Kerala High Court
M.R.Martin vs M.R.Rajendran Nair on 9 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 9TH DAY OF SEPTEMBER 2021 / 18TH BHADRA,
1943
RCREV. NO. 100 OF 2021
AGAINST THE JUDGMENT DATED 23.03.2021 IN R.C.A.NO.10/2021
OF RENT CONTROL APPELLATE AUTHORITY (I ADDITIONAL
DISTRICT JUDGE), ERNAKULAM, ARISING OUT OF ORDER DATED
11.02.2021 OF THE RENT CONTROL COURT IN I.A.No.2 OF 2020
IN R.C.P.No.83 of 2020 OF THE RENT CONTROL COURT
(ADDITIONAL MUNSIFF COURT -III), ERNAKULAM.
REVISION PETITIONER/APPELLANT/2ND RESPONDENT:
M.R.MARTIN, AGED 57 YEARS
S/O.RAPHEAL MICHEAL, MOOKO MURI, MUNDANVELI
KARA, KOCHI, ERNAKULAM
BY ADVS.
V.S.BABU GIREESAN
DR.SREEKANTAN NAIR
RESPONDENT/RESPONDENTS/PETITIONER & 1ST RESPONDENT:
1 M.R.RAJENDRAN NAIR
AGED 74 YEARS
S/O.LATE MADHAVAN PILLAI, RESIDING AT 8A,
NEDUNGADAN RESIDENCY, ST. BENEDICT ROAD, COCHIN,
682018
-2-
RCREV. NO. 100 OF 2021
2 M.K.RAJAN
AGED 67 YEARS
S/O.KONNA MEERA HANEEFA, DD TUDOUR VILLA NO. 9,
VADUTHALA PAADAM ROAD, CHERANELLUR VILLAGE,
KANAYANNUR TALUK, ERNAKULAM - 683 544
BY ADVS.
M.R.HARIRAJ
THANUJA ROSHAN
VISWAJITH C.K
GANGA A.SANKAR
CHACKOCHEN VITHAYATHIL
GISHA G. RAJ
REJIVUE
VISHNU RAJAGOPAL
MEERA RAMESH
ALINA ANNA KOSE
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 09.09.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
-3-
RCREV. NO. 100 OF 2021
ORDER
Anil K.Narendran, J.
The petitioner is the 2nd respondent in R.C.P.No.83 of
2020, a Rent Control Petition filed by the 1st respondent-
landlord before the Rent Control Court (III Additional Munsiff
Court), Ernakulam, under Sections 11(2)(b) and 11(4)(i) of the
Kerala Buildings (Lease and Rent Control) Act, 1965
(hereinafter referred to as 'the Act' for short) seeking eviction of
the the 2nd respondent herein-tenant and also the petitioner
herein-sub-tenant from the petition schedule building. The
landlord filed I.A.No.2 of 2020 in R.C.P.No.83 of 2020, an
application under Section 12(1) of the Act seeking an order
directing the tenant to pay admitted arrears of rent amounting
to Rs.19,71,750/- till the date of that application. The tenant
and the sub-tenant contested that application by filing separate
counter affidavits, raising various contentions. The Rent Control
Court by the order dated 11.02.2021 allowed I.A.No.2 of 2020
and directed the tenant to remit the arrears of rent amounting
to Rs.19,71,750/-, within 30 days from the date of that order
and continue to remit rent, which may subsequently become
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due, within 15 days from the due date, till termination of the
proceedings. The landlord was found entitled to get the costs of
the petition from the respondents.
2. Challenging the order dated 11.02.2021 of the Rent
Control Court in I.A.No.2 of 2020 in R.C.P.No.83 of 2020, the
sub-tenant filed R.C.A.No.10 of 2021 before the Rent Control
Appellate Authority (Additional District Judge-I), Ernakulam,
invoking the provisions under Section 18(1)(b) of the Act. That
appeal ended in dismissal by the impugned judgment dated
23.03.2021 in R.C.A.No.10 of 2021 (wrongly titled as order), on
the ground that it is not maintainable under Section 18(1)(b) of
the Act. Feeling aggrieved, the petitioner is before this Court in
this Rent Control Revision filed under Section 20 of the Act.
3. On 09.08.2021, when this revision came up for
admission, this Court issued urgent notice on admission to the
respondents by speed post, returnable by 02.09.2021. In
I.A.No.1 of 2021, this Court granted an interim stay of
operation of all further proceedings pursuant to the order dated
11.02.2021 in I.A.No.2 of 2020 in R.C.P.No.83 of 2020 of the
Rent Control Court, Ernakulam, for a period of one month. The
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said interim order is still in force.
