Madras High Court
Mrs.K.N.Parvathy vs Mr.P.V.N.Swmay on 22 January, 2009
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22 .01.2009 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(PD).Nos.2921 and 2922 of 2008 and M.P.Nos.1 and 1 of 2008 Mrs.K.N.Parvathy ... Petitioner Vs. Mr.P.V.N.Swmay ... Respondent Prayer: Petitions filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, to set aside the order and decretal order dated 20.06.2008 passed in M.P.Nos.403 and 402 of 2008 in M.P.No.219 of 2008 in RCA.No.230 of 2008 on the file of the VIII Small Causes, Chennai. For Petitioner : Mr.N.C.Ramesh For Respondent : Mr.A.Chidambaram COMMON ORDER
The revision petitioner/landlady has preferred these two civil revision petitions as against the order dated 20.06.2008 in M.P.Nos.403 and 402 of 2008 in M.P.No.219 of 2008 in R.C.A.No.230 of 2008 passed by the learned Appellate Authority viz., VIII Court of Small Causes, Chennai.
2.The learned Appellate Authority, while passing orders in M.P.No.402 and 403 of 2008 in R.C.A.No.230 of 2008, has inter alia observed that 'this Court find sufficient reason to grant extension of time for two days for payment of rental arrears and also for stay of execution till then and has directed the respondent/tenant to deposit a sum of Rs.30,787/- in this Court, being the amount arrived by the Rent Controller in M.P.No.491 of 2007 on or before 23.06.2008 and till then stay of further proceedings in pursuance of order dated 29.02.2008 passed in R.C.O.P.No.956 of 2007 is granted. Call on 23.06.2006.
3.The respondent/tenant has filed M.P.Nos.402 and 403 of 2008 under Rule 11 of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 before the learned Appellate Authority viz., VIII Court of Small Causes, Chennai praying for an extension of time for depositing a sum of Rs.30,787/- as per the orders passed in M.P.No.219 of 2008 in R.C.A.No.230 of 2008 dated 18.03.2008 till 31.07.2008 or within a reasonable time to be fixed by the Court and praying for the grant of stay in regard to the Delivery Warrant in E.P.No.206 of 2008 in R.C.O.P.No.956 of 2007 on the file of XIII Court of Small Causes, Chennai.
4.The revision petitioner/respondent/landlady in the common counter has inter alia stated that the respondent/ petitioner/appellant/tenant has not made out any case while seeking extension of time and also the grant of stay of delivery warrant passed in E.P.No.206 of 2008 on the file of XIII Court of Small Causes, Chennai and the respondent/ tenant has to approach only the executing Court viz., XIII Court of Small Causes, Chennai and the stay of delivery warrant relief cannot be sought for from the appellate Court and in any event, the miscellaneous petitions have been filed only in the appeal which are not maintainable in view of the earlier order passed by this Court in M.P.No.230 of 2008 dated 18.03.2008, which has already worked itself out.
5.The stand of the revision petitioner/landlady is that though conditional order has been passed in M.P.No.219 of 2008 in R.C.A.No.230 of 2008 dated 18.03.2008 directing the respondent/tenant to deposit the entire amount as directed by the learned Rent Controller on or before 04.04.2008 and posted the matter for compliance on 08.04.2008 the respondent/tenant has not complied with the same and subsequently, the interim order passed has been vacated and the revision petitioner/landlady has been constrained to file E.P.No.206 of 2008 for taking delivery of possession let out to the respondent/tenant and that the Executing Court has ordered for delivery of possession on or before 02.06.2008 and the respondent/tenant's wife prevented the execution of warrant by the bailiff and the respondent/ tenant later filed miscellaneous petition in E.P.No.206 of 2008 in R.C.O.P.No.956 of 2007 praying for stay of operation of the order for the period of 30 days so as to enable the respondent/tenant to approach the Hon'ble High Court and the learned Rent Controller by an order dated 12.06.2008 as directed the delivery of premises to be made by the respondent/tenant to the revision petitioner/landlady on or before 25.06.2008 etc.
6.It appears that the learned Rent Controller has ordered that Batta to be paid after five days but the revision petitioner/landlady has filed the Batta on 30.06.2008. After the delivery warrant which has been made ready, the revision petitioner/landlady with the help of bailiff has taken possession of the property. However, the warrant has been recalled based on the protest raised on the side of respondent/tenant.
7.The main thrust of the revision petitioner's contentions are that even though on two occasions time has been granted by the learned Rent Controller as well as by the first Appellate Authority permitting the respondent/ tenant to deposit the amount, he has not complied with the same and therefore, no indulgence can be shown to him and further that the respondent/tenant has to pay a sum of Rs.38,400/- towards for the period from 20.02.2007 to 31.05.2008 and also to pay a sum of RS.2958 as electricity consumption charges for the period from 11.05.2007 to 10.05.2008 and therefore, there are no bonafides in the applications filed by the respondent/tenant.
