IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 17/04/2004 Coram The Hon'ble Mr. Justice S.SARDAR ZACKRIA HUSSAIN Civil Revision Petition No.2449 of 1999 and C.M.P.No.3884 of 2004 1.R.Krishnaveni. 2.R.Mahalingam. 3.R.Ramasubramanian. ... Petitioners. -Vs- 1.A.Shanmughavelgani. 2.R.Meenakshisundari. 3.R.Shanmugapriya. ... Respondents. (Respondents 2 and 3 are given up). Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the judgment and decree dated 17.6.1998 and made in R.C.A.No.13 of 1994 on the file of the Rent Control Appellate Authority (Principal Sub Court), Madurai, reversing the order and decretal order dated 27.1.1994 passed in R.C. O.P.No.143 of 1987 on the file of the Rent Control (District Munsif) Court, Melur. !For petitioners : Mrs.Hema Sampath & Mr.R.Subramanian. ^For respondents : Mr.V.Sitharanjandas for R-1. R-2 and R-3 given up. :O R D E R The revision petitioners are landlords. They filed Rent Control Original Petition No.143 of 1987 on the file of the District Munsif Court, Melur against the first respondent for eviction in respect of the petition shop on the ground of wilful default in payment of rent, acts of waste, nuisance, ceased to occupy the petition shop for more than 8 years. 2. In the petition it is stated that the petition premises is the South-western portion of door No.8, West Masi Street, Madurai and it belonged to the first revision petitioner's husband and the father of the revision petitioners 2 and 3 and the respondents 2 and 3. The revision petitioners have become owners of the petition shop, since the first revision petitioner's husband Ramanathan had left the family in 1972 and his whereabouts were not known for the past 9 years at the time of filing of the Rent Control Original Petition. The first respondent is a tenant in respect of the petition shop on a monthly rent of Rs.30/-. The first respondent filed R.C.O.P.No.663 of 1968 for deposit of rent and it is not known as to whether the rental amount is deposited in that petition. The first respondent is not doing any business in the petition shop and kept the building closed for the past 8 years and as such ceased to occupy the said premises for more than 8 years. In view of such closer, the building also has become damaged and the first respondent also committed acts of waste impairing materially the value or utility of the building on account of ceasing to occupy the building. Further, in front of the building unruly elements assembled and are indulging in unlawful activities causing mental sufferings to the first revision petitioner and her children. The first respondent also has not paid rent for the past several years and as such, he committed wilful default in payment of rent. 3. The Rent Control Original petition is opposed in the counter denying that the first respondent ceased to occupy the petition premises and further stating that he is carrying on business in paints under the name and style of Lakshmi Distember Company in the petition shop and he will be absent whenever he leaves for business purpose. The first respondent filed R.C.O.P.No.663 of 1968 for deposit of rent since the first revision petitioner's husband Ramanathan and his father Mahalingam Pillai made claim to receive the rent and in the said petition he is depositing the rent at the rate of Rs.32/- every month, as such he has not committed default, much-less wilful default in payment of rent. The first respondent did nothing to impair the value of the building and also not committed any nuisance. The first respondent is in occupation of the petition shop bearing door No.8-A, West Masi Street, Madurai. The first petitioner's father-in-law late Rm. Mahalingam Pillai executed a Will in favour of his second wife Shenbagathammal, who is also claiming right in the petition shop and so the petition filed by the revision petitioners alone is not maintainable. The first respondent never locked and closed his business for the past 8 years. The first respondent also paid corporation tax upto March, 1982 at the threat of distress warrant and occupier notice and has paid rent upto March, 1982 and only Rs.14.80 is payable for the month of April, 1982. There is no default in payment of rent. The first respondent also filed O.S.No.979 of 1979 in the Principal District Munsif Court, Madurai Town for declaration that the enhancement of tax is illegal and for consequential injunction and the suit also was decreed. 