This revision petition is at the instance of the tenant against whom an order of eviction has been passed. The respondent filed R.C.O.P No. 1413/86 For eviction under S. 10(2)(iii) of the Tamil Nadu Building (Lease and Rent Control) Act, hereinafter referred to as the ‘Act’, on the ground that the petitioner has committed acts of waste which are likely to impair materially the value or utility of the premises let. The respondent filed an application under S. 11 of the Act in M.P No. 1414.of 1986. That was contested by the petitioner. The petitioner contended that what was leased to him was only the land and not the building and the provisions of the Act would not apply. According to him, even the petition for eviction was not maintainable. In the petition under S.ll also he raised the same dispute. There was no dispute with regard to the rent payable by the petitioner to the respondent. Nor was there any dispute as regard the quantum of arrears at the time when the application under S.ll of the Act was filed. What happened was that the petitioner was sending rent by money order showing it as rent for land. The respondent had refused to receive the same as he had shown it as rent for land. According to the respondent, what was let out was only the building.

2. By order dated 31-3-1987, the Rent Con troller held that the petitioner was liable to pay rent at the rate of Rs. 300/- per month and he should deposit in the court on or before 6.4.87 the entire arrears due as on that date. It should be mentioned at this stage that when the petition was being heard by the Rent Controller, both parties filed number of documents in support of their respective con tentions in the main case. The respondent filed as many as 13 documents and the petitioner filed two documents.

3. Against the order dated 31.3.1987, the petitioner filed an appeal under S. 23 of the Act before the Appellate Authority which was taken on file as RCA No. 283/87. He applied for stay of further proceedings in pursuance of the order of the Rent Controller and interim stay was granted in his favour. On 28.4.1987, the petitioner paid the arrears of the rent to the respondent through his counsel by demand draft. However, the appeal was heard (sic) and on 18.4.1988 it was dismissed on merits. The Appellate authority had written a detailed order dismissing the appeal. In his judgment, the appellate authority had considered the documents produced by both parties and expressed opinion that the case of the petitioner that the subject matter of the lease was only the land was not acceptable. The appellate authority confirmed the order of the Rent Controller.

4. Challenging the order of the appellate authority, the petitioner filed C.R.P No. 536/89 in this court. While the C.R.P was pending, the Rent Controller passed a final order under S.ll(4) of the Act, stopping further proceedings in the evic tion proceedings and directing the tenant to deliver possession to the landlord. That order was passed on the basis that the petitioner herein had not complied with the order dated 31.3.1987 directing him to deposit the arrears of rent on or before 6.4.1987

5. When the civil revision petition was heard, it was contended on behalf of the petitioner that the the payment of entire arrears of rent on 28.4.1987 ought to have been taken into account by the appellate authority or the Rent Controller and finally, the order of eviction ought not to have been passed. This Court dismissed the Civil revision petition with the following observation:

“On a careful consideration of the order of the learned Rent controller and that of the appellate authority, it is seen that those authorities have rightly directed the petitioner to deposit the arrears of rent and also the future rents. There is no illegality or irregularity in the orders passed by the authorities below meriting interference in the exercise of revisional jurisdiction under S. 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act. Though learned counsel for the petitioner contends that even during the pendency of the appeal before the appellate authority, the petitioner had complied with the order of the Rent Controller under S. 114) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 as amended, but that had not been taken note of by the appellate authority, however that is a matter with which the court is not concerned at this stage, for, it is not disputed that; an order stopping the further proceedings and directing the eviction of the petitioner was passed on 20.6.88 and an appeal there from is pending in R.GA No. 317 of 1988., Whether the order for eviction passed on 20.6.1988 should be allowed to stand or not, in view of the alleged payment of the arrears of rent as well as the future rent by the petitioner, is a matter that has to be decided by the appellate authority in the course or dealing with RCA No. 317/1988. Under those circumstances, the civil revision petition is dismissed”.

6. The petitioner had filed R.C.A No. 31788 against the final order directing him to deliver possession to the respondent. That appeal was dismissed on merits on 11.2.91 It is the said order of the appellate authority which is challenged in this revision.

