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2015 DIGILAW 434 (MAD)

C. Devi v. S. Kungumalatha

2015-01-27

K.KALYANASUNDARAM

body2015
JUDGMENT K. KALYANASUNDARAM, J. 1. Both the revisions arise out of the order passed in RCA Nos. 242 & 598 of 2014 on the file of VII Judge, Small Causes Court, Chennai confirming the order in RCOP No. 254 of 2013 and order dated 14.03.2014 in MP No. 167 of 2013 in RCOP No. 254 of 2013 on the file of XV Judge, Small Causes Court, Chennai. 2. The tenant is the revision petitioner. The respondents/landladies initiated eviction proceedings against the tenant seeking eviction under Section 10(2)(i) and 10(3)(a)(i) of Tamil Nadu Buildings (Lease & Rent Control Act). The landladies have averred in the petition that they jointly purchased the petition premises under a sale deed dated 02.12.2010 and the tenant is the vendor's sister-in-law. At the time of purchase, the tenant was living in the first floor portion of the premises and she wanted to stay as tenant for a short period. The tenant agreed to vacate the premises in the month of May 2011 and also agreed to pay rent of Rs. 7,500/- per month. Considering the relationship with the vendor, the landladies did not receive any advance. 3. It is further alleged that the tenant paid rent only upto April 2011, subsequently, failed to pay the rent from the month of May 2011 to December 2012 and the arrears payable is Rs. 1,50,000/- and the landladies require the premises for their own use and occupation. 4. The tenant resisted the eviction petition stating that when her mother-in-law purchased the property, the husband of the tenant had contributed Rs. 1,25,000/- and that amount has to be treated as advance for this lease agreement; that the rent was only Rs. 5,000/- and the tenant was paying the rent by way of cash regularly but the landladies were not in the habit of issuing receipts. It is further stated that the landladies were receiving rent till October 2012, but thereafter suddenly became hostile and admitted to dispossess with the help of musil man. Hence, the tenant lodged a police complaint and also filed O.S. No. 35 of 2012 on the file of the Asst. City Civil Court, Chennai praying for permanent injunction against the landladies. It is further stated that the requirement of the landladies are not bonafide. 5. Hence, the tenant lodged a police complaint and also filed O.S. No. 35 of 2012 on the file of the Asst. City Civil Court, Chennai praying for permanent injunction against the landladies. It is further stated that the requirement of the landladies are not bonafide. 5. Pending eviction petition, the landladies filed M.P. No. 167 of 2013 under Section 11 (4) of the Rent Control Act praying for a direction to the tenant to pay the arrears of rent from the month of May 2011 to August 2013 amounting to Rs. 1,87,500/-. The landladies calculated the arrears @ Rs. 7,500/- per month. The tenant opposed the application stating that the rent was only Rs. 5,000/- and the arrears amount has to be calculated only from November 2012. The tenant further stated that she sent letters dated 05.03.2013 and 04.07.2013 enclosing towards payment of rent for the month from November 2012 to June 2013 but they were returned with endorsement “refused”. According to the tenant, the arrears was only Rs. 45,000/-. 6. The Rent Controller, after considering the pleadings of the parties, held that the actual rent can be ascertained only after the trial and for the purpose of this petition, fixed the rent at Rs. 5,000/-, as claimed by the tenant and directed him to deposit Rs. 1,70,000/- on or before 15.04.2014. Due to the failure on the part of the tenant in complying with the condition, the rent controller allowed M.P. No. 167 of 2013 and ordered eviction in the main original petition. Aggrieved by the orders, the tenant preferred an appeal RCA No. 598 of 2014 against the order passed in MP No. 167 of 2013 and RCA No. 242 of 2014 against the order passed in the main eviction petition. 7. In the appeal, the tenant filed an application in MP No. 365 of 2014 seeking stay of further proceedings in the eviction petition. The Appellate Authority granted interim stay on condition that the tenant shall pay a sum of Rs. 80,000/- on or before 05.06.2014. Thereupon, the tenant filed MP No. 4 of 2014 seeking extension of time to comply with the conditional order. Since the petition was rejected by the Appellate Authority, the tenant preferred a revision before this Court in CRP NPD No. 2107 of 2014. This court, at the stage of admission of the revision, directed the tenant to deposit Rs. Thereupon, the tenant filed MP No. 4 of 2014 seeking extension of time to comply with the conditional order. Since the petition was rejected by the Appellate Authority, the tenant preferred a revision before this Court in CRP NPD No. 2107 of 2014. This court, at the stage of admission of the revision, directed the tenant to deposit Rs. 80,000/- on or before 16.06.2014. As the conditional order was complied with by the tenant, this court disposed of the revision with a direction to the Appellate Authority to dispose of the appeal within two months and stayed the order of eviction till then. The Appellate Authority concurring with the finding of the Rent Controller, dismissed both the appeals. Aggrieved by the order, the present revisions petitions have been filed. 