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Judgment
K. Ravichandrabaabu, J.—Civil Revision Petition No. 3540 of 2008 is filed by the petitioners against the order made in the appeal in RCA
No. 3 of 2004 on the file of the Rent Control Appellate Authority, Kancheepuram. Civil Revision Petition No. 3546 of 2008 is filed by the very
same petitioners challenging the order passed by the Rent Control Appellate Authority in RCA No. 4 of 2004. RCA No. 3 of 2004 arises against
the order made by the Rent Controller in M.P. No. 102 of 2001 passed u/s 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act
(herein after referred to as the ''Act''). As the petitioners herein, who are the respondents in the RCOP, failed to comply with the conditional order
passed by the Rent Controller in depositing the arrears of rent, consequential order of eviction came to be passed in RCOP No. 28 of 2001. Thus,
the petitioners herein preferred two appeals before the Rent Control Appellate Authority. The Court below rejected both the appeals and
confirmed the order passed by the Rent Controller. Aggrieved against the same, the present civil revision petitions are filed before this Court.
Heard Mr. V. Raghavachari, learned counsel appearing for the petitioners and Mr. M. Venkatachalapathy, learned senior counsel appearing for
the respondents.
It is the contention of the learned counsel for the petitioners that when the petitioners herein have disputed the landlord and tenant relationship
and specifically taken a stand in the counter affidavit that their possession in the suit property is in pursuant to an agreement of sale, the question of
directing the respondents/petitioners herein to deposit the arrears of rent u/s 11(4) of the Act does not arise and consequently, the orders passed
by the Court below are erroneous. He further submitted that the Appellate Authority has rejected the said appeal only on the reason that the same
is not maintainable without depositing the rent in the appeal. In support of his submission, he relied on the decision of the Hon''ble Division Bench
of this Court reported in M/s. A. Rafeeq Ahmed and Co. Vs. M/s. Montari Leather Ltd.
Per contra, the learned senior counsel appearing for the respondents submitted that Section 11 of the said Act stipulates that no tenants against
whom, an application for eviction has been filed shall be entitled to contest the petition without paying or depositing the arrears of rent due in
respect of the building and also to continue to pay the rent for the subsequent periods. He further submitted that when the Rent Controller passed a
conditional order directing the petitioners herein to deposit the arrears of rent in an application filed u/s 11(4) of the Act, the petitioners failed to
pay the same and consequently, the order of eviction was also passed and the same has also been confirmed by the Appellate Authority. He
further submitted that even at the time of filing the appeal as against the order passed u/s 11(4) of the Act, the petitioners did not make any
payment before the lower Appellate Court. Therefore, the appeals are not maintainable. He further submitted that the Appellate Court has not only
dismissed the appeal primarily on the ground that the petitioners have not deposited the arrears of rent but on the other hand it has gone into the
merits of the appeals and dismissed the same on merits as well and therefore, this Court need not interfere with the order passed by the Courts
below concurrently as the petitioners have defaulted in effecting the payment as per the order passed by the Rent Controller u/s 11(4) of the Act.
He also relied on the decision of the Hon''ble Apex Court reported in (i) Maragathammal Vs. Kamalammal, and (ii) A.C. Abraham Kingsley
Vs. Shanthi and Others, Those two judgments are infact relied on by the lower Appellate Court to reject the appeals filed by the petitioners.
In these cases, admittedly, the order of eviction was passed by the Rent Controller consequent upon the failure of the petitioners in depositing
the rent, as per the order made u/s 11(4) of the Act. Thus, the order of eviction, was not an order on merits. On the other hand, it is only a
consequential order passed in pursuance to the failure of the petitioners in depositing the rent as directed by the Rent Controller in an order passed
u/s 11(4) of the Act. While considering the order passed u/s 11(4) of the Act, it is seen that the said order seems to have been passed as an ex-
parte order. Still, the petitioners cannot be permitted to say that they are not bound by the said order. Unless and until, the said order is set aside,
they are bound by the said order. But at the same time, it can not be said that they are not entitled to file appeal against that order. Thus, they have
filed an appeal challenging the said order passed u/s 11(4) of the Act as well as the consequential eviction order passed in the RCOP No. 28 of
2001.
