IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
O.P.(RC)NO.111 OF 2022
AGAINST THE ORDER/JUDGMENT IN RCA 57/2021 OF ADDITIONAL
DISTRICT COURT & SESSIONS COURT - VIII, ERNAKULAM / IV
ADDITIONAL MACT, ERNAKULAM
PETITIONER:
ABDUL RAZAK P M, AGED 46 YEARS, MUHAMMADIA
VILLA, PAKYARA, UDUMA, KASARGOD, PIN - 631 319
BY ADV A.ASWATHY
RESPONDENTS:
1 K.C. THOMAS, AGED 61 YEARS, KANICHAI HOUSE,
VYNTHALA DESOM, KALLUR VADAKKUMURI VILLAGE,
MUKUNDAPURAM TALUK, THRISSUR, PIN - 680 741
2 JANCY JOSE, AGED 50 YEARS, KANICHAI HOUSE,
VYNTHALA DESOM, KALLUR VADAKKUMURI VILLAGE,
MUKUNDAPURAM TALUK, THRISSUR, PIN - 680 741
3 SHALY THOMAS, AGED 55 YEARS, VYNTHALA DESOM,
KALLUR VADAKKUMURI VILLAGE, MUKUNDAPURAM TALUK,
THRISSUR, PIN - 680 741
4 JACOB JOSE, AGED 28 YEARS, KANICHAI HOUSE,
VYNTHALA DESOM, KALLUR VADAKKUMURI VILLAGE,
MUKUNDAPURAM TALUK, THRISSUR, PIN - 680 741
5 JOSEPH JOSE, AGED 26 YEARS, KANICHAI HOUSE,
VYNTHALA DESOM, KALLUR VADAKKUMURI VILLAGE,
MUKUNDAPURAM TALUK, THRISSUR, PIN - 680 741
BY ADVS.PHILIP T.VARGHESE
ACHU SUBHA ABRAHAM(K/001758/1999)
OP (RC) NO. 111 OF 2022
..2..
V.T.LITHA(K/278/2006)
K.R.MONISHA(K/915/2013)
THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON
09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP (RC) NO. 111 OF 2022
..3..
"CR"
JUDGMENT
Anil K. Narendran, J The petitioner is the respondent-tenant in R.C.P. No.211 of 2019 on the file of the Rent Control Court (Additional Munsiff- III), Ernakulam, a petition filed by the respondents herein- landlords (five among the eight co-owners), seeking eviction of the tenant from the petition schedule building, which is in the occupation of the tenant, on the strength of a lease deed dated 01.11.2017, on a monthly rent of Rs.3,50,000/-, for a period of 11 months, with provision for enhancement. As per clause (4) of the lease deed, the monthly rent has to be apportioned among the eight co-owners in the ratio mentioned therein. R.C.P. No.211 of 2019 is one filed under Sections 5(1) and 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for brevity 'the Act') for fixation of fair rent and for eviction of the tenant for arrears of rent.
2. Before the Rent Control Court, the tenant entered appearance and filed counter in R.C.P. No.211 of 2019. The landlord filed I.A.No.2 of 2020 in R.C.P. No.211 of 2019 (Ext.P1), under Section 12 of the Act, seeking an order directing the OP (RC) NO. 111 OF 2022 ..4..
tenant to deposit arrears of rent for the period from 01.01.2018 onwards, at the rate of Rs.3,50,000/- per month, with increase as provided in the lease deed, and to pay rent for the subsequent period, during the pendency of that proceedings, within a period of 15 days from the due date. In I.A.No.2 of 2020, the tenant filed objections (Ext.P2) raising various contentions. The Rent Control Court passed Ext.P3 order dated 30.06.2021, under Section 12(1) of the Act, whereby the tenant was directed to remit arrears of rent from 01.01.2018 to 30.09.2018, at the rate of Rs.3,50,000/- per month, and arrears of rent from 01.10.2018 at the rate of Rs.3,85,000/-, within the time limit stipulated in the order, as provided in Section 12(2) of the Act. The tenant did not comply with the direction contained in Ext.P3 order. After considering the show cause statement filed by the tenant, the Rent Control Court extended for one month, the time stipulated in Ext.P3 order for depositing the admitted rent. Thereafter, the Rent Control Court passed Ext.P4 order dated 01.10.2021, invoking its powers under Section 12(3) of the Act, whereby the proceedings in R.C.P.No.211 of 2019 stands stopped and the tenant is directed to put the landlord in the vacant possession of OP (RC) NO. 111 OF 2022 ..5..
the petition schedule building, within a period of one month.
