Ahmad Jamalia Beavi Vs. D. N. Shah  INSC 630 (30 July 1997)
V. MANOHAR, D.D. WADHWA
D. P. Wadhwa,
appellant is landlady. She is aggriaved by the order dated July 9, 1994 of the
Madras High Court granting yet further time to the respondent tenant for decositting
rant in spite of persistent default committed by him in violation of the
provision of sub-section (1) of Section 11 of the Tamil Nadu Buildings (Lease
and Rent Control) Act, 1960 (for short, the act).
appellant is the owner and landlady of property bearing No. 145 Linghi Chatty Street. madras She let out the same to the
respondent at a monthly rant of Rs. 4500/- with permission to sublet the same.
The premises comprise of four independent shoos. The appellant says the
respondent is recovering enormous rent from these shoos having subject the
same. It has come on record in respect of one shoo that the respondent is realising
Rs. 3000/- per month is rent. Since the respondent committed default in payment
of rent from September 1990, the appellant served a notice dated September 22, 1991 on him demanding rent for the
period from September
1, 1990 to August 31, 1991 amounting to Rs.
Respondent was told that in case he failed to pay rent proceeding for him
aviation shall be instituted against him. In spite of the notice, the
respondent did not pay the rent which lad the appellant to file proceeding for
his aviation under clause (1) of sub section (2) of Section 10 of the Act. That
was in October 1991. Notice of filing of the aviation proceeding was issued to
the respondent. He failed to respond to the same and an ex ORDER order of
aviation dated July 31,
1992 was passed
against him by the Rent Controller. On an application filed by the respondent
on August 22, 1992 ex parts order of aviation was,
however, set ORDER. In spite of pendency of these proceedings on the ground of
default in payment of rent the respondent did not pay any rant in breach of the
provisions of Section 11(1) of the Act. the appellant, therefore, filed an
application under sub-section (4) of Section 11 of the Act requesting that she
be put in possession of the suit premises.
this stage we may set out the relevant provisions of the Act.
Eviction of tenant.
landlord who seeks to avict his tenant shall apply to the Controller for a
direction in that behalf. If the Controller, after giving the tenant a
reasonable opportunity of showing cause against the application, is satisfied.
that the tenant has not paid or tendered the rent due by him in respect of the
building, within fifteen 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.
controller shall make an order directing the tenant to out the landlord in
possession of the building and if Controller is not, so satisfied, he shall make
an order rejecting the application:
that in any case falling under clause (i) of the Controller is satisfied that
the tenant's default to pay or tenant rent was not wilful, he ay,
notwithstanding anything contained in Section 11, give the tenant a reasonable
time, not exceeding fifteen days, to pay or tender the rent due by him to the
landlord upto the date of such payment or tender and on such payment or tender,
the application shall be rejected.
For the purpose of this sub-section, default to pay or tender rent shall be
construed as wilful. if the default by the tenant in the payment or tender of
rent continues after the issue of two month's notice by the landlord claiming
11. Payment or deposit of rent during the pendency of proceedings for aviation.
(1) No tenant against whom as application for aviation has been made by a
landlord under Section 10 shall be entitled to contest the application before
the Controller under that section, or to prefer any appeal under section 22,
against any order made by the Controller on the application, unless he has paid
or pay to the landlords, or deposits with the Controller or the appellate
authority, as the case may be, all appears of rent due in respect of the
building up to the date of payment or deposit, and continues to pay or to
deposit any rent which may subsequently become due in respect of the building
until the termination of the proceeding before the Controller or the appellate
authority, as the case may be.
any tenant fails to pay or to deposit the rent as aforesaid, the Controller or
the appellate authority, as the case may be, shall, unless the tenant shows
sufficient cause to the contrary, stop all further proceedings and make an
order directing the tenant to put the landlord in possession of the
building." We may also note that under explanation to clause (6) of
Section 2 of the Act which defines landlord, a tenant who sub-lets shall be
deemed to be a landlord within the meaning of the Act in relation to the
subtenant. Section 23 provides for appeal to the appellate authority. Under
Section 25 a revision lies to the High Court. It may, on an application of any
person aggrieved by an order of the appellate authority, call for and examine
the record of the appellate authority, to satisfy itself as to the regularity
of such proceeding or the compactness. legality or propriety of any decision of
order passed therein and if, in any case, it appears to the High Court that any
such decision on order should be modified, annulled. reversed or remitted for
reconsideration, it may pass orders accordingly. Under Section 26 order made
under the Act is binding on the sub- tenants as well.
