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M/s. Barnas International Pvt. Ltd., Rep. by its Director, Najimudeen v/s NMZ Trust, Rep. by present Managing Trustee, N.M. Zachriah

    C.R.P. (PD). No. 939 of 2018 & C.M.P. No. 5058 of 2018

    Decided On, 13 July 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE P. VELMURUGAN

    For the Petitioner: P. Wilson, Senior Counsel, M/s. Suhasini, Advocates. For the Respondent: M/s. Chitra Sampath, Senior Counsel, Manivasagam, Advocates.



Judgment Text

(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, praying to set aside the fair and decretal order dated 09.02.2018 made in M.P.No.149 of 2018 in R.C.A.No.603 of 2015 in R.C.O.P.No.1930 of 2013 on the file of the learned IX Judge, Rent Control Appellate Authority, Small Causes Court, Chennai.)

1. The relief sought for in this revision petition is to set aside the fair and decretal order dated 09.02.2018 made in M.P.No.149 of 2018 in R.C.A.No.603 of 2015 in R.C.O.P.No.1930 of 2013 on the file of the learned IX Judge, Rent Control Appellate Authority, Small Causes Court, Chennai.

2. The revision petitioner is a tenant and the respondent is the landlord. The respondent filed an application for eviction in R.C.O.P.No.1930 of 2013 before the Rent Controller, Court of Small Causes, Chennai for eviction. During the pendency of the R.C.O.P. there was a willful default in the payment of rent, hence the respondent filed a Miscellaneous petition under Section 11(3) of the Tamil Nadu Building (Lease and Rent Control) Act in M.P.No.417 of 2013 in R.C.O.P

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.No. 1930 of 2013 before the XIV Small Causes Court, Chennai and the same was decreed on 03.11.2015. Therefore, the Revision petitioner/tenant preferred an appeal before the Rent Control Appellate Authority in R.C.A.No.603 of 2015. During the pendency of the Rent Control Appeal, the Revision petitioner filed an application in M.P.No.56 of 2017 in R.C.A.No.603 of 2015 in which the Rent Control Appellate Authority directed the tenant / respondent to deposit a sum of Rs.20,69,500/- on or before 17.04.2017.3. Subsequently, the revision petitioner filed another application in M.P.No.176 of 2017 in R.C.A.No.603 of 2015 for extension of time which was granted by the Rent Control Appellate Authority in which the time had been extended till 13.07.2017. When the matter was taken up on 13.07.2017, there was no representation on behalf of the revision petitioner and compliance of the order was also reported. Therefore, the matter was adjourned to 17.07.2017. When the matter was taken up on 17.07.2017, again there is no representation on behalf of the petitioner and therefore, the Rent Control Appellate Authority dismissed the Rent Control Appeal in R.C.A.No.603 of 2015 and closed the connected Miscellaneous petition in R.C.A.No.603 of 2015.

4. Aggrieved against the said order dated 17.07.2017, the revision petitioner filed an application in M.P.No.149 of 2018 in R.C.A.No.603 of 2015 to set aside the order passed on 17.07.2017, and restore the Rent Control Appeal in R.C.A.No.603 of 2015. After giving notice by an order dated 09.02.2018, the learned Rent Control Appellate Authority dismissed the application on merits.

5. Aggrieved against the order dated 09.02.2018, the Revision petitioner is before this Court.

6. The learned senior counsel for the revision petitioner would submit that the original order was passed in M.P.No.56 of 2017 in R.C.A.No.603 of 2015. The extension of time was granted in M.P.No.176 of 2017 in R.C.A.No.603 of 2015 till 13.07.2017. Subsequently, on 13.07.2017 the Revision petitioner deposited the amount before the City Civil Court in accordance with law on the date itself. When the matter was taken up on 17.07.2017, due to some inconvenience, he has not appeared hence the Rent Control Appellate Authority dismissed the application. Hence the petitioner has come forward to set aside the order dated 17.07.2017, the counsel on record has not filed the report of compliance. The appellate Authority without seeing the reasons that the non appearance of the petitioner on the particular day is whether willful or not, instead of seeing the reasons, the Rent Control Appellate Authority dismissed the application on merits since there was no proof showing that the amount was deposited in the Court. Fact remains undisputed that the amount was deposited within the extended time of 13.07.2017 in the said court. The Court should have called for the records whether any deposit of money was made or not. Without doing so, simply dismissed the application. Therefore, the revision petitioner is before this Court. The order passed by the Rent Control Appellate Authority warrants interference.

