IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:11.02.2011 CORAM THE HONOURABLE Mr. JUSTICE T.S.SIVAGNANAM CRP (NPD) No.1119 of 2003 G.Suresh Kumar ... Petitioner/Tenant Vs. O.L.Muthu ... Respondent/Landlord Prayer: Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, against the fair and decreetal order of the VII Small Causes Court, Chennai, dated 16.12.2002 in R.C.A.No.160 of 2002 against the fair and decreetal order of the XV Judge, Small Causes Court, Chennai, dated 22.2.2002 in M.P.No.35 of 2001 in RCOP.No.897 of 1999. For Petitioner : Mr.S.Parthasarathy Senior counsel for M/s.Sarvabhuman Associates For Respondent : Mr.V.V.Sathya for Mr.M.V.Venkataseshan O R D E R This revision has been filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, (hereinafter referred to as the "Act") against the fair and decreetal order dated 16.12.2002 in R.C.A.No.160 of 2002 on the of VII Small Causes Court, Chennai, confirming the fair and decreetal order dated 22.02.2002 in M.P.No.35 of 2001 in RCOP.No.897 of 1999 on the file of the XV Judge, Small Causes Court, Chennai. 2. The tenant is the petitioner and the respondent is the landlord. The respondent herein filed RCOP.No.897 of 1999, before the learned Rent Controller for eviction of the petitioner from the petition premises under Section 10(2)(i), 10(2)(iii) & 10(2)(ii)(b) of the Act. The tenant resisted the eviction petition by filing a counter statement. The respondent filed M.P.No.35 of 2001 under Section 11(4) of the Act to direct the tenant to deposit the entire arrears of rent into Court and continue to deposit the future rents. According to the landlord, the monthly rent payable from 01.04.1998 is Rs.5000/- and that the tenant never paid the rent and therefore, a https://hcservices.ecourts.gov.in/hcservices/ legal notice was issued on 30.12.1998, to vacate and deliver vacant possession and subsequently, the tenant sent a pay order for Rs.10,000/-, which was adjusted for the rent due for the month of September and October 1998 and that the tenant intentionally failed to pay the rent of Rs.5000/- from November 1998 to December 2000 and therefore, eviction petition has to be stopped and the tenant should be evicted. 3. The tenant filed counter statement and resisted the said Section 11(4) petition, stating that from April 1998, he was paying a sum of Rs.5000/- as monthly rent and as the tenant has carried out the house maintenance including periodical repairs, the landlord during December 1998, agreed to compensate the tenant by reducing the rent from Rs.5000/- to Rs.3500/- from April 1998. According to the tenant, he sent a sum of Rs.3500/- towards monthly rent for February 1999 by cheque, which was refused to be received by the landlord. Further, it was contended that the tenant filed RCOP.No.958 of 1999 for interim deposit of rent and deposit of future rent and that he is ready and willing to pay the rent. 4. The learned Rent Controller by order dated 22.02.2002, held that the rent payable by the tenant is Rs.5,000/- and directed that the tenant shall pay the arrears of rent from November 1998 to November 2001 and posted the case on 08.03.2002 for compliance of the conditional order. The tenant did not comply with the conditional order but preferred an appeal before the learned Appellate Authority in RCA.No.160 of 2002. The learned Appellate Authority by order dated 16.12.2002, confirmed the order passed by the learned Rent Controller. Aggrieved by the same, the tenant has filed the present revision. 5. Heard the learned Senior Counsel appearing for the petitioner and the learned counsel appearing for the respondent and perused materials available on record. 6. The Courts below have concurrently held that the monthly rent payable by the tenant is Rs.5000/- and not Rs.3500/- as claimed by tenant. It is not in dispute that the tenant did not comply with the conditional order passed by the learned Rent Controller. It is seen that before the learned Appellate Authority, tenant sought for stay of the proceedings before the learned Rent Controller by filing an Interlocutory Application in I.A.No.136 of 2002. The learned Appellate Authority passed an order as condition precedent by directing the tenant to pay a sum of Rs.80,500/-being the arrears of rent till the said date and continue to pay future rent. It is not in dispute that the tenant complied