M.S. Murugan vs Smt. Santhakumari and Others

M. Karpagavinayagam, J.—Murugan, the tenant is the petitioner herein. Shanthakumari and four others, the respondents, herein are the

landlords. They filed a petition in R.C.O.P. No. 762 of 1991 for eviction against the tenant on the ground of wilful default in payment of rent from

1.1.1990 to 30.11.1991 at the rate of Rs. 900 per month u/s 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 (hereinafter

referred to as ''the Act'').

During the pendency of the eviction petition, the landlords filed a petition u/s 11(4) of the Act in I.A. No. 934 of 1991. This was contested by

the tenant, the petitioner herein, raising a dispute over the rate of rent. According to him, the monthly rent was only Rs. 600. In this petition enquiry

was conducted. On behalf of the landlords Exs.A-1 to A-5 were marked. No documents were marked on behalf of the tenant either to show that

there is no arrears or the monthly rent is only Rs. 600.

After enquiry, the Rent Controller holding that there was arrears from 1.1.1990 to 30.11.1991, i.e., for 23 months at the rate of Rs. 900,

directed the tenant to pay the arrears of Rs. 20,700 on or before 20.1.1992 by the order dated 3.1.1992. The case was posted on 21.1.1992.

Since the amount was not paid and the order was not complied with, the learned Rent Controller ordered eviction in the main petition in

R.C.O.P. No. 762 of 1991 filed u/s 10(2)(i) of the Act directing the tenant to vacate the premises within two months by the order dated

21.1.1992.

On being aggrieved over these orders, the tenant, the petitioner, herein, on 8.9.1992 (nearly 8 months later) filed R.C.A. No. 945 of 1992

against the order passed in main R.C.O.P. No. 762 of 1991 and R.C.A. No. 944 of 1992 against the order passed in M.P. No. 934 of 1991,

before the Appellate Authority. After entertaining these appeals, a conditional order of stay was passed directing the tenant to make a deposit of

arrears on or before 13.10.1992. In pursuance of the said order, the tenant deposited the arrears.

At that stage, the landlords filed petitions on 27.10.1992 raising preliminary objection in M.P. No. 1677 of 1992 in R.C.A. No. 945 of 1992

and M.P. No. 1678 of 1992 in R.C.A. No. 944 of 1992 before the Appellate Authority stating that the said appeals were not maintainable on the

ground that the deposit of arrears was not made before filing of the appeals. It was also pointed out in the petitions that the tenant was still in

arrears for the subsequent period.

The tenant filed a counter-affidavit stating that the orders of the Rent Controller for the deposit of arrears were subsequently complied with

during the pendency of the appeals before the Appellate Authority, in pursuance of the conditional order of stay and as such, the appeals are

maintainable.

The Appellate Authority disposed of the appeals by upholding the preliminary objection raised by the landlords, the respondents herein and

holding that the appeals were not maintainable, since the rental arrears were not deposited, while the appeals were filed, which is the condition

precedent for the entertainment of these appeals.

The above order rendered through a common order in both the petitions in the appeals is the subject matter of challenge before this Court in

C.R.P. No. 3518 of 1995 and C.R.P. No. 3519 of 1995.

Mr. Thirugnanam, the counsel for the petitioner would submit the following:

The appeals had been preferred by the tenant against the order passed u/s 11(4) of the Act, which cannot be construed to be the appeals against

the order passed u/s 10 of the Act, so as to enable the landlords to invoke Section 11(3) and (4) of the Act. The appeals were not filed against the

order of eviction passed u/s 10 of the Act and hence, the tenant need not deposit the amount as ordered by the learned Rent Controller at the time

of filing the appeals. Therefore, the order passed by the Appellate Authority dismissing the appeals merely on the question of maintainability

without going into the merits of the case, is wrong and the same is liable to be set aside.

