Madras High Court
K.Thiyagarajan vs V.Kannan on 21 December, 2021
C.R.P.(NPD).No.2949 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.R.P.(NPD).No.2949 of 2021
and
C.M.P.No.21121 of 2021
K.Thiyagarajan .. Petitioner
Vs.
V.Kannan .. Respondent
PRAYER: Civil Revision Petition filed under Section 25(1) of the Tamil
Nadu Buildings (Lease & Rent Control) Act, 18 of 1960 as amended by Act
23 of 1973, praying to allow the Civil Revision Petition and set aside the
decree and judgment dated 23.01.2021 made in R.C.A.No.489 of 2017 on
the file of the Rent Control Appellate Authority (learned IX Judge Court of
Small Causes) FAC, Chennai reversing the fair and decreetal order dated
11.01.2017 made in R.C.O.P.No.208 of 2016 on the file of the learned Rent
Controller (XIII Small Causes Court), Chennai.
For Petitioner : Mr.S.Kumarswamy
For Respondent : Mr.M.Arunachalam
*********
1/8
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.2949 of 2021
ORDER
Challenge in this Revision, filed under Section 25 of the Tamil Nadu
Buildings (Lease & Rent Control) Act, is to the order of the learned
Appellate Authority refusing to extend time granted for deposit of arrears of
rent.
2. The landlord initiated RCOP.No.208 of 2016 under Section
10(2)(i) of the Tamil Nadu Buildings (Lease & Rent Control) Act
contending that the tenant has defaulted in payment of difference between
the contractual rent and fair rent fixed. Agreed rent was Rs.3,500/- per
month. The defendant filed RCOP.No.1721 of 2009 seeking fixation of fair
rent. The same was allowed and the fair rent was fixed at Rs.7,693/- per
month. The landlord issued notice requiring the tenant to pay the arrears,
that is, difference between agreed rent and fair rent fixed. Since the tenant
failed to pay the arrears, the landlord launched the present proceedings. The
tenant resisted the proceedings contending that he has filed appeal against
the order fixing fair rent and since the order fixing fair rent has not become
final, there is no question of willful default.
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C.R.P.(NPD).No.2949 of 2021
3. The Rent Controller allowed the petition on the ground that once
the fair rent has been fixed, it is for the tenant to pay the arrears also.
Despite the notice being served, the tenant failed to pay the arrears, which
would amount to willful default. On the claim of the tenant that he has filed
appeal, the Rent Controller recorded a factual finding that no material has
been produced to show that the appeal is pending or an appeal had been
preferred.
4. Aggrieved, the tenant, preferred an appeal in R.C.A.No.489 of
2017. Pending appeal, the landlord filed an application in M.P.No.228 of
2019 under Section 11 of the Act seeking stoppage of proceedings for non-
payment of rent. The Appellate Authority by order dated 12.02.2020
allowed the M.P.No.228 of 2019 directing the tenant to pay the arrears of
rent. The tenant did not comply with the order, but, filed an application in
M.P.No.2 of 2020 seeking extension of time.
5. This was opposed by the landlord contending that the arrears is due
for more than 6 years and the tenant does not deserve any benevolence from
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C.R.P.(NPD).No.2949 of 2021
the Court. The Appellate Authority dismissed the application for extension
of time and as a consequence stopped further proceedings and directed
eviction.
6. Mr.S.Kumarswamy, learned counsel appearing for the petitioner
would submit that the tenant has been very regular in payment of rent and
non-payment of difference is due to lock-down imposed and his own ill-
health. He would seek the Court to approach the case on humane
consideration than on law.
7. Per contra, Mr.M.Arunachalam, learned counsel appearing for the
respondent/ landlord would submit that the tenant knew that he had to pay
arrears prior to 25.01.2016, when the notice of demand was served on him.
The tenant contested the case setting up false defence as to the filing of the
appeal. He did not come forward to pay the entire arrears even during the
pendency of the Rent Control Original Proceedings for more than 3 years.
Therefore, according to the counsel for the respondent, the tenant does not
deserve any indulgence from this Court.
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C.R.P.(NPD).No.2949 of 2021
8. The liability of the tenant to pay rent is statutory. Once the fair rent
is fixed and the order fixing fair rent has become final, the tenant is duty
bound to pay difference between the agreed rent and fair rent within
reasonable time. In the case on hand, the fair rent was fixed on 29.10.2015.
Admittedly, neither the tenant nor the landlord preferred appeal against the
said fixation. The landlord issued notice demanding difference in rent on
16.12.2015. Therefore, it is almost for 6 years now the tenant has been
evading payment of difference, except paying a sum of Rs.50,000/- during
the pendency of Rent Control Appeal. Moreover, the eviction for non-
payment of rent is a statutory consequence and this Court sitting in Revision
under 25 of the Tamil Nadu Buildings (Lease & Rent Control) Act cannot
interfere with the consequence of non-compliance as prescribed in the
statute.
9. No doubt, the argument of the counsel that the Court must adopt a
humane approach is very attractive. But, considering the nature of the statue
viz., special legislation, I do not think, there is any elbow room for the Court
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C.R.P.(NPD).No.2949 of 2021
to introduce the concept of humane approach and relieve the tenant from the
statutory consequence which are at times harsh. I therefore see no merits in
the Revision. The Revision therefore fails and it is accordingly dismissed.
No costs. Consequently, the connected miscellaneous petition is closed.
10. The learned counsel for the petitioner seeks some time to vacate.
Considering the fact that the petitioner is doing business in the premises, he
is granted 8 months time i.e., till 31st August 2022 to vacate and handover
possession subject to the following conditions:
1. The tenant shall file an affidavit before this
Court on or before 07.01.2022 undertaking to vacate
and deliver vacant possession on or before
31.08.2022 without driving the landlord to execution
proceedings.
2. The tenant shall pay the entire arrears of
rent upto date on or before 28.02.2022 and also
continue to pay arrears of rent as fixed by the learned
Rent Controller till such time he vacates.
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C.R.P.(NPD).No.2949 of 2021
11. In the event of non compliance with any one of the above two
conditions, the landlord will be entitled to execute the order, as if, no time
has been granted by this Court.
21.12.2021
dsa
Internet : Yes
Index : No
Speaking order
To
1.The Rent Control Appellate Authority,
IX Judge Court of Small Causes, FAC, Chennai.
2.The Rent Controller,
XIII Small Causes Court, Chennai.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.2949 of 2021
R.SUBRAMANIAN, J.
dsa
C.R.P.(NPD).No.2949 of 2021
21.12.2021
https://www.mhc.tn.gov.in/judis
