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Kesava Naicker Vs. Sivagnana Mudaliar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 1569 of 1979
Judge
Reported inAIR1980Mad225; (1980)2MLJ254
ActsTamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 11 and 11(4)
AppellantKesava Naicker
RespondentSivagnana Mudaliar
Advocates:K. Govindan, Adv.
Cases ReferredAbdul Azeez Khan v. Appachi Gounder
Excerpt:
.....application under section 10 (2) (i) for eviction on ground of wilful default in payment of rent - rent controller ordered eviction - appeal - order of rent controller upheld - civil revision petition - order of deposit of rents by tenant cannot be assailed merely on ground that relationship between petitioner and respondent is not that of tenant and landlord - true relationship of parties determined - respondent established as landlord - amount directed to be paid by rent controller had not been deposited within time granted by rent controller - procedure adopted by rent controller under section 11 (4) and confirmation by appellate authority unexceptionable - held, order of rent controller confirmed. - - the respondent had further stated that since ins wife died, he has been..........is not maintainable in view of the denial of tenancy by the petitioner. on 3-8-1978, the rent controller passed an order on that application to the following effect:'the respondent contends that he has not entered into tenancy agreement with the petitioner and the agreement was only with one mrs. shanmughavalli, mrs. shaninughavalli is said to be the wife of the petitioner and she is no more and this has been brought out during the course of the enquiry and the same has not been challenged by the tenant. the respondent is admittedly a tenant in respect of the petition premises on a monthly rent of rs. 16. the respondent does not dispute the fact that he had not paid rent from june 1976, onwards. the respondent cannot deny the petitioner is not the landlord as the petitioner is.....
Judgment:
ORDER

1. The tenant is the petitioner in this civil revision petition. The respondent-16dlord 'filed an application under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, as amended by Act 23 of 1973, (hereinafter referred to as the Act) for an order of eviction against the petitioner on the ground that the petitioner has committed willful default, in the payment of the rents from June 1976, up to May, 1977. According to the respondent, the premises in the occupation of the petitioner had been let to him on a monthly rent of Rs. 16 and the petitioner had not paid rents from June 1976 to May 1977, for a period of 12 months amounting to Rs. 192, and that such nonpayment was willful. In addition, the respondent also claimed that the premises in the occupation of the petitioner was originally let out for non-residential purposes viz. to carry on the business in tailoring but that the premises had been converted into a living room. The respondent had further stated that since Ins wife died, he has been collecting the rents and he is the landlord as well as the heir of his wife and therefore, he is entitled to maintain the application for eviction.

2. The petitioner herein resisted the application contending that he is a tenant under one Mrs. Shanmughavalli and denied that he was a tenant under the respondent. The willful default attributed to the petitioner and the conversion of the premises into a non-residential one were also disputed by the petitioner. Ultimately, the petitioner prayed for the dismissal of the application.

3. During the tendency of the proceedings, the respondent herein filed an application in M. P. No. 47 of 1978, under Section 11 of the Act for, stoppage of- all further proceedings and for an order of eviction. In the course of that application, the respondent, after setting out the filing of the application for eviction, had also stated that the petitioner has not chosen to pay the rents from June, 1976 to June 1977 and also for the subsequent period from July 1977, up to November 1977, and that in all, on the date of the application, arrears of 18 months which came to Rs. 288 had renamed unpaid. This application was opposed by the petitioner here in on the ground that he was not a tenant under the respondent and that he had not committed willful default in the payment of rents from- 1-6-1976 to 30-6-1977. An objection was also raised that application under Section 11 of the Act taken out by the respondent is not maintainable in view of the denial of tenancy by the petitioner. On 3-8-1978, the Rent Controller passed an order on that application to the following effect:

'The respondent contends that he has not entered into tenancy agreement with the petitioner and the agreement was only with one Mrs. Shanmughavalli, Mrs. Shaninughavalli is said to be the wife of the petitioner and she is no more and this has been brought out during the course of the enquiry and the same has not been challenged by the tenant. The respondent is admittedly a tenant in respect of the petition premises on a monthly rent of Rs. 16. The respondent does not dispute the fact that he had not paid rent from June 1976, onwards. The respondent cannot deny the petitioner is not the landlord as the petitioner is none else than the husband of the late landlady with whom he entered into tenancy agreement. As per Section 11 of the Act, the tenant is not entitled to contest the application before the Rent Controller without paying the rent due in respect of the demised building. The respondent cannot refuse to pay the rent by newly contending that the tenancy agreement was with the landlady. The respondent is admittedly due rent for the period from June 1976 at the rate of Rs. 16 p. m. The tenant should pay rent up to June 1978, the date of petition i.e. period of 25 months. The total rent due up to June 1978, is 25 x 16 Rs. 400'.

