Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6145         OF 2009 (Arising out of SLP (c) No. 20304/2007)

Arjunan          .. Appellant

Versus

M/s. Universal Fertilizer Corporation       ..Respondent

J U D G M E N T

R.M. Lodha, J.

Leave granted.

2. The short question that falls  for consideration in this  

appeal   by  special  leave  is:  whether   the  High  Court   was  

justified in dismissing  the miscellaneous petition filed by the  

applicant for extension of time  in depositing the arrears of rent?  

3. Bereft of unnecessary details, suffice it to say that in  

the petition filed by the respondent  (landlord)   under  section  

10(2)(1) of the Tamil Nadu Buildings (Lease and Control) Act,  

1960 (for short , ‘Act 1960’) seeking eviction  of the appellant  

(tenant) on the ground of wilful default by not paying rent from

March 1, 1997 till June 30, 2001 at the rate of Rs.400/- per, an  

ex-parte order of eviction against the appellant was passed by  

the Rent Controller, Salem on April 7, 2004.

4. The  tenant  filed  a  petition  before  the  Rent  

Controller, Salem, on April 19, 2004, for setting aside the ex-

parte  order  of  eviction.   He   stated  in  the  petition  that  the  

original  rent  control  petition  was posted on April  7,  2004 for  

cross-examination of the landlord but as he (tenant) was unwell  

and could not  appear before the court and instruct his counsel  

for cross-examination, an ex-parte order  came to be passed  

against  him.   He stated   that  his   non-appearance  was  not  

wanton.

5. The landlord contested the petition for setting aside  

the ex-parte order of eviction on diverse grounds.  Inter-alia, he  

stated  that reasons set forth  in the affidavit  were false and  

whole intention   of the tenant is to protract the proceedings.

6. The Rent Controller  heard the parties  and in his  

order dated  July 5, 2004 referred to the proceedings to indicate  

that earlier also for want of appearance  an ex-parte  order of  

eviction was passed which was set aside  on the application  

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made  by  the  tenant.   The  Rent  Controller  also  noticed  the  

various dates on which the tenant sought adjournment.  This is  

what the Rent Controller observed:

“……….The   perusal  of  the  Court’s  notes  paper  reveals that the P.W.1 was examined on 24.9.2003 in chief.  Then the said Rent Control Original Petition was adjourned  for cross of P.W.1 on 30.9.2003, 6.10.2003, 9.10.2003 and  on 14.10.2003.  For all these hearings the petitioner who is  the  respondent  in  the  main  R.C.O.P.  had  not  chosen  to  cross  examine  the  P.W.1   Finally  on  14.10.2003  the  petitioner’s counsel had endorsed no instruction and hence  an  exparte  order  was  passed  in  favour  of  the   present  petitioner in the main R.C.O.P.   Then, later on the present  applicant  had  filed  an  application  of  similar  kind  vide  I.A.No.253/2003 and got it  allowed.  So on having   been  allowed I.A.No.253/2003,  this Court  had posted  the main  Rent  Control  Original  Petition  for  cross  of  P.W.1  on  1.3.2004.   Again  from 1.3.2004,  the  case  was  posted  to  8.3.2004 and then to 18.3.2004 for cross of P.W.1.  From  18.3.2004  the  case  was  adjourned  to  25.3.2004.   From  25.3.2004 again the case adjourned to 2.4.2004  for cross of  P.W.1 as no further adjournment.   Again on 2.4.2004 this  Court  in the interest  of  justice had adjourned the cross of  P.W.1 to 7.4.2004 as no further adjournment, for the second  time.  On 7.4.2004 the present petitioner had not chosen to  appear before the Court………”  

7. The Rent  Controller  although  found  that  petition  was  

without  any  substance,  but  in  the  interest  of  justice  allowed  the  

petition  on  the  tenant’s  depositing  arrears  of  rent  to  the  tune  of  

Rs.34,400/-  pertaining to  the period March 1997 to  May 31,  2004  

within 15 days from the date of the order.   

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8. The tenant  challenged the order  dated July  5,  2004 in  

appeal before the Rent Control Appellate Authority, Salem.  The Rent  

Control Appellate Authority heard the parties  and vide its order dated  

February 19, 2007 dismissed the appeal observing thus:

“……..Further till  date, the appellant has not deposited the  arrears  of  rent  of   Rs.34,400/-  as  ordered   by  the  Rent  Controller.   The non compliance of  the  order  of  the  Rent  Controller  would show the attitude of the appellant herein.  Therefore, the order of the Rent Controller is sustainable one  and no infirmity found in its order, hence, the order deserves  to be confirmed by dismissing the present appeal…….”  

9. The  tenant  then  approached  the  High  Court   of  

Judicature at Madras by filing a revision petition.  The said revision  

was dismissed by the High Court on April 19, 2007 and the order of  

the Rent Control Appellate Authority was confirmed.  It transpires that  

the  counsel for the tenant, then, prayed before the High Court for  

some  time  to  deposit  the  arrears  of  rent  and  taking  note  of  that  

submission, the High Court granted a week’s time to the tenant to  

deposit the arrears  of rent amounting to Rs.34,400/- with the Rent  

Controller, Salem.  It was further observed that upon depositing the  

said amount, the Rent Controller would take up  original rent control  

petition for consideration.

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10. The tenant  did not deposit the arrears  of rent amounting  

to Rs.34,400/- within a week as was observed in the order dated April  

19, 2007 by the High Court.   Later on, the tenant filed  a petition  

before the High Court for extension of time on the ground that  due to  

non-availability of certified copy of the order dated April 19, 2007, he  

could not deposit the rent within the time granted by the court.