3. The tenant challenged Ext.P4 order by filing R.C.A.No.57 of 2021 before the Rent Control Appellate Authority (Additional District Judge-VIII), Ernakulam, invoking the provisions under Section 18(1)(b) of the Act. The tenant filed I.A.No.2 of 2021 in R.C.A.No.57 of 2021, seeking an order to stay the operation and all further proceedings pursuant to Ext.P4 order of the Rent Control Court, during the pendency of that appeal. The 1st respondent herein filed counter affidavit opposing the order of stay sought for, by contending that, unless the appellant-tenant deposits arrears of rent, as ordered by the Court below, the appeal and the stay petition are not maintainable. After considering the rival contentions, the Appellate Authority passed Ext.P5 order dated 11.03.2022, whereby I.A.No.2 of 2021 in R.C.A.No.57 of 2021 was allowed and all further proceedings pursuant to Ext.P4 order dated 01.10.2021 of the Rent Control Court in R.C.P.No.211 of 2019 is stayed, on condition that, the appellant deposits the admitted arrears of rent as ordered by the court below on or before 07.04.2022 and also continue to pay admitted rent for the future OP (RC) NO. 111 OF 2022 ..6..
months, till the disposal of that appeal. Challenging Ext.P5 order dated 11.03.2022 of the Rent Control Appellate Authority, the tenant is before this Court in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India.
4. On 08.06.2022, when this original petition came up for admission, the learned counsel for the petitioner-tenant pointed out the listing of the execution petition in R.C.P.No.211 of 2019 before the Munsiff Court, Ernakulam. This Court issued notice to the respondents through their counsel before the Munsiff Court, Ernakulam, where the execution petition in R.C.P.No.211 of 2019 is pending consideration, and listed the matter today for consideration. Today, when this matter is taken up for consideration, Advocate Sri.Philip T. Varghese enters appearance for the respondents.
5. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondents-landlords.
6. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P5 order dated 11.03.2022 of the Rent Control Appellate Authority OP (RC) NO. 111 OF 2022 ..7..
in I.A.No.2 of 2021 in R.C.A.No.57 of 2021, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution.
7. The Rent Control Petition, i.e., R.C.P. No.211 of 2019, is one filed by the landlords, invoking the provisions under Sections 5 and 11(2)(b) of the Act. In that Rent Control Petition, the landlords filed I.A.No.2 of 2020, under Section 12 of the Act, in which the Rent Control Court passed Ext.P3 order, under Section 12(1) of the Act, whereby the tenant was directed to deposit the admitted arrears of rent and also rent for the subsequent period, during the pendency of the RCP, within the time limit stipulated in that order, under Section 12(2) of the Act. The tenant did not comply with the direction contained in Ext.P3 order. After considering the show cause statement filed by the tenant, the Rent Control Court extended for one month, the time stipulated in Ext.P3 order. Thereafter, the Rent Control Court passed Ext.P4 order dated 01.10.2021, invoking its powers under Section 12(3) of the Act, stopping the proceedings in R.C.P. No.211 of 2019 and the tenant is directed to put the landlord in the vacant possession of the petition schedule building, within a OP (RC) NO. 111 OF 2022 ..8..
period of one month. The said order is under challenge in R.C.A.No.57 of 2021 filed under Section 18(1)(b) of the Act, in which the Rent Control Appellate Authority passed Ext.P5 order in I.A.No.2 of 2021, whereby that interlocutory application was allowed and all further proceedings pursuant to Ext.P4 order dated 01.10.2021 of the Rent Control Court in R.C.P.No.211 of 2019 was stayed, on condition that, the appellant deposits the admitted arrears of rent as ordered by the court below on or before 07.04.2022 and also continue to pay admitted rent for the future months, till the disposal of that appeal.
