Chellamma Varghese Vs F. Cicey

@JUDGMENTTAG-ORDER

Balanarayana Marar, J.@mdashThe short point that arises in this revision is whether a tenant is liable to deposit the entire arrears due on the date of such deposit or whether it is sufficient to deposit the arrears of rent at the time of issue of notice as per the proviso to Section 11(2)(b) in order to get an order for eviction on the ground of rent arrears vacated u/s 11(2)(c) of the Buildings (Lease an Rent Control) Act. Revision petitioner is the tenant of a building owned by respondent who sought eviction on various grounds including arrears of rent. The Rent Control Court allowed the petition on the ground of arrears of rent as well as bonafide need. The appeal preferred against that decision was dismissed. In the meantime first petitioner in the original petition died. The order for eviction was put in execution by the second petitioner. Two petitions were moved by the revision petitioner, one for getting the time for deposit extended and the other for clarification of the order and also to get the order passed u/s 11(2)(b) set aside. Both the petitions were dismissed by the Rent Control Court. The matter was taken up in appeal as R. C. A. 75/93 and R. C. A. 76/93. In R. C. A. 75/93 an application was filed under Order VI rule 17 of the CPC for getting the memorandum of appeal amended by incorporating the following grounds as additional grounds 12 to 14.

i. The Rent Controller ought to have taken judicial notice of the fact that the appellant had deposited the arrears of rent upto the date of the statutory notice sent by the respondent to the predecessor in-interest of the appellant and ought to have treated the order passed by the lower court under sec. 11(2)(b) vacated.

ii. The Rent Controller ought to have held that in order to vacate the order passed under S, 11 (2) (b)it is not necessary even to file a petition under S. 11(2)(c) if the appellant has paid the arrears of rent upto the date of the notice sent by the respondent.

iii. The Rent Controller ought to have held that the amount paid by the appellant towards the building tax is to be adjusted towards the arrears of rent.

The Appellate Authority dismissed the petition for amendment. Hence the revision.

2. Heard counsel for revision petitioner.

3. The main argument advanced by learned counsel for revision petitioner is that the liability of the tenant is only to deposit the arrears of rent as on the date of the notice issued by the landlord as per the provision to Section 11(2)(b) of the Rent Control Act. That amount having been deposited by the tenant the Rent Control Court should have vacated the order of eviction. That point having been sought to be raised in the appeal memorandum should have been allowed by the Appellate Authority, according to counsel. Attention is also drawn to the decision of this Court in P. Anil and another Vs. Devaki and others, - On hearing counsel and on a consideration of the relevant provisions of law and the judicial pronouncements on this matter we are of the view that the lower Appellate Authority has not committed any error in rejecting the request for amendment.

4. Section 11(2)(b) enables the landlord to seek eviction of his tenant. If the Rent Control Court after affording a reasonable opportunity to the tenant is satisfied that the tenant has not paid of tendered the rent due by him in respect of the building within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable an order directing the tenant to put the landlord in possession of the building has to be passed. If not satisfied the Rent Control Court shall reject the application. In order to maintain an application under this sub-clause the landlord has to send a registered notice to the tenant intimating the default and the petition is sustainable only if the tenant has failed to pay or tender the rent together with interest at 6% per annum and postal charges incurred in sending the notice within 15 days of the receipt of the notice or of the refusal thereof. Even alter the order of the Rent Control court directing the tenant to put the landlord in possession of the building the tenant is granted an opportunity to get that order vacated by depositing the arrears of rent with interest and cost of proceedings within a period of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow. Such a petition has been moved by the revision petitioner before the Rent Control Court. But her contention appears to be that she is liable to deposit only the arrears of rent due at the time of notice issued by the landlord before the filing of the petition. It is in support of this plea that counsel relics on the decision in 1990 (I) K.L.J. 611. A learned Single Judge of this Court held that subsection 11 (2) (c) speaks only "the arrears of rent'''' which cannot be anything other than the arrears of rent made mention of in the notice. It is observed that the definite article ''the'' used in the section makes the position clear and that means the said expression cannot be extended to rent which has fallen due after the service of notice. We are afraid that acceptance of this view will lead to anomalous and disastrous consequences. The view expressed by the learned Judge is also against the earlier decisions of this Court as well as the decision of the Supreme Court on this aspect. Since the matter is of every day occurrence before Rent Control Courts we now proceed to discuss the matter in some detail.