7. As a part of the narration, it should be mentioned that the order of this court in C.R.P No. 536/89 was challenged by the petitioner in S.L.P No. 1526/90 in the Supreme Court and the Special Leave petition was dismissed. The Supreme Court dismissed that petition in lirnini on 27-7-1990 observing that any observation made in the High Court judgment shall not be treated to have concluded the dispute between the parties when the appeal before the first appellate court is heard.

8. The appellate authority has in R.C.A No. 317/88 confirmed the order of eviction on two grounds. He has discussed the documents produced by both the parties and come to the conclusion that there is no bonafide in the defence raised by the petitioner that the subject matter of the lease was only land and not building. The second ground is that the petitioner had not complied with the order passed by the Rent Controller on 31.3.1987 directing him to deposit the arrears of rent on or before 6.4.1987 The appellate authority rejected the contention of the petitioner that the payment made on 28.4.1987 would tantamount to compliance with the order of the Rent Controller.

9. It is argued before me by learned counsel for the petitioner In the first place that the payment made by him on 28.4.87 should be considered as one in compliance with the order of the Rent Controller dated 313.87 made in M.P No. 1414/86. The argument is developed as follows: The tenant had a right of appeal under S. 23 of the Act against the order dated 31.3.1987 He exercised that right and filed an appeal under S. 23 of the Act. The appellate authority is empowered to pass interim orders of stay of further proceedings. By virtue of the said power, the appellate authority had granted an order of stay in favour of the petitioner herein. When the order of stay was in force, the petitioner had made the payment on 28.4.1987 Though the respondent accepted the payment without prejudice to his rights, that payment would in law amount to due compliance with the order of the Rent Controller and therefore, it should be held that the tenant was not liable to be evicted under S. 11(4) of the Act.

10. I cannot accept this contention put forward by the learned counsel for the petitioner. No doubt the petitioner had a right to prefer an appeal and also a right to apply for stay. The mere faet that the order of slay was granted by the appellate authority would not mean that the time granted by the Rent Controller for deposit of arrears of rent was extended by the appellate authority. If the petitioner wanted to comply with the order of the Rent Controller, then he should have applied for extension of time either before the Rent Controller or the petitioner ought to have filed an application before the appellate authority for extension of time for making the deposit as directed by the Rent Controller. He did not do so. On the other hand, he made the payment on 28.4.1987 without prejudice to his right in the proceedings. Similarly the landlord accepted the payment without prejudice. It is not open to the petitioner to contend now that such payment would mean in law due compliance with the order of the Rent Controller. The grant of stay by the appellate authority in an official would not tantamount to extention of time fixed by the rent Controller for deposit of arrears of rent.

11. A similar question arose under the provisions of the Tamil Nadu Cultivating Tenants Protection Act in Kuppanna Chetliar v. Ramachandran A.I.R 1981 Mad. 35 = 198093 L.W 656. In that case, the Revenue Divisional Officer passed an order directing the tenant to ceposit the arrears of rent and fixed the lime therefor,. The tenant challenged that order by way of revision petition in this Court. Pending revision, he applied for stay. As a condition for stay, this court directed him to deposit the rent as fixed by the Revenue Divisional Officer. That order of the court was complied with and the rent was deposited. When the civil revision petition was taken up for final disposal it was contended that the deposit of rent pursuant to the direction made by this court in interlocutory application for stay would amount to compliance with the order of the Revenue Divisional Officer and the order of eviction passed on the basis of non compliance with the order of the Revenue Divisional Officer should be set aside. The matter was referred to a Division Bench as the view taken by Gokulakrishnan, J., previously was not agreed to by the single Judge before whom the matter came in the first instance. This matter was heard by a Division Bench. The Division Bench negatived the contention put forward by the revision petitioner and held that the deposit made pursuant to the direction given by this Court in the order of stay would not amount to compliance with the order of the Revenue Divisional Officer. The relevant observations made by the Division Bench are as follows:

“The fact that, during the pendency of the civil revision petitions the tenants applied for and obtained orders of interim stay of the execution of the order of eviction on condition of the deposit of the rent and did deposit the rent, will not in any way invalidate the order passed by the Authorised Officer. From this point of view we are unable to agree with the observation of Gokulakrishnan, J.

‘As on date, it cannot be considered that there is any default on the part of the petitioner in the matter of payment of rent’.