with the said conditional order and had paid the entire arrears as well as the rent at the rate of Rs.5000/-, pending disposal of the appeal and order of stay was in force. The learned Counsel for the respondent contended that once default has been committed by the tenant without complying with the https://hcservices.ecourts.gov.in/hcservices/ order passed under Section 11(1) and (4)of the Act, the landlord is entitled to an order of eviction. The learned counsel placed reliance on the following decisions in support of his contentions, Maragathammal vs. Kamalammal, 2006 (5) CTC 698, Sankaran Pillai (Dead) By Lrs. vs. V.P.Venuguduswami and other, (1999) 6 SCC 396, C.Natarajan vs. S.Anandammal, 1989 1 LW 29 and M/s.Guru Associates and another vs. B.A.Balasubramaniam, 2000-3-L.W.634 7. In the instant case, the tenant admitted that the monthly rent payable from April 1998 was Rs.5000/-. The dispute appears to have occurred, when the tenant claimed that he has carried out maintenance work in the property and it was mutually agreed that the landlord shall give a concession in the rent by fixing it at Rs.3500/-. Therefore, the tenant tendered the said amount of Rs.3500/- as rent, but the landlord refused to receive the same by returning the cheque. Thereafter, the petitioner is stated to have filed an application under Section 8 of the Act to deposit the rent into Court. According to the learned counsel for the respondent, though such petition was filed under Section 8 of the Act, no amount was deposited and the petition was dismissed. 8. It is seen that the petitioner has deposited the entire arrears of rent in terms of the interim direction granted by the learned Appellate Authority as condition precedent for grant of stay of eviction and continued to pay the rent at the rate of Rs.5000/- pending appeal before the learned Appellate Authority. Further, pursuant to the orders passed by this Court on 23.02.2007, a sum of Rs.1,30,000/- was paid on the said date and further time was granted to pay the remaining sum of Rs.1,00,000/- and further direction was issued to the petitioner to continue to pay the monthly rent of Rs.5000/- on or before 5th of every succeeding English Calendar month. The learned Senior Counsel for the petitioner submits that the petitioner has complied with the conditional order passed by this Court without any default. 9. The learned counsel appearing for the respondent submits that the payments made pursuant to interim orders passed by this Court, should not be taken into consideration for the purpose of testing the correctness of the orders passed by the Courts below. 10. Thus the following questions arise for consideration in this revision petition. (i)Whether the rent payable by the tenant is Rs.5000/- or Rs.3500/- as claimed by the tenant. (ii)Whether the Courts below were right in allowing the petition filed by the landlord under Section 11(1) and (4) of the Act. (iii)Whether the payment of rent by the landlord during the pendency of the appeal before the Rent Control Appellate Authority and this revision petition pursuant to interim https://hcservices.ecourts.gov.in/hcservices/ orders would absolve the default committed by the tenant. (iv)Whether the landlord is entitled to an order of eviction, pursuant to the orders passed by the Courts below. 11. Conclusion:- Question (i):- The tenant has admitted that the monthly rent payable is Rs.5000/- and it is further claimed that as he has effected maintenance and periodical repairs to the petition premises, and that it was mutually agreed between the tenant and landlord that the rent would be reduced from Rs.5000/- to Rs.3500/- from April 1998. It appears that the tenant has tendered the amount of Rs.3500/-, which was refused to be received by the landlord. The tenant has filed a petition for deposit of rent into court, but no record has been placed before this Court evidencing such deposit. The learned counsel for the respondent/landlord asserts that the application filed by the tenant for deposit of rent was dismissed and no amount was deposited. The learned Rent Controller rendered a factual finding that the tenant miserably failed to prove that there was any subsequent agreement between himself and the landlord agreeing to reduce the monthly rent from Rs.5000/- to Rs.3500/- from April 1998. The tenant having claimed that there was mutual agreement for reducing the rent is bound to establish the same before the Court below, which the tenant has failed to do. In the absence of any proof of such agreement, the findings of the learned Rent Controller holding that the monthly rent was Rs.5000/- cannot be faulted. The lower Appellate Court has also re-appreciated the evidence and rightly come to a conclusion that the rent payable is Rs.5000/- and not Rs.3500/- as claimed by the tenant. Accordingly, question No.