5. Section 11(2)(b) enables the landlord to move the Rent Control Court for a direction to put the landlord in possession and the Rent Control Court has to pass an order if it is satisfied that the tenant has not paid or tendered the rent due by him. The condition embodied in the proviso has to be satisfied in order to maintain an application under this sub-clause. The limited scope of the enquiry u/s 11(2)(b) of the Act is only to see whether the tenant has not paid or tendered the rent due by him and whether the condition in the proviso is satisfied. When once the Rent Control Court is satisfied of the same an order for eviction follows. The sub-clause does not enjoin a duty on the cent Control Court to ascertain the actual arrears of rent as on the date of the notice or on the date of the petition or at the time of passing the order. Provision has been made in the Act u/s 12 for payment or deposit of rent during the pendency of proceedings for eviction. That section mandates that no tenant shall be entitled to contest the application before the Rent Control Court or to prefer an appeal u/s 18 unless he has paid or pays to the landlord or deposits with the Rent Control Court or the Appellate Authority as the case may be all arrears of rent admitted by the tenant to be due in respect of the building upto the date of payment or deposit. Moreover the tenant shall continue to pay or deposit any rent which may subsequently become due in respect of the building. This payment or deposit has to be continued till the termination of the proceedings before the Rent Control Court or the Appellate Authority as the case may be. The Rent Control Court or the Appellate Authority as the case may be is authorised to stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building in case any tenant fails to pay or to deposit the rent as aforesaid. A reading of Section 11(2)(b) and the various subsections of Section 12 would indicate that the liability of the tenant is not only to pay or deposit the rent due at the time of notice but all arrears of rent upto the date of the petition as well as rent which accrues due thereafter during the pendency of the proceeding. The only limitation is that the liability of the tenant is only to deposit the arrears of rent admitted by him and not the rent claimed by the landlord. But the position changes after an order for eviction. When the Rent Control Court adjudicates on the rent due from the tenant at the time of notice the question of payment or deposit of admitted arrears does not arise. It is thereafter that the Rent Control Court is moved by the tenant u/s 11(2)(c) of the Act for getting the order of eviction vacated. What is required by that sub-clause is deposit of arrears of rent with interest and cost of proceedings. It necessarily follows that the deposit to be make u/s 11(2)(b) includes the rent due at the time of notice and the rent which accrued/due thereafter till the date of deposit under that sub-clause. It cannot be disputed that the liability to pay rent is a recurring one. A benefit has been conferred u/s 11(2)(c) to get the order of eviction vacated on deposit of the arrears rent. That benefit can be availed only if the tenant is prepared to deposit all arrears of rent upto that date and not a portion of such arrears, even if it be that a portion of the same is barred by limitation. The interpretation of the phase ''the arrears of rent'' contained in Section 11(2)(c) by the learned Single Judge does not therefore appear to be correct. The definite article'' ''the'' used in that sub-clause has made the position clear only regarding the requirement of the deposit of the arrears of rent and not ''rent due'' at the time of notice as contemplated in sub-clause (b) of Section 11(2). We are therefore of the view that the decision in P. Anil and another Vs. Devaki and others, does not lay down the Jaw correctly. We hold that the tenant has to deposit the entire arrears of rent due as on the date of such deposit with interest and cost of the proceedings in order to enable him to get the order of eviction on the ground of rent arrears vacated u/s 11(2)(c) of the Rent Control Act.

6. In the view that we have taken we are supported by the decision of this Court in-Francis v. Jacob (1983 K. L. T. 699). This court observed that the Rent Control Court can pass an order for eviction u/s 11(2)(b) only if it is satisfied that the tenant has not paid or tendered the rent ''due''. Even if some arrears are time barred, that will not cease to be arrears ''due'' as the tenant still owes that amount to the landlord. It is held that u/s 11(2)(c) for the Rent Control Court to vacate the order for eviction on the ground of arrears of rent, the tenant will have to deposit the arrears of rent with interest and cost of proceedings. This court observed that arrears of rent will include even the arrears barred by limitation.

7. The Supreme Court in Khadi Gram Udyog Trust Vs. Ram Chandraji Virajman Mandir, Sarasiya Ghat, Kanpur, had occasion to consider the requirement of Section 20(4) of the U. P. Urban Buildings (Regulation of Setting Rent and Eviction) Act. The expression ''entire amount of rent due'' in that section was held to include rent which has become time barred. The Supreme Court observed that on consideration of the scheme of the Act it is clear that the statute has conferred a benefit on the tenant to avoid a decree for eviction by complying with the requirement of Section 20(4). If he falls to avail himself of the opportunity and has not paid the rent for not less than four months from the date of service upon him of a notice of demand the landlord u/s 20(2) would be entitled to an order of eviction. Even thereafter the tenant can avail himself of the protection by complying with the requirements of Section 20(4). The Supreme Court further held that as the tenant has not deposited the entire amount due the protection u/s 20(4) was not available. The provisions contained in Section 11(2)(c) are more or less identical. u/s 20(4) of the U. P. Act the deposit of the entire arrears of rent will entitle the tenant to get an order relieving him against his liability for eviction if he had not complied with the requirement of Section 20(2) by making an unconditional payment on the first hearing date the entire amount of rent due. The expression ''the arrears of rent'' in Section 11(2)(c) therefore means the arrears of rent due as on the date of deposit made under that sub-clause. The interpretation of the sub-clause by the learned Single Judge in P. Anil and another Vs. Devaki and others, would result in the landlord losing a considerable portion of the rent due. That will also lead to an anomalous position where the landlord has to be satisfied with the rent due at the time of notice even if the rent control petition has been protracted for years. The landlord will again be driven to another petition for eviction on the ground of rent arrears. That in any way is not the intention of the Legislature in incorporating Section 12 in the Rent Control Act and in providing for deposit of the arrears of rent together with interest and cost for getting the order of eviction on the ground of rent arrears vacated. The provision in Section 11(2)(c) is only a benefit conferred on the tenant who is prepared to pay the entire arrears of rent to get the order vacated so that he can continue in possession of the premises even though he had been a defaulter once. It is thus clear that the legislature did not intend by the provision in Section 11(2)(c) to enable the tenant to cling on to the premises without paying rent. Necessarily therefore the tenant has to discharge all the arrears of rent due at the time when the petition u/s 11(2)(c) is moved for getting the order of eviction vacated. No illegality has therefore been committed by the Appellate Authority in rejecting the request for amendment of the appeal memorandum.

For the reasons stated above the revision is dismissed in limine.