Jagadeesh Prasad v. K.Kuppusamy

petitioner/tenant to deposit a sum of Rs.20,200/- on or before20.8.2003 failing which M.P.No.737/2001 would be allowed. Therevision petitioner filed another M.P.No.523/2003 in RCA No.369/2001praying to extend the time by 3 weeks for deposit of rental arrearsof Rs.20,200/- as per order dated 1.8.2003. By order dated 27.8.2003,M.P.No.523/2003 was dismissed by the appellate authority. As theprevious order dated 1.8.2003 was not complied with, M.P.No.737/2001was allowed by the appellate authority on 27.8.2003 and consequentlyfurther proceedings were stopped in RCA No.369/2001 and the same wasalso dismissed on 27.8.2003. Aggrieved by the order dated 27.8.2003,in M.P.No.737/2001 in RCA No.369/2001, the tenant has filed CRPNo.1608/2003 and against the consequent order dated 27.8.2003, in RCANo.369/2001 CRP No.1604/2003 was filed.4.It is the case of the landlord, the respondent herein in RCOPNo.1932/1999 that from July 1997 onwards, the revisionpetitioner/tenant has not paid the monthly rent of Rs.350/- in spiteof his notice dated 10.9.1999. Thus wilful default was allegedagainst the revision petitioner/tenant in payment of rent from July1997 to August 1999. It is the further case of therespondent/landlord that he required the portion under the occupationof the revision petitioner/tenant by way of additional accommodationas the respondent is also carrying on business in the portion of thesame building.5.The revision petitioner/tenant resisted the eviction petitionby contending that he paid the rents up to September 1999 to thebrother of the respondent/landlord by name Manoharan. Whileadmitting that respondent/landlord is also carrying on business in aportion of the petition premises, the revision petitioner/tenantstated that the alleged requirement of the respondent/landlord is notbonafide.6.The rent controller after going through the evidence adducedbefore him held that the contention of the revision petitioner/tenantthat the respondent is not his landlord cannot be accepted. The rentcontroller has also referred to the fact that there is no evidence toprove that the revision petitioner/tenant has asked therespondent/landlord to pay the rent to his brother Manoharan and noreceipts from Manoharan were also received by the revisionpetitioner/tenant. The rent controller has also considered the suitfiled by the respondent/landlord in O.S.No.6761/1995 and the orderpassed in O.S.No.6761/1995 directing that the rent should be paidonly to the respondent herein and not to anyone else. The revisionpetitioner/tenant is also a party in the above suit which was decreedexparte on 30.7.1997. Therefore the rent controller held that therevision petitioner/tenant committed wilful default even aftersuffering a decree on 30.7.1997. https://hcservices.ecourts.gov.in/hcservices/

7.Insofar as the question of additional accommodation isconcerned, after adducing the evidence, the rent controller foundthat a case has been made out by the respondent/landlord and orderedeviction on that ground also.8.It is not in dispute that appeal was filed in RCA No.369/2001by the revision petitioner/tenant against the eviction order andpending appeal respondent/landlord filed M.P.No.737/2001 under Sec.11(4) of the Act praying to direct the revision petitioner/tenant topay the arrears of rent of Rs.18,700/- (from July 1997 to October2001) failing which to stop all further proceedings in the appeal.This petition was resisted by the revision petitioner/tenant bycontending that there is no landlord-tenant relationship and theexparte decree obtained by the landlord cannot be enforced.According to the revision petitioner/tenant that he has paid rent upto September 1999 to Manoharan, the brother of therespondent/landlord. Therefore the revision petitioner/tenantquestioned the claim of the respondent/landlord to get arrears ofrent from him in 11(4) petition.9.The appellate authority after holding that whether there islandlord-tenant relationship and whether there is any wilful defaultare the questions that could be gone into at the time of appeal,directed the revision petitioner/tenant to pay a sum of Rs.25,200/-being the rental arrears from July 1997 to June 2003 on or before20.8.2003. The appellate authority on 27.8.2003 dismissedM.P.No.523/2003 filed by the revision petitioner/tenant to extend thetime by 3 weeks for deposit of rental arrears as per the order dated1.8.2003 on the ground that already sufficient time extended inM.P.No.501/2003. As the conditional order was not complied with bythe revision petitioner/tenant, the appellate authority allowedM.P.No.737/2001 and consequently dismissed RCA No.369/2001. Hencethe above Civil Revision Petitions by the tenant.10.The learned counsel for the petitioner strenuously contendedthat the order of the appellate authority dated 1.8.2003 inM.P.No.737/2001 is contrary to the law declared by this court andtherefore the same is to be set aside and the entire matter to beremanded to the appellate authority for deciding the M.P.No.737/2001afresh. The learned counsel contended that when the tenancy is indispute, until it is