back to the narration of events, the application of the appellant filed under
Section 11(4) was dismissed by the rent Controller by an order passed in July
1993. The appellant filed appeal to the Rent Control Appellant Authority and
the same appeal was allowed by the order dated September 12, 1994. The appellate authority directed the respondent to deposit
the entire appears of rent within one month failing which an order of aviation
would be passed.
this order, the respondent went in revision before the High Court and sought
for an intern stay of all further proceedings in the eviction petition. The
High Court by order dated September 27, 1995 directed the respondents to
deposit the entire appears of rent from September 1, 1990 to July 31, 1992
amounting to Rs. 1,03,500/- being rent for 23 months within a period of six
weeks from the date of the order. It was mentioned that on respondent's failing
to deposit the rent as aforesaid the stay granted would automatically stand
vacated. Again the respondent committed default and did not deposit rent in
terms of the order dated September
27, 1995 of the High
Court. The appellant, therefore, again approached the Rent Controller as there
stood no impediment in passing an order of aviation against the respondent. The
Rent Controller after satisfying himself that the order of the High Court had
worked itself but due to non compliance, passed the order of aviation against
the respondent. Against this order the respondent again filed an appeal before
the Appellate Authority which was dismissed.
respondent then approached the High Court with a prayer to stay all further
proceedings pursuant to the order of eviction passed against him.
these years the respondent did not pay any rent to the appellant and committed persistent
default. The High Court by the impugned order granted further time to the
respondent and now gave him liberty to pay a sum of Rs. 1,10,100/- towards
appears of rent within two weeks from the date of the order which is July 7,
1994. In the impugned order the High Court noticed that "the counsel for
the tenant represented that due to unavoidable circumstances, the tenant could
not comply with the conditional order passed by this court and if time is
granted, he would pay the amount, since he is always ready and willing to
comply with the order." On considering this presentation the High Court
granted time to the respondent. The operative part of the order is an under:
the representation made by the Counsel for the tenant.
of the view that finally he can be given a chance to pay the appears of rent so
that the respondent/landlady also will be benefited by this, since the is
petting the money. Though there is no merit in the civil revision petition,
since the tenant is being given a chance I set aside the order of the lower
court so far as the eviction is concerned on condition that the petitioner in
the civil revision petitioner shall pay a sum of Rs. 1,10,100/- towards appears
of rent to the respondent herein by way of cash or demand draft within two
weeks from today, failing which the civil revision petition shall stand
automatically dismissed and the petitioner will not be entitled to seek for any
further extension of time. The civil revision petition is ordered
accordingly." No argument would appear to be needed to show that the High
Court misdirected itself and did not exercise a discretion properly. In spite
of the fact that the High Court found that there was no merit in the civil
revision petition filed by the tenant yet it gave further time to the tenant to
deposit the rent even modifying its earlier order dated September 27, 1995
requiring the tenant to day Rs. 1,03,500/- and now requiring him to pay Rs.
1,10,100/- when between these two dates ten months had passed. We are unable to
comprehend as to what where the relevant considerations which led the High
Court to grant further time to the tenant. The tenant had taken two please (1)
that on account of the marriage of his daughter he could not make arrangement
to pay the rent and (2) that after July 1992 the sub tenant had directly paid
rent to the appellant. Both these pleas are of no effect. That the tenant could
not arrange finances on account of his daughter's marriage cannot be a ground
to dany the landlord her due rent when the tenant himself had been collecting
rent from the sub tenants and in case the sub tenant had themselves defaulted
in payment of rent to the respondent he could well have proceeded against them
under the Act. Equitable considerations have no place in a case like the
present one and that too in face of the express provision of law. While the Act
protects the tenant against the eviction and is a departure from the Transfer
of Property Act, it is the bounded duty of the tenant to pay rent to the
landlord regularly and not to commit default. No sufficient cause was shown by
the respondent as to why he failed to pay or to deposit the rent as ordered.
Even rent prior to July 1992 was not paid. The High Court was certainly in
error in granting time to the tenant to deposit the rent. It did not exercise
its jurisdiction properly as envisaged under Section 25 of the Act.
also note that before the High Court the order against which the revision had
been filed was one passed under sub-section (4) of Section 11 of the Act but
the High Court not only set aside that order but even dismissed the eviction
proceeding by the impugned order which to our mind is palpably wrong.
therefore, allow the appeals set aside the impugned order of the High Court and
would restore that of the Rent Controller and the Appellate Authority. No