@JUDGMENTTAG-ORDER
B. Rajendran, J.@mdashIn both the Civil Revision Petitions, the issue arise for consideration is identical and common. Counsel for both sides have also advanced common arguments and therefore, by consent, both the Civil Revision Petitions are taken up together and are disposed of by this common order. The tenants have come forward with these two Civil Revision Petitions questioning the correctness of the orders passed by the courts below.
2. The respondents herein have filed R.C.O.P. No. 2168 of 1998 before the learned Rent Controller u/s 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 hereinafter referred to as ''The Act'' against the revision petitioner/tenant. According to the landlords/respondents herein, N.K. Ansar Ali, father of the first respondent herein was the owner of the premises bearing Door No. 70, Portuguese Church Street, Seven Wells, Chennai - 600 001 in which the tenant/revision petitioner was inducted as a tenant for a monthly rent of Rs. 2,500/-. It was contended that the original owner N.K. Ansar Ali has appointed one Hajee K.M. Mohammed Mustafa as his power of attorney agent and authorised him to collect the rent from the tenants. While so, on 26.04.1997, the owner N.K. Ansar Ali died and therefore, the power given in favour of his agent also came to an end. On the death of the original owner, the tenants stopped paying the monthly rent. In those circumstances, the first respondent herein, one of the legal heirs of the original owner N.K. Ansar Ali, issued a legal notice dated 11.08.1997 calling upon the tenants to pay the rent to him from April 1997 and continue to pay the future rent without any default as original owner died and power of attorney executed by the deceased in favour of his agent has come to an end. Since there was no response, another notice dated 16.04.1998 was issued calling upon the tenants to pay the arrears of rent from April 1997. Inspite of the notices, since there was no response, the respondents have filed the above said Rent Control Original Petition No. 2168 of 1998 on 08.07.1998 before the learned Rent Controller for eviction of the tenant on the ground of willful default in payment of rent from April 1997 to June 1998 to the tune of Rs. 52,500/-.
3. The landlord/respondents herein have also filed O.S. No. 1245 of 1998 before the learned V Assistant Judge, City Civil Court, Madras against Hajee. K.M. Mohammed Mustafa and two others praying to issue appropriate directions to them to render true and proper accounts as regards the receipt of the rental collections from April 1997 to January 1998 and for consequential permanent injunction. The said suit was dismissed for default on 22.06.2000.
4. The tenants resisted the Rent Control Original Petition No. 2168 of 1998 by contending that they have paid rent upto November 1997 to the power agent Mohammed Mustafa and therefore the contention that they are liable to pay rent from March 1997 was denied. However, the tenants have admitted that they were inducted as tenant by the father of the first respondent herein and also the quantum of rent claimed. According to the tenants/revision petitioners, after the death of the owner Ansar Ali, Mrs. Aiysha Mariam, claiming herself to be the second wife of the said Ansar Ali, issued a notice dated 13.09.1997 to them and called upon them to pay the rent. It was also claimed in the notice dated 13.09.1997 that the deceased owner settled the petition mentioned premises in favour of Aiysha Mariam even during the year 1984 and she has appointed the very same Hajee Mohammed Mustafa as her power agent to collect the rent. Since there was rival claimants, the tenants have filed R.C.O.P. No. 1349 of 1998 u/s 9(3) of the Act seeking to deposit the rent into the Court as they are not sure as to whether Aiysha Mariam is the owner or the respondents are the owner of the petition mentioned premises. The respondents in R.C.O.P. No. 1349 of 1998 namely Aiysha Mariam as well as the respondents herein did not appear before the learned Rent Controller and therefore they were set ex-parte on 21.01.1999. However, the R.C.O.P. No. 1349 of 1998 was dismissed on the ground that the Court has no jurisdiction to entertain the same. In any event, the tenants have bona fide filed R.C.O.P. No. 1349 of 1998 for depositing the rent and therefore the question of willful default in payment of rent does not arise. It was also contended that the tenants/revision petitioners have been depositing the rental amount in a bank account opened by them in their name with Punjab National Bank, Mint Street Branch, Chennai from December 1997 till the date of filing the counter namely February 2000 and therefore it was claimed that they have not committed willful default in payment of rent.
5. Pending R.C.O.P. No. 2168 of 1998, the respondents herein have also filed M.P. No. 148 of 2001 u/s 11(4) of the Act to direct the tenants to deposit Rs. 1,40,000/- towards rental arrears from April 1997 to October 2000 as a condition precedent for permitting them to defend the Rent Control Original Petition.