The question that has to be considered in respect of the default is, not with reference to any date subsequent to the order of the Authorised Officer, but with reference to the date fixed by him prior to his passing the order for eviction. The section itself contemplates the Revenue Divisional Officer giving and opportunity to the tenant to deposit the arrears of rent within such time as he considers just and reasonable and only if the cultivating tenant fails to deposit the same as directed, the revenue Divisional Officer can pass an order for eviction. Consequently, the default in such cases must have occurred prior to the Revenue Divisional officer passing an order for eviction and in terms of an earlier order either independent or conditional. In view of this, the default contemplated by the statutory provision is one occurring and existing on the date of the passing of the order for eviction by the Revenue Divisional Officer himself and not in any stage subsequent to the said order. If the cultivating tenant does not deposit the rent as directed, default has occurred and there is no question of that default being cured or wiped out by the tenant depositing; the rent pursuant to any interim order of this court during the pendency of the revision petition preferred agsinst the order of eviction and any such deposit made during the pendency of the proceedings in the High Court pursuant to an interim order of the High court will be one in compliance with the interim order of the High court and can never be a deposit in compliance with the original order of the Revenue Divisional Officer. As a matter of fact, the High Court is not concerned in such proceedings with the original default the Revenue Divisional Officer directs the tenant to deposit the rent into the court before a particular date and the subject matter of the civil revision proceedings in the High Court therefore will not be the original default, but only the failure of the tenant to comply with the direction of the Revenue Divisional Officer. Once that failure is admitted and the consequential order of the Revenue Divisional Officer is unexceptionable, there will be no occasion for the High Court to give an opportunity to the cultivating tenant to comply with the original direction of the Revenue Divisional Officer todeposit the amount, because the original direction nolonger stands and that directions has worked itself out in the form of the final order for eviction on merits, is not challenged. If the matter is understood in this manner certainly any deposit made by the tenant in terms of the interim order of slay passed by this court staying the execution of the order for eviction passed by the Authorised Officer can never be tantamount to compliance with the conditional order passed by the Authorised Officer”.

12. The reasoning of the Division Bench would apply to the present case also. In this case, the position is worse as regards the petitioner. There was no order of the appellate authority or any other court directing the petitioner to make payment or deposit. In the absence of any such order, it is not open to the petitioner to contend that the payment made without prejudice to his right would tantamount to compliance with the order of the Rent Controller.

13. It is next contended that the appeal is a continuation of the original proceedings, and in this case, the appeal before the Appellate Authority on the earlier occasion, namely, R.CA No. 283/87 came to an end only on 18.41988 It is argued that the order of the Rent Controller merged with the order of the appellate authority and the relevant date should be taken only as 18-4-1988. This argument is further developed by saying that the payment having been made before 18-4-88, that is, on 28.4.1987 even during the pendency of the appeal, it should be considered to be a payment as directed by the Rent Controller or at any rate, it should be held that the tenant was not in arrears within the meaning of S. 11 of the Act. In support of this proposition, learned counsel for the petitioner placed reliance on the judgment of the Supreme Court in Dayawatu v. Indeijit AIR 1968 S.C 1423 In that case, the Supreme Court had only considered whether the amendment to the Usurious Loans Act 1918 brought in by Punjab Relief of Indebtedness Act 7/1934 would apply to proceedings which was pending in the appellate court. The expression used in the section was ‘suits. The Supreme Court held that the expression used was suit and it would apply to suit at all stages and therefore, appeal being a continuation of the suit and that being one of the stages of the suit, the amendment Act would apply at the stage of the appeal also. That decision has no bearing on the present case. It will not in any way help the petitioner herein.

14. Learned counsel for the petitioner invited my attention to the judgment reported in State v. Guruiviah Naidu AIR 1968 Mad. 137 The Division Bench held in that case that the general principle that the order appealed against merges with the appellate order and the appellate order is the only effective and enforceable order, is not unqualified in its application. The Bench held that principle can have no application in a case where the question could not form part of the proceedings before the appellate authority and in which the appellate authority could not have passed an order sought to be made by the revising authority. The decision is really against the petitioner and it is not in any way in favour of the petitioner as the Bench has pointed out that the doctrine of merger is not one of universal application and it will apply only under certain circumstances. As regards the present case, the doctrine of merger will not apply and the petitioner's contention that in spite of the date prescribed by the Rent Controller having elapsed the payment made subsequent thereof would amount to compliance with his order is hardly acceptable.

