S. Mohanavadivelan vs V.C. Thiyagarajan

K. Kalyanasundaram, J.—This Civil Revision Petition is directed against the order dated 25.09.2014 made in M.P.No. 684 of 2014 in MP No. 535 of 2014 in RCA No. 365 of 2014 on the file of the VII Small Causes Court at Chennai.

The revision petitioner is the tenant. The respondent initiated eviction proceedings against the petitioner in RCOP No. 547 of 2012 on the ground of wilful default. The landlord filed M.P.No. 711 of 2012 in the eviction petition under Section 11(3) & 11(4) of the Tamil Nadu Buildings (Lease & Rent Control) Act 1960 seeking direction to the tenant to pay Rs. 2,16,810/- towards arrears of rent for the period November 2011 to August 2012 and continue to pay the future rent. The application was resisted by the petitioner stating that he had paid advance Rs. 1,00,000/- by way of written agreement and Rs. 45,000/- by way of oral agreement and as per Section 7 of the Tamil Nadu Buildings (Lease & Rent Control) Act, the landlord is entitled to receive only one month''s rent as advance and the balance amount has to be adjusted towards arrears of rent.

The learned Rent Controller held that the tenant has paid only Rs. 1,00,000/- towards advance and there is no proof for payment of Rs. 45,000/- as advance to the landlord. After deducting the excess advance amount, the rent controller directed the tenant to a sum of Rs. 1,37,270/- to the landlord, on or before 05.12.2013. Challenging the order, the tenant has filed an appeal in RCA No. 365 of 2014.

In the appeal, the landlord filed application under Section 11(3) & 11(4) of the Act in MP No. 535 of 2014, praying for a direction to the tenant to pay the arrears of rent for the period from September 2012 to July 2014 amounting to Rs. 5,28,740/-. In the said application, the tenant filed M.P.No. 684 of 2014 for a direction of attendance of the landlord for the purpose of cross examination in M.P.No. 535 of 2014. The landlord filed counter affidavit stating that the application itself is not maintainable in law and the code of civil procedure is not applicable to the Rent Control Proceedings.

The main contention of the tenant is that he had paid Rs. 1,45,000/- towards advance and another sum of Rs. 1,60,000/- towards arrears of rent but the landlord issued receipt only for Rs. 1,20,000/-. The landlord filed counter stating that the rent controller had adjusted the arrears of rent from the excess advance amount of Rs. 1,00,000/- and denied receipt of Rs. 1,60,000/- as claimed by the tenant. The Rent Control Appellate Authority dismissed M.P.No. 684 of 2014. Aggrieved by the order, the tenant has preferred the present revision.

Mrs.V.Yamunadevi, learned counsel for the petitioner/tenant submitted that the Appellate Authority erred in dismissing the application and the averments contained in M.P.No. 535 of 2014 are totally unreliable and contradictory in nature. It is further submitted that the claim of the landlord for service tax from the tenant was not substantiated with relevant documents and in the above circumstances, the examination of the landlord is very much necessary in this case. She relied upon a judgment of Rajasthan High Court in Chotu Khan Vs. Abdul Karim, wherein it has been held that the court may order attendance of cross examination of the deponents for good reasons. If it appears that the application has been moved with the object of delaying the disposal of the matter or without bonafides, it may reject it.

Per contra, Mr.N.S.Manoharan, learned counsel for the respondent/landlord would submit that the tenant has not proved the payment of Rs. 1,45,000/- paid as advance and Rs. 1,60,000/- paid as arrears of rent whereas the landlord has admitted receipt of Rs. 1,00,000/- towards advance and Rs. 1,20,000/- towards arrears of rent, but the tenant filed the application only with a view to drag on the proceedings. The learned counsel further submitted that even if the disputed amount of Rs. 85,000/- is given credit, still the tenant is in arrears of more than Rs. 5,00,000/-. The learned counsel relied upon following judgments in support of his contention that the civil procedure code is not applicable to the rent control proceedings.

(i) Mrs. Sakunthala and Others Vs. Mrs. A. Devi,

(ii) 2005 (2) TLNJ 247 [Arumugam v. Seethalakshmi & Ors.]

(iii) M. Paul Raj Vs. N. Paramasivam and The Executive Officer, Incorporated and Uncorporated Devasams,

(iv) A.N. Mehta Vs. K. Thomas and Another,

Indisputably, the application filed by the landlord in the eviction petition claiming arrears of rent from November 2011 to August 2012 was allowed by the Rent Controller after deducting one month''s rent of Rs. 20,460/- as advance. The Rent Controller held that the tenant has no evidence to prove the payment of additional advance of Rs. 45,000/-. The Rent Controller has also held that as per the agreement, the tenant is liable to pay the service tax, referring to Ex.P4, rental agreement. In Ex.P3, reply notice, the tenant has stated that he paid Rs. 1,00,000/- towards advance amount. Considering the exhibits P1 to P5, the Rent Controller has rightly deducted Rs. 79,540/- being the excess advance amount paid and directed the tenant to pay the arrears of rent of Rs. 1,37,270/- to the landlord.

The landlord had filed M.P.No. 535 of 2014 seeking arrears of rent from the month of September 2012 to July 2014, totally to a sum of Rs. 5,28,740/-. It is to be noted that the learned counsel for the landlord had completed his arguments and when the petition was posted for arguments of the tenant, this application was filed. This Court has taken a consistent view that Code of Civil Procedure is not applicable to the rent control proceedings and the Special Procedure of Rules framed under the Tamil Nadu Buildings (Lease & Rent Control) Act, provided for a procedure to be followed by the Rent Control Authority.

Admittedly, the landlord has not chosen to examine himself as a witness in the miscellaneous petition. However, the tenant, who has no material to establish his case without bonafides filed this application with an oblique motive. The Appellate Authority has rightly held that the tenant can produce his own documents to prove the payment of advance amount, as claimed by him and thus dismissed the application. In such circumstances, I do not find any illegality or irregularity in the impugned order warranting interference by this Court.

In the result, the civil revision petition is dismissed confirming the order passed in M.P.No. 684 of 2014 in MP No. 535 of 2014 in RCA No. 365 of 2014. No costs. Consequently, connected Miscellaneous Petition is closed.