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2010 DIGILAW 2862 (MAD)

S. Durai v. A. B. Dhanasekar

2010-07-14

G.RAJASURIA

body2010
Judgment :- 1. Animadverting upon the order dated 30.11.2009 passed by the Appellate Authority-VII Small Causes Judge, Chennai, in R.C.A.Nos.1585 of 2003 and 1127 of 2004, confirming the order dated 10.11.2003 passed by the XI Small Causes Judge, Chennai, in RCOP Nos.276 of 2003; and the order dated 27.10.2009 passed by the same VII Small Causes Judge, Chennai, in M.P.No.570 of 2009 in R.C.A.No.1585 of 2003, these civil revision petitions are focussed. 2. Heard both sides. 3. Broadly but briefly, narratively but precisely the relevant facts which are absolutely necessary and germane for the disposal of these revisions would run thus: (i) The respondent/landlord-Dhanasekar in all the revision petitions filed the RCOP No.276 of 2003 for evicting the tenant, namely, S.Durai, who is the revision petitioner herein, on the ground of wilful default in paying the rent in respect of a non-residential building. (ii) The Rent Controller on seeing that despite the tenant having entered appearance in the RCOP, did not pay or tendered any rent, passed suo motu conditional order dated 29.10.2003 directing the tenant to deposit the rent. (iii) On finding that there was no compliance with the said order, eviction was ordered in the RCOP.No.276 of 2003 on 10.11.2003, on the ground of wilful default. (iv) Being aggrieved by and dissatisfied with the said conditional order dated 29.10.2003 directing the tenant to deposit the arrears of rent and the final eviction order dated 10.11.2003 passed in the RCOP, the tenant preferred the R.C.A.Nos.1585 of 2003 and 1127 of 2004. (v) During the pendency of those RCAs, an application M.P.No.570 of 2009 under Section 11 of the Tamil Nadu Buildings (Lease and Rent Control) Act was filed by the tenant for deposit of rent and in that conditional order was passed by the appellate authority and since the tenant did not agree for that order, he preferred the CRP No.3762 of 2009. (vi) Subsequently, the appellate authority ordered eviction in the said RCAs, consequent upon the non-compliance with the conditional order passed in the application filed under Section 11 of the Act. (vii) As against the order passed in RCA Nos.1127 of 2004 and 1585 of 2003, CRP.Nos.1137 and 817 of 2010 have been filed. 4. (vi) Subsequently, the appellate authority ordered eviction in the said RCAs, consequent upon the non-compliance with the conditional order passed in the application filed under Section 11 of the Act. (vii) As against the order passed in RCA Nos.1127 of 2004 and 1585 of 2003, CRP.Nos.1137 and 817 of 2010 have been filed. 4. The grounds of revisions in all the revisions are almost identical and the nitty-gritty of the same would run thus: (i) The Rent Controller had no suo motu power to direct the tenant to deposit the rent and that also had no power to order consequently eviction on default in paying rent as ordered earlier. (ii) The appellate Court also failed to take into account the legal implications involved in this case and simply confirmed the order of the lower Court. (iii) The tenants plea is that there were no arrears of rent at all payable by the tenant in favour of the Landlord as on the date of filing of the said RCOP for eviction; however, without going into those aspects, the Rent Controller as well as the appellate authority blindly took it for granted on mere conjectures and surmises as though the averments in the RCOP could be taken for gospel truth and mandated the tenant to deposit the arrears. 5. Reiterating the grounds of revisions, the learned Senior counsel for the revision petitioner/tenant would develop his argument, the warp and woof of them would run thus: (i) The Rent Controller is having no suo motu power under the Act to direct the tenant to deposit the arrears of rent, in the absence of any application under Section 11 of the Act filed either by the tenant or by the landlord. (ii) The Rent Controller on seeing that the tenant did not comply with the conditional order or participate in the proceedings, should have set the tenant ex-parte and recorded ex-parte evidence and based on that eviction, if he so desired, as per law, should have been ordered. But without adopting such a procedure, the Rent Controller on seeing that the conditional order having been not complied with by the tenant simply ordered eviction, warranting interference by this Court in revision. (iii) The appellate authority without going into all those aspects and the legal implications confirmed the order of the lower Court. But without adopting such a procedure, the Rent Controller on seeing that the conditional order having been not complied with by the tenant simply ordered eviction, warranting interference by this Court in revision. (iii) The appellate authority without going into all those aspects and the legal implications confirmed the order of the lower Court. Accordingly, the learned Senior counsel for the revision petitioner would pray for allowing all these three revisions and consequently setting aside the orders of both the Courts below and remitting the matter back to the Rent Controller for dealing with the matter afresh. 