Madras High Court
T.Ravi vs Bommiammal on 31 January, 2023
CRP No.1562 of 2017
and
CRP.No.2814 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.01.2023
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.Nos.1562 of 2017 & 2814 of 2021
and CMP.No.7255 of 2017
T.Ravi ..Petitioner in both CRPs
Vs.
Bommiammal ..Respondent in both CRPs
Prayer in CRP.No.1562 of 2017: Civil Revision Petition filed under Section
25 of Tamil Nadu Lease and Rent Control Act, 18/1960, and subsequently
Amended by Act 23 of 1973, to set aside the order and decreetal order passed in
I.A.No.12 of 2016 in R.C.A.No.5 of 2014 on the file of the Subordinate Judge,
Kancheepuram, dated 03.03.2017 and allow the CRP.
Prayer in CRP.No.2814 of 2021: Civil Revision Petition filed under Section
25 of Tamil Nadu Lease and Rent Control Act, 18/1960, and subsequently
Amended by Act 23 of 1973, to set aside the order and decreetal order passed in
I.A.No.1547 of 2017 in O.S.No.130 of 2007 on the file of the Subordinate
Judge, Kanchipuram, (Additional Subordinate Judge), Kanchipuram, dated
03.08.2019 and allow the CRP.
https://www.mhc.tn.gov.in/judis
CRP No.1562 of 2017
and
CRP.No.2814 of 2021
(In both the petitions)
For Petitioner : Mr.S.Prabhu
For Respondent : Mr.M.V.Seshachari
COMMON ORDER
The CRP.No.1562 of 2017 has been filed as against the decreetal order
dated 03.03.2017 passed in I.A.No.12 of 2016 in R.C.A.No.5 of 2014 on the
file of the Subordinate Judge, Kanchipuram, thereby allowing the application
filed under Section 11(4) of Tamil Nadu Buildings (Lease and Rent) Control
Act, to pay the arrears of rent.
2. The CRP.No.2814 of 2021 has been filed as against the decreetal order
dated 03.08.2019 passed in I.A.No.1547 of 2017 in O.S.No.130 of 2007 on the
file of the Subordinate Judge, Kanchipuram (Additional Subordinate Judge)
Kanchipuram, thereby dismissing the application filed to condone the delay of
692 days in filing a petition to restore the suit.
3. The respondent in the CRP.No.1562 of 2017 is the landlord and he
filed a petition for eviction on the ground of willful default under Section
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CRP No.1562 of 2017
and
CRP.No.2814 of 2021
10(2)(i) of Tamil Nadu Buildings (Lease and Rent) Control Act, as against the
petitioner herein.
4. The case of the respondent is that she is the owner of the petition
premises and she purchased the petition premises by a registered Sale Deed
dated 02.05.2002 for a valid sale consideration. On the same day, the
respondent had executed a Lease Deed in respect of the petition premises for a
monthly rent in favour of the petitioner herein. The petitioner is running a
welding shop in the petition premises and the monthly rent was fixed at
Rs.6000/- per month. The petitioner failed to pay the said monthly rent from the
month of May 2002 to till the month of March 2005. The petitioner is a chronic
defaulter. The petitioner is also filed a suit in O.S.No.424 of 2004 on the file of
the District Munsif Court, Tiruvallur, for bare injunction. In fact, the interim
injunction application was filed in I.A.No.953 of 2004 and the same was
dismissed by the trial Court and the main suit is pending.
5. Resisting the eviction petition, the petitioner filed a counter affidavit
and stating that the husband of the respondent is working as Village
Administrative Officer and he is also doing financial business. The petitioner
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CRP No.1562 of 2017
and
CRP.No.2814 of 2021
borrowed a sum of Rs.20,000/- on 18.02.2002 and executed an agreement
thinking that it is a Mortgage Deed. He also signed in a blank papers on the
same day. Again, the petitioner borrowed a sum of Rs.1,50,000/- on 02.05.2002
and executed a registered document in favour of the respondent as he thought
that it is a Mortgage Deed. Later, he came to understand that it was a Sale Deed
and the respondent also fabricated the lease agreement from the signed blank
papers. Therefore, the petitioner is not a tenant of the respondent and he is not
liable to pay any rent for the petition premises. Further, he never executed any
Sale Deed in favour of the respondent herein.
