V. Janaki vs Azimunnisa Begum

S.M. Abdul Wahab, J.—C.R.P.No. 3172 of 1994 is against the order dated 26.10.1993 in R.C.A.No. 61 of 1992 confirming the

judgment of the Rent Controller dated 29.11.1991 in M.P.No. 1140 of 1990 in R.C.O.P.No. 2734 of 1989.

C.R.P.No. 2788 of 1996 is against the order dated 26.10.1993 in R.C.A.No. 62 of 1992 confirming the order of the Rent Controller dated

29.11.1991 in R.C.O.P.No. 2734 of 1989.

Both the civil revision petitions arise out of a common order dated 26.10.1993 in R.C.A.Nos. 61 and 62 of 1992 on the file of the VII Judge,

Small Causes Court, Madras.

R.C.O.P.No. 2734 of 1989 was filed by the landlady u/s 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control), Act, 18 of 1960, for

eviction against the respondent-tenant in both the civil revision petitions in this Court. During the pendency of the petition, the respondent-landlady

filed a petition M.P.No. 1140 of 1990 u/s 11(3) and (4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for deposit of Rs.

9,588 being the arrears of rent at Rs. 452 per mensem, during the pendency of the eviction petition.

The tenant filed a counter and contended that failure to pay the amount consequent on the fixation of fair rent cannot constitute a ground of

default, for invoking Section 11(4) of the Act. It was also contended that even though the tenant was ready to pay the contractual rate of rent of

Rs. 90, it was refused. Hence, the arrears accumulated. Even in the first hearing of the petition for eviction, the arrears amounting to Rs. 630 was

tendered, but it was not accepted. The Rent Controller allowed the petition and directed the tenant to deposit a sum of Rs. 11,752 before

16.7.1991 and stating that in case of failing to comply with the direction, the proceedings would be stopped. The petitioner filed R.C.A.No. 61 of

1991 against the said order. The tenant also filed R.C.A.No. 62 of 1992 against the order passed by the Rent Controller in R.C.O.P.No. 2734 of

1989, which was allowed, since the tenant failed to comply with the order u/s 11(4) of the Act.

The counsel for the petitioner contended that as per Section 24 of the Tamil Nadu Buildings (Lease and Rent Control) Act, the fair rent

becomes final only when the appeal is disposed of. He also cited the decision reported in Visalakshi Ammal v. T.B. Sathyanarayana (1996) 2

L.W. 849 in support of his contention.

The learned Counsel for the respondent contended that after the eviction order was passed, the respondent filed execution petition and has

taken delivery of possession of the building from the petitioner on 25.10.1994. It is also stated that when the appeal R.C.A.No. 407 of 1989

preferred against the fixation of fair rent in R.C.O.P.No. 1096 of 1985 there was no stay. Hence, the petition for eviction R.C.O.P.No. 2734 of

1989 was filed, stating that the tenant had committed default in payment of rent at Rs. 452 from April, 1989 to August, 1989. When the said

petition was pending, the respondent filed petition u/s 11(4) of the Act claiming rent at Rs. 452. It is also to be seen that when the appeal

R.C.A.No. 407 of 1989 was preferred against the fixation of fair rent at Rs. 452 there was no stay.

It also transpires that when the interim order was passed in M.P.No. 1140 of 1990 on 29.11.1991, the petitioner filed an appeal against the

interim order i.e., R.C.A.No. 630 of 1991. He also obtained stay in M.P.No. 499 of 1991 and when the condition was not complied with, the

stay was vacated. Only thereafter, the Rent Controller passed the final order in M.P.No. 1140 of 1990 in R.C.O.P.No. 2734 of 1989. As against

the final order in M.P.No. 1140 of 1990, the petitioner preferred R.C.A.No. 61 of 1992 and against the consequential order of eviction in

R.C.O.P.No. 2734 of 1989, R.C.A.No. 62 of 1992 was filed.

After the fixation of fair rent, the respondent issued a notice on 23.3.1989, requesting the petitioner to pay the arrears of rent, calculating the

same as per the fair rent. But for this, the petitioner sent a reply on 21.4.1989 stating that the fair rent fixed has not become final, since the appeal

is pending. Therefore, the learned Counsel''s contention is that as per Section 23(4) of the Act, the decision of the appellate authority shall be final.

We have to consider the relevant dates in this case for deciding the two civil revision petitions.

The eviction petition R.C.O.P.No. 2734 of 1989 was filed in September, 1989, claiming the fair rent fixed in R.C.O.P.No. 1096 of 1985 on

29.3.1989. The fair rent fixed in the said petition was Rs. 452. The said rent was reduced to Rs. 375 on 20.9.1990 in R.C.A.No. 407 of 1989.

So only on 20.9.1990, the respondent became entitled to collect the rent at Rs. 375 with effect from 1.4.1985. But in this case, R.C.O.P.No.

