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2012 DIGILAW 3868 (MAD)

E. Ayyappan v. A. Maheswari

2012-09-11

S.PALANIVELU

body2012
Judgment :- 1. The petitioner is the tenant in the premises belonging to the respondent. The respondents filed R.C.O.P.No. 5 of 2004 for eviction of this petitioner. Pending enquiry, the landlords filed an application under Section 11 (1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, directing the tenant to deposit arrears of amount within the stipulated time, in default, he may be directed to vacate the premises. The learned Rent Controller viz., the Principal District Munsif, Valliyoor, on 31.01.2011, passed an order directing this petitioner to deposit the arrears of rent of Rs.1,26,000/-within a period of one month, failing which all further proceedings in the Rent Control Original Petition shall stand stopped and there will be an order directing the tenant to put the landlords in possession of the petition mentioned premises. Thereupon, this petitioner filed Rent Control Appeal before the Sub Court, Valliyoor and the Rent Control Appellate Tribunal returned the appeal by stating that how this Rent Control Appeal is maintainable, without depositing the arrears of rent as per the direction of the Rent Controller. The petitioner re-presented the appeal by stating that in the stage of admission, it is not necessary to pay arrears of rent. Again the Rent Control Appellate Tribunal returned the appeal, reiterating the condition viz., before admitting the appeal the petitioner has to pay the arrears. Hence, the petitioner has filed this revision invoking Article 227 of the Constitution of India. 2. Mr.Abdul Kadar, learned Counsel for the petitioner would submit that it is not statutory requirement for the Appellate Court to require the appellant to deposit the arrears before admission, but it is its discretion to impose any condition at the time of consideration of stay application. In support of his contention, he placed reliance upon two decisions of the Hon'ble Supreme Court. In 2004(3) CTC 378, (MGMT. of M/s.Devi Theatre v. Vishwanath Raju), the Hon'ble Supreme Court has observed as follows: "6. It is a difficult matter, in case the appellant prays for stay of the execution of the decree or for any order by way of an interim relief during the pendency of the appeal, it is open for the Court to impose any condition as it may think fit and proper in the facts and circumstances of the case. It is a difficult matter, in case the appellant prays for stay of the execution of the decree or for any order by way of an interim relief during the pendency of the appeal, it is open for the Court to impose any condition as it may think fit and proper in the facts and circumstances of the case. Otherwise imposing a condition of deposit of money subject to which an appeal may be admitted for hearing on merits, is not legally justified and such order cannot be sustained." 3. In another unreported judgement in Appeal (Civil) No.5183 of 2006, the Hon'ble Supreme Court on 24.11.2006 rendered a judgment in the case of G.L.Vijainv. K.Shankar wherein Their Lordships have observed thus: "6.It is a different matter, in case the appellant prays for stay of the execution of the decree or for any order by way of an interim relief during the pendency of the appeal; it is open for the court to impose any condition as it may think fit and proper in the facts and circumstances of the case. Otherwise imposing a condition of deposit of money subject to which an appeal may be admitted for hearing on merits, is not legally justified and such order cannot be sustained." It is, therefore, evident that while the Court can impose conditions while granting stay in exercise of its jurisdiction under Order XLI, Rule 5 of the Code of Civil Procedure, it cannot pass any such order where the appellate or revisional jurisdiction is to be exercised. We may, however, hasten to add that by saying so, we do not mean that the revision petitions are to be admitted as a matter of course. This Court, while exercising its revisional jurisdiction, may also consider the merit of the matter and may not admit the same. But, in any event, upon application of mind, if the court comes to the conclusion that it is a fit case where revisional jurisdiction should be exercised, in our opinion, no condition therefor can be imposed. Such conditions, it will bear repetition to state, can be imposed only when the Court considers the questions of grant of stay." 4. But, in any event, upon application of mind, if the court comes to the conclusion that it is a fit case where revisional jurisdiction should be exercised, in our opinion, no condition therefor can be imposed. Such conditions, it will bear repetition to state, can be imposed only when the Court considers the questions of grant of stay." 4. In view of the above said proposition of law, the Appellate Authority need not insist for depositing of arrears as directed by the Rent Controller, at the time of admission of the appeal and it is for the Appellate Authority to impose any condition as per its discretion at the time of consideration of stay. In such view of this matter, there will be a direction to the Rent Control Appellate Authority, Valliyoor to take the Rent Control Appeal on file. 5. In the result, the Civil Revision Petition is allowed directing the Rent Control Appellate Authority, Valliyoor, to take the Rent Control Appeal filed by the petitioner, if it is otherwise order, without insisting deposit of arrears and to proceed with the case in accordance with law. Consequently, connected miscellaneous petition is closed. No costs. The Registry is directed to return the original unnumbered Rent Control Appeal to the petitioner on proper acknowledgement.