11. The  High  Court  found  no  justification  to  show  further  

indulgence to the tenant and dismissed the petition for extension  of  

time on July 9, 2007 for the following reasons:

“(a)  The petitioner  has been directed to deposit the rent by  the  learned  Rent  Controller  in  I.A.No.59  of  2004  in  R.C.O.P.No.41 of  2001.   The petitioner  without depositing  the rent, has filed R.C.A. No.21 of 2004  before the Appellate  Authority.   The  said  R.C.A.  was  also  dismissed.   The  petitioner  has  preferred  a  Revision  before  this  Court  in  C.R.P.(NPD) No. 11876 of  2007.   This Court  by an order  dated 19.4.2007, directed the petitioner to deposit the rent  within  one  week  from  the  date  of  the  order.   Without  depositing the said rent within one week as directed by this  court,  the  petitioner  has  come  forward  with  the  present  application  for  extension  of  time.   In  his  affidavit,  the  petitioner  has pleaded that  since the certified copy of  the  order passed in CRP (NPD) No.11876 of 2007 has not been  furnished,  he  could  not  deposit  the  rent  before  the  Rent  Controller.  But, unfortunately, the petitioner has not filed any  document to show that he has made an attempt to deposit  the rent as ordered by this Court in time and that his request  for deposit has not been entertained by the office of the Rent  Controller, Salem.

(b)  If  really,  the certified copy of the order is required for  depositing the rent before the Rent Controller, the petitioner  through his counsel should  have requested this Court for  

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grant  of certified copy at the earliest so as to enable him to  deposit the rent within the time granted by this court.  The  petitioner has not made any such request.

(c) Admittedly, the petitioner has obtained the certified copy  of the order in the revision during summer vacation.  Even  after obtaining the certified copy, no attempt has been made  by the petitioner to deposit the rent till 4.6.2007.

(d)   Even assuming that  the  office  of  the Rent  Controller  (District Munsif), Salem  refused to entertain the request of  the petitioner to deposit the rent, the petitioner should have  approached  this  Court  in  time  seeking  extension.   But,  unfortunately, the petitioner  has approached this Court only  on 14.6.2007 seeking extension of time.

(e)  Furthermore, it has to be seen that a sum of Rs.34,400/-  is the rental arrears  from 1.3.1997 to 31.5.2004.  There is  still arrears of rent subsequent to that.”   

12. It  is from this order that  the present appeal by special  

leave arises.

13. On November 12, 2007, this Court issued notice to the  

respondent subject to the condition that the appellant deposits a sum  

of Rs. 34,400/- as directed by the High Court with the Rent Controller,  

Salem within a week therefrom.

14. That the appellant  has deposited a sum of  Rs.34,400/-  

within time granted by this Court in the order    dated November 12,  

2007  is  not  in  dispute.   However,  the  learned  counsel  for  the  

respondent strenuously urged that fair  rent of the premises having  

been determined at the rate of Rs.5,250/- per month with effect from  

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August 1, 2001, there is shortfall in payment of rent to the tune of  

Rs.4,46,250/-  from August 1, 2001 to August 31, 2008.  He relied  

upon Section 11 (4) of the Act, 1960 in this regard  and submitted  

that the appellant is not entitled to any indulgence from this  Court in  

appeal under Article 136 of the Constitution.   

15. On  the  other  hand,  learned  senior  counsel  for  the  

appellant  submitted  that  the  order  fixing  fair  rent  at  the  rate  of  

Rs.5,250/-  per  month  payable  from  August  1,  2001  has  been  

challenged  by the appellant  before the High Court and the revision  

petition is pending.    

16. In the present appeal, it is not necessary for us to go into  

the aspect of non-payment  of rent  at the rate of fair rent as it is clear  

that  matter pertaining thereto  is sub-judice before  the High Court  

and has not attained finality.  In the absence  of any interim order  

passed by the High Court  staying the operation of the order fixing the  

fair rent at Rs.5,250/- per month, if the  tenant is not depositing the  

fair rent; he must be doing so  at his own risk.  We leave the matter at  

that.  Suffice, however, to say that in the original petition for eviction,  

the  landlord  has  averred  that  the  monthly  rent   of  the  subject  

premises  is Rs.400/- and that  the tenant has committed wilful default  

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in  paying the rent from March 1, 1997 at the rate of Rs.400/- per  

month.   The  quantification  of  arrears  of  rent   to  the  tune  of  

Rs.34,400/- from March 1, 1997 to May 31, 2004  is founded on the  

said  averment.  Although the conduct of the tenant  is contumacious  

and far from satisfactory in so far as  payment/deposit   of rent  is  

concerned and the view of  High Court  cannot be said to be totally  

unjustified   but  now  since  the   amount  of   Rs.34,400/-  for  the  

aforesaid period has been deposited by the appellant    as per the  

order dated November 12, 2007, in the interest of justice, we direct  

that the time granted by the High Court in its order dated April 19,  

2007 for deposit of  the amount  of Rs.34,400/- shall be deemed to  

have been  extended  upto the date  he deposited  the said amount.  

17. Consequently, appeal is allowed to the aforesaid extent.  

The Rent Controller, Salem shall now take up Rent Control Original  

Petition No.41/2001   and hear and decide the same as expeditiously  

as may be possible.  The parties will bear their own costs.   

.…………………..J (Tarun Chatterjee)

…………………..J (R.M. Lodha)

New Delhi, September 9, 2009  

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