6. Per contra, by way of torpedoing and pulverising the arguments as put forth and set forth on the side of the tenant, the learned counsel for the respondent/landlord would submit his arguments, the gist and kernal of them would run thus: (i) The tenant is a chronic defaulter in paying rent. The very fact that the tenant did choose to file application under Section 11 of the Tamil Nadu Buildings (Lease and Rent Control) Act only at the appeal stage would speak volumes that he was not regular in paying rent in the course of the proceedings, let alone for the time being, the the nonpayment of rents anterior to the filing of the RCOP. (ii) There are catena of decisions to exemplify and demonstrate that the Court could take into account the conduct of the tenant during the pendency of the RCOP proceedings and that on seeing that the tenant is irregular in paying rent pendente lite eviction could be ordered. According to the learned counsel for the respondent/landlord there is nothing wrong on the part of the lower Courts below in ordering eviction. Therefore, he pays for dismissal of these revisions. 7. The points for consideration are as under: (i) Whether the Rent Controller was justified in passing such a conditional order suo motu and in ordering eviction straight away on seeing that such order having been not complied with, and whether the appellate Court, without applying its mind on the legal implications involved in this matter confirmed the order of the Rent Controller? (ii) Whether there is any illegality or impropriety in the procedure adopted by both the Courts below and also in passing such orders? 8. (ii) Whether there is any illegality or impropriety in the procedure adopted by both the Courts below and also in passing such orders? 8. Point Nos.(i) & (ii): The indubitable and indisputable, unarguable and ungainsayable facts would run thus: (i) The learned Rent Controller suo motu mandated the tenant to deposit the entire arrears as found detailed and delineated in the RCOP, without entertaining any evidence in this regard. At this juncture, I would like to re-produce hereunder the relevant portion of Section 11(3) and (4) of the Tamil Nadu Buildings (Lease and Rent Control) Act. "Sec.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. (2) . . . . (3) Where there is any dispute as to the amount of rent to be paid or deposited under sub-section (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. (4) If any tenant fails to pay or to deposit the rent as aforesaid, the 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." (ii) The learned Senior counsel for the tenant placing reliance on those provisions would stress upon the fact that the Rent Controller is having no suo motu power to order the tenant to deposit the arrears merely based on the averments in the RCOP, but there should be an application either by the landlord or the tenant in that regard. 9. No doubt, ex facie and prima facie the letter of the law would expound and expatiate, cannote and denote the position as highlighted by the learned Senior counsel. In my considered opinion that is a larger which need not be decided finally in this case for the simple reason that this matter could be decided on one other strong factual basis. 10. The Rent Controller, on seeing that the landlord has approached the Court with the specific averment that there were huge arrears of rent due payable by the tenant in favour of the landlord, out of benevolence suo motu passed such an order and I am at a loss to understand as to what prevented the tenant to highlight before the Court his view as such. But without in any manner participating in the proceedings, he allowed the proceedings to go further. As such, the tenant, by having a volte face and having turned turtle, now taken various pleas in order to camouflage and conceal his negligent acts of non appearance and non participation in the proceedings. In my considered opinion, the Rent Controller on seeing that the tenant was not interested in participating in the proceedings should have set him ex-parte, as per law, and recorded the evidence of the landlord and passed an ex-parte order of eviction. But in this case, such a procedure was not followed, ultimately warranting interference by this Court. 11. The appellate authority also without going into the salient features and the legal implications involved in this case simply confirmed the order of the lower Court. 12. But in this case, such a procedure was not followed, ultimately warranting interference by this Court. 11. The appellate authority also without going into the salient features and the legal implications involved in this case simply confirmed the order of the lower Court. 