4. The 1st respondent-landlord filed counter affidavit
opposing the reliefs sought for in this revision. The 1 st
respondent has also filed I.A.No.2 of 2021, seeking an order to
vacate the interim order granted by this Court dated
09.08.2021 in I.A.No.1 of 2021 and also I.A.No.3 of 2021
seeking an order to accept Annexures R1(A) to R1(I) as
additional documents. The petitioner has filed reply affidavit,
reiterating the contentions raised in the revision.
5. Heard the learned counsel for the petitioner-sub-
tenant and also the learned counsel for the 1 st respondent-
landlord. Service of notice is not complete on the 2 nd
respondent.
6. The issue that arises for consideration in this revision
is as to whether any interference is warranted under Section 20
of the Act, on the impugned judgment dated 23.03.2021 of the
Rent Control Appellate Authority, in R.C.A.No.10 of 2021
(wrongly titled as order), dismissing the said appeal field by the
sub-tenant as not maintainable under Section 18(1)(b) of the
Act.
RCREV. NO. 100 OF 2021
7. Though the learned counsel for the petitioner-sub-
tenant and also the learned counsel for the 1 st respondent-
landlord have raised various contentions touching the merits of
the matter, we do not propose to go into those contentions,
since the Rent Control Appellate Authority dismissed
R.C.A.No.10 of 2021 only on the question of maintainability
under Section 18(1)(b) of the Act.
8. Section 18 of the Kerala Buildings (Lease and Rent
Control) Act deals with appeal. As per Section 18(1)(a) of the
Act, the Government may, by general or special order notified in
the Gazette, confer on such officers and authorities not below
the rank of a Subordinate Judge the powers of appellate
authorities for the purposes of this Act in such areas or in such
classes of cases as may be specified in the order. As per Section
18(1)(b) of the Act, any person aggrieved by an order passed
by the Rent Control Court may, within thirty days from the date
of such order, prefer an appeal in writing to the Appellate
Authority having jurisdiction. In computing the thirty days
aforesaid, the time taken to obtain a certified copy of the order
appealed against shall be excluded.
RCREV. NO. 100 OF 2021
9. Section 20 of the Act deals with revision. As per
Section 20(1) of the Act, in cases where the Appellate Authority
empowered under Section 18 is a Subordinate Judge, the
District Court, and in other cases the High Court may, at any
time, on the application of any aggrieved party, call for and
examine the records relating to any order passed or
proceedings taken under this Act by such authority for the
purpose of satisfying itself as to the legality, regularity or
propriety of such order or proceedings, and may pass such
order in reference thereto as it thinks fit.
10. Section 12 of the 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
RCREV. NO. 100 OF 2021
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 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.
11. 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
RCREV. NO. 100 OF 2021
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 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.
12. 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.
13. The liability of a tenant under sub-section (1) of
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Section 12 of the Act, against whom an application for eviction
has been 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. 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. Sub-section (2) of Section 12 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
RCREV. NO. 100 OF 2021
deposit of rent which subsequently accrues due shall not be less
than that specified in the proviso to sub-section (2) of Section
12.
14. In Sidharthan v. Hassankutty Haji [1994 (2)
KLT 419] a Division Bench of this Court was dealing with a
case in 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. 4010 of 1989, for an order under Section 12(3) of the
Kerala Buildings (Lease and Rent Control) 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.
That order was challenged before the Rent Control Appellate
Authority. By the order dated 31.05.1990 the Appellate
RCREV. NO. 100 OF 2021
Authority dismissed the petition on account of the failure of the
appellants-tenants to comply with the requirement under
Section 12(2) of the Act. Hence the tenants filed revision before
this Court under Section 20 of the Act.
15. In Sidharthan, the Division Bench noticed that,
Section 18(l)(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.
16. In Pochappan Narayanan v. Gopalan [1990 (2)
KLT 1] a Division Bench held that 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. A tenant who does not fulfil the
obligations imposed on him by Section 12(1) cannot be visited
RCREV. NO. 100 OF 2021
with the penal consequences contemplated by Section 12(3)
unless all the conditions specified by Section 12(2) are
satisfactorily fulfilled. The Division Bench observed that the
tenant has to be given one more opportunity by showing cause
as to why penal consequence contemplated by Section 12(3)
should not be imposed on him even after the court acts in
accordance with Section 12(2) and the tenant still commits
default. It is only when the court is not satisfied with the cause
shown that it can pass an order stopping all further proceedings
and directing the tenant to put the landlord in possession of the
building.
