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iqbal and Company, by Its Partner, A. Mohamed Hassim Vs. Abdul Rahim - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1982)1MLJ221
Appellantiqbal and Company, by Its Partner, A. Mohamed Hassim
RespondentAbdul Rahim
Excerpt:
.....herein filed a petition under section 11(4) of the act praying this court to stop all further proceedings as the respondent has failed to pay the rents before contesting the main petition. if therefore, the failure to exerteise jurisdiction is improper and should the court be inclined to direct reconsideration now, the entire arrears as directed on 22nd august, 1980, having been paid, the rent control application should be remitted for consideration on merits. therefore under those circumstances, the failure to deposit the amount on or before 5th september, 1980 cannot loom large. on the contrary, it is the law which seems to be clearly against him. that is why i said that it makes bad law......steps to prefer an appeal against the order, dated 22nd august, 1980 made in the above m.p., time to deposit may be extended by two weeks since certified copy had not been furnished to him. it was also stated therein that should the court be not inclined to grant extension, the order, dated 22nd august, 1980 being conditional, will work itself out. one thing which requires; to be stated which has a great bearing on the question to be decided at this stage is what was averred in the affidavit:without prejudice to the petitioner's contention, the petitioner is ready and willing to deposit the entire amount into court less the admitted arrears already paid.this petition was dismissed on 20th september, 1980 and thereupon, m.p. no. 404 of 1980 was taken up and an order, dated 20th.....
Judgment:

S. Mohan, J.

1. This is a very hard case and as the saying goes 'hard case makes bad law'. Both these revisions can be dealt with under a common order. The respondent herein filed H.R.C. No. 3328 of 1978 for eviction of the revision petitioner on three grounds, namely:

1. He wilfully defaulted in payment of rent for the period from 1st July, 1977 to 31st October, 1978;

2. For personal occupation; and

3. For demolition and reconstruction.

While that application was pending, the respondent took out M.P. No. 404 of 1980 under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act contending that the admitted rent had not been paid into Court and therefore the counter of the respondent in H.R.C. No. 3328 of 1978 could not be entertained. By an order, dated 22nd August, 1980, the Rent Controller allowed that petition and directed the revision petitioner to pay the respondent herein the rent due from 1st November, 1977 till date at the rate of Rs. 500 per month on or before 5th September, 1980 less adimitted arrears of Rs. 3,500 paid, failing which all further proceedings will be stopped and that the revision petitioner will be directed to put the respondent herein in possession of the building and the Rent Controller adjourned the case to be called on 6th September, 1980. Thereafter, on the 4th Spetember, 1980, the revision-petitioner filed M.P. No. 584 of 1980 stating that since he was taking effective steps to prefer an appeal against the order, dated 22nd August, 1980 made in the above M.P., time to deposit may be extended by two weeks since certified copy had not been furnished to him. It was also stated therein that should the Court be not inclined to grant extension, the order, dated 22nd August, 1980 being conditional, will work itself out. One thing which requires; to be stated which has a great bearing on the question to be decided at this stage is what was averred in the affidavit:

Without prejudice to the petitioner's contention, the petitioner is ready and willing to deposit the entire amount into Court less the admitted arrears already paid.

This petition was dismissed on 20th September, 1980 and thereupon, M.P. No. 404 of 1980 was taken up and an order, dated 20th September, 1980 was passed to the following effect:

The petitioner herein filed a petition under Section 11(4) of the Act praying this Court to stop all further proceedings as the respondent has failed to pay the rents before contesting the main petition. This Court by its order, dated 22nd August, 1980 directed the respondent herein to pay the arrears less the admitted arrears to the petitioner on or before 5th September, 1980, failing which all further proceedings will be stopped and the respondent would be directed to put the petitioner in possession of the property. The respondent submitted before the Court that he intends to file an appeal and prayed for operation of the stay of proceedings. This Court again by its order, dated 20th September, 1980 in M.P. No. 584 of 1980 rejected the, plea of the petitioner on the ground that no stay was obtained and dismissed the abovesaid M.P. As the respondent has not complied with the order passed in M.P. No. 404 of 1980, all further proceedings are ordered to be stopped and the respondent is directed to put the petitioner in possession of the property.