8.The pleas of the respondent/tenant in M.P.Nos.402 and 403 of 2008 are that he is unable to mobilise the funds for complying with the conditional order passed in M.P.NO.491 of 2007 in R.C.O.P.No.956 of 2007 dated 18.03.2008 since expected funds has not reached his hands and further that his wife is a chronic heart patient and she had to spend money available on hand towards her medical expenses and as such he has not deposited the amounts in time and in E.P.No.206 of 2008 on the file of XIII Judge, Court of Small causes, Chennai, an order of delivery has been obtained and that his advance amount of Rs.20,000/- is in the hands of the revision petitioner/landlady besides a sum of Rs.20,000/- received as hand loan and to show his bonafides he is ready and willing to pay/deposit 50% of the conditional amount of Rs.30,000/- viz., 15,000/- immediately and pray for extension of time for payment/deposit till 31.07.2008 or within a reasonable time fixed by the Court and in the meanwhile he has prayed for an interim stay of the delivery warrant in E.P.No.206 of 2008 in R.C.O.P.956 of 2007 on the file of XIII Judge, Court of Small Causes, Chennai.
9.The learned counsel for the revision petitioner urges that the learned Appellate Authority viz., VIII Judge, Court of Small Causes, Chennai has not appreciated of the fact that an conditional order has been passed for the grant of stay and that order to deposit the rent has not been complied with, then the stay order works out itself and as such, the issue of granting any extension of time in regard to the deposit of rent does not arise and further that placing reliance on Section 148 of the Civil Procedure Code in regard to the grant of extension of time by the Appellate Authority is not a correct one and that the question of bonafides has to be looked into and mere deposit of rent at the appellate stage will not amount to compliance of the earlier order passed by the Rent Controller for depositing the arrears of rent and that the deposit of Rs.30,787/- is towards the arrears of rent pertaining to the period 20.02.2007 to 20.01.2008 and thereafter, the rent relating to the period from 20.01.2008 till date has not been paid by the respondent/tenant and these have not been taken note of by the learned Appellate Authority and moreover, no documents have been filed by the respondent/tenant to establish that his wife was under some treatment and therefore, he has been prevented from depositing the arrears of rent and also that the respondent/tenant has not paid the rent towards the subsequent period and also the electricity charges and in any event, the appeal filed by the respondent/tenant is not maintainable because of non-compliance of the conditional order to deposit the rent passed by the learned Rent Controller and therefore, prays for allowing the civil revision petitions in the interest of justice.
10.The learned counsel for the revision petitioner contends that the Rent Control Act has not conferred a power upon the Tribunal/Appellate Authority to condone a violation of the provisions of the Act by making an assumptions or on compassionate grounds and in support of his contention relies on the decision in Mistry Premjibhai Vithaldas V. Ganeshbhai Keshavji (1977) 3 Supreme Court Cases 11 at page 12 wherein it is inter alia observed as follows:
"... Statutory protection can only be given in accordance with the terms on which it is permissible. The Act certainly does not confer a power upon the Court to excuse a violation of the provisions of the Act by making wrong assumptions or on compassionate grounds."
Moreover, in the aforesaid decision at page 17 in para 14 and 15 it is observed as follows:
"14.The readiness and the willingness of the tenant to pay could be found only if he had complied with the provisions of the Act. The Act does not cover the case of a person who is unable to pay owing to want of means but is otherwise 'ready and willing'. Such a case is no doubt a hard one, but, unfortunately, it does not enable courts to make a special law for such hard cases which fall outside the statutory protection.
15.We understand that the defendant-respondent is a Carpenter. If he is unable to find means to pay rent we cannot dismiss the suit for his eviction on the ground of non-payment of rent. In view of his disability, on account of alleged illness, we propose to modify the decree of the appellate court to the extent 'that he will have four months' time from April 5, 1977, before the eviction order can be executed against him provided he deposits within a month from today all the arrears due and goes on depositing Rs 30 p.m. regularly, in advance, before the 5th of each month on which his tenancy begins. He must, however, vacate the premises before August 5, 1977, and may leave it earlier if he is unable to pay the required rent regularly in advance. The decree for eviction will become executable on breach of the conditions laid down, or, after August 5, 1977."
11.He presses into service the decision M/s.a.Rafeeq Ahmed & Co. rep. By its partner K.Muktar Ahamed V. M/s.Montari Leather Ltd., rep. By its Chairman and Managing Director 2002-1-L.W.-133 wherein it is among other things observed that '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, arrears etc.'
