Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 881 (MAD)

Jayalakshmi v. Murugan

2018-03-05

V.M.VELUMANI

body2018
ORDER : 1. CRP (NPD) No.3433 of 2015 is filed against the decreetal order and fair order dated 26.02.2015 passed in RCA No.18 of 2014 on the file of the Rent Control Appellate Authority/Principal Subordinate Court at Salem confirming the decreetal order and fair order dated 18.08.2014 passed in I.A.No.20 of 2014 in RCOP No.61 of 2013 on the file of the Rent Controller/Principal-District Munsif Court, Salem. CRP (NPD) No.3434 of 2015 is filed against the decreetal order and fair order dated 26.02.2015 passed in RCA No.1 of 2015 on the file of the Rent Control Appellate Authority/Principal Subordinate Court at Salem reversing the decreetal order and fair order dated 28.10.2014 passed in RCOP No.61 of 2013 on the file of the Rent Controller/Principal-District Munsif Court, Salem. 2. In both the Civil Revision Petitions, the petitioner is the landlady and the respondents are the tenants in RCOP No.61 of 2013 on the file of Principal District Munsif Court, Salem. The issues involved in both the Civil Revision Petitions are one and the same and hence, this Common order is being passed. 3. The petitioner filed the above said RCOP against the respondents for eviction on various grounds including the ground of wilful default. The petitioner filed I.A.No.20 of 2014 under Section 11(1) (3) & (4) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960foradirection to the respondents to pay or deposit the rent amounting to a sum of Rs.77,000/-, being the arrears of rent @ Rs.3,500/- per month from May 2012 to February 2014, before the date fixed by the Court and in default, directing the respondents to vacate and deliver the vacant possession to the petitioner. The respondents filed counter and denied the contention of the petitioner that he paid rent only upto April 2012 and stated that the rent payable is not Rs.3,500/- and it is only Rs.2,000/- per month. The respondent paid rent upto November 2012 @ Rs.2,000/- per month. The petitioner refused to receive the monthly rent for the month of December 2012 and demanded enhancement of rent. The respondents sent rent @ Rs.2,000/- per month by demand draft on 03.01.2013 however the petitioner refused to receive the same and demanded the enhanced rent of Rs.3,500/- per month and respondents agreed for the same. The petitioner refused to receive the monthly rent for the month of December 2012 and demanded enhancement of rent. The respondents sent rent @ Rs.2,000/- per month by demand draft on 03.01.2013 however the petitioner refused to receive the same and demanded the enhanced rent of Rs.3,500/- per month and respondents agreed for the same. Inspite of the same, the petitioner did not receive the rent sent by the respondents and they are willing to pay the enhanced rent. 4. The learned Rent Controller, considering the averments in the affidavit, counter affidavit, materials on record, by order dated 18.08.2014 directed the respondents to pay a sum of Rs.77,000/- as arrears of rent for the period from May 2012 to February 2014 within a period of two months from the date of order and to continue to pay the rent for subsequent months @ Rs.3,500/- per month. The learned Rent Controller has further held that whether the monthly rent payable is Rs.2,000/- or Rs.3,500/- can be decided only at the time of trial. The respondent did not pay the amount within the time stipulated by the Rent Controller. The learned Rent Controller stopped the proceedings in the RCOP and ordered eviction of the respondents. 5. Against the said order dated 18.08.2014 passed inI.A.No.20 of 2014 in RCOP No.61 of 2013 and order dated 28.10.2014 passed in RCOP No.61 of 2013, the respondents filed RCA Nos.18 of 2014 and 1 of 2015 respectively. The learned Appellate Authority, considering all the materials on record, order of the learned Rent Controller and the arguments of the learned counsel for the parties, by common order dated 26.02.2015, allowed the RCA No.18 of 2014 directing the respondents to pay or deposit the rent @ Rs.2,000/- per month from December 2014 and to continue to pay for the further period. The learned Appellate Authority also held that in the interest of justice, the rate of rent is to be decided either at Rs.2,000/- or Rs.3,500/- at the time of trial in the main RCOP. The learned Appellate Authority allowed RCA No.1 of 2015 setting aside the order of the learned Rent Controller dated 28.10.2014 made in RCOP No.61 of 2013, in view of the order passed in RCA No.18 of 2014. 6. The learned Appellate Authority allowed RCA No.1 of 2015 setting aside the order of the learned Rent Controller dated 28.10.2014 made in RCOP No.61 of 2013, in view of the order passed in RCA No.18 of 2014. 6. Against the said common judgment dated 26/02/2015 made in RCA Nos.18 of 2014 and 1 of 2015, the present Civil Revision Petitions have been filed by the petitioner. 