Jurisdiction of authorities to pass orders u/s 11 of the Act.

1. This revision is filed against an order made by the Appellate Authority under Act 18 of 1960, (hereinafter referred to as the ‘Act’), dismissing the petition to direct the tenant to deposit the arrears of rent and also to continue to deposit the monthly rents during the pendency of C.M.A. No. 28 of 1978 filed before it by the tenant. The Court below has relied upon a decision of this Court in Abdul Aziz Khan v. Appachi Gounder 1957 2 M.L.J. 513=70 L.W. 922 to hold that when there is a denial of title of the landlord, there could be no direction for depositing the arrears of rent from the monthly rent till it is finally decided that there is the relationship of landlord and tenant or not.

2. The landlord filed an application underd S. 10 (2) (i) and 10 (3) (ii) and 11 (4) of the Act for eviction of the tenant respondent herein on the ground that he had committed wilful default for the period from 1st June, 1965 onwards till the date of petition. In the petition, she had claimed that the tenant had taken up the premises for the purpose of conducting a tea stall at the rate of Rs. 10 per month. For the period from 1st June, 1965 to 1st September, 1967, the tenant committed default in the payment of monthly rents which comes to Rs. 270. The landlord had filed S.C. 834 of 1967 on the file of the District Munsif Court, Salem, which was decreed on 31st October, 1967 and the decree amount had not been paid. No rent had been paid even after 1st September, 1967. The tenant is therefore, liable to pay, at the rate of Rs. 20 per month in case of default. Hence she had prayed for eviction of the tenant for non-payment of arrears of rent amounting to Rs. 1,807, as on the date of the petition. The tenant remained absent and the petition was ordered by the Rent Controller by holding that wilful default pleaded is established and therefore, ordered eviction by order dt. 5th August, 1978. Landlady filed Era. A-7 to A 16 which are demands made by the Municipality for payment of taxes, in order to prove that the landlady is the owner of the building.

3. Aggrieved as against this order, the tenant preferred C.M.A. No. 28 of 1978 to the Appellate Authority and asked for stay of the order of eviction. The landlady filed 1.A. No. 81 of 1978 stating that under S. 11(4) of the Act, unless the tenant deposits the entire arrears, further proceedings should not be proceeded with. By the time the paid I.A. No. 81 of 1978 was filed, the arrears according to the landlady came to Rs. 2,640. In the main R.C.O.P., the tenant in his counter affidavit stated—

“The property mentioned in the petition has been pot up by this respondents father as early as in 1947, when Arunachala Gounder of Kitchipalayam was owning the said land. From 1947 onwards, this respondent is in actual possession and enjoyment of the land as a tenant and not the superstructure. The building has been constructed by this respondents father in 1947. Tbe monthly rent for the vacant site of the property in question is Rs. 10.”

He claimed protection under Tamil Nadu Act 3 of 1922 and had stated that the landlady had no right to maintain the petition because there is no relationship of landlord and tenant within the scope of the Act 18 of 1960 and hence the petition is liable to be dismissed in limine .

4. In the counter-affidavit filed in I.A. No. 81 of 1978, the tenant had stated that the superatructure belonged to him and that the landlady refused to receive rent for the site when he tendered rents through money order and that the Rent Controller has no jurisdiction over the matter because the lease is only in respect of the vacant site. He further added—

“This respondent begs to state that there is also dispute with respect to ownership of the vacant site and the suit is pending in O.S. No. 583 of 1976 on the file of the Sub-Judge, Salem, In any event, the petitioner is entitled to only three years rent for vacant site at the rate of Rs. 10 per month. This respondent undertakes to depo