Kerala High Court
Paul vs Johnson K.Antony on 12 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
O.P.(RC) NO.75 OF 2021
AGAINST THE ORDER IN I.A.NO.1/2021 IN R.C.P.NO.14/2020 OF THE RENT
CONTROL COURT, CHALAKUDY, DATED 08.04.2021
PETITIONER/S:
PAUL
AGED 58 YEARS
S/O.VARAPPUZHAKKARAN TALIYATH ITTIYECHAN, EAST CHALAKUDY
VILLAGE, CHALAKUDY DESOM, TRISSUR DISTRICT.
BY ADV T.N.MANOJ
RESPONDENT/S:
1 JOHNSON K.ANTONY
S/O.KARATHRAKKARAN ANTONY, KIZHEKKE CHALAKUDY VILLAGE,
CHALAKUDY TALUK, REP. BY THE POWER OF ATTORNEY HOLDER,
WILSON S/O.ALUKKAVEETIL OUSEP, KOODAPUZHA DESOM, KIZHEKKE
CHALAKUDY VILLAGE, CHALAKUDY TALUK - 680 307
2 MRS.ANITHA JOHNSON,
W/O.JOHNSON ANTONY, KARATHRAKKARAN HOUSE, KIZHEKKE
CHALAKUDY VILLAGE, CHALAKUDY TALUK, REP. BY THE POWER OF
ATTORNEY HOLDER, WILSON S/O.ALUKKAVEETIL OUSEP.
KOODAPUZHA DESOM, KIZHEKKE CHALAKUDY VILLAGE, CHALAKUDY
TALUK - 680 307
BY ADVS.
PRABHU K.N.
MANUMON A.
JAYAN KUTTICHAKKU
THIS O.P.(RENT CONTROL) HAVING COME UP FOR ADMISSION ON
12.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P. (RC) No.75 OF 2021
2
JUDGMENT
Anil K. Narendran, J.
The petitioner is the respondent-tenant in R.C.P No.14 of 2020 on
the file of the Rent Control Court, Chalakudy, a petition filed by the
respondents herein-landlords, under Section 11(2)(b) and 11(3) of the
Kerala Buildings (Lease and Rent Control Act), 1965, seeking eviction of
the tenant from the petition schedule shop room. In that Rent Control
Petition, the landlord filed I.A.No.1 of 2021, an application under Section
12(1) and (3) of the Act, seeking an order directing the tenant to deposit
the admitted arrears of rent, failing which for an order directing the tenant
to vacate the petition schedule shop room. In that interlocutory application
the Rent Control Court passed Ext.P5 order dated 08.04.2021, which reads
thus;
"Petition for depositing the admitted arrears of rent. Deposit
before this Court the admitted arrears of rent of Rs.4,06,100/-
For hearing 29.05.2021"
2. Feeling aggrieved by Ext.P5 order, the petitioner tenant is
before this Court in this original petition filed under Article 227 of the
Constitution of India.
3. On 22.07.2021, when this original petition came up for
admission, this Court admitted the matter on file and issued notice by
speed post to the respondents, returnable within two weeks. This Court
granted an interim order staying the operation and all further proceedings
O.P. (RC) No.75 OF 2021
pursuant to Ext.P5 order dated 08.04.2021 in I.A. No.1 of 2021 in R.C.P.
No.14 of 2020 on the file of the Rent Control Court, Chalakudy, for a
period of one month.
4. On 03.08.2021, the respondents entered appearance through
counsel and sought time to file vakkalath and counter affidavit.
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
08.04.2021 of the Rent Control Court, Chalakkudy in I.A. No.1 of 2021 in
R.C.P.No.14 of 2020, in exercise of the supervisory jurisdiction of this
Court under Article 227 of the Constitution of India.
7. The landlords field R.C.P.No.14 of 2020 before the Rent Control
Court, Chalakkudy, seeking eviction of the tenant from the petition
schedule shop room, under Section 11(2)(b) and 11(3) of the Act. On
receipt of notice in the R.C.P., the tenant entered appearance and sought
time for filing objections. On 05.04.2021, the landlords filed I.A.No.1 of
2021, an application under Section 12(1) and (3) of the Act, seeking an
order directing the tenant to deposit a sum of Rs.4,06,100/- towards
admitted arrears of rent and in case of any default on his part, for an order
directing the tenant to vacate the petition schedule shop room and give
vacant possession to the landlords. That application came up for
O.P. (RC) No.75 OF 2021
consideration before the Rent Control Court on 08.04.2021, the Court
passed the impugned order, whereby the tenant was directed to deposit in
court the admitted arrears of rent amounting to Rs.4,06,100/-.
