XIII SCC, CHENNAI. RLTOP No. 5 of 2020.

IN THE XIII COURT OF SMALL CAUSES, CHENNAI

PRESENT: Mrs. V. Viswatha, B.A.,LL.B(Hons)., LL.M.,
XIII JUDGE
th
Tuesday the 14 day of February 2023
RLTOP No. 5 of 2020
(CNR No.TNCH09-000092-2020)
Krishna Baskar
No.9, Kasi Chetty Lane,
1st Floor,
Sowcarpet,
Chennai – 600 049. …Applicant

-Vs.-
Mrs. Vasantha Devi Purohit,
No. 6A/5, Ground Floor
Kasi Chetty Lane,
Chennai – 600 079. …Respondent

This petition came up for final hearing before me in the presence of

Advocate Mr. P.B.Ramanujam, Mr. P.B.Balaji and Mr. V. Sivakumar, Counsels

for the applicant and Mr. Sunil Kumar, Mr. V.Muthuraju and Mr. Deepak

Gandhi, Counsels for the respondent and upon hearing the arguments of both

sides and on perusing the records and having stood over for consideration till

this day, this court delivered the following:

ORDER

This petition is filed under Section 21(2)(a) of Tamil Nadu Regulation of

Rights and Responsibilities of Landlords and Tenants Act, 2017, Hereinafter

said to be ‘ New Act’.

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 XIII SCC, CHENNAI. RLTOP No. 5 of 2020.

1. Brief averments of Applicant’s affidavit:

The petitioner herein states that he is the owner of petition premises. It is

stated that the respondent is inducted as a tenant in respect of schedule premises

for a monthly rent of Rs. 1,500/-. It is stated that the purpose of tenancy is for

non residencial purpose. It is stated that the respondent has sublet the premises

to one Lakshman Singh and Prakash without written consent of the petitioner.

It is stated that the petitioner had sent a letter dated 09.06.2019 asking the

respondent to vacate and handover the schedule property. It is stated that

another letter dated 24.06.2019 is sent terminating the tenancy and asking the

respondent to vacate and handover the vacant possession of the schedule

property. It is stated that a reply notice dated 10.07.2019 is sent by the

respondent with false and frivolous allegation. It is stated that another notice

dated 16.09.2019 was sent by the petitioner to the respondent conforming the

termination of tenancy agreement and directed the respondent to vacate and

handover the possession of the schedule property on or before 01.10.2019. It is

stated that the respondent sent a reply notice dated 05.10.2019 with the same

false and frivolous allegation. It is stated that there is a clear failure to enter

into a tenancy agreement as contemplated under Section 4(2) of the Act. It is

stated that there is no written agreement in place on the date of commencement

of the Act. It is stated that considering the conduct of the respondent in

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 XIII SCC, CHENNAI. RLTOP No. 5 of 2020.

subletting the premises without the consent of the petitioner, there is a clear

failure to enter into an agreement as contemplated under Section 4(2) r/w

Section 21(2)(a) of the Act. It is stated that the petitioner had filed the present

application for recovery of possession on the ground of failure to enter into

tenancy agreement. Hence, this petition is filed seeking eviction.

2. Brief averments of the counter:

The respondent denies the averments in the petition and states that the

petition is not maintainable in law or facts. It is stated that the respondent is the

tenant under the petitioner in the petition premises for a monthly rent of

Rs. 1,500/- . It is stated that the respondent is running a textile business. It is

stated that the petition is completely false and the same is denied by a

respondent. It is stated that the respondent has not sublet to any person and it is

the respondent’s husband who is looking after the shop from the date of tenancy.

It is stated that the said Lazman Singh is not in respondent premise and

Prakash was an employee in tenancy premise. It is stated that the termination is

un justifiable and respondent states a notice is sent immediately on 09.06.2019.

