Madras High Court
R. Narayanaswamy vs P.A. Abdul Majeed And 4 Ors. on 29 September, 1997
Equivalent citations: 1997(3)CTC203
ORDER S.M. Abdul Wahab, J.
1. The tenant has filed the above two civil revision petitions. The first C.R.P.No.2332 of 1997 is against the order dated 24.6.1997 in M.P.No.1049 of 1996 in R.C.A.No.892 of 1996 on the file of the VIII Judge Court of Small Causes, Madras. The second C.R.P.No.2333 of 1997 is against the order passed in R.C.A.No. 892 of 1996 dated, 24.6.1997 on the file of the VIII Judge, Small Causes Court, Madras. The order passed in the main appeal is consequential. Hence if we dispose of the first civil revision petition and if the tenant succeeds in the first CRP, the second C.R.P. has to be allowed.
2. The facts are as follows:- The landlord filed R.CO.P.No.1006 of 1992 for eviction on the ground of wilful default etc., for the period from 1.10.1992 to 28.2.1993. The petitioner filed a counter stating that there was advance of Rs. 19,000. It was also mentioned that on an earlier occasion another R.CO.P.No.2905 of 1988 was filed. That petition was dismissed. The original landlord K.H. Mohamed Zackaria died on 24.2.1994. Hence his legal representatives were added. M.P.No.587 of 1995 was filed under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act for direction to deposit the rents from 1.1.1994 to 31.7.1995. The order was passed in the said M.P. directing the petitioner to deposit a sum of Rs. 4,275. On 19.2.96, the amount was deposited. However, the petitioner filed R.C.A.No.892 of 1996. Once again the land lord/respondent herein filed M.P.No.1049 of 1996 under Section 11(4) of the Act. On 15.4.1997 an exparte order was passed to deposit the amount within a short date. As the amounts were not deposited, an order was passed in the petition allowing it and consequently eviction was ordered. It is needless to point out the proceedings in R.C.A was also stopped and the eviction was ordered. Hence the petitioner has filed the two revision petitions challenging the two orders passed on 24.6.1997 in the M.P.No.587 of 1995 well as in the R.C.A.No.892 of 1996. The learned counsel for the petitioner contended that the scope of Section 11(4) of the Act is very much limited. It would apply only to cases namely:
(1) When the tenant has to contest the eviction petition before the Rent Controller filed under Section 10 of the Tamil Nadu Buildings (Lease and Rent Control Act, 1960).
(2) When the petitioner has filed appeal as against the order passed under Section 10.
Apart from these two contingencies in any other cases, there is no scope for applying for the provisions contained under Section 11(1). A reading of Section 11 is as follows:-
(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 deposits, 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 (1) 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."
According to the learned counsel for the petitioner, a petition under Section 11(4) had been filed in the appeal preferred against the order passed under Section 11(4) pending petition for eviction under Section 10 is not maintainable. The learned counsel cited the following decisions in support of his contentions:
1. R. Radha v. C.R. Govindarajulu, ; 2. Murugaiya Konar and other v. Daniel Nursing Home, Mannargudi, 1988 1 LW 382; 3. A.E.M. Usoof & Sons v. O.M. Mohamed Ibrahim, 1990 (I) L.W 484.
3. In R. Radha v. C.R. Govindarajulu, the first Division Bench of this Court has considered the scope of Section 11 exhaustively. It is true that the said decision is with reference to a revision petition pending before the High Court. But the interpretation put by the bench has to be taken note of. After setting out all the provisions contained in Section 11, the Bench observed as follows:
"Thus a reading of S. 11 makes it clear that S. 11(4) will apply only to the cases covered by Section 11(1) are only two in number, namely, the application for eviction made by the landlord under Section 10 before the Rent Controller and the appeal preferred by the tenant under Section 23 to the Appellate Authority against an order made against him on the application made by the landlord under Section 10 of the Act. A reading of Section 11(1) and Section 11(4) together will exclude all other cases except these two from the scope of the operation of the provisions in question."
4. The learned counsel for the respondent, however contended that the Bench was not concerned with a case like the present one. The bench has considered that a petition under Section 11(4) in a revision petition preferred to it under Section 25 of the Act. So far as this case is concerned, it relates to only an appeal preferred before the Appellate Authority. Therefore the said case is only an arbitor.
