Kerala High Court
Abdul Salah Thottungal vs Seagulls' Catch Restaurant ... on 3 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY,THE 3RD DAY OF NOVEMBER 2021/12TH KARTHIKA,1943
O.P(RC) NO. 63 OF 2021
AGAINST THE ORDER DATED 30.03.2021 IN I.A.NOS.8 OF 2020
AND 9 OF 2020 IN R.C.P.NO.144 OF 2019 OF THE RENT CONTROL
COURT (ADDITIONAL MUNSIFF-III), ERNAKULAM
PETITIONER:
ABDUL SALAH THOTTUNGAL
AGED 64 YEARS, S/O.ABOOBACKER THOTTUNGAL,
13/14C, LINK HERITAGE APARTMENT, CHITTOOR ROAD,
OPPOSITE NORTH POLICE STATION, KACHERIPADY,
ERNAKULAM - 682 018 REPRESENTED BY POWER OF
ATTORNEY HOLDER MRS.SAIBA SALAH, AGED 27 YEARS,
D/O.ABDUL SALAH THOTTUNGAL, 13/14 C, LINK
HERITAGE APARTMENT, CHITTOOR ROAD, OPPOSITE
NORTH POLICE STATION, KACHERIPADY,
ERNAKULAM - 682 018.
BY ADVS.
SRI.SHINU J.PILLAI
SMT.S.SUJA
SMT.MARIYA RAJAN
SMT.AISWARYA JAMES
RESPONDENT:
SEAGULLS' CATCH RESTAURANT PRIVATE LIMITED
REGISTERED OFFICE, DOOR NO.80/2, VALIYAVEETIL,
EDAVANAKAD, PIN - 682 502, REPRESENTED BY ITS
MANAGING DIRECTOR, ADBUL AZIZ V.K., AGED 70
YEARS.
THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL
HEARING ON 03.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2
O.P.(RC) No. 63 of 2021
JUDGMENT
Ajithkumar, J.
The petitioner-landlord in R.C.P.No.144 of 2019 on the
files of the Rent Control Court (III Additional Munsiff),
Ernakulam is the petitioner herein. Aggrieved by Exts.P11 and
P12 orders passed by the Rent Control Court, he approached
this Court invoking the supervisory jurisdiction under Article
227 of the Constitution of India.
2. R.C.P.No. 144 of 2019 was filed seeking eviction of
the respondent under Sections 11(2)(b), 11(3) and 11(4)(ii)
of the Kerala Buildings (Lease and Rent Control) Act, 1965.
The respondent entered appearance and filed a counter
statement. Thereafter, the petitioner filed Ext.P3 application,
I.A.No.1 of 2020, before the Rent Control Court under Section
12 of the Act. The respondent did not file any counter/
objection to that petition, instead, sought time by saying that
they would be making payment of the arrears of rent. While
so, on 14.03.2020, the respondent handed over a cheque for
O.P.(RC) No. 63 of 2021
Rs.5 lakhs towards the arrears of rent. According to the
petitioner, at that time, more than Rs.40 lakhs was
outstanding towards arrears of rent. On 03.07.2020, the Rent
Control Court directed the respondent to pay entire arrears of
rent, which was due from February, 2019 onwards, within 30
days and to continue to remit the rent, which may fall due
subsequently within 15 days from the date of due. Ext.P4 is a
copy of the order. Since the respondent failed to make
payment as directed, the Rent Control Court issued a show
cause notice asking the respondent thereto to explain why an
order under Section 12(3) of the Act should not be passed.
The respondent, then filed Ext.P5 application seeking 30 days
more time to make payment of arrears of rent and the court
granted 30 days as per its order dated 25.08.2020, Ext.P6. It
was thereafter the respondent filed I.A.Nos.8 and 9 of 2020.
I.A.No.8 of 2020 was filed seeking to condone delay and
I.A.No.9 of 2020 to allow the respondent to contest I.A.No.1
of 2020. It was in those applications, Exts.P11 and P12 orders
were passed.
O.P.(RC) No. 63 of 2021
3. The respondent is a company. It was reported that
the managing director of the company died after filing this
original petition. As per order dated 10.09.2021, fresh notice
was sent to the respondent by speed post, but the same could
not be served. This Court therefore ordered to take out paper
publication on 07.10.2021, and accordingly, notice on this
petition was published in the Malayala Manorama daily and
the publication has been produced.