8. During the course of arguments, the learned counsel for the petitioner-tenant contended that, before the Rent Control Court, the tenant disputed the execution of the lease deed dated 01.11.2017. The learned counsel for the petitioner has handed over a copy of the said lease deed for a period of 11 months (from 01.11.2017 to 30.09.2018) for the perusal of this Court. The said lease deed bears the signature of the petitioner-tenant, which is similar to his signature affixed in the vakalath filed before this Court, which is dated 17.05.2022.
9. Another contention raised by the learned counsel for OP (RC) NO. 111 OF 2022 ..9..
the petitioner-tenant is that, in terms of the lease deed dated 01.11.2017, the tenant has already made a security deposit of Rs.21,00,000/-, which ought to have been adjusted against the admitted arrears of rent, before the Rent Control Court passing an order in R.C.P.No.211 of 2019, under Section 12(3) of the Act.
10. In Nalla Thampy Thera v. Abdulla [2002 (2) KLT 158] the contention raised before the Division Bench, relying on the decisions of the Apex Court in Modern Hotel, Gudur v. K. Radhakrishnaiah [AIR 1989 SC 1510] and K. Narasimha Rao v. T.M. Nasimuddin Ahmed [AIR 1996 SC 1214] was that the landlord was not justified in not adjusting the advance amount towards rent arrears. As per the proviso to Section 8(1)
(a) of the Kerala Buildings (Lease and Rent Control) Act, the tenant is liable to pay only one month's rent, by way of advance. Therefore, the balance is liable to be adjusted towards rent arrears. The Division Bench noticed that, in Issac Ninan v. State of Kerala [1995 (2) KLT 848] the Court has struck down Sections 5, 6 and 8 of the Kerala Buildings (Lease and Rent Control) Act in its entirety. Since Section 8 of the Act is not in the Statute book, it would be open to the tenant and landlord to OP (RC) NO. 111 OF 2022 ..10..
enter into an agreement with regard to the payment of advance. The Division Bench found that, reliance placed on the above mentioned decisions of the Apex Court is misplaced. Those are all cases where there is specific provision in the Andhra Pradesh as well as Tamil Nadu Rent Control Act, which obliges the landlord to keep only one month's rent as advance, just like Section 8 of the Kerala Buildings (Lease and Rent Control) Act. However, as far as Kerala Rent Control Act is concerned, Section 8 had already been struck down.
11. In Santhosh K. Thomas v. Usha Suresh [2013 (1) KLT 767], before the Division Bench of this Court, relying on the decision of a learned Single Judge of this Court in Pathumma Beevi v. Lonappan [1985 KLT 705], the learned counsel for the petitioner-tenant argued that the landlord is bound to adjust the security amount towards the arrears of rent and when there is a deposit of security amount, tenant cannot be directed to deposit arrears of rent, before adjusting the security amount, under Section 12 of the Kerala Buildings (Lease and Rent Control) Act. The tenant also relied on the decision of the Apex Court in G. Reghunathan v. K.V. Varghese [(2005) 7 SCC OP (RC) NO. 111 OF 2022 ..11..
317]. In the said decision, relying on Section 8(1) of the Kerala Buildings (Lease and Rent Control) Act, the Apex Court held that no landlord is entitled to receive as advance any amount in excess of one month's rent and if he has accepted or received any amount in excess of one month's rent, it is liable to be repaid to the tenant forthwith. The Division Bench held that, when Section 8(1) of the Act is not in Statute book, as Section 8 was declared ultra vires by the Division Bench of this Court in Issac Ninan v. State of Kerala [1995 (2) KLT 848], based on Section 8(1) of the Act the tenant cannot contend that the landlords are not entitled to retain the security amount in excess of one month's rent and therefore, he is not liable to deposit the arrears of rent as found by Rent Control Court. Though in Edger Ferus v. Abraham Ittycheria [2004 (1) KLT 767] Section 5(1) out of Section 5, Section 6 and Section 8 which were declared ultra vires in Issac Ninan was severed and retained in the Statute, the declaration in Issac Ninan that Section 8 of the Act is ultra vires is still subsisting. Another Division Bench in Nalla Thampy Thera v. Abdulla [2002 (2) KLT 158] considered the said question and held that Section 8 is not in the OP (RC) NO. 111 OF 2022 ..12..
