A.C. Abraham Kingsley vs Shanthi and Others

S. Rajeswaran, J.—The petitioner has filed these Revision Petitions u/s 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960

(hereinafter called ''the Act'') against the common judgment dated 5.10.2005 made in R.C.A.Nos.R.C.A.Nos.922, 924, 926, 928 and 930 of

2005, on the file of the VII Small Causes Court, Chennai (Appellate Authority) to set aside the same and confirm the common order dated

1.7.2005 made in M.P.Nos.375, 376, 377, 378 and 268 of 2005 in R.C.O.P.Nos.62,63,64,65 and 67 of 2005, on the file of the XII Court of

Small Causes, Chennai.

As the dispute involved and the issues raised in all the above Revision Petitions are one and the same, I am disposing off these petitions by this

common order. In fact, the learned Rent Control Appellate Authority himself passed a common judgment which is assailed before this Court in

these Revision Petitions.

The landlord is the revision petitioner in all these Revision Petitions. He filed five eviction petitions against five tenants, who occupied different

portions in the same building, on the grounds of wilful default and owner''s occupation. Before the learned Rent Controller, the landlord filed five

Miscellaneous Petitions u/s 11(3) and 11(4) of the Act and in each of the petitions, a conditional order was passed by the Rent Controller by

directing the tenants to deposit the rental arrears within a particular period and to continue to deposit the future rent before 10th of the succeeding

month.

The tenants did not challenge the conditional order but they deposited the rental arrears within the time granted by the Rent Controller. They

have deposited the rental arrears up to April 2005, but did not deposit the rent for May 2005 and June 2005 when it became due, i.e., on the 10th

June 2005and 10th July 2005 as per the conditional order. So the landlord filed a memo on 18.7.2005 bringing to the notice of the Rent Controller

that the conditional order has not been complied with by the five tenants. The Rent Controller without issuing notice to the tenants passed an order

of eviction in all the Miscellaneous Petitions and consequently allowed all five RCOPs., filed by the landlord on the very same day, i.e., on

18.7.2005. Challenging the orders passed in the five M.Ps., and in the five RCOPs, all the tenants filed ten appeals in total before the Appellate

Authority. The appellate authority by a common judgment dated 5.10.2005 closed all the appeals by directing the tenants to deposit the rental

arrears for the month of May 2005 to September 2005 on or before 17.10.05 and in the event of complying with this condition, the orders passed

by the learned Rent Controller would be set aside. Challenging the correctness of this common judgment, the landlord has filed the above Revision

Petitions.

The learned Senior Counsel appearing for the petitioner submitted that the Rent Control Appellate Authority has exceeded his jurisdiction by

closing the appeals by granting further time for the tenants for depositing the current rent without deciding the actual issue that was raised before the

court. He further submitted that all the ten appeals are not maintainable as the tenants did not deposit the rental arrears up-to-date at the time of

filing the appeals. According to the learned Senior Counsel, the Appellate Authority has no jurisdiction to extend any time which was granted by

the Rent Controller and the Appellate Authority has failed to note that u/s 11(4) of the Act, the proceedings before the Rent Controller has to be

stopped automatically if the tenants failed to deposit the rent as per the conditional order. He relied on the following judgments in support of his

contentions:

(1) 1991 2 L.W. 453 (S.K. Rajapandian v. A. Kesavan). (2) M.Y. Mohamed Ismail Vs. Sashi Sachdev, Bharat Surigical Corporation, (3) M.S.

Murugan Vs. Smt. Santhakumari and Others, . (4) 1982 T.N.L.J. 462 (P. Narasimhan (died) and Ors. v. Narayana Chetty and Ors. and (5) 1993

2 L.W. 583 (Shahul Hameed and 4 Ors. v. Rasool Bivi).

Per contra, the learned Counsel for the tenants submitted that before action was taken by the Rent Controller on the memo filed by the landlord

intimating the non-compliance of the conditional order, notice should have been issued to the tenants to verify the facts mentioned in the memo and

as no notice was issued by the Rent Controller, the order of eviction passed against them is nullity in the eye of law as the principles of natural

justice was blatently violated by the Rent Controller. He further submitted that striking out the tenants'' defence is an exceptional step and such a

step could be taken only after extending an opportunity to the tenants before passing orders on the memo. Learned counsel drew my attention to

the judgment of the Appellate Authority wherein in para 7 it is stated by the Appellate Authority that there is no serious objection by the landlord

for permitting the tenants to deposit the arrears and to proceed with the rent control proceedings. Therefore, the learned Counsel submitted that

the judgment is more or less like a consent judgment and it cannot be challenged by the Revision Petitioners.