2734 of 1989 was filed in September 1989, claiming the rent at Rs. 452, from 1.4.1989 to August, 1989. Further, the petition under Sections

11(3) and 11(4) of the Act was also filed by the respondent on 27.11.1990. In the said petition also the rent was claimed at Rs. 452 per mensem

from 1.4.1989 to 31.05.1991. In the aforesaid petitions 11(3) and 11(4) of the Act, the direction to pay the rent at the said rate for 26 months

amounting to Rs. 11,752 was issued by the Rent Controller on 29.11.1991. But unfortunately it is to be seen that on 20.9.1990 itself, the fair rent

was reduced to Rs. 375 and the respondent was not entitled to have the sum of Rs. 11,752. Even though the order is dated 29.11.1991 i.e., more

than one year after the fair rent was reduced to Rs. 375 on 20.9.1990, the result of the appeal R.C.A.No. 407 of 1989 was not brought to the

notice of the court. But whatever it is, when the respondent was not entitled to the sum of Rs. 11,752 can an order be passed against the petitioner

for non-payment of the said amount?

It was not brought to my notice that order dated 20.9.1990 in R.C.A.No. 407 of 1989 reducing the fair rent to Rs. 375 was stayed by this

Court in any civil revision petition filed by the respondent. I can understand if there was any such revision petition filed against the said reduction

and any order passed staying the operation of the reduction order passed by the Rent Controller in M.P.No. 1140 of 1990 on 25.6.1991, the

order dated 29.11.1991 would be justified. This fact has not been noticed by the Rent Controller as well as the appellate authority in the present

case.

The appellate authority has simply relied upon the judgment reported in P.S. Hussain Vs. C.A. Kabeer, . In the said decision, it is stated that

the difference between the fair rent and the contractual rent was not paid and hence the petition filed u/s 11(4) for the period from 28.2.1986 to

August, 1986, was allowed. In the said case, there was no dispute about the fair rent fixed. But in this case, the fair rent did not become final. The

respondent was not entitled to claim the rent at the rate of Rs. 452 when the direction was issued in this regard on 25.6.1991 and 29.11.1991.

Therefore, when the landlord was not entitled to claim the rent at Rs. 452 and when a direction is issued against the respondent to pay the rent at

Rs. 452, there is no justification for finding fault with the petitioner when he failed to pay the same.

It may be remembered that the reduction of rent was not brought to the notice of the Rent Controller by the parties or on their behalf by their

lawyers. The court can take judicial/notice that when a fair rent is reduced to Rs. 375 from Rs. 452, the tenant would not have failed to bring it to

the notice of the Rent Controller if he had knowledge about it, when the Rent Controller issued a direction to pay the higher rent. But unfortunately,

in this case, I have to only doubt whether the reduction was actually brought to the notice of the parties, the petitioner as well as the respondent by

the advocates. As soon as orders are passed in the rent control proceedings or in the appeals, arising therefrom, the Advocates would have

definitely known about it. Therefore, when the court is kept in darkness about a relevant material fact, it is the advocates who are to be blamed. If

it is a matter of fact that has to be disclosed by the parties to the court through the lawyers, the blame cannot be put on the lawyers; but when the

facts have to be conveyed from the advocate to the parties and courts and if there was no conveyance of the facts to the parties or to the courts,

certainly the lawyers have to be blamed and when such non-conveyance has also resulted in the court from passing an order without taking note of

a relevant material fact, this Court has to take a serious note of the same and record that the lawyers appearing for the parties before the Rent

Controller have failed to discharge their duties.

Whatever it may be, the situation, one thing is certain that when the order was passed on 25.6.1991, 29.11.1991, the respondent was not

entitled to claim the arrears of Rs. 11,752 and for non-payment of the said amount, the petitioner cannot be found fault. The learned Counsel for

the petitioner cited a judgment reported in Visalakshi Ammal v. T.B. Sathyanarayana (1996) 2 L.W. 849 to support his contention that the failure

to pay the arrears calculated on the basis of difference between the fair rent and the contractual rent would amount to default. In the said case, the

fair rent fixed became final and even thereafter the said rent was not paid. Therefore, in that circumstances, the First Bench of this Court held that

Section 10(2)(i) of the Act would be applicable. The learned Judges have observed as follows:

Section 10(2)(i) of the Act, when as per the law, the fair rent fixed becomes effective from the date of application and it becomes payable on the

date the order fixing the fair rent is passed by the Rent Controller, unless the said order is challenged in appeal and thereafter in revision; and in

such event when the order becomes final.

But in this case, the appeal was pending and in spite of the pendency of the appeal, the respondent has chosen to file a petition at her risk only and

therefore when she has taken the risk, she has to suffer for the same. The facts of this case is therefore different from the facts of the case cited.

Hence the said decision is not helpful to the respondent.

In the light of the above circumstances, the order passed by the appellate authority in both the appeals i.e., R.C.A.Nos. 61 and 62 of 1992

have to be set aside. Accordingly, they are set aside. The civil revision petitions are allowed. However, there will be no order as to costs.