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2018 DIGILAW 2203 (MAD)

Srinivasalu v. M. Zeenathunnissa

2018-07-20

P.T.ASHA

body2018
ORDER : P.T. Asha, J. 1. The tenant is the revision petitioner before this Court challenging the order passed in M.P. No. 313 of 2010 in R.C.A. No. 89 of 2007 on the file of the learned VII Judge, Small Causes Court, Chennai in and by which the respondent was directed to deposit the arrears of rent for a period of 01.02.2005 to 31.10.2010 at the rate of Rs. 5,500/- per month totaling a sum of Rs. 3,79,500 on or before 09.12.2010 to the credit of the Rent Control Appeal besides giving directions to deposit the future lease rentals till date of the disposal of the Rent Control Appeal. 2. The respondent/landlord had filed a petition through her Power Agent in R.C.O.P. No. 1963 of 2004 on the file of the learned XV Small Causes Court, Chennai for evicting the petitioner herein for will fully defaulting in the payment of rents for the period of 01.05.2003 to 01.08.2004. The respondent would contend that the petitioner herein was a tenant in respect of a portion in the fourth floor of the premises belonging to the petitioner on a monthly rental of Rs. 5,500/- which is exclusive of the electricity consumption charges. The learned counsel appearing for the petitioner would contend that the petitioner was a chronic defaulter and there were arrears of rent for 16 months totaling a sum of Rs. 88,000/- and that despite notice sent on 29.02.2004, the petitioner/tenant had not come forward to vacate the premises. 3. The petitioner herein had countered this petition by contending that he had been inducted as a tenant in the year 2000 and that he has been regular in the payment of the monthly rents and that it was on account of his business crisis that he had committed a default and he would also contend that the landlord was in the habit of receiving the rents in lump sums. Therefore, he would contend that he is not a willful defaulter. Though, the petitioner/tenant had not questioned the locus of the Power Agent in filing the rent control petition, the Rent Controller had dismissed the rent control petition on the ground that since the power was not marked, the Court was unable to peruse the same and therefore the Court held that the rent control petition was not maintainable. Though, the petitioner/tenant had not questioned the locus of the Power Agent in filing the rent control petition, the Rent Controller had dismissed the rent control petition on the ground that since the power was not marked, the Court was unable to peruse the same and therefore the Court held that the rent control petition was not maintainable. Challenging this order the respondent/landlord had filed R.C.A. No. 89 of 2007 in the month of June 2006 and in the appeal one of the grounds that was raised was that the Rent Controller had overlooked the power filed along with the Rent Control Petition on the basis of which the Rent Control Petition had been taken on file. 4. Since the petitioner did not pay the rent from 01.02.2005 (pending the rent control proceedings), the respondent took out an application under Section 11 (4) of the Tamil Nadu Buildings (Lease and Rent Control) Act (herein after called the Act) directing the petitioner/tenant to pay a sum of Rs. 3,41,000/- being the rent due at the rate of Rs. 5,500/- per month from 01.02.2005 to 31.03.2010 and to direct the petitioner to continue paying the rent. This petition was filed on 15.04.2010 nearly 4 years after the filing of the Rent Control Appeal. The learned VI Small Causes Judge(Appellate Authority) Chennai by his order dated 09.11.2010 directed the petitioner to deposit a sum of Rs. 3,79,500/- being the arrears payable for the period 01.02.2005 to 31.10.2010 on or before 09.12.2010 and continue depositing the rents pending disposal of the Rent Control Appeal. Challenging this order the petitioner has come forward with the present revision. 5. Mr. K.S. Ganesh Babu, learned counsel appearing for the petitioner would submit that very application is not maintainable inasmuch as the rent control petition had been dismissed on the ground of maintainability and the appeal has not been filed by the tenant but only by the land lord and therefore the application filed under Section 11 of the Tamil Nadu Buildings (lease and rent control) Act, 1960 (herein after referred to as Act) cannot be maintained. In support of his argument has stated the following judgments: (1) 91 L.W. 443 (R. Radha v. C.R. Govindarajulu) (2) 1988 (1) L.W. 382 (Murugaiya Konar and others v. Daniel Nursing Home rep. by its Trustee Selvaraj Daniel) (3) 2010 (3) TLNJ 169 (Civil)(T. Vijayakumar v. R. Chandra) 6. In support of his argument has stated the following judgments: (1) 91 L.W. 443 (R. Radha v. C.R. Govindarajulu) (2) 1988 (1) L.W. 382 (Murugaiya Konar and others v. Daniel Nursing Home rep. by its Trustee Selvaraj Daniel) (3) 2010 (3) TLNJ 169 (Civil)(T. Vijayakumar v. R. Chandra) 6. In the judgment first cited a Division Bench of this Hon'ble Court has held that a reading of Section 11(1) of the Act would make it clear that the provision of Section 11 of the Act would apply only under two contingencies: a) When the application for eviction under Section 10 of the Act is pending before the learned Rent Controller and (b) When the appeal is preferred by the tenant under Section 23 of the Act to the learned Appellate Authority. He therefore contended that the petition filed under Section 11 (4) of the Act in an appeal filed by him, the tenant, was not maintainable. The judgment second cited indicates that the petition under Section 11 of the Act cannot be invoked, even in a case were the petition that is the subject matter of revision is an application as against the order refusing to set aside an ex-parte order of eviction. In the last judgment that is cited the Section 11 (4) of the Act, petition is filed in a case were the tenant has denied the landlord-tenant relationship which was negatived by the learned Rent Controller and as against which an appeal was filed before the Appellate Court. The Appellate Authority allowed this application as against which the tenant came by way of revision. This Court held that when there is already a issue regarding the existence of landlord-tenant relationship the question of invoking the provisions of Section 11 of the Act will not apply. 