Statute book and based on Section 8(1), a tenant is not entitled to contend that the landlord is not entitled to retain the advance in excess of one month's rent. In such circumstances, the Division Bench repelled the case of the tenant that the Rent Control Court was not justified in passing an order under Section 12(1) of the Act, when there is deposit of Rs.2,00,000/- as security.
12. Section 8 of the Act has already been declared ultra vires by the Division Bench of this Court in Issac Ninan v. State of Kerala [1995 (2) KLT 848]. When Section 8(1) of the Act is not in Statute book, as it was declared ultra vires, a tenant is not entitled to contend that the landlord is not entitled to retain the advance in excess of one month's rent. Therefore, the contention of the tenant that, the security deposit made by him, in terms of the lease deed dated 01.11.2017, which is still with the landlord, has to be adjusted against the admitted arrears of rent, before the Rent Control Court passing an order in R.C.P.No.211 of 2019, under Section 12(3) of the Act, can only be rejected as untenable, and we do so.
OP (RC) NO. 111 OF 2022 ..13..
13. Section 12 of the Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per Section 12(1), no tenant against whom an application for eviction has been made by a landlord under Section 11, shall be entitled to contest the application before the Rent Control Court under that Section, or to prefer an appeal under Section 18 against any order made by the Rent Control Court on the application, unless he has paid or pays to the landlord, or deposits with the Rent Control Court or the Appellate Authority, as the case may be, all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. As per Section 12(2), the deposit under sub-section (1) shall be made within such time as the court may fix and in such manner as may be prescribed and shall be accompanied by the fee prescribed for the service of notice referred to in sub-section (4). As per the proviso to Section 12(2), the time fixed by the court for the deposit of the arrears OP (RC) NO. 111 OF 2022 ..14..
of rent shall not be less than four weeks from the date of the order and the time fixed for the deposit of rent which subsequently accrues due shall not be less than two weeks from the date on which the rent becomes due. As per Section 12(3) of the Act, if any tenant fails to pay or to deposit the rent as aforesaid, the Rent Control Court 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. As per Section 12(4), when any deposit is made under sub-section (1), the Rent Control Court or the Appellate Authority, as the case may be, shall cause notice of the deposit to be served on the landlord in the prescribed manner, and the amount deposited may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him to the Rent Control Court or the Appellate Authority in that behalf.
14. Section 12(1) of the Act enjoins a tenant, against whom an application for eviction has been made by a landlord under Section 11, to pay to the landlord, or deposit with the Rent OP (RC) NO. 111 OF 2022 ..15..
Control Court, all arrears of rent admitted by the tenant to be due in respect of the building, up to the date of payment or deposit, and continue to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court, in order to contest that application for eviction before the Rent Control Court. Similarly, Section 12(1) of the Act enjoins a tenant, in order to prefer an appeal under Section 18 of the Act against any order made by the Rent Control Court on an application made by a landlord under Section 11, to pay the landlord, or deposits with the Appellate Authority, all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Appellate Authority.
15. The liability of a tenant under Section 12(1) of the Act, against whom an application for eviction has been made by a landlord under Section 11, or who prefer an appeal under Section 18 of the Act, against any order made by the Rent Control Court OP (RC) NO. 111 OF 2022 ..16..
on an application made by a landlord under Section 11, is limited to all arrears of rent admitted by the tenant to be due in respect of the building, up to the date of payment or deposit, and he shall continue to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be.