15. Learned counsel for the petitioner also drew my attention to the decision in Sliankar v. Krishna A.I.R 1970 S.C 1 to contend that the principle of merger will apply to revisions also. That judgment will also have no bearing in this case.

16. Reliance is placed on the judgment in Raviram v. Somasundarain 1984-1 M.L.J 52 = 97 L.W 70 Gokulakrishnan, J., held that in an appeal against the order under S. 11 of Act, there is no necessity for the tenant to make a deposit as prescribed u/s 11(3) of the Act. Learned Judge held that provision would apply only to appeals under S. 23 as against the orders under S. 10 of the Act. That decision also has no bearing on the present case. The mere fact that the tenant was not obliged to make a deposit along the appeal R.C.A No. 283/87 would not enable him to extent on his own the time granted by the Rent Controller.

17. It is next contended by learned counsel for the petitioner that under S.ll(4) of the Act the Rent Controller has a discretion to pass a final order of eviction even if the tenant had not complied with the order directing payment or deposit.

Sub-Sec(4) of Sec.ll reads as follows: “If 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”.

It is contended by learned counsel that the section enables the tenant to show sufficient cause for his failure to pay or to deposit the rent as directed by the Rent Controller. If the Rent Controller is satisfied that sufficient cause was there for such failure then Rent Controller is not bound to order eviction. According to the learned counsel, in the present case, such sufficient cause has been shown. It is contended that when the petitioner was advised by his counsel that he should file an appeal against the order under S. 11 passed by the Rent Controller and get and order of stay from the appellate authority, the tenant was under the bona fide impression that his payment after obtaining the order of stay would amount to compliance with the order of the Rent Controller or at any rate he was not bound to pay within the time prescribed by the Rent Controller. According to the learned counsel, the non payment before 6.4.1987 is sufficiently explained in this case by the filing of the appeal and obtaining an order of stay and making the payment later on 28.4.1987 I do not agree. The filing of an appeal would never be a sufficient cause for non-compliance of the order of the Rent Controller. The petitioner has expressed his intention unequivocally to challenge the order of the Rent Controller by filing the appeal and his intention was not to comply with the order. He wanted the order of the Rent Controller to be set aside. By no stretch of imagination such filing of appeal would be a sufficient cause for failure of the tenant to comply with the order of the Rent Controller in time.

18. Learned counsel placed reliance on the judgment of the Supreme Court in Ram Murti v. Bhola Nath AIR 1984 S.C 1392 = 1984 S.C.C 1392. That case arose under the Delhi Rent Control Act 59 of 1958. The Court held that the Rent Controller had power to condone the default on the part of the tenant in making the payment or deposit of future rent or to extend time for the said payment or deposit. The only question was whether the Rent Controller had no discretion at all or he had a discretion to condone the default. The Supreme Court held that the section confers discretion on the Rent Controller and he was not bound straightwa to strike off the defence and order eviction against the tenant.

19. A similar decision was reported in M/s. B.P Khemka Pvt. Ltd v. Birendra Kumar AIR 1987 S.C 1010. That was a case under West Bengal Premises Tenancy Act 12 of 1956. The trial court and the High Court have taken the view that delayed payment of rent for 2 months, namely, September 1968 and March, 1969 attracted the provisions of S. 17(3) of the Act and the defence of the tenant should be struck off. Though the section uses the term ‘shall’ the Supreme Court construed the Section as giving discretion to the court and interpreted the word “shall'as “may”. The relevant passage is as follows

“Once the word “shall” used in; S. 17(3) is read as “may” and consequently the provision for striking out of the defence is to be read as directory and not mandatory then it follows that the Court is vested with discretion to order either striking out of the defence or not depending upon the circumstances of the case and the interests of justice. This Court has consistently taken the view that if the Court has the discretion not to strike out the defence of the tenant committing default in payment of deposit of rent as required by provision in any Rent Restriction Act, then the Court surely has the further discretion to condone the default and extend the time for payment or deposit and such a discretion is a necessary implication of the discretion not to strike out the defence. We may only refer in this connection to three earlier decisions of this court. Shyamcharan Sharma v. Dharamdas 1980-2 SCR 334 is a case which arose under the Madhya Pradesh Accommodation Control Act, 1961. Santosh Mehta v. Om Prakash 1980-3 SCR 325 and Ram Murti v. Bhola Nath were cases which arose under the Delhi Rent Control Act, 1958. The Rent Control Act of Delhi provided that if a tenant failed to make payment or deposit as required by the Section the Controller may order the defence against eviction to be struckout and proceed with the hearing of the application. In all these cases it has been uniformly held that the powers of discretion vested in the Rent Controller give him further right to condone the delay in deposit or payments of rent for the subsequent months”.

