Full Judgment Text
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PETITIONER:
N.C.M. AHMAD JAMALIA BEAVI
Vs.
RESPONDENT:
D. N. SHAH
DATE OF JUDGMENT: 30/07/1997
BENCH:
SUJATA V. MANOHAR, D.D. WADHWA
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
D. P. Wadhwa, J.
Leave granted.
The appellant is landlady. She is aggriaved by the
order dated July 9, 1994 of the Madras High Court granting
yet further time to the respondent tenant for decositting
rant in spite of persistent default committed by him in
violation of the provision of sub-section (1) of Section 11
of the Tamil Nadu Buildings (Lease and Rent Control) Act,
1960 (for short, the act).
The appellant is the owner and landlady of property
bearing No. 145 Linghi Chatty Street. madras She let out the
same to the respondent at a monthly rant of Rs. 4500/- with
permission to sublet the same. The premises comprise of four
independent shoos. The appellant says the respondent is
recovering enormous rent from these shoos having subject the
same. It has come on record in respect of one shoo that the
respondent is realising Rs. 3000/- per month is rent. Since
the respondent committed default in payment of rent from
September 1990, the appellant served a notice dated
September 22, 1991 on him demanding rent for the period from
September 1, 1990 to August 31, 1991 amounting to Rs.
54,000/-. Respondent was told that in case he failed to pay
rent proceeding for him aviation shall be instituted against
him. In spite of the notice, the respondent did not pay the
rent which lad the appellant to file proceeding for his
aviation under clause (1) of sub section (2) of Section 10
of the Act. That was in October 1991. Notice of filing of
the aviation proceeding was issued to the respondent. He
failed to respond to the same and an ex ORDER order of
aviation dated July 31, 1992 was passed against him by the
Rent Controller. On an application filed by the respondent
on August 22, 1992 ex parts order of aviation was, however,
set ORDER. In spite of pendency of these proceedings on the
ground of default in payment of rent the respondent did not
pay any rant in breach of the provisions of Section 11(1) of
the Act. the appellant, therefore, filed an application
under sub-section (4) of Section 11 of the Act requesting
that she be put in possession of the suit premises.
As this stage we may set out the relevant provisions of
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the Act.
"1D. Eviction of tenant.
(1)....................
(2) A landlord who seeks to avict
his tenant shall apply to the
Controller for a direction in that
behalf. If the Controller, after
giving the tenant a reasonable
opportunity of showing cause
against the application, is
satisfied.
(i) that the tenant has not paid or
tendered the rent due by him in
respect of the building, within
fifteen days after the expiry of
the time fixed in the agreement of
tenancy with his landlord or in the
absence of any such agreement, by
the last day of the month next
following that for which the rent
is payable. or
...................................
.......
the controller shall make an order
directing the tenant to out the
landlord in possession of the
building and if Controller is not,
so satisfied, he shall make an
order rejecting the application:
Provided that in any case falling
under clause (i) of the Controller
is satisfied that the tenant’s
default to pay or tenant rent was
not wilful, he ay, notwithstanding
anything contained in Section 11,
give the tenant a reasonable time,
not exceeding fifteen days, to pay
or tender the rent due by him to
the landlord upto the date of such
payment or tender and on such
payment or tender, the application
shall be rejected.
Explanation. For the purpose of
this sub-section, default to pay or
tender rent shall be construed as
wilful. if the default by the
tenant in the payment or tender of
rent continues after the issue of
two month’s notice by the landlord
claiming the rent.
Section 11. Payment or deposit of
rent during the pendency of
proceedings for aviation. (1) No
tenant against whom as application
for aviation has been made by a
landlord under Section 10 shall be
entitled to contest the application
before the Controller under that
section, or to prefer any appeal
under section 22, against any order
made by the Controller on the
application, unless he has paid or
pay to the landlords, or deposits
with the Controller or the
appellate authority, as the case
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may be, all appears of rent due in
respect of the building up to the
date of payment or deposit, and
continues to pay or to deposit any
rent which may subsequently become
due in respect of the building
until the termination of the
proceeding before the Controller or
the appellate authority, as the
case may be.
(2)................................
..
(3)
..................................
(4) If any tenant fails to pay or
to deposit the rent as aforesaid,
the Controller or the appellate
authority, as the case may be,
shall, unless the tenant shows
sufficient cause to the contrary,
stop all further proceedings and
make an order directing the tenant
to put the landlord in possession
of the building."
We may also note that under explanation to clause (6)
of Section 2 of the Act which defines landlord, a tenant who
sub-lets shall be deemed to be a landlord within the meaning
of the Act in relation to the subtenant. Section 23 provides
for appeal to the appellate authority. Under Section 25 a
revision lies to the High Court. It may, on an application
of any person aggrieved by an order of the appellate
authority, call for and examine the record of the appellate
authority, to satisfy itself as to the regularity of such
proceeding or the compactness. legality or propriety of any
decision of order passed therein and if, in any case, it
appears to the High Court that any such decision on order
should be modified, annulled. reversed or remitted for
reconsideration, it may pass orders accordingly. Under
Section 26 order made under the Act is binding on the sub-
tenants as well.
