A JABAR KHAN Vs. MOHAMED KASIM

JUDGEMENT

(1.) Jabar, Khan, the petitioner in this civil revision petition, is the owner of a residential building in Tiruchirapalli. He subjected this building to two mortgages. One was a simple mortgage for Rs. 2,000/- at 18 per cent interest under a registered document dated 16-6-1970 in favour of the respondent, Mohamed Kasim. A little while earlier, on 23-4-1970, he created a usufructuary mortgage in favour of the same Mohamed Kasim over the same building for Rs. 4,000/- under a deed of usufructuary mortgage. However, on the very next day, namely, 24-4-1970, Mohamed Kasim, the usufructuary mortgagee, executed a lease back of the said building to the mortgagor Jabar Khan on a monthly rent of Rs. 70/-.

(2.) While so, right from the date of the lease back, namely, 24-4-1970, Jabar Khan did not pay any rent to the mortgage, Mohamed Kasim. In these events, Mohamed Kasim. after issuing a notice of termination of tenancy, filed an eviction petitions before the Rent Controller, Tiruchirapalli, for an order of eviction of Jabar Khan on the ground of wilful default under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The Rent Controller ordered eviction of Jabar Khan before the Appellate Authority, namely, the subordinate Judge, Tiruchirapalli, against the order of eviction. Pending disposal of the appeal against the order of eviction, the mortgagee, Mohammed Kasim, filed an application under S. 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, directing Jabar Khan to deposit the arrears of rent of Rs.5,460/ which had accrued due at Rupees 70/- per mensem from 24-4-1970 onwards. That petition was opposed vehimently by Jabar Khan on various grounds. But the Appellate Authority overruled all the objections and passed an order directing Jabar Khan to deposit Rs. 5230/- pending disposal of the appeal and since the amount was not deposited, he ultimately passed an order on 13-121976, under Sec 11(4) of the Rent Control Act directing delivery of possession of the property to the mortgagee Mohammed Kasim. It is against the order of the Appellate Authority that this civil revision petition has been brought.

(3.) The main contention by Jabar Khan's learned counsel, Mr. Abdul Wahab, is that the proceedings under S. 11(4) of the Rent Control Act did not lie at all in this case. It is necessary to examine this question from the particular angle from which it was advanced. Mr. Abdul Wahab does not contest the legal position that even a usufructuary mortgagee can be regarded as a landlord for purposes of the Rent Control Act, within the meaning of the expression 'landlord' as defined in S. 2(b). For the expression 'landlord' in that interpretation clause bears an inclusive definition, so as to include within the category of landlords 'a person who is receiving or is entitled to receive the rent of a building.' There is no denial by the learned counsel that under the terms of the agreement dated 24-4-1070, following closely upon the heels of the usufructuary mortgage on 23-4-1970, Mohammed Kasim being in the position of a mortgagee- lessor, must be regarded as landlord within the meaning of the Act since he was entitled to receive rent for the building. The real point which learned counsel urged in this revision was that although a landlord-tenant relationship might be held to have been established by the lease-back agreement dated 24-4-1970, and although in one sense, the non-payment of the monthly dues of Rs.70/- by Jabar Khan might be regarded as default in the payment of rent. Learned counsel contended that in the peculiar circumstances of the case, no authority functioning under the Rent Control Act, could entertain and dispose of proceedings under Section 11 of the act. According to learned counsel at some stage, at least if not always the relationship between the parties was recognized as that of landlord and tenant, and the so-called rent arrears were seen to be only arrears of interest.