?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 09/06/2008 *CORAM The Honourable Mr.Justice S.RAJESWARAN +CRP.PD.1019 of 2008 #K.Sundararajan $T.M.Baggiya Lakshmi !FOR PETITIONER : Mr.R.Asaithambi ^FOR RESPONDENT : Mr.T.M.Hariharan :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 09.06.2008
Coram
The Honourable Mr.Justice S.RAJESWARAN
C.R.P.(PD) No.1019 of 2008
K.Sundararajan … Petitioner
Vs.
T.M.Baggiya Lakshmi ... Respondent
Civil Revision Petition has been filed Under Article 227 of the Constitution of India against the decree and fair order dated 02.12.2006 of the learned Sub Judge at Salem in I.A.No.43 of 2006 in unnumbered R.C.A.No. Of 2006.
For Petitioner :Mr.R.Asaithambi
For Respondent :Mr.T.M.Hariharan
ORDER
The respondent/tenant in RCOP No.29 of 2005 is the revision petitioner before this Court.
2.RCOP No.29 of 2005 has been filed by the respondent/landlord, against the revision petitioner, to pass an order of eviction from the petition property and hand over the possession of the same to the respondent/landlord.
3.The case of the respondent/landlord in RCOP No.29 of 2005 is that, the building bearing Door No.30 at Cherry Road, Kumaraswamypatti, Salem comprised in S.No.6/15, Ward B Block 15 belongs to the respondent/landlord and the revision petitioner herein has taken the Northern shop in the ground floor on lease at a monthly rent of Rs.3,000/-, for doing computer business. The terms of the lease were reduced into writing as per the deed dated 03.08.2003 executed between the revision petitioner and the respondent/landlord. According to the respondent/landlord, the revision petitioner has not paid the rent from January 2004. Even though a notice dated 15.02.2005 has been sent by the respondent/landlord, the revision petitioner has not come forward to pay the rental arrears. Hence, the revision petitioner is liable to be evicted on the ground of willful default. It is the further case of the respondent/landlord that the revision petitioner/tenant has been using the building as his Advocate office instead of using the same for computer business. Thus, the revision petitioner is liable to be evicted from the petition premises for using the building for different purposes. Hence, she has filed RCOP No.29 of 2005 under Section 10(2)(1) and 2(ii) (b) of the Tamil Nadu Building (Lease and Rent Control) Act 1960. The said eviction petition was resisted by the revision petitioner/tenant by filing a counter. Pending RCOP No.29 of 2005, the respondent/landlord filed I.A.No.91 of 2005 under Section 11(3) and 11(4) of the Tamil Nadu Building (Lease & Rent Control) Act, 1960, to pay or deposit all the arrears of rent amounting to a sum of Rs.57,000/-, failing which, to stop all further proceedings and to make an order directing the revision petitioner/tenant to put the respondent/landlord in possession of the building described in the petition. This petition was also resisted by the revision petitioner/tenant by filing a counter wherein also the revision petitioner/tenant stated that there is no tenancy relationship between the revision petitioner and the respondent. The Rent Controller by order dated 06.12.2005 directed the revision petitioner/tenant to deposit the arrears of rent that accrued from January 2004 to till date, at the rate of Rs.1,000/- per month within one month.
4.Aggrieved by the order of the Rent Controller, dated 06.12.2005, the revision petitioner/tenant filed an appeal and as there was a delay of 68 days in filing the appeal, the revision petitioner/tenant filed I.A.No.43 of 2006 under Section 5 of the Limitation Act, to condone the delay of 68 days in filing the Rent Control Appeal. This petition was resisted by the respondent/landlord by filing a counter. The Rent Control Appellate Authority, by order dated 02.12.2006 dismissed I.A.No.43 of 2006 and aggrieved by the same, the tenant has filed the above revision petition under Section 25(2) of the Tamil Nadu Building (Lease & Rent Control) Act 1960.
5.Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. I have also gone through the documents and judgments filed by them in support of their submissions.