(i) is answered against the tenant. Question No.(ii):- The learned Rent Controller having concluded that the monthly rent payable is Rs.5000/-, directed the tenant to pay the arrears of rent from November 1998 to December 2001 being a sum of Rs.1,30,000/- with a further direction to the tenant to deposit the monthly rent into Court and the tenant was granted time till 07.03.2002 and the matter was posted on 08.03.2002. The tenant however failed to comply with the order, but preferred an appeal before the learned Appellate Authority. The learned Appellate Authority also confirmed the findings of the learned Rent Controller by observing that the same is in accordance with law. By taking into consideration, the fact that the learned Rent Controller had correctly appreciated the evidence on record and come to a conclusion that the finding rendered by the Court below cannot be faulted. Accordingly, question No.(ii) is answered against the tenant. Question (iii):- The tenant filed RCA.No.160 of 2002 against the order passed by the learned Rent Controller in M.P.No.35 of 2001, dated 22.02.2002. Pending disposal of the appeal before the learned Appellate Authority, the tenant sought stay of the order passed by the learned Rent Controller and the learned Appellate Authority as https://hcservices.ecourts.gov.in/hcservices/ condition precedent for grant of stay, directed the tenant to deposit the entire arrears of rent and also directed payment of future rents. 12. It appears that the tenant complied with the conditional order and the order of the learned Rent Controller remain stayed pending disposal of RCA.No.160 of 2002. Ultimately, the learned Appellate Authority dismissed the appeal. Thereupon the tenant has filed the present revision petition and this Court while entertaining the revision petition passed a conditional order for payment of rent pending disposal of the revision. This interim direction has also been complied with by the tenant. The learned Senior counsel for the tenant would submit that on account of the bonafides of the tenant in complying with the conditional order passed by the learned Appellate Authority as well as the condition imposed by this Court, the conduct of the tenant should be taken note of and an opportunity should be given to the tenant to contest the eviction petition on merits. 13. Before the Hon'ble Supreme Court in the case of Maragathammal vs. Kamalammal, 2006 (5) CTC 698, a some what identical issue came up for consideration. In the said case, the landlord had filed an application under Section 11 of the Act and the Rent Controller directed the tenant to deposit the entire admitted arrears into Court on or before a particular date failing compliance of which, the tenant's defence would be struck off. In the said case, the date fixed by the Rent Controller was 22.11.1995. The tenant filed a lodgment schedule on 21.11.1995, stating that he desires to deposit the amount. The said lodgment schedule was considered and challan was issued only on 29.11.1995. The learned Rent Controller therein held that the tenant failed to comply with the order and ordered that the defence should be struck off. Thereupon, an appeal was filed before the Appellant Authority and pending appeal, there was an interim order passed to deposit the rent and this was complied with and the appeals were finally disposed by the learned Appellate Authority. Aggrieved by such order, revision petitions were filed before this Court. This Court in its order took note of the conduct of the tenant pending appeal and held that the tenant has displayed her bonafide by payment of rent during the pendency of the appeal proceedings and should be allowed to contest the eviction petition on merits. The Hon'ble Supreme Court reversed the decision of this Court and in doing so held as follows :- 10.We are afraid that we cannot agree with the view taken by the High Court. 