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R. Radha Vs. C.R. Govindarajulu - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 2271 of 1976 and C.M.P. No. 12384 of 1977
Judge
Reported inAIR1978Mad399
ActsTamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 10, 11(4) and 25
AppellantR. Radha
RespondentC.R. Govindarajulu
Appellant AdvocateR.N. Kothandaraman, Adv.
Respondent AdvocateT.R. Rajaraman, Adv.
DispositionPetitions dismissed
Cases ReferredRadhakishan Sao v. Gopal Modi
Excerpt:
tamil nadu buildings (lease and rent control) act (xviii of 1960) amended by act (xxiii of 1973), section 11(4)--application not maintainable during pendency of civil revision petition ; a landlady filed a petition for eviction of the tenant on the grounds that the tenant had committed wilful default in payment of rent and that she bona fide required the premises for her own use and occupation. both the courts below concurrently held against the petitioner-landlady on both these grounds and dismissed the petition. as against these orders the landlady preferred a revision petition before the high court. the landlady also filed a petition under section 11(4) of the tamil nadu buildings (lease and rent control) act (xviii of 1960) to stop all further proceedings in the civil revision.....1. the civil revision petition has been preferred under section 25 of the tamil nadu buildings (lease and rent control) act 1960 (tamil nadu act 18 of 1960), (hereinafter referred to as the act) by the landlady against the orders passed by the rent controller and the appellate authority functioning under the act. the petitioner herein filed r. c. o. p. no. 163 of 1973 before the rent controller, coimbatore for eviction of the respondent herein on two grounds, namely, the respondent had committed wilful default in payment of rent and secondly the landlady petitioner bona fide required the premises for her own use and occupation. the rent controller as well as the appellate authority held against the petitioner on both these grounds and dismissed the petition filed by the petitioner for.....
Judgment:
1. The civil revision petition has been preferred under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 (Tamil Nadu Act 18 of 1960), (hereinafter referred to as the Act) by the landlady against the orders passed by the Rent Controller and the Appellate Authority functioning under the Act. The petitioner herein filed R. C. O. P. No. 163 of 1973 before the Rent Controller, Coimbatore for eviction of the respondent herein on two grounds, namely, the respondent had committed wilful default in payment of rent and secondly the landlady petitioner bona fide required the premises for her own use and occupation. The Rent Controller as well as the Appellate Authority held against the petitioner on both these grounds and dismissed the petition filed by the petitioner for eviction of the respondent under Section 10 of the Act. It is to revise these orders C. R. P. No. 2271 of 1976 has been preferred.

2. C. M. P. No. 12384 of 1977 has been filed under Section 11(4) of the Act to stop all further proceedings in the civil revision petition and make an order directing the respondent tenant to put the petitioner landlady is possession of the building on the ground that the respondent had not paid the arrears of rent,

3. Both the civil revision petition as well as the civil miscellaneous petition, referred to above, are contested by the respondent herein.

4. As far as the civil revision petition is concerned, the findings of the authorities under the Act are concurrent both on the question whether the respondent tenant had committed wilful default in the payment of rent or not and on the question whether the petitioner landlady bona fide required the premises for her own use and occupation or not. Apart from these findings on these two questions being concurrent, there is evidence to support these findings, and we are not satisfied with reference to the evidence available on record that the said findings can be characterised as erroneous so as to warrant interference by this court in revision.

5. Consequently, the civil revision petition fails and it is dismissed.

6. Major portion of the arguments on both sides have been addressed only with regard to the civil miscellaneous petition. As far as the petitioner is concerned, as we pointed out already, the application has been filed under Section 11(4) of the Act for direction to the respondent tenant to put the landlady petitioner in possession of the property on the allegation that the respondent tenant had not paid the arrears of rent. The learned counsel for the respondent wanted time for filing a counter affidavit to verily whether the respondent tenant had paid the rents or not. However, since the maintainability of the civil miscellaneous petition itself was challenged by the counsel for the respondent, we did not give time for filing a counter immediately and we informed the learned counsel for the respondent that we will consider the question of giving time for filing a counter if we hold that the civil miscellaneous petition is competent and therefore we heard arguments on the maintainability of the civil miscellaneous petition. Consequently', we are now considering the question regarding the maintainability of the civil miscellaneous petition.

