Modh. Dhaja vs Bisamillah Begum

Ekbote, J.—This revision petition is directed against the order of the Chief judge, City Small Cause Court as an appellate authority under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act of 1960 given on 23-2-1968. It arises in the following circumstances.

The respondent-landlady filed an application under S. 10 of the Act for eviction on the ground of tenant''s wilful default. During the pendency of that petition, the landlady filed an application under S. 11 seeking direction from the Rent Controller that the respondent whole had fallen into arrears of rent should be directed to deposit the same, failing which his summary eviction should be ordered. The petition was resisted by the tenant mainly on the ground that he had made certain payments. After a summary enquiry, the Rent Controller disbelieved the defence set up by the tenant and directed the tenant by his order dated 2-9-1967 to pay an amount of Rs. 425/- being the arrears of rent within 15 days from that date, failing which an order u/s 11 (4) of the Act would follow.

Dissatisfied with that order, the tenant preferred an appeal under S. 20 of the Act to the appellate authority. During the pendency of the appeal, an application under S. 11 was again filed by the landlady. that petition was resisted on the ground that such a petition was not maintainable as the appeal was not preferred against an order passed on a petition filed under S. 10 of the Act, but was preferred against an order passed under S. 11 (1) of the Act. The appellate Authority rejected the contention holding that the word "application" referred to in sub-sec. (1) of S. 11 does not necessarily refer to a petition under S. 10. It also held that the word "appeal" refers to any appeal filed under S. 20 of the Act. The appellate authority therefore directed the tenant to deposit the arrears of rent within 15 days from the date of the order. it is this view that is now assailed in this revision petition.

At the first instance the revision petition came up before one of us (Ramachandra Rao J.). The same contention was argued before him. In view of the importance of the question involved, the revision petition was referred to a Bench and that is how the matter has come before us.

In order to appreciate the contention raised by the learned advocate for the petitioner, it is necessary to read Section 11 (1) of the Act which runs as follows:

"No tenant against whom an application for eviction has been made by a landlord u/s 10, shall be entitled to contest the application before the Controller under that Section, or to prefer any appeal u/s 20 against any order made by the Controller on the application, unless he has paid 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 deposit and continues to pay or 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."

A reading of this provision would indicate that it puts an embargo upon certain rights of the tenant. It firstly states that no tenant shall be entitled to contest an application filed under S. 10 for eviction against him. The second restriction put upon his right is that he cannot prefer any appeal under S. 20 against any order made by the Controller on the application unless he has paid all arrears of rent due in respect of the building up to the date of payment and continues to pay rent which may subsequently become due. The section comes into operation without being required to be set in motion by any order. it is a legal restraint put upon the tenant to contest the application or to prefer an appeal in case he is arrears and has not paid the arrears. he is also required to continue to deposit the rent. Sub-section (3) to S. 11 is attracted only in a case where there is any dispute as to the amount of rent to be paid under sub-section (1) Only in such a case the Controller shall, on an application made to him, make an enquiry as he deems necessary with a view to determine summarily the rent to be paid or deposited. It will thus be clear that the tenant who is in arrears of rent is not entitled to contest the application before the Rent Controller filed against him for eviction under S. 10 of the Act. The question of S. 11 would arise only during the pendency of the proceeding initiated against a tenant by the landlord under S. 10. if in a proceedings initiated by the landlord against the tenant under S. 11 of the act during the pendency of a proceeding under S. 10 and an order is passed thereon, then the order cannot only be in regard to arrears, but also in regard to the rent which may subsequently become due. The tenant would thus be required to pay not only the arrears but also continue to pay the rent until the termination of the proceedings under S. 10 before the Controller.

In the case of appeal arising out of proceeding under S. 10, there is a legal obligation on the part of the tenant not only to pay arrears of rent, but also continue to pay the rent till he appeal is disposed of. The principal behind this provision is almost the same as lies behind the proceedings under S. 10 before the Rent Controller. in either case there is an obligation on the part of the tenant not only to deposit the arrears but continue to pay the rent till the proceedings are terminated one way or the other.

The question, however, is whether, Section 11 applies to an appeal preferred u/s 20 against an order passed by the Rent Controller u/s 11 itself. We do not think S. 11 applies to such an appeal. Firstly because the language of the Section 20 is abundantly clear. The words "to prefer any appeal u/s 20 against any order made by the Controller on the application" really indicate that an appeal must have been preferred against an order of the Controller on the application filed u/s 10. The article "the" is specific and refers only to an application made by a landlord under S. 10. The article "the" makes a specific reference to these words which appear earlier in the same section. secondly, if an order under S. 11 is made, it can only be an order both in relation to arrears as will as future rent. In case such an order is made as is required under sub-section (1) of that section, then in appeal under S. 11 there is really no necessity of filing any application under S. 11. Any order given in favour of the landlord under S. 11 (1) and against a tenant would naturally cover both the aspects of the rent. For both these reasons, we feel that S. 11 (1) is not applicable to an appeal preferred by the tenant against an order passed by the Rent Controller under S. 11.

The appellate authority undoubtedly has power to either stay or refuse to stay the order passed by the Rent Controller under S. 11. That power is recognised by S. 20 (2) of the Act. that is far from saying that in an appeal preferred against an order passed by the Rent Controller under S. 11 itself another application can be filed by the landlord under S. 11 during the pendency of such an appeal. It is true that such an appeal is preferred under S. 20 but the wording of sub-section (1) of S. 11 "to prefer any appeal u/s 20 against any order made by the Controller on the application." is very clear and the word ''application'' refers to the application by the landlord under S. 10 and to no other application. The application of S. 11 therefore is confined to an appeal preferred against an order made on the petition filed under S. 10. since the present appeal in which the landlady has sought the order under S. 11 was preferred by he tenant against an order passed u/s 11 itself, the landlady was not entitled to file any fresh application under S. 11 and the appellate authority by wrongly interpreting S. 11 could not have assumed jurisdiction to pass any orders under that section. it is true that the Rent Controller has committed a mistake in not giving a direction in regard to the future rent, but confined itself to the direction only in regard of the arrears. But that mistake can be corrected either by review or in an appeal. if any, preferred against that order by the landlady. But that object however cannot be achieved by filing an application in an appeal preferred by the tenant against the order passed under S. 11 by the Rent Controller.

We would , therefore, allow this revision petition, set aside the order of the appellate authority and direct the appellate authority to dispose of the main appeal expeditiously on its merits and in accordance with law. In the circumstances however, we would make no order as to costs.

Petition allowed.