Madras High Court
M.Y. Mohamed Ismail vs Sashi Sachdev, Bharat Surigical ... on 25 June, 1994
Equivalent citations: (1994)2MLJ511
ORDER Thanikkkachalam, J.
1. The tenant is the petitioner herein. The landlord filed a petition for eviction against the tenant on the grounds of wilful default in payment of rent and owner's occupation under Sections 10(2)(i) and 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, as amended by Act 23 of 1973 and by Act 1 of 1980 (hereinafter referred to as 'the Act?). During the pendency of the eviction petition, the landlord filed a petition under Section 11(4) of the Act to collect the arrears of rent payable by the tenant, amounting to Rs. 21,000 from June, 1991 to December, 1991. The tenant filed a counter alleging that there is no relationship of landlord and tenant between the petitioner and the respondent in the eviction petition. The tenant also submitted that he was depositing the rent in the bank as per the passbook issued by the bank. Such deposit was made in his own name. According to the tenant, he need not pay the rent to the landlord since the petition premises was purchased by him and the landlord together on 24.2.1981. According to the tenant, the landlord also filed a suit O.S. No. 722 of 1992 on the file of the V Assistant Judge, City Civil Court at Madras. Therefore, it was submitted that the petition M.P. No. 422 of 1992 filed under Section 11(4) of the Act is liable to be dismissed. In the petition filed under Section 11(4) of the Act, the Rent Controller passed an order dated 22.9.1992 directing the tenant to deposit a sum of Rs. 21,000 on or before 12.30.1992. The petition was posted for hearing on 13.10.1992. Thereafter, the tenant sought for extension of time for depositing the rent. Accordingly, time was extended till 27.10.1992 and the petition was posted for hearing on 28.10.1992. In the meanwhile the tenant filed an appeal against the order passed in M.P. No. 442 of 1992 in R.C.A. No. 1107 of 1992 before the Rent Control Appellate Authority. In the said appeal, the tenant obtained an order of interim stay, The tenant also deposited a sum of Rs. 48,000 towards the arrears of rent upto September, 1992 on 24.11.1992. In the appeal the tenant filed M.P. No. 1137 of 1993 for permission to file additional documents. After September, 1992 according to the landlord the tenant has not paid the rent. On 24.12.1992 the tenant filed M.P. Nos. 23and 24 of 1993 for permission to deposit future rents. But these petitions were allowed to be dismissed by default. Subsequently, the appeal filed by the tenant was dismissed by the Rent Control Appellate Authority. It is against that order, the present revision has been preferred by the tenant.
2. Learned Counsel appearing for the petitioner/ tenant submitted as under:
The petitioner herein is the co-owner along with respondent herein with regard to the petition premises. Therefore, he is not liable to pay the rent to the respondent. Rs. 3,000 per month was paid not towards the rent for the petition period, but it was paid towards the interest due on the amount of Rs. 1,00,000 borrowed by the petitioner herein. Since there is bona fide dispute between the petitioner and the respondent herein over the title to the petition premises, the petitioner herein cannot be asked to pay the rent to the respondent. The authorities below failed to render a considered order even though the petitioner herein alleged that there is relationship of landlord and tenant between the petitioner and the respondent herein. The petitioner herein filed O.S. No. 6689 of 1993 on the file of the City Civil Court, Madras for a declaration that the decree obtained by the respondent herein in O.S. No. 7830 of 1983 is not binding upon him and also to set aside the execution proceedings laid on the basis of the decree obtained in O.S. No. 7830 of 1983. When there is bona fide dispute between the parties over the title to the petition premises the Rent Controller ought to have relegated this matter to a civil court for proper adjudication. There is no evidence on record to show that the petitioner herein is the tenant and the respondent herein is the landlord in respect of the petition premises. When the petitioner herein is agitating his right over the title to the petition premises, it is not correct on the part of the authorities below to dismiss the appeal filed by the petitioner herein. It was therefore pleaded that the order passed by the Rent Control Appellate Authority in R.C.A. No. 1l07of 1992 is liable to be set aside.
