Jayakumar K.V vs K.Ramamoorthi Charitable Trust
2022 Latest Caselaw 3780 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                             &
         THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
  TUESDAY, THE 5TH DAY OF APRIL 2022 / 15TH CHAITHRA, 1944
                   RCREV. NO. 457 OF 2019
  AGAINST THE JUDGMENT DATED 31.08.2019 IN R.C.A.NO.98 OF
 2017 ON THE FILES OF THE RENT CONTROL APPELLATE AUTHORITY
 (ADDITIONAL DISTRICT JUDGE-II), THALASSERY FILED AGAINST
 THE ORDER DATED 28.06.2017 IN R.C.P.NO.227 OF 2016 ON THE
FILES OF THE RENT CONTROL COURT(PRINCIPAL MUNSIFF), KANNUR

REVISION PETITIONER:

         JAYAKUMAR K.V
         AGED 58 YEARS
         S/O.K.V.KORAN, 58 YEARS, RESIDING AT 'DEEPA',
         NEAR KRIPA NURSING HOME, TALAP, KANNUR-2.
         BY ADV.
         ASHWIN SATHYANATH


RESPONDENT:

         K.RAMAMOORTHI CHARITABLE TRUST
         KANNUR REP. BY ITS CHAIRMAN KARAKULANGARA
         VANNADIL SUDHEER KUMAR, S/O.LATE KUNHIRAMA
         PODUVAL, AGED 49 YEARS, RESIDING AT 'LAKSHMI
         PARVATHI', PAYYANNUR AMSOM DESOM, THALIPARAMBA
         TALUK, KANNUR DISTRICT-670 307
         BY ADVS.
         SRI.C.MURALIKRISHNAN (PAYYANUR)
         SRI.ABRAHAM GEORGE JACOB


     THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 24.03.2022, THE COURT ON 05.04.2022 DELIVERED
THE FOLLOWING:
                                  2
R.C.Rev.No.457 of 2019


                             ORDER

Ajithkumar, J.

This revision petition under Section 20 of the Kerala

Buildings (Lease and Rent Control) Act, 1965 was filed by the

respondent-tenant in R.C.P.No.227 of 2016 on the file of the

Rent Control Court (Principal Munsiff), Kannur. In the rent

control petition, the respondent herein-landlord, sought

eviction under Section 11(2)(b), 11(3) and 11(4)(v) of the

Act. The landlord has, in the R.C.P., filed I.A.No.1536 of 2017

under Section 12 of the Act. An order under Section 12(1) of

the Act was passed by the Rent Control Court on 12.4.2017.

The petitioner failed to make payment of the admitted arrears

of rent as directed. The Rent Control Court, holding that the

explanation offered by the petitioner was insufficient, passed

an order under section 12(3) of the Act on 28.06.2017. The

petitioner herein filed R.C.A.No.98 of 2017, but the Appellate

Authority Authority (Additional District Judge-II), Thalassery

did not interfere with that order and dismissed the appeal on

31.08.2019. Feeling aggrieved thereof, this revision has been

R.C.Rev.No.457 of 2019

filed.

2. On 18.12.2019, the revision petition was admitted

and ordered to issue notice to the respondents. Further

proceedings in R.C.P.No.227 of 2016 was stayed initially for a

period of one month on condition that the petitioner should

pay the entire arrears of rent, within a period of two weeks.

Interim order was extended from time to time.

3. Heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the

respondent.

4. I.A.No.711 of 2017 was filed by the respondent

seeking to direct the petitioner-tenant to deposit the entire

admitted arrears of rent and to continue to pay the rent for

the subsequent period. On 12.04.2017, the Rent Control

Court on observing that the petitioner admitted the fact that

rent at the rate of Rs.5,500/- per month has been due since

01.01.2016 directed the petitioner to deposit all such arrears

of rent within a period of four weeks and to continue to pay

rent for the subsequent period within 15 days from the date

R.C.Rev.No.457 of 2019

on which it falls due. The respondent has filed I.A.No.1536 of

2017 alleging that the petitioner failed to comply with the

aforesaid order, and therefore, to stop all further proceedings

in the rent control petition.

5. The petitioner filed an objection to that application

raising two-fold contentions. Firstly, the petitioner has

contended that it is a Government recognised educational

institution, where C-Dit Diploma Courses for the students

belonging to Scheduled Castes and Scheduled Tribes is

offered, and therefore, a petition for eviction under Section 11

of the Act against the petitioner is not maintainable. Secondly,

that the Government did not sanction enough funds enabling

the petitioner to pay the arrears of rent and hence it shall be

absolved from the penal consequences under Section 12(3) of

the Act.

6. The Rent Control Court after hearing both sides,

took the view that the petitioner was not a Government

institution coming under the provisions of Section 11(11)(ii)

so as to get protection from eviction under Section 11 of the

R.C.Rev.No.457 of 2019

Act. In order to reach that finding, the Rent Control Court

placed reliance on the decision in Issac Mathew v.

