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2010 DIGILAW 1053 (MAD)

M. Sivagami v. K. S. Ganesan

2010-03-17

A.SELVAM

body2010
Judgment :- The order dated 19.01.2007 passed in IA.No.78 of 2006 in RCOP.No.46 of 2006 by the Rent Controller, Madurai Town (Principal District Munsif Court), Madurai is being challenged in the present civil revision petition. 2. The respondent herein as petitioner has filed RCOP.No.46 of 2006 on the file of the Rent Controller. During the pendency of the same, he has filed the application in question in I.A.No.78 of 2006 under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, wherein the present civil revision petitioner has been shown as respondent. 3. It is stated in the petition that the petitioner has filed Rent Control Original Petition No.46 of 2006 so as to evict the respondent therein. The respondent has been enjoying the property mentioned in Rent Control Original Petition No.46 of 2006 as a tenant and the petitioner is its owner. The respondent has agreed to pay monthly rental of Rs.2,500/-and she has also agreed to pay rent of every month on or before 5th day of next month. The petitioner has used to make entries in a pocket notebook with regard to rent paid by the respondent. The respondent has paid rent for the month of February 2005 on 03.03.2005. After payment of monthly rent of February 2005, the respondent failed to pay monthly rent subsequently and now the respondent is bound to pay arrears of monthly rent for 13 months and it comes to Rs.32,500/-. Under the said circumstances, the present petition has been filed for the relief sought for in the petition. 4. In the counter filed on the side of the respondent it is stated that it is true to say that monthly rental has been fixed at Rs.2,500/-. But it is false to say that the petitioner has used to make entry in a pocket notebook with regard to the alleged payment of monthly rents. The petitioner has given receipt for monthly rents paid by the respondent. Even though the petitioner has given receipts for monthly rents paid by the respondent, he directed the respondent to vacate the property in question. The petitioner has given receipt for monthly rents paid by the respondent. Even though the petitioner has given receipts for monthly rents paid by the respondent, he directed the respondent to vacate the property in question. During December 2005, the respondent has stated to the petitioner that she cannot vacate the property in question and subsequently the petitioner has obtained rent receipts from the son of the respondent and torn the same and thereafter the respondent and her husband have given a complaint in the concerned police station. The police authority has directed them to seek remedy through concerned forum. It is false to say that the respondent is bound to pay Rs.32,500/-towards arrears of monthly rent. Since the petitioner has refused to receive rent, the respondent has sent monthly rent of December 2005 and also monthly rent of January 2006 through money order. Till January 2006, the petitioner has received monthly rent. As per agreement dated 01.01.2003 the respondent has paid Rs.40,000/- by way of advance to the petitioner. The petitioner has filed the present petition purely on false grounds and there is no merit in the petition and the same deserves dismissal. 5. The Rent Controller, Madurai Town (Principal District Munsif Court), Madurai after considering the rival contentions raised on either side has directed the respondent to pay a sum of Rs.32,500/-by way of arrears of rent on or before 27.02.2007. Further it has been directed to pay subsequent month to the petitioner regularly. Against the order passed by the Rent Controller, the present civil revision petition has been filed at the instance of the respondent as civil revision petitioner. .6. The petitioner has filed the present petition under Section 11(4) of the Tamil Nadu buildings (Lease & Rent Control) Act, 1960, wherein it is stated that the respondent has been enjoying the building in question as a tenant and monthly rent has been fixed at Rs.2,500/- and from March 2005 till March 2006, she has not paid monthly rent and thereby committed default and in order to direct her to pay arrears of rent, the present petition has been filed. 7. 7. Per contra, it has been contended on the side of the respondent/tenant that as per rent agreement dated 01.01.2003 the respondent has paid Rs.40,000/-by way of advance to the petitioner/landlord and further, it is false to contend that the respondent/tenant has committed default in paying monthly rent and therefore, the present petition deserves dismissal. 8. As stated earlier, the Rent Controller after considering the rival contentions, has allowed the petition and thereby directed the respondent/ tenant to pay a sum of Rs.32,500/- by way of arrears of monthly rent on or before 27.02.2007. 