6. On the side of the respondent, he had examined PWs1 to 4 and marked
EXs.P1 to 13 and on the side of the petitioner, he had examined RWs1 to 4 and
marked EXs.R1 to 6.
7. On perusal of oral and documentary evidence, the learned Rent
Controller allowed the petition and ordered for eviction from the petition
premises. Aggrieved by the same, the petitioner preferred an appeal before the
learned Rent Control Appellate Authority in R.C.A.No.5 of 2014. Pending
appeal, the respondent filed an application under Section 11(4) of Tamil Nadu
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CRP No.1562 of 2017
and
CRP.No.2814 of 2021
Buildings (Lease and Rent) Control Act, claiming arrears of rent. The same was
allowed. Aggrieved by the same, the present civil revision petition.
8. The petitioner in CRP.No.2814 of 2021 is the plaintiff and the
respondent is the defendant. The petitioner filed a suit for declaration declaring
that the Sale Deed dated 02.05.2002 executed in favour of the respondent as
null and void before the Sub-Court, Tiruvallur. Due to territorial jurisdiction and
bifurcation of District, the said suit was transferred to the file of Additional Sub-
Court, Kanchipuram. Therefore, the petitioner had no knowledge about the
transfer of said suit and he failed to appear before the trial Court. Hence the suit
was dismissed for default. The petitioner filed a petition to restore the suit with
a condone delay petition and the said petition was dismissed for default. Again,
the petitioner filed a petition to restore the restoration petition with a delay of
692 days. It was also dismissed and aggrieved by the same the present civil
revision petition.
9. The learned counsel for the petitioner in both the petitions submitted
that the petitioner never executed any Sale Deed in favour of the respondent on
02.05.2002. He had borrowed a sum of Rs.1,70,000/- in which he had executed
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CRP No.1562 of 2017
and
CRP.No.2814 of 2021
only a Mortgage Deed. Utilizing the illiteracy of the petitioner, the respondent
prepared a Sale Deed and registered the same in his favour. On the same day,
that too in the blank paper, he also fabricated an agreement for lease in respect
of the very same petition premises as if it has been given for lease for a monthly
rent of Rs.6000/-. There is absolutely no relationship between the petitioner and
the respondent since the petitioner never entered into any agreement for lease.
He is the absolute owner of the petition premises. Therefore, he filed a suit for
declaration declaring that the Sale Deed dated 02.05.2002 as null and void and
it is pending.
10. Unfortunately, it was transferred to the file of the Additional Sub-
Court, Kanchipuram and as such, it was not noticed by the petitioner and he
could not appear before the trial and as such, it was dismissed for default. In so
far as, the agreement for lease dated 02.05.2002 is concerned, it was fabricated
by the respondent in a blank papers and it was also executed on the same day
by an alleged Sale Deed dated 02.05.2002. however, the learned Rent Control
Appellate Authority, without considering the above facts and circumstances,
allowed the petition for eviction and aggrieved by the same, the petitioner
preferred an appeal. Pending appeal, the respondent filed an application under
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CRP No.1562 of 2017
and
CRP.No.2814 of 2021
Section 11(4) of Tamil Nadu Buildings (Lease and Rent) Control Act, claiming
arrears of rent.
11. In fact, the respondent did not file any application claiming arrears of
rent in the eviction petition filed on the ground of willful default. Further, the
respondent claimed rent from the date of Sale Deed namely on 02.05.2002 that
too filed after a period of three years. It shows that the petitioner had never
executed any Sale Deed and he was never inducted as a tenant by the alleged
agreement for lease dated 02.05.2002.
12. The learned counsel for the petitioner in both the petitions further
submitted that at the time of granting an order of interim stay, this Court
imposed a condition that the petitioner shall deposit 50% of the arrears of rent.
The said condition was duly complied with by the petitioner and he may be
given one more opportunity to pursue the suit on merits. The petitioner is also
ready and willing to deposit the entire arrears of rent. The delay was caused due
to the transfer of suit.