7. For the purpose of understanding the points urged before us, it is necessary to extract Section 11 of the Act in full-

11. Payment or deposit of rent during the pendency of proceedings for eviction -- (a) No tenant against whom an application for eviction 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 23 against any order made by the Controller on the application, unless he has paid or pays to the landlord, or deposits with the Controller or the appellate authority, as the case may be, all arrears 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 proceedings before the Controller or the appellate authority, as the case may be,

(2) The deposit of rent under Sub-section (1) shall be made within the time and in the manner prescribed.

(3) Where there is any dispute as to the amount of rent to be paid or deposited under Sub-section (1) the Controller or the appellate authority as the case may be, shall, on application made to him either by the tenant or by the landlord, and after making such inquiry as he deems necessary, determine summarily the rent to be so paid or deposited.

(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.

(5) The amount deposited under Sub-section (1) may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him in that behalf to the Controller or the appellate authority, as the case may be."

On a perusal of this section, the following features are clear -

Sub-section (1) of Section 11 deals with only two situations : one is the tenant contesting the application for eviction filed by the landlord under Section 10 of the Act, and the second is the tenant against whom an order for eviction, has been passed by the Rent Controller preferring an appeal under Section 23 of the Act before the appellate authority. Sub-section (1) pro- vides that in either of these contingencies the tenant will not be entitled to put forward his case without paying the arrears of rent. It may be worthwhile to point out that Sub-section (1) of Section 11 does not even cover a case where a landlord prefers an appeal under Section 23 of the Act to the appellate authority against an order passed on his application under Section 10 of the Act Thus, the scope of Sub-section (1) of Section 11 is limited only to two cases as pointed out above.

8. Sub-section (2) deals with the manner and the time of payment contemplated by Sub-Section (1).

9. Sub-section (3) equally deals with It case where there is a dispute as to the amount of rent to be paid or deposited and provides that the Controller or the appellate authority, as the case may be, shah determine summarily the rent to be so paid or deposited.

10. Sub-section (4) deals with the case where ft tenant fails to pay or deposit the rent under Sub-section (1), read with Sub-section (2) and Sub-section (3), when Sub-section (3) applies, and provides that 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.

11. Sub-section (3) enables the landlord to withdraw the amount so paid or deposited by the tenant before the Controller or the appellate authority under the provisions of Sub-section (1).

Thus, a reading of Section 11 makes it clear that Section 11(4) will apply only to the cases covered by Section 11(1), and the cases covered by Section 11(1) are only two in number, namely, the application for eviction made by the landlord under Section 10 before the Rent Controller and the appeal preferred by the tenant under Section 23 to the appellate authority against an order made against him on the application made by the landlord under Section 10 of the Act A reading of Section 11(1) and Section 11(4) together will exclude all other cases except these two from the scope of the operation of the provisions in question. The case before us is a revision petition preferred by the landlady under Section 25 of the Act against the dismissal of her application filed before the Rent Controller under Section 10 and the dismissal of her appeal by the appellate authority preferred under Section 23. The question for consideration is whether an application under Section 11(4) can be made to this court by the petitioner in the civil miscellaneous petition during the pendency of the civil revision petition, requesting this court to stop further proceedings in the civil revision petition and direct the tenant respondent to put the petitioner landlady in possession of the building.

12. The learned counsel for the petitioner relies on three decisions of this court in support of his contention that such an application is competent. The first decision is that of Kailasam J. (as he then was) in Hemalnath v. Kasturi, 1975 (2) Mad LJ 25. In that case, the civil revision petition was preferred by the tenant against the order passed by the appellate authority directing his eviction on the ground that the landlady bona fide required the premises for additional accommodation. In the civil revision petition, the landlady filed a civil miscellaneous petition under Section 11(4) of the Act, praying that all further proceedings be stopped in the civil revision petition and that direction be given that the landlady may be put in possession of the premises. That prayer of the landlady was contested by the tenant. The learned Judge Overruled the objections of the tenant and issued a direction as prayed for by the landlady. The learned Judge stated--'

"Though this Sub-section (referring to Sub-section (4) of Section 11) is strictly applicable to the proceedings before the Rent Controller and the appellate authority, the principle can be and should he applied in proceedings in revision petitions also. The tenant cannot refrain from paying the rent merely because he has filed a civil revision petition. Whether Section 11(1) is applicable or not, the civil revision petition is liable to be dismissed, on the ground that the tenant had defaulted in the payment of rent pending the civil revision petition".

