Research › Search › Judgment

Madras High Court · body

2016 DIGILAW 1174 (MAD)

Lingam & Co. v. M. M. S. Dawood

2016-03-17

V.M.VELUMANI

body2016
ORDER This Civil Revision Petition has been filed to set aside the fair and decretal order, dated 20.01.2016, passed in I.A.No.62 of 2015 in Unregistered Rent Control Appeal, by the learned Principal Subordinate Judge, Tirunelveli. 2. The petitioner/tenant is the respondent in R.C.O.P.No.40 of 2014. The respondents herein have filed the said R.C.O.P., for eviction of the petitioner on the ground of willful default and owners' occupation. They also filed I.A.No.40 of 2015 under Section 11 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 [hereinafter referred to as “the Act”], seeking a direction to the petitioner to pay or deposit the rent of Rs.11,60,775/-and a further direction to the petitioner to continue to pay the subsequent rent. The petitioner did not file any counter. The learned Rent Controller, by order dated 03.08.2015, directed the petitioner to pay sum of Rs.11,60,775/-towards arrears of rent from April 2012 to May 2015, for 33 months, within three months from the date of receipt of a copy of that order and further directed the petitioner to continue to pay the subsequent rent, failing which, directed the petitioner to vacate and deliver vacant possession to the respondents. 3. Against the said order, dated 03.08.2015, the petitioner filed R.C.A., along with a petition in I.A.No.62 of 2015, to condone the delay of 56 days in filing the R.C.A. 4. The learned Judge considering the materials on record, dismissed the said I.A., for condonation of delay in filing the R.C.A., on the ground that the petitioner is not entitled to file an appeal unless the arrears of rent is deposited, as ordered by the learned Rent Controller. 5. Against the order dated 20.01.2016, passed in I.A.No.62 of 2015, the present civil revision petition is filed. 6. The learned Senior Counsel for the petitioner contended that the learned Principal Subordinate Judge, Tirunelveli, erred in dismissing the application to condone the delay, on the ground that the petitioner did not deposit the amounts, as ordered by the learned Rent Controller. The Judgments relied on by the learned Appellate Authority, who dismissed the application, is no longer good law, in view of the subsequent Judgment of a Division Bench of this Court reported in 2002 (1) LW 133 [M/s.A.Rafeeq Ahmed & Co. etc. Vs. The Judgments relied on by the learned Appellate Authority, who dismissed the application, is no longer good law, in view of the subsequent Judgment of a Division Bench of this Court reported in 2002 (1) LW 133 [M/s.A.Rafeeq Ahmed & Co. etc. Vs. M/s.Montari Leather Ltd., etc.], which was followed by this Court in the Judgment reported in 2013 (3) MWN (Civil) 593 [Saroja Ammal and another Vs. Ganesa Mudaliar and others]. The learned Appellate Authority failed to note that R.C.O.P.No.40 of 2014 itself is not maintainable. The learned Appellate Authority ought to have considered the reasons given by the petitioner for the delay in filing the R.C.A. 7. The learned Senior Counsel for the petitioner relied on the following Judgments: (i) 2002 (1) LW 133 [M/s.A.Rafeeq Ahmed & Co. etc. Vs. M/s.Montari Leather Ltd., etc.], wherein in paragraphs 74 and 75, it has been held as follows: “74. A reading of Section 11(3) and (4) with Section 11(1) would show that there is a purpose behind the said provision. The view that the deposit should be made as a condition precedent for preferring an appeal would mean restricting the appeal or denying the remedy of appeal, which the statute has provided for. Such a denial of appeal remedy could be, if at all, only in terms of the statutory provision, which is not the case here. In a given case where substantial amount is claimed as arrears which is disputed by the respondent and the dispute being bonafide, if the deposit is to be considered as a condition precedent, then it would result in deprivation of an appeal remedy. That is not the intendment or object of the Legislative provision. Even in a case where a direction is issued under section 11(4) and when such a direction is challenged by invoking the remedy of appeal under section 23, the contention that as a condition precedent the direction should be complied with by the tenant by depositing the amount as arrived at by the Rent Controller and if the tenant is required to deposit, then it would