16. The object of the provisions of Section 12(1) of the Act is to deny the defaulting tenant the right to contest the application for eviction before the Rent Control Court, or to prefer an appeal under Section 18 of the Act against any order made by the Rent Control Court on an application made by a landlord under Section 11, unless he pays to the landlord, or deposits with the Rent Control Court or the Appellate Authority, as the case may be, all arrears of rent admitted by him to be due in respect of the building, up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be.
OP (RC) NO. 111 OF 2022 ..17..
17. In J. Ramkumar v. Ashok Jacob [2022 (1) KHC 495 : ILR 2021 (4) Kerala 876] this Court held that, Section 12(2) of the Act enjoins a tenant to deposit the admitted rent under sub-section (1), within such time as the court may fix and in such manner as may be prescribed. The time fixed by the court for the deposit of the arrears of rent and the time fixed for the deposit of rent which subsequently accrues due shall not be less than that specified in the proviso to Section 12(2). As per the statutory mandate of Section 12(1), on an application filed by the landlord under Section 12, the Rent Control Court or the Appellate Authority, as the case may be, has to order payment or deposit of arrears of rent admitted by the tenant to be due in respect of the petition schedule building, up to the date of payment or deposit and the tenant shall also be directed to continue to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, regardless of the relief sought for in that application. As per Section 12(3) of the Act, if any tenant fails to pay or to deposit the rent as aforesaid, the Rent Control Court or the OP (RC) NO. 111 OF 2022 ..18..
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.
18. In Pochappan Narayanan v. Gopalan [1990 (2) KLT 1], one of the contentions put forward by the learned counsel for the landlord was that, payment or deposit of arrears of rent admitted by the tenant to be due is a condition precedent which has to be satisfied by the tenant, before he can prefer an appeal against an order of eviction made by the Rent Control Court. Reliance was placed on the language of Section 12(1) of the Act, which provides that no tenant shall be entitled to prefer an appeal under Section 18 against an order of eviction made by the Rent Control Court unless he has paid or deposited all arrears of rent admitted by the tenant to be due till the date of preferring the appeal. The Division Bench, found that the right of appeal against an order of eviction made by the Rent Control Court is not conferred by Section 12 of the Act. The right of appeal is conferred by Section 18. Section 12 imposes certain obligations on the tenant of paying or depositing admitted rent OP (RC) NO. 111 OF 2022 ..19..
during the pendency of the proceedings for eviction, and the consequences for committing default in fulfilling those obligations. The word 'prefer' used in Section 12(1) of the Act is not to convey the same meaning with which it has been employed in Section 18, which confers a right of appeal against an order of the Rent Control Court. The word 'prefer' not having been defined in the Act, it has to be assigned the ordinary meaning having regard to the context in which the said word is used. The meaning of the word 'prefer' given in Black's Law Dictionary, Fifth Edition is "to bring before; to prosecute; to try; to proceed with". It is therefore clear that the word 'prefer' can be used in the context of Section 12(1) of the Act, for conveying the lodging of the appeal or prosecution of the appeal or proceeding with the appeal. Section 12(3) of the Act, which speaks of the consequences of the failure to pay or deposit the rent as contemplated by Sections 12(1) and (2), says that all further proceedings should be stopped and an order made directing the tenant to put the landlord in possession of the building. The consequence contemplated is not dismissal of the appeal on the ground that it is not maintainable but only to stop OP (RC) NO. 111 OF 2022 ..20..
all further proceedings in the appeal. Therefore, the Division Bench held that, the word 'prefer' has been used in Section 12(1) of the Act not to convey the lodging of the appeal but to convey that the appeal already lodged in accordance with Section 18 shall not be proceeded with or prosecuted further if the conditions specified in Section 12(1) are not fulfilled. Paying or depositing of all arrears of rent admitted by the tenant is not a condition precedent for presenting an appeal under Section 18 of the Act. The appeal gets properly lodged when the same is presented in accordance with Section 18 of the Act.
19. In order to have recourse to the provisions of Section 12(1) of the Act, it is a pre-requisite that, there should be an application for eviction made by a landlord under Section 11, or an appeal filed by the tenant under Section 18 against any order made by the Rent Control Court on such an application made by a landlord under Section 11. Without satisfying any one of the conditions given in Section 12(1), the landlord cannot take recourse to the provisions of Section 12 of the Act.
