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2011 DIGILAW 672 (MAD)

S. Revathy v. S. Vadevalli

2011-02-08

S.TAMILVANAN

body2011
Judgment : 1. These civil revision petitions have been preferred by the petitioner challenging the order dated 8.3.2008 passed in M.P. No. 428 of 2009 in R.C.A. No. 344 of 2009 and R.C.A. No. 344 of 2009 on the file of VIII Small Causes, Chennai allowing the order dated 15.6.2009 in R.C.O.P. No. 1960 of 2008 on the file of XIV Small Causes Court, Chennai. 2. Heard the learned counsel appearing for the revision petitioner /tenant as well as the learned counsel appearing for the respondent/landlord. 3. Mr. B. Christdas, learned counsel appearing for the revision petitioner has not disputed the fact that the revision petitioner herein is the tenant and the learned Rent Controller ordered eviction by order dated 15.6.2009, on the ground of willful default in payment of rent, under Section 10(2)(i) of the Tamil Nadu Buildings Lease and Rent Control Act. Aggrieved by which, the petitioner herein preferred appeal in R.C.A. No. 344 of 2009. However, the learned Rent Control Appellate Authority as per order dated 26.2.2010 passed in M.P. No. 428 of 2009 in R.C.A. No. 344 of 2009 directed the revision petitioner/tenant to deposit Rs. 11,400/- towards arrears of rent on or before 8.3.2010 and it was also made clear that the non compliance of the conditional order would result in eviction of the petitioner/tenant and for passing further orders, the miscellaneous petition was ordered to be posted to 9.3.2010. It is also not in dispute that the petitioner /tenant has not complied with the conditional order passed under Section 11(4) of the Rent Control Act within the time limit. The petitioner herein approached the Court below for extension of time and it came up before the Court below on 8.3.2010. Learned Rent Control Appellate Authority considering the not compliance of the order passed under Section 11(4) of the Rent Control Act ordered for eviction as a consequential order on 8.3.2010 itself, though the matter was ordered to be posted to 9.3.2010, for passing further orders. 4. Mr. B. Christdas, learned counsel appearing for the revision petitioner submitted that there is no illegality in the order as the arrears of rent was not paid. 4. Mr. B. Christdas, learned counsel appearing for the revision petitioner submitted that there is no illegality in the order as the arrears of rent was not paid. In support of his contention, learned counsel relied on the following decisions: In Sankaran Pillai v. V.P. Venuguduswami and Others AIR 1999 SC 3060 : 1999 AIR SCW 2995 wherein it is held as follows: “It is no doubt true that the expression ‘sufficient cause‘ from Section 11(4) has to be liberally construed to do substantial justice between the parties. But the expression ‘sufficient cause‘ necessarily implies an element of sincerity, bona fide and reasonableness. It has to be shown by the tenant who has not deposited the rent within time as directed by the Controller that non-deposit of the rent was beyond his control and there was no element of negligence or in action or lack of bona fides on his part in not depositing the rent within time.” In the decision in Maragathammal v. Kamalammal (2006) 4 MLJ 1685 it isheld that (Ratio decidendi); “A tenant against whom an application for eviction for eviction has been filed by the landlord under Section 10 of the Act, shall be entitled to contest said application only If such tenant deposits with the Rent Controller all the arrears of rent, before the date stipulated by the Court.” 5. The learned single judge of this Court in the decision in Iqbal and Co. v. Abdul Rahim 1995 L.W. 245 has held as follows: “Therefore, I take it, the filing of the appeal was the only ground that was raised and even in such a case, deposit was essential. That being the correct position, the mere averment in the very same affidavit that the revision petitioner was ready and willing to deposit the entire amount into Court less the admitted arrears already paid, would not in any way be helpful to the revision petitioner. He should have deposited the amount and then only could have avoided the eviction since the only ground that was stated was filing of the appeal. Therefore, on 5.9.1980, the order dated 22.8.1980 has come into being and has worked itself out. The eviction order stood unaltered in the later circumstances. By. this I mean, the later deposit can never cure the original non-compliance. Therefore, on 5.9.1980, the order dated 22.8.1980 has come into being and has worked itself out. The eviction order stood unaltered in the later circumstances. By. this I mean, the later deposit can never cure the original non-compliance. Therefore, the appeals themselves could not have been entertained unless and until the amount was deposited since sub-section (1) categorically lays down “No tenant against whom an application for eviction was made by a landlord under Section 10 shall be entitled 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 ... all arrears of rent due in respect of the building upto the date of payment or deposit, and continues to pay or deposit any rent which may subsequently become due until the termination of the proceedings.... Admittedly, at the time of preferring the appeal the arrears had not been paid or deposited in terms of Section 11(1) of the Act. Hence, the appeals themselves should not have been entertained, apart from the fact that the order passed oh 12.8.1980 which worked itself, out should not be entertained by the appellate authority. When the appeals themselves were incompetent, now the question becomes academic where there was justification in refusing to deposit the amount. This is because purely of the statutory provisions and one cannot import the general considerations of justice or equity in a case of this character. That is why I called that it makes bad law”. As contended by the learned counsel appearing for the respondent it Is a settled preposition of law that if there is any order passed under Section 11(4) the Tamil Nadu Lease and Rent Control Act, for the non-compliance of the order, within the stipulated time in depositing the amount of arrears of rent the tenant cannot raise a legal defence, under the Rent Control Act. He could have challenged the order passed under Section 11(3) of the Act or otherwise, he would have complied with the order. Without complying with the order by depositing the arrears of rent, the tenant cannot agitate the same, subsequently. As rightly contended by the learned counsel appearing for the petitioner, the subsequent payment made here in the revision, would not cure the defect. Without complying with the order by depositing the arrears of rent, the tenant cannot agitate the same, subsequently. As rightly contended by the learned counsel appearing for the petitioner, the subsequent payment made here in the revision, would not cure the defect. However, the point for determination in the revision is whether the order passed by the Court below on 8.3.2010 is legally sustainable or not. While the Court below itself had posted the matter on 9.3.2010 for passing further orders, as per order dated 26.2.2010 made in M.P. No. 428 of 2009 in the RCA, however, it is seen that the Court below passed the order on 8.3.2010 itself prior to the date of hearing on 9.3.2010. The Court, below having specifically posted the matter for hearing to 9.3.2010 for passing further orders, it would not be fair and proper to decide the same on 8.3.2010 itself merely on the ground that the petitioner had filed a miscellaneous petition before the Court below seeking extension of time. There is no bar for dismissing the petition filed by the tenant seeking extension of time on 8.3.2010, however, the Court below could not have passed order of eviction in the RCA, since the same had been posted to 9.3.2010 for passing further orders. Therefore, I am of view, that the order passed on 8.3.2010 has material irregularity and the same is not sustainable. 6. In the result, the order dated 8.3.2010 passed by the Court, below prior to the date fixed by the Court below has to be set aside as unreasonable and improper. Considering the facts and circumstances, this Court while setting aside the impugned order, to meet the ends of justice the Court below has directed to dispose the miscellaneous petition according to law, within a period of 30 days, from the date of receipt of a copy of this order according to law. While pronouncing the order, learned counsel appearing for the respondent submitted that since the petitioner/tenant has deposited the arrears of rent as directed by this Court, the respondent/landlord may be permitted to withdraw the same, without prejudice to the claim of both the parties. There is no tenable objection from the learned counsel for the petitioner in withdrawing the amount. Hence, the respondent/landlord is permitted to withdraw the amount by filing a petition. These civil revision petitions are ordered accordingly. No costs.