V. Radhakrishnan vs V. Krishnamurthy

S.S. Subramani, J.—Tenant in R.C.O.P.72 of 1997 on the file of Principal District Munsif, Vellore is the revision petitioner. Landlord filed

eviction petition and pending proceedings, he also moved an application u/s 11(4) of the Act directing tenant to deposit the rent.

Rent Controller as per order dated 11.6.1999 directed tenant to deposit a sum of Rs. 19,600/- on or before 29.6.1999 and further held that in

case the amount is not deposited further proceedings will be stopped and directed the case to be called on 30.6.1999.

Against the said order, tenant preferred appeal before Appellate Authority and the same was refused to be numbered by Appellate Authority

for the following reasons:

Records perused. The Appellant/petitioner was the respondent in RCOP72/97 in which the landlord has filed a petition in I.A.49/97 under

Sec.11(4) of T.N.B.(L&RC) Act. The RCOP was filed in D.M.C Vellore by the Landlord seeking, eviction of the tenant/appellant herein on the

ground of wilful default. The Lower Court has passed an order directing the tenant/appellant herein to pay the arrears of rent to the landlord on or

before 29.6.1999. The tenant/appellant has not complied with the conditional order, but filed the appeal Memorandum in this Court. As to the

maintainability the petitioner has cited an authority in 81 L.W.383. In that authority it was stated ""that the Court below were in error in coming to

the conclusion that the tenants (respondent) were under no obligation in law to deposit the entire arrears due for the period, irrespective of

limitation, as urged by the landlord. According to the authority the landlord was entitled for the rent arrears which were claimed by the tenant as

time barred. There is no direction about the filing of appeal against the conditional order passed u/s.11(4) of TNB(L&RC) Act.

In M.Y. Mohamed Ismail Vs. Sashi Sachdev, Bharat Surigical Corporation, it was observed when an order was passed u/s.11(4) of the Act

without payment in pursuance of the order, appeal cannot be entertained by the Appellate Authority.

The petitioner herein has not made the payment as ordered by the lower Court in I.A.49/97 in R.C.O.P.72/97 u/s.11(4) T.N.B(L&RC).

Therefore, the appeal memorandum filed by the petitioner is not maintainable in the above said circumstances and this Appeal Memorandum is

rejected accordingly.

The said order is under challenge in this revision petition.

After hearing learned counsel on both sides, I do not think that the order of Appellate Authority is correct.

In (1999) 1 M.L.J. 740 (Schwartz Dasan v. Devadoss), in paragraphs 11 and 12 it is held thus,

Now, we will come back to Sec.11(4) of the Act. Sec.11(4) of the Act contemplates the payment of rent during the pendency of an

application for eviction under Sec.10 of the Act. The restriction placed on the tenant is to prevent him to contest that application before the rent

controller. Again the restriction on the tenant is only with reference to an order passed by the rent controller on that application. Here the words

any order made by the controller"" is referable only to the application under Sec.10 of the Act and not to any miscellaneous or interlocutory

applications. So, a close analysis of Sec.11 of the Act discloses that the inhibition or restriction placed upon the tenant is only with reference to his

contesting the application under Sec.10 and an appeal which he prefers against such an appeal which he prefers against such an order. It does not

contemplates any order passed under Sec.11(3)of the Act.

When we come to the order to be passed under Sec.11(4) it is no doubt on the petition of eviction. But as I have already indicated the order

passed under Sec.11(4) is only consequential but the order passed under Sec. 11(4) cannot stand by itself. In all the cases when an order is

passed under Sec.11(3), the main appeal is invariably against that order Therefore, in my view when a tenant prefers an appeal against the order

passed under Sec.11(3), there is no necessity for him to deposit the arrears.

Similarly in K.P. Janaki Ammal and 8 others Vs. K. Badrinarayanaiah, , it is held thus,

...the question that arises for consideration in this revision was whether the tenants in the cases on hand, who had suffered an order u/s 11(3) and

(4) of 18/60, at the hands of the Rent Controller, should deposit the amount as found due and ordered by the Rent Controller in the proceedings

as a condition precedent before filing of the appeal. In other words, the question is whether the appeal filed by the tenants in such a case is

maintainable or not in the absence of such deposit? It was contended for petitioners-tenant that the statutory requirement of depositing the amount

as found due and ordered by the Rent Controller will only apply to a case where the tenant is contesting the proceeding taken in evicting against

him u/s 10 of the Act and to an Appeal filed by the tenant against an order of eviction passed u/s 10 of the Act and that to no other order passed

under the other provisions of the Rent Act, the statutory requirement as provided for u/s 11 of the Rent Act, would be attracted. In other words,

the submission of the learned counsel for the petitioner is that the order challenged before the Appellate Authority in R.C.ANo.405 of 1993 being

an order u/s 11(3) and (4) of the Rent Act, in an appeal filed against that order, the tenant is not under a legal obligation to deposit any money

much less the amount as determined by the Rent Controller in that application.

In the view of the above decisions, the order of Appellate Authority is set aside and Appellate Authority is directed to register the appeal and

dispose of the same in accordance with law. In the result, the revision petition is allowed. No costs. Consequently, C.M.P.12363 of 1999 is

closed.