7. The learned Senior Counsel for the petitioner contended that the learned Appellate Authority failed to see that the respondents did not deposit a sum of Rs.77,000/- being the arrears of rent as ordered by the learned Rent Controller and erred in entertaining the appeal. The learned Appellate Authority erred in extending time for the respondent to deposit the arrears of rent. The learned Appellate Authority had no power to extend the time for depositing the rent. The learned Appellate Authority failed to consider the admission of the respondents that they agreed to pay the rent @ Rs.3,500/- per month in the counter statement filed in RCOP No.31 of 2013 filed by the petitioner for fixation of fair rent and referred to paragraphs 4 & 11 of the counter statement filed by the respondents in the said RCOP and Para 4 of the counter filed by the respondents in I.A.No.20 of 2014 wherein the respondents have admitted that monthly rent is Rs.3,500/-. 8. Per contra, the learned counsel appearing for the respondents contended that there is a dispute with regard to quantum of monthly rent payable by the respondents. According to the petitioner, the monthly rent is Rs.3,500/- whereas according to the respondents, the monthly rent is Rs.2,000/-.The learned Rent Controller, having held that the quantum of monthly rent can be decided only at the time of trial, erred in directing the respondents to pay or deposit the monthly rent @ Rs.3,500/- per month from May 2012 to February 2014.On the other hand, the Appellate Authority, considering all the facts in proper perspective has rightly directed the respondents to pay the monthly rent @ Rs.2000/- per month. The pre-deposit of arrears of rent, as ordered by the learned Rent Controller is not a condition precedent to file appeal against the order. Whether as per the conditional order passed by the Appellate Authority, the respondent paid rent and continues to pay rent regularly or not has to be considered in this revision. The pre-deposit of arrears of rent, as ordered by the learned Rent Controller is not a condition precedent to file appeal against the order. Whether as per the conditional order passed by the Appellate Authority, the respondent paid rent and continues to pay rent regularly or not has to be considered in this revision. Even for March 2018, the respondents have paid the rent and there is no arrears as on today and complied the order passed by the learned Appellate Authority. 9. In support of his contention, the learned counsel for the respondents relied on the judgment reported in 1984 (1) MLJ 52 [Ravi Ram v. Somasundaram] wherein it has been held as follows - 3. It is clear that the appeal filed before the appellate authority is only as against the order passed under Section 11 (3) of the Act wherein the Rent Controller has decided as to the arrears payable by the tenant Section 11 of the Act reads as follows: 11. Payment or deposit of rent during the pendency of proceedings for eviction: (1) 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 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. 4. From the above extract of Section 11, it is clear that under Section 11 (3) of the Act, the Rent Controller or the appellate authority, as the case may be, shall on application and after enquiry, determine summarily the rent to be so paid or deposited. Section 11 (3) of the Act has to be read along with Section 23 of the Act, which provides the machinery for an appeal. Section 23 of the Act reads as follows: Appeal :--(1) (a) The Government may, by general or special order notified in the Tamil Nadu Government Gazette, confer on such officers and authorities as they think fit, the powers of appellate authorities for the purpose of the Act, in such areas and in such classes of cases as may be specified in the order. (b) Any person aggrieved by an order passed by the Controller may, within fifteen days from the date of such order, prefer an appeal in writing to the appellate authority having jurisdiction. In computing the fifteen days aforesaid, the time taken to obtain a certified copy of the order appealed against shall be excluded. (2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision on the appeal. (3) The appellate authority shall call for records to the case from the Controller and after giving the parties an opportunity of being heard and. if necessary, after making such further inquiry as he thinks fit either personally or through the Controller shall decide the appeal. 5. Section 23 (1) (b) of the Act clearly states that any person aggrieved by an order passed by a Rent Controller, can prefer an appeal. if necessary, after making such further inquiry as he thinks fit either personally or through the Controller shall decide the appeal. 