4. When the case is taken up today for hearing, none
appeared for the respondent. Heard the learned counsel for
the petitioner.
5. The learned Counsel for the petitioner-landlord
would contend that once the tenant failed to pay admitted
arrears of rent within the time limit specified in the order of
the Rent Control Court issued under Section 12(1) and (2) of
the Act and show sufficient cause for such non-payment, the
Rent Control Court has no option other than to pass an order
of eviction under Section 12(3) of the Act. It is alleged that
the Rent Control Court instead of doing so, entertained
O.P.(RC) No. 63 of 2021
I.A.Nos.8 and 9 of 2020 and passed Ext. P11 and P12 orders
resulting in grave injustice.
6. 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
O.P.(RC) No. 63 of 2021
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 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 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
O.P.(RC) No. 63 of 2021
application made by him to the Rent Control Court or the
Appellate Authority in that behalf.
7. 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 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
O.P.(RC) No. 63 of 2021
due in respect of the building, until the termination of the
proceedings before the Appellate Authority.
8. 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.
9. 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.
O.P.(RC) No. 63 of 2021
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 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
O.P.(RC) No. 63 of 2021
to put the landlord in possession of the building.
10. In Shaji M. v. SNDP Sakhayogam No.610,
Alappuzha and another [2020 (2) KHC 574] a Full Bench
of this Court held that from the language of Section 12(3) of
the of the Kerala Buildings (Lease and Rent Control) Act, and
from the legislative intent, it is not for the Rent Control Court
or the Appellate Authority to issue any separate notice to the
tenant to enable him to show sufficient cause for not
depositing the admitted arrears of rent. Instead, when the
time fixed for deposit of the arrears of rent runs out and the
tenant has not deposited the same, the Rent Control Court or
the Appellate Authority, as the case may be, is not expected
to pass an order ordering ejectment of the tenant forthwith.
The Rent Control Court or the Appellate Authority, as the case
may be, should normally adjourn the hearing of the case to a
date beyond the date fixed for deposit, thereby allowing
reasonable time to the tenant to show sufficient cause for not
depositing the rent, if he has committed default in payment of
the arrears of rent.
O.P.(RC) No. 63 of 2021
11. In Shaji M., on the question as to whether the
Rent Control Court or the Appellate Authority is required to
issue any specific notice to the tenant to show cause, the Full
Bench noticed that, the consequences provided under Section
12(3) of the Act follows when there occurred a default in
complying with the direction for deposit or payment of the
admitted arrears. Therefore, on the date stipulated for
effecting such payment, by virtue of the order passed under
Section 12(1) and (2), the tenant becomes fully aware that,
unless sufficient cause has not been shown for the default
committed, the consequence of stoppage of the proceedings
and direction to put the landlord in possession of the building,
would follow automatically. Therefore, there is no necessity to
alert the tenant by issuing any specific notice in this regard,
calling upon him to show sufficient cause. On the other hand,
providing a further opportunity after the last date stipulated
for effecting the payment or the deposit, is mandatory. If no
sufficient cause is shown within such extended date to which
the rent control petition is posted, it is absolutely within the
O.P.(RC) No. 63 of 2021
authority and competence; and is the natural consequence
that the Rent Control Court or the Appellate Authority, as the
case may be, should stop the proceedings and direct the
tenant to put the landlord in possession of the building. Such
a procedure, if followed, would be sufficient compliance for
providing reasonable opportunity satisfying the statutory
requirement contained in Section 12(3).
12. Once a tenant is called upon to make payment of
the rent in arrears as provided under Section 12(1) of the Act,
it is an obligation to make deposit/payment within the time
fixed and in the manner prescribed by the court. There is no
provision insisting the court to issue a show cause notice after
directing payment within the period prescribed by the court in
terms of Section 12(2). The respondent after obtaining time
more than once to deposit the rent in arrears, came forward
with the application, I.A.No.9 of 2020, for setting aside the
order to deposit saying that he did not get an opportunity to
contest the application filed under Section 12 of the Act. The
respondent filed and the Rent Control Court treated the
O.P.(RC) No. 63 of 2021
application as one under Order IX, Rule 9 of the Code of Civil
Procedure. The Court also considered I.A.No.8 of 2020 to
decide whether there was sufficient cause for condoning the
delay for filing I.A.No.9 of 2020. The court after holding that
in the light of the directions issued by this Court and the
Government from time to time in the wake of the spread of
COVID-19, the delay should be condoned, ordered vide
impugned orders that an opportunity to contest the matter
should be granted to the petitioner.