12. The learned counsel for the landlord by citing various decisions would develop his argument that let alone the arrears as it stood as on the date of filing of the RCOP, the tenant should have meticulously tendered the rents, which accrued during the pendency of the rent control proceedings. I could see considerable force in his submission. But the Rent Controller as well as the appellate authority, perhaps, did not adopt such a procedure. I am fully aware of the fact that Section 11(1) of the Act contemplates that if during the pendency of the rent control proceedings, if there is default in payment of rent then on that ground itself eviction could be ordered, however, in this case such a procedure has not been adopted. 13. Now the learned Senior counsel for the tenant obviously and axiomatically placing reliance on the procedural aspect of the matter tries to achieve success and get the CRPs allowed. 14. I am fully aware of the fact that there are certain procedural safe-guards which are directory and there are other procedures which are mandatory and in such a case it has to be seen as to whether the non-compliance with the provisions of the Rent Control Act concerned in this case are material procedural irregularities or only mere technical noncompliance with the formalities contemplated under the law. 15. To the risk of repetition and pleonasm, but without being tautalogous I would like to point out that the Rent Control authority was not justified in simply passing eviction order in RCOP without entertaining ex-parte evidence and recording the same. Incidentally I would like to point out that recording ex-parte evidence is not an empty formality. Time and again this Court reiterated the fact that ex-parte order does not mean that it should be an one sided order. Even after recording ex-parte evidence, the Court can very well dismiss the very petitioners case. It is not that simply because the respondent remained ex-parte, the petition has to be allowed after formally recording evidence. Time and again this Court reiterated the fact that ex-parte order does not mean that it should be an one sided order. Even after recording ex-parte evidence, the Court can very well dismiss the very petitioners case. It is not that simply because the respondent remained ex-parte, the petition has to be allowed after formally recording evidence. The Court has to apply its mind whether the evidence adduced ex-parte is sufficient to drive home the case of the petitioner. As such, the non-compliance with such a procedure in recording ex-parte evidence and considering the same on merits is fatal to the order of eviction passed by the Rent Controller and consequently, the appellate authority also was not justified in simply confirming the same. Hence, I would like to set aside the orders of both the Courts below and remit the RCOP No.276 of 2003 back to the lower Court to adhere to the procedures contemplated under the law. 16. As of now even counter has not been filed by the revision petitioner/tenant and hence, on the date to be fixed for appearance before the lower court i.e. the Rent Controller, the tenant should file the counter and within the time frame to be fixed by this Court, the matter has to be disposed of. 17. The learned counsel for the landlord would submit that the tenant succeeded in protracting the proceedings to the utmost extent and now then because of this order, he would be tempted to drag on the proceedings further, unless he is directed to pay the fair rent fixed by the Rent Controller and as confirmed by the appellate authority and by this Court in the connected C.R.P. 18. At this juncture, I would like to point out that this Court having been seized of one other C.R.P.No.1138 of 2010 and also having confirmed the order of the appellate authority in confirming the order of the Rent Controller in fixing the fair rent in a sum of Rs.2,775/- (rupees two thousand seven hundred and seventy five), I would like to mandate that the total arrears as of now should be calculated on par with the fair rent fixed and the same also shall be paid as a condition precedent for proceeding with the RCOP by the tenant, so to say the entire arrears calculated on the basis of the fair rent fixed, shall be paid by the tenant by the end of this month. The parties shall appear before the Rent Controller on 2.8.2010 and on that day counter itself should be filed by the tenant and by the end of September 2010, the RCOP shall be disposed of on merits by the learned Rent Controller. 19. In view of the fact that the tenant did not participate in the RCOP proceedings scrupulously and that because of his laches alone all these discomfiture and complications erupted, I would like to award totally a sum of Rs.10,000/-(rupees ten thousand) towards cost payable by the tenant to the landlord by the end of this month. If there is non compliance with any of the conditions set out supra, the benefit of this order would not enure to the tenant and the C.R.P. Shall stand dismissed. The civil revision petitions are ordered accordingly. No costs. Consequently, connected miscellaneous petitions are closed.