4. Before the Rent Controller, the first revision petitioner examined herself as P.W.1 and the first respondent examined himself as R.W.1 and marked Exs.B-1 to B-17 and no document has been marked on the side of the revision petitioners. The learned Rent Controller taking into consideration the Exs.B-5 and B-6, found that the first respondent committed default wilfully in payment of rent wilfully, in that no rent was paid for about 5 years after 13.6.1978 as can be seen from Exs.B-5 and B-6. The learned Rent Controller also recorded finding that the revision petitioners have become owners of the petition shop in view of the fact the whereabouts of Ramanathan, the husband of the first revision petitioner and the father of the revision petitioners 2 and 3 and the respondents 2 and 3, was not know for the past more than 14 years. Though the learned Rent Controller found that the first respondent has not committed acts of waste and nuisance and that he has not kept the petition shop locked for more than 8 years, in view of the finding recorded that the first respondent committed default in payment of rent, ordered eviction only on that ground. In the appeal, the learned Rent Control Appellate Authority by allowing I.A.Nos.58 of 1994 and 94 of 1998 filed to receive additional documents by the tenant, marked the said documents as Exs.B-18 to B-31, viz., the demand notices, tax receipts paid by the tenant to the petition shop, exchange of notices between the parties and two ledger extracts relating to R.C.O.P.No.663 of 1968 in which the tenant has deposited rent. The leaned Rent Control Appellate Authority found that inasmuch as it is admitted by P.W.1 in her evidence that her husband Ramanathan is alive and he filed H.M.O.P.No.18 of 1992 for divorce and also a suit O.S.No.1098 of 1991 for partition against her and inasmuch as the petition shop only belonged to Ramanathan, recorded finding that the Rent Control Original Petition as fi led by the revision petitioners being the wife and children of Ramanathan is not maintainable. As regards the wilful default, the learned Rent Control Appellate Authority found that the tenant has deposited the rent in R.C.O.P.No.663 of 1968 upto 13.6.1978 and thereafter in respect of the rent payable till the date of filing of the Rent Control Original Petition i.e. 27.2.1981, subject matter of this Civil Revision Petition, the first respondent paid the rents for 31 months under Exs.B-18 to B-31 received as additional documents in the Rent Control Appeal. The first respondent has paid property tax for the petition premises under threat of distress warrant and occupier notices. Considering such facts, the learned Rent Control Appellate Authority found that the first respondent has not committed wilful default in payment of rent as claimed. The learned Rent Control Appellate Authority also pointed out in the judgment that it is not clearly set out in the Rent Control Original Petition that as to which period, the first respondent has committed default in payment of rent wilfully. As regards the grounds, viz., acts of waste, nuisance and that the petition shop is kept closed for more than 8 years, the learned Rent Control Appellate Authority concurred with the findings of the learned Rent Controller in negativing eviction on that grounds. The learned Rent Control Appellate Authority ultimately allowed the Rent Control Appeal filed by the tenant and set aside the eviction order on the only ground of wilful default in payment of rent. Such order of the Rent Control Appellate Authority is under challenge in this Civil Revision Petition. 5. Heard the learned counsel for the revision petitioners and the learned counsel for the first respondent. 6. The petition C.M.P.No.3884 of 2004 is filed by the revision petitioners to receive the death extract relating to the death of Ramanathan on 8.8.1998, the husband of the first revision petitioner and the father of the revision petitioners 2 and 3 and the respondents 2 and 3. It is argued that the document is required to establish that on the death of Ramanathan, the revision petitioners who are his legal representatives have become owners. There is no force in that contention. So the C.M.P.No.3884 of 2004 is ordered and the death extract of Ramanathan is marked as Ex.A-1. 7. As regards the maintainability, the learned counsel for the landlords/revision petitioners argued that since the whereabouts of Ramanathan to whom the petition premises belonged to, was not known for 8 years at the time of filing of the Rent Control Original Petition in 1981, the revision petitioners being the wife and children as his legal representatives became entitled to the property and as such, the Rent Control Original Petition filed by them claiming that they are landlords, is very much maintainable. 8. In C.M.P.No.3884 of 2004 it is set out that the revision petitioners right to file eviction petition has already been upheld in C.R. P.No.2825 of 1985. To evidence the said fact, even such a stand was not taken in the Rent Control Original Petition as pointed out by the learned Rent Control Appellate Authority. It is admitted by the first revision petitioner as P.W.1 in her evidence when she gave evidence on 17.9.1993 that her husband Ramanathan was alive and also further admitted that he filed O.P.No.18 of 1992 for divorce against the first revision petitioner and also suit O.S.No.1098 of 1991 for partition against the first revision petitioner, the plaint copy of which has also been marked as Ex.B-1. Therefore, since Ramanathan was alive to whom admittedly the petition property belonged to, at the time of filing of R.C.O.P.No.143 of 1987, subject matter of this revision, such petition filed by the revision petitioners as wife and children of the said Ramanathan is not maintainable. 