Family Optics vs Agro Manures And Chemicals ...
2021 Latest Caselaw 19523 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
           THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                 &
          THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
    FRIDAY, THE 17TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943
                     RCREV. NO. 169 OF 2020
  AGAINST THE JUDGMENT DTD 13.01.2020 IN R.C.A.No.77 of 2019 OF
  RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT), ERNAKULAM,
 ARISING OUT OF THE ORDER DTD. 14.10.2019 IN I.A.NO.4278 OF 2019
   IN R.C.P.NO.16 OF 2019 OF THE RENT CONTROL COURT (ADDITIONAL
                     MUNSIFF-III), ERAKULAM.
REVISION PETITIONERS/APPELLANTS/RESPONDENTS:

    1     M/S.FAMILY OPTICS,
          DOOR NO.XXXII/637 T, CUSAT JUNCTION, KALAMASSERRY,
          KOCHI - 682 033.,
          REPRESENTED BY ITS MANAGING PARTNER -
          MR. GEORGE JOSEPH.
    2     GEORGE JOSEPH
          S/O. GEEVARGHESE JOSEPH, VAYALIRAKATHU,
          ANGADICAL SOUTH P. O., KODUMON,
          PATHANAMTHITTA DISTRICT - 691 555.
    3     DIN RAJ LAXMAN
          AGED 51 YEARS
          S/O. T. L. LAXMAN, M/S. FAMILY OPTICS,
          DOOR NO.XXXII/637 T, CUSAT JUNCTION,
          KALAMASSERRY, KOCHI - 682033.,
          (RESIDING AT DOOR NO.8D, ASSET HOMES,
          URBAN CRESCENT, MAMANGALAM, ERNAKULAM).
          BY ADV SRI. V.PHILIP MATHEWS


RESPONDENT/RESPONDENT/PETITIONER:

          M/S. AGRO MANURES AND CHEMICALS (INDIA) PVT LTD,
          PUTTUMANOOR, PUTHENCRUZ, ERNAKULAM - 682 308,
          REPRESENTED BY ITS MANAGING DIRECTOR -
          MR. ANIL KUMAR K. S.
          SRI. BABU KARUKAPADATH
          SRI. PREMCHAND N.

     THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
17.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 R.C.R.No.169 of 2020
                                   2

                                ORDER

Anil K. Narendran, J.

The petitioners who are the respondents-tenants in R.C.P

No.16/2019 on the file of the Rent Control Court (Additional

Munsiff-III), Ernakulam, a petition filed by the respondent herein-

landlord under Sections 11(2)(b) and 11(3) of the Kerala

Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'),

seeking eviction of the tenants from the petition schedule

building. In that Rent Control Petition the landlord filed

I.A.No.4278 of 2019, a petition under Section 12 of the Act

directing the tenants to pay admitted arrears of rent, within a

time frame. In that interlocutory application the Rent Control

Court passed an order on 14.10.2019, invoking its powers under

Sections 12(1) and (2) of the Act. Challenging that order, the

tenants filed R.C.A No.77 of 2019 before the Rent Control

Appellate Authority (Principal District Judge), Ernakulam, invoking

the provisions under Section 18(1)(b) of the Act. That appeal

stands dismissed by the impugned judgment dated 13.01.2020,

holding that such an appeal is not maintainable, in view of the law

laid down by a Division Bench of this Court in Sidharthan v.

Hassankutty Haji [1994 (2) KLT 419]. Feeling aggrieved by R.C.R.No.169 of 2020

the judgment of the Appellate Authority, the tenants are before

this Court in this revision filed under Section 20 of the Act.

2. On 30.09.2020, when this revision came up for

admission, this Court admitted the matter on file and issued

notice to the respondent.

3. Heard Sri.V.Philip Mathews, the learned counsel for the

petitioners-tenants and Sri.Babu Karukapadath, the learned

counsel appearing for the respondent-landlord.

4. The issue that arises for consideration in this revision

is as to whether any interference is warranted on the impugned

judgment dated 13.01.2020 of the Rent Control Appellate

Authority in R.C.A No.77 of 2019, in exercise of the revisional

jurisdiction of this Court under Section 20 of the Act.

5. 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 R.C.R.No.169 of 2020

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.

6. 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.

7. 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 R.C.R.No.169 of 2020

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 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.

8. 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, R.C.R.No.169 of 2020

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 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.

9. 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.

10. The liability of a tenant under sub-section (1) of

Section 12 of the Act, against whom an application for eviction R.C.R.No.169 of 2020

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 deposit of rent which

subsequently accrues due shall not be less than that specified in

the proviso to sub-section (2) of Section 12.

R.C.R.No.169 of 2020

11. 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

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.

R.C.R.No.169 of 2020

12. 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.

13. 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

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 R.C.R.No.169 of 2020

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.

14. 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 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 R.C.R.No.169 of 2020

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 12(1) and 12(2) and their application to different sets of cases...."

15. 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 R.C.R.No.169 of 2020

aforesaid decision. Therefore, the impugned order is liable to be

set aside.

16. 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 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.

R.C.R.No.169 of 2020

17. 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 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. R.C.R.No.169 of 2020

18. 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 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.

R.C.R.No.169 of 2020

19. 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 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.

20. 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 R.C.R.No.169 of 2020

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 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].

R.C.R.No.169 of 2020

21. Viewed in the light of the law laid down by the Divison

Bench of this Court in Sidharthan, R.C.A.No.77 of 2019 filed by

the petitioners-tenants under Section 18(1)(b) of the Act,

challenging the order dated 14.10.2019 of the Rent Control Court,

Ernakulam, in I.A No.4278 of 2019 in R.C.P No.16 of 2019, which

is an order passed in exercise of its jurisdiction under 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.77 of

2019, by the impugned judgment dated 13.01.2020, 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.

22. In such circumstances, this Rent Control Revision fails

and the same is accordingly dismissed.

R.C.R.No.169 of 2020

23. The learned counsel for the petitioners-tenants would

submit that the tenants propose to challenge the order dated

14.10.2019 of the Rent Control Court in I.A.No.4278 of 2019 in

R.C.P.No.16 of 2019 by filing an original petition under Article 227

of the Constitution of India.

It is made clear that, the dismissal of this Rent Control

Revision will not stand in the way of the tenants challenging the

aforesaid order of the Rent Control Court, by filing original

petition under Article 227 of the Constitution of India, seeking

interference to the extent permissible in exercise of the

supervisory jurisdiction of this Court.

No order as to costs.

Sd/-

ANIL K. NARENDRAN JUDGE

Sd/-

MOHAMMED NIAS C.P JUDGE

SPR