mean deprivation of a remedy of appeal, which again is not the intendment of the Legislature. Neither Section 11 (3) or (4), nor Section 23 would justify such a construction, viz., that rents claimed by the landlord or as adjudicated by the orders of the Rent Controller should be deposited as a condition precedent for preferring an appeal, or else the appeal cannot be entertained at all. 75. The statutory provision namely Section 11 (3) and (4) read with S. 23 should be given a plain meaning in juxtaposition to Section 11(1) read with Section 23. On a plain reading, we are not able to persuade ourselves to accept the plea that arrears of rent as adjudicated by the Rent Controller under section 11 (3) and (4) should be deposited as a condition precedent. Such a condition precedent is not provided for, nor it could be read into it. If such a condition precedent is to be construed it should have been provided specifically in section 11(3) or (4) or in section 23 or by a Rule. This is not so. The right of appeal has been recognised by the judicial decisions as a right which vests in a suit or at the time of institution of the original proceeding itself.” The Division Bench of this Court in paragraph No.76 held that at the time of granting stay, it is open to the authority to direct the tenant to deposit the admitted arrears or such portion of arrears, which deems just or proper. The said paragraph is extracted as hereunder: “76. The phraseology viz., to contest or prefer. The said expression does not mean that as a condition precedent the tenant has to deposit the entire arrears for preferring an appeal. However, we hasten to add that as and when an appeal is preferred and taken on file, subject to the tenant satisfying the requirement of the statutory provision of the Act and the Rules, it is for the Appellate Authority while granting interim stay or vacating the same to pass such order including orders directing the tenant to deposit either the admitted arrears or such portion of arrears, which it deems just or proper in his view.” (ii) 2013 (3) MWN (Civil) 593 [Saroja Ammal and another Vs. Ganesa Mudaliar and others], wherein in paragraph 8, it has been held as follows:- “8. Ganesa Mudaliar and others], wherein in paragraph 8, it has been held as follows:- “8. Now, the further question is as to whether the petitioners are bound to deposit the rent before the Appellate Court at the time of filing the appeal and whether such deposit is a condition precedent. The said question was already answered by the Hon'ble Division Bench of this Court reported in M/s. A.Rafeeq Ahmed & Co. Rep. by its Partner K. Muktar Ahamed Vs. -M/s. Montari Leather Ltd., rep. by its Chairman and Managing Director (2002, 1, L.W. 133), wherein it is found that it is not a condition precedent to deposit the arrears of rent ordered or directed to be deposited under Section 11(3) or 11(4) to prefer an appeal under Section 23 of the Act before the first Appellate Court. In fact, the Hon'ble Division Bench disapproved the views taken in very many decisions out of which, one is the decision reported in S.K.Rajapandian Vs. -A. Kesavan (1991, 2, L.W. 453), which decision has been relied on by another learned single Judge reported in A.C. ABRAHAM KINGSLEY Vs. -SHANTHI AND OTHERS (2006, 3, MLJ 829), which infact was relied on by the lower Appellate Court to reject the appeals. Therefore, in my considered view, there need not be any requirement for depositing the arrears of rent or the amount ordered by the Rent Controller under Section 11(3) and (4) while preferring the appeal before the Appellate Authority challenging the very same order.” 8. Per contra, the learned counsel for the respondents submitted that the petitioner is in arrears of rent from April 2012 till date. No amount has been paid. Various cheques issued by the petitioner for arrears of rent were dishonoured on presentation. A plain reading of Section 11 of the Act, would reveal that if a tenant fails to pay the amount as determined by the learned Rent Controller, then, he is not entitled to contest either R.C.O.P. any further or entitled to file any appeal. 9. In support of his submissions, the learned counsel for the respondents relied on the following Judgments: (i) 2011 (1) MWN (Civil) 533 [K.Maheswari Vs. Ashwani Kumar], wherein in paragraphs 14 to 16, it has been held as follows:- “14. 