9. The learnedcounsel appearing for the revision petitioner/respondent/tenant has repeatedly contended that along with counter filed on the side of the respondent/tenant, certain vital documents have been filed. But the Rent Controller has failed to mark the same and passed the impugned order in question and therefore, the impugned order passed by the Rent controller is totally erroneous and the same is liable to be set aside. 10. The learned counsel appearing for the respondent/petitioner/landlord has also equally contended that the present petition has been filed under section 11(4) of the Tamil Nadu buildings (Lease & Rent Control) Act 1960 and the Rent controller after considering all the contentions raised on either side has allowed the petition and thereby directed the revision petitioner/ respondent/tenant to pay Rs.32,500/- towards arrears of monthly rent and also directed her to pay the same on or before 27.02.2007 and since the revision petitioner/ respondent/tenant has not complied with the condition imposed in IA.No.78 of 2006, the Rent Controller allowed the main petition filed in RCOP.No.46 of 2006. Against the order passed in RCOP.No.46 of 2006, the respondent/tenant has filed Rent Control Appeal before the concerned appellate authority and since in I.A.No.78 of 2006, the Rent Controller has passed a considered order which affects the right of the respondent/tenant, civil revision petition is not legally maintainable and only remedy is to file appeal before the Rent Control Appellate Authority and therefore, the present civil revision petition deserves dismissal on the ground of maintainability. 11. The only gravamen urged on the side of the revision petitioner/respondent/tenant is that in I.A.No.78 of 2006, along with the counter on the side of the respondent/tenant, certain documents have been filed and the same have not been marked by the Rent Controller. 12. 11. The only gravamen urged on the side of the revision petitioner/respondent/tenant is that in I.A.No.78 of 2006, along with the counter on the side of the respondent/tenant, certain documents have been filed and the same have not been marked by the Rent Controller. 12. In fact, along with the counter filed in IA.No.78 of 2006 on the side of the respondent/tenant certain vital documents have been filed. But the Rent Controller has failed to mark it and the respondent/tenant has also failed to mark the same. But at the same time, on the basis of the legal point raised by the learned counsel appearing for the respondent/petitioner/landlord, the Court has to look into as to whether the present civil revision petition is legally maintainable. .13. The present petition has been filed under section 11(4) of the Tamil Nadu buildings (Lease & Rent Control) Act, 1960 and the same reads as follows: ."If any tenant fails to pay or to deposit the rent as aforesaid, the Rent Controller or the appellate Authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building." .14. If a petition is filed under the said section, the Rent Controller or appellate authority has to decide the amount of rent under section 11(3) of the said Act and the same reads as follows: ."Where there is any dispute as to the amount of rent to be paid or deposited under sub-section (1), the Rent 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." 15. The provision of section 11(3) and 11(4) should be conjointly read together. If there is any dispute with regard to amount of rent to be paid, the same should be summarily decided under section 11(3) of the Tamil Nadu buildings (Lease & Rent Control) Act, 1960 and pass necessary order under section 11(4) of the said Act. 16. The provision of section 11(3) and 11(4) should be conjointly read together. If there is any dispute with regard to amount of rent to be paid, the same should be summarily decided under section 11(3) of the Tamil Nadu buildings (Lease & Rent Control) Act, 1960 and pass necessary order under section 11(4) of the said Act. 16. In the instant case, even though the present petition has been filed under section 11(4) of the said Act, the Rent Controller has decided the real dispute that exists between the parties and pass the impugned order under section 11(4) of the said Act. .17. At this juncture it would be more useful to look into section 23(b) of the Tamil Nadu buildings (Lease & Rent Control) Act, 1960 and the same reads as follows: ."Any person aggrieved by an order passed by the Rent Controller may, within fifteen days from the date of such order, prefer an appeal in writing to the appellate authority having jurisdiction" 118. Even from the cursory look of the said provision, it is made clear that if any order is passed by the Rent Controller and if any person is aggrieved by the same, he or she should prefer an appeal before appellate authority having jurisdiction. 