6. A counter affidavit has been filed in MP No. 148 of 2001 in R.C.O.P. No. 2168 of 1998 contending that the tenants have filed a Petition u/s 9(3) of the Act for depositing the rent into the Court. Further, the rent was paid upto November 1997 to power agent Mohammed Mustafa. It was also contended that Aiysha Mariam filed an application to implead herself as a party respondent in R.C.O.P. No. 2168 of 1998 and it was dismissed on 15.02.2001.
7. In the meantime, Aiysha Mariam has filed O.S. No. 4468 of 2001 before the City Civil Court, Chennai against the respondents herein praying for Mandatory Injunction directing the respondents herein to quit and deliver vacant possession of the property and for other relief. The said suit was pending at that point of time.
8. The learned Rent Controller, on appreciation of the oral and documentary evidence made available, allowed M.P. No. 148 of 2001 in R.C.O.P. No. 2168 of 1998 filed by the respondents herein u/s 11(4) of the Act was allowed by the learned Rent Controller on 23.04.2001. As against the same, R.C.A. No. 559 of 2001 was filed by the tenants and it was also dismissed by the Appellate Authority on 21.04.2003. Aggrieved by the same, CRP NPD No. 1561 of 2003 was filed.
9. Consequent to the order passed in the petition filed u/s 11(4) of the Act, the R.C.O.P. No. 2168 of 1998 filed by the landlords/respondents herein was also allowed by the learned Rent Controller ordering eviction of the tenants on 30.04.2001. Aggrieved by the same, the tenants have filed R.C.A. No. 565 of 2001 and it was also dismissed by the Appellate Authority on 21.04.2003. As against the same, CRP NPD No. 1560 of 2003 has been filed.
10. The learned Senior counsel appearing for the tenants/revision petitioners would contend that merely because the respondents claims themselves to be the legal heirs of the original owner Ansar Ali, they cannot be called as landlords especially when Aiysha Mariam claims herself to be the second wife of Ansar Ali and asserted a right over the petition mentioned premises on the basis of a settlement deed dated 28.12.1984 executed in her favour. Both the courts below, without any valid evidence, concluded that such settlement in favour of Aiysha Mariam has been cancelled and it is legally not correct. As per the settlement deed, the revenue records have been changed in the name of the said Aiysha Mariam and she is the owner of the petition mentioned property. Since the appeal filed by Aiysha Mariam against the dismissal of her claim to implead herself in R.C.O.P. No. 2168 of 1998 was pending at that point of time, the courts below ought not to have dismissed the Rent Control Original Petition as well as the appeal. Both the courts below failed to take into account the bonafides of the tenants and the amount of Rs. 1,65,500/- deposited by them towards rent for the period from December 1997 to October 2001 in I.A. No. 19131 of 2001 in O.S. No. 4468 of 2001. The learned senior counsel for the revision petitioners also mainly contend that the arrears of rent from December 1997 to December 2001 was paid to Aiysha Mariam under Ex. R6 besides that the rent was continuously paid to her till January as per Ex. R7. While the facts are so, the courts below erroneously concluded that there is no denial of title. Therefore, the learned Senior counsel for the petitioners prayed for allowing the Civil Revision Petitions.
11. The learned counsel appearing for the respondents would contend that the application filed by the tenants/revision petitioners seeking to deposit the rent into the court was allowed to be dismissed for default and thereafter they have not taken any steps to deposit the rent into the court. The tenants have not paid rent even before the filing of the Rent Control Original Petition or during the pendency of the Petition filed by the respondents herein. Subsequently, an advocate receiver was appointed by the Civil Court but the tenants have neither paid the rent to the advocate receiver nor preferred an appeal against the order appointing the advocate receiver. The tenants only contend that they have paid rent to Aiysha Mariam who is one of the rival contestants and in whose favour the title to the petition mentioned property does not exists. In fact, the said Aiysha Mariam filed an application in M.P. No. 732 of 2000 to implead herself as a party to the Rent Control Original Petition and that was dismissed, against which she filed R.C.A. No. 38 of 2003. It is not known as to what prevented the respondents to pay the rent to the respondents herein or to the advocate receiver appointed by the Court instead of paying the rent allegedly to Aiysha Mariam. Thus, the alleged payments of rent to Aiysha Mariam will not enure to the benefit of the tenants/revision petitioners herein for having paid the rent and on this ground alone, the revision petitioners are liable to be evicted. In any event, the nonpayment of rent by the tenants is willful, deliberate and wanton and the courts below are right in passing an order against them. In any event, the revision petitioners have not come forward with any plausible explanation for not paying the rent thereby compelled the respondents to file the petition u/s 11(4) of the Act. Even thereafter, since the tenants did not pay the rent, the courts below rightly allowed both the Petition filed u/s 11(4) of the Act as well as the Rent Control Original Petition and he prayed for dismissal of both the Civil Revision Petitions.