Thus, it is clear that the learned Judge took the view that Section 11(4) applies only to proceedings before the Rent Controller and the appellate authority. Notwithstanding this view, the learned Judge observed that the principle can be and should be applied in proceedings in revision petitions also. The learned Judge has not given any basis for coming to this conclusion, namely, on what principle of law the principle underlying Section 11(4) can be and should be applied in proceedings in revision petitions also. We may also point out that without deciding whether Section 11(1) is applicable or not, it can not be decided whether Section 11(4) applies or not. From what we have pointed out already, Section 11(4) uses the expression 'if any tenant fails to pay or to deposit the rent as aforesaid'. The expression 'as aforesaid' will certainly attract Section 11(1) and therefore Section 11(1) and Section 11(4) hare to be read together, and if the case does not fall within Section 11(1). Section 11(4) cannot apply. Hence we are unable to agree with the reasoning of the learned Judge "whether Section 11(1) is applicable or not, the civil revision petition is liable to be dismissed on the ground that the tenant had defaulted in the payment of rent pending the civil revision petition." Further, we are unable to share the view that simply because :he tenant refrained from paying the rent merely because he has filed a civil revision petition he was liable to be evicted. In view of our construction of the provisions of Section 11, viz., that proceedings under Section 11(4) can be initiated only before the Rent Controller or the appellate authority, as the ease may be, we are unable to agree with the learned fudge that an application under Section 11(4) of the Act can be filed before this court during the pendency of the civil revision petition.

13. Second decision is that of Ramaprasada Rao J. (as he then was) in Basheer Ahmed Khan v. Krishna Chetti, 1976 (2) Mad LJ 321: (AIR 1977 Mad 35). In that case also, the revision petition had been preferred by the tenants. In the course of the hearing of the case, the landlord, respondent filed an application under Section 11(4) of the Act for Stopping all further proceedings since the petitioner-tenant had failed to pay the rent due. The tenants resisted that application contending that the landlord had already filed a suit for the recovery of the arrears of rent and therefore Section 11 could not be invoked and that the plea could be raised only before the Rent Controller or the appellate authority, and not in the High Court when it is exercising jurisdiction under Section 25 of the Act. Dealing with the second contention, the learned Judge observed (at p. 56 of AIR):--

"In so far as the last contention is concerned, I am of the view that as the High Court is exercising jurisdiction under the very Act and as it has "been vested with such jurisdiction under it, it has a right to invoke each and every provision of the said Act for purposes of a successful conclusion of the hearing and also for the purpose of rendering justice as between the parties in accordance with the codified law as set out in the Tamil Nadu Buildings (Lease and Rent Control) Act. One such provision in the Act is the right vested in the Rent Controller or the appellate authority, as the case may be, to stop further proceedings and make an order directing the defaulting tenant who fails to pay rent to put the landlord in possession of the building. As in my view, such jurisdiction can be exercised by the High Court as well while it deals with revision petitions under Section 25, the argument of Mr. Balakrishnan that this court cannot entertain the application under Section 11 made by the landlord at the revisional stage is not impressive and I am unable to accept it."

We are unable to share this view also. In fact, from the extract given above, the learn ed Judge has not considered the exact scope of the provisions contained in Section 11(1) and Section 11(4) of the Act. As we have pointed out already, Section 11(1) is careful enough to pick out only two situations and deal with: the same, the two situations being an application filed by the landlord under Section 10 of the Act and the tenant contesting the same be fore the Controller, and an appeal preferred by the tenant before the appellate authority under Section 23 of the Act against an order passed on an application by the landlord under Section 10. No other situation is contemplated by the language of Section 11 and therefore Section 11 is not capable of general application to all proceedings under the Act before every one of the authorities functioning under the Act.