8. Mr. M.L. Joseph, learned counsel for the petitioner submitted that both the authorities have not taken into consideration the period of default before directing the tenant to deposit the arrears amount. It is further submitted that according to the tenant, he paid the rent upto October 2012 and thereafter the landladies refused to receive the rent. But according to landladies, the tenant failed to pay the rent from the month of May 2011. In view of the above rival contentions, the actual period of default can be ascertained only after the trial. The learned counsel further submitted that as per the direction of this court, the tenant had deposited Rs. 80,000/- so she may be given opportunity to contest the eviction proceedings. 9. Per contra, the learned counsel for the respondents submitted that even according to the tenant, the landladies refused to receive the rent from November 2012, but till Section 11 (4) application was filed in the month of August 2013, the tenant did not take steps to deposit rent into the court. It is further submitted that the tenant filed a petition under Section 8(5) of the Act only on 27.11.2013 and that the burden is on the tenant to prove that she paid aying the rent regularly. The learned counsel further submitted that as per the provisions of the Rent Control Act, the tenant can insist the issuance of receipt for payment of rent and if it is refused, the tenant can approach the rent controller but it was not done in this case. The learned counsel further submitted that as per the provisions of the Rent Control Act, the tenant can insist the issuance of receipt for payment of rent and if it is refused, the tenant can approach the rent controller but it was not done in this case. It is further submitted that as on date, the tenant is liable to pay the arrears of Rs. 55,000/- and that the appeal filed by the tenant against the order passed under Section 11(4) of the Act is not maintainable as the tenant has not deposited the arrears of rent. 10. The obligation of tenant to pay the rent to the landlords pending eviction proceedings is no longer res intergra. I would like to refer the following decisions:- (A) In K. Maheswari vs. Ashwani Kumar, 2011 MWN (Civil) this Court has held as follows - 20. A reading of Section 11(3) shows that the necessity for an adjudication under Section 11(3) arises only in respect of the first requirement under Section 11 (1), which relates to the arrears of rent. The adjudication under Section 11(3) is not with reference to the continued and running obligation on the part of the tenant to pay future rents until the termination of the main proceedings. 21. In any event, an adjudication under Section 11(3) is necessary only when there is a dispute. The Section itself begins with the expression where there is any dispute. In respect of a continued and running obligation, which is incorporated as the second requirement under Section 11(1), there cannot be any dispute unless the tenant claims that he continued to pay the rent. In other words, only if the tenant says that he has complied with both the conditions, a dispute would arise, requiring adjudication under Section 11(3). In this case, as stated earlier, a dispute arose with regard to payment of arrears and it is resolved in a particular manner under Section 11(3). Even if I accept the stand of the respondent-tenant, in so far as this part is concerned, it is admitted here by the respondent that the second obligation imposed under Section 11(1) has not been complied with by him, from August 2007. Therefore a contingency has arisen for the Rent Controller now to pass an order under Section 11(4). Even if I accept the stand of the respondent-tenant, in so far as this part is concerned, it is admitted here by the respondent that the second obligation imposed under Section 11(1) has not been complied with by him, from August 2007. Therefore a contingency has arisen for the Rent Controller now to pass an order under Section 11(4). As a matter of fact, the obligation imposed by Section 11(1) upon the tenant to continue to pay the rent till the termination of the eviction proceedings, is actually inbuilt in every order under Section 11(3), as otherwise, the landlord will be forced to file repeated applications under Section 11(3), once in three months before the Rent Controller till the termination of the main eviction proceedings. An interpretation to Section 11(1), 11(3) and 11(4) should not result in forcing the landlord to collect all future rents during the pendency of the eviction proceedings only by filing repeated applications under Section 11(3). To put it differently, if an adjudication is made under Section 11(3) with regard to the past arrears, such an adjudication whether in favour of the landlord or against him, would encompass within itself an obligation upon the tenant to continue to pay the rent till the termination of the proceedings. While under Section 11(3), an obligation to pay the arrears of rent is by an adjudication where there is a dispute, the obligation to pay the future rent arises out of the provisions of the statute itself by virtue of the later part of Section 11(1). (B) In P.K. Periyasamy Nadar vs. S. Sakthivel, 1997 (2) CTC 241 , this court has observed as follows - 5. This revision has to be allowed on a short point. This court, on earlier occasions decided on the very same question, that appeal cannot be maintained, unless the entire arrears of rent is deposited, as required Under Section 11 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, in the case of Pichai Chetty and Others vs. M.K. Muthukrishnan, 1991 (2) L.W. 614 and in Ravichandran vs. N. Sulaiman. 