G.Nirmala [2016 (1) KLT 898]. Holding so, the Rent

Control Court dismissed I.A.No.1536 of 2017 on 28.06.2017

and on the same day, stopped all the further proceedings in

R.C.P.No.227 of 2016, invoking the provisions of Section 12(3)

of the Act. A separate order to that effect in the rent control

petition was also passed on the same day.

7. The learned counsel appearing for the petitioner

would contend that the finding of the Rent Control Court and

also the view taken by the Appellate Authority concurring with

the said finding are not correct or legal, and liable to be

reversed. It is his contention that the Rent Control Court

having found while disposing of I.A.No.1536 of 2017 that the

petitioner is not a Government recognised educational

institution entitling protection from eviction under Section 11

of the Act, a further opportunity should have been afforded to

make payment of the rent in arrears. The learned counsel also

would contend that having the entire arrears of rent been paid

R.C.Rev.No.457 of 2019

during the pendency of the appeal, the Appellate Authority

ought to have set aside the order under Section 12(3) of the

Act.

8. R.C.A.No.98 of 2017 was filed by the petitioner

challenging the orders of the Rent Control Court directing

payment of the admitted arrears of rent and the eventual

order under Section 12(3) of the Act. It is contended by the

petitioner that on discarding the contention of the petitioner

with reference to Section 11(11) of the Act only his obligation

to make payment of the admitted arrears of rent has become

crystallized. It is more important that such an order was

passed not on I.A.No. 711 of 2017, but on a subsequent

application filed by the respondent, ie., I.A.No. 1536 of 2017.

It is contended that, therefore, the order of eviction without

giving another opportunity to pay the arrears of rent is illegal.

The learned counsel, pointing out that the petitioner had

deposited the entire rent in arrears in response to I.A.

No.1308 of 2018 filed under Section 12 of the Act in the

appeal by the respondent, contended that the impugned order

R.C.Rev.No.457 of 2019

is liable to be set aside.

9. The learned counsel appearing for the respondent,

on the other hand, would submit that on default on the part of

the petitioner to make payment of the admitted arrears of

rent, as per order dated 12.04.2017, the consequence under

12(3) was automatic and therefore the order passed by the

rent control court on 28.06.2017 is not liable to be interfered

with. As regards the payment during the pendency of appeal,

it has been submitted that such deposit having been made

only after the order of the Rent Control Court under Section

12(3) of the Act, that order is not liable to be interfered with.

10. 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

R.C.Rev.No.457 of 2019

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 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

R.C.Rev.No.457 of 2019

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.

11. 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

R.C.Rev.No.457 of 2019

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.

12. In Shaji M. v. SNDP Sakhayogam No. 610,

Alappuzha [2020 (2) KHC 574] a Full Bench of this Court

held that, in view of the principle evolved in Narayanan

[2004 (3) KLT 955], 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.

R.C.Rev.No.457 of 2019

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. The interpretation made and the directions

issued in Narayanan is more apt and appropriate to be held,

as a view which can be legally sustained. The opportunity to

be afforded to the tenant to show sufficient cause with respect

to the failure to pay or deposit rent, as directed in Section

12(1) and (2), within the date stipulated, is not an empty

formality. The principles of natural justice would mandate that

the Rent Control Court or the Appellate Authority, as the case

may be, should afford the tenant with such an opportunity.

13. 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

R.C.Rev.No.457 of 2019

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 of 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

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

R.C.Rev.No.457 of 2019

providing reasonable opportunity satisfying the statutory

requirement contained in Section 12(3).

14. 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

R.C.Rev.No.457 of 2019

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

to put the landlord in possession of the building.

15. It is clear from the plain language and also the

legislative intent of Section 12 of the Act that, it is not for the

Rent Control Court or the Appellate Authority, as the case may

be, to pass an order under Section 12(3), stopping further

proceedings and directing the tenant to put the landlord in

possession of the building, once the time limit fixed for

payment or deposit of admitted rent runs out, and the tenant

defaulted payment or deposit of rent in terms of the order

passed under Section 12(1) and (2). Though it is not for the

Rent Control Court or the Appellate Authority, as the case may

be, to issue any separate notice to the tenant to enable him to

R.C.Rev.No.457 of 2019

show sufficient cause for not paying or depositing the

admitted arrears of rent, the Rent Control Court or the

Appellate Authority is not expected to pass an order forthwith,

stopping further proceedings and directing the tenant to put

the landlord in possession of the building, under Section

12(3).

16. Order directing deposit of all admitted arrears of

rent was passed by the Rent control Court on 12.04.2017.