20. In Sidharthan v. Hassankutty Haji [1994 (2) KLT 419], the Division Bench of this Court was dealing with a case in OP (RC) NO. 111 OF 2022 ..21..
which the Rent Control Petition was filed by respondents 1 to 11 therein, against revision petitioner and respondents 12 and 13, for eviction on the ground of bona fide need for own occupation. Alleging that the tenant has failed to pay the admitted arrears, the landlord moved the Rent Control Court in I.A.No.4010 of 1989, for an order under Section 12(3) of the Act. After hearing both sides, the Rent Control Court, by the order dated 20.01.1990, directed the tenants to pay or deposit the entire arrears of rent till that date, as claimed in the petition, on or before 20.02.1990, or to show cause why all further proceedings shall not be stopped and the tenants directed to put the landlords in possession of the petition schedule building. The tenant challenged the order of the Rent Control Court under Section 12(3) of the Act, in an appeal filed before the Rent Control Appellate Authority under Section 18(1)(b) of the Act. By the order dated 31.05.1990, the Appellate Authority dismissed the appeal on account of the failure of the appellants-tenants to comply with the requirement under Sections 12(1) and (2) of the Act. Hence the tenants filed revision before this Court under Section 20 of the Act.
OP (RC) NO. 111 OF 2022 ..22..
21. In Sidharthan [1994 (2) KLT 419], the Division Bench noticed that, Section 18(1)(b) of the Act enables any person aggrieved by an order of the Rent Control Court to prefer an appeal to the Appellate Authority within 30 days from the date of the order. Section 12(1) inter alia directs that no tenant against whom an order for eviction has been passed shall be entitled to prefer an appeal under Section 18, unless he deposits with the Appellate Authority all arrears of rent admitted by the tenant to be due in respect of the building up to the date of deposit. As held by the Division Bench in Pochappan Narayanan [(1990) 2 KLT 1], paying or depositing of all arrears of rent admitted by the tenant is not a condition precedent for presenting an appeal under Section 18 of the Act. The appeal gets properly lodged when the same is presented in accordance with that Section. In Sidharthan, the Division Bench held that, viewed in the light of the principles laid down in Pochappan Narayanan, the impugned order of the Rent Control Appellate Authority is unsustainable, since the appeal cannot be said to be not maintainable merely for the reason that the tenant has failed to deposit the admitted arrears along with OP (RC) NO. 111 OF 2022 ..23..
the presentation of the appeal.
22. In Ismail S.P. v. K. Sudhakara Shenoy [2009 (4) KHC 889], after quoting Section 12 of the Act, a Division Bench of this Court held that, Sections 12(1) to (3) can strictly apply only in cases where the original proceeding is for eviction of the tenant under Section 11. Therefore, the order of eviction granted by the Rent Control Appellate Authority while dismissing an appeal filed by the tenant under Section 18 of the Act, thereby confirming the fair rent fixed by the Rent Control Court, was clearly beyond the scope of the proceedings under Section 5. Paragraph 5 of that decision reads thus;
"5. A careful reading of the above quoted provisions will show that sub-sections (1) to (3) of Section 12 can strictly apply only in cases where the original proceeding is for eviction of the tenant under Section 11. It appears to us that the above fundamental aspect of the matter was missed by the learned Appellate Authority. The best that the landlord could have aspired for in the appeal, was a judgment dismissing the appeal preferred by the revision petitioner there by confirming the fair rent fixed by the Rent Control Court. Under the impugned Judgment, the respondent has been granted not only such a judgment but an order of eviction also, which was clearly beyond the scope of proceedings under Section 5."
OP (RC) NO. 111 OF 2022 ..24..
