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2008 DIGILAW 4609 (MAD)

B. Rajmohan & Another v. R. Noorjhan

2008-12-11

M.VENUGOPAL

body2008
Judgment :- 1. The revision petitioners/respondents/tenants have filed this present civil revision petition as against the order dated 12. 2008 in R.C.A.No.29 of 2006 passed by the learned Appellate Authority viz., Principal Subordinate Judge, Chengalpattu in allowing the appeal filed by the respondent/petitioner/landlady. 2. The first appellate authority viz., Principal Subordinate Judge, Chengalpattu,while allowing R.C.A.No.29 of 2006 has inter alia observed that It is true in the main R.C.O.P the proceeding reached final stage, only because the eviction proceedings reached final stage, there is no bar to entertain Sec.11(4) petitions and that the tenant has no right to contest the eviction proceeding without paying the monthly rent and he also liable to pay the monthly rent regularly and here the respondents have not paid the monthly rents from July 2000 on wards, so they cannot be permitted to contest the case without paying the rents due and has directed the revision petitioners/tenants to deposit the monthly rent at the rate of Rs.1400/- from July 2000 to January 2006 for 67 months totalling a sum of Rs.93,800/- and has allowed the appeal. 3. 3. The learned counsel for the revision petitioners/tenants submits that the order of the learned appellate authority viz., Principal Subordinate Judge, Chengalpattu in R.C.A.No.29 of 2006 in allowing the appeal filed by the respondent/landlady is against law, weight of evidence and all probabilities of the case and that the appellate authority has not taken note of the fact that the respondent/landlady has filed the application under Section 11(4) of the said Act belatedly at the time of the trial of the main RCOP for the second time and hence the said authority ought to have dismissed the appeal thereby confirming the order of the learned Rent Controller and more over the respondent/landlady has earlier projected M.P.No.13 of 2000 under Section 11(4) of the Act and that the same has been dismissed by the learned Rent Controller and as against the said order, the landlady has not preferred any appeal and these material aspects of the matter have not been gone into by the first appellate authority viz., Principal Subordinate Judge, Chengalpattu and that the revision petitioners/tenants have become tenants under the brother of the respondent/landlady viz., R. Azeemuddin and he has received the rental advance of Rs.15,000/- and when again the revision petitioners/tenants occupied another portion they paid another sum of Rs.20,000/- as rental advance and thereafter again the said Azeemuddin received another sum of Rs.1,00,000/- by cheque from the revision petitioners and thus together the revision petitioners have paid a sum of Rs.1,35,000/- towards rental advance to the brother of the respondent/landlady and that the revision petitioners have already caused a legal notice dated 17. 2000 in Ex R2 demanding the respondent/landlady to adjust the rental advance towards rent keeping one month rent as advance and therefore, there is no default on the part of the revision petitioners /tenant and further even if there is any default for 7 ½ years, even after deducting the rental arrears for that period, the respondent/landlady is having excess amount with her and therefore there is no wilful default in regard to the payment of rent and unless there is a specific contract not to adjust the rents in the advance amount, the respondent/landlady is not entitled to claim wilful default and these aspects of the matter have not been taken into consideration by the first appellate authority viz., Principal Subordinate Judge, Chengalpattu and therefore prays for allowing the civil revision petition in the interest of justice. 4. Contending contra, the learned counsel for the respondent/landlady supported the order of the learned first appellate authority viz., Principal Subordinate Judge, Chengalpattu in dismissing the appeal and according to him, the reasons assigned by the first appellate authority are proper and sound and the same need not be interfered with by this Court sitting in revision. 5. The learned counsel for the revision petitioners/tenants cites the decision reported in K. Narasimha Rao -v- T.M.Nasimuddin Ahmed(1996)2 L.W.159) wherein the Honble Supreme Court has inter alia held that There is an enforceable right in tenant to recover excess amount from landlord or to have it adjusted for his benefit in case landlord fails to discharge his obligation of refunding that amount and that the plea of wilful default has been negatived. 6. The learned counsel for the respondent/landlady relies on the decision reported in M.S. Murugan-v- Santhakumari ( 1999 MLJ 132 ) whereby it is held that Under Section 11(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, deposit of entire arrears of rent a sine qua non order filing an appeal against order passed in petition filed under Sec.11(4) and against order in main R.C.O.P. He also cites the decision reported in Jagadeesh Prasad-v-K. Kuppusamy (2007(1)CTC 382) wherein this Court has held that The tenant cannot contend that he would neither pay rent nor deposit same in Court and yet continue to occupy tenanted property and that the tenant cannot be in occupation of the property unless rents are paid to landlord or deposited in Court. 7. 7. This Court has paid its anxious consideration to the arguments advanced by the learned counsel appearing for the parties and noticed their contentions. 8. It is an admitted that in the main R.C.O.P proceedings P.W1 and P.W.2 were examined in full at that time, M.P.No.43 of 2006 has been projected by the respondent/landlady praying for an order, directing the revision petitioners/respondents/tenants to pay the entire arrears of rent with accrued arrears of rent upto the date of payment on or before a date to be fixed by this Court etc. The revision petitioners/respondents/tenants have filed a detailed counter to M.P.No.43 of 2006 wherein they have inter alia averred that earlier M.P.No.13 of 2002 has been filed by the respondent/landlady praying for a similar relief and that the same has been dismissed by the learned Rent Controller with an observation that the revision petitioners/tenants have paid a huge amount as advance against their statutory entitlement of having only one month rent as advance and that the revision petitioners/tenants are entitled to deduct from and out of the excess advance amount remaining in the hands of the landlady and that the said order passed in M.P.No.13 of 2002 has become final and there is no change of circumstance and when the matter has reached final stage in the main RCOP, the respondent/landlady has filed M.P.No.43 of 2006 to protract proceedings. 