119. The present petition has been filed under section 11(4) of the Tamil Nadu buildings (Lease & Rent Control) Act, 1960. The Rent Controller has passed the impugned order and thereby directed the revision petitioner/respondent/tenant to pay a sum of Rs.32,500/-on or before 27.02.2007. Therefore, it is needless to say that by virtue of the impugned order passed by the Rent Controller, the right of the revision petitioner/respondent/tenant is affected. Under the said circumstances, she has to file only appeal and not revision. 120. The learned counsel appearing for the respondent has drawn the attention of the Court to the following decisions: .(a) The first and foremost decision is reported in 1984 - 1 - MLJ – 52 (Ravi Ram Vs. Somasundaram), wherein this Court has held that "Section 11(1) read along with section 23 of the Act, which gives the right for a tenant or to a person aggrieved by an order passed by the Rent Controller to prefer an appeal, clearly visualises an appeal to be filed questioning the determination of such rent summerlily under section 11(3) of the Act. The decision reported in Iqbal and Company V. Abdul Rahim, (1982) 1 MLJ 221 does not visualise depositing of rents decided before preferring an appeal against the determination of rent under section 11(3) of the Act. That judgment clearly spells out that the rent admitted by the tenant as arrears has to be paid before any appeal has to be heard. Hence an appeal against an order rendered by the Rent Controller under section 11(3) of the Act can be heard even without the tenant depositing the arrears of rent determined by the Rent Controller." .(b) Thesecond decision is reported in 2009 (3) CTC 531 (P.Devendran and another Vs. C.Raghunatha Reddy), wherein also this Court has held that "proper course is to canvass correctness of order in appeal from final order in eviction proceedings." 21. From the cumulative reading of the decisions referred to earlier, it is needless to say that against the impugned order passed by the Rent Controller in I.A.No.78 of 2006 in RCOP.No.46 of 2006, the revision petitioner/respondent/tenant has to file only appeal and not any revision and therefore, the present civil revision petition is not at all legally maintainable. 22. The learned counsel appearing for the revision petitioner has made a feckless attempt by way of acciting the decision reported in 2002 (1) CTC 481 (Rabayakkal Vs. Singarayar), wherein this Court has held that "in a petition filed under section 11(1) of the Tamil Nadu buildings (Lease & Rent Control) Act, 1960, if the Rent Controller has failed to determine monthly rent and arrears as per the provisions contemplated under section 11(3) and thereby passed the impugned order in question, the same can be agitated by way of civil revision petition." 23. Inthe instant case, as stated in many places in I.A.No.78 of 2006 in RCOP.No.46 of 2006, the Rent Controller has thoroughly analysed and finally determined the quantum of monthly rent to the tune of Rs.2,500/- and also arrears of monthly rent. In fact, the Rent Controller has conducted enquiry under section 11(3) of the said Act and passed the impugned order under section 11(4) of the said Act. Therefore, it is quite clear that the infirmities pointed out in the decision reported in 2002 (1) CTC 481 (Rabayakkal Vs. Singarayar) are not present in the present case. In fact, the Rent Controller has conducted enquiry under section 11(3) of the said Act and passed the impugned order under section 11(4) of the said Act. Therefore, it is quite clear that the infirmities pointed out in the decision reported in 2002 (1) CTC 481 (Rabayakkal Vs. Singarayar) are not present in the present case. Under the said circumstances the dictum given in the said decision is not applicable to the facts and circumstances of the present case. 24. It has already been pointed out that the Rent Controller has conducted enquiry under section 11 (3) of the Tamil Nadu buildings (Lease & Rent Control) Act, 1960 and passed the impugned order under section 11(4) of the said Act. As per section 23 of the said Act coupled with the decisions accited on the side of the respondent/ petitioner/landlord, it is quite clear that only appeal would lie and not revision and in view of the discussion made earlier, it is very clear that the present civil revision petition deserves dismissal on the ground that the same is not maintainable, without discussing the main point urged on the side of the revision petitioner/respondent/tenant. 25. In fine, this civil revision petition deserves dismissal and accordingly is dismissed without cost. Connected Miscellaneous Petitions are also dismissed. The revision petitioner/respondent/ tenant is directed to file an appeal before the concerned appellate authority.