S. Rathinammal vs Ayyavu

T. Sathiadev, J.—This Revision is filed against an order made by the Appellate Authority under Act XVIII of 1960(here in after referred to

as ''the Act''), dismissing the petition to direct the deposit of the monthly rents during the pendency of G.M.A No. 28 of 1978 filed before it by the

tenant. The Court below had relied upon a decision of this Court in Abdul Azeez Khan and Others Vs. Appachi Goundar, to hold that, when there

is a denial of title of the landlord, there could be no direction for depositing the arrears of rent and the monthly rent till it is finally decided that there

is the relationship of landlord and tenant or not.

Landlord filed an application under Sections 10(2)(i) and 10(3)(ii) and 11(4) of the Act for eviction of the tenant-respondent herein on the

ground that he had committed wilful default for the period from 1st June, 1965 onwards till the date of petition. In the petition, she had claimed that

the tenant had taken up the premises for the purpose of conducting a Tea stall at the rate of Rs. 10 per month. For the period from 1st June, 1965

to 1st September, 1967, the tenant committed default in the payment of monthly rents which comes to Rs 270. The landlord had filed S.C. No.

834 of 1967 on the file of the District Munsiff''s Court. Salem which was decreed on 31st October, 1967 and the decree amount had not been

paid. No rent had been paid even after 1st September, 1967. The tenant is therefore liable to pay, at the rate of Rs. 20 per month in case of

default. Hence she had prayed for eviction of the tenant for non-payment of arrears of rent amounting to Rs. 1,807 as on the date of the petition.

The tenant remained absent and the petition was ordered by the Rent Controller by holding that wilful default pleaded is established and therefore

ordered eviction by order dated 5th August, 1978 Landlady filed Exhibits A-7 to A-16, which are demands made by the Municipality for payment

of taxes, in order to prove that the landlady is the owner of the building.

Aggrieved as against this order, the tenant preferred C.M.A No. 28 of 1978 to the Appellate Authority and asked for stay of the order of

eviction. The landlady filed I.A. No. 81 of 1978 stating that u/s 11(4) of the Act, unless the tenant deposits the entire arrears, further proceedings

should not be proceeded with. By the time the said I.A. No. 81 of 1978 was filed, the arrears according to the landlady, came to Rs. 2,640. In the

main R.C.O.P. the tenant in his counter-affidavit stated:

The property mentioned in the petition has been put up by this respondent''s father as early as in 1947 when Arunachala Gounder of Kitchipalayam

was owning the said land. From 1947 onwards, this respondent is in actual possession and enjoyment of the land as a tenant and not the

superstructure. The building has been constructed by this respondent''s father in 1947. The monthly rent for the vacant site of the property in

question is Rs. 10.

He claimed protection under Tamil Nadu Act III of 1922 and had stated that the landlady had no right to maintain the petition because there is no

relationship of landlord and tenant within the scope of the Act XVIII of 1960 and hence the petition is liable to be dismissed in limine.

In the counter-affidavit filed in I.A. No. 81 of 1978, the tenant had stated that the superstructure belonged to him and that the landlady refused

to receive rent for the site when he tendered rents through money order and that the Rent Controller has no jurisdiction over the matter because the

lease is only in respect of the vacant site. He further added:

This respondent begs to state that there is also dispute with respondent to ownership of the vacant site and the suit is pending in O.S. No. 533 of

1976 on the file of Sub-Judge, Salem."" ""In any event the petitioner is entitled to only three years rent for vacant site at the rate of Rs. 10 per

mensum. This respondent undertakes to deposit the three years'' rent, a sum of Rs. 360 towards rent for the vacant site within four weeks.

Based on these claims and counter-claims, the Appellate Authority, as stated earlier, held that when there is a bona fide denial of title, there could

be no direction to the tenant herein to deposit the arrears of rent.

Mr. Kumaraswami Pillai, learned Counsel for the petitioner contends that when landlady has secured a decree, no doubt, ex parte, as early as

31st October, 196(sic) for recovery of arrears of rent and when she had filed the petition for eviction on the ground of wilful default, after filing the

counter-affidavit, the respondent had allowed the matter to be decided ex parte in which the landlady was examined and she had also filed

documentary evidence to support her claim which had led to the passing of an order of eviction on the basis that there is the relationship of landlord

and tenant. The appeal has been filed by the respondent herein against the order of eviction. Merely because he has chosen to claim that the

landlady has no title to the superstructure, it would not mean that the Appellate Authority cannot have any jurisdiction to pass an order u/s 11 of

the Act. He further contends that the decision relied upon in Abdul Azeez Khan and Others Vs. Appachi Goundar, rendered under the earlier Act,

can have no application. He also refers to the decision of the Supreme Court in Om Prakash Gupta v. Dr Rattan Singh and Anr. (1963) 2 S.C.J.