7. Per contra, the learned senior counsel appearing on behalf of the respondent would submit that though initially they themselves filed an application for depositing the amount. But it was not complied with within the extended period of time. When the matter is taken up on 13.07.2017, the learned counsel for the revision petitioner appeared but he had not filed any proof and the matter was posted for compliance of the order on 17.07.2017. On a particular day of passing the order of dismissal dated 17.07.2017, when the matter was taken up for hearing, the learned counsel for the petitioner appeared and he has not stated anything about the compliance of the order passed by the Rent Control Appellate Authority. The counsel has filed the false report before the Rent Control Appellate Authority against which the respondent filed a Miscellaneous petition for perjury, which is also pending. Though several times, this Court also granted time to dispose of the case, on the expiry of the date he has filed the application for amending the grounds of appeal. Further, the revision petitioner is a willful defaulter and he has not paid the Rent. During the pendency of the revision petition, the respondent filed an application under Section 11 (4) of Tamilnadu Buildings (Lease and Rent Control) Act, 1960 in M.P.No.61 of 2017 in R.C.A.No.603 of 2015. The revision petitioner filed this revision petition with unclean hands on the ground itself, he is not entitled to the relief of restoration of the appeal. The Rent control Appellate Authority rightly dismissed the application. Therefore, there is no need to interfere with the order passed by the Rent Control appellate Authority.

8. Heard the learned senior counsel appearing on either side and perused the materials available on record.

9. Admittedly, the respondent is a landlord and the revision petitioner is a tenant. During the pendency of R.C.O.P, the respondent filed an application under Section 11 (3) & 11(4) of Tamilnadu Buildings (Lease and Rent Control) Act, 1960 and that was ordered. Challenging that order passed by the Rent Control Appellate Authority, the revision petitioner filed the Rent control Appeal in R.C.A.No.603 of 2015 before the Court of Small Causes, Chennai. During the pendency of Rent Control Appeal, the revision petitioner filed an application in M.P.No.56 of 2017 in R.C.A.No.603 of 2015 before the Rent Control Appellate Authority for depositing the arrears of rent amount of Rs.20,69,500/-. That was ordered by the Rent Control Appellate Authority and directed to deposit the arrears of amount on or before 13.07.2017. When the matter is taken up on 13.07.2017, there was no representation for the revision petitioner and the matter was posted for reporting compliance of the order on 17.07.2017. On a particular day, the petitioner only appeared and he has not stated anything about the report of the compliance of the order passed by the Rent Control Appellate Authority. Therefore, the Rent Control Appellate Authority dismissed the application for default.

10. The question has to be decided whether non appearance of the revision petitioner on the particular day i.e 17.07.2017 is willful or not.

11. The learned counsel for the respondent would submit that the party to the case has to file an affidavit and counsel cannot file it. In para 5 of the affidavit in M.P.No.149 of 2018 it is wrongly stated as instead of 17.07.2017, it is wrongly noted as 27.07.2017. The trial Court returned the petition on 01.08.2017 stating Prayer shall be in detailed and should be furnished hence returned . And the same was represented with an endorsement Prayer is the petition for restoration of appeal .

12. Considering the facts, the first Appellate Court should have considered the affidavit filed by the counsel or should have rejected on the date of filing the petition itself and also should have stated as to whether the non appearance on the particular day is willful or not. Instead of discussing the issues, dismissed the application on merits, which warrants interference.

13. When the matter came up on 04.07.2018, the Court called for the records from the Chief Judge, Small Causes Court, Chennai as to whether a sum of Rs.20,69,500/- has been deposited to the Credit of R.C.A.No.603 of 2015. The report reveals that on 13.07.2017 itself the amount of Rs.20,69,500/- has been deposited. Therefore, there is no fault on the part of the party and the amount was deposited before the Court within the stipulated period of time. It is the duty of the counsel who is on record to report to the Court as to whether the particular condition imposed has been complied with before expiry of the time stipulated. The party may not aware of the proceedings of the Court. In this case, the counsel failed to file the report. Therefore, since it is the mistake committed on the part of the counsel for the revision petitioner.14. Therefore, under these circumstances, this Court is inclined to allow the revision by setting aside the order passed by the Rent Control Appellate Authority in M.P.No149 of 2018 in R.C.A.No.603 of 2018. However, it is the duty of the counsel to verify as to whether the report of the compliance have been made between 13.07.2017 to 17.07.2017. They should be cautious about the compliance of the conditions. Though it may not cause any prejudice to the respondent while allowing this petition, at the same time, the inconvenience caused by the counsel for the revision petition is to be compensated with the terms of cost.

15. Therefore, the revision petitioner is directed to pay a sum of Rs.10,000/- to the respondent for non submission of the report on the particular day and for the inconvenience caused to the respondent. Further the learned senior counsel would submit that they are ready to pay the cost amount of Rs.10,000/- in the open Court itself. The counsel for the respondent has also agreed to receive the amount of Rs.10,000/-. Accordingly, the counsel for the petitioner paid the cost of Rs.10,000/-. The counsel for the respondent also received the cost.

17. Subsequently, the Rent Control Appellate Authority is directed to dispose the Rent Control Appeal in R.C.A.No.603 of 2015 and connected Miscellaneous petitions on the file of Small Causes Court, Chennai within a period of one month from the date of receipt of a copy of this order.

18. During the pendency of the appeal in R.C.A.No.603 of 2015, the revision petitioner filed an application to receive additional grounds of appeal the Rent Control Appellate Authority is directed to deal with the said application along with the Main R.C.A.No.603 of 2015 in accordance with law.

19. With the above direction, this Civil Revision petition is allowed with cost of Rs.10,000/-. Consequently, connected Miscellaneous petition is closed.
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