7. Mr. S. Natana Rajan, learned counsel who appeared on behalf of the respondent/landlord would submit that the petition that is now subject matter of this revision is not strictly an application under Section 11 (4) of the Act since the landlord is only seeking to have the rents deposited into Court as the tenant is squatting in the property without paying a penny from 01.02.2005 till date which is a period of 10 years and 4 months. 8. 8. The learned counsel appearing for the respondent would submit that if the petition was one under Section 11(4) of the Act, the respondent/landlord would have directed stay of all further proceedings till such time as the tenant deposited the rent or to show sufficient cause to the contrary and direct the petitioner to put the respondent into possession of the buildings. He would further contend that the petitioner had, pending the rent control proceeding, paid a sum of Rs. 99,000/- in compliance of orders passed in M.P. No. 219 of 2005 in R.C.O.P. No. 1963 of 2004 which was an application taken out under Section 11 (4) of the Act. The learned counsel appearing for the respondent would argue that the petitioner herein cannot be allowed to squat on the property without paying rents particularly when the petitioner accepts the respondent as his land lady and the fact that he is a tenant on a monthly rental of Rs. 5,500/-. 9. Heard both sides. The present case appears to be a classic case of a tenant taking advantage of a technical ground to continue to squat on the property without paying any rent whatsoever. A perusal of the papers would clearly indicate that nowhere in his counter in the rent control petition did the petitioner/tenant question the authority of the respondent's Power Agent to institute or proceed with the rent control proceedings. Had such a defense been raised the respondent/landlady would have taken adequate measures to substantiate the same. The petitioner/tenant had also, incompliance of the orders passed in an application filed under Section 11 (4) of the Act, before the learned Rent Controller paid a sum of Rs. 99,000/-. After this amount to date no further payment has been made by the petitioner/tenant. 10. The tenant is legally bound to pay the rents in respect of the property which he is in possession without any demand being made by the landlord. This obligation on the part of the tenant is further fortified by the provisions of Section 8 and 9 of the Act which stipulates that in cases of refusal on the part of the landlord to receive the rent, remedy is available to the tenant to deposit the rents into Court, after following the procedure prescribed thereunder. Failure to adopt this course would tantamount to committing willful default. Failure to adopt this course would tantamount to committing willful default. This provision has been incorporated to ensure not only that the landlord does not unreasonably refuse to receive the rent, but also to ensure that a tenant continues to pay the rent without default. 11. As regards the case on hand, it is an admitted fact that the petitioner/tenant has not paid the rents from the period of 01.02.2005 to date, but continues to occupy the property. It is no doubt true that the landlord cannot move Section 11 (4) petition in an appeal not filed by the tenant as held by a Division Bench of this Court in Vol. 91 L. W. 443 (R. Radha v. C.R. Govindarajulu). However, on a perusal of the impugned petition it is seen that the language as used does not strictly conform to the provision of Section 11 (4) of the Act but is simplicitor an Interlocutory Application directing a defaulting tenant to deposit the entire arrears into Court and which as on date is a sum of Rs. 8,85,000/- and odd for a period of 13 years 5 months. It is also seen that the impugned petition has been filed 4 years after the filing of the appeal since the petitioner had not cleared the arrears and paid the monthly rentals. 12. A chronic and willful defaulter cannot use a technical defense to avoid paying the rents. The conduct of the petitioner through out the proceedings right from the filing of the rent control petition to date clearly shows that he is a wilful defaulter and does not have any intention to pay the rents. 13. In the judgments filed by the petitioner, the petitions also contained a prayer for being put in possession of the demised premises. In the case on hand, the relief that is sought for is only a deposit of the arrears and the continued deposit of the future monthly rentals. Therefore, the argument of the petitioner that the order of the learned Appellate Authority is erroneous cannot be countenanced particularly when such defence is made by a chronic defaulter. In the case on hand, the relief that is sought for is only a deposit of the arrears and the continued deposit of the future monthly rentals. Therefore, the argument of the petitioner that the order of the learned Appellate Authority is erroneous cannot be countenanced particularly when such defence is made by a chronic defaulter. This Court while exercising its jurisdiction under Section 25 of the Act is called upon to satisfy itself about the correctness, legality and propriety of any decision or order passed by the Authority below and this Court is satisfied that the Appellate Authority has rightly allowed the petition filed by the respondent herein. It is also to be taken into consideration that the present revision is filed by the Tenant and even pending this revision for the past 8 years the petitioner/tenant has not paid even a month's rent. 14. In the result, the Civil Revision Petition is dismissed and the petitioner is directed to deposit the entire arrears from the period 01.02.2005 to date and continue depositing the rents to the credit of the learned VII Small Causes Judge (Appellate Authority), Chennai. 15. Considering the fact that the appeal is of the year 2007, the learned Appellate Authority is directed to dispose of the appeal within a period of three (3) months from the date of receipt of a copy of this order. Consequently connected miscellaneous petition is closed.