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1996 DIGILAW 441 (MAD)

Santhi & Co v. Desigachary

1996-03-28

SRINIVASAN

body1996
Judgment : 1. The respondent is the landlord, who filed a petition under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as ‘the Act’) for fixation of fair rent. The agreed rent was Rs.425 per mensem. The Rent Controller by his order dated 30.9.1994 fixed the fair rent at Rs.2642 per mensem. The aggrieved tenant, who is the petitioner before me, has filed the appeal which is pending as R.C.A.No.136 of 1994 on the file of the Principal Subordinate Judge, Madurai, who is the Appellate Authority. During the pendency of the appeal, the respondent filed I.A.No.100 of 1995 under Section 11(4) of the Act for a direction to deposit arrears of rent on the basis of the difference between the agreed rent and the fair rent. According to the petition, a sum of Rs. 1,44,105 was due from the petitioner herein. The petition was contested by the petitioner herein, but the Principal Subordinate Judge has passed on order directing the petitioner to deposit 1/3rd of the difference between the original rent viz., Rs.425 and the enhanced rent of Rs.2,642 into court from the date of R.C.O.P. viz., 24. 1989, on of before 11. 1996. That is with regard to the period prior to his passing the order. For the future period the direction was to deposit one half of the difference every month into Court. The petitioner herein made a deposit of the arrears as directed by the Principal Subordinate Judge. That was recorded by the Principal Subordinate Judge on 11. 1996 and the petition was closed on that basis. 2. This revision petition has been filed by the tenant challenging the validity of the order passed by the principal Subordinate Judge. It is contended that the petition before the Appellate Authority was not maintainable as Section 11 would not apply to the case. Under Section 11 of the Act, a petition can be filed only when application for eviction has been made against a tenant by a landlord under Section 10 of the Act or an appeal has been preferred by the tenant under Section 23 of the Act. The Section does not make any reference to any other cases and, therefore, it is confined by its express language only to the situations. The Section does not make any reference to any other cases and, therefore, it is confined by its express language only to the situations. It follows, therefore, that the application under Section 11 of the Act could not be maintained in a proceeding arising out of a petition for fixing of fair rent under Section 4 of the Act. 3. Similar questions have been considered under two different situations by two different Benches of this Court. In Subba Rao v. Deviji Govindji, 1950 (1) M.L.J. 551 , a Division Bench held that the Rent Controller had no jurisdiction even to state the consequences of the order passed by him fixing the fair rent. In that case, the Appellate Authority directed that the fixation of fair rent would come into operation only from a particular date and it cannot have retrospective effect. The Bench set aside that direction and held that the only jurisdiction which an Appellate Authority and the Rent Controller had was to fix the fair rent and what rights accrued to the landlord and the tenant were not within their province on an application under Section 4 of the Act. 4. In R.Radha v. C.R.Govindarajulu, 1978 (91) L.W.443, another Division Bench had to consider whether an application under Section 11 could be maintained during the pendency of a revision petition in this Court. Holding that such a petition was not maintainable, the Bench said as follows:- “As we have pointed out already, S.11(1) is careful enough to pick out only two situations and deal with the same, the two situations being an application filed by the landlord under S. 10 of the Act and the tenant contesting the same before the Controller, and appeal preferred by the tenant before the Appellate Authority under S.23 of the Act against an order passed on an application by the landlord under S.10. No other situation is contemplated by the language of S.1 1 and therefore S.11 is not capabl e of general application to all proceedings under the Act before every one of the authorities functioning under the Act. As we pointed out already, S.11 deals with only two cases, the tenant contesting the application for eviction filed by the landlord under S.10, and the tenant preferring an appeal under S.23 against an order made by the Controller on the application preferred by the landlord under S.10. As we pointed out already, S.11 deals with only two cases, the tenant contesting the application for eviction filed by the landlord under S.10, and the tenant preferring an appeal under S.23 against an order made by the Controller on the application preferred by the landlord under S.10. The Civil Revision Petition preferred to this court by the landlord will not come within the scope of S.1 1(1), and, therefore, S.1 1(4) cannot be attracted. Consequently, simply as a matter of construction, we come to the conclusion that an application under S.1 1(4) can be filed only before the Rent Controller when the landlord has preferred an application under S.10 for eviction of the tenant and the tenant is seeking, to contest that application, and before the Appellate Authority when the tenant is preferring an appeal against an order of eviction passed against him on application preferred by the landlord under S.10, without paying the arrears of rent, and to no other case S.1 1(4) will have application. Comparison of S.29 of the Mysore Rent Control Act, considered by the Supreme Court, with S.11 of the Act, will further reinforce our conclusion on the scope of S.11 of the Act. S.29(1) of the Mysore Act mentioned the court before which an application under S.21 is filed, the District Judge before whom an appeal is filed and the High Court before whom a revision is filed. Yet the liability of the tenant to pay or deposit the rent was confined before the District Judge or the High Court only when he happens to pr efer or prosecute the appeal or revision and not when he happens to defend the appeal or revision, preferred or prosecuted by the landlords. S.11 of the Act refers to the Controller and the Appellate Authority and ‘the termination of the proceedings before the Controller or the Appellate Authority as the case may be.’ Ss.11(3), 11(4) and 11(5) also refer to “the Controller or the Appellate Authority as the case may be”. The High Court does not come into the picture in any of the sub-sections. Even the p roceedings before the Appellate Authority under S.1 1(1) is confined only to the appeal preferred by the tenant and does not cover the appeal preferred by the landlord. The High Court does not come into the picture in any of the sub-sections. Even the p roceedings before the Appellate Authority under S.1 1(1) is confined only to the appeal preferred by the tenant and does not cover the appeal preferred by the landlord. The meticulous case with which the Legislature has enacted S.11 will exclude the invocation of any general principle that the appeal or revision is a continuation of the original proceeding. If it was the intention of the Legislature that this provision concerning the liability of the tenant to pay or deposit the rent should apply to eve ry stage of the proceeding, the language of S.1 1(1) will be different, probably similar to the language of S.11-A of the Bihar Act, as in every stage, whether in the application filed by the landlord or in the appeal or revision, whoever preferred the same, the tenant will only be contesting the claim of the landlord for an order of eviction against him.” 5. Even a bare reading of the Section is sufficient to hold that an application under Section 11 cannot be filed in a proceeding for fixation of fair rent or an appeal arising out of such a proceeding. In the circumstances, the Appellate Authority had no jurisdiction to pass an order under Section 11 of the Act as has been done by him in this case. Consequently, the order passed by the Appellate Authority on I.A.No.100 of 1995 on 20.12.1995 is set aside and the said petition I.A.No.100 of 1995 is dismissed. The amount deposited by the petitioner shall be refunded to the petitioner immediately. There will be no order as to cost. 6. The appellate Authority is directed to dispose of R.C.A.No.136 of 1994 on merits on or before 37. 1996 and report to this Court.