It is stated that the respondent is always ready to enter into lease agreement. It

is stated that the respondent once again clarified all these allegation through a

reply letter dated 10.07.2019. It is stated that a reply notice dated 16.09.2019 is

sent to the petitioner. It is stated that the respondent is not in failure to enter

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into rental agreement. It is stated that without proving subletting of premises

the present petition is liable to be dismissed. It is stated that the respondent

paid a sum of Rs. 5,00,000/- before 25 years and same is with the petitioner. It

is stated that the respondent sent money order for a sum of Rs. 3,000/- towards

the April and May month rent. It is stated that the respondent again sent money

order towards April, May and June 2019 monthly rent. It is stated that the

respondent was very much interested to settle the matter peacefully and the

respondent was ready to have mutual negotiation for peacefull settlement of

dispute and for entering into new tenancy agreement. It is stated that the

petition has no merits and so it is liable to be dismissed.

3.Additonal counter filed by the respondent:

The respondent states that Section 21 deals with repossession of the

premise and the Section 21(2)(a) clearly mentions when the landlord and tenant

have failed to enter into an agreement under sub-section 2 of Section 4 of the

Act is maintainable. It is stated that only if both the landlord and tenant fails to

enter into an agreement, the petition is maintainable under Section

21(2)(a) for eviction. It is stated that the starting words and phrases of

Section 21(1) starts by saying a tenant shall not be evicted. The respondent

states that the expansion of the scope of Section 21 (2)(a) will increase the

chance that landlord will evict the tenant unfairly. It is stated that the landlord

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being in the dominant position misuse the provision with Section 4(2) and

terminate the tenancy without any reason. It is stated that in order to avoid

such unfair, unreasonable eviction under Section 21(2)(a) the provision in

corporates the word landlord and tenant instead of landlord or tenant. It is

stated that from the reply notice sent by the respondent it is clear that the

respondent is always ready and willing to execute the rental agreement. It is

stated that the petitioner has no where stated any reason for non entering into

agreement. It is stated that the respondent has been inducted as a tenant under

one Subburathnamma around 25 years back. It is stated that the respondent paid

a sum of Rs. 5,00,000/- was advance. It is stated that upon the death of the said

Subburathnamma, the petitioner was collecting rent on behalf of said

Subburathnamma. It is stated that it was informed during the life time of the

Subburathnamma that M.S.Radha Lakshmi and Krishna Baskar are succeeding

owners of the petition premises. It is stated that after the death of the said

Subburathnamma, the property devolved to Radha Lakshmi and Krishna Baskar.

It is stated that the respondent without impleading the owner of the property the

petition is liable to be dismissed. It is stated that the petitioner is currently

putting up construction in the terrace floor and it is clearly evident of the fact

that the building is in nice condition. It is stated that the premises is a complex

building consisting of 28 shops in the ground floor and in the first floor 15

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shops and the second floor consist of one big shop. It is stated that the entire

building is rented out to various tenants and the petitioner is only willing to get

enhanced rent. It is stated that the respodent is ready to pay reasonable increase

of rent. It is stated that the petitioner is harrasing the respondent and other

tenants by filing cases. It is stated that the petitioner has stated that the

respondent has sublet the petition premises to Lakshman Singh and Prakash. It

is stated that though the petitioner has stated that the premises is sublet the

petitioner has not invoked the ground of “subletting” for eviction. It is stated

that the dispute happened in enhancement of rent suddenly by the landlord

despite giving huge pagadi at the time of induction of a tenant. It is stated that

the scope of Section 4 is different with the scope of Section 21(2)(a) and

therefore without complying with the essentials of Section 21(2)(a), the present

petition is laible to be dismissed. It is stated that the respondent is always

willing and ready to executed the rental agreement from his side and therefore

Section 21(2)(a) of the act cannot be invoked for evicting the tenant on the

failure of the part of the landlord in failing to enter into agreement with the

tenant. It is stated that the respondent is the bread winned of the family and

established the shop for many years ago and earned goodwill. It is stated that if

the petitioner vacates for no reason, then the respondent will be put to great loss

and injury which could not be compensated by the petitioner. It is stated that

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the petition is liable to be dismissed.

