Madras High Court
S. Kalaimani vs A. Mohaideen on 8 September, 2022
Author: R. Hemalatha
Bench: R. Hemalatha
C.R.P. No.1006 of 2020 & CMP No.5503 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.09.2022
CORAM:
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
CRP No.1006 of 2020
and
CMP No.5503 of 2020
1. S. Kalaimani
2. Pathri @ J.S. Sankar Jagadesh ... Petitioners
Vs.
A. Mohaideen ... Respondent
Prayer: Civil Revision Petition filed under Section 25 of the Tamilnadu
Building Lease and Rent Control Act 18/1960, as amended by Act
23/1973 and Act.1/1980 against the fair and decretal order passed in
R.C.A. No.8 of 2019, dated 19.10.2019, on the file of the Rent Control
Appellate Authority (Principal Sub Judge), Erode, reversing the order
passed in R.C.O.P.No.11 of 2018 dated 15.03.2019, on the file of Rent
Controller, (Principal District Munsif), Erode.
For Petitioners : Mr. V.S. Kesavan
https://www.mhc.tn.gov.in/judis
C.R.P. No.1006 of 2020 & CMP No.5503 of 2020
ORDER
This revision petition is filed against the orders passed by the Rent Control Appellate Authority in R.C.A. No.8 of 2019, dated 19.10.2019, reversing the orders of the Rent Controller in R.C.O.P.No.11 of 2018 dated 15.03.2019.
2. The revision petitioners are the landlords, while the respondent is the tenant. The respondent was inducted as a tenant on 01.10.1991 in the demised premises bearing Door No.23, Old No.16, Asma Covering, R.K.V. Road, Erode, on a monthly rent of Rs.1,300/-. The premises was let out for non residential purpose and the tenancy was oral. A sum of Rs.10,000/- was paid towards advance.
3. The tenant filed a petition in R.C.O.P No.11 of 2018 before the Rent Controller, (Principal District Munsif), Erode, under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter called as the "Act") for depositing the rents into Court on the https://www.mhc.tn.gov.in/judis C.R.P. No.1006 of 2020 & CMP No.5503 of 2020 ground that the landlords are refusing to receive rents for the tenanted premises from the month of June 2018.
4. The landlords filed a counter denying all the allegations of the petitioner / tenant and after full contest the learned Rent Controller dismissed the petition filed by the tenant under Section 8(5) of the Act on the ground that the petitioner, without following the procedures laid down under Section 8 of the Act, step by step, has straight away filed a petition under Section 8(5) of the Act.
5. Aggrieved over the same, the tenant filed an appeal in R.C.A.No.8 of 2019 before the Rent Control Appellate Authority (Principal Sub Judge), Erode. The learned Rent Control Appellate Authority, after analysing the oral and documentary evidence adduced on both sides, set aside the orders passed by the learned Rent Controller vide his order dated 15.03.2019 by observing thus:
https://www.mhc.tn.gov.in/judis C.R.P. No.1006 of 2020 & CMP No.5503 of 2020 "14.In particular in the dictum laid by the Hon'ble High court it is mentioned that the following of procedure contemplated under Section 8 is only an enabling provision and not mandatory one. When coming to the present case in hand the petitioner has not resorted to file the petition under Section 8(5) of rent control act directly without following the procedure contemplated under Section 8(2) and 8(4) of rent control act. But instead of seeking for bank account particulars the petitioner has sent the rent through the money order and immediately after refusal they have also sought for the bank account particulars. But the bank account particulars is deliberately not given by the landlord which is admitted by them in the counter itself. Hence this Court considers that the above act of the petitioner could not be no longer held as a wilful default. Further this Court do not find fault with the steps followed by the petitioner prior to filing this petition seeking to deposit the rent. Hence this Court is of the considered stands that the order of the rent controller is liable to be set aside."
6. Now the present revision petition is filed against the orders passed by the Rent Control Appellate Authority. https://www.mhc.tn.gov.in/judis C.R.P. No.1006 of 2020 & CMP No.5503 of 2020
7. Though the notice was served on the respondent and his name is printed in the cause list, there is no representation on behalf of the respondent.
8. Mr.V.S. Kesavan, learned counsel appearing for the revision petitioners contended that though the tenant did not follow the procedures prescribed under Section 8 of the Act, the learned Rent Control Appellate Authority, Erode, allowed R.C.A.No.8/2019 on the ground that the procedure contemplated under Section 8 of the Act is only an enabling provision and not a mandatory one. At this juncture, it is appropriate to extract Section 8 of the Act.
8. "[Landlord liable to give receipt for rent or advance]. - [(1) Every landlord who receives any payment towards rent by advance shall issue a receipt duly signed by him for the actual amount of rent or advance received by him.] (2) Where a landlord refuses to accept, or evades the receipt of, any rent lawfully payable to him by a tenant in respect of any building, the tenant may, by notice in writing/ https://www.mhc.tn.gov.in/judis C.R.P. No.1006 of 2020 & CMP No.5503 of 2020 require the landlord to specify within ten days from the date of receipt of the notice by him, a bank into which the rent may be deposited by the tenant to the credit of the landlord:
Provided that such bank shall be one situated in the city, town or village in which the building is situated or if there is no such bank in such city, town or village, within [five kilo metres] of the limits thereof.
