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2008 DIGILAW 4345 (MAD)

K. Maheswari v. Ashwani Kumar

2008-11-24

V.RAMASUBRAMANIAN

body2008
Judgment :- This civil revision petition arises out of an order passed by the Rent Controller under Section 11(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, (hereinafter referred to as the "Act") and modified by the appellate authority under Section 23 of the Act. 2. Heard Mr. A. Venugopal, learned counsel appearing for the petitioner and Mr.Samir Shah, learned counsel appearing for the respondent. 3. The petitioner filed R.C.O.P.No.1108 of 2004 on the file of the Rent Controller against the respondent herein seeking eviction on the grounds of willful default and acts of waste. The period of default complained of was from March, 2004 to May, 2004, totally amounting to Rs.1,41,000/- calculated at the rate of the admitted rent of Rs.47,000/-per month. In the counter to the eviction petition, the respondent did not deny non-payment of the rent. The respondent took a stand that certain modifications and alterations to the building were carried out by him and that by consent the rent payable for the period was set off. 4. Thereafter the petitioner filed an application in M.P.No.164 of 2005 under Section 11 (3) of the Act for a direction to the respondent to make payment of the rental arrears from March 2004 upto January 2005. In the said application, the Rent Controller passed an order dated 8. 2005 directing the respondent to pay a total amount of Rs.5,64,000/-representing the rental arrears from July 2004 to June 2005 at the admitted rate of Rs.Rs.47,000/- per month. 5. Challenging the order of the Rent Controller, the respondent fled an appeal in R.C.A.No.949 of 2005. In the appeal, the respondent took a stand that a rental advance of Rs.3 lakhs was lying with the petitioner and that during the pendency of the appeal, a sum of Rs.2,18,000/- was also paid. On the ground that the petitioner/landlady was entitled to retain only one month rent as advance, the appellate authority adjusted out of the advance amount of Rs.3 lakhs a sum of Rs.2,53,000/-towards the rental arrears. The appellate authority also adjusted the amount paid during the pendency of the appeal viz., Rs.2,18,000/- and after adjusting both the above amounts, from out of the amount of Rs.5,64,000/- determined by the Rent Controller, the appellate authority ordered the respondent/tenant to make payment of only the balance of Rs.93,000/-to the petitioner/landlady. The appellate authority also adjusted the amount paid during the pendency of the appeal viz., Rs.2,18,000/- and after adjusting both the above amounts, from out of the amount of Rs.5,64,000/- determined by the Rent Controller, the appellate authority ordered the respondent/tenant to make payment of only the balance of Rs.93,000/-to the petitioner/landlady. In other words, the order of the Rent controller directing the payment of Rs.5,64,000/- was modified by the appellate authority with a direction to make payment of only Rs.93,000/-because of the above adjustments. It is against the said modification order passed by the appellate authority that the landlady is before this Court. 6. The order of the Appellate Authority is challenged by the petitioner/landlady primarily on three grounds viz., (i) that the adjustment of advance in excess of one month rent, was not correct; (ii) that the payments made by the respondent during the pendency of the appeal were actually made towards a decree suffered by him in O.S.No.4031 of 2004 towards arrears of rent, interest, maintenance charges etc.; and (iii) that at any rate, the Appellate Authority ought to have seen that future rents, after the institution of the rent control proceedings, have also not been paid. 7. In so far as the first contention is concerned, I do not find anything wrong in the order of the Appellate Authority, directing the adjustment of the advance amount in excess of one month rent lying with the petitioner/landlady, towards arrears of rent. But in so far as the second contention is concerned, it is true that the petitioner/landlady obtained a money decree in O.S.No.4031 of 2004, for recovery of arrears of rent together with interest at the contractual rate specified in the Tenancy Agreement. But the dispute with regard to the same has not attained finality since the respondent claims to have filed a petition to set aside the ex parte decree passed in the suit. 8. As a matter of fact, the learned counsel for the petitioner filed a statement of accounts, as per which the respondent is due to pay arrears of rent to the extent of Rs.36,98,814/-, as on 11. 2008. But the respondent-tenant filed a written statement showing that he is due to pay only a sum of Rs.16,129/-as on 8. 2007. Mr.Samir Shah, learned counsel for the respondent submitted that his client did not pay any rent after 8. 2007. 2008. But the respondent-tenant filed a written statement showing that he is due to pay only a sum of Rs.16,129/-as on 8. 2007. Mr.Samir Shah, learned counsel for the respondent submitted that his client did not pay any rent after 8. 2007. I do not know how such a vast difference between the two statement of accounts have arisen. However, I will not get into the controversy as to the quantum of arrears of rent, as it is beyond the scope of the present revision petition. 9. But it is admitted by Mr.Samir Shah, learned counsel for the respondent, that the respondent-tenant did not pay any rent after August 2007 and this is why the statement of accounts filed by him does not reflect any payment after August 2007. It is also admitted that the agreed rent for the premises was Rs.47,000/-per month. As seen from the statement of accounts filed by the respondent-tenant, he has adjusted the entire rental advance except one month rental advance. He has also adjusted all the amounts paid towards satisfaction of the decree in O.S.No.4031 of 2004. Even after adjustment of all those amounts, by the very admission of the respondent-tenant, he was still liable to pay Rs.16,129/-as on 8. 