This amount of Rs. 400 found due from the petitioner up to June 1978 was directed to be paid by the petitioner on or before 25-8-1978, failing which all further proceedings were directed to be stopped and an eviction order was also directed to follow. Admittedly, this amount was not paid as directed by the Rent Controller so that on 26-8-1978, the Rent Controller passed another order to the following effect:

'Amount not paid by the respondent. The respondent represents that he intends to prefer an appeal. I am satisfied that the respondent has not complied with the conditional order. No sufficient cause is shown for non-payment. In the result, all further proceedings stopped in the main It R. C and eviction is ordered'.

Aggrieved by this, the petitioner preferred an appeal in H. R. A. No. 767 of 1978, to the Appellate Authority (Second Judge, Court of Small Causes), Madras. The Appellate Authority held that the, petitioner originally became a tenant under Mrs. Shanmughavalli, who was none other than the wife of the respondent herein and that after her death the respondent herein succeeded to her interest as her heir and became the land the rent from Lord and was collecting the tenants in possession of the property and that the petitioner alone refused to pay the rent on some pretext or other. Adverting to the fact that Shanmughavalli was the wife of the respondent which was not challenged and the fact that the petitioner had not paid the rents from June 1976 to June 1978, which was also not seriously disputed by the petitioner, the Appellate Authority concluded that the order directing the petitioner to deposit the rents was correct and that the failure of the petitioner to pay the arrears of rent on or before 25-8-1978, was not in any manner justified 'and therefore, the stoppage of all further proceedings and, the passing of an order for eviction against the petitioner were quite in order. In view of these conclusions, the order of the Rent Controller, was upheld and the appeal was dismissed. It is the correctness of this order that is challenged in this civil revision petition.

4. The learned counsel for the petitioner strenuously contends that having regard to the denial of the relationship of landlord and tenant between the petitioner and the respondent, the Rent Controller as well as the Appellate Authority were not in order in stopping further proceedings and ordering the eviction of the petitioner for the non-payment of the rents as directed in the order in M. P. No. 47 of 1978. In order to appreciate this contention, it is necessary to advert to the provisions of Section 11 of the Act which run thus:

The Payment or deposit of rent during the pendency of proceedings for eviction:

(1) 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 proceeding-, before the Controller or the Appellate Authority, as the case may be.

(2) The deposit of rent under subsection (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 enquiry 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 subsection (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'.

5. The aforesaid provisions indicate that certain safeguards have been provided in order to secure the arrears of rent as well as the future rents during the pendency of the proceedings before the Rent Controller as well as the Appellate Authority, It is at once apparent that the object of this provision is only to effectively prevent defaulters from continuing to remain in possession of the property taking umbrage under the pending proceedings without performing the obligations in the matter of payment of rents. If this is conceived to be the object of the provisions, then its very purpose can easily be defeated by merely raising a plea to the effect that the relationship of landlord and tenant does not subsist between the parties. Even in a case where the true relationship between the parties is that of a landlord and tenant and an application is filed under Section 11 of the Act, the tenant can circumvent the provisions of the Act by merely raising a plea that he is not a tenant, The question is, whether the mere raising of such a plea would in any manner prevent the Court from exercising its jurisdiction under Section 11 of the Act. No doubt, in dealing with Section 7-A of the Madras Buildings (Lease and Rent Control) Act, 25 of 1949, Rajagopalan, J. in Abdul Azeez Khan v. Appachi Gounder, (1957)2Mad LJ13, has held that these provisions can be invoked in cases where the tenancy is admitted or the tenancy has already been adjudicated upon and no longer in issue; but that where there is a dispute with reference to the tenancy, until it is established that a person is a tenant, he cannot be called upon to shoulder the burden himself under Section 7-A (1) of the Madras Buildings (Lease and Rent Control) Act, 25 of 1949.