Explanation. - It shall be open to the landlord to specify, from time to rime, by a written notice to the tenant and subject to the proviso aforesaid, a bank different from the one already specified by him under this sub-section.
(3) If the landlord specifies a bank as aforesaid, the tenant shall deposit the rent in the bank and shall continue to deposit in it any rent which may subsequently become due in respect of the building.
(4) If the landlord does not specify a bank as aforesaid, the tenant shall remit the rent to the landlord by money order, after deducting the money order commission.
https://www.mhc.tn.gov.in/judis C.R.P. No.1006 of 2020 & CMP No.5503 of 2020 (5) If the landlord refuses to receive the rent remitted by money order under sub-section (4), the tenant may deposit the rent before the Controller and continue to deposit with him any rent which may subsequently become due in respect of the building."
9. In the instant case the tenant sent the rent for the month of June 2018 through money order dated 02.07.2018 to the landlords and the same was returned as refused. Thereafter, he sent a notice in writing to the landlords requesting the latter to specify their bank account within ten days from the date of receipt of the notice. However, he did not receive any reply from the landlords. Thereafter, he filed a petition under Section 8(5) of the Act before the Rent Controller, Erode.
10. The learned counsel for the landlords / revision petitioners relied on the decision in "M.Eambaram Vs Khursheet Begum and Others" reported in "2019 (5) CTC 537", wherein this Court held that unless the procedure set out under Section 8 of the Act is complied with, the tenant cannot come forward to deposit the rent before the Court by way of filing an application under Section 8(5) of the Act. https://www.mhc.tn.gov.in/judis C.R.P. No.1006 of 2020 & CMP No.5503 of 2020
11. The provisions of Section 8 of the Act is very clear. As per Section 8 (2) of the Act where a landlord refuses to accept or evades receipt of any rent, the tenant should send a notice in writing requiring the landlord to specify within ten days from the date of receipt of the notice by him, the bank into which the rent may be deposited by the tenant. As per Section 8(3) of the Act, if the landlord specifies the bank, the tenant shall deposit the rent in the bank and continue to deposit in it any rent which may subsequently become due in respect of the building. As per Section 8(4) of the Act, if the landlord does not specify a bank as aforesaid, the tenant shall remit the rent to the landlord by money order, after deducting the money order commission and as per Section 8(5) of the Act, if the landlord refuses to receive the rent remitted by money order under sub-section (4), the tenant may deposit the rent before the Rent Controller.
12. In the instant case, the tenant after issuance of notice under Section 8(3) of the Act, did not send the rent through money order to the https://www.mhc.tn.gov.in/judis C.R.P. No.1006 of 2020 & CMP No.5503 of 2020 landlords. On the contrary, he had straight away come up with the petition under Section 8(5) of the Act.
13. The decision relied on by the Rent Control Appellate Authority, namely, "Rajalinga Chettiar Vs Nataraja Mudaliar" reported in "(1995) 2 LW 211" would not apply to the facts of the present case since that was a case for wilful default in payment of rents. In such circumstances, it was held that Section 8 is only an enabling provision and not a mandatory requirement. "Minor Rajakumari Vs N.V.Natarajan" reported in "(1994) 1 LW 340" relied on by the Rent Control Appellate Authority, again is a case under wilful default in payment of rents.
14. In the decision in "E.Palanisamy Vs Palanisamy (D) by Lrs and Others" reported in "2002 (4) CTC 572" it has been held thus ;
"The statue contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a pre-condition for https://www.mhc.tn.gov.in/judis C.R.P. No.1006 of 2020 & CMP No.5503 of 2020 the next step. The tenant has to observe the procedure as prescribed in the statue. A strict compliance of the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in Court. The last step can come only after the earlier steps have been by the tenant. We are forfeited in this view by the decisions of this Court in Kuldeep Singh V. Ganpat Lal & Another, 1996(1) SCC 243 and M.Bhaskar V. J.Venkatarama Naidu, 1996 (6) SCC 228."
15. Admittedly, the tenant did not follow the procedure prescribed under Section 8 of the Act as he did not tender the rent through money order to the landlords after issuing notice under Section 8(3) of the Act. Therefore, the Civil Revision Petition is liable to be allowed.
16. In the result,
(i) The civil revision petition is allowed. No costs. consequently connected miscellaneous petition is closed.
(ii) The orders passed by the Rent Control Appellate Authority (Principal Sub Judge), Erode, dated 19.10.2019, in R.C.A. No.8 of 2019, is set aside.
https://www.mhc.tn.gov.in/judis C.R.P. No.1006 of 2020 & CMP No.5503 of 2020
(iii) The orders dated 15.03.2019 passed in RCOP No.11 of 2018 by the Rent Controller (Principal District Munsif), Erode, is upheld.
08.09.2022
Index : Yes/No
Internet : Yes/No
Speaking/non speaking
bga
To
1. The Rent Controller (Principal District Munsif), Erode.
2. Rent Control Appellate Authority (Principal Sub Judge), Erode.
3. The Section Officer, VR Section, High Court, Madras. https://www.mhc.tn.gov.in/judis C.R.P. No.1006 of 2020 & CMP No.5503 of 2020 R.HEMALATHA, J., bga CRP No.1006 of 2020 and CMP No.5503 of 2020 08.09.2022 https://www.mhc.tn.gov.in/judis