Once the tenant is directed to deposit entire arrears of rent

within the period fixed by the Court and if he fails to pay, and

also to offer any satisfactory explanation, an order under

Section 12(3) of the Act is the necessary consequence. Only

consideration is whether an opportunity for placing an

explanation before the Court was afforded or not. It may be

noted that a second application by the landlord reminding the

Court to invoke section 12(3) of the Act is not required or

contemplated. The law being that, the event that happened

subsequent to the order of the Rent Control Court on

12.4.2017 directing the petitioner to deposit the arrears of

R.C.Rev.No.457 of 2019

rent assumes importance.

17. After passing the order dated 12.4.2017, the

respondent filed I.A.No. 1536 of 2017, again under section 12

of the Act. Of Course, it was filed seeking to pass a default

order under section 12(3) of the Act. Even in the absence of

that application, the Court was obliged to decide whether or

not an order under section 12(3) to be passed. But, when

such an application was filed, it had necessitated to give

another opportunity to the petitioner of being heard. The

petitioner then has filed a statement of objection and

explanation; one of the contentions was that the respondent

being a Government recognised educational institution the

petitioner has exemption from being proceeded for eviction

under section 11 of the Act. Of course, that contention was

negatived by the Rent Control Court. The Appellate Authority

considered in detail the legality of that order and confirmed it

as well. The rule that once the time for deposit of the

admitted arrears of rent is over and the tenant failed to offer

any explanation, resulting in an order stopping further

R.C.Rev.No.457 of 2019

proceedings, any deposit made thereafter will not absolve the

tenant from being evicted.

18. Section 11(11) of the Act reads as follows:

(11) Notwithstanding anything contained in sub-sections (1) to (10), no order for eviction or for putting the landlord in possession shall be passed,-

(i) against any tenant who is engaged in any employment or class of employment notified by the Government as an essential service for the purpose of this sub-section, unless the landlord is himself engaged in any employment or class of employment which has been so notified and the landlord requires the building for his own occupation: or

(ii) in respect of any building which has been let for use as an educational institution, and is actually being used as such, provided that the institution has been recognised by the Government or any authority empowered by them in this behalf, so long as such recognition continues.

As held in Issac Mathew v. G.Nirmala (supra) that

looking at the phraseologies employed in section 11(11)(ii) of

the Act it is clear that the interdiction created thereunder

apply only if the building was let out for use as an educational

institution and the same is being used as such and the

R.C.Rev.No.457 of 2019

educational institution has been recognised by the

Government or any other authority empowered thereunder.

19. The petitioner-tenant did not produce any

document to show that the the institution which claims to be

conducted in the petition schedule building has recognition

from the Government. It is claim that the petitioner has been

conducting C-Dit Diploma Courses for the students belonging

to Scheduled Castes and Scheduled Tribes. In order to get

exemption under Section 11(11) of the Act, it should be

proved that from the very inception and now also, such an

institution is being run in the petition schedule shop room and

it has recognition from the Government. But, absolutely no

evidence is produced to prove that fact. In the light of the

said facts and evidence, the petitioner cannot claim the

benefit of Section 11(11) of the Act. Hence, the contention

was also rightly turned down by the courts below. Both

authorities below concurrently found that petitioner's

institution is not an institution of that kind. We find no reason

to interfere with the findings of the courts below.

R.C.Rev.No.457 of 2019

20. Facts of this case is however peculiar. The

contention raised by the petitioner, in answer to I.A.No.1536

of 2017, which was based on Section 11(11) of the Act is one

touching the very jurisdiction of the Rent Control Court. Had

the contention of the petitioner been accepted, the Rent

Control Petition would have to be dismissed as not

maintainable. Having raised such a legal contention affecting

the maintainability of the Rent Control Petition, the petitioner

would have a reasonable expectation of getting his contention

accepted. The Rent Control Court did not accept, we say

rightly, that contention. But, passing of an order under

Section 12(3) of the Act simultaneous to the order rejecting

that plea of the petitioner, certainly has resulted prejudice to

him. We are of the view that, in the light of the aforesaid

special circumstances, the Rent Control Court after passing

that order, ought to have postponed the matter for a short

period before passing the order under Section 12(3) of the

Act. Since the Rent Control Court did not do so, the impugned

order dated 28.06.2017 has become irregular and is liable to

R.C.Rev.No.457 of 2019

be set aside.

This Revision petition is therefore allowed. The judgment

dated 31.08.2019 in R.C.A No. 98 of 2017 and order of the

Rent Control Court dated 28.06.2017 in R.C.P No.227 of 2016

are set aside. The Rent Control Court will restore R.C.P

No.227 of 2016 on file and proceed in accordance with law. It

is made clear that this order is not a bar for the respondent-

landlord to file a petition under Section 12 of the Act if any

rent is yet in arrears. Rent Control Petition is of the year

2016. Therefore, the Rent Control Court is directed to finally

dispose of R.C.P.No.227 of 2016 as expeditiously as possible,

at any rate, within three months from the date of reopening of

the Civil Courts after summer recess. Parties are directed to

appear before the Rent Control Court on 18.05.2022.

Sd/-

ANIL K.NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE PV