5. Eventhough as contended by the counsel for the respondent that the said decision was not in respect of a petition under Section 11(4) in an appeal, the Bench was called upon to express its view on the scope of Section 11. From the judgment it appears that the scope and effect of Section 11. The argument was not concerned with reference to the scope of applicability of Section 11 before the High Court in a revision only. But its applicability to the appeals were also considered. Therefore, it cannot be said to be arbiter. To consider the view expressed by the High Court as an arbitor it should be only causal observation unconnected with the case. But when arguments were advanced and decision was called for on an issue and when such decision is rendered it cannot be said to be an arbiter.
6. In Murugaiya Konar and Ors. v. Daniel Nursing Home, rep. by its Trustee Selvaraj Daniel, Mannargudi, 1988 (I) LW 382 Justice Nainar Sundaram as he then was has expressed the same view of the afore mentioned Bench decision. In paragraph 4 of the said judgment, the learned Judge has held as follows:
"On going through Section 11 of the Act, I have to concur with the submissions made by the learned counsel for the tenants. Section 11 of the Act contemplates a contest of an application for eviction by a tenant. Here the contest as such has been given a quietus by the orders of eviction passed ex parte. Only after the applications to set aside the orders of eviction passed ex parte are allowed and the applications for eviction stand restored and thereafter the tenants are to contest such applications, the contingency for invocation of Section 11 of the Act would arise. The above being the implication of Section 11 of the Act there is no warrant for the land lord to invoke that provision and equally so, the Controller was not competent to countenance the applications taken out by the landlord in this behalf."
7. In the said case the landlord obtained an order of eviction of ex-parte. The tenants filed application to set aside the ex parte order. The landlord filed applications under Section 11 of the Act, calling upon the tenants to deposit the rents. The Controller allowed these applications and at the same time dismissed the applications filed by the tenants to set aside the ex parte orders of eviction. The tenants filed appeal against these orders and the Appellate Authority dismissed the appeals. Even though the learned Judge has not referred to the Bench Decision, his view is definitely in support of the view expressed by the Bench.
8. In A.E.M.Usoof & Sons, Madras v. O.M. Mohamed Ibrahim, rep. by General Power of Attorney Agency, 1990 (I) L.W 484. Justice Ratnam a he then was has also taken a similar view. In the said case in an eviction proceedings under Section 10(2)(i) an ex parte order of eviction was passed. The tenant preferred an appeal. During the pendency of the appeal, the landlord filed petitions under Section 11(3) and 11(4) of the Act for deposit of the quantum of total arrears. This was allowed. Against that civil revision petition was filed. After referring to the decisions in the cases R. Radha v. C.R. Govindarajulu, 1979 (1) LW 443 and Murugaiya Konar v. Daniel Nursing Home, 1988 (1) L.W.382 which two decisions I have mentioned above, the learned Judge finally concludes thus:
"Thus on consideration of the relevant provisions in the Act as well the Rules, the conclusion is inescapable that the appeal under Section 23 of the Act must arise out of an order for eviction passed under Section Section 10 of the Act and only in such an event, the provisions of Section 11(1)(3) and (4) of the Act could be invoked by the landlord." Since the landlord was moved only for setting aside the order passed ex parte and the appeal preferred was pursuant to the dismissal of the said petition, the learned Judge held that Section 11 would not be applicable.
9. The learned counsel for the respondent, however, contended that the petitioner's appeal itself is not maintainable before the appellate authority. He also contended that the dismissal of the appeal was consequential. He finally contended that the interference by this Court under Section 25 is not called for.