6. 6. According to Section 11(1) of the Act, 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 put the date of payment of 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. (C) In A.C. Abraham Kingsley vs. Lalitha Suseelan, 2006 (4) CTC 46 this court has held thus - 9. Under Section 11(1) of the Act, no tenant against whom an application for eviction has been made by a landlord under Sec.10of the Act shall be entitled to prefer an appeal under Sec.23 of the Act against any order made by the Controller unless he paid all arrears of rent due in respect of the building up to date of deposit and continued to deposit any rent which may subsequently become due until the termination of the proceedings before the Appellate Authority. Admittedly, the tenants herein did not deposit the arrears of rent before filing the appeals and did not deposit the subsequent rents also during the proceedings before the Appellate Authority. Therefore, I find force in the submissions of the learned Senior Counsel appearing for the petitioner that the appeals should not have been heard by the Appellate Authority for the failure of the tenants to comply with the provisions of Section 11(1) of the Act. 15. In these Revision Petitions also the tenants, filed the appeals against the order passed in the applications filed under Section 11(4) of the Act and also against the consequential order passed in petitions filed under Section 10(2)(i) of the Act. Therefore depositing the entire arrears of rent is the pre-requisite for entertaining the appeal. But the Appellate Authority has not only entertained the appeals but, has also granted further time to deposit the rents which is beyond his authority and jurisdiction. Therefore depositing the entire arrears of rent is the pre-requisite for entertaining the appeal. But the Appellate Authority has not only entertained the appeals but, has also granted further time to deposit the rents which is beyond his authority and jurisdiction. The Appellate Authority gets the power of appeal only under the statute and that being so, the power of the appeal can be exercised only in consonance with the provisions contained in the statute. 11. In the present case, though the landladies have contended that the monthly rent was Rs. 7,500/- admittedly they did not produce any documentary evidence to prove same. The rent controller and the appellate authority, based on the counter filed by the respondent, fixed rent at Rs. 5,000/- per month and directed the tenant to pay the arrears of rent. As rightly contended by the learned counsel for the respondents, the tenant has not produced any material evidence to show that the rent was paid till October 2012. Even according to the tenant, the respondents/landladies refused to receive the rent from November 2012. Admittedly, till the filing of Section 11(4) application petition in the month of August 2013, the tenant has not taken steps to deposit the arrears of rent in the suit in O.S. No. 35 of 2012. 12. The rent controller, after considering the documentary evidence produced by the parties, directed the tenant to pay Rs. 1,70,000/- on or before 15.04.2012. Admittedly, the tenant without depositing the arrears amount fixed by the rent controller, filed the appeal. In the light of the judgments referred above, the appeal filed by the tenant cannot be entertained in the absence of payment of the entire arrears amount. Though the tenant has pleaded that she had paid Rs. 1,25,000/- to her mother-in-law and that the amount has to be treated as advance, the authorities have rightly rejected the contention as there was no proof for payment of the amount and the same was transferred to the landladies. 13. Further, during pendency of the of the eviction proceedings, the tenant defaulted in payment of rent. The rent control appellate authority, after independently considering the entire material evidence, held that though sufficient time was given to the tenant, she has not complied with the conditional order passed under Section 11(4) of the act and dismissed the appeals. 13. Further, during pendency of the of the eviction proceedings, the tenant defaulted in payment of rent. The rent control appellate authority, after independently considering the entire material evidence, held that though sufficient time was given to the tenant, she has not complied with the conditional order passed under Section 11(4) of the act and dismissed the appeals. I do not find any illegality or perversity in the orders of the rent controller and the appellate authority and hence both the revisions are dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.