13. In support of his contention, he relied upon the judgment of this Court
in the case of V.T.A.Noor Mohammed Vs. N.Samiappan passed in
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CRP No.1562 of 2017
and
CRP.No.2814 of 2021
C.R.P(NPD).Nos.1954 & 1955 of 2012 dated 20.06.2014, wherein this Court,
held as follows;-
“12. Another Division Bench of this Court in
M/s.A.Rafeeq Ahmed & Co. rep. By its Partner
K.Muktar Ahamed v. M/s. Montari Leather Ltd.,
rep. By its Chairman and Managing Director
reported in 2001-1-L.W.133 approved the view of
Justice R. Balasubramnian in K.P.Janaki Ammal
and 8 others V. K.Badrinarayanaiah. The following
are the observations made by the Division Bench
in the said case:
!!74. A reading of Section 11(3) and (4) with
Section 11(1) would show that there is a purpose
behind the said provision. The view that the
deposit should be made as a condition precedent
for preferring an appeal would mean restricting
the appeal or denying the remedy of appeal, which
the statute has provided for. Such a denial of
appeal remedy could be, if at all, only in terms of
the statutory provision, which is not the case here.
In a given case where substantial amount is
claimed as arrears which is disputed by the
respondent and the dispute being bonafide, if the
deposit is to be considered as a condition
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CRP No.1562 of 2017
and
CRP.No.2814 of 2021
precedent, then it would result in deprivation of an
appeal remedy. That is not the intendment or
object of the Legislative provision. Even in a case
where a direction is issued under Section 11(4)
and when such a direction is challenged by
invoking the remedy of appeal under Section 23,
the contention that as a condition precedent the
direction should be complied with by the tenant by
depositing the amount as arrived at by the Rent
Controller and if the tenant is required to deposit,
then it would mean deprivation of a remedy of
appeal, which again is not the V.T.A.Noor
Mohammed vs N.Samiappan on 20 June, 2014
Indian Kanoon -
intendment of the Legislature. Neither Section
11(3) or (4), nor Section 23 would justify such a
construction viz., that rents claimed by the
landlord or as adjudicated by the orders of the
Rent Controller should be deposited as a condition
precedent for preferring an appeal, or else the
appeal cannot be entertained at all.
75. The statutory provision namely Section 11(3)
and (4) read with S.23 should be given a plain
meaning in juxtaposition to Section 11(1) read with
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and
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Section 23. On a plain reading, we are not able to
persuade ourselves to accept the plea that arrears
of rent as adjudicated by the Rent Controller under
Section 11 (3) and (4) should be deposited as a
condition precedent. Such a condition precedent is
not provided for, not it could be read into it. If
such a condition precedent is to be construed it
should have been provided specifically in Section
11(3) or (4) or in Section 23 or by a Rule. This is
not so. The right of appeal has been recognised by
the judicial decisions as a right which vests in a
suit or at the time of institution of the original
proceeding itself.”
14. In so far as, the condone delay petition is concerned, the learned
counsel for the petitioner relied upon the judgment of this Court in the case of
Brahmand Farm Lands Ltd., Vs. K.Venkatesan passed in
C.R.P.(NPD).No.3361 o 2017 wherein this Court cited the judgment reported
in 2018 (15) SCC 127 in the case of Ummer Vs. Pottengal Subida and Ors,
wherein the Hon'ble Supreme Court of India held that the Court should have
taken liberal view in the matter of condone delay and held the cause shown by
the appellant as “sufficient cause” within the meaning of Section 5 of the
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CRP No.1562 of 2017
and
CRP.No.2814 of 2021
Limitation Act and accordingly, the Court should have condoned the delay in
filing the appeal. Further, one cannot now dispute the legal proposition that the
earlier law the appellant was required to explain the delay of each day till the
date of filing the petition since been diluted by the later decisions of the Hon'ble
Supreme Court of India and as such, held as no longer good law.
15. Per contra, the learned counsel for the respondent would submit that
there is no bar in filing the petition under Section 11(4) of Tamil Nadu
Buildings (Lease and Rent) Control Act, in the appeal. The petitioner executed
an agreement for lease and thereafter, he failed to pay any rent for the petition
premises. Though, the petitioner filed a suit for declaration, challenging the Sale
Deed executed in favour of the respondent, the said suit was dismissed. As of
now, no suit is pending.
16. He would further submit that the petitioner cannot dispute the Sale
Deed that too after filing the suit for bare injunction in O.S.No.424 of 2004. In
fact, the respondent also filed another suit in O.S.No.14 of 2009 for permanent
injunction in respect of the suit property and the same was decreed by a
judgment dated 02.11.2015.