23. In Joy Daniel v. N.A. Ibrahimkutty [2020 (2) KHC 543], on the question as to whether Section 12(1) of the Act casts an obligation on the tenant to pay the admitted arrears of rent, in order to contest an appeal filed under Section 18(1)(b) against an order under Section 12(3), which is to the effect of stoppage of the proceedings and directing the tenant to put the landlord in possession of the premises, a Full Bench of this Court held that, Section 12(1) of the Act provides such an obligation only in the case of an application under Section 11 or in the case of an appeal preferred under Section 18, against an order passed by the Rent Control Court on an application under Section 11. As long as the obligation cast under Section 12(1) is exclusively confined to an application for eviction filed under Section 11 and to an appeal filed challenging an order passed on such an application, the obligation in this regard cannot be extended in the case of an appeal instituted against an order passed by the Rent Control Court under Section 12(3).
24. In the instant case, R.C.A.No.57 of 2021 pending before the Rent Control Appellate Authority is one filed by the tenant under Section 18(1)(b) of the Act, against Ext.P4 order OP (RC) NO. 111 OF 2022 ..25..
passed by the Rent Control Court in R.C.P.No.211 of 2019, under Section 12(3) of the Act. The said appeal is one filed under Section 18(1)(b) of the Act against an order made by the Rent Control Court on an application made by the landlord under Section 11. When the obligation cast under Section 12(1) is exclusively confined to an application for eviction filed under Section 11 and to an appeal filed challenging an order passed on such an application, such an obligation cannot be extended for prosecuting an appeal instituted against an order passed by the Rent Control Court under Section 12(3) of the Act. The obligation cast under Section 12(1) of the Act cannot be extended by the Appellate Authority for consideration of an interlocutory application for stay filed in such an appeal, for granting stay of the order passed by the Rent Control Court under Section 12(3) of the Act. It would be certainly open to the Appellate Authority to impose any reasonable condition, considering the facts and circumstances of the case, for granting an order of stay, in case the appellant-tenant has made out a prima facie case for such an interim order.
25. By Ext.P5 order in I.A.No.2 of 2021 in R.C.A.No.57 of OP (RC) NO. 111 OF 2022 ..26..
2021, the Rent Control Appellate Authority allowed that interlocutory application and stayed all further proceedings pursuant to Ext.P4 order dated 01.10.2021 of the Rent Control Court in R.C.P.No.211 of 2019, on condition that, the appellant- tenant deposits the admitted arrears of rent as ordered by the court below on or before 07.04.2022 and also continue to pay admitted rent for the future months, till the disposal of that appeal. When the obligation cast under Section 12(1) is exclusively confined to an application for eviction filed under Section 11 and to an appeal filed challenging an order passed on such an application, such an obligation cannot be extended for prosecuting an appeal instituted against an order passed by the Rent Control Court under Section 12(3) of the Act. Therefore, the Appellate Authority committed a manifest error in extending the obligation cast under Section 12(1) of the Act, for consideration of an interlocutory application for stay filed in the appeal, for granting stay of Ext.P4 order passed by the Rent Control Court under Section 12(3) of the Act. It is for the Appellate Authority to impose any reasonable condition, considering the facts and circumstances of the case, for granting an order of stay, in case OP (RC) NO. 111 OF 2022 ..27..
the appellant-tenant has made out a prima facie case for such an interim order.
26. In Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329] the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute.
27. In K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39], the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted.
28. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that, the OP (RC) NO. 111 OF 2022 ..28..
Rent Control Appellate Authority committed a manifest error while passing Ext.P5 order dated 11.03.2022 in I.A.No.2 of 2021 in R.C.A.No.57 of 2021, which warrants interference of this Court, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India.
29. The learned counsel for the respondents-landlords would point out that the arrears of rent in respect of the petition schedule building is more than Rs.2,00,00,000/-. The learned counsel for the petitioner-tenant would submit that, the tenant shall clear the admitted arrears of rent, in monthly instalments, for which he requires a reasonable time.
