Abdul Azeez Khan And Others v. Appachi Gounder.

This is an application to revise the order of the District Judge of Coimbatore passed under S. 12-B of the Madras Buildings (Lease and Rent Control) Act, XXV of 1949.

The petitioners claimed to be the owners of the house in question and sought the eviction of the respondent from those premises on the grounds, that the respondent defaulted payment of rent and that the respondent denied the title of the petitioners as owners. The Rent Controller came to the conclusion that the requirements of S. 7(2)(ii) as well as S. 7(2)(vi) of the Act were satisfied. With reference to S. 7(2)(vi) he held that the denial of title by the respondent was not bona fide. Eviction was ordered. The respondent thereupon appealed to the Subordinate Judge of Coimbatore.

During the pendency of the appeal before the learned Subordinate Judge the respondent applied for stay of execution of the order of the Rent Controller directing the eviction of the respondent. The petitioners owners contended before the learned Subordinate Judge that under the provisions of S. 7-A(1) of the Act, the respondent was not entitled to continue the proceedings in appeal until he deposited all the arrears of rent due. The learned Subordinate Judge upheld that contention and called upon the respondent to deposit the arrears of rent into Court.

Against that order of the learned Subordinate Judge the respondent preferred an application to the District Judge under S. 12-B of the Act. The learned District Judge reversed the order of the learned Subordinate Judge and directed that the appeal be disposed of on its merits, and he farther directed that the question of stay also would be disposed of without any direction to the respondent to deposit the arrears of rent. It is that order of the learned District Judge that the petitioners seek revision of in these proceedings before me.

The relevant portion of S. 7(2)(vi) runs;

“A landlord who seeks to evict 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……(vi) that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that denial or claim was not bona fide, the Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application.”

In this case, as I have already pointed out, the Controller came to the conclusion, that the denial of title was not bona fide. If the denial of title had been bona fide, the parties would have had to be referred to a civil Court to determine the question of title. S. 7-A(1) runs:

“No tenant against whom an application for eviction has been made by a landlord under 8.7, shall be entitled to contest the application before the Controller under that section, or to prefer any appeal under S. 12 against any order made by the Controller on the application, unless he has paid or pays to the landlord, or deposits with the Controller or the appellate authority, as the case may be, all arrears of rent due in respect of the building upto the date of payment of deposit. ………”

The disability imposed by S. 7-A is against the tenant. In these proceedings the question whether the respondent is a tenant at all of the petitioners, was in issue all, through. It is not as if S. 7-A(1) read: “No person against whom an application for eviction has been made” etc. As I said, the disability attaches itself only to a tenant. The eviction of a tenant can be sought on various grounds; the grounds enumerated in S. 7(2) of the Act in many of these cases the question of tenancy itself may not be in dispute. It may be possible to envisage cases, even under S. 7(2)(vi) of the Act, where the tenancy as such is not in dispute but the title of the person seeking eviction is denied. But where in addition to, or independent of the denial of the petitioner's right as owner to evict, the person sought to be evicted denies his own status as a tenant, it is rather difficult to say he will come within the scope of S. 7-A(1), that is, within the scope of the expression “tenant”. If the tenancy is admitted, there can be no difficulty. If the tenancy had already been adjudicated upon and is therefore no longer in issue, the position would be the same. But where the tenancy is disputed, until it is established that the person is a tenant, he cannot be called upon to shoulder the burden imposed by S. 7-A(1) of the Act. In these proceedings, as I said, the states of the respondent as tenant has yet to be adjudicated upon. It is still in issue.

The learned Counsel for the petitioners urged that there was a finding of the Rent Controller that the respondent was a tenant, and that was sufficient to bring the respondent within the scope of S. 7A(1) as far as the appeal before the learned Subordinate Judge was concerned. I am unable to accept this contention. The appeal is a continuation of the original proceedings initiated before the Rent Controller. If the question of tenancy was no longer in issue in appeal; no doubt there is scope for arguing that S. 7A(1) would apply if eviction had been sought on other grounds and ordered. But, as I said in this case the tenancy, that is, the status of the respondent as a tenant, was very much in issue even before the appellate Court. Till that status was determined and till he was adjudged a tenant, there can be no question of calling upon him to deposit whatever was lawfully due within the meaning of S. 7-A(1).

The view taken by the learned District Judge that S. 7-A(1) did not apply and the application had to be disposed of on the merits is right. This petition is dismissed with costs.

V.C.S