Madras High Court
Hasmukhlal Popatlal Kothari vs Bhawarlal Jain on 1 August, 2023
C.R.P.(NPD)Nos.4297 to 4300 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(NPD)Nos.4297 to 4300 of 2017
and C.M.P.Nos.20206 of 2017 & 22866 of 2018
Hasmukhlal Popatlal Kothari ..
Petitioner in
all the CRPs.
Vs.
Bhawarlal Jain .. Respondent in
all the CRPs.
Prayer in C.R.P.No.4297 of 2017: Civil Revision Petition is filed under
Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act,
against the fair and decretal order dated 07.10.2017 in M.P.No.231 of
2017 in R.C.A.No.400 of 2017 on the file of the learned IX Judge, Small
Causes Court, Chennai.
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C.R.P.(NPD)Nos.4297 to 4300 of 2017
Common Prayer in C.R.P.Nos.4298 to 4300 of 2017: Civil Revision
Petitions are filed under Section 25 of the Tamil Nadu Buildings (Lease
and Rent Control) Act, against the fair and decretal order dated
07.10.2017 in M.P.Nos.321 to 323 of 2017 in M.P.No.231 of 2017 in
R.C.A.No.400 of 2017 on the file of the learned IX Judge, Small Causes
Court, Chennai.
In all the CRPs.
For Petitioner : Mr.T.M.Hariharan
for Mr.Samir Sha for M/s.Shah and Shah
For Respondent : Mr.Bijay Sundar
COMMON ORDER
Heard the learned counsel for the petitioner as well as the learned
counsel for the respondent. I have carefully gone through the records.
2. The civil revision petitioner is the tenant and the respondent is
the landlord. R.C.O.P.No.1625 of 2015 is a petition filed by the landlord
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C.R.P.(NPD)Nos.4297 to 4300 of 2017
under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent
Control) Act (hereinafter referred to as 'the Act'). In the said proceeding,
M.P.No.142 of 2016 was filed by the landlord under Section 11(3) of the
Act stating that the tenant had not paid the rent from March 2015 to
December 2016. The tenant was directed to pay the monthly rentals being
Rs.75,000/- and arrears being Rs.9,00,000/-.
3. Aggrieved by the said order, the petitioner filed an appeal in
R.C.A.No.400 of 2017 on the file of the learned XVI Judge, Small Causes
Court, Chennai. The said R.C.A. is still pending. In the mean time, since
the interim order passed in M.P.No.142 of 2016 was not complied with,
eviction was ordered on 06.02.2017. Pending the R.C.A., an application
was moved by the petitioner in M.P.No.231 of 2017. This application is
for stay of an order of eviction, passed in R.C.O.P.No.1625 of 2015,
pending disposal of the appeal. In the said petition, the following order
was passed.
“Heard the counsel for the petitioner. The
learned counsel for the petitioner/appellant submit
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C.R.P.(NPD)Nos.4297 to 4300 of 2017
that the learned Rent Controller has not adverted to
the facts of the case and has ordered eviction. It is
further submitted that the petitioner has paid the rent
without any arrears. According to the orders of the
Rent Controller, the petitioner/appellant is liable to
pay the arrears from March 2015 to December 2016
at the rate of Rs.75,000/-. On the other hand, the
R.C.O.P. being filed for the covering period from
March 2015 to February 2016 amounting to
Rs.9,00,000/-. Though, there was a dispute with
relates to jural relationship, it would be decided in
later point of time i.e., To pass the final order of RCA.
In the instant Appeal on hand, the appellant stating
that he is ready and willing to comply with any
condition could be imposed. However, the petitioner
admitted to deposit the sum of part amount without
prejudice to his case. It is further submitted the
petitioner has every chance of success in the appeal.
If an order of interim stay is not granted the
petitioner will be put to irreparable loss. In the above
said circumstances, this Court inclined to grant
interim stay till 3.8.2017 on condition that the
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C.R.P.(NPD)Nos.4297 to 4300 of 2017
petitioner has to deposit a sum of Rs.9 lakhs to the
credit of this RCA.399/2017 & 400/2017 on or before
3.8.2017, call on 03.08.2017. Notice to respondent by
then. If the appellant is to be failed to comply with the
order, the stay will be automatically ousted. ”
4. It is pertinent to point out that the tenant filed M.P.No.321 of
2017 seeking for extension of time for a condition that has been imposed
by the Court on 01.06.2017. Apart from that, M.P.No.322 of 2017 was
filed by the tenant to permit him to deposit Rs.2,00,000/- to the credit of
RCA. He also filed an application in M.P.No.323 of 2017 seeking for
extension of stay granted in M.P.No.231 of 2017 from 03.08.2017 to
19.09.2017.