14. In this case an order was passed under Section 11 dated 9-11-1995, directing the respondent tenant to deposit the entire admitted arrears of rent in court on or before 22-11-1995 failing compliance with which the respondent’s defence would be struck off. Admittedly, the respondent tenant did not deposit the arrears of rent on https://hcservices.ecourts.gov.in/hcservices/ or before 22-11-1995 and instead of that lodged a schedule on 21-11-1995. In this lodgment schedule the respondent stated that she wanted to deposit the rents from the month of June 1992 to October 1995 i.e. a sum of Rs.26,650 covering 41 months. This lodgment schedule came to be considered and the issue of challan for depositing the sum of Rs.26,650 was ordered on 29-11-1995. 15. We see no reason why the respondent lodged the schedule as late as on 21-11-1995 i.e. just the previous day prior to 22-11-1995 by which date when she was directed to deposit the entire admitted arrears in court under Section 11. The respondent could have lodged this schedule on the very next day after the order dated 9-11- 1995 i.e. on 10-11-1995 or within a day or two thereafter. We see no reason why she waited till the eve of 22-11- 1995, which was the last date of depositing the entire rent in court. It is admitted that the respondent tenant has been deliberately avoiding the payment of the rent as and when it fell due. Thus, we respectfully disagree with the view taken by the Madras High Court and we uphold the orders of the Rent Controller dated 9-11-1995 and 22-3- 1996. The impugned judgment of the High Court is set aside and the respondent tenant is granted two months’ time to vacate the premises in question, failing which she will be evicted by police force. The appeal is allowed. No costs. 14. The aforementioned decision of the Hon'ble Supreme Court applies with full force to the facts of the present case. In the case on hand that the tenant did not pay the rent prior to the filing of the RCOP i.e., from November 1998 and even after filing of the RCOP in 1999, no steps were taken by him to deposit the rent into Court and it is not in dispute that the application filed by the tenant under Section 8(5) of the Act was dismissed and no payments were made and even after the application filed by the landlord under Sections 11(1) and 11(4) of the Act, the tenant did not take any steps to pay the rent and till final orders were passed in the Section 11(4) petition no rent was paid. 15. Thus, the conduct of the tenant amounts to supine indifference and willful default in payment of rent. Therefore, merely because the tenant deposited the arrears of rent pursuant to interim orders granted by the learned Appellate Authority during 2002 does not absolve the willful default committed by the tenant. The Hon'ble Supreme Court in Sankaran Pillai v.V.P.Venguduswami and others, (1999) 6 SCC 396, considered a similar question, wherein also the tenant deposited the arrears of rent before the Appellate Authority. The Hon'ble Supreme Court held that the tenant's subsequent deposit of the arrears of rent before the Appellate https://hcservices.ecourts.gov.in/hcservices/ Authority being requirement of law for hearing the appeal on merits, cannot be treated as bonafide deposit. 16. Therefore, the deposit of rents made by the tenant pursuant to orders passed by the Appellant Authority as a condition for hearing the appeal cannot be construed as a bonafide deposit for the purpose of absolving the tenant from the default committed. Accordingly, question No.(iii) is also answered against the tenant. 17. In view of the findings rendered on questions (i) to (iii) above, the landlord is entitled to an order of eviction and question No.(iv) is answered accordingly. 18. For all the above reasons, it is held that the petitioner has failed to make out a case for interference with the concurrent findings of the Courts below and accordingly, the Civil Revision Petition fails and it is dismissed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar pbn To 1)XV Judge, (Small Causes Court), Chennai. 2)VII Judge, (Small Causes Court), Chennai. 3)The Section Officer, VR.Section, High Court, Madras. + 3 ccs to Mr.M.V. Venkataseshan, Advocate SR.1o453 + 1 cc to M/s. Sarvabhuman, SR.10829 CRP (NPD) No.1119 of 2003 NG(CO) EU 1.3.11 https://hcservices.ecourts.gov.in/hcservices/