12.On the side of revision petitioner attention of this Court is drawn to the decision in P.Lachiram V. K.N.Kumaresan 1979 (2) MLJ 135 wherein this Court has held as follows:
"The proceedings under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act are intended to accelerate the long-drawn proceedings under the Act. As eviction is possible in a case where the tenant commits wilful default in the payment of rents and particularly after the recent amendment in 1973 explaining "wilful default" as meaning non-payment or tender of rent after the issue of a notice calling for such payment of rent by the landlord, the importance of section 11 (4) has to be brought to light and in its true light."
13.Further, reliance is placed on to the decision in Kuppanna Chettiar and others V. Ramachandran and another AIR 1981 Madras 35 wherein it is inter alia observed as follows:
"... The default contemplated by the statutory provision is one occurring and existing on the date of the passing of the order for eviction by the Revenue Divisional Officer himself and not at any stage subsequent to the said order. If the cultivating tenant does not deposit the rent as directed, default has occurred and there is no question of that default being cured or wiped out by the tenant depositing the rent pursuant to any interim order of the High Court during the pendency of the revision petition preferred against the order of eviction and any such deposit made during the pendency of the proceedings in the High Court pursuant to an interim order of the High Court will be one in compliance with the interim order of the High Court and can never be a deposit in compliance with the original order of the Revenue Divisional Officer. (para 16) Thus any deposit made by the tenant in terms of the interim order of stay passed by the High Court staying the execution of the order for eviction passed by the Authorised Officer can never be tantamount to compliance with the conditional order passed by the Authorised Officer. (para 16)"
14.The learned counsel for the revision petitioner cites the decision in Iqbal and Co. by its Partner A. Mohammed Hasssin V. Abdul Rahim 95 L.W. 245 at page 246 wherein this Court has observed as follows:
"S.11 of T.N Act 18 of 1960 speaks of the payment or deposit of rent during the pendency of the proceedings for eviction. Sub-S.(1) of S.11 of the Act states that unless all the arrears of rent due in respect of the building upto the date of payment or deposit is made, it would not be open to the tenant to contest an application for eviction. This is before the original authority. Likewise, before the appellate authority also, such a payment has to be made. Sub-S.2 requires the deposit of rent to be made within the time and the manner prescribed.
In the instant case time had been specified and the manner of payment had also been prescribed. If really the tenant was serious about his appeal he should have deposited the arrears within the due date. The filing of the appeal was the only ground that was raised and even in such a case, deposit was essential. That being the correct position, the mere averment in the very same affidavit that the tenant was ready and willing to deposit the entire amount into Court less the admitted arrears already paid, would not in any way be helpful to him. He should have deposited the amount and then only could he have avoided the eviction since the only ground that was stated was the filing of the appeal. Therefore, the order under S.11(4) has come into being and has worked itself out. Therefore, the appeals themselves could not have been entertained unless and until the amount was deposited. (para 5) Admittedly, at the time of preferring the appeal, the arrears had not been paid or deposited in terms of S.11(1) of the Act. Hence, the appeals themselves should not have been entertained, apart from the fact that the order passed on 22nd August, 1980 which worked out itself, should not be entertained by the appellate authority. When the appeals themselves were incompetent, now the question becomes academic whether there was justification in refusing to deposit the amount. This is because purely of the statutory provisions and one cannot import the general considerations of justice or equity in a case of this character. (para 5)"
15.He also relies on the decision in Ravichandran V. N.Sulaiman 1996 (I) CTC 3 wherein this Court has observed that 'no appeal is maintainable unless arrears of rent is deposited as required under section 11.' Continuing further, he seeks in aid of the decision in Sankaran Pillai (dead) by LRs. V. V.P.Venuguduswami and others AIR 1999 Supreme Court 3060 wherein it is observed as follows:
"It is no doubt true that the expression 'sufficient cause' from S.11(4) has to be liberally construed to do substantial justice between the parties. But the expression 'sufficient cause' necessarily implies an element of sincerity, bona fide, and reasonableness. It has to be shown by the tenant who has not deposited the rent within time as directed by the Controller that non-deposit of the rent was beyond his control and there was no element of negligence or inaction or lack of bona fides on his part in not depositing the rent within time. (para 2) Where in the eviction suit the tenant did not deposit the arrears of rent in Court in compliance with the order, and an order of eviction was passed and the tenant did not move any application before the rent controller for revoking the order striking out defence as he could not deposit the arrears of rent on account of reasons beyond his control and on the contrary the tenant denied the relationship of landlord and tenant before the Rent Controller, the plea by tenant that since he under mistaken belief did not deposit arrears and month to month rent, default may be condoned could not be considered as 'sufficient cause' as to condone non-deposit of arrears. In such a case, the tenant's subsequent deposit of the arrears of rent before the appellate authority in appeal filed by him being requirement of law for hearing the appeal on merits, cannot be treated as bona fide deposit."