established that the person is a tenant, hecannot be called upon to shoulder the burden imposed by Sec.11(4) ofthe Act. Therefore according to him the appellate authority ought tohave gone into the question whether there is a relationship oflandlord-tenant between the parties before directing the revisionpetitioner to deposit the rental arrears. In support of hissubmissions, he relied on the following decisions: https://hcservices.ecourts.gov.in/hcservices/ 1)1957(2) M.L.J. 513 (Abdul Azeez Khan v. Appachi Gounder) 2)1963(2) SCJ 475 (Om Prakash Gupta v. Dr.Rattan Singh)3)93 L.W. 484(Kesava Naicker v. Sivagnana Mudaliar)11.Per contra the learned counsel for the respondent hassubmitted that it is a simple case of the tenant failing to complywith the conditional order under Sec.11(4) of the Act and thereforeonce the arrears are not paid, the provisions of the Act will holdthe field and all further proceedings are to be stopped in theappeal. Therefore according to the learned counsel for therespondent/landlord the appellate authority has rightly decided theissue and the same need not be interfered with by this court underSec.25 of the Act. In support of his submissions, learned counselfor the respondent relied on the following decisions:1)1998(2) L.W. 245 (Arputham v. Singarayan Nadar)2)1991(2) L.W.614 (Pichai Chetty (died) and 5 others v.N.K.Muthukrishnan3)Order dated 3.4.2003 in CRP (NPD) No.1682/200212.I have considered the rival submissions carefully with regardto facts and citations.13.The only question that arises for consideration is whetherthe appellate authority has correctly decided the petition filed bythe respondent/landlord in M.P.No.737/2001 under Sec.11(4) of theAct.14.Sec.11 of the Act reads as under: "11.Payment or deposit of rent during the pendencyof proceedings for eviction:- No tenant againstwhom an application for eviction has been made bya landlord under Section 10 shall be entitled tocontest the application before the Controllerunder that Section, or to prefer any appeal underSection 23 against any order made by theController on the application, unless he has paidor pays to the landlord, or deposits with theController or the Appellate authority, as the casemay be, all arrears of rent due in respect of thebuilding up to the date of payment or deposits,and continues to pay or to deposit any rent whichmay subsequently become due in respect of thebuilding until the termination of the proceedingsbefore the Controller or the appellate Authority,as the case may be.(2)The deposit of rent under sub-section(1) https://hcservices.ecourts.gov.in/hcservices/ shall be made within the time and in the mannerprescribed.(3)Where there is any dispute as to theamount of rent to be paid or deposited under sub-section(1) the Controller or the appellateAuthority, as the case may be, shall, onapplication made to him either by the tenant or bythe landlord, and after making such inquiry as hedeems necessary, determine summarily the rent tobe so paid or deposited.(4)If any tenant fails to pay or to depositthe rent as aforesaid, the Controller or theAppellate Authority, as the case may be, shall,unless the tenant shows sufficient cause to thecontrary, stop all further proceedings and make anorder directing the tenant to put the landlord inpossession of the building.(5)The amount deposited under sub-section(1)may, subject to such conditions as may beprescribed, be withdrawn by the landlord onapplication made by him in that behalf to theController or the Appellate Authority, as the casemay be." 15.From the above it is very clear that it is the duty of thetenant to pay all arrears of rent while preferring an appeal underSec.23 against the order of eviction passed by the rent controllerunder Sec.10 of the Act. If the tenant has not deposited the arrearsof rent in the appeal proceedings as stated above, the landlord cantake out an application before the appellate authority asking thetenant to pay the rental arrears and if an order is passed callingupon the tenant to pay the rental arrears, the same has to becomplied with or else all further proceedings in the appeal has to bestopped and an order directing the tenant to put the landlord inpossession of the building is to be passed by the appellateauthority.16.There is no difficulty in following Sec.11 when the tenancyis admitted. But what is the position when the tenancy is denied anddisputed. In such circumstances, some adjudication has to beundertaken to find out the relationship between the landlord andtenant.17.In the case on hand, it was already adjudicated by the rentcontroller that the denial of landlord-tenant relationship is notbonafide and in fact there is a decree in O.S.No.6761/1995 filed bythe respondent/landlord for a permanent injunction restraining thedefendants in the suit (the revision petitioner is also one of the https://hcservices.ecourts.gov.in/hcservices/ defendants) not to pay the rent to any one except torespondent/landlord. It is an admitted position that neither stepswere taken to set aside the exparte decree nor an appeal was filedagainst the same. Therefore it is very clear that