Coming back to the narration of events, the application
of the appellant filed under Section 11(4) was dismissed by
the rent Controller by an order passed in July 1993. The
appellant filed appeal to the Rent Control Appellant
Authority and the same appeal was allowed by the order dated
September 12, 1994. The appellate authority directed the
respondent to deposit the entire appears of rent within one
month failing which an order of aviation would be passed.
Against this order, the respondent went in revision before
the High Court and sought for an intern stay of all further
proceedings in the eviction petition. The High Court by
order dated September 27, 1995 directed the respondents to
deposit the entire appears of rent from September 1, 1990 to
July 31, 1992 amounting to Rs. 1,03,500/- being rent for 23
months within a period of six weeks from the date of the
order. It was mentioned that on respondent’s failing to
deposit the rent as aforesaid the stay granted would
automatically stand vacated. Again the respondent committed
default and did not deposit rent in terms of the order dated
September 27, 1995 of the High Court. The appellant,
therefore, again approached the Rent Controller as there
stood no impediment in passing an order of aviation against
the respondent. The Rent Controller after satisfying himself
that the order of the High Court had worked itself but due
to non compliance, passed the order of aviation against the
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respondent. Against this order the respondent again filed an
appeal before the Appellate Authority which was dismissed.
The respondent then approached the High Court with a prayer
to stay all further proceedings pursuant to the order of
eviction passed against him.
All these years the respondent did not pay any rent to
the appellant and committed persistent default. The High
Court by the impugned order granted further time to the
respondent and now gave him liberty to pay a sum of Rs.
1,10,100/- towards appears of rent within two weeks from the
date of the order which is July 7, 1994. In the impugned
order the High Court noticed that "the counsel for the
tenant represented that due to unavoidable circumstances,
the tenant could not comply with the conditional order
passed by this court and if time is granted, he would pay
the amount, since he is always ready and willing to comply
with the order." On considering this presentation the High
Court granted time to the respondent. The operative part of
the order is an under:
"Considering the representation
made by the Counsel for the tenant.
I am of the view that finally he
can be given a chance to pay the
appears of rent so that the
respondent/landlady also will be
benefited by this, since the is
petting the money. Though there is
no merit in the civil revision
petition, since the tenant is being
given a chance I set aside the
order of the lower court so far as
the eviction is concerned on
condition that the petitioner in
the civil revision petitioner shall
pay a sum of Rs. 1,10,100/- towards
appears of rent to the respondent
herein by way of cash or demand
draft within two weeks from today,
failing which the civil revision
petition shall stand automatically
dismissed and the petitioner will
not be entitled to seek for any
further extension of time. The
civil revision petition is ordered
accordingly."
No argument would appear to be needed to show that the
High Court misdirected itself and did not exercise a
discretion properly. In spite of the fact that the High
Court found that there was no merit in the civil revision
petition filed by the tenant yet it gave further time to the
tenant to deposit the rent even modifying its earlier order
dated September 27, 1995 requiring the tenant to day Rs.
1,03,500/- and now requiring him to pay Rs. 1,10,100/- when
between these two dates ten months had passed. We are unable
to comprehend as to what where the relevant considerations
which led the High Court to grant further time to the
tenant. The tenant had taken two please (1) that on account
of the marriage of his daughter he could not make
arrangement to pay the rent and (2) that after July 1992 the
sub tenant had directly paid rent to the appellant. Both
these pleas are of no effect. That the tenant could not
arrange finances on account of his daughter’s marriage
cannot be a ground to dany the landlord her due rent when
the tenant himself had been collecting rent from the sub
tenants and in case the sub tenant had themselves defaulted
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in payment of rent to the respondent he could well have
proceeded against them under the Act. Equitable
considerations have no place in a case like the present one
and that too in face of the express provision of law. While
the Act protects the tenant against the eviction and is a
departure from the Transfer of Property Act, it is the
bounded duty of the tenant to pay rent to the landlord
regularly and not to commit default. No sufficient cause was
shown by the respondent as to why he failed to pay or to
deposit the rent as ordered. Even rent prior to July 1992
was not paid. The High Court was certainly in error in
granting time to the tenant to deposit the rent. It did not
exercise its jurisdiction properly as envisaged under
Section 25 of the Act.
We may also note that before the High Court the order
against which the revision had been filed was one passed
under sub-section (4) of Section 11 of the Act but the High
Court not only set aside that order but even dismissed the
eviction proceeding by the impugned order which to our mind
is palpably wrong.
We, therefore, allow the appeals set aside the impugned
order of the High Court and would restore that of the Rent
Controller and the Appellate Authority. No costs.