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2014 DIGILAW 3828 (MAD)

M. Swaminathan v. S. V. Ramesh

2014-10-14

S.VIMALA

body2014
JUDGMENT S. VIMALA, J. 1. The tenant is the Revision Petitioner. 1.1. The landlords filed petition for eviction, against the tenant in RCOP No. 115 of 2008 on the ground of personal occupation. 1.2. The said petition was ordered on the ground of owner's occupation. 1.3. Challenging the same, the tenant has filed RCA No. 437 of 2010. In the appeal, the landlords have filed M.P. No. 158 of 2013 seeking direction to the tenant to pay arrears of rent for 49 months from 01.01.2009 to 31.01.2013 @ Rs. 10,500/- per month. 1.4. In the said M.P. the tenant has contended that he spent huge sum of money towards furnishing the apartment and that the said amount is liable to be set off against the monthly rents. 1.5. The appellate court, which heard the matter, gave a finding that as the tenant did not obtain any permission from the landlords to furnish the apartment and therefore, the tenant is not entitled to set off the amount spent by way of furnishing the apartment from the rent to be payable. 1.6. With this finding, the tenant was directed to pay arrears of rent of Rs. 6,30,000/- on or before 10.02.2014, failing which further proceedings will be stopped. 1.7. The said amount was not paid. Still the order is challenged. 2. The main contention of the learned counsel for the tenant/petitioner is on the following three grounds:- (a) The provisions of Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, (hereinafter will be referred to as the Act) will not be applicable at the appellate stage and it can be utilised only during the course of trial/enquiry proceedings. (b) When the appeal itself is ripe for enquiry, the appellate court ought not to have entertained the petition under Section 11(4) of the Act. (c) The amount spent towards improvement of the building should have been ordered to be adjusted towards the rent payable. 3. In order to appreciate the contentions raised, it is necessary to look into the provisions of Section 11 of the Act in full:- "11. (c) The amount spent towards improvement of the building should have been ordered to be adjusted towards the rent payable. 3. In order to appreciate the contentions raised, it is necessary to look into the provisions of Section 11 of the Act in full:- "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 deposit, 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) The deposit of rent under Sub-section (1) shall be made within the time and in the manner prescribed. (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. (5) The amount deposited under Sub-section (1) may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him in that behalf to the Controller or the appellate authority, as the case may be." 3.1. (5) The amount deposited under Sub-section (1) may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him in that behalf to the Controller or the appellate authority, as the case may be." 3.1. Section 11(1) of the Act is to the effect that no tenant against whom an application has been made by the landlord shall be entitled to contest the application before the controller, on the application, unless he has paid or pays to the landlord or deposit with the controller or appellate authorities, as the case may be, all arrears of rent due in respect of the building up to the date of payment or deposit and continues to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of proceedings before the controller or the appellate authority (Badrunissa Begum vs. Palani Ambalan, 1990 L.W. 287 at pg. 288). 3.2. The petition under Section 11(4) of the Act, can be moved either before the trial court or before the appellate court as the language of the section plainly shows. There is no impediment to file a petition before the appellate court, even though such a petition is not filed before the trial Court. This section protects the interest of the landlord and also ensures that the tenant does not escape from payment of rent. Therefore, the contention that petition under Section 11(4) of the Act can be filed only before the trial Court and not before the appellate Court cannot be accepted. 4. The only contention of the tenant is that he has spent some amount towards improvement of the building and that it requires adjustment from the rent to be paid. No document or material has been produced to show that the landlord agreed to deduct the value of improvement from the rent payable. There is also no other proof to show that some amount has been spent towards improvement. It is open to the tenant to take separate proceedings for the recovery of the amount spent towards improvement of the building, which would again be subject to the terms and conditions agreed upon between the tenant and landlords. 5. There is also no other proof to show that some amount has been spent towards improvement. It is open to the tenant to take separate proceedings for the recovery of the amount spent towards improvement of the building, which would again be subject to the terms and conditions agreed upon between the tenant and landlords. 5. The Court below has rightly held that, in the absence of evidence to show that the landlords agreed for adjustment of the amount spent towards improvement, as against the arrears of rent, then the tenant is liable to pay the arrears of rent. 6. No doubt, the learned counsel for the tenant has submitted that the tenant would be in a position to pay the rents by instalment of which the learned counsel for the landlords was not willing, except for the grant of two to three weeks alone. 6.1. Under such circumstances, there is no other option left open to the court, except stopping the further proceedings and ordering eviction. 7. The learned counsel for the respondents/landlords relied upon the decision reported in M/s. Shanthi & Co. vs. Desigachary, 1996 (1) CTC 476 where under it has been held that provisions of Sections 11(3), 11(4) and 11(5) of the Act would be applicable whenever an application is filed by the landlords under Section 10 of the Act for eviction. Therefore, the tenant, having failed in depositing the arrears of rent, despite the opportunity granted both by the appellate court and by this Court, cannot have any grievance against the order passed by the appellate court. 8. In the result, this Civil Revision Petition is dismissed. The order passed by the appellate authority stopping the proceedings is confirmed. The matter is remanded back to the appellate court to pass further orders as the appeal is kept pending. No costs. Consequently, the connected MP is closed.