3. On the other hand, learned Counsel appearing for the respondent submitted as under:
It is no doubt true that once the petitioner herein and the respondent purchased jointly the petition mentioned premises. Under the sale deed, the petitioner is liable to pay a sum of Rs. 1,00,000 to the respondent with interest, failing which the petitioner herein should execute a release deed releasing his share in the petition mentioned premises in favour of the respondent herein. The petitioner failed to execute such release deed Hence the respondent herein filed O.S. No. 7830 of 1983 on the file of the City Civil Court, Madras and the said suit was decreed. The respondent herein executed the decree obtained in O.S. No. 7830 of 1983. In the execution proceedings the execution court directed the petitioner herein to execute the release deed in favour of the respondent herein. But he did not do so. Hence the execution court itself executed the release deed in favour of the respondent herein. Therefore it is not correct on the part of the respondent herein to say that he is the co-owner of the petition premises. After the execution of the release deed the petitioner herein agreed to be in possession of the petition premises on payment of the rent of Rs. 3,000 per month. Since the respondent herein failed and neglected to pay the rent at the rate of Rs. 3,000 as agreed by him, the landlord, filed R.C.O.P. No. 2583 of 1991 on the grounds of wilful default in payment of rent and owner's occupation. During the pendency of the eviction proceedings, the tenant failed and neglected to pay the rent to the landlord. Hence petition under Section 11(4) of the Act was filed. In that petition, the Rent Controller directed the tenant to deposit the arrears of rent on or before 27.10.1992. But the tenant did not pay the arrears of rent. The tenant filed an appeal against the order passed by the Rent Controller in a petition filed under Section 11(4) of the Act. In the appeal, the tenant deposited a sum of Rs. 48,000. This will be for the rent due upto September, 1992, Thereafter, the tenant did not pay any rent to the landlord. From October, 1992 to November, 1993 the tenant is liable to pay rent for the period of fourteen months, amounting to Rs. 42,000. Though the tenant filed M.P. Nos. 23 and 24 of 1993 for permission to deposit arrears of rent. These petitions were dismissed for default. Therefore, it is now not open to the tenant to say that he is a co-owner and therefore, he is not liable to pay rent to the respondent/landlord. The petitioner herein is not entitled to file R.C.A. No. 1107 of 1992 without depositing arrears of rent. The fact that the tenant filed the suit O.S. No. 6689 of 1993 for declaration to set aside the decree obtained in O.S. No. 7830 of 1983 is devoid of merits. Inasmuch as the tenant failed and neglected to comply with the directions given by the Rent Controller, the appeal filed by the tenant is liable to be dismissed.
4. I have heard the rival submissions. 5. The fact remains that the respondent herein filed R.C.O.P. No. 2583 of 1991 under Section 1O(2)(i) and under Section 1O(3)(a)(i) of the Act. During the pendency of the eviction proceedings, the respondent herein filed M.P. No. 442 of 1992 under Section 11(4) of the Act to collect the arrears of rent from the petitioner herein. The petitioner herein contended that he is the co-owner along with the respondent herein in respect of the petition premises. Both the petitioner and the respondent herein purchased the petition premises under a sale deed. According to the respondent, the petitioner is liable to pay a sum of Rs. 1,00,000 to the respondent herein with interest accrued thereon failing which the petitioner herein agreed to relinquish his rights over the petition mentioned premises in favour of the respondent herein. The petitioner herein failed to pay a sum of Rs. 1,00,000 to the respondent herein. The respondent filed O.S. No. 7830 of 1993 against the petitioner herein and the said suit was decreed in his favour. The respondent herein filed an execution petition and in the execution proceedings, the execution court itself executed the release deed in favour of the respondent herein. Thereafter, the petitioner herein was paying a sum of Rs. 3,000 to the respondent herein per month. According to the respondent herein after the release deed was executed by the court, the petitioner herein agreed to be in possession of the petition premises as a tenant on payment of rent of Rs. 3,000 per month. Accordingly, he was paying the rent periodically upto May, 1991, by cheque. But subsequently the petitioner herein failed and neglected to pay the rent at the rate of Rs. 3,000 per month. But according to the petitioner herein, he was paying Rs. 3,000 not as rent to the respondent but it was towards the interest due on the amount borrowed by him. It remains to be seen that Rs. 3,000 cannot be the interest on Rs. 1,00,000. Further after the release deed was executed the petitioner herein is not liable to pay interest onRs.1,00,000. According to the petitioner herein the rate of interest was increased by the respondent herein. But there is no evidence on record to show that there was an increase in payment of interest as alleged by the petitioner herein.