475 wherein it has been held:

a simple denial of the relationship cannot oust the jurisdiction of the tribunals.

Mr. Sarvabhauman, learned Counsel for the respondent pleads that provisions of Section 11 of the Act are identical to the provisions made in

Tamil Nadu Act XXV of 1949 and that therefore the decision in Abdul Azeez Khan and Others Vs. Appachi Goundar, is squarely applicable to

the facts and circumstances of the present case. He further contended that when the tenant herein had disputed the ownership of the superstructure

and when landlady has also filed a suit in the Small Causes Court, it would not be proper for the Appellate Authority to direct the tenant to pay

monthly rent which would be derogatory for his paramount title which he claims in himself.

Section 11 of the Act enables the Controller or the Appellate Authority to direct a tenant against whom an Application for eviction has been

made to pay the landlord all arrears of rent or deposit the same with the Rent Controller or Appellate Authority as the case may be. The tenant can

also be directed to pay or deposit the monthly rents during the pendency of the proceedings. In case of any dispute about the quantum of rent,

Section 11(3) of the Act provides that the Statutory Authority, after making an inquiry, may determine summarily the rent to be paid or deposited.

In case of non-compliance with the order for payment or deposit, the Authority has to stall all further proceedings and direct the tenant to put the

landlord in possession of building. Clause 5 of Section 11 states that the amounts to be deposited, shall be subject to such conditions as may be

prescribed.

The point involved in this revision petition is that when the respondent before the Controller or the appellant before the Authority, namely the

tenant, denies the title of the landlady, can the Statutory Authorities under the Act, during the pendency of the proceedings, invoke Section 11 of

the Act or should such denial alone be a sufficient ground to disable the Statutory Authorizes from passing orders u/s 11 of the Act?

Reliance is placed on the decision of this Court reported in Abdul Azeez Khan and Others Vs. Appachi Goundar, , wherein it has been held:

The appeal is a continuation of the original proceedings initiated before the Rent Controller. If the question of tenancy was no longer in issue in

appeal, no doubt there is scope for arguing that Section 7-A(1) would apply if eviction had been sought on other grounds and ordered. But, as I

said, in this case the tenancy, that is, the status of the respondent as a tenant, was very much in issue even before the appellate Court. Till that

status was determined and till he was adjudged a tenant, there can be no question of calling upon him to deposit whatever was lawfully due within

the meaning of Section 7-A(1).

Section 7-A(1) of Act XXV of 1949 is in pari materia with Section 11(1) of Act XVIII of 1960. Reference was made to Section 7(2)(vi) of

Act XXV of 1949 which enabled a landlord to ask for eviction of the tenant, if the tenant, denies title of the landlord and if such a denial is not

bona fide, the Controller can make an order directing the tenant to put the landlord in possession of the building. Similar provision is made under

Act XVIII of 1960 also. Vide Section 10(2)(vii). In the above cited case, a petition was filed on the ground that the tenant had committed default

in payment of rent and that he had denied the title of the landlord. Eviction was ordered by the Rent Controller and it was during the pendency of

the appeal, the petition was filed for direction of the payment of arrears of rent. It was held that only in cases where the tenancy is not in dispute

and in cases where if has been adjudicated upon and when it is no longer an issue, Section 7-A(1) of Act XXV of 1949 will be applicable. But

where the tenancy is disputed until it is established that the person is a tenant, he cannot be called upon to shoulder the burden imposed by Section

7-A of the Act.

In this context, it will be useful to refer to the decision of the Supreme Court in Om Prakash Gupta v. Dr Ratan Singh (1963) 2 S.G.J. 475

rendered under Delhi Rent Control Act (LIX of 1958) wherein also a provision has been made enabling the Statutory Authorities to strike out the

defence, if the order for deposit of arrears of rent due is not complied with. In the case cited supra, a petition was filed on the basis of existence of

relationship of landlord and tenant. The respondent claimed that he was not a tenant and that, the application for eviction was not maintainable?