To confine the applicability of Section 7-A comparable to Section 11 of the Act only to cases where there is an admission of the tenancy or there is a, prior adjudication as regards tenancy would not, in my opinion, serve the object with which Section 11 of the Act has been enacted. The section enables the tenant to discharge the burden of arrears of rent as well as the payment of future rent and at the same tune, secures the same to the landlord so that the landlord is not put to the necessity of taking steps for the recovery of the same during the pendency of the proceedings. If the relationship of landlord and tenant is disputed and on that footing an application under Section 11 of the Act is rejected, and ultimately in the course of the main proceedings it is found that the relationship is that of landlord and tenant and willful default had been committed and the future rents had remained unpaid and mean while several years had rolled by, the legitimate claim of the landlord for rent might even become barred by time. In addition, the simple denial of the relationship of landlord and tenant cannot oust the jurisdiction of the Rent Controller under the Act. If a person in possession of the premises is not the tenant, then the landlord will not be entitled to initiate proceedings for an order of eviction against him Disputed question of the relationship of landlord and tenant has also to be decided by the Rent Controller. If the Controller decides that there is no such relationship, then the proceeding has to terminate without deciding the main question of eviction; but if, on the other hand, it is found that the relationship is that of landlord and tenant, the further proceedings have to go on. Therefore, a mere denial of the relationship cannot oust the jurisdiction of the authorities under the Act. The Supreme Court in Om Prakash Gupta v, Dr. Rattan Singh (1963) 2 SCJ 475, had occasion to consider this question with reference to the provisions of Section 15(7) of the Delhi Rent Control Act (LIX of 1958), comparable to Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1.8 of 1960, as amended by Act 23 of 1973. The argument in that case was that the authorities constituted under the Act had no jurisdiction to entertain the proceedings inasmuch as it was denied that there was any relationship of landlord and tenant between the parties and consequently, Section 15(7) of the Delhi Rent Control Act, could not be applied in the absence of a finding that the appellant was a tenant in respect of the premises in question. In dealing with this question, Sinha, C.J., observed at page 477 thus 'The most important question that arises for determination in this case is whether or not the Rent Control Authorities had jurisdiction in the matter in controversy in this case. Ordinarily it in for the Civil Courts to determine whether and, if so, what jural relationship exists between the litigating parties. But the Act has been enacted to provide for the control of rents and evictions of tenants, avowedly for their benefit and protection. The Act postulates the relationship of landlord and tenant, which must be a pre-existing relationship. The Act is directed to control some of the terms and incidents of that relationship. Hence, there is no express provision in the Act empowering the Controller, or the Tribunal, to determine whether or not there is a relationship of landlord and tenant. In most cases such a question would not arise for determination by the authorities under the Act. A landlord must be very Ill-advised to start proceedings under the Act, if there is no such relationship of landlord and tenant. If a person in possession of the premises is not a tenant, the owner of the premises would be entitled to institute a suit for adjustment in the Civil Courts, untrammeled by the provisions of the Act. It is only when he happens to be the tenant of premises in an urban area that the provisions of the Act are attracted. If a person moves a Controller for eviction of a person on the ground that he is a tenant who had, by his acts or omissions, made himself liable to be evicted on any one of the grounds of eviction, and if the tenant denies that the plaintiff is the landlord, the Controller has to decide the question whether there was a relationship of landlord and tenant. If the Controller decides that there is no such relationship the proceeding has to be terminated, without deciding the main question in controversy, namely, the question of eviction. If on the other hand, the Controller comes to the opposite conclusion and holds that the person seeking eviction was the landlord and the person in possession was the tenant the proceedings have to 90 on.'