2007 and the monthly rent for 15 months from August 2007 till October 2008. 10. When I put a question to Mr.Samir Shah, learned counsel for the respondent-tenant as to why even the admitted rent of Rs.47,000/-per month was not paid for the past 15 months from August 2007, the learned counsel replied that the provisions of Section 11 (3) and Section 11 (4), cannot be invoked at the appellate stage or the revisional stage and that they are confined only to past arrears. To substantiate the said contention, the learned counsel for the respondent-tenant relied upon two Division Bench judgments of this Court viz., (i) R. Radha Vs. C.R. Govindarajulu { AIR 1978 Mad 399 } and (ii) M/s.Rafeeq Ahmed & Co. Vs. Montari Leather Ltd { 2002 (1) LW 133 }. 11. The decision in R. Radhas case, is on the point that when a revision petition under Section 25 of the Act, is pending before the High Court, an application under Section 11 .(4) of the Act, was not maintainable. Vs. Montari Leather Ltd { 2002 (1) LW 133 }. 11. The decision in R. Radhas case, is on the point that when a revision petition under Section 25 of the Act, is pending before the High Court, an application under Section 11 .(4) of the Act, was not maintainable. Such a view was taken by the Division Bench on the ground that Section 11 (1) deals only with two situations viz., (i) where the tenant is contesting an application for eviction and (ii) where an appeal is preferred by the tenant against an order of eviction under Section 23. The said view was taken by the Division Bench on account of the fact that the original proceedings for eviction were dismissed both by the Rent Controller and by the Appellate Authority and the landlord was on revision before the High Court against the final orders passed. During the pendency of the revision, the landlord filed a miscellaneous petition under Section 11 (4). It is in such circumstances that the Division Bench held that the CMP pending the revision petition was not maintainable. In this case, we are not concerned with the question as to whether the petitioner-landlady can invoke Section 11 (3) pending the present revision petition. The petitioner-landlady has not come up with any application under Section 11 .(3) pending this revision. Therefore the Division Bench decision is not applicable to the case on hand. 12. In the other Division Bench decision (A.Rafeeq Ahmad case), the Court was concerned only with the question as to whether the deposit of arrears of rent was a condition precedent for entertaining an appeal under Section 23 against the orders passed under Section 11 (3) and 11 (4). We are not here concerned with the question whether the tenant is obliged to deposit the arrears of rent before filing an appeal under Section 23 against the orders passed under Section 11 (3) and 11 (4). Therefore the said decision is not applicable to the case on hand. 13. As we have seen from the narration of facts, the learned counsel for the respondent-tenant has admitted that even the admitted rent of Rs.47,000/- per month has not been paid for the past 15 months from August 2007. Whether this is a point that could be taken note of while dealing with the present Civil Revision Petition, is actually the question that now arises. Whether this is a point that could be taken note of while dealing with the present Civil Revision Petition, is actually the question that now arises. 14. It is seen from the scheme of Section 11 that the Act imposes an obligation upon the tenant to pay all the arrears of rent before he could contest a petition for eviction. In order to achieve this objective of ensuring the payment of rent, various steps are provided under Section 11. Sub section (1) of Section 11 actually imposes two obligations upon the tenant. Section 11 (1) reads as follows:- "11. Payment or deposit of rent during the pendency of proceedings for eviction – No tenant against whom an application for eviction has been made by a landlord under section 10 shall be entitled to contest the application before the Controller under that Section, or to prefer any appeal under Section 23 against any order made by the Controller on the application, unless he has paid or pays to the landlord, or deposits with the Controller or the Appellate Authority, as the case may be, all arrears of rent due in respect of the building up to the date of payment or deposits, and continues to pay or to deposit any rent which may subsequently become due in respect of the building until the termination of the proceedings before the Controller or the appellate Authority, as the case may be...." 15. A reading of the above provision shows that it imposes two obligations upon the tenant, one in respect of the past arrears and the other in respect of future rent. In respect of the past arrears, the above provision uses the expression "unless he has paid or pays to the landlord or deposits with the Controller ..... all arrears of rent due in respect of the building upto the date of payment". In respect of future rent, the Section uses the expression "continues to pay or to deposit any rent which may subsequently become due until the termination of the proceedings". The Section also uses the conjunction "and" in between the first obligation relating to past arrears and the second obligation relating to future rent. 16. In respect of future rent, the Section uses the expression "continues to pay or to deposit any rent which may subsequently become due until the termination of the proceedings". The Section also uses the conjunction "and" in between the first obligation relating to past arrears and the second obligation relating to future rent. 16. Therefore it is clear that a tenant will be entitled to contest an application for eviction only if he satisfies both the conditions viz., (i) payment or deposit of the entire arrears upto the date of the petition and (ii) the continued payment of the future rent upto the termination of the proceedings. The termination of the proceedings would happen only when an order of eviction is passed or when the petition for eviction is thrown out. .17. In the present case, admittedly the main Eviction Petition in RCOP No.1108 of 2004 is still pending. Therefore the respondent-tenant has an obligation to satisfy both the above requirements. Though there is a dispute between the parties as to whether the first requirement relating to payment of arrears of rent is satisfied or not, there is no dispute between the parties that the second requirement is not satisfied from August 2007. Therefore even if the entire contention of the respondent-tenant is accepted to conclude that he has paid all rental arrears upto 8. 