10. The learned counsel submitted that the petitioner deposited rent of Rs. 4,275 on 19.2.1996. But he filed the appeal on 2.7.1996. From 1.8.1992 to 30.6.1996 there was arrears of rent. He did not deposit the same. Hence the petitioner is not entitled to file an appeal itself and that therefore the appeal must be dismissed as incompetent. In support of his contentions, the learned counsel for the respondent cited the following decisions
1. Iqbal and Company v. Abdul Rahim, 1982 (1) MLJ 221; 2. A.P. Swamy v. V. Kunjithapadam, 1994 (2) L.W. 661.
11. In Iqbal and Company v. Abdul Rahim, 1982 (1) MLJ 221 Justice Mohan as he then was held that in the said case the landlord filed a petition for eviction on the ground of wilful default and for demolishing the building to reconstruct the same. Application under Section 11(4) was filed by the landlord. The tenant failed to deposit the rents. But instead, he filed a petition for extension of time. The extension of time was not granted. Hence the petition for extension as well as the petition was rejected. Consequently an order of eviction was passed in the main petition. The tenant filed two appeals one against the order refusing to extent time and another one against the order of eviction in the main R.C.O.P. After consideration of Section 11 the learned Judge observed as follows:
"That section speaks of the payment or deposit of rent during the pendency of the proceedings for eviction. Sub-section (1) to Section 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, that such a payment has to be made. Sub-section (2) require the deposit of rent to be made within the time and the manner prescribed. In the instant case, as I have already noted that the revision petitioner was called upon to pay the rent from 1st November but the amount was not paid."
There after the learned Judge adds as follows:
"Admittedly at the time of preferring the appeal, the arrears had not been paid or deposited in terms of Section 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, 1990 had worded out itself."
One thing to be noted in this case is that before the learned Judge, the Division Bench decision was not brought to his notice. In view of the Bench decision, the view of the learned Judge need not be followed. In Shahul Hameed and 4 others v. Rasool Bivi, 1993 (2) LW 583 Justice Thanikkachalam as he then was has also expressed the same view, as we have found in the judgment of Justice S. Mohan as he then was in Iqbal and Company v. Abdul Rahim, 1982 (1) MLJ 221. Therefore, the cases are also not helpful to the respondent. The learned counsel for the respondent contended that even though the decision by the appellate authority cannot be sustained on the reasons given by him it can be sustained on the ground that the tenant has not deposited the arrears of rent. The learned counsel cited the following decisions
1. Radha Kishan Sao v. Gopal Modi and Ors., 1977 RCJ 559; 2. N.S.M. Ahmad Jamalia Beevi v. D.N. Shah,
12. The first case Radha Kishan Sao v. Gopal Modi and Ors., 1977 RCJ 559 has arisen out of the Bihar Rent Control Act. As per the provisions contained in the said Act, if the tenants deposits the entire arrears at the first hearing, he will be absolved of the default and the petition for eviction would be rejected. Since according to the learned counsel, the petitioner has not paid the arrears no indulgence can be shown by the High Court.
13. In N.S.M. Ahmad Jamalia Beevi v. D.N. Shah, the Supreme Court depreciated the High Court for giving a second chance for depositing the entire arrear. When the matter came up before the High Court and additional order was passed by the High Court to deposit and on non-compliance the tenants plea was rejected and thereafter when the matter came up before High Court by way of execution proceeding the High Court Chose to give him further time to deposit the arrear. Only in those circumstances, Supreme Court held that the High Court has erred in granting time. The facts of the case are different. The Division Bench of this Court has considered the scope of the powers of the High Court in revision. Under Section 25, the powers of the High Court is equitable. The learned counsel for the respondent relied upon the expression "in doing so, the High Court has not considered whether the order of eviction passed is sustainable on the basis of any other grounds taken in the petition which form for the reliefs prayed for therein." Relying upon the said expression, the counsel wants me to sustain the order passed by the appellate authority. In view of the Bench decision mentioned above and the other two decisions following the same view, I am not in a position to agree with the counsel for the respondent. It is true that the scope of powers conferred under Section 25 is equitable. But that does not mean that when an order is passed by the Rent Control Appellate Authority without jurisdiction, this Court an come to its rescue by sustaining it on some other ground.
13. The learned counsel of the respondent also contended that the petitioner has not preferred any civil revision petition against the order passed on 24.6.1997. Two revision petitions have been filed only on the consequential orders. Inasmuch as the other civil revision petition is against the order passed in the main appeal itself in my view is entitled to challenge the orders passed including the order directing the tenant to deposit. For the foregoing reasons, I am of the view that the petitioner is entitled to succeed. Hence the civil revision petitions are allowed. However, there will be no orders as to costs. In view of the orders passed in the civil revision petitions the appellate authority has to take up the main appeal and dispose it of on merits within two months from the receipt of this order.