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and
CRP.No.2814 of 2021
17. Admittedly, the petitioner failed to pay any rent to the petition
premises so far. Therefore, the learned Rent Control Appellate Authority rightly
allowed the application filed under Section 11(4) of Tamil Nadu Buildings
(Lease and Rent) Control Act. In so far as, the condone delay petition is
concerned, the suit filed by the petitioner was dismissed for default on
01.07.2008 thereafter, it was restored by the condone delay of 354 days. Once
again, the said suit was dismissed for default on 14.12.2015. The petitioner
filed a petition to restore the said suit with delay of 692 days in filing the
restoration petition. The petitioner is the tenant in the suit property without
paying any rent. Therefore, the respondent filed an eviction petition on the
ground of willful default in R.C.O.P.No.8 of 2005 and the same was allowed.
Aggrieved by the same, the petitioner preferred an appeal. Pending appeal, the
respondent filed an application under Section 11(4) of Tamil Nadu Buildings
(Lease and Rent) Control Act, and the same was allowed. Therefore, the
petitioner failed to state any sufficient cause for the huge delay of 692 days in
filing the the petitioner to restore the suit.
18. In support of his contention, he relied upon the judgment reported in
1999 (II) CTC 46 in the case of K.P.Janaki Ammal and Others Vs.
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CRP No.1562 of 2017
and
CRP.No.2814 of 2021
K.Badrinarayanaiah.
The relevant portion of the above said judgment is extracted hereunder;-
“Accordingly, I have no hesitation to hold that
the need or the requirement to deposit the amount as
found due and ordered on an application under
Section 11 of the Act will not be attracted to an
appeal filed by the tenant against an order passed
under Section 11 of the Rent Act. Such a requirement
is called for to be complied with only, either when the
tenant is contesting the proceedings filed for eviction
against him before the Rent Controller or when he
files an appeal against an order of eviction passed
under Section 10 of the Act and not in any other
contingencies. Accordingly, Civil Revision Petition is
allowed. No costs. The judgment dated 28.6.1994 in
R.C.A.No.405 of 1993 on the file of the VII Judge,
Court of Small Causes, Madras, is set aside. The said
R.C.A will stand remitted back to the Appellate
Authority for fresh disposal in accordance with law.
Consequently, C.M.P.No.5482 of 1995 is dismissed.”
Therefore, the application filed under Section 11(4) of Tamil Nadu
Buildings (Lease and Rent) Control Act, is very much maintainable in the
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CRP No.1562 of 2017
and
CRP.No.2814 of 2021
appeal filed by the tenant and the prayed for dismissal of both the civil revision
petitions.
19. Heard, the learned counsel for the petitioner and the learned counsel
for the respondent and perused the materials available on record.
20. The petitioner disputed the very sale itself executed in favour of the
respondent dated 02.05.2002. He also disputed the execution of lease agreement
dated 02.05.2002. Though the petitioner initially filed a suit for permanent
injunction, he subsequently filed a suit for declaration declaring that the Sale
Deed executed by the respondent as null and void in O.S.No.130 of 2007.
21. A perusal of lease agreement dated 02.05.2002 shows that it was
executed in a paper and not in any stamp paper. That apart, it was executed
only by the petitioner and there is no signature of the respondent in it and it is a
hand written one. The specific case of the petitioner is that, he never executed
any Sale Deed and on borrowal of loan from the respondent, he executed only a
Mortgage Deed. The respondent also obtained signature in the blank papers. It
is pertinent to note that lease agreement was executed in favour of the
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CRP No.1562 of 2017
and
CRP.No.2814 of 2021
respondent herein. However, the learned Rent Control Appellate Authority
accepted the reason for the execution of Lease Deed in the green sheet for the
reason that on the day there was shortage of stamp papers. Therefore, he could
not have executed in the stamp paper. Further it was held that thought it was an
unregistered one, it can be looked into for proving landlord tenant relationship.
It was challenged by the petitioner by way of appeal and it is pending in
R.C.A.No.5 of 2014. Pending the appeal the respondent filed an application for
rental arrears under Section 11(4) of Tamil Nadu Buildings (Lease and Rent)
Control Act.
22. The observation made by this Court on the judgment cited by the
learned counsel for the petitioner that a reading of Section 11(3) and (4) with
Section 11(1) of CPC would show that there is a purpose behind the said
provision. The deposit be made as a condition precedent for preferring an
appeal would mean restricting the appeal by denying the remedy of appeal,
which the statute has provided for. Such a denial of appeal remedy can if at all
be only in terms of the statutory provision, which is not the case here.