14. The third decision is that of Suryamurthy J. in Badrunnissa Begum v. Palani Ambalam, 90 Mad LW 287: (AIR 1977 NOC 297 (Mad)). That was also a case of a revision petition preferred by the landlady. In the civil revision petition an application under Section 11(4) was filed. The tenant contested the maintainability of that application. The learned Judge overruled the objection of the tenant and held that the application filed under Section 11(4) was maintainable. The learned Judge observed--.

"However, he (counsel for tenants) contends that as the tenants are not the civil revision petitioners, the provisions of Section 11(1) and 11(4) of the Act are not applicable and the tenants cannot be directed to put the landlady in possession merely because they have not paid the arrears. I am unable to accept this strained construction of Section 11(1) and Section 11(4) of the Act. Section 11(1) is to the effect that no tenant against whom an application for eviction 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 23 against any order made by the Controller on the application unless he has paid or pays to the landlord, or deposits with the Controller or the appellate authority, as the case may be, all arrears of rent due in respect of the building up to the date of pay- merit 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 proceedings before the Controller or the appellate authority, as the case may be. The civil revision petition is a continuation of the proceedings instituted for the eviction of the tenant before the learned Rent Controller. The petition was filed under Section 10 of the Act. As the civil revision petition is a continuation of the proceedings before the Controller, what applies to a petition before the Controller under Section 10 or to an appeal before the learned appellate authority under Section 23, applies equally to a petition in revision to this court. The tenants are not entitled to contest the revision petition unless and until they pay or deposit the rent due by way of arrears. As they have not paid tho arrears to the landlady or deposited the same into court, all further proceedings are stopped and the tenants are directed to put the landlady in possession of the buildings."

That a revision is a continuation of the original proceedings may be correct, as a general proposition. But, as far as the present case is concerned, having regard to the express language contained in Section 11(1) and Section 11(4), which are strictly limited to the two cases, to which we have drawn attention, it is not possible to apply the general principle that the revision is a continuation of the original proceeding and therefore whatever is applicable to the original proceeding will apply to the revision also. In fact, as we have pointed out already, having regard to the language of Section 11(4) the provision contained therein will not apply even to an appeal preferred by the landlord under Section 23 of the Act, against an order passed by the Kent Controller on an application filed by the landlord, under Section 10. If so, the general principle that a revision is a continuation of the original proceeding, cannot be invoked in these cases for applying Section 11(1) and Section 11(4).

15. We can usefully contrast the provisions contained in Section 11 of the Act with the provisions contained in Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act (3 of 1947) considered by the Supreme Court in Radhakishan Sao v. Gopal Modi, . In that case, the suit filed by the landlord for

eviction of the tenant was dismissed by the learned District Munsif. On appeal, the Additional Subordinate Judge reversed that conclusion and decreed the suit. The tenant's second appeal to the High Court also failed. During the pendency of the appeal before the Subordinate Judge, an application was filed under Section 11-A for directing the tenant to deposit the rent of the premises in terms of that section. The learned Subordinate Judge dismissed that application holding that the defendant had paid the rent. A second attempt was made in the High Court by the plaintiff landlord to press the ground under Section 11-A of the Act to strike out the tenant's defence and the High Court allowed that application. When the matter went up in appeal to the Supreme Court, one of the questions that came to he considered was whether Section 11-A could be invoked before the appellate court, Section 11-A of the Bihar Act read as follows-

"Deposit of rent by tenants in suits for ejectment. If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment, the landlord may make an application it any stage of the suit for order on the tenant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any; and the court, after giving An opportunity to the parties to be heard, may make an order for deposit of rent at such rate as may be determined month by month and the arrears of rent, if any, and on failure of the tenant to deposit the arrears of rent within 15 days of the date of the order or the rent at such rate for any month by the 15th day of the next following month the court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the court may permit him to do so. The court may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant."

16. After extracting the above section, the Supreme Court observed (at p. 1220 of AIR SC):-

"It is submitted by the defendant that an order under Section 11-A can be passed only by the trial court. We are, however, unable to accept this position, since appeal is a continuation of the suit. The advantage which is given to the landlord under Section 11-A for the purpose of realisation of the arrears of rent pendente lite which is in the nature of lawful enforcement of the conditions of tenancy can be secured by the landlord at the stage of the litigation, whether in the trial court or in appeals. The penalty of striking out defence for non-compliance of an order under Section 11-A has to be kept distinct from the grounds of eviction permitted under Section 11 of the Act."