4. Point for consideration:

(i) Whether this petition is to be allowed on the ground of failure to enter

into agreement as per Section 21(2)(a) of the Act?

Heard the counsel for the petitioner. Records perused. On the side of the

petitioner, was examined P.W.1 and Ex. P.1 to Ex. P.5 were marked.

Discussion:

5. The petitioner states that he is the owner of the petition premises. It is

stated that the respondent inducted as a tenant for a monthly rent of Rs. 1,500/-.

It is stated that the tenancy is for non residential purpose. The petitioner states

that the respodent has sublet the premises to one Lakshman Singh and Prakash

without the consent of the petition. The petitioner states that at the date of

commencement of the New Act there is no tenancy agreement between the

parties. Hence, the petitioner states that the respondent is liable to be evicted as

there is no agreement between the parties as contemplated under the Act. The

petitioner further states that notice was sent to the respondent on 09.06.2019,

24.06.2019 and on 16.09.2019. It is stated that the respondent for the above

notices has sent a reply notice on 10.07.2019 and 05.10.2019 with false and

frivolous reply. It is stated that the petitioner is liable to vacate and handover

the premises on the ground of Section 21(2)(a) of the New Act.

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 XIII SCC, CHENNAI. RLTOP No. 5 of 2020.

6. The respondent admits the jural relationship with the petitioner. The

respondent denies the allegation of subletting of premises by the respondent. It

is stated that the respondent is always willing to enter into the rental agreement.

Further, the respondent states that as per Section 21(2)(a) if the landlord and

tenant has not entered into rental agreement then only the landlord is entitled to

invoke the above provision. Whereas, then the landlord or tenant has not

entered into rental agreement then this provision 21(2)(a) shall not be applied.

It is further stated that though the petitioner has alleged subleting of premises

the petitioner has not sought eviction on the ground of subletting. It is also

stated that the petitioner is the co-owner and the other co-owner is not added as

party to the case. However, the respondent states that the petitioner seeks for

enhanced rent and the respondent is willing to pay reasonable enhanced rent. It

is stated that only with regard to the dispute of increase in rent the petitioner has

filed petition for eviction and so the same is liable to be dismissed.

7. With this out set of facts, on perusal of records it is seen that the

petitioner seeks eviction on the ground of Section 21(2)(a) of the New Act

against the respondent stating that there is no valid tenancy agreement as

mandated under the Act. The respondent resist the claim and contends that this

petition is to be dismissed on the ground of non joinder of necessary party and

on the ground that the respondent is willing to enter into tenancy agreement.

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 XIII SCC, CHENNAI. RLTOP No. 5 of 2020.

Careful consideration has been given to the records and arguments placed

before this court. The respondent states that the Section 21(2)(a) itself states

that when landlord and tenant have failed to enter into rental agreement then

only it can be invoked. In this case it is stated that the respondent is willing

only the petitioner has not come forward to enter into tenancy agreement.

However, the Hon’ble High Court S. Muruganantham v/s J. Joseph in

2022 (2) CTC 219, has held categorically that the reason for non entering into

rental agreement shall not be looked into. When the parties does not hold rental

agreement as mandated under the Act then the parties are entitled to invoke

Section 21(2)(a) seeking eviction. When this has been laid by Hon’ble High

Court the respondent cannot give a new interpretation to Section 21(2)(a) of the

New Act. In addition this court would like to rely on the judgment of the

Hon’ble High Court in the decision of Asok Kumar Kothari V/s Rajiv

B. Sampat and others in C.R.P. Nos. 3951, 4168, 4211, 4212 & 4240 of 2022

dated 22.12.2022 the following observation is made regarding the contention

raised by the respondent with regard to his willingness to enter into rental

agreement with the petitioner. The relevant portion from the Hon’ble High

Court is as follows:-

“ Regarding the readiness of the revision petitioner/tenant to enter into

an agreement deserves no merit consideration. The revision petitioner/tenant

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has no enforceable right to compel the landlord to enter into a rental