6. It is also further pointed out by the Supreme Court that proceedings analogous to that provided for under Sec. 11(4) of the Act (comparable to Sec. 15(7) of the Delhi Rent Control Act) ire primarily intended for the benefit of the tenant and the Controller is enjoined to make an order directing the tenant to pay the amount found due to the landlord or to deposit the same and such an order for the benefit of the tenant can be passed only if a decision is arrived at that the person against whom the proceedings have been initiated is in the position of a tenant. It was also further pointed out by the Supreme Court that whenever an order for deposit of arrears of rent due is made by the Controller under Section 15(1) and a default is committed and thereafter an order under Section 15(7) is made striking out the defence, the Controller must be deemed to have decided that the person who was directed to pay the amount was the tenant, The course to be adopted by a person disputing the relationship of landlord and tenant and the duty of the tribunals have been pointed out by the Supreme Court in the following terms at page 478 'If the appellant took his stand upon the plea that he was not a tenant he should have simply denied the relationship and walked out of the proceedings. Instead of that, he took active steps to get the protection against eviction afforded by the Act, by having an order passed by the Controller, giving him a locus penitential by allowing further time to make the deposit of rent outstanding against him. The Controller, therefore, must be taken to have decided that there was a relationship of landlord and tenant between the parties, and secondly, that the tenant was entitled to the protection under the Act. It is true that the Act does not in terms authorise the authorities under the Act to determine finally the question of the relationship of landlord and tenant. The Act proceeds on the assumption that there is such a relationship. If the relationship is denied, the authorities under the Act have to determine that question - also, because 4 simple denial of the relationship cannot oust the jurisdiction of the tribunals under the Act. True, they are tribunals of limited jurisdiction, the scope of their power and authority being limited by the provisions of the Statute. But a simple denial of the relationship either by the alleged landlord or by the alleged tenant would not have the effect of ousting the jurisdiction of the authorities under the Act, because the simplest thing in the world would be for the party interested to block the proceedings under the Act to deny the relationship of landlord and tenant. The tribunals under the Act being creatures of the Statute have limited jurisdiction and have to function within the four corners of the Statute creating them. But within the provisions of the Act, they are tribunals of exclusive jurisdiction and their orders are final and not liable to be questioned in collateral proceedings like a separate suit or application in exc1cution proceedings. In our opinion, therefore, there is no substance in the contention that as soon as the appellant denied the relationship of landlord and tenant, the jurisdiction of the authority ties under -the Act was completely ousted. Nor is there any justification in the contention that the provisions of subsection (7) of Section 15 of the Act had been erroneously applied to the appellant. The orders under those provisions were for his benefit and he must be deemed to have invited the Controller to pass those orders in his favour. Otherwise, he should have walked out of the proceedings after intimating to the Controller that he was not interested to contest the proceedings inasmuch as he was not a tenant, and that a third party was the tenant in view of the above decision of the Supreme Court, the contention of the petitioner based upon the decision in Abdul Azeez Khan v. Appachi Gounder, (1957)2Mad LJ513, cannot be accepted as correct. Therefore, in dealing with an application under Section 11 of the Act, where the relationship of landlord and tenant is admitted, no difficulty arises. But even in cases where such relationship is disputed, the Rent Controller has to adjudicate upon the relationship and pass appropriate orders but cannot throw out the application on the ground that there is a disputed relationship. Apart from the jurisdictional objection referred to and dealt with already, the learned counsel for the petitioner has not assailed the order of the Rent Controller, under Section 11(4) of the Act in any other manner. Neither the Rent Controller nor the appellant Authority did act in an erroneous manner when they proceeded to determine the true relationship of the petitioner and the respondent in the course Of M. P. No. 47 of 1978 under Section 11 of the Act, Indeed, as stated earlier, it is the duty of the Rent Controller to decide this, question before dealing With an application under Section 11 of the Act, and precisely this had been done in the instant case and it has been held that originally, the wife of the respondent was the landlord of the petitioner and thus on her death, the respondent had succeeded to her interest and had become the landlord of the property. The relationship having been thus found, the order for deposit of the rents by the tenant was correctly passed and the correctness of that order, as seen earlier, cannot be assailed merely on the ground that the relationship between the Petitioner and the respondent is not that of tenant and Landlords. It is not in dispute that the amount directed to be paid by the Rent Controller by his order dated 3-8-1978 had not been deposited within the time granted by the Rent Controller.

7. Consequently, the procedure adopted by the Rent Controller under Section 11(4) of the Act and the confirmation thereof by the Appellate Authority are unexceptionable. The orders of the authorities below are, therefore, perfectly correct and do not suffer from any illegality or impropriety. The Civil Revision petition is, therefore, dismissed No costs.

8. Petition dismissed.


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