6.The learned counsel for the revision petitioner submits that the Rent Control Appellate Authority has dismissed I.A.No.43 of 2006 by taking into irrelevant consideration, causing serious prejudice to the revision petitioner. Hence, he prayed for setting aside the order of the Rent Control Appellate Authority to enable the revision petitioner to contest the appeal on merits.
7.Per contra, the learned counsel for the respondent/landlord has submitted that, there is no bona fide on the part of the revision petitioner in filing application under Section 5 of the Act and therefore, this aspect has been correctly adverted to by the Rent Control Appellate Authority. The learned counsel further submitted that the revision petitioner is not an ordinary tenant and in fact, he is a practising Advocate. Therefore, he submitted that the well considered order passed by the Rent Control Appellate Authority need not be interfered with by this Court. In support of his submission, the learned counsel relied on a decision of the Honble Supreme Court reported in 1999 (3) CTC 5 (Sankaran Pillai (dead) by LRS v. V.X.Venuuguduswami and others) and another decision of this Court reported in 2006 (4) CTC 46 (A.C.Abraham Kingsley v. Shanthi and others).
8.I have considered the rival submissions carefully with regard to facts and citations.
9.It is not in dispute that the revision petitioner/tenant suffered an order in I.A.No.91 of 2005 in which, he was directed by the Rent Controller to pay the rental arrears at the rate of Rs.1,000/- per month from January 2004 to till the date of deposit. It is an admitted fact that this amount has not been deposited within the time stipulated by the Rent Controller. Further, the appeal was also not filed within the time stipulated. Admittedly, the appeal was filed with a delay of 68 days and the reason given in the affidavit for the delay is that the order was passed on 06.12.2005 and the copies were made ready only on 27.01.2006. Though the appeal is to be filed within 15 days, he could not do so as he misplaced the certified copies of the order passed by the Rent Controller in his office and only after tracing the same, the appeal papers were filed immediately. The Appellate Authority while considering the condone delay petition, found that even though the order was passed on 06.12.2005, directing the revision petitioner/tenant to deposit the rental arrears within one week, the same was not deposited at all. The Appellate Authority has also considered the fact that the appeal was not filed within 15 days. The Appellate Authority has also considered the fact that the revision petitioner/tenant is a practising Advocate and to show his bona fide, atleast he should have deposited the rental arrears along with the appeal which was filed with a delay of 68 days. Hence, finding his conduct as not bona fide, the Appellate Authority dismissed I.A.No.43 of 2006.
10.In 1999 (3) CTC 5 (cited supra), the Honble Supreme Court held as under:
2.Learned counsel appearing for the appellant urged that the facts that the tenant after having entered into an agreement with the erstwhile owner of the building paid considerable amount of money towards part performance of the agreement and his further filing of suit in the civil court for specific performance of the agreement constituted sufficient cause under sub-section (4) of Section 11 of the Act for non-depositing the arrears of rent within time, as well as monthly rent which became due in respect of the building and, therefore, this Court may, after condoning the delay, permit the appellant to deposit the entire arrears of rent and remand the matter to the Rent Controller to enable the appellant to contest the application filed by the landlord for his eviction from the premises on the ground of default in payment of rent. In order to appreciate the argument of learned counsel, it is necessary to look into the relevant provisions of Section 11 of the Act. Sub-sections (1), (2) and (4) of the Act runs as under:
Sec.11 (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 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) * * *
(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.