2. Aggrieved by the order of eviction mad? under Section 11(4) of the Act and refusal to grant time, two appeals were preferred to the Appellate Authority. H.R.A. No. 1644 of 1980 is against M.P. No. 404 of 1980, while H.R.A. No. 1662 of 1980 is directed against M.P. No. 584 of 1980. They were dealt with as independent appeals and by an order of even date 30th July, 1981, on a consideration of the entire matter, both the appeals came to be dismissed. Further it requires to be stated that during the pendency of the appeals, the amount directed to be deposited in M.P. No. 404 of 1980 was deposited. Notwithstanding the same, the appeals came to be dismissed. The result was the eviction order stood. It is to revise this order C.R.P. No. 3160 of 1981 is directed against H.R.A. No. 1644 of 1980, while C.R.P. No. 3161 of 1981 is directed against H.R.A. No. 1642 of 1980.

3. The learned Advocate-General contends first and foremost that the revision petitioner in a separate application even before the expiry of the date, namely, 5th September, 1980, approached the Court for extension of time. The reason adduced for extension of time was that an appeal was being preferred. As a matter off fact, the certified copy of the order was applied for on the very date of the order,' namely, 22nd August, 1980. Under those circumstances, where the revision petitioner had come forward within the due date on 4th September, 1980 itself to comply with the order expiring on 5th September, 1980, the Court in the interest of justice should have granted time. This is all the more so, because Section 11(4) of the Act does not require eviction to be passed as a conditional order since, if sufficient cause is shown as to why the deposit is not complied with, the eviction order should not be passed. In the instant case, it cannot be contended that sufficient cause was not shown. If therefore, the failure to exerteise jurisdiction is improper and should the Court be inclined to direct reconsideration now, the entire arrears as directed on 22nd August, 1980, having been paid, the Rent Control application should be remitted for consideration on merits. The lower appellate authority has also gone wrong in failing to note that there was no lack of bona fides at all in so far as the revision! petitioner seeking extension of time on a valid ground. Therefore under those circumstances, the failure to deposit the amount on or before 5th September, 1980 cannot loom large. Had the extension been granted, there would have been no scope for passing an order of eviction and therefore the original order, dated 22nd August, 1980 also has to go back. Hence the revisions have to be allowed in the interest of justice.

4. Mr. Habibullah Basha, the learned Counsel for the respondent-landlord would contend that assuming for a moment that the order passed on 22nd August, 1980 is a wrong one which requires the revision-petitioner to deposit the amount as ordered on or before 5thl September, 1980, the revision petitioner took a grave risk in filing an application at the 11th hour, expecting the Court to grant time. It is unlike the general cases, under Rent Control Apt, Deposit of the amount is ordered under Section 11(1) of the Act a sine qua non for the entertainment of the appeal. Therefore, mere willingness or readiness would not suffice. Nor again, can it be said that the subsequent deposits made during the pendency of the appeal would have the effect of militating against the order of eviction. This is a case in which the conduct of the revision-petitioner; lacks bona fides in every sense of the term. First he would allow rent control application to be ordered ex party then have the ex parte order set aside, pay a sum of Rs. 3,500 and thereafter, even when directed to pay on or before 5th September, 1980 except mere assertion about his readiness or willingness, fails to deposit any amount. Therefore, the Court rightly refused to grant extension. As pointed out by the appellate authority, if the tenant was eager to avoid eviction, nothing would have been easier than to deposit the amount because such a deposit is essential even for preferring an appeal and preferring of the appeal is the only ground that was stated in the affidavit in support of the request for the extension of time. Where, therefore, the Courts below have rightly refused and exercised the discretion in favour of the revision-petitioner, this Court exercising revisional jurisdiction cannot interfere.

