premises was set aside. It is against the said judgment the tenant is in appeal before us.
3. Learned Counsel for the appellant urged that the landlord’s RCOP No. 159/1987 and RCOP No. 20/1989 having been dismissed in default it was not open to the landlord to bring the present petition seeking eviction of the tenant on the ground for default in payment of arrears of rent. In other words his argument is that the dismissal in default of these RCOPs would constitute res judicata in the subsequent petition viz., RCOP No. 94/91 out of which the present appeal arises.
4. We have carefully gone through the record and found that this plea was neither raised in the written statement nor any issue in that respect was struck by the trial court. This plea was neither argued either before the trial court nor before the first appellate court or even before the High Court. We are, therefore, not inclined to permit the learned Counsel to urge this ground for the first time before this Court.
5. Learned Counsel for the appellant then urged that once the tenant had deposited the rent for the period beginning from January, 1987 to March, 1988 in pursuance of the order of the authorised officer, the appellant cannot be treated to be a de-faulter. We do not find any merit in this contention. It was not open to the tenant to take resort under Section 9 of the Act unless there is a valid ground. The tenant has never tendered the rent to the landlord despite he was informed by the landlord that he has become the owner of the premises. Such a deposit by the tenant before the authorised officer was not valid deposit and would not absolve him from suffering an order of eviction for committing default in payment of arrears of rent. Moreover, both appellate court and the High Court have recorded concurrent finding of fact that the tenant had committed willful default in payment of arrears of rent. We are, therefore, not inclined to take a different view. The appeal fails and is dismissed. There shall be no order as to costs.
6. After the judgment was dictated, learned Counsel for the appellant urged that in the event the appellant is required to vacate from the premises. He would suffer great hardship and, therefore, some time may be granted to vacate the premises. To this, learned Counsel for the respondent raised no objection. We, therefore, direct that the appellant shall not be evicted from the premises till 31st March, 2001 subject to his furnishing usual undertaking within a period of four weeks from today and the appellant shall deposit arrears of rent and continue to deposit the rent/damages as and when it falls due during his stay in pursuance of order of this Court. In case of any default, this order shall stand vacated automatically.
1. Appellant herein is the tenant of the premises No. 20, Puliya-ni Salai Road (Thiruvaluvar Road) Ayyanar Nagar, Pondicherry. Initially the said premises was owned by Selvi Arokiya Mary. Subsequently by a sale deed dated 20th March, 1986 the erstwhile owner transferred the said premises in favour of the respondent. On 29th May, 1987 the respondent served, notice on the tenant intimating him that he has purchased the said premises and has become the owner thereof and the tenant is required to pay rent to him. Before the notice could be served the appellant filed RCOP No. 4/1987 under Section 9 of (Pondicherry Buildings Lease and Rent Control) Act, 1969. On 22nd March, 1988 the Authorised Officer passed an order to deposit rent from January, 1987 to November, 1987 and subsequently on 29th March, 1988 the officer further passed an order to deposit rent for the period beginning from December, 1987 up to March, 1988 and also for subsequent months. The tenant in compliance of the aforesaid order deposited a sum of Rs. 1615/-, Rs. 600/- and Rs. 150/- respectively and thereafter, he continued to deposit the rent before the author-ised officer. Subsequently the said application was withdrawn by the tenant.
2. The landlord filed RCOP No. 159/1987, RCOP No. 220/1989 claim-ing arrears of rent but those petitions were dismissed in de-fault. Thereafter, the respondent-landlord filed RCOP No. 94/91 seeking eviction of the appellant-tenant on the grounds of bona fide need as well as for default in payment of arrears of rent. The Rent Controller dismissed the petition on the ground that the landlord has failed to substantiate that he is in bona fide need of the premises inasmuch as tenant has committed any default in payment of arrears of rent. The landlord thereafter, filed an appeal before the learned District Judge. The District Judge was of the view that the tenant has committed default in payment of rent for the period beginning from January 1987 to November, 1987 and from December, 1987 to March, 1988 under Ext. B6 and further the tenant has also committed default for the period beginning from March 1993 to May, 1993 under Ext. B10. The appellate court further found that the need of the landlord is bonafide. Consequently, the appeal was allowed. The appellant preferred a revision before the High Court. The High Court agreed with the view taken by the appellate court that the tenant has committed willful default in payment of arrears of rent for the period under Ext.B6. Consequently the revision was dismissed. However, the findings of the appellate court that the landlord bona fide requires the premises was set aside. It is against the said judgment the tenant is in appeal before us.
3. Learned Counsel for the appellant urged that the landlord’s RCOP No. 159/1987 and RCOP No. 20/1989 having been dismissed in default it was not open to the landlord to bring the present petition seeking eviction of the tenant on the ground for default in payment of arrears of rent. In other words his argument is that the dismissal in default of these RCOPs would constitute res judicata in the subsequent petition viz., RCOP No. 94/91 out of which the present appeal arises.
4. We have carefully gone through the record and found that this plea was neither raised in the written statement nor any issue in that respect was struck by the trial court. This plea was neither argued either before the trial court nor before the first appellate court or even before the High Court. We are, therefore, not inclined to permit the learned Counsel to urge this ground for the first time before this Court.
5. Learned Counsel for the appellant then urged that once the tenant had deposited the rent for the period beginning from January, 1987 to March, 1988 in pursuance of the order of the authorised officer, the appellant cannot be treated to be a de-faulter. We do not find any merit in this contention. It was not open to the tenant to take resort under Section 9 of the Act unless there is a valid ground. The tenant has never tendered the rent to the landlord despite he was informed by the landlord that he has become the owner of the premises. Such a deposit by the tenant before the authorised officer was not valid deposit and would not absolve him from suffering an order of eviction for committing default in payment of arrears of rent. Moreover, both appellate court and the High Court have recorded concurrent finding of fact that the tenant had committed willful default in payment of arrears of rent. We are, therefore, not inclined to take a different view. The appeal fails and is dismissed. There shall be no order as to costs.
6. After the judgment was dictated, learned Counsel for the appellant urged that in the event the appellant is required to vacate from the premises. He would suffer great hardship and, therefore, some time may be granted to vacate the premises. To this, learned Counsel for the respondent raised no objection. We, therefore, direct that the appellant shall not be evicted from the premises till 31st March, 2001 subject to his furnishing usual undertaking within a period of four weeks from today and the appellant shall deposit arrears of rent and continue to deposit the rent/damages as and when it falls due during his stay in pursuance of order of this Court. In case of any default, this order shall stand vacated automatically.