9. A perusal of the order passed in M.P.No.13 of 2002 by the learned Rent Controller indicates that in the main proceedings after let in oral and documentary evidence on the side of the respondent/landlady then only the Court can come to the conclusion and therefore presently the revision petitioners/tenants cannot be directed to pay the arrears of rent and resultantly dismissed the application without costs. 10. It is to be noted that Section 11 of the Tamil Nadu Buildings( Lease and Rent Control) Act has no reference to the determination of any disputed question. In fact the proceedings under Section 11(4) of the said Act is to quicken the long drawn proceedings under the Act. Indeed it is to make the tenant to be diligent and belie of his statutorily obligation in regard to the payment of rent. As a matter of fact, Section 11(4) of the said Act has been introduced to protect the interest of the landlord/landlady in relation to the tenants. Indeed it is to make the tenant to be diligent and belie of his statutorily obligation in regard to the payment of rent. As a matter of fact, Section 11(4) of the said Act has been introduced to protect the interest of the landlord/landlady in relation to the tenants. The object is to effectively prevent the faulting tenant from continuing possession of the property seeking protection under the pending proceedings without performing his part of the obligations in the matter of payment of rent. 11. When M.P.No.13 of 2002 has already been dismissed by the learned Rent Controller viz., District Munsif, Alandur on 210. 2002 and when that order has become final, then, the respondent/landlady need not have filed M.P.No.43 of 2006 before the learned Rent Controller viz., District Munsif, Alandur in R.CO.P.No.57 of 2000 and that too when P.W.1 and P.W.2 have been examined in full in the main proceedings, in the considered opinion of this Court. 12. At this juncture, the learned counsel for the respondent/landlady contends that there is no bar under Rent Control Act enabling the respondent/landlady to file an application under Section 11(4) of the said Act. It is true that there is no bar for the respondent/landlady to file the present M.P.No.43 of 2006 when the main R.C.O.P No.57 of 2000 before the Rent Controller has reached the stage of part heard. Moreover the learned counsel for the respondent/landlady also contends that since the evidence of P.W1 and P.W.2 are over in the main RCOP Proceedings, then the application in M.P.No.43 of 2006 filed by the respondent/landlady is perfectly maintainable in law under the Tamil Nadu Buildings(Lease and Rent Control) Act, 1960 filing of second application under Section 11 of the said Act is not a bar. Only a prima facie material available on record must be looked into, to find out the existence of relationship of landlady and tenant between the parties. 13. Though the argument of the learned counsel for the respondent/landlady at the first blush appears to be acceptable, a deeper scrutiny of the same shows that the same cannot be countenanced. The prudent course for the respondent/landlady is to permit the learned Rent Controller to take evidence of revision petitioners/tenants and to wait for the out come of the proceedings in the main RCOP. However, such course of action has not been resorted to by the respondent/landlady. 14. The prudent course for the respondent/landlady is to permit the learned Rent Controller to take evidence of revision petitioners/tenants and to wait for the out come of the proceedings in the main RCOP. However, such course of action has not been resorted to by the respondent/landlady. 14. Be that as it may,as far as the present case is concerned, the respondent/landlady has filed an appeal RCA No.29 of 2006 as against the order passed in M.P.No.43 of 2006 dated 17. 2006 passed by the learned Rent Controller viz., District Munsif, Alandur and the first appellate authority viz., Principal Subordinate Judge, Chengalpattu has allowed the appeal for the reasons mentioned thereto. Indeed the order passed under Section 11 of Tamil Nadu Buildings (Lease and Rent Control) Act 1980 has nothing to do with the main petition in the considered opinion of this Court. 15. On a careful consideration of the respective contentions, this Court, without going into the merits of the case, is of the considered view that inasmuch as the first appellate authority has directed the revision petitioners/respondents/tenants to deposit the monthly rent at the rate of Rs.1400/-from July 2000 to January 2006 for 67 months aggregating a sum of Rs.93,800/-and the same will not cause hardship/prejudice to the revision petitioners/tenants in any manner whatsoever and in that view of the matter, this revision petition fails and the same is liable to be dismissed. 16. In the result, the civil revision petition is dismissed and the order passed by the first appellate authority in R.C.A.No.29 of 2006 in directing the revision petitioners to deposit the rents from July 2000 to January 2006 for 67 months aggregating in all Rs.93,800 is affirmed. Liberty is given to the revision petitioners/tenants to raise all factual/legal contentions including the plea of there is no jural relationship of landlady and tenant etc., and to let in oral and documentary evidence through witnesses and to exercise the enforceable right to recover excess sum from the landlady or to have it adjusted for their benefits in the manner known to law and the trial Court is directed to dispose of the main RCOP dispassionately within a period of three months from the date of receipt of a copy of this order, uninfluenced with any of the observations made by this Court in this revision. The revision petitioners/tenants are directed to deposit a sum of Rs.93,800/-as ordered by the appellate authority within a period of one month from the date of receipt of a copy of this order. The parties shall abide by the out come of the proceedings in the main RCOP and till such time the money shall not be withdrawn by the landlady and the learned Rent Controller viz., District Munsif, Alandur is directed to pass orders in this regard in the manner known to law. There shall be no order as to costs. Consequently, connected M.P.No.1 of 2008 is also dismissed.