Judgment:
IN THE HIGH COURT OF JUDICATE AT MADRAS DATED: 05.08.2013 CORAM: THE HONOURABLE Mr.JUSTICE K.RAVICHANDRABAABU C.R.P.(NPD) No.4512 of 2012 and M.P.Nos.1/2012 and 1/2013 Aslam Sait ..Petitioner versus R.Kokila ..Respondent Prayer:Civil revision petition filed under Article 227 of the Constitution of India against the fair and decretal order dated 15.10.2012 made in I.A.No.46/2012 in R.C.A.CFR No.2085 of 2012 on the file of the Subordinate Judge and Appellate Authority, Nilgiris at Udhagamandalam and liable to set aside the same.
For Petitioner :Mr.B.Kumaraswamy For Respondent :Mr.V.S.Sivasundaram ORDER
This civil revision petition is filed by the tenant challenging the order passed in I.A.No.46/2012 in R.C.A.CFR No.2085 of 2012 on the file of the Rent Control Appellate Authority, Uthagamandalam.
He is aggrieved in so far as the imposition of condition to deposit the arrears of rent to the tune of Rs.2,24,000/- and the cost of Rs.2,000/- while allowing his application filed under section 5 of the Limitation Act seeking to condone the delay of 571 days in preferring the appeal.
2.Heard the learned counsel appearing on either side.
3.The petitioner as the tenant suffered an order of eviction in R.C.O.P.No.5/2001 dated 24.01.2005.
The learned Rent Controller though set the petitioner herein (second respondent therein) exparte as he did not appear before the Court, had however passed the order of eviction on merits.
The petitioner after nearly 5 = years filed I.A.No.46 of 2010 under section 5 of the Limitation Act to condone the delay of 2012 days in filing the set aside petition by contending that notice in R.C.O.P.was not served on him.
The learned Rent Controller rejected the said application on 16.11.2010.
Against the said order, the petitioner preferred C.R.P.No.3547 of 2011.
This Court by order dated 27.04.2012 dismissed the said C.R.P.h5owever by granting liberty to the petitioner to file an appeal before the Rent Control Appellate Authority.
Thus he filed an appeal before the Appellate Authority challenging the said order made in I.A.No.46 of 2010 in R.C.O.P.No.5 of 2001, with a delay of 571 days.
Only to condone the said delay, the petitioner filed I.A.No.46/2012.
The Court below passed an elaborate order thereby allowing the application subject to condition that the petitioner should deposit the arrears of monthly rent from 09.02.2001 till 09.10.2012 at the rate of Rs.1,600/- per month, thus, totally a sum of Rs.2,24,000/- before the Appellate Authority on or before 07.11.2012 and on further payment of cost of Rs.2,000/- to the respondent/landlord on or before 07.11.2012.
It was made clear in the said order that the failure of making such deposit and payment of cost will result in the dismissal of the application.
The said order came to be passed on 15.10.2012.
The petitioner filed the present civil revision petition challenging only the imposition of the condition in the said order as stated supra.
4.Learned counsel Mr.V.S.Sivasundaram appearing for the respondent/landlord submitted that the present civil revision petition has become infructuous in view of the fact that the court below has passed a subsequent order on 08.11.2012 dismissing I.A.No.46/2012 on the reason that the petitioner herein has not complied with the condition.
He further submitted that the said order finally made on 08.11.2012 has not been challenged by the petitioner so far.
Therefore, he submitted that when the subsequent order passed has not been challenged and has become final, the petitioner cannot maintain the present civil revision petition any more and contest the same.
5.On the other hand, Mr.B.Kumaraswamy, learned counsel appearing for the petitioner submitted that even though the subsequent order dated 08.11.2012 has not been challenged by the petitioner, still he can maintain the present civil revision petition as he is aggrieved against the imposition of the condition stipulated therein.
He further submitted that in case, if this court comes to the conclusion that the condition imposed is not warranted then the subsequent order passed on 08.11.2012 may not have any force.
6.Perusal of the order impugned in the civil revision petition dated 15.10.2012 shows that the lower Appellate Court imposed a condition for depositing the arrears commencing from 09.02.2001 to 09.10.2012 at the rate of Rs.1,600/- per month by giving a specific finding that the tenants have not paid rent or deposited the same from 2001 onwards.
It is also found that both respondents 1 and 2 in R.C.O.P.are father and son.
It also imposed further condition to pay a sum of Rs.2,000/- as cost.
In my considered view, the condition imposed by the lower Appellate Court may not be construed as onerous especially under the facts and circumstances of the case and in view of the fact, the matter arises under the rent control proceedings where normally the tenant is under the obligation to deposit the arrears of rent under section 11(4) if an application made by the landlord to that effect.
7.No doubt the learned counsel for the petitioner submits before this Court that there are no arrears and the finding of the lower Appellate Court to that effect is not factually correct.
I am not expressing any view as to whether the petitioner/tenant is actually in arrears of rent or not.
However it has to be taken that only in order to safeguard the interest of the landlord, the lower Appellate Court has directed the deposit of the arrears of rent as claimed by him.
Mere issuance of such direction to deposit does not mean that the tenant's liability is decided or fixed finally.
It goes without saying that in the event of a finding given by the court finally with regard to the arreaRs.it is for the parties to work out their remedies on such deposit accordingly.
Therefore, mere asking to deposit the rental arrears as claimed by the landlord cannot be construed as a onerous condition.
Apart from the said factual position, as the petitioner/tenant has not complied with the condition, the very I.A.came to be dismissed on 08.11.2012 by the court below and such dismissal order has not been challenged so far till this date.
Thus, the order under challenge in this civil revision petition got merged with the subsequent order dated 08.11.2012.
Though the petitioner's counsel seeks time to challenge the said order, when this court has put a question as to whether any copy application has been filed immediately to get the order passed on 08.11.2012, the learned counsel is not in a position to answer the said question positively.
Thus, the fact remains that as on date, there is no challenge as against the order passed on 08.11.2012.
8.Considering the said fact also, I am of the view that the petitioner/tenant having failed to challenge the subsequent final order, is not entitled to maintain this civil revision petition any more.
Accordingly, I find no merits in the civil revision petition and consequently, the same is dismissed.
No costs.
The connected miscellaneous petitions are closed.
05.08.2013 Index :Yes/No Internet:Yes/No vri K.RAVICHANDRABAABU,J.
Vri To The Subordinate Judge and Appellate Authority, Nilgiris, Udhagamandalam.
CRP NPD NO.4512 OF201205.08.2013