a duty is castupon the revision petitioner/tenant to deposit the rent at the timeof pursuing the appeal remedy. When the amount was not deposited,M.P.No.737/2001 was filed and the appellate authority directed therevision petitioner/tenant to deposit the rent.18.The main ground urged by the revision petitioner/tenant isthat the appellate authority ought to have adjudicated therelationship of landlord-tenant before passing that order and as itwas not done the matter is to be remanded to the appellate authority.19.In 1957(2) M.L.J 513 (cited supra), this court held asfollows:"In this case, as I have already pointed out, theController came to the conclusion, that the denialof title was not bona fide. If the denial oftitle had been bona fide, the parties would havehad to be referred to a Civil Court to determinethe question of title.Section 7-A runs:-"No tenant against whom an application foreviction has been made by a landlord under section7, shall be entitled to contest the applicationbefore the Controller under that section, or toprefer any appeal under section 12 against anyorder made by the Controller on the application,unless he has paid or pays to the landlord, ordeposits with the Controller or the appellateauthority, as the case may be, all arrears of rentdue in respect of the building up to the date ofpayment or deposit..."The disability imposed by section 7-A isagainst the tenant. In these proceedings thequestion whether the respondent is a tenant at allof the petitioners, was in issue all through. Itis not as if section 7-A(1) read:No person against whom an application foreviction also been made etc.As I said, the disability attaches itselfonly to a tenant. The eviction of a tenant can besought on various grounds, the grounds enumeratedin section 7(2) of the Act. In many of these casesthe question of tenancy itself may not be indispute. It may be possible to envisage cases, https://hcservices.ecourts.gov.in/hcservices/ even under section 7(2)(vi) of the Act, where thetenancy as such is not in dispute but the title ofthe person seeking eviction is denied. But wherein addition to, or independent of the denial ofthe petitioner's right as owner to evict, theperson sought to be evicted denies his own statusas a tenant, it is rather difficult to say he willcome within the scope of section 7-A(1), that is,within the scope of the expression "tenant". Ifthe tenancy is admitted, there can be nodifficulty. If the tenancy had already beenadjudicated upon and is therefore no longer inissue, the position would be the same. But wherethe tenancy is disputed, until it is establishedthat the person is a tenant, he cannot be calledupon to shoulder the burden imposed by section 7-A(1) of the Act. In these proceedings, as I said,the status of the respondent as tenant has yet tobe adjudicated upon. It is still in issue.The learned counsel for the petitioners urgedthat there was a finding of the Rent Controllerthat the respondent was a tenant, and that wassufficient to bring the respondent within thescope of section 7-A(1) as far as the appealbefore the learned Subordinate Judge wasconcerned. I am unable to accept this contention.The appeal is a continuation of the originalproceedings initiated before the Rent Controller.If the question of tenancy was no longer in issuein appeal, no doubt there is scope for arguingthat section 7-A(1) would apply if eviction hadbeen sought on other grounds and ordered. But, asI said, in this case the tenancy, that is, thestatus of the respondent as a tenant, was verymuch in issue even before the appellate Court.Till that status was determined and till he wasadjudged a tenant, there can be no question ofcalling upon him to deposit whatever was lawfullydue within the meaning of section 7-A(1).The view taken by the learned District Judgethat section 7-A(1) did not apply and theapplication had to be disposed of on the merits isright. This petition is dismissed with costs." 19.No doubt in the above decision this court held that till therelationship of the landlord-tenant is determined and till the tenantis adjudged as a tenant, there can be no question of calling upon thetenant to deposit. https://hcservices.ecourts.gov.in/hcservices/

20.In 1963(2) SCJ 475 (cited supra), the Hon'ble Supreme Courtin case arising under Delhi Rent Control Act held that there is nosubstance in the contention that as soon as the tenant denied therelationship of landlord and tenant, the jurisdiction of theauthorities under the Act was completely ousted.21.In 93 L.W. 484 (cited supra), this court following the aboveSupreme Court judgment held as follows:"8. ... Therefore, in dealing with an applicationunder S.11 of the Act, where the relationship oflandlord and tenant is admitted, no difficultyarises. But even in cases where such relationshipis disputed, the Rent Controller has to adjudicateupon the relationship and pass appropriate ordersbut cannot throw out the application on the groundthat there is a disputed relationship. Apart fromthe jurisdictional objection referred to and dealtwith already, the learned counsel for thepetitioner has not assailed the