5. In the beginning of the judgment itself, I have observed that this is a very hard case. Normally the Courts are beset with application for the grant of extension of time in one matter or other. The only condition that is imposed or the only test on which the application is tested is, has the applicant come up before thedate! fixed so as to avoid the order working itself out. In this case no doubt the revision petitioner has come out on 4th September, 1980 itself praying for extension. If the matter had stood there, very much could be said in favour of the petitioner. On the contrary, it is the law which seems to be clearly against him. This necessitates me to make a detailed reference to Section 11 of the Act. That Section speaks of the payment or deposit of rent during the pendency of the proceedings for eviction. Sub-section (1) to Section 11 of the Act states that unless all the arrears of rent due in respect of the building upto the date of payment or deposit is made, it would not be open to the tenant to contest an application for eviction. This is before the original authority. Likewise, before the appellate authority also, that such a payment has to be made. Sub-section (2) requires the deposit of rent to be made within the time and the manner prescribed. In the instant case, as I have already noted that the revision petitioner was called upon to pay the rent from; 1st November, 1977 at the rate of Rs. 500 per month on or before 5th September, 1980 less the admitted arrears of Rs. 3,500 paid. Therefore, time had been specified and the manner of payment had also been prescribed. Since Sub-section (3) is not necessary for the purpose, because the enquiry had been done, I move on to Sub-section (4). That Sub-section reads as under:

11. (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.

6. It is only by virtue of this power the order, dated 22nd September, 1980 :ame to : be passed having regard to the above statutory provisions. One thing is apparent that if really the tenant was serious about his appealy he should have deposited the arrears within the due date. It requires to be noted at this stage, even in the affidavit filed in support of M.P. No. 584 of ,1980, all that is stated was as follows:

I state that on 22nd August, 1980, this Honourable Court was pleased to pass an order in M.P. No. 404 of 1980, that the petitioner should pay the entire arrears of rent at the rate of Rs. 500 from 1st July, 1977 upta date less' Rs. 3,500 on or before 5th September, 1980, failing which stop proceedings would be ordered. I have instructed our advocate, to file an appeal as against the above order and the copy application,, dated 22nd August, 1980 is registered as CD, No. 11050. I state it will take at least two weeks time to obtain the certified copy of the order and file an appeal. I state that the time given for payment expires on 5th September, 1980 and it being conditional order it will work itself out if the order is not complied with and further proceedings may be stopped as against the petition and eviction ordered.

Therefore, I take it, the filing of the appeal was the only ground that was raised and even in such a case, deposit was essential. That being the correct position, the mere averment in the very same affidavit that the revision petitioner was ready and willing to deposit the entire amount into Court less the admitted arrears already paid, would not in any way be helpful to the revision petitioner. He should have deposited the_ amount and then only could have avoided the eviction since the only ground that was stated was filing of the appeal. Therefore, on 5th September, 1980, the order, dated 22nd August, 1980, has come into being and has worked itself out. The eviction order stood unaltered in the latter circumstances. By this I mean, the latter deposit can never cure the original non-compliance. Therefore, the appeals themselves could not have been entertained unless and until, the amount was deposited since Sub-section (1) categorically lays down:

No tenant against whom an application for eviction was made by a landlord under Section 10 shall be entitled to... prefer any appeal under Section 23 against any order made by the Controller on the application, unless he has paid or pays id the landlord, or deposits with the Controller or the appellate authority... all arrears of rent due in respect of the building upto the date of payment or deposit, and continues to pay or deposit any rent which may subsequently become due until the termination of the proceedings.

Admittedly, at the time of preferring the ap-!pea], the arrears had not been paid or deposited in terms of Section 11(1) of the Article Hence the appeals themselves should not have been, entertained, apart from the fact that the order passed on 22nd August, 1980, had worked out itself, by the appellate authority. When the, appeals themselves were incompetent, now the question becomes academic whether there was justification for refusing to deposit the amount. This is because purely of the statutory provisions and one cannot import the general consideration of justice or equity in a case of this character. That is why I said that it makes bad law.

7. For all these reasons, these revision petitions will stand dismissed.

8. However, there will be no order as to costs.

9. A request was made by the learned Advocate-General that some time nay be granted to vacate the premises. I have grave doubt as to whether when exercising revisional jurisdictions, time can be granted, as prayed for by the learned Advocate-General. However, Mr. Habibullah Basha, the learned Counsel for the respondent is fair enough to state that his client is willing to grant time till 28th February, 1982 to deliver vacant possession.


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