12. Heard both sides. The learned Rent Controller has given a specific finding in the application filed by the respondents u/s 11(4) of the Act that even though a defence was raised by the tenants that rent has been paid till November 1997 to the power agent Mohammed Mustafa, the tenants have not produced any documentary evidence to substantiate the same. Even in respect of the allegation that an impleading application was filed by Aiysha Mariam against which an appeal was filed, no records have been produced to substantiate the same. Further, even after dismissal of the application filed by Aiysha Mariam to implead herself, the tenants have not taken any steps to deposit the rent. Therefore, the learned Rent Controller concluded that the tenants are guilty of willful default in payment of rent. It was also held that even during the pendency of the application u/s 11(4) of the Act, the tenants have not deposited the rent or taken any steps to deposit the rental arrears. Since the rental arrears have not been deposited, the learned Rent Controller allowed the application filed by the respondents herein u/s 11(4) of the Act.
13. On appeal, the Appellate Authority taking into consideration that the revision petitioners did not object that the respondents herein are the legal heirs of the deceased Ansar Ali, held that there is no reason assigned by the tenants for non-payment of rent to the respondents herein. Even though it was claimed that rent was paid till November 1997 to the power agent of the original owner, they have not produced any material records to substantiate the same. The appellate Authority also pointed out that Aiysha Mariam filed C.M.A. No. 38 of 2003 in which she has filed an application in I.A. No. 84 of 2003 seeking to receive certain documents namely receipt dated 18.02.2002 etc., On perusal of the same, the appellate authority pointed out that even though documents were marked, the tenants/revision petitioners have not explained as to why rental amounts were not deposited before the Court or paid to the advocate receiver. The appellate Authority also relied on the decisions of this Court reported in
14. It is seen from the records that Aiysha Mariam, who claims to be the second wife of the original owner N.K. Ansar Ali has filed O.S. No. 4468 of 2001 for various reliefs claimed therein. Pending suit, she has filed I.A. No. 12685 of 2001 under Order 39 Rule 1 and 2 of CPC for interim injunction as against the respondents herein from interfering with the possession of the premises by the tenants. She has also filed I.A. No. 12686 of 2001 for interim injunction restraining the respondents from collecting the rents from the tenants. I.A. No. 15727 of 2001 was also filed under Order 40 Rule 1 of CPC for appointment of an advocate receiver for maintenance of the Petition Mentioned Property excluding the first floor and also to supervise and to collect rents from the tenants. By a common order dated 11.01.2002, the aforesaid applications have been allowed and one Mr. A.S. Narasimhan, Advocate, was appointed as an advocate receiver. On the basis of the said order dated 11.01.2002, the advocate receiver sent a notice dated 08.02.2002 calling upon the tenants to pay the rent to him as per the order of the Court from February 2002. On receipt of the notice from the advocate receiver, the tenants have paid a sum of Rs. 3,500/- towards rent for the month of January 2002 on 18.02.2002. However, even after such an order passed by the Court, by a letter dated 08.03.2002, the tenants have paid rent to Aiysha Mariam to the tune of Rs. 1,68,000/- for the period from December 1997 to December 2001 for four years, for the reasons best known to them. It is pertinent to point out here that even the order appointing an Advocate Receiver was vacated within three months in C.M.A. Nos. 31 to 33 of 2003 filed against the order dated 11.01.2002 appointing an advocate Receiver. When there are cases pending, the tenants/revision petitioners should have either paid the rent to the advocate receiver or deposited it before the Court. The tenant/revision petitioners, instead, alleged to have paid the rent to Aiysha Mariam without any reason. Even though the tenant/revision petitioners claimed that they have taken out an application to deposit the rent into the Court, that application was allowed to be dismissed for default. This application was filed mainly for the reason that Aiysha Mariam, claiming herself to be the second wife of original owner Ansar Ali, directed the tenants to pay the rent to her. Conveniently, that application was allowed to be dismissed. Thereafter, in the suit filed by her, an Advocate Receiver was appointed only for a short time. Even after the order appointing an Advocate Receiver was set aside, it was not explained as to why the tenant/revision petitioner choose to pay the rent to Aiysha Mariam instead of respondents atleast in to the Court. This is a grave error committed by the tenant which was rightly pointed out by the appellate Court.