Mr. Suresh Kumar, the learned Counsel for the respondents would submit as under:

The appeals preferred without complying with the order passed u/s 11(4) are not maintainable, without depositing the arrears of rent as a condition

precedent. Even according to the tenant, no deposit was made at the time of filing the appeals. The tenant has preferred two appeals in R.C.A.

Nos. 944 of 945 of 1992 not only against the order in M.P. No. 934 of 1991 passed u/s 11(4), but also against the order of eviction in main

R.C.O.P. No. 762 of 1991 filed u/s 10 of the Act. Therefore, the appeals are not maintainable, as stated above.

Mr. Thirugnanam, the learned Counsel for the tenant, the petitioner herein in order to substantiate his submission, would cite the following

authorities:

(1) Ravi Ram Vs. Somasundaram, . (2) Janaki Ammal v. Badrinarayanaiah (1999) 1 M.L.J. 698. (3) Schwartz Dasan v. Devadoss (1999) 1

M.L.J. 740.

On the other hand, Mr. Suresh Kumar, in support of his submission, would cite the following decisions:

(1) S.K. Rajapandian v. A. Kesavan (1991) 2 L.W.453.

(2) M.Y. Mohamed Ismail Vs. Sashi Sachdev, Bharat Surigical Corporation, .

(3) Ravichandran Vs. N. Sulaiman, .

(4) P.K. Periyasamy Nadar & Sons v. S. Aakthivel (1997) 2 C.T.C. 242.

In the light of the above rival contentions, the question which arises is this:

Whether the tenant in the case on hand, who had suffered an order u/s 11 (4) and Section 10 of the Act at the hands of the Rent Controller, should

deposit the amount as found due and ordered by the Rent Controller in that proceeding as a condition precedent before filing the appeal?

While dealing with the similar question, Hon''ble Justice Srinivasan (as he then was) in Ravichandran Vs. N. Sulaiman, would answer as

follows:

The view expressed by the Appellate Authority that the appeal filed by the respondent herein, without making a deposit as required by Section 11

of the Tamil Nadu Buildings (Lease and Rent Control) Act is maintainable is erroneous. The appellate Authority has placed reliance in Ravi Ram

Vs. Somasundaram, , He has overlooked that the matter has been considered in detail in several other judgments of this Court including S.K.

Rajapandian v. A. Kesavan (1991) 2 L.W. 453. In that judgment, I have referred to the judgment in Ravi Ram Vs. Somasundaram, and

distinguished the same. I have followed the judgment of a Division Bench in Kuppanna Chettiar v. Ramachandran AIR 1981 Mad. 35.

Unfortunately, the lower appellate court has not taken note of any of those judgments. Hence, the order passed by the Appellate Authority holding

that appeal is maintainable and that there should be an order of stay are unsustainable.

The main plank of the arguments advanced by the counsel for the petitioner stating that the appeal before the Appellate Authority is

maintainable even in the absence of deposit of arrears, would be mainly by placing reliance on the decision in Ravi Ram Vs. Somasundaram,

rendered by Hon''ble Gokulakrishnan, J. (as he then was).

The Hon''ble Justice Srinivasan, (as he then was) distinguished the said judgment and held that the appeal filed without making a deposit as

required by Section 11 of the Act is not maintainable by following the judgment of a Division Bench of this Court in Kuppanna Chettiar v.

Ramachandran AIR 1981 Mad. 35.

Even prior to this judgment, there is another judgment answering the very same question in Tichai Chetty v. N.K. Muthukrishnan (1991) 2 L.

W. 614. This came up for consideration again in the case of M.Y. Mohamed Ismail Vs. Sashi Sachdev, Bharat Surigical Corporation, Hon''ble

Thanikkachalam, J. (as he then was) held that the appeal is not maintainable unless the amount of arrears as ordered u/s 11 of the Act by the Rent

Controller is deposited before the Appellate Authority while filing the appeal.

Following the above said judgment, I had also decided in the case reported in P.K. Periyasamy Nadar & Sons v. S. Aakthivel (1997) 2 C.