Thus, it will be seen that Section 11-A of the Bihar Act contemplated the landlord making an application at any stage of the suit for order on the tenant to deposit month by month rent at a rate at which it was last paid. Therefore, this expression was wide enough to include an application by the landlord not only at any stage of the suit but also at any stage of the subsequent proceedings which may be construed to be a continuation of the suit. As the Supreme Court itself pointed out, the appeal was a continuation of the suit and therefore the application made by the landlord before the learned Subordinate Judge during the pendency of the appeal was held to be competent. However, as we pointed out already, the language of Section 11 of the Act is strikingly different from the language of Section 11-A of the Bihar Act, and, therefore, the general proposition mentioned by the Supreme Court in that judgment, viz., that an appeal is a continuation of the suit, will have no application to the question which we are considering with reference to the language of Section 11 of the Act.

17. The only other decision of the Supreme Court, to which our attention was drawn, is that of Abdul Hameed Yousuf Sait V. Kalavathi, 1969 Ren CJ 1. In that case Section 29(1) of the Mysore Rent Control Act; 22 of 1961, read as follows-

"Mo tenant against whom an application for eviction has been made by a landlord under Section 21, shall be entitled to contest the application before the court under that section or to prefer or prosecute an appeal or revision petition under Section 48 or Section 50 against any order passed by the court on an application under Section 21 or an order passed by the District Judge on appeal, as the case may be, unless he has paid or pays to the landlord or deposits with the court or the District Judge or the High Court, as the case may be, all arrears of rent due in respect of the premises up to the date of payment or deposits and continues to pay or to deposit any rent which may subsequently become due in respect of the premises at the rate (at) which it was last paid or agreed to be paid, until the termination of the proceedings before the court or the District Judge or the High Court, as the case may be."

Section 29 (4) read as follows-

"If any tenant fails to pay or deposit the rent as aforesaid, the court, the District Judge or the High Court, 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 premises or dismiss the appeal or revision petition, as the case may be."

18. The Supreme Court, in the context of those two statutory provisions, observed--.

"Sub-section (4) of Section 29 would be attracted to a case only if the tenant fails to comply with Section 29 (1). Therefore, all that we have to see is whether the appellant had contravened Section 29 (1). Section 29 (1) would apply either when a tenant contests the application of a landlord under Section 21 before the 'court or when he prefers or prosecutes an appeal or revision under Section 48 or Section 50. There is no complaint that the appellant had failed to comply with the requirements of Section 29 (1) when the matter was pending in the Munsif's court. As seen earlier, it was the respondent who went up in appeal to the District Court and later in revision to the High Court. During those stages it cannot be said the appellant was either preferring or prosecuting an appeal or revision. In this case we are concerned only with the period during which the revision petition was pending. We are unable to accept the contention of Mr. B. R. L. Iyengar that as the appellant was contesting the revision petition filed by the respondent he must be held to have been prosecuting the revision petition. This is a wholly unacceptable contention. To prosecute a petition is one thing, to contest it is a wholly different thing. One is the opposite to the other. In the High Court the appellant was contesting the petition filed by the respondent. Undoubtedly he did not prefer that petition nor can it be said that he was prosecuting that petition. In our judgment, the High Court was clearly wrong in holding that the failure on the part of the appellant to deposit the rent due from him during the pendency of the revision petition brought the case within the mischief of Section 29 (1). That would have been the position if he was the petitioner before the High Court. A failure on the part of a tenant to pay or deposit the rent falling due during the pendency of an appeal or revision does not enable the appellate court or the High Court to allow the appeal or revision as the case may be. No provision in the Act empowering the appellate court or the High Court to do so is brought to our notice. We think that the High Court had misunderstood the scope of Section 29 (1)."