15. On 27.01.2013, this Court, while granting interim stay in C.M.P. Nos. 16649 and 16650 of 2003 in CRP (NPD) Nos. 1560 and 1561 of 2003, directed the tenants/revision petitioners to deposit a sum of Rs. 2,70,000/- and the amount was deposited as directed. Therefore, it was contended that there is no willful default in payment of rent. Contra, this only indicates the willful default in payment of rent as the tenants have not paid rent for a long time but rent was paid only as per the conditional order of this Court. Further, both the courts below have given a categorical finding that the tenants have not disputed that the respondents herein are the legal heirs of original owner Ansar Ali, while so, the tenants ought to have paid the rent to the respondents herein and non-payment of rent is fatal to their claim.
16. The learned counsel for the respondents relied on the decision of the Honourable Supreme Court reported in
2. 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 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 means 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 injustice between the parties. But the expression sufficient cause necessarily implies an element of sincerity, bona fide, honesty 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 u/s 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.
17. The learned counsel for the respondent also relied on the decision of this Court reported in
31. In view of the above decisions, it is very clear that the tenant cannot be in occupation of a property unless he pays rent to the landlord or deposits the same in the court. In the present case, the appellate authority has only directed the revision petitioner/tenant to deposit the rent into court and not to pay directly to the respondent. In such circumstances, no prejudice would be caused to the revision petitioner as the money is only deposited into the court when the appeal proceedings are in progress. The revision petitioner/tenant cannot contend that he would neither deposit the money in the court nor pay it to any one and still he can continue to occupy the property till the rent control proceedings are ultimately over.
32. Yet another reason to reject the case of the revision petitioner is that after suffering the order in M.P. No. 737/2001, he did not come before this court immediately challenging the same. In fact, he filed 2 petitions in M.P. No. 501/2003 and 523/2003 for extension of time for depositing the rental arrears. If that being so, the revision petitioner has already acquiesced with the order passed in M.P. No. 731/2001 directing him to pay the rental arrears of Rs. 20,200/- as per order dated 1.8.2003. Time was extended in M.P. No. 501/2003. The petition to extend the time in M.P. No. 523/2003 was dismissed on 27.8.2003. Admittedly, this order refusing to extend the time was not challenged before this court. It is obvious from the conduct of the petitioner that he was only buying time before the appellate authority under the guise of filing petition for extension of time before challenging the order dated 1.8.2003 in M.P. No. 737/2001. Therefore it is to be held that by filing two time extension petitions, in M.P. No. 501/2003 and M.P. No. 523/2003, the petitioner is estopped from challenging the order passed in M.P. No. 737/2001.
18. These decisions relied on by the counsel for the respondents would squarely apply to the facts of the case on hand. In the present case, the tenants have not shown sufficient cause for not depositing the rent in to Court. The respondents have filed a petition u/s 11(4) of the Act and immediately thereafter, the tenants ought to have paid rent. The tenants atleast should have paid rent to the Advocate receiver appointed by the court below but that was not done. From the above facts, it is clear that there is no documents made available to show that during the pendency of the Rent Control Appeal or the Petition filed u/s 11(4) of the Act, the tenants have paid rent to the respondents. The tenants/revision petitioners herein have not discharged their statutory obligation to pay the rent as and when it has become due. Mere filing of the petition u/s 9(3) of the Act to deposit the rent and subsequently allowing it to be dismissed for default will not enure to the benefit of the tenants or it will absolve them from willful default in not paying the rent. Under those circumstances, both the courts below are right in holding that the tenants/revision petitioners have not discharged their statutory obligation to pay the rent and on that ground passing an order to evict them does not call for any interference by this Court. The Civil Revision Petitions are therefore liable to be dismissed as devoid of merits. In the result, the orders passed by the Courts below are confirmed and the Civil Revision Petitions are dismissed. No costs.