T.C. 242, holding that the deposit of entire arrears of rent is a condition precedent, for filing an appeal against the order of eviction, in pursuance of

non-compliance of the order directing for the deposit of arrears.

As pointed out by the learned Counsel for the petitioner, the decisions reported in Janaki Ammal v. Badrinarayanaiah (1998) 1 M.L.J. 698

and Schwartz Dasan v. Devadoss (1999) 1 M.L.J. 740 would give a contrary view.

In the light of the different views expressed by this Court in various citations cited supra, let us now go into the legal situation by referring to the

relevant sections.

u/s 11(1) of the Act, in a case where an application for eviction has been filed by a landlord u/s 10 of the Act, the tenant is not entitled to

contest the application before the Controller, unless he has paid or pays to the landlord or deposits with the Controller, all arrears of rent due in

respect of the building up to the date of payment or deposits and continues to pay or deposit the subsequent rents falling due in respect of the

building, until the termination of the proceeding before the Controller.

u/s 11(3) of the Act, when there is any dispute as to the amount of rent to be paid or deposited under Sub-section (1), the Controller shall

determine by making such enquiry the rent payable or to be deposited on the application made to him by either of the parties.

u/s 11(4), the Controller shall stop all further proceedings and make an order directing the tenant to put the landlord in possession of the

building if the tenant fails to pay or deposit the rent, unless the tenant shows sufficient cause to the contrary.

Section 11(1), (3) and (4) of the Act are made applicable to the Appellate Authority as well. The reading of the provisions would make it clear

that where the application for eviction was filed by the landlord u/s 10 of the Act, the tenant shall not be entitled to contest the application before

the Rent Controller, unless the arrears of rent are paid and likewise, the tenant cannot also prefer an appeal u/s 23 of the Act against any order

made by the Controller on the application, unless the arrears of rent are either paid to the landlord or deposited.

The object of these provisions as laid down by various rulings is that the tenant should not take advantage of the pendency of the proceeding

u/s 10 of the Act by not making the arrears of rent when they fall due either during the course of the proceeding before the Controller or the

Appellate Authority.

Thus, on a consideration of the relevant provisions in the Act, it is clear that the appeal u/s 23 of the Act contemplated u/s 11(1) of the Act

must arise out of an order for eviction passed u/s 10 of the Act and in such an event, the provisions of Section 11(1), (3) and (4) of the Act could

be invoked by the landlord.

Section 11(1) of the Act speaks of payment or deposit of rent during the pendency of the proceeding or eviction as a condition precedent for

entitling the tenant to contest the application for whether before the Rent Controller. Similarly, the deposit of the amount ordered u/s 11(4) is a sine

quo non for entertaining the appeal by the appellate authority.

The wording in Section 11(1) of the Act is 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 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....

It shows that under Sub-section (1), it would not be open to the tenant to contest the application for eviction pending before the Controller,

unless all the arrears of rent are paid. This is before the original authority pending proceeding. Likewise, before the appellate authority also, such

payment has to be made.

Sub-section (2) requires the deposit of rent to be made within the time and the manner prescribed. But, the section is very clear in regard to

the appeals to be filed before the Appellate Authority, that the tenant cannot prefer an appeal, unless the arrears of rent is paid.

The only difference between the original authority and the appellate authority is that before the original authority the tenant is not entitled to

contest the application pending proceeding for eviction, whereas before the appellate authority he shall not be entitled to prefer an appeal u/s 23.

This makes it clear that the appellate authority cannot entertain the appeal being preferred by the tenant without payment of arrears of rent.

This interpretation alone would be in consonance with the object above mentioned.