16.Contending contra, the learned counsel for the respondent/tenant submits that the authorities prescribed under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 do have the power to grant extension of time for payment of rental arrears etc. and in support of his contention he relies on the decision in J.Madan Lal, Proprietor Milan Joth (Garden Retail Shop) V. P.K.M.S.Jailani Beevi 1998 (II) CTC 727 at page 728 wherein this Court has observed that 'Rent Controller and Appellate Authorities are Courts and not persona Designata and that they have power to order amendment of pleadings.' He also relies on the decision in B.P.Khemka Pvt. Ltd., V. Birendra Kumar Bhowmick and another AIR 1987 Supreme Court 1010 wherein the Hon'ble Supreme Court has among other things observed that '... if the Court has the discretion not to strike out the defence of the tenant committing default in payment or deposit of rent as required by a provision in any Rent Restriction Act, then the Court surely has the further discretion to condone the default and extend the time for payment or deposit and such a discretion is a necessary implication of the discretion not to strike out the defence.' Furthermore, in the aforesaid decision at page 1015 in para 15 it is observed that '... The Rent Control Act of Madhya Pradesh as well as the Rent Control Act of Delhi provided that if a tenant failed to make payment or deposit as required by the Section the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application. In all these cases it has been uniformly held that the powers of discretion vested in the Rent Controller give him further right to condone the delay in deposit or payment of rent for the subsequent months.'
17.The learned counsel for the respondent/tenant has referred to the paragraph 7 of the decision in B.P.Khemka Pvt. Ltd., V. Birendra Kumar Bhowmick and another AIR 1987 Supreme Court 1010 at page 1011 wherein it is observed as follows:
"7.The appellant filed an application on June 13, 1970 under Section 148 of the Civil Procedure Code for extension of time for deposit of amount for the months of September 1968 and March 1969 so as to cover the delays that had occurred in the payment of rent for those two months. This application was dismissed by the trial court on July 30, 1970. It was thereafter the decree for eviction was passed."
18.It is pertinent to point out that Rent Court is not a Civil Court and the Civil Procedure Code as such is not applied to the controller. Furthermore, the trend of the judicial opinion is that the Code of Civil Procedure as such will not apply to the proceedings before the authorities constituted under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 except to the extent provided by the Act itself. Admittedly, there is no provision in the Act or in the Rules framed under the Tamil Nadu Buildings (Lease and Rent Control) Act for any of the provisions of the Civil Procedure Code being made applicable to the actions and proceedings instituted or taken under the Act. Indeed, there is an exclusion of the applicability of the provisions of Civil Procedure Code and where it is either made applicable or event intended to apply, provision is made to that effect. The Rent Control Act is a self-contained code.
19.At this stage, this Court points out that in the decision Kamal Kanwar Bafna V. R.G.Trading Company represented by its Proprietor R.G.Mohta (2002) (3) MLJ at page 514 it is held that 'the Rent Controller extending the time for payment by one or two days will not be improper as the learned Rent Controller has not become functus officio as main R.C.O.P. is still pending.
20.In the decision Gopal Chandra Gosh V. Renu Bala Majundar 1994 (2) MLJ at page 48 the Hon'ble Supreme Court has observed that 'the failure to condone the delay of two days in deposit has resulted in failure of justice.'
21.On a careful consideration of respective contentions, this Court is of the considered view that the learned Rent Controller viz., VIII Court of Small Causes, Chennai has the inherent power of discretion to grant extension of time for two days in regard to the payment of rental arrears and also to stay the execution after subjectively satisfying himself as to the reasons assigned by the respondent/tenant in M.P.Nos.402 and 403 of 2008 and in the instant case on hand, the learned Rent Controller viz., VIII Court of Small Causes, Chennai has exercised his discretion in a proper and prudent fashion to secure the ends of justice and resultantly, the civil revision petitions fail and the same are dismissed.
22.In the result, the Civil Revision Petitions are dismissed, leaving the parties to bear their own costs. However, the respondent/tenant is directed to pay the arrears of rent and the electricity charges till date to the revision petitioner/landlady as a statutory duty and the respondent/tenant is further directed to continue to pay the future monthly rent and the electricity charges to the revision petitioner/landlady as and when it becomes due even without any application. Liberty is given to the revision petitioner/landlady to take further steps in accordance with law before the appropriate forum in case the respondent/tenant fails to comply with the directions issued by this Court in this revision. Consequently, connected miscellaneous petitions are also dismissed.
sgl To The VIII Small Causes Court, Chennai