8. The fact that the impugned order is one passed by the Rent
Control Court, even without affording the tenant, an opportunity to file
objections in I.A.No.1 of 2021 is not in dispute. The tenant is yet to file
objections in R.C.P.No.14 of 2020. Though it is averred in the affidavit filed
in support of I.A.No.1 of 2021, which is placed on record as Ext.P4 in this
original petition, that the tenant had admitted arrears of rent amounting to
Rs.4,06,100/- from June, 2019 onwards, in Ext.P2 reply notice dated
14.10.2020, the tenant has raised a specific contention that there is no
arrears of rent, as alleged in Ext.P1 notice dated 14.09.2020 issued on
behalf of the landlords.
9. Section 12 of the Kerala Buildings (Lease and Rent Control) Act
deals with payment or deposit of rent during the pendency of proceedings
for eviction. As per sub-section (1) of Section 12, 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
O.P. (RC) No.75 OF 2021
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 sub-section (2) of Section 12, 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 sub-section (2), the time fixed by
the court for the deposit of the arrears 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.
10. As per sub-section (3) of Section 12 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 sub-section (4) of Section 12, 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
O.P. (RC) No.75 OF 2021
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.
11. Sub-section (1) of Section 12 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 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. The object of the provisions under sub-section (1) of
Section 12 of the Act is to deny the defaulting tenant the right to contest
the application for eviction before the Rent Control Court unless he pays to
the landlord or deposits with the Rent Control Court, 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.
12. In the instant case, by the impugned order dated 08.04.2021,
the Rent Control Court directed the tenant to deposit in court the admitted
arrears of rent amounting to Rs.4,06,100/-. The Rent Control Court passed
O.P. (RC) No.75 OF 2021
that order on an interlocutory application filed by the landlords on
05.04.2021 (as per the endorsement made on the docket of Ext.P4
application), without affording the tenant a reasonable time to file his
objections. Such a course adopted by the Rent Control Court is per se
arbitrary and patently illegal. Moreover, an order passed by the Rent
Control Court in an interlocutory application filed under Section 12 of the
Act should be supported by reasons. A cryptic order like the one, which is
impugned in the original petition, virtually makes the supervisory
jurisdiction of this Court under Article 227 of the Constitution of India
nugatory and ineffective. The Rent Control Court committed a manifest
error while issuing the impugned order and the said order is vitiated by
improper exercise of its jurisdiction, warranting interference of this Court
under Article 227 of the Constitution of India.
13. In the above circumstances, we find no reason to sustain the
impugned order dated 08.04.2021 of the Rent Control Court, Chalakkudy,
in I.A.No.1 of 2021 in R.C.P.No.14 of 2020 and accordingly, this original
petition is disposed of setting aside the said order and by directing the
Rent Control Court to reconsider that application, in accordance with law,
after affording the tenant an opportunity to file his objections.
14. The learned counsel for the respondents-landlords would
submit that, as stated in the affidavit filed in support of I.A.No.1 of 2021 in
R.C.P.No.14 of 2020, the arrears of rent comes to more than
O.P. (RC) No.75 OF 2021
Rs.4,00,000/- and as such, a time bound consideration of that
interlocutory application is highly essential. Per contra, the learned counsel
for the petitioner-tenant would submit that the tenant has already denied
the alleged arrears of rent in Ext.P2 reply notice dated 14.10.2020.
15. It is for the tenant to file objections, if any, to I.A.No.1 of 2021
on or before 09.09.2021. Thereafter, the Rent Control Court shall finally
dispose of that interlocutory application, in accordance with law, as
expeditiously as possible, at any rate, within a period of two months from
that date.
No order as to costs.
Sd/-
ANIL K. NARENDRAN
Judge
Sd/-
M.R. ANITHA
MIN Judge
O.P. (RC) No.75 OF 2021
APPENDIX OF O.P.No.(RC)No.75/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE NOTICE DATED 14/9/2020
ISSUED TO THE PETITIONER BY THE LANDLORDS
Exhibit P2 TRUE COPY OF THE REPLY NOTICE DATED
14/10/2020 ISSUED BY THE PETITIONER
Exhibit P3 TRUE COPY OF RC OP 14/20, DATED 13/10/2020
FILED BY THE RESPONDENTS BEFORE THE RENT
CONTROL COURT AT CHALAKUDY.
Exhibit P4 TRUE COPY OF THE IA.1/2021 DATED 3/4/2021
FILED IN RCOP 14/20 PENDING ON THE FILES
OF THE RENT CONTROL COURT AT CHALAKUDY.
Exhibit P5 TRUE COPY OF THE ORDER DATED 8/4/2021 IN
IA 1/2021 IN RCOP.14/20 OF THE RENT
CONTROL COURT AT CHALAKUDY.