13. It is not Order IX, Rule 9 of the Code, but it is Rule
13(3) of the Kerala Buildings (Lease and Rent Control) Rules,
1979 which applies. Rule 13(3) reads:
"In any case in which an order is passed ex-parte,
against a tenant or a landlord, the tenant or the landlord,
as the case may be, may within fifteen days from the
date of receipt of the order apply to the Accommodation
Controller or the Rent Control Court, as the case may be,
by whom the order was passed, for an order to set aside,
and if tenant or the landlord satisfies the Accommodation
Controller or the Rent Control Court, as the case may be,
that the summons was not duly served or that he was
prevented by any sufficient cause from appearing when
O.P.(RC) No. 63 of 2021
the application was called on for hearing, the
Accommodation Controller or the Rent Control Court, as
the case may be, shall make such order as it deems fit,
an order passed against the tenant or landlord, as the
case may be, and shall appoint a day for proceeding with
the application.
Provided that no order shall be set aside on any
such application as aforesaid unless notice thereof has
been served on the opposite party".
14. Once notice is given, the tenant is bound to make
payment of the arrears of admitted rent or to explain the
reason for the non-payment. In this case, direction for
payment of arrears of rent was given to the respondent under
Section 12(1) of the Act and he took time for more than one
occasion for making the deposit. A part of the admitted
arrears of rent was deposited in the meantime. The Rent
Control Court never declared the respondent ex parte, nor did
pass any default order. Therefore, the Rent Control Court went
wrong in entertaining an application for condoning the delay
and to set aside ex parte order, which is not in existence. The
Rent Control Court was, in fact, not clothed with jurisdiction to
O.P.(RC) No. 63 of 2021
consider such an application as per the provisions of Rule
13(3) of the Kerala Building (Lease and Rent Control) Rules,
1979.
15. In view of the factual situation and the principle of
law mentioned above Exts.P11 and P12 orders are illegal and
liable to be set aside. We do so. The Rent Control Court will
proceed to decide first the petition under Section 12 of the Act
and then, depending upon the order thereon decide the Rent
Control Petition in accordance with law, untramelled by any of
the observations in this judgment.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
O.P.(RC) No. 63 of 2021
APPENDIX OF OP (RC) 63/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE POWER OF ATTORNEY
DATED 02/03/2021.
Exhibit P2 TRUE COPY OF THE RENT CONTROL PETITION
IN RCP NO.144 OF 2019 FILED ON
05/09/2019.
Exhibit P3 COPY OF THE INTERIM APPLICATION
I.A.NO.1 OF 2020 DATED 06/01/2020.
Exhibit P4 TRUE COPY OF THE ORDER IN I.A.NO.1 OF
2020 DATED 03/07/2020.
Exhibit P5 THE COPY OF THE PETITION IN I.A.NO.5
OF 2020 DATED 03/08/2020.
Exhibit P6 TRUE COPY OF THE ORDER IN I.A.NO.5 OF
2020 DATED 25/08/2020.
Exhibit P7 TRUE COPY OF REPLY AFFIDAVIT SHOW
CAUSE DATED 17/08/2020.
Exhibit P8 TRUE COPY OF THE I.A.NO.8 OF 2021
DATED 16/11/2020.
Exhibit P9 TRUE COPY OF THE I.A.NO.9 OF 2021
DATED 16/11/2020.
Exhibit P10 A COPY OF THE OBJECTION DATED
04/12/2020.
Exhibit P11 TRUE COPY OF THE ORDER IN I.A.NO.8 OF
2020 DATED 30/03/2021.
Exhibit P12 TRUE COPY OF THE ORDER IN I.A.NO.9 OF
2020 DATED 30/03/2021.
O.P.(RC) No. 63 of 2021
Exhibit P13 THE TYPED COPY OF THE ORDER SHEET
TAKEN FROM THE ONLINE WEB PORTAL (E-
COURTS ONLINE PORTAL).
Exhibit P14 THE TRUE PRINTOUT OF THE CASE STATUS
IN CMA (ARB) NO.743 OF 2020.
Exhibit P15 THE COMPLAINT DATED 02/03/2021.
