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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.