A perusal of the aforesaid provisions shows that where an application for eviction has been filed against a tenant on the ground of default in payment of rent the tenant is required (i) to deposit all the arrears of rent due in respect of the building with the Controller or the appellate authority, as the case may be; (ii) the tenant is further required to pay or deposit the rent which may subsequently fall due in respect of the building until the termination of the proceedings; (iii) the said deposit of rent is required to be paid or deposited within the time provided and in the manner prescribed; and (iv) if the deposit of rent is not made, the Controller or the appellate authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all proceedings and pass an order of eviction against the tenant. It is true that the Controller or the appellate authority, as the case may be, if the tenant shows sufficient cause may permit the tenant to contest the application filed by the landlord for his eviction. The question that is required to be seen is, what does the expression sufficient cause mean in sub-section (4) of Section 11 of the Act. It is no doubt true that the expression sufficient cause has to be liberally construed to do substantial justice between the parties. But the expression sufficient cause necessarily implies an element of sincerity, bona fide, and reasonableness. It has to be shown by the tenant who has not deposited the rent within time, as directed by the Controller, that non-deposit of the rent was beyond his control and there was no element of negligence or inaction or lack of bona fides on his part in not depositing the rent within time. Viewed in this light, what we find in the present case is that the tenant was required to deposit the rent by 3-8-1990. But the arrears of rent were not deposited by that date. On 7-8-1990, when the order of eviction was passed, no application was moved by the tenant before the Rent Controller for revoking the order striking out defence as he could not deposit the arrears of rent on account of reasons beyond his control. On the contrary, the tenant denied the relationship of landlord and tenant before the Rent Controller. The tenants subsequent deposit of the arrears of rent before the appellate authority being requirement of law for hearing the appeal on merits, cannot be treated as bona fide deposit. Further, the tenant did not deposit the month to month rent as required under Section 11(1) of the Act and reiterated his stand that he is a landlord and not a tenant of the premises in dispute. Even before the High Court it was not the case of the tenant that under some bona fide mistake he could not deposit the arrears and month to month rent and, therefore, delay may be condoned. It appears that, after the Supreme Court affirmed the dismissal of the suit filed by the tenant for specific performance of the agreement, the tenant has now come forward with a plea that since he under mistaken belief did not deposit arrears and month to month rent and, therefore, default may be condoned. As noticed earlier, this plea of non-depositing of arrears of rent on account of sufficient cause was not a case set up by the tenant before the Rent Controller, the appellate authority and the High Court. The tenants consistent stand was that he was not required under law to deposit any arrears of rent and month to month rent as he himself was the landlord of the premises. This plea of the tenant now advanced is an afterthought and is not bona fide and, therefore, we do not find it to constitute sufficient cause as to condone the non-deposit of arrears and also month to month rent which was required to be deposited by the tenant. We, therefore, do not find any merit in the submission of the learned counsel for the appellants.
11.In 2006 (4) CTC 46 (cited supra), I have held that the Appellate Authority can entertain an appeal against an order of eviction, only if the tenant has paid all the arrears of rent up to the date of filing of the appeal and the tenant continues to pay the rent during the pendency of the appeal.
12.Though these two decisions will not exactly apply to the facts of the present case, I also find that the conduct of the revision petitioner/tenant is not bona fide and his application filed in I.A.No.43 of 2006 to condone the delay of 68 days in filing the RCA has been correctly dismissed by the Appellate Authority.
13.First of all, if there is bona fide on the part of the revision petitioner/tenant in challenging the order dated 06.12.2005, made in I.A.No.91 of 2005, in RCOP No.29 of 2005, he should have atleast deposited the entire arrears as ordered by the Rent Controller, when he came to know that he misplaced the appeal papers along with the certified copies of the order resulting in a delay of 68 days in filing the appeal. But, he did not do so and he filed the appeal only with a delay petition. Further, the revision petitioner is also a practising Advocate who should be knowing about the legal procedure better than the ordinary tenants. The only reason given by him for not filing the appeal in time is that, the
S.RAJESWARAN,J.
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certified copies were misplaced by him in his office. This has been settled by this Court in a number of decisions that, for filing an appeal against the order of Rent Controller, the certified copies need not be filed along with the appeal and the same could be filed later on and within 15 days, once the certified copies are made ready by the office. Therefore, the reasons given by the revision petitioner/tenant for not filing the appeal in time could not be accepted and his conduct is also not bona fide as he has not come forward to deposit the rental arrears within the time stipulated by the Rent Controller.
14.Hence, I am not inclined to set aside the order passed by the Rent Control Appellate Authority made in I.A.No.43 of 2006 and accordingly the Civil Revision Petition is dismissed. No costs.
09.06.2008
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Index: Yes
Internet: Yes
To
The Sub Judge,
Salem.
Note:- Issue copy
on 26.12.2008.
CRP(PD)No.1019 of 2008