order of the RentController, under Sec.11(4) of the Act in anyother manner. Neither the Rent Controller nor theAppellate Authority did act in an erroneous mannerwhen they proceeded to determine the truerelationship of the petitioner and the respondentin the course of M.P.No.47/1978 under Sec.11 ofthe Act. Indeed, as stated earlier, it is theduty of the Rent Controller to decide thisquestion before dealing with an application underSec.11 of the Act and precisely this had been donein the instant case and it has been held thatoriginally, the wife of the respondent was thelandlord of the petitioner and that on her death,the respondent had succeeded to her interest andhad become the landlord of the property. Therelationship having been thus found, the order fordeposit of the rents by the tenant was correctlypassed and the correctness of that order, as seenearlier, cannot be assailed merely on the groundthat the relationship between the petitioner andthe respondent is not that of tenant and landlord.It is not in dispute that the amount directed tobe paid by the Rent Controller by his order, dated3rd August, 1978 had not been deposited within thetime granted by the Rent Controller.Consequently, the procedure adopted by the RentController under Sec.11 (4) of the Act and theconfirmation thereof by the Appellate Authority https://hcservices.ecourts.gov.in/hcservices/ are unexceptionable. The orders of theauthorities below are, therefore, perfectlycorrect and do not suffer from any illegality orimpropriety. The civil Revision Petition is,therefore, dismissed. No costs."22.In the above decision this court held that in dealing with anapplication under Sec.11 of the Act where relationship of landlordand tenant is disputed, Rent Controller has to adjudicate upon therelationship and pass appropriate orders, but cannot throw out theapplication on the ground that there is a disputed relationship.23.Citing the above decision learned counsel for the revisionpetitioner/tenant submitted that as the relationship of landlord-tenant was not adjudicated by the appellate authority before passingthe order to deposit the rent, in M.P.No.737/2001, the order is to beset aside and remanded to the appellate authority for fresh disposal.24.I am unable to accept the above submission of the learnedcounsel for the revision petitioner/tenant.25.The facts in the above revision petitions are peculiar andunique. First of all in the counter statement filed by the revisionpetitioner in RCOP No.1932/1999, it was not specifically denied thatthe respondent is not the landlord. It is specifically stated thathe was a tenant under the father of the respondent and it wasadmitted that after the death of the father all the legal heirsincluding the respondent are entitled to collect the rent from him.It is the tenant's further case that he was paying the rent to thebrother of respondent at the request of the respondent. The revisionpetitioner/tenant has also admitted that he is a party defendant inO.S.No.6761/1995 and he is also aware that an exparte decree waspassed on 30.7.1997 for a permanent injunction restraining thedefendants including the revision petitioner/tenant, from paying therent to anyone except to respondent herein. In such circumstances,there is no question of denial of tenancy by the revisionpetitioner/tenant. In view of peculiar facts as stated above, therevision petitioner/tenant cannot rely on the above decision tocontend that there should have been an adjudication by the appellateauthority before directing him to deposit the rental arrears.Further when the respondent has claimed the rent by sending a noticeand once the revision petitioner/tenant suffered a decree, either heshould have paid the rental arrears to respondent/landlord or oughtto have taken steps under Sec.9(3) of the Act to deposit the rentbefore the authority. Therefore I find no bonafide on the part ofthe revision petitioner/tenant on his failure to deposit the rent asdirected by the appellate authority. https://hcservices.ecourts.gov.in/hcservices/

26.In 1988(2) L.W. 245(cited supra), this court held as follows:"3.In this revision petition it is argued that theRent Controller did not pass an order under S.11(4) of the Act in I.A.15 of 1986 which was theapplication filed under S.11 by the landlords. Itis contended that the requirement of section couldbe satisfied only by passing a separate order inthe application and passing a consequential orderthereafter in the main R.C.O.P. It is argued thatthe Rent Controller passed the order under S.11(4)in the main R.C.O.P., straight away, instead ofpassing a separate order in the interlocutoryapplication and then passing a consequential orderin the R.C.O.P. I do not see any substance inthis argument advanced on behalf of thepetitioner. The section does not prescribe anysuch requirement as contended by learned counselfor the petitioner. S.11(4) of the Act is in thefollowing terms:"If any tenant fails to pay or deposit therent as aforesaid, the Controller or the appellateauthority, as the case may be, shall, unless thetenant shows sufficient cause to the contrary,stop