17. In Pochappan Narayanan, the Division Bench
quoted with approval the following observations of another
Division Bench in the context of Section 12 of the Kerala
Buildings (Lease and Rent Control) Act, in C.V. Xavier and
others v. Francis Leonard Pappali [1975 KLT 542];
"9....... It is difficult to read Section 12(3) independent of
Section 12(2). It is true that Section 12(1) restricts the
right of the tenant against whom an application for
eviction has been made under Section 11 to contest the
application before the Rent Control Court or to prefer
RCREV. NO. 100 OF 2021
appeal unless he had paid or pays to the landlord or
deposits in the Rent Control Court or before the Appellate
Authority the admitted arrears. It is evident from Section
12(2) that the deposit contemplated under Section 12(1)
has to be in accordance with Section12(2), which means
that it has to be made only in the manner provided under
Section 12(2). Hence the deposit the tenant has to make
under Section 12(1) has to be within the time to be fixed
by an order under Section 12(2). Even if he has been in
default he does not lose the right to contest the
application until and unless an order under Section 12(2)
is passed and without sufficient cause the tenant fails to
comply with it. We have already indicated that this is a
safeguard given to a tenant which is necessary in the
circumstances of the case. For, if even non-payment of
recurring rent without anything more would be sufficient
to stop further proceedings and pass an order for eviction
it would mean that in every case where a tenant has
omitted to pay or delayed payment even by a day not only
the arrears of rent due but also the recurring payment he
would lose his right to contest the application and would
have to receive an order for eviction. The rigor of the
provision with regard to an order for eviction without
contest has been considerably softened by the safeguards
in Section 12(2), as we have said earlier and therefore it is
only on the passing of order under Section 12(2) that the
obligation to comply with it and the consequences of non-
compliance attracting Section 12(3) would arise. We
cannot conceive of independent obligations under Sections
RCREV. NO. 100 OF 2021
12(1) and 12(2) and their application to different sets of
cases...."
18. 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 the
presentation of the appeal. The Appellate Authority has not
followed the procedure contemplated under Section 12(2) of
the Act, as explained in the aforesaid decision. Therefore, the
impugned order is liable to be set aside.
19. Thereafter, in Sidharthan, the Division Bench
considered the question whether the appeal should be
remanded to the Appellate Authority for consideration on
merits. The Division Bench was not inclined to adopt that course
since it was of the view that the appeal was even otherwise not
maintainable. What is challenged in appeal is an interlocutory
order in the Rent Control Petition, which itself cannot be said to
have determined the rights of parties finally nor can it be said
that it affects some right or liability of any party. The Rent
RCREV. NO. 100 OF 2021
Control Court has only directed the tenant to pay the arrears of
rent or to show-cause why further proceedings should not be
stopped and the landlord put in possession of the building. It is
up to the tenant either to pay the arrears or to show-cause why
an order directing the tenant to put the landlord in possession
should not be passed. Instead of either paying the arrears or
showing cause, the tenant has rushed to the Appellate Authority
challenging that order. Section 18 of the Act does not permit the
tenant to challenge such an order in appeal.
20. In Central Bank of India v. Gokal Chand [AIR
1967 SC 799] the Apex Court held that even an interlocutory
order passed under Section 37(2) of the Delhi Rent Control Act,
1958, is an order passed under that Act and is subject to
appeal, provided it affects some right or liability of any party.
The Apex Court observed that the object of Section 38(1) of the
Act was to give a right of appeal to a party aggrieved by some
order which affects his right or liability. In the context of Section
38(1) the words "every order of the Controller made under this
Act" though very wide, do not include interlocutory orders which
are merely procedural and do not affect the rights or liabilities
RCREV. NO. 100 OF 2021
of the parties. The Apex Court further observed that all
interlocutory orders regarding summoning of witnesses,
discovery, production and inspection of documents, issue of
commission for examination of witness, inspection of premises,
fixing the date of hearing and the admissibility of a document or
the relevancy of a question are steps taken towards the final
adjudication and for assisting the parties in the prosecution of
their case in the pending proceedings. It was held that these
orders regulate the procedure only and do not affect any right
or liability of the parties.