9. In support of his submissions, the learned counsel for the respondents relied on the following Judgments: (i) 2011 (1) MWN (Civil) 533 [K.Maheswari Vs. Ashwani Kumar], wherein in paragraphs 14 to 16, it has been held as follows:- “14. It is seen from the scheme of Section 11 that the Act imposes an obligation upon the tenant to pay all the arrears of rent before he could contest a petition for eviction. In order to achieve this objective of ensuring the payment of rent, various steps are provided under Section 11. Sub section (1) of Section 11 actually imposes two obligations upon the tenant. Section 11 (1) reads as follows:- "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...." 15. A reading of the above provision shows that it imposes two obligations upon the tenant, one in respect of the past arrears and the other in respect of future rent. In respect of the past arrears, the above provision uses the expression "unless he has paid or pays to the landlord or deposits with the Controller ..... all arrears of rent due in respect of the building upto the date of payment". In respect of future rent, the Section uses the expression "continues to pay or to deposit any rent which may subsequently become due until the termination of the proceedings". The Section also uses the conjunction "and" in between the first obligation relating to past arrears and the second obligation relating to future rent. 16. In respect of future rent, the Section uses the expression "continues to pay or to deposit any rent which may subsequently become due until the termination of the proceedings". The Section also uses the conjunction "and" in between the first obligation relating to past arrears and the second obligation relating to future rent. 16. Therefore it is clear that a tenant will be entitled to contest an application for eviction only if he satisfies both the conditions viz., (i) payment or deposit of the entire arrears upto the date of the petition and (ii) the continued payment of the future rent upto the termination of the proceedings. The termination of the proceedings would happen only when an order of eviction is passed or when the petition for eviction is thrown out.“ (ii) 2015 (1) MWN (Civil) 596 [C.Devi Vs. S.Kungumalatha and another], wherein in paragraphs 11 to 13, it has been held as follows:- “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. 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. 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.” 10. I have heard the learned counsel appearing for the parties and perused the materials on record. 11. The application in I.A.No.62 of 2015 to condone the delay of 56 days in filing the appeal, has been dismissed by the learned Rent Control Appellate Authority on the ground that the petitioner did not deposit the arrears of rent before filing the appeal. 12. A reading of Section 11 of the Act and the Judgments relied on by the learned counsel for the respondents makes it clear that the deposit of arrears of rent, as determined by the learned Rent Controller, is a condition precedent for the tenant to defend the R.C.O.P., or to file an appeal. In the Judgment reported in 2011 (1) MWN (Civil) 533 (cited supra), the issue was not with regard to filing of appeal. Therefore, the learned Judge distinguished the Judgment of the Division Bench of this Court. In the Judgment reported in 2015 (1) MWN (Civil) 596 (cited supra), before the learned Judge, the Judgment of the Division Bench of this Court was not referred to. 13. Therefore, the learned Judge distinguished the Judgment of the Division Bench of this Court. In the Judgment reported in 2015 (1) MWN (Civil) 596 (cited supra), before the learned Judge, the Judgment of the Division Bench of this Court was not referred to. 13. Therefore, following the Judgment of the Division Bench of this Court reported in 2002 (1) LW 133 [cited supra], the impugned order, dated 20.01.2016, passed in I.A.No.62 of 2015 in Unregistered Rent Control Appeal, by the learned Principal Subordinate Judge, Tirunelveli, is set aside and the said I.A. is restored to file and the learned Judge is directed to consider the said application on merits and pass orders in accordance with law. The learned Appellate Authority is also directed to take into consideration paragraph 76 of the Judgment reported in 2002 (1) LW 133 [cited supra], in the event of question of granting stay is considered. 14. With the above direction, the civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.