5. After issuing notice to the landlord, the Rent Control Appellate
Authority found no merits in the applications and therefore, dismissed the
same. Against the said order, the tenant has filed four revisions:
(i) C.R.P.(NPD)No.4297 of 2017 has been filed against the
dismissal of a stay petition in M.P.No.231 of 2017;
(ii) C.R.P.(NPD) No.4298 of 2017 has been filed challenging the
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C.R.P.(NPD)Nos.4297 to 4300 of 2017
order in M.P.No.321 of 2017, which was filed for the purpose of
extension of time;
(iii) C.R.P.(NPD)No.4299 of 2017 has been filed against the order
in M.P.No.322 of 2017, which sought for modification of the order to pay
Rs.2,00,000/-;
(iv) Finally, C.R.P.(NPD)No.4300 of 2017 has been filed against
the order passed in M.P.No.323 of 2017 seeking for extension of stay.
6. Pending the Civil Revision Petitions, the tenant had deposited a
sum of Rs.15,00,000/-, which had been imposed as a condition on
01.06.2017.
7. The learned counsel for the petitioner submitted that the learned
Rent Control Appellate Authority does not have the power under the Act
to impose a condition for the purpose of hearing the appeal. He would
want me to construe the order passed in M.P.No.231 of 2017 as a
precondition that had been imposed by the Appellate Authority for the
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C.R.P.(NPD)Nos.4297 to 4300 of 2017
purpose of hearing the appeal.
8. Mr.Bijay Sundar, learned counsel for the respondent would
stoutly oppose the same and would state that a condition is only for the
purpose of grant of stay and not a condition for the purpose of hearing
the appeal.
9. The issue whether the Court can impose a condition for the
purpose of hearing the appeal has already been settled by the Division
Bench of this Court in M/s.A.Rafeeq Ahmed and Co. represented by its
Partner K.Muktar Ahamed vs. M/s.Montari Leather Ltd., represented
by its Chairman and Managing Director 2002-1-L.W.133.
10. A Division Bench of this Court had held that a right to file an
appeal is a right, which is vested in a litigant, even at the time of
institution of the original proceedings itself. Therefore, the Court held that
the Appellate Authority cannot insist on a payment of arrears of rent for
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C.R.P.(NPD)Nos.4297 to 4300 of 2017
the purpose of hearing the appeal. This was an interpretation of Section
23(1) of the Act.
11. It is pertinent to point out that though the Court had laid down
this proposition, it went on to hold that the Rent Control Appellate
Authority has the power to impose a condition at the time of granting
stay. The relevant paragraph No.76, is extracted hereunder:
“76.The phraseology viz., “to contest or
prefer”. The said expression does not mean that as a
condition precedent the tenant has to deposit the
entire arrears for preferring an appeal. However, we
hasten to add that as and when an appeal is preferred
and taken on file, subject to the tenant satisfying the
requirement of the statutory provision of the Act and
the Rules, it is for the Appellate Authority while
granting interim stay or vacating the same to pass
such order including orders directing the tenant to
deposit either the admitted arrears or such portion of
arrears, which it deems just or proper in his view.”
This makes it clear that the Rent Control Appellate Authority had the
power to impose a condition for the deposit of entire arrears as on that
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C.R.P.(NPD)Nos.4297 to 4300 of 2017
date as a condition for grant of stay. I am bound by the judgment of the
Division Bench and therefore, I respectfully follow the same.
12. Apart from that, it is pertinent to point out that the petitioner
himself had approached the Appellate Authority and had stated that he is
ready and willing to comply with any conditions that may be imposed for
the purpose of grant of stay. Having gone before the Appellate Authority
and having stated that he is willing to comply with the condition, it does
not lie in the mouth of the petitioner to state today that the imposition of a
condition to deposit the entire arrears for grant of stay is onerous and
beyond the jurisdiction of the Appellate Authority.
13. Furthermore, accepting the condition, the petitioner himself had
moved two applications, one seeking for an extension of time and the
other for modification. This shows that the petitioner was well aware that
the Appellate Authority can impose any conditions for the purpose of
grant of stay and he sought for the benevolence of the appellate authority
for the variation of the conditions, which were rightly rejected.
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C.R.P.(NPD)Nos.4297 to 4300 of 2017
14. It is made clear that in case, the appeal filed by the alleged
tenant succeeds, the landlord would have to put the money back that he
has received, pursuant to the interim order of the Court into the deposit
of the RCA.
15. In fine, I am of the clear view that the Division Bench has
clearly pointed out the difference between the deposit as a precondition
for hearing the appeal and deposit as a condition for grant of stay. The
present case falls under the latter category. Therefore, there is no merits in
the Civil Revision Petitions. Accordingly, the Civil Revision Petitions are
dismissed. No costs. Consequently, connected Miscellaneous Petitions are
closed.
01.08.2023
Index:Yes/No
Speaking Order :Yes/No
Neutral Citation:Yes/No
kj
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)Nos.4297 to 4300 of 2017
V.LAKSHMINARAYANAN,J.
Kj
To
IX Judge, Small Causes Court, Chennai.
C.R.P.(NPD)Nos.4297 to 4300 of 2017
and C.M.P.Nos.20206 of 2017 & 22866 of 2018
01.08.2023
https://www.mhc.tn.gov.in/judis