Hence the most important question, that arose for determination in that case, was whether or not the Rent Control Authorities had jurisdiction in

the matter in controversy. Section 15(1) of Act LIX of 1958 enables the Controller to order for depositing the arrears of rent due during the

pendency of the proceedings. Dealing with the scope of the order passed under the said section, it was held that such an order passed under the

said section, is meant primarily for the protection and benefit of the tenant and that if he took up the stand that he was not a tenant, ""he should have

simply denied the relationship and walked out of the proceedings"". If such a person takes active interest to get protection against eviction afforded

by the Act, it must be taken that the Controller had decided that there was a relationship of landlord and tenant and that the tenant is, entitled to the

protection under the Act Even though, under the Act, the authorities are not authorised to determine the question of relationship of landlord and

tenant finally, it proceeds on the assumption that there is such a relationship and if it is denied, the Authorities have to determine that question also

because a simple denial of the relationship cannot oust the jurisdiction of the Tribunal under the Act"". Therefore it was held therein:

In our opinion, therefore, there is no substance in the contention that as soon as the appellant denied the relationship of landlord and tenant, the

jurisdiction of the authorities under the Act was completely ousted. Nor is there any justification in the contention that the provisions of Sub-section

(7) of Section 15 of the Act had been erroneously applied to the appellant. The orders under those provisions were for his benefit and he must be

deemed to have invited the Controller to pass those orders in his favour. Otherwise, he should have walked out of the proceedings after intimating

to the Controller that he was not a tenant and that a third party was the tenant.

In the light of what has been held by the Supreme Court about the approach to be made regarding direction for deposit of rents I am of the view

that a simple denial of title of the landlord cannot take away the jurisdiction of the Statutory Authority to invoke Section 11 of the Act. Even in a

case where the landlord files a petition for eviction on the ground that the tenant had dented his title the Statutory Authority has the jurisdiction to

find out whether there is a bona fide denial of title or not and if no case is made out on ''hat aspect, under the Act, eviction can be ordered. Only in

cases where the statutory Authorities hold that there is a bona fide denial of title, the parties are directed to seek their relief in the civil Court.

Hence, there is necessary power, conferred on those statutory authorities, under Act XVIII of 1960, to find out whether the denial of title is bona

fide or not. Hence for the purpose of Section 11 of the Act, the concerned Statutory Authority can look into the prima facie material available in

record, and if it be shown that the relationship of landlord and tenant exists, inspite of the stand taken by the other side that the landlord is not

having any title to the property in order for payment or deposit of arrears of rent and for continued payment or deposit of the rent can be made.

No doubt Section 7-A(1) of Act XXV of 1949 is in pari materia with Section 11(1) of Act XVIII of 1960. But in view of the decision of the

Supreme Court, which I have referred to supra, the respondent herein cannot any longer rest upon the decision of this Court in Abdul Azeez Khan

and Others Vs. Appachi Goundar, . It is not necessary that there should be a final determination about the relationship of landlord and tenant,

before Section 11 of Act XVII of 1960 can be invoked. As pointed out by the Supreme Court it is for the benefit of the tenant, because by

depositing the arrears of rent, he can avoid eviction.

Further, it will be also pertinent to note that if Section 11 of the Act cannot be invoked, a tenant would be enabled to avoid payment of rents

on a mere plea taken in the counter that the landlord does not have title to the property or that there is no relationship of landlord and tenant

existing between them. In cases where the tenants have committed wilful default, or where the landlords have filed petitions for owners'' occupation

or demolition and reconstruction or in cases where tenants have committed injury to the properties which would constitute a ground for eviction,

tenants being fully aware of the ultimate result of the petition, would avoid payment of arrears of rent and also the monthly rents during the

pendency of the proceedings, by inducting in the petition a simple claim that the landlord has no title and there is no existence of landlord and tenant

relationship between them. This will only lead to an abuse of the process of the Court. Even in a case, where there is a registered lease deed or

rent receipts have been passed, or the landlord proves about the property being given on lease by relying upon any communication the tenant can

take up the defence that the registered deed is a forged one or has been brought into existence without himself knowing the contents or that what

was contemplated was only a licence and not a lease, and on such pleas, a tenant may claim that there is no relationship of landlord and tenant and

till finality is reached, he need not deposit rents.

The powers conferred u/s 1 of the Act cannot be whittled down by a defence taken in the proceedings without any acceptable material being

produced before Statutory Authorities. Landlords who have filed proceedings under the Act for eviction would thus be disabled from collecting the

rents during the pendency of the proceedings and driven to the necessity of filing civil suit for recovery of rents. Inspite of the provision made under

the Act u/s 11 of the Act, if this Court is to hold that mere denial of title and relationship of landlord and tenant, is sufficient it would enable him to

avoid complying with the requirements of payment of rents, till the status is finally determined.

In this case 1 have already extracted all the relevant portions of the counter filed in the main R.C.O.P. and also counter filed in I.A. No. 81 of

1978 to show that the respondent herein, though took up the stand in the main petition that only vacant site had been leased out on a monthly rent

of Rs. 10 he now claims that he has filed a civil suit disputing even the ownership of the vacant site. At the same breath, he had stated that he

undertakes to deposit three years'' rent at the rate of Rs 10 per month within 4 weeks from that date for the vacant site in all Rs. 360. The conduct

of the respondent-herein in taking up prevaricating positions even regarding the ownership of the vacant site shows that, there is no bona fides in

the denial of relationship of landlord and tenant under the Act.