9. The attempt was made that in any event since it transpires as per the death register extract now received as Ex.A-1 pursuant to the order in C.M.P.No.3884 of 2004, the said Ramanthan died on 8.8.1998 that being subsequent event and from which date, the revision petitioners have become the owners as legal entities and as such, the Rent Control Original Petition is maintainable. Such argument advanced is without any merit. Though Ramanathan was alive as admitted by the first revision petitioner in her evidence at the time of filing of the Rent Control Original Petition, subject matter of this revision and in fact he filed O.P.No.18 of 1992 for divorce and the suit O.S.No.1098 of 1991 for partition against the first revision petitioner, she was fully aware of the fact that Ramanathan was alive and as such, she did not choose to make him as a party by amending the Rent Control Original Petition. As such, it is clear that the Rent Control Original Petition as filed is not maintainable. 10. As regards the wilful default in payment of rent, as pointed out by the learned Rent Control Appellate Authority, it is not set out in the Rent Control Original Petition as to which period the rent was not paid and it is also not stated by the first revision petitioner in her evidence as to which period, the tenant committed default in payment of rent wilfully. The learned Rent Control Appellate Authority stated that it is seen from Exs.B-6 and B-7 that no rent has been deposited after 13.6.1978. As rightly pointed out by the learned Rent Control Appellate Authority in respect of the rent for 31 months covering the period from 13.6.1978 to 27.2.1981 on which date, the R.C. O.P.No.143 of 1981 subject matter of this revision, was filed, it appears that the tenant has deposited rent in R.C.O.P.No.663 of 1968 and also was paying property tax for the petition premises as can be seen from Exs.B-18 to B-31 and in the circumstances, the first respondent/tenant has not committed default, much-less wilful default in payment of rent as claimed for the period from 13.6.1978 till January, 1981. In this regard, it appears from the calculation memo filed by the first respondent/tenant before the learned Rent Control Appellate Authority as per which it is seen that the first respondent deposited Rs.270/- towards rent for the period from 18.9.1968 to 1.5.1969 at the rate of Rs.30/- for 9 months in R.C.O.P.No.663 of 1968 and after enhancement of rent as per order in C.M.A.No.254 of 1968, the rent at the rate of Rs.32/- per month for the period from 1.6.1969 to January, 1981, viz., for 140 months which comes Rs.4,480/- and totalling the rental arrears being Rs.4,750/- as per Exs.B-5 and B-6 Rs.2,860.4 0 has been deposited in R.C.O.P.No.663 of 1968 towards the rent from 18.9.1968 to 13.6.1978 and thereafter the first respondent paid property tax, the receipts have been marked as Exs.B-18 to to B-29 for the period from the first half year 1976-77 to the first and second half year 1981-82 totalling to Rs.4,677.60 leaving the balance of Rs.72 .40 as the balance rental amount payable that also got adjusted in the house tax paid by the tenant for the second half year year 1981-82 at Rs.165.20 on 9.11.1981 and also house tax paid by the tenant for the first half year 1982-83 at Rs.165.20 paid on 6.10.1982. 11. The Apex Court has ruled in C.Chandramohan  vs. - Sengottaiyan (dead) reported in 2000(1) C.T.C. 239 at paragraph 14 that pleading should contain specific period during which period the tenant committed default in payment rent. Here also in the Rent Control Original Petition, subject matter of this revision, it is not clearly set out as to which period the tenant has committed default in payment of rent. 12. As regards the acts of waste, nuisance and kept the building closed for more than 8 years at the time of filing the Rent Control Original Petition, the learned Rent Controller as well the learned Rent Control Appellate Authority concurrently found that such case was not proved by the landlords/revision petitioners and such concurrent finding need not be interfered with. 13. In the result, this Civil Revision Petition is dismissed, in view of the fact the Rent Control Original Petition itself is not maintainable and even assuming that it is maintainable, the revision petitioners failed to prove that the first respondent/tenant committed wilful default in payment of rent. No cost. 14. The petition C.M.P.No.3884 of 2004 is allowed and the death extract of Ramanathan is ordered to be marked as Ex.A-1. Index :Yes Internet:Yes ts. To 1) The Principal Subordinate Judge, Madurai. 2) The District Munsif, Melur. 3) The Section Officer, V.R. Section, High Court, Madras. 