23. In the case on hand, the substantial amount is claimed as arrears
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CRP No.1562 of 2017
and
CRP.No.2814 of 2021
which is disputed by the respondent and the dispute being bonafide, if the
deposit is to be considered as a condition precedent, then it would result in
deprivation of an appeal remedy. It is not the intendment of object of the
Legislative provision. Even in a case where a direction is issued under Section
11(4), when such a direction is challenged by invoking the remedy of appeal
under Section 23, the contention that as a condition precedent the direction
should be complied with by the tenant by depositing the amount as arrived at by
the Rent Controller and if the tenant is required to deposit, then it would mean
deprivation of a remedy of appeal, which again is not the intendment of the
Legislature.
24. Further, the respondent failed to file any application claiming rental
arrears before the learned Rent Control Appellate Authority. The petitioner filed
an eviction petition on the ground of willful default after a period of three years,
from the date of default in payment of rent. In fact, even according to the
respondent, the petitioner did not pay a single paise as rent from the date of
alleged inductment as tenant. The petitioner also challenged the very execution
of Sale Deed.
25. In so far as, the condone delay petition in filing the petition to restore
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CRP No.1562 of 2017
and
CRP.No.2814 of 2021
the suit is concerned, the delay explained by the petitioner is bonafide one and
as such, he need not to explain each and every days of delay. That apart, the
petitioner may be given one more opportunity to pursue his suit since the Sale
Deed is the basis for the eviction petition filed by the respondent herein. If the
petitioner succeeds in his suit then the eviction petition filed on the ground of
willful default become infructuous. The petitioner has also already deposited
50% of the arrear amount of Rs.5,34,000/- to the learned Rent Control
Appellate Authority as directed by this Court. Now, the petitioner is also ready
and willing to deposit the balance amount of Rs.5,34,000/-.
26. Considering the above facts and circumstances, this Court is inclined
to set aside the order passed in I.A.No.12 of 2016 in R.C.A.No.5 of 2014 on
condition that the petitioner shall deposit the balance amount of Rs.5,34,000/-,
within a period of six weeks from the date of receipt of a copy of this order.
27. In view of the above facts and circumstances, the order passed in
I.A.No.1547 of 2017 in O.S.No.130 of 2007 is set aside and the civil revision
petition is allowed on condition that the petitioner shall pay a sum of Rs.5000/-
as cost to the respondent, within a period of four weeks from the date of receipt
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CRP No.1562 of 2017
and
CRP.No.2814 of 2021
of a copy of this order. On such payment, the trial Court is directed to restore
the suit and dispose of the same, within a period of six months thereafter. In
both the cases, the Rent Control Appellate Authority, the parties are one and the
same and the property is also one and the same. Therefore, in order to avoid the
conflict of judgments, it would be appropriate to order simultaneous disposal of
RCA.No.5 of 2014 and O.S.No.130 of 2007.
28. Now, the suit in O.S.No.130 of 2007 is pending on the file of the
Additional Sub-Court, Kanchipuram and R.C.A.No.5 of 2014 is pending on the
file of the Sub-Court, Kanchipuram. Therefore, the R.C.A.No.5 of 2014 on the
file of the Principal Sub-Court, Kanchipuram, is hereby withdrawn and
transferred to the file of the Additional Sub-Court, Kanchipuram. On receipt of
the entire Court bundle, the Trial Court namely the Additional Sub-Court,
Kanchipuram, is directed to dispose of the R.C.A as well as the suit
simultaneously. No costs. Consequently, connected miscellaneous petition is
closed.
31.01.2023
Speaking/Non-speaking order
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CRP No.1562 of 2017
and
CRP.No.2814 of 2021
Index : Yes/No
ata
G.K.ILANTHIRAIYAN.J,
ata
To
1.The Additional Sub-Court,
Kanchipuram.
2.The Principal Sub-Court,
Kanchipuram,
CRP.Nos.1562 of 2017
and 2814 of 2021
31.01.2023
https://www.mhc.tn.gov.in/judis
CRP No.1562 of 2017
and
CRP.No.2814 of 2021
https://www.mhc.tn.gov.in/judis
