AZARIAH Vs. A K A MOHAMMED ISMAIL SAHIB

JUDGEMENT

(1.) THE petitioner herein is the tenant, against whom, petition for eviction was filed by the respondent under Secs.l0(2)(i) and 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, (Act 18 of 1960 as amended by Act 23 of 1973). THE petitioner disputed the relationship of landlord and tenant between the respondent and himself. THE Rent Controller, while expressing a doubt as to whether the petition for eviction was maintainable, in view of the fact that the title of the respondent to the property, was in dispute and pending decision by this Court in a first appeal, as between the respondent and his vendor, passed an order dismissing the eviction petition on merits, after holding against the respondent with regard to the grounds urged for eviction.

(2.) . The respondent, filed R.C.A. No.13 of 1985 on the file of Appellate Authority (Sub Court), Tirunelveli, Pending that appeal, the respondent filed I.A.No.146 of 1986 under Sec.11(4) of the Act praying for an order directing the petitioner herein to put the respondent in possession of the schedule premises by ordering the stopping of all further proceedings in the appeal. The said petition was posted to 8. 12. 1987 for counter. The petitioner herein did not file a counter. His counsel reported no instructions. The subordinate Judge allowed the petition and straightway passed an order directing the petitioner herein to put the respondent in possession of the premises on the same day. the Sub Court passed an order in the appeal as follows: "I.A. No.146 of 1986 is allowed the defence of the respondent is struck off. Appeal is allowed, decree and judgment of the lower court is set aside. Petition is allowed with costs. Time for eviction two months." The petitioner has preferred this revision petition against the order in R.C.A. No.113 of 1995.

(3.) I am unable to accept this contention. Learned counsel for the petitioner questions the applicability of Sec.11 to the present proceedings when the respondents herein is the appellant before the Subordinate Judge R.C.A. No. 13 of 1985. It is not necessary for me to decide that question at this stage. Even if Sec.1 applies, the learned subordinate Judge has not chosen to follow the procedure prescribed in the said section. Under Sec.11(3), the court has to first determine summarily the rent to be so paid or deposited. That means, the court has to decide that is the amount to be paid by the enant or deposited by him under that section. Without deciding that amount, the court cannot straight way pass an order directing the tenant to put the landlord in possession of the premises. In this case, as already pointed out, the Rent Controller held against the respondent herein on both the grounds i.e. .wilful default in payment of rent and requirement for owner's occupation. When that is the case, it was the duty of the Subordinate Judge to have fixed the amount, which, according to him, was payable by the tenant to the landlord. After fixing such amount, he should have given direction to the petitioner herein to deposit the amount or pay the same to the respondent. Without doing so, the learned Subordinate Judge has erred in passing an order directing the petitioner herein to deliver possession of the property to the respondent. Hence, the order passed in LA. No.146 of 1986 is a nullity, as it runs counter to the provisions of Sec.11(3) of the Act and no consequential order could be passed in the appeal by the subordinate Judge based on the order in LA. No.146 of of 1986.