19. We are of the opinion that this decision, though dealing with the language of a different section, in a way, supports the conclusion we have reached with reference to the language of Section 11 of the Act. As we pointed out already, Section 11 deals with only two cases, the tenant contesting the application for eviction filed by the landlord under Section 10 and the tenant preferring an appeal under Section 23 against an order made by the Controller on the application preferred by the landlord under Section 10. The civil revision petition preferred to this court by the landlord will not come within the scope of Section 11(1) and therefore Section 11(4) cannot be attracted. Consequently, simply as a matter of construction, we come to the conclusion that an application under Section 11(4) can be filed only before the Rent Controller when the landlord has preferred an application under Section 10 for eviction of the tenant and the tenant is seeking to contest that application, and before the Appellate Authority when the tenant is preferring an appeal against an order of eviction passed against him on an application preferred by the landlord under Section 10, without paying the arrears of rent? and to no other case Section 11(4) will have application. Comparison of Section 29 of the Mysore Rent Control Act, considered by the Supreme Court, with Section 11 of the Act, will further re-enforce our conclusion on the scope of Section 11 of the Act. Section 29 (1) of the Mysore Act mentioned the court before which an application under Section 21 is filed, the District Judge before whom an appeal is filed and the High Court before whom a revision is filed. Yet the liability of the tenant to pay or deposit the rent was confined before the District Judge or the High Court only when he happens to prefer or prosecute the appeal or revision and not when he happens to defend the appeal or revision, preferred or prosecuted by the landlord. Section 11 of the Act refers to the Controller and the appellate authority alone all along the line and does not refer to the High Court at all. Section 11(1) refers to the Controller and the appellate authority and 'the termination of the proceedings before the Controller or the appellate authority, as the case may be. Sections 11(3), 11(4) and 11(5) also refer to 'the Controller or the appellate authority as the case may be'. The High Court does not come into the picture in any of the Sub-sections. Even the proceedings before the appellate authority under Section 11(1) is confined only to the appeal preferred by the tenant and does not cover the appeal- preferred by the landlord. The meticulous care with which the Legislature has enacted Section 11 will exclude the invocation of any general principle that the appeal or revision is a continuation of the original proceeding. If it was the intention of the Legislature that this provision concerning the liability of the tenant to pay or deposit the rent should apply to every stage of the proceeding, the language of Section 11(1) will be different, probably similar to the language of Section 11-A of the Bihar Act, as in every stage, whether in the application filed by the landlord or in the appeal or revision, whoever preferred the same, the tenant will only be contesting the claim of the landlord for an order of eviction against him.

20. We may point out another feature present in this case, which may, in a way, support this conclusion of ours. Section 10(2)(i) states-

"(2) A landlord who seeks to evict 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 or any such agreement, by the last day of the month next following that for which the rent is payable, the Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application."

21. There is a proviso to this section which says-

"...... in any case falling under Clause (i) if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may, 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 up to the date of such payment or tender and on such payment or tender, the application shall be rejected."

Thus, this deals with a case where the landlord files an application for eviction of the tenant on the ground that he had committed default in the payment of rent. If the Rent Controller finds that the default in the payment of rent is wilful, he shall order eviction. But, if he finds that the default in the payment of rent is not wilful, he has been given the power, notwithstanding anything contained in Section 11, to give a reasonable time to the tenant to pay the arrears of rent. In this context. If the argument of the learned counsel for the petitioner is to be accepted, Section 11 can be simply made use of for recovery of the arrears of rent due from a tenant without filing a suit for recovery of the same If the argument advanced on behalf of the petitioner is to be accepted, all that a land lord to whom his tenant has not paid the rent has to do is just to file a petition under Section 10 of the Act, whether he has a good ground or not for obtaining an order of eviction against the tenant under the provisions of the Act, and thereafter to file a petition under Section 11(4) calling upon the tenant to pay the arrears of rent and if he does not pay, to obtain an order of eviction against him, even though the ground on which he filed the application for eviction of the tenant may be totally untenable. Certainly the Legislature could not have contemplated such a situation in enacting Section 11(4) as a summary remedy for recovery of arrears of rent from a tenant by the landlord in all cases, as a substitute for a suit by a landlord for the recovery of arrears of rent from his tenant.

22. Having regard to these features, we are clearly of the opinion that the petition filed before us under Section 11(4) of the Act during the pendency of the civil revision petition, is not maintainable and the decisions of this court, to which we have drawn attention, do not lay down the correct law in this behalf.

23. In the result, the civil miscellaneous petition also fails and is dismissed. There will be no order as to costs in either.


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