5. Section 23 (1) (b) of the Act clearly states that any person aggrieved by an order passed by a Rent Controller, can prefer an appeal. In Radha v. C. R. Govindarajulu, a Division Bench of this Court, while dealing with the powers under revision to pass orders under Section 11 of the Act, has observed as follows: If the argument advanced on behalf of the petitioner is to be accepted, all that a landlord to whom his tenant has not paid the rent has to do is just to file a petition under Section 10 of the Act, whether he has a good ground or not for obtaining an order of eviction against the tenant under the provisions of the Act, and thereafter to file a petition under Section 11 (4) calling upon the tenant to pay the arrears of rent and if he does not pay, to obtain an order of eviction against him. even though the ground on which he filed the application for eviction of the tenant may be totally untenable. Certainly the Legislature could not have contemplated such a situation in enacting Section 11(4) a summary remedy for recovery of arrears of rent from a tenant by the landlord in all cases, as a substitute for a suit by a landlord for the recovery of arrears of rent from his tenant. From this it is clear that the authorities constituted under the Act are not machinery for recovering the arrears of rent. If that be so, the question of paying the determined rent under Section 11 (3) of the Act is a condition precedent for filing an appeal will, in effect, run contra to the observations made in the above Bench decision. 6. Section 11 (1) read along with Section 23 of the Act, which clearly gives the right for a tenant or to a person aggrieved by an order passed by the Rent Controller to prefer an appeal, clearly visualises an appeal to be filed questioning the determination of such a rent summarily under Section 11 (3) of the Act. The decision reported in Iqbal and Company Vs. The decision reported in Iqbal and Company Vs. Abdul Rahim (1982) 1 M.L.J. 221 , does not visualise depositing of rents decided before preferring an appeal against the determination of rent under Section 11 (3) of the Act. A reading of the judgment rendered by Mohan, J, in the above decision, clearly spells out that the rent admitted by the tenant as arrears has to be paid before any appeal has to be heard. Hence, I am of the view, that an appeal against an order rendered by the Rent Controller under Section 11 (3) of the Act can be heard even without the tenant depositing the arrears of rent determined by the Rent Controller. 10. Heard the learned counsel for the petitioner as well as respondents and perused the materials available on record. 11. The first contention of the learned counsel for the petitioner is that without depositing the arrears of rent, as ordered by the learned Rent Controller, the respondents are not entitled to file appeal is contrary to well settled judicial pronouncements. Now it is well settled by various decisions of this Court that the tenant can file an appeal without depositing arrears of rent. In view of this well settled judicial pronouncement, the contention of the learned counsel for the petitioner that learned Appellate Authority has no power to extend the time for payment or deposit of arrears of rent is without merits. When learned Appellate Authority considers the appeal filed by the tenant challenging the order passed by the learned Rent Controller directing the tenants to deposit the arrears of rent and on failure on the part of the tenants to deposit the same, stop the rent control proceedings, the learned Appellate Authority has power to confirm, modify or set aside the order of learned Rent Controller. In view of such power, the learned Appellate Authority can grant time to the tenants to deposit or pay the arrears of rent to the landlord. 12. In view of such power, the learned Appellate Authority can grant time to the tenants to deposit or pay the arrears of rent to the landlord. 12. The learned counsel for the petitioner contended that the learned Appellate Authority failed to consider that the respondents themselves have admitted that monthly rent is Rs.3,500/- in the counter statement filed by them in RCOP No.31 of 2013 filed by the petitioner for fixation of rent against the respondent and the counter statement filed in the present application filed under Section 11 of Tamil Nadu Buildings (Lease and Rent Control) Act has considerable force. The learned counsel for the petitioner referred to counter filed by the respondents in RCOP No.31 of 2013 wherein the respondents have admitted that monthly rent is Rs.3,500/-.Further, from the counter affidavit filed by the respondents in the present I.A.No.20 of 2014 filed by the petitioner under Section 11 of the Act, it is seen that the respondents have admitted that they agreed to pay the monthly rent @ Rs.3,500/-.In view of such admission, the order of the learned Appellate Authority is erroneous and the same is liable to be set aside and it is hereby set aside. The respondents are liable to pay monthly rent at the rate of Rs.3,500/- per month from May 2012. The learned counsel for the respondents submitted that the respondents have paid rent at the rate of Rs.3,500/- per month up to date. The learned counsel for the petitioner did not dispute the said contention. In view of the payment of rent up to date, at the rate of Rs.3,500/- per month, the R.C.O.P is remanded back to the learned Rent Controller with a direction to dispose of the same on merits and in accordance with law, within a period of two months from the date of receipt of a copy of this order. The petitioner is permitted to withdraw the amount deposited by the respondents and the respondents are directed to pay rent on or before 5th of every month directly to the petitioner. 13. With the above direction, both the Civil Revision Petitions are disposed of. No costs.