20. Learned counsel also invited my attention to another decision of the Supreme Court in Manmohan Kaur v. Surya Kant Bhagwandi 1988 4 Judgments today--406 The proposition laid down in the AIR 1987 S.C 1010 (supra) was reiterated in this case which arose under the Bihar Building (Lease Rent and Eviction) Control Act, 1982 which contained the sections similar to those found in the west Bengal Act.

21. None of the above decisions would apply to the present case as I have held that the petitioner had not shown any sufficient cause for his failure to comply with the order assed by the Rent Controller on 31.3.1987

22. Apart from the fact that the petitioner had not complied with the order of the Rent Controller, the Appellate authority has found on the evidence on record that the petitioner's defence in the main case is without any bona fide and that his case that the subject matter of the Lease was only the land is absolutely untenable. It is pointed out by learned counsel for the respondent that receipts are available from at least 1960 for over a period of 20 years and in all the receipts, the subject matter of a lease is shown as building and the petitioner has signed the counter foil, of the receipts. The petitioner has not chosen to produce the original receipts issued to him. But the counterfoils books have been produced by the respondent and it is seen that right from May, 1960, counterfoils are available and they have been signed on the reverse by the petitioner. The earliest counterfoil is dated 15.5.60 and it shows that the subject matter of the lease was a shop. The petitioner has merely signed on the reverse of it. It is the case of the respondent that the petitioner became a tenant even long before 1960 but the relevant counterfoils are not available at this distance of time. The petitioner places reliance on Ex. R2 which purports to be a receipt for rental advance payment. It reads as if the petitioner was already in possession of the land and what was let out was only vacant land. The amount mentioned therein is Rs. 60/- per month. The advance said to have been paid is Rs. 120/. The appellate authority has observed that Ex. R2 appears to be a fabricated document. Learned counsel for the petitioner contends that the observation of the Appellate Authority is unwarranted. Here again, I differ from the learned counsel. There is sufficient justification for the Appellate Authority to observe that Ex. R. 2 appears to be fabricated. The counterfoils from 2.7.1983 to 5.4.1986 are contained in the counterfoil book marked as Ex. P5. On the reverse of each counterfoil, the petitioner as made and endorsement acknowledging the receipt of the original receipt. In every endorsement the word (land) has been inserted. It is very clear tnat the insert in of the word is a subsequent interpolation and it was not written when the endorsement was made. The reasons are twofold. The ink in which the word is written is different from the ink in which the endorsement is made. Secondly, in most of the counterfoils, this word has been written above the endorsement. It is quite obvious that the petitioner is the only person who could have inserted the word in the counterfoils. The respondent would not have inserted. On the other hand, the respondent has issued a notice to the petitioner as early as on 15.4.1986 when he discovered that the word ‘land’ has been interpolated in the counterfoils, calling upon the petitioner to strike off that word. He has stated clearly that the petitioner had fraudulently inserted the word at the same time when the receipt dated 5.4.86 was issued and the petitioner was required to sign on the back of the counterfoil on that date. That appellate authority has rightly pointed out that from 1960 onwards the petitioner ad been signing on the back of counterfoils without any demur when the same referred to the tenancy of the building. For the first time, in 1986, the insertion of the word ‘land’ is sought to be made on the reverse of the counterfoils in the endorsements. Thus, it is clear that the petitioner was trying to fabricate the documents in order to support his claim that the subject matter of the lease was only land and not building. In these circumstances, the appellate authority was right in holding that there was no bonafide at all in the defence raised by the petitioner in the main petition for eviction.

23. The appellate authority having considered the matter in detail has dismissed the appeal on both grounds. I do not find any justification whatever to interfere with the order passed by the appellate authority. The order of eviction passed by the Rent Controller is well founded. There is no ground whatever to set aside the order of eviction.

24. In the result, the civil revision petition fails and is dismissed with costs.

RR/VCS