6. The petitioner herein contended that there is no relationship of landlord and tenant between the petitioner and the respondent herein. But the decree passed in O.S. No. 7830 of 1983 and the order passed in the execution proceeding would go to show that the respondent has become the full owner of the property. The petitioner herein did not file any appeal against the judgment and decree rendered in O.S. No. 7830 of 1983. According to the petitioner herein he filed the suit O.S. No 6689 of 1993 to set aside the decree passed in O.S. No. 7830 of 1983 and also for setting aside the execution proceedings. In the counter filed by the petitioner herein in the main eviction petition it is stated that he was depositing the rent in a bank in his own name and he produced the passbook issued by the bank to substantiate this plea. He also deposited a sum of Rs. 48,000 before the appellate authority towards the arrears of rent. It also remains to be seen that in the suit O.S. No. 7830 of 1983 the petitioner herein entered appearance, but subsequently remained ex parte. Thus the subsequent conduct on the part of the petitioner herein would go to show that he is residing in the petition premises as a tenant under the respondent on a monthly rent of Rs. 3,000. Considering all these aspects, the authorities below rejected the contention put forward by the petitioner that there is bona fide dispute between the petitioner and the respondent with regard to the title over the petition premises. On a careful consideration of the facts arising on this aspect, I am also of the opinion that there is no infirmity in the abovesaid finding arrived at by the authorities below on this aspect.
7. As against the order passed by the Rent Controller in a petition filed under Section 11(4) of the Act, the tenant after obtaining extension of time for depositing the rent filed an appeal. As per Section 11(1) of the Act the tenant is not entitled to file an appeal against the order passed by the Rent Controller under Section 11(4) of the Act unless he pays or deposits the arrears of rent. In this case, the tenant has neither paid nor deposited the arrears of rent. Therefore, the Rent Control Appellate Authority ought not to have entertained the appeal. It should also be further noted that under Section 11(4) of the Act, it is the Rent Controller who would extend the time for depositing the arrears of rent as directed by him earlier. On an appeal filed against an order passed under Section 11(4) of the Act, the Rent Control Appellate Authority cannot extend such time granted by the Rent Controller. Learned Counsel appearing for the petitioner relied upon a decision of this Court in the case of Abdul Aziz Khan v. Appachi Gounder , wherein this Court held that when the tenant contends that there is no relationship of landlord and tenant between the petitioner and respondent the court should not compel him to pay the rent. But in Kesava Naicker v. Sivaganana Mudaliar 93 L.W. 484, this Court considering the decision of the Supreme Court in Cham Prakash Gupta v. Dr. Rattan Singh (1963) 2 S.C.J. 445, held that the view expressed by this Court in the decision reported in Abdul Aziz Khan and Ors. v. Appachi Gounder , is no longer a good law. Thus considering the facts arising in this case I am of the opinion that the order passed by the Rent Control Appellate Authority in R.C.A. No. 1107 of 1992 is in order. Hence, I am not inclined to interfere with the same. In the result, the revision is dismissed. No costs.