2007, he has by his own admission, not complied with the second requirement. Hence the contingency for stopping all further proceedings and ordering the eviction of the tenant in terms of Section 11 (4) has arisen in this case. 18. Mr.Samir Shah, learned counsel for the respondent-tenant contended that the petitioner-landlady has not taken out any application under Section 11 (3) before the Rent Controller in respect of the rent payable from August 2007 and that unless such an application was taken out before the Rent Controller and an order passed, the consequential order of eviction cannot be passed under Section 11 (4). .19. But such a contention is misconceived. I have extracted Section 11 (1) in one of the previous paragraphs. Section 11 (2) prescribes that the deposit of rent under sub section (1) should be made within the time and in the manner prescribed. .19. But such a contention is misconceived. I have extracted Section 11 (1) in one of the previous paragraphs. Section 11 (2) prescribes that the deposit of rent under sub section (1) should be made within the time and in the manner prescribed. Section 11 (3) which relates to the adjudication of the question of arrears, reads as follows:- ."Where there is any dispute as to the amount of rent to be paid or deposited under subsection (1) the Controller or the Appellate Authority, as the case may be, shall, on application made to him either by the tenant or by the landlord, and after making such inquiry as he deems necessary, determine summarily the rent to be so paid or deposited." 20. A reading of Section 11 (3) shows that the necessity for an adjudication under Section 11 (3) arises only in respect of the first requirement under Section 11 (1), which relates to the arrears of rent. The adjudication under Section 11 (3) is not with reference to the continued and running obligation on the part of the tenant to pay future rents until the termination of the main proceedings. .21. In any event, an adjudication under Section 11 (3) is necessary only when there is a dispute. The Section itself begins with the expression "where there is any dispute". In respect of a continued and running obligation, which is incorporated as the second requirement under Section 11 (1), there cannot be any dispute unless the tenant claims that he continued to pay the rent. In other words, only if the tenant says that he has complied with both the conditions, a dispute would arise, requiring adjudication under Section 11 (3). In this case, as stated earlier, a dispute arose with regard to payment of arrears and it is resolved in a particular manner under Section 11 (3). Even if I accept the stand of the respondent-tenant, in so far as this part is concerned, it is admitted here by the respondent that the second obligation imposed under Section 11 (1) has not been complied with by him, from August 2007. Therefore a contingency has arisen for the Rent Controller now to pass an order under Section 11 (4). Therefore a contingency has arisen for the Rent Controller now to pass an order under Section 11 (4). As a matter of fact, the obligation imposed by Section 11 (1) upon the tenant to continue to pay the rent till the termination of the eviction proceedings, is actually inbuilt in every order under Section 11 (3), as otherwise, the landlord will be forced to file repeated applications under Section 11 (3), once in three months before the Rent Controller till the termination of the main eviction proceedings. An interpretation to Section 11 (1), 11 (3) and 11 (4) should not result in forcing the landlord to collect all future rents during the pendency of the eviction proceedings only by filing repeated applications under Section 11 (3). To put it differently, if an adjudication is made under Section 11 (3) with regard to the past arrears, such an adjudication whether in favour of the landlord or against him, would encompass within itself an obligation upon the tenant to continue to pay the rent till the termination of the proceedings. While under Section 11 (3), an obligation to pay the arrears of rent is by an adjudication where there is a dispute, the obligation to pay the future rent arises out of the provisions of the statute itself by virtue of the later part of Section 11 (1). 22. In view of the above, the respondent-tenant is obliged to suffer an order under Section 11 (4) due to his own admission before this Court that even the admitted rent has not been paid for the past 15 months. In such circumstances, I have no alternative except to direct the Rent Controller to take note of the failure of the tenant to satisfy the second requirement of Section 11 (1) and to pass necessary consequential order under Section 11 (4). 23. Accordingly this Civil Revision Petition is disposed of, without going into the dispute relating to past arrears, but directing the Rent Controller viz., the XVI Judge of the Court of Small Causes, Chennai, to pass appropriate consequential orders under Section 11 (4) of the Act, in M.P.No.164 of 2005 in RCOP No.1108 of 2004, within one month from the date of receipt of a copy of this order. There will be no order as to costs. Consequently connected miscellaneous petition is closed.