Komalavalli Ammal vs Saraswathi Ammal

Sivasubramaniam, J.—The tenant who was unsuccessful in I.A. 882 of 1986 in R.C.A. 968 of 1986 on the file of the appellate authority is

the petitioner in this revision petition. The respondent is the landlady. The respondent landlady filed R.C.O.P. 2536 of 1983 for eviction of the

petitioner-tenant herein on the ground of wilful default and also for her own occupation. The petitioner resisted the application contending that there

is no relationship of landlord and tenant between them. She did not pay the arrears of rent from 1-1-1983 onwards. Therefore the respondent filed

a suit in O.S.1726 of 1983 on the file of the city Civil Court, Madras for arrears of rent against the petitioner and the same was also contested by

her. It appears that in the application for attachment before judgment, the petitioner has admitted that she is a tenant and at that time no plea of

agreement to sell was raised. Though the suit was dismissed by the trial court, it was decreed by the learned Principal Judge, City Civil Court,

Madras in A.S. 193 of 1985, holding that there is a relationship of landlord and tenant between the parties. It is stated that this matter is pending in

second appeal before this court.

In the petition filed by the respondent for eviction in R.C.O.P. 2536 of 1983, the learned Rent Controller came to the conclusion that the

petitioner is a tenant and therefore an order of eviction was passed against the petitioner on the ground of wilful default in payment of arrears. The

learned Rent Controller found that there was no such agreement to sell the property by the landlord in favour of the petitioner. As against the said

order of eviction, the petitioner filed an appeal in R.C.A. 968 of 1986 on the file of the appellate authority, Madras. Pending the appeal, the

respondent filed a petition in M.P. 882 of 1986 under S.11 (4) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to

as the Act) for deposit of Rs. 22,000 claiming to be the arrears of rent due to her, and to stop further proceedings in appeal and to direct the

petitioner to put her in possession of the premises. The petition sought for stay of eviction proceedings under S.10 C.P.C. However, it was

dismissed later on, and that order was confirmed in C.R.P. 2880 of 1987 by this Court. Thereafter, the respondent sought for the disposal of her

application filed under S.11 (4) of the Act before taking up the appeal for disposal. The appellate authority, after considering the contentions of the

respective parties, directed the petitioners to deposit a sum of Rs. 22,000 into court on or before 11-1-1988. It is against this order the present

revision petition has been filed.

Mr. Kumar, learned counsel for the petitioner, contended that the appellate authority has not passed any speaking order and therefore it is liable

to be set aside. According to him, the appellate authority has not considered the objections raised by the petitioner in her counter affidavit in M.P.

882 of 1986. It is further submitted that the appellate authority ought to have applied its mind to the contentions raised by the petitioner before

disposal of the application directing her to deposit the amount. In support of his contention, he relied upon the decision of this court in Vijayarajan

v. Krishnaveni Ammal 1985 T.N.L.J. 260, wherein it has been held that the authorities should exercise their jurisdiction properly and pass judicial

orders as contemplated under S.11(3) of the Act. It is no doubt true that the concerned authorities should apply their mind and pass considered

order. The facts involved in the said case are quite different from the one with which we are concerned now. In that case, the question was as to

the quantum of arrears of rent, payable and the tenant pleaded certain payments in the petition under S.11(4) of the Act. In those circumstances,

this Court has held that the authority should have considered that aspect and given a finding. But, here the facts are otherwise. The petitioner has

denied the relationship of landlord and tenant on the ground that there was an agreement to sell the property by the erstwhile landlord. This aspect

of the matter was considered by the civil court in O.S. 1726 of 1983 and in A.S. 193 of 1985. The learned Principal Judge, City Civil Court,

came to a definite conclusion that the petitioner is a tenant. Apart from that, the learned Rent Controller also, on evidence found that the said

agreement is not true and that the petitioner is a tenant, it is no doubt true that the petitioner is challenging the said order in the appeal. In this

background, the scope of enquiry under S. 11 (4) is very narrow, as the only contention that has been advanced by the petitioner herein is, that he

is not a tenant. That is the very question which is involved in the appeal itself. Therefore, it is not possible for the appellate authority to consider that

question in the interlocutory application filed by the landlady to direct the tenant to deposit the arrears of rent. It was contended on behalf of the

petitioner that as long as the tenant denied the relationship of landlord and tenant, between the parties, she cannot be compelled to deposit the

amount under S.11 (4) of the Act. Reliance was placed on the decision of this Court in Abdul Azeez Khan v. Abdul Rahim Khan 1957-2-M.L.J.

23 (S.N.), in support of his contention. Normally in a case where there is dispute regarding such relationship, it is not proper to direct the tenant to

deposit the arrears as a condition precedent. But in a case like this, where both the civil courts as well as the Rent Controller have held that the

petitioner is a tenant, the said principle cannot be applied to the facts of the present case. Apart from that, the suit for specific performance of

contract filed by the petitioner has been dismissed, according to the respondent. In view of the circumstances, it is not open to the tenant to say

that she need not deposit the amount as per the orders of the appellate authority. After all, her right to put forth her case before the appellate

authority is not lost by the impugned order. Since the amount is going to remain in court, as deposit till the disposal of the appeal, it is open to her

to agitate her contentions at the time of the disposal of the appeal, in view of the category decision of the civil courts on the relationship of landlord

and tenant and the finding of the learned Rent Controller, it cannot be said that the petitioner has got a prima facie case on her side at this stage. In

the result, the revision petition is dismissed. No costs. However, the petitioner is given six weeks time to deposit the arrears of rent as per the

orders of the appellate authority.