Now, the further question is as to whether the petitioners are bound to deposit the rent before the Appellate Court at the time of filing the appeal
and whether such deposit is a condition precedent. The said question was already answered by the Hon''ble Division Bench of this Court reported
in M/s. A. Rafeeq Ahmed & Co. Rep. by its Partner K. Muktar Ahamed Vs. M/s. Montari Leather Ltd., rep. by its Chairman and Managing
Director (2002 1 L.W. 133), wherein it is found that it is not a condition precedent to deposit the arrears of rent ordered or directed to be
deposited u/s 11(3) or 11(4) to prefer an appeal u/s 23 of the Act before the first Appellate Court.
In fact, the Hon''ble Division Bench disapproved the views taken in very many decisions out of which, one is the decision reported in S.K.
Rajapandian Vs. A. Kesavan which decision has been relied on by another learned single Judge reported in A.C. Abraham Kingsley Vs. Shanthi
and Others, which infact was relied on by the lower Appellate Court to reject the appeals. Therefore, in my considered view, there need not be
any requirement for depositing the arrears of rent or the amount ordered by the Rent Controller u/s 11(3) and (4) while preferring the appeal
before the Appellate Authority challenging the very same order.
Insofar as the other decision relied on by the learned senior counsel for the respondents reported in Maragathammal vs. Kamalammal (2006 (4)
MLJ 1685) is concerned, the facts and circumstances of that case is totally different and distinguishable and hence, the same can not be applied to
the present case. On the other hand, the Hon''ble Division Bench decision reported in M/s. A. Rafeeq Ahmed & Co. Rep. by its Partner K.
Muktar Ahamed vs. M/s. Montari Leather Ltd., rep. by its Chairman and Managing Director (2002 (1) L.W. 133) is on the point.
Thus, by following the above cited decision of the Hon''ble Division Bench of this Court, I hold that the appeal filed by the petitioners before the
Appellate Authority is maintainable as against the order passed u/s 11(4) of the Act without depositing the Rent.
On a perusal of the order passed by the Appellate Authority, it would show that it was not dismissed simply as not maintainable for not
depositing the arrears of rent at the time of filing the appeal. Infact, the Appellate Authority has gone into the other contentions of the rival parties
and also found that the Rent Controller was right in directing the petitioners to make such deposit.
According to the respondents herein, who filed the eviction petition before the Rent Controller, the petitioners herein are their tenants.
However, such claim is disputed by the petitioners by stating that they are not tenants and on the other hand, they are in possession and enjoyment
of the property in pursuance to an agreement of sale. Such pleadings taken by the respective parties would certainly lead the Court to go into the
question to find out as to whether there exists landlord and tenant relationship between the parties. The said question goes to the root of the matter.
In the absence of any finding to that effect against the petitioners and in favour of the respondents, certainly, an order of eviction could not be
passed. Therefore, it is for the parties to contest the said issue before the Rent Controller and establish their respective case. Therefore, in my
considered view, the matters have to be agitated on merits and for such purpose, I find that the order of eviction passed by the Rent Controller has
to be set aside and the matters need to be remitted back for fresh disposal. At the same time, insofar as the application u/s 11(4) of the Act is
concerned, it is to be seen that the very section itself starts by saying that ''no tenant'' against whom, an application for eviction has been made shall
be entitled to contest the application. If a person, who is arrayed as respondent/tenant in the eviction proceedings, comes and disputes before the
Court that he is not a tenant and he is residing in the property in different capacity, then, in my considered view, strict application of Section 11
does not arise in those cases especially, under the circumstances that the relationship between the parties as landlord and tenant is disputed. Here
is the case of such nature. Therefore, the learned Rent Controller was not justified in ordering eviction without going into that issue. At any event,
the RCOP is of the year 2001 and the matter is kept pending for all these years by way of filing appeal as well as by filing revision before this
Court. In the event of the RCOP being allowed on merits, the interest of the respondents/landlords has to be necessarily protected at this stage and
therefore, without prejudice to the contentions of the either parties, the petitioners should be directed to deposit the entire arrears of rent before the
Rent Controller. Considering all the above facts and circumstances of the Case, these two civil revisions petitions are allowed by way of remand
subject to the conditions that the petitioners shall deposit the entire arrears of rent as on today, to the credit of RCOP No. 28 of 2001 on the file of
the Rent Controller, Kancheepuram, within a period of four weeks from the date of receipt of a copy of this order. If no such deposit is made by
the petitioners, within the time stipulated herein, both these civil revision petitions would stand dismissed automatically without reference to this
Court. The learned Rent Controller is directed to take up the RCOP No. 28 of 2001 for fresh consideration and dispose of the same on merits
and in accordance with law, within a period of two months from the date of receipt of a copy of this order. Consequently, connected miscellaneous
petitions are closed. No costs.