agreement. In the absence of an enforceable right, Court cannot direct the

landlord to enter into a written agreement. Thus, the willingness expressed by

the tenant is an offer and acceptance is an absolute right of the landlord and

refusal would not provide any ground to claim enforcement. Thus, the ground

raised in this regard by the revision petitioner is untenable. “

8. Further, the respondent has stated that the co-owner of the property is

to be impleaded in this case. But, the provision Section 2(c) of New Act has

clearly stated that any person who receives or entitled to receive rent is a

landlord. That being so, all the owners of the property is not necessary to be a

party to the suit. Narrowing down the issue, the point to be decided is whether

the petitioner is entitled to invoke Section 21(2)(a) of the New Act and is

entitled for eviction of respondent.

9. In the present case on hand there is a jural relationship between the

parties. Further, the tenancy has commenced prior to the commencement of the

New Act. Admittedly, the nature of tenancy is oral tenancy and there is no

contradictory pleadings or evidence. Hence, at this juncture this court would

like to place its reliance on the decision of the Hon’ble Madras High Court in

S. Muruganantham v/s J. Joseph in 2022 (2) CTC 219, wherein, Hon’ble

High Court has been held that when oral tenancy is entered before the

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commencement of the Act and no written agreement in entered into between the

parties, then they are entitled for the relief under Section 21(2)(a) of the New

Act, 2017. Thus the present case on hand squarely falls under the second

contingency mentioned in the above mentioned judgment of Hon’ble Madras

High Court. For clarity the second contingency is referred below:-

“(ii) Oral tenancies created prior to the New Act and no written agreement

entered into“

10. On bare perusal of Section 21(2)(a) of the New Act, it is seen that

landlord and tenant can invoke Section 21(2)(a) on failure to enter into

agreement as per Section 4(2) of the Act. Admittedly the tenancy between the

petitioner and the respondent was entered prior to the commencement of the

Act, it is established that there is no rental agreement between the petitioner and

the respondent after the commencement of the Act. On consideration of the

facts put fourth before this court it can be seen that it is a clear case that the

petitioner and the respondent had failed to enter into agreement as per Section

4(2) and the petitioner is entitled for repossession of the petition premises as per

Section 21(2)(a) of the Act. This point is accordingly decided in favour of

petitioner.

11. In the result, this petition is allowed under section 21(2)(a) of Tamil

Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act

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 XIII SCC, CHENNAI. RLTOP No. 5 of 2020.

2017, whereas,

a. The respondent is directed to vacate and hand over the vacant

possession of the schedule premises to the petitioner within two months from

the date of receiving this order.

b. No costs.

Dictated by me to the stenographer, directly computerized by him,

corrected and pronounced by me in open court on this the 14th day of February

2023. Digitally signed

by V VISWATHA
V
Date:
VISWATHA 2023.02.14
16:59:37 +0530

XIII JUDGE
Court of Small Causes
Chennai

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 XIII SCC, CHENNAI. RLTOP No. 5 of 2020.

Petitioner's side Witness:

P.W.1 : Krishna Baskar

Petitioner side Exhibits:

Exhibits Date Documents and its nature:

Ex.P.1 09.06.2019 Letter issued by applicant to respondent
Ex.P.2 24.06.2019 Notice sent by applicant’s counsel to
respondent’s counsel
Ex.P.3 10.07.2019 Reply notice sent by respondent’s counsel to
applicant’s counsel
Ex.P.4 16.09.2019 Notice sent by applicant’s counsel to
respondent’s counsel
Ex.P.5 05.10.2019 Reply notice sent by respondent’s counsel to
applicant’s counsel

Respondent's side Witness & Exhibits: Nil

Digitally signed
by V VISWATHA
V Date:
VISWATHA 2023.02.14
16:59:44 +0530

XIII JUDGE
Court of Small Causes
Chennai

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