The landlady has filed Municipal receipts for payment of property-tax and also the decree obtained for recovery of arrears of rent for the

period from 1st June, 1965 to 1st September, 1967. The Rent Controller on the basis of existence of relationship of landlord and tenant between

the parties, has ordered eviction. When such prima facie material is available, Appellate Authority was in error in holding that Section 11 of the Act

cannot be invoked merely because the respondent herein has denied title of ownership of the suit building.

On a proper construction of Section 11 of the Act, and in the face of what has been held by the Supreme Court in similar circumstances under

a different enactment, the jurisdiction of the Statutory Authorities, to exercise powers u/s 11 of the Act cannot be off-set on the simple denial of the

relationship of landlord and tenant made by the other side.

Before passing an order u/s 11 of the Act, the Statutory Authority has been authorised to decide the rent summarily, even in cases where there

is a dispute, Subsection (5) of Section 11 of the Act envisages that the Statutory Authority can impose condition regarding the amounts deposited

under Sub-section (1) of Section 11, and of payment to the landlord or for deposit of the rents with the statutory authorities. All these go to show

that in cases where the actual rent payable to the landlord is disputed or where a dispute is raised about the existence of relationship of landlord

and tenant, during the pendency of the proceedings, deposit of rent summarily decided by it has to be effected in the interests of both the parties.

For this purpose it may look into the existence of prima facie material, as is done in cases where interim injunction is prayed for under Order 39

CPC during the pendency of a suit. Such an approach alone will safeguard rights of parties to the proceedings, in that, if the landlord secures an

order for eviction, there will be no burden on the tenant to pay the entire arrears in one lump sum. There will be no need for institution of separate

civil suits for recovery of rents during the period of pendency of the proceedings, or even later on. Equally, if the petition is dismissed the amount

deposited can be withdrawn by the depositor. In such a contingency, it has been held by the Supreme Court that, if a person does not want to

comply with such conditions, he can walk out of the proceedings. It is to avoid an order of eviction that an appeal is preferred by him and for

enjoying benefit of continued occupation of the premises during the pendency of the appeal, the appellant is called upon to make deposits The right

to prefer an appeal, dependent upon the deposit of the amount involved in the original proceedings, is incorporated in enactments like Workmen''s

Compensation Act and Foreign Exchange Regulation Act. In those cases, even when the employer disputes the existence of relationship of

employer and employee, and in the other enactments where the appellant pleads that no offence had been committed by him, still they are called

upon to deposit the amounts involved in the proceedings, if the appeals are to be heard and disposed of. Hence, I see no reason as to why its

scope should be limited as to depend upon a defence set up by the other side in the proceedings. Apart from deposit to be made during pendency

of appeal, even during the course of proceedings before the Controller, jurisdiction has been conferred upon him for issuing such directions, and

which, as pointed out by the Supreme Court, are for the benefit of the tenant as it enables him to the protection against eviction.

Landlord has claimed that apart from the amount decreed in the petition, tenant had not paid any rent subsequently. In the petition, she had

claimed the monthly rent at Rs. 10 and in default at Rs. 20 per month. The respondent herein had stated that he had not paid the monthly rent of

Rs. 10 for the vacant site for three years arid is ready and willing to pay a sum of Rs. 360 within 4 weeks of 30th December, 1978. Whether the

tenancy is only that of the vacant site or is also inclusive of the building, the quantum of rent of Rs. 10 is not in dispute.

I have hold that the Appellate Authority has the jurisdiction u/s 11(4) of the Act to direct deposit of the arrears of rent and also pass orders for

payment of rent during the pendency of the proceedings u/s 11(1) of the Act. There being an ex parte decree as early as 1967, and the Rent

Controller having found that the respondent herein has committed wilful default in the payment of rents, the respondent is liable to deposit a sum of

Rs. 1,710 calculated at the rate of Rs. 10 per month inclusive of the period covered by the suit i.e., for the period 1st June, 1965 to 31st August

1979. He is granted time till 15th November, 1979 for depositing this amount before the Rent Controller, failing which, he will be liable to put the

landlady in possession of the building. The amount so deposited shall hot be drawn out by the landlady till proceedings instituted under Act XVIII

of 1960 are finally decided.

Regarding costs claimed, in R.C.O.P. No. 152 of 1973, respondent is liable to pay the same. The respondent will further be liable to deposit

the monthly rents regularly by the 5th of every succeeding month in the Rent Controller''s Court for the period beginning from 1st September,

1979. In this view, this Civil Revision Petition is allowed, with costs.