30. We do not propose to consider the said request, in this proceedings, since the order passed by the Rent Control Court, which is under challenge in R.C.A.No.57 of 2021 pending before the Rent Control Appellate Authority is one passed under Section 12(3) of the Act. However, having considered the facts and circumstances of the case, we deem it appropriate to direct the petitioner-tenant to remit a sum of Rs.10,00,000/- before the Rent Control Appellate Authority, within a period of two weeks from the date of receipt of a copy this judgment, for payment to OP (RC) NO. 111 OF 2022 ..29..
the landlords. Thereafter, the Appellate Authority shall re- consider the application for stay, i.e., I.A.No.2 of 2021 in R.C.A.No.57 of 2021, and pass appropriate orders thereon, as expeditiously as possible, at any rate, within a period of five weeks from the date of receipt of a copy this judgment. In case the appellant-tenant has made out a prima facie case for an interim stay, the Appellate Authority shall impose any reasonable condition for granting such an interim order of stay, considering the facts and circumstances of the case, taking note of the law laid down in this judgment.
31. In the result, this original petition is allowed by setting aside Ext.P5 order dated 11.03.2022 of the Rent Control Appellate Authority in I.A.No.2 of 2021 in R.C.A.No.57 of 2021, and by directing the Appellate Authority to re-consider that application for stay and pass appropriate orders thereon, as directed above. The Appellate Authority shall finally dispose of R.C.A.No.57 of 2021, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment.
32. As already noticed hereinbefore, the object of the OP (RC) NO. 111 OF 2022 ..30..
provisions of Section 12(1) of the Act is to deny the defaulting tenant the right to contest the application for eviction before the Rent Control Court, or to prefer an appeal under Section 18 of the Act against any order made by the Rent Control Court on an application made by a landlord under Section 11. In an appeal filed under Section 18(1)(b) of the Act, against the order passed by the Rent Control Court under Section 12(3) of the Act, the legality of the said order alone is under challenge, unlike other appeals in which the order of eviction granted under Section 11 of the Act is under challenge, which requires re-appreciation of evidence on record.
33. In Jasbir Singh v. State of Punjab [(2006) 8 SCC 294] the Apex Court held that the power of superintendence conferred upon the High Court under Article 227 of the Constitution of India over all courts and Tribunals throughout the territory of the State is both of administrative and judicial nature and it could be exercised suo motu also.
34. In Radhey Shyam v. Chhabi Nath [(2015) 5 SCC 423] a Three-Judge Bench of the Apex Court reiterated that OP (RC) NO. 111 OF 2022 ..31..
Article 227 of the Constitution of India can be invoked by the High Court suo motu as a custodian of justice.
35. Considering the object of the provisions of Section 12 of the Act, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India, we direct all Rent Control Appellate Authorities in the State to ensure time bound disposal of the appeals filed under Section 18(1)(b) of the Act, against an order passed by the Rent Control Court under Section 12(3) of the Act. Similarly, we direct all Rent Control Courts/Appellate Authorities in the State to ensure time bound disposal of the applications filed under Section 12 of the Act, in pending Rent Control Petitions/Rent Control Appeals.
Registrar (District Judiciary) shall communicate a soft copy of this judgment to all Rent Control Courts/Appellate Authorities in the State, without any delay.
Sd/-
ANIL K. NARENDRAN JUDGE Sd/-
P.G. AJITHKUMAR JUDGE PR OP (RC) NO. 111 OF 2022 ..32..
APPENDIX OF OP (RC) 111/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF I.A. 2/2020 FILED BY THE RESPONDENTS BEFORE THE HONOURABLE RENT CONTROL COURT, ERNAKULAM IN RCP 211/2019 Exhibit P2 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN IA. 2/2020 IN RCP 211/2019 BEFORE THE HONOURABLE RENT CONTROL COURT, ERNAKULAM Exhibit P3 TRUE COPY OF THE ORDER DATED 30/06/2021 PASSED BY THE RENT CONTROL COURT, ERNAKULAM IN IA. 2/2020 IN RCP 211/2019 Exhibit P4 TRUE COPY OF THE ORDER DATED 01/10/2021 PASSED BY THE RENT CONTROLLER IN RCP 211/2019 Exhibit P5 CERTIFIED COPY OF THE ORDER DATED 11/03/2022 PASSED BY THE ADDITIONAL DISTRICT COURT-VIII, ERNAKULAM IN IA.
2/2021 IN RCA 57/2021