In the light of the above legal situation, I am in perfect agreement with the view expressed by the Hon''ble Srinivasan, J. (as he then was) in

Ravichandran Vs. N. Sulaiman, cited supra, following the judgment of a Division Bench of this Court in Kuppanna Chettiar v. Ramachandran AIR

1981 Mad. 35 that the appeals against orders under Sections 11(3) and 11(4) of the Act arising out of eviction petition u/s 10 of the Act, are not

maintainable, unless the arrears of rent are paid, though there is another view expressed by the other Judges on the strength of the decision of

another Division Bench of this Court in R. Radha Vs. C.R. Govindarajulu, .

However, on consideration of all the decisions cited supra, I am of the view that these revisions could be disposed of on a short ground,

though there are some contrary views.

Hon''ble R. Balasubramanian, J. and Hon''ble S. Abdul Wahab, J. though given a contrary view in the above cited decisions, have not disputed

the proposition of law laid down in the decision reported in Pichai Chetty v. N.K. Muthukrishnan (1991) 2 L. W. 614, wherein it is held that when

the tenant filed an appeal before the Appellate Authority against the order passed in main R.C.O.R, then the appeal would be maintained only

when the deposit is made while filing the appeal. In both the decisions, they have followed the decision of the Division Bench of this Court in R.

Radha Vs. C.R. Govindarajulu, .

Even R. Balasubramanian, J. would hold, after elaborate discussion on the basis of the various judgments, that the requirement to deposit the

amount as found due and ordered on an application u/s 11 of the Act would not be attracted to an appeal filed by the tenant against an order

passed u/s 11 of the Act, but such a requirement is called for to be complied with only either when the tenant is contesting the proceedings filed for

eviction against him before the Rent Controller or when he files an appeal against an order of eviction passed u/s 10 of the Act.

In the light of the above legal situation, let me now answer the question posed before this Court.

This is a case where the landlords filed a petition for eviction on the ground of wilful default. During the pendency of the main R.C.O.P. since

there was arrears of rent at the rate of Rs. 900 for more than 23 months, they filed an application u/s 11(4) for directing for the deposit of arrears.

By filing a counter the tenant contested the proceedings stating that the rate was only Rs. 600 and as such, he was not liable to pay the alleged

arrears.

The enquiry was conducted and documents were marked. Exs.A-1 to A-5 were filed by the landlords to show that the notices were sent by

the landlords demanding the rental arrears and the monthly rent was only Rs. 900 and despite the receipt of the notices, no reply was sent.

Admittedly, no documents were produced on behalf of the tenant to establish his plea.

On consideration of the materials and on hearing the counsel for the parties, the Rent Controller passed an order u/s 11(4) directing the tenant

to pay the arrears for 23 months, namely, Rs. 27,000 by the order dated 3.1.1992 on or before 20.1.1992.

In the said order, the tenant was a party. Only after giving opportunity to the tenant, the said order was passed. However, the tenant has not

chosen either to file an appeal against the order dated 3.1.1992 or to deposit the amount within the stipulated time. Even on the eve of the expiry

of the period, the tenant could have filed a petition seeking extension of time. But, this was also not done.

In the light of the said fact situation, the Rent Controller passed the order on 21.1.1991 both in M.P. No. 934 of 1991 filed u/s 11 (4) and

R.C.O.P. No. 762 of 1991 filed u/s 10(2)(i) of the Act, directing the tenant to vacate the premises and hand over the same to the landlords within

two months. Only after the final order was passed in main R.C.O.P. on 21.1.1992, the tenant filed the appeals on 27.10.1992, one appeal is

against the order passed in the said R.C.O.P. filed u/s 10(2)(i) of the Act and another appeal is against the order passed in M.P. No. 934 of 1991

filed u/s 11(4) dated 21.1.1992. This would show that the above two appeals have been filed against both the orders separately.

According to Section 11(1) of the Act, the deposit of entire arrears of rent is a sine quo non for filing an appeal not only against the order

passed in the petition filed u/s 11(4) of the Act, but also against the order passed in the main R.C.O.P.

Under these circumstances, I am unable to countenance the contentions urged by the counsel for the petitioner and consequently, these

revisions are liable to be dismissed and accordingly, the same are dismissed. No costs.