Heard the learned Senior counsel for the petitioner and the learned Counsel for the respondents. I have also perused the documents referred

and the judgements cited.

The facts are not in dispute. A conditional order was passed on 1.7.2005 by the Rent Controller directing the five tenants to deposit the rental

arrears from September 2004 to April 2005 on or before 7.7.2005. The Rent Controller further directed the tenants to deposit the monthly future

rents on the 10th of every succeeding month till the disposal of the RCOPs. It is made clear by the Rent Controller in that order that failure to

comply with the condition by the tenants would result in stopping the entire rent control proceedings and passing an order of eviction. The tenants

did not challenge the order but complied with the first condition by depositing the rental arrears before 7.7.05. But they did not comply with the

2nd condition by not depositing the monthly rent for the month of May and June 2005 within the stipulated time. Consequently, the landlord filed a

memo bringing this fact to the notice of the Rent Controller but the Rent Controller without issuing any notice to the tenants passed an order of

eviction on the basis of non-compliance of the conditional order. The tenants filed appeals and it is not disputed that they have not paid the rental

arrears up-to-date before filing the appeal which is a mandatory provision as per the Rent Control Act. But this aspect was overlooked by the

Appellate Authority.

u/s 11(1) of the Act, no tenant against whom an application for eviction has been made by a landlord u/s 10 of the Act shall be entitled to prefer

an appeal u/s 23 of the Act against any order made by the Controller unless he paid all arrears of rent due in respect of the building up to date of

deposit and continued to deposit any rent which may subsequently become due until the termination of the proceedings before the Appellate

Authority. Admittedly, the tenants herein did not deposit the arrears of rent before filing the appeals and did not deposit the subsequent rents also

during the proceedings before the Appellate Authority. Therefore, I find force in the submissions of the learned Senior Counsel appearing for the

petitioner that the appeals should not have been heard by the Appellate Authority for the failure of the tenants to comply with the provisions of

Section 11(1) of the Act.

In 1991-2-L.W.453 (supra), this Court has held that if the tenant wanted to comply with the order of the Rent Controller, then he should have

applied for extension of time either before the Rent Controller or the tenant ought to have filed an application before the Appellate Authority for

extension of time for making the deposit as directed by the Rent Controller and the filing of an appeal will never be a sufficient cause for non-

compliance of the order of the Rent Controller.

In the present case, admittedly, no petition for extension of time was filed by the tenants before the authorities below. But the Appellate

Authority who extended time to deposit the rental arrears not only for the months of May 2005 and June 2005, but also for the subsequent

months, namely, July 2005 to September 2005. From this, it is very clear that the tenants not only failed to comply with the conditional order of the

Rent Controller but also failed to deposit the rent before filing the appeal as per Section 11(1) of the Act.

In M.Y. Mohamed Ismail Vs. Sashi Sachdev, Bharat Surigical Corporation, this Court has held that when the tenant has neither paid nor

deposited the arrears of rent, the Appellate Authority ought not to have entertained the appeal filed against the order passed u/s 11(4) of the Act.

It is the Rent Controller who could extend the time for depositing the arrears or rent as directed by him earlier. On an appeal filed against the order

passed u/s 11(4) of the Act, the Appellate Authority cannot extend such time granted by the Rent Controller.

If the law laid down by this Court is applied to the instant case, all the appeals filed by the tenants before the appellate Authority ought not to

have been entertained at all, as, admittedly, they neither sought time for extension of time before the rent controller nor deposited the arrears before

filing the appeals.

In M.S. Murugan Vs. Smt. Santhakumari and Others, , this Court has held that when the tenant filed an appeal against the order of eviction

passed in RCOP filed u/s 10(2)(i) of the Act and another appeal against the order passed in the petition filed u/s 11(4), the deposit of entire

arrears of rent is a sine quo non, u/s 11(1) of the Act.

