P.S. Hussain vs C.A. Kabeer

Abdul Hadi, J.—This Civil Revision Petition by the tenant under the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 as

amended by Act 23 of 1973, is against the order dated 21.8.1989 in R.C.A.No. 495 of 1989 on the file of the VIII Judge, Court of Small

Causes, Madras reversing the order of the Rent Controller in M.P.No. 3 of 1987 in R.C.O.P.No. 3084 of 1986.

The said R.C.O.P. is for eviction of the petitioner from the petition premises on the ground of wilful default in the payment of rent for the period

from 1.4.1982 to the end of August, 1986. In the said R.C.O.P. the respondent-landlord filed the above said I.P.No. 3 of 1987 seeking an order

u/s 11(4) of the Act. Earlier the landlord filed R.C.O.P.No. 2115 of 1985 for fixation of fair rent for the said demised building and by an order

dated 22.12.1983 the fair rent was fixed at Rs. 10-60 as against the agreed rent of Rs. 20. He also held that there was no relationship of landlord

and tenant between the parties; the appeal, therefore was also dismissed. However, in the subsequent C.R.P., this Court held that there was

relationship of landlord and tenant between the parties and enhanced the fair rent to Rs. 146 per month by its order dated 28.2.1986. Since the

said R.C.O.P. was filed on 1.4.1982 the petitioner-tenant herein became liable to pay the rent at that rate, from 1.4.1982. The review petition filed

against the said C.R.P. order was also dismissed in October, 1988. Subsequent to the above order of the C.R.P., the respondent-landlord filed

the abovesaid R.C.O.P.No. 3084 of 1986 for eviction on the ground of wilful default in the payment of rent for the abovesaid period from

1.4.1982 till the end of August, 1986 and also filed the abovesaid M.P.No. 3 of 1987 stating that the tenant should not be allowed to contest the

R.C.O.P. unless he pays all the arrears of rent as per the fair rent fixed'' by this Court on 28.1.1986 and praying for eviction u/s 11(4) of the Act.

The Rent Controller dismissed the said M.P., but the appellate authority in R.C.A.No. 495 of 1988 set aside the order of. the Rent Controller and

directed the tenant to pay a sum of Rs. 7,479-43P, on or before 21.9.1989 towards the arrears of rent due for the period 1.4.1982 till the end of

August, 1986 at the rate of Rs. 146 per mensem as fixed by this Court on 28.2.86. It is against the said order of the appellate authority the tenant

has filed this revision petition.

learned Counsel for the petitioner contended that in view of the decision of this Court reported in Ranganathan C. v. M. Suri 100 L.W. 708 the

order of the appellate authority is wrong. No doubt, in the said decision it was held that the failure to pay the difference between the fair rent and

the agreed rent will not attract the provisions of Section 10(2)(i), and, consequently, Section 11(4) of the abovesaid Act, with reference to the rent

due before the date on which fair rent has been fixed. However, the said decision itself states that with reference to the fair rent due after the date

on which fair rent has been fixed, the said failure would attract the provisions of Section 10(2)(i) of the Rent Control Act and consequently Section

11(4) of the Act. In the present case, as stated above, the fair rent was originally fixed as early as 22.12.1983. No doubt ,when it was originally

fixed, the lower court held that the respondent and the petitioner herein had no relationship of landlord and tenant. But, however, as stated above,

when the matter came up before the High Court in C.R.P.No. 42221 of 1987 this Court held that such relationship was there and enhanced the

fair rent to Rs. 146 per month. But the tenant was only paying the agreed rent of Rs. 20 per month. After the order dated 22.12.83 he ought to

have paid the rent of Rs. 110.60 per mensem, but he paid only at the rate of Rs. 20 per mensem. So, with reference to the balance, the order u/s

11(4) of the Act could be passed, since the tenant did not pay the said balance. Even assuming the liability to pay the fair rent begins only from

28.2.1986, when only the High Court held that there was relationship of landlord and tenant between the parties, even then, the tenant should have

paid the fair rent due at the rate of Rs. 146 from 28.2.1986 till the end of August, 1986. Even that he has not done and even after 28.2.1986 he

paid only at the rate of Rs. 20. Therefore even applying the decision reported in Ranganathan, C. v. M. Suri 100 L.W. 708 when an order is

passed u/s 11(4) of the Act, it cannot be said that the said order is wrong. Even assuming the quantum of rent which the appellate authority

directed the tenant to pay is not correct, it is clear that atleast the difference between Rs. 146 and Rs. 20 per mensem for the period 28.2.1986 till

the end of August, 1986, the tenant ought to have paid to the landlord, if he wanted to contest the R.C.O.P. He did not do so. Therefore, the

direction given by the appellate authority to the tenant to pay, to the extent stated above, if not the entire sum of Rs. 7,479-43, cannot be said to

be wrong. Therefore, the Civil Revision Petition is dismissed. No costs. However, the petitioner tenant is given three months time to vacate the

premises provided he filed within two weeks from this date an undertaking affidavit that he would vacate within the said period without resorting to

any further litigation.