all further proceedings and make an orderdirecting the tenant to put the landlord inpossession of the building."As per the wording of the section, the only orderthat has got to be passed by the Rent Controller,after satisfying himself that the arrears of renthad not been deposited as directed by the orderunder S.11(3) and that the tenant did not show anysufficient cause for his default, is it can stopall further proceedings and directing the tenantto put the landlord in possession of the building.Obviously that order has to be passed only in themain eviction petition. The Rent Controller hasdone that in this case.4.It is also contended that the appellateauthority is in error in confirming the order ofeviction when the tenant had deposited the entireamount in the appellate court at the time when hefiled the appeal. I do not agree with learnedcounsel for the petitioner. Once the petitionerfailed to deposit as directed by the RentController, an order under S.11(4) wouldautomatically follow and the Rent Controller made https://hcservices.ecourts.gov.in/hcservices/ no error in passing that order. Consequently, theappellate authority was right in confirming thatorder."27.From the above decision it is very clear that once thepetitioner failed to deposit the rent as directed by the rentcontroller an order under S.11(4) would automatically follow.28.In 1991(2) L.W. 614 (cited supra), this court held that thedeposit of arrears of rent is a condition precedent for filing anappeal against the order of eviction passed under Sec.10 of the Act.29.In CRP No.1682/2002 on 3.4.2003, between the same partiesthis court observed as follows: "7.I am of the view that there is some force inthe contention raised by the revision petitioner.It is pertinent to point out that even afterfiling of the eviction petition, the respondenthas not paid the rent. He is occupying theproperty without payment of rent. The orderpassed by the Appellate Authority that disposal of11(4) petition would amount to disposal of rentcontrol appeal itself, is not a proper approach.It is the duty of the tenant, who is in occupationof the property, either to pay the rent or depositthe same into the court. He cannot occupy theproperty without paying the same or depositing thesame. In the circumstance, it is just andnecessary that the matter has to be remitted backto the Appellate Authority with a direction thatthe petition filed under section 11(4) of the RentControl Act has to be disposed of without delay."30.In the above decision this court has clearly held that it isthe duty of the tenant who is in occupation of the property either topay the rent or to deposit the same into court and he cannot occupythe property without paying the same or depositing the same.31.In view of the above decisions, it is very clear that thetenant cannot be in occupation of a property unless he pays rent tothe landlord or deposits the same in the court. In the present case,the appellate authority has only directed the revisionpetitioner/tenant to deposit the rent into court and not to paydirectly to the respondent. In such circumstances, no prejudicewould be caused to the revision petitioner as the money is onlydeposited into the court when the appeal proceedings are in progress. https://hcservices.ecourts.gov.in/hcservices/ The revision petitioner/tenant cannot contend that he would neitherdeposit the money in the court nor pay it to any one and still he cancontinue to occupy the property till the rent control proceedings areultimately over.32.Yet another reason to reject the case of the revisionpetitioner is that after suffering the order in M.P.No.737/2001, hedid not come before this court immediately challenging the same. Infact, he filed 2 petitions in M.P.No.501/2003 and 523/2003 forextension of time for depositing the rental arrears. If that beingso, the revision petitioner has already acquiesced with the orderpassed in M.P.No.731/2001 directing him to pay the rental arrears ofRs.20,200/- as per order dated 1.8.2003. Time was extended inM.P.No.501/2003. The petition to extend the time in M.P.No.523/2003was dismissed on 27.8.2003. Admittedly, this order refusing toextend the time was not challenged before this court. It is obviousfrom the conduct of the petitioner that he was only buying timebefore the appellate authority under the guise of filing petition forextension of time before challenging the order dated 1.8.2003 inM.P.No.737/2001. Therefore it is to be held that by filing two timeextension petitions, in M.P.No.501/2003 and M.P.No.523/2003, thepetitioner is estopped from challenging the order passed inM.P.No.737/2001.33.In the result, I find no merits in both the Civil RevisionPetitions and hence they are dismissed. No costs. ConnectedC.M.P.Nos.17007 and 17008 of 2003 are also dismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarsks https://hcservices.ecourts.gov.in/hcservices/ To1.The Registrar, Court of Small Causes, Chennai.104.2.The Record Keeper,VR Section, High Court, Madras.+2ccs to Mr.G.Sugumaran,Advocate Sr 984,983+1cc to Mr.K.Amarchand, Advocate Sr 935GM (CO)km/25.1.C.R.Ps.(NPD)1604 & 1608/03.