In these Revision Petitions also the tenants, filed the appeals against the order passed in the applications filed u/s 11(4) of the Act and also

against the consequential order passed in petitions filed u/s 10(2)(i) of the Act. Therefore depositing the entire arrears of rent is the pre-requisite for

entertaining the appeal. But the Appellate Authority has not only entertained the appeals but, has also granted further time to deposit the rents

which is beyond his authority and jurisdiction. The Appellate Authority gets the power of appeal only under the statute and that being so, the

power of the appeal can be exercised only in consonance with the provisions contained in the statute.

In 1993 2 L.W.583 (supra), this Court held that the tenants should not only deposit the arrears of rent before filing the appeals but also

continue to pay the rent regularly during the pendency of the appeal proceedings.

In the light of the above settled legal principles, I am of the considered view that the Appellate Authority has committed illegality in entertaining

the appeals.

But the learned Counsel for the respondents/tenants submitted that by not issuing notice before passing an order of eviction on the basis of the

memo, the Rent Controller violated the principles of natural justice and this fact was adverted to by the Appellate Authority and on that basis only

the orders were passed granting time to deposit the monthly arrears and to proceed with the rent control proceedings.

I have already held that the Appellate Authority ought not to have entertained the appeals as the arrears of rent were not deposited by the

tenants before filing the appeals. The merits or otherwise of the appeals should be gone into only if the tenants discharge these statutory duties by

depositing the rental arrears. Even otherwise, principles of natural justice is not an empty formality and the tenant should plead and prove how they

are affected and how prejudice was caused to them by not issuing any notice before the order of eviction passed on the basis of the memo. It is an

admitted fact that the tenants have not complied with the conditional order until the appeals are disposed of by the Appellate Authority. No

explanation whatsoever was given by the tenants either before the Appellate Authority or before this Court. The Appellate Authority had not at all

gone into this question and simply closed the appeals by making some observations. This, in my opinion, is not in consonance with the statutory

provisions.

The learned Counsel for the respondents/tenants made a final attempt to support the orders of the Appellate Authority by submitting that

having not raised objections before the appellate authority for permitting the tenants to deposit the arrears and to proceed with the rent control

proceedings, the petitioner is estopped from challenging the order by filing the above Revision Petitions before this Court.

It is true that there is an observation by the Appellate Authority to that effect in para 7 of the judgment. But as rightly pointed out by the

learned Senior Counsel appearing for the petitioner that it may not be correct for the simple reason that the landlords filed written arguments before

the appellate authority seriously contesting the appeals and a copy of the same is filed in the typed set of papers. Therefore, I am unable to

countenance this contention that the judgment of the appellate authority is more or less a consent order.

Besides this, if at all, all the tenants are aggrieved by the orders of eviction passed by the Rent Controller on the basis of the memo without

issuing notice by them, they should have approached the Rent Controller himself to set aside those orders as the same was passed without hearing

them or they should have at least sought for extension of time for complying with the order as already discussed by me.

Therefore, considering the totality of the facts and circumstances, the conduct of the tenants and the provisions of the Rent Control Act, I find

that the judgment of the Appellate Authority is vitiated and are not legally sustainable. Consequently these Revision Petitions are allowed and the

judgment of the Appellate Authority is set aside and the orders of eviction passed by the Rent Controller is upheld. No costs. C.M.P. Nos. 18165

to 18169 of 2005 are also closed.

After pronouncement of the order today, it is represented by both the learned counsel that in respect of four petitions, the tenants have already

vacated and handed over the vacant possession to the landlord. In respect of the tenant in C.R.P. No. 1571 of 2005, the learned counsel for the

tenant/respondent seeks time for the tenant to vacate the premises and hand over the vacant possession. Accordingly, three months'' time is

granted to the tenant/respondent in C.R.P. No. 1571 of 2005 from today to vacate and hand over the vacant possession of the premises in

question to the petitioning landlord, on condition that the tenant files an affidavit to this effect within a period of seven days from today, after serving

a copy of the same to the learned counsel for the petitioning landlord.

Post the matter on 30.06.2006.