21. In Thomas John v. Kochammini Amma [1991
(1) KLT 99], interpreting the provision contained in Section 18
of the Kerala Buildings (Lease and Rent Control) Act and
applying the principles laid down by the Apex Court in Gokal
Chand, a Division Bench of this Court held that, an order
passed on an application to set aside the report of the
commissioner and to appoint a fresh commissioner is only a
procedural one and does not affect the rights of any party. The
matter was again considered in Sumathi v. Devaran [1991
(1) KLT 453], wherein it was held that an order of refusal to
RCREV. NO. 100 OF 2021
try and decide a particular point as a preliminary issue is not an
order affecting the rights of any party and is not appealable.
After a survey of various judicial pronouncements this Court
held that, a conspectus of those decisions leads to the
conclusion that, though Section 18(1)(b) is wide in its terms, an
appeal does not lie unless the order in question is finally
disposing of the proceedings or is one which affects the rights
or liabilities of the parties. Apart from the final orders, only
those orders which virtually put an end to the proceedings or
make it practically impossible for the affected party to get
effective relief or to set up or substantiate a defence are
rendered appealable.
22. In Sidharthan, the Division Bench agreed with the
observations in Thomas John and concluded that, viewed in
the light of the principles stated above the appeal before the
Rent Control Appellate Authority was not maintainable. The
appeal was directed against a procedural order, which only
directed the tenant to pay the arrears of rent or to show cause
why an order under Section 12(3) should not be passed
directing the tenant to put the landlord in possession. It is not a
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final order nor does the order affect any right or liability of any
party. The Division Bench held that the dismissal of the appeal
by the Rent Control Appellate Authority was therefore proper
and accordingly, the Division Bench sustained the same, though
for different reasons.
23. In Sidharthan, on the facts of that case, the Division
Bench observed that the tenants were able to postpone
payment of considerable amount towards arrears of rent on
account of frivolous appeal filed by them. The order of the Rent
Control Court was dated 20.01.1990, about 4½ years back.
Though the tenants paid some amounts during the pendency of
the revision, in pursuance of the order of the Division Bench,
there was considerable amount of arrears even after such
payments. The Division Bench found that since the direction of
the Rent Control Court has not been complied with and even
before such compliance the tenants had challenged that order,
the only course open is to direct the Rent Control Court to
proceed from the stage at which the order dated 20.01.1990
was passed. Therefore, an opportunity has to be given to the
tenant to pay or deposit the admitted arrears of rent or to show
RCREV. NO. 100 OF 2021
cause why proceedings should not be stopped and the landlord
be put in possession of the building. For the aforesaid reasons,
the Division Bench dismissed the revision revision. At the same
the Divison Bench directed the Rent Control Court to afford an
opportunity to the tenants to pay or deposit the admitted
arrears of rent or to show cause why further proceedings should
not be stopped and the tenants directed to put the landlord in
possession of the building. The Divison Bench has made it clear
that while doing so, the direction should be to deposit all the
admitted arrears upto the date of that order, excluding the
amounts paid during the pendency of the proceedings and that
the Rent Control Court shall follow the procedure contemplated
in Section 12 of the Act and the principles laid down by this
Court in Pochappan Narayanan [1990 (2) KLT 1].
24. Viewed in the light of the law laid down by the
Divison Bench of this Court in Sidharthan, R.C.A.No.10 of 2021
filed by the petitioner-sub-tenant under Section 18(1)(b) of the
Act, challenging the order dated 11.02.2021 of the Rent Control
Court, Ernakulam, in I.A No.2 of 2020 in R.C.P No.83 of 2020,
which is an order passed in exercise of its jurisdiction under
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Sections 12(1) and 12(2) of the Act, is not appealable under
Section 18(1)(b) of Act. In such circumstances, the Rent
Control Appellate Authority cannot be found fault with in
rejecting R.C.A.No.10 of 2021, by the impugned judgment
dated 23.03.2021, holding that such an appeal is not
maintainable under Section 18(1)(b) of the Act. The only
remedy open to a person feeling aggrieved by an order passed
by the Rent Control Court or the Appellate Authority, as the
case may be, in exercise of its powers under Sections 12(1) and
12(2) of the Act, is to challenge that order invoking Article 227
of the Constitution of India, seeking interference to the extent
permissible in exercise of the supervisory jurisdiction of this
Court.
In the result, this Rent Control Revision fails and the same
is accordingly dismissed.
No order as to costs.
Sd/-
ANIL K.NARENDRAN, JUDGE
Sd/-
K. BABU, JUDGE
AV/13/9
