Kerala High Court
Abdul Razak P M vs K.C. Thomas on 9 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
O.P.(RC)NO.111 OF 2022
AGAINST THE ORDER/JUDGMENT IN RCA 57/2021 OF ADDITIONAL
DISTRICT COURT & SESSIONS COURT - VIII, ERNAKULAM / IV
ADDITIONAL MACT, ERNAKULAM
PETITIONER:
ABDUL RAZAK P M, AGED 46 YEARS, MUHAMMADIA
VILLA, PAKYARA, UDUMA, KASARGOD, PIN - 631 319
BY ADV A.ASWATHY
RESPONDENTS:
1 K.C. THOMAS, AGED 61 YEARS, KANICHAI HOUSE,
VYNTHALA DESOM, KALLUR VADAKKUMURI VILLAGE,
MUKUNDAPURAM TALUK, THRISSUR, PIN - 680 741
2 JANCY JOSE, AGED 50 YEARS, KANICHAI HOUSE,
VYNTHALA DESOM, KALLUR VADAKKUMURI VILLAGE,
MUKUNDAPURAM TALUK, THRISSUR, PIN - 680 741
3 SHALY THOMAS, AGED 55 YEARS, VYNTHALA DESOM,
KALLUR VADAKKUMURI VILLAGE, MUKUNDAPURAM TALUK,
THRISSUR, PIN - 680 741
4 JACOB JOSE, AGED 28 YEARS, KANICHAI HOUSE,
VYNTHALA DESOM, KALLUR VADAKKUMURI VILLAGE,
MUKUNDAPURAM TALUK, THRISSUR, PIN - 680 741
5 JOSEPH JOSE, AGED 26 YEARS, KANICHAI HOUSE,
VYNTHALA DESOM, KALLUR VADAKKUMURI VILLAGE,
MUKUNDAPURAM TALUK, THRISSUR, PIN - 680 741
BY ADVS.PHILIP T.VARGHESE
ACHU SUBHA ABRAHAM(K/001758/1999)
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V.T.LITHA(K/278/2006)
K.R.MONISHA(K/915/2013)
THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON
09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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"CR"
JUDGMENT
Anil K. Narendran, J
The petitioner is the respondent-tenant in R.C.P. No.211 of
2019 on the file of the Rent Control Court (Additional Munsiff-
III), Ernakulam, a petition filed by the respondents herein-
landlords (five among the eight co-owners), seeking eviction of
the tenant from the petition schedule building, which is in the
occupation of the tenant, on the strength of a lease deed dated
01.11.2017, on a monthly rent of Rs.3,50,000/-, for a period of
11 months, with provision for enhancement. As per clause (4) of
the lease deed, the monthly rent has to be apportioned among
the eight co-owners in the ratio mentioned therein. R.C.P. No.211
of 2019 is one filed under Sections 5(1) and 11(2)(b) of the
Kerala Buildings (Lease and Rent Control) Act, 1965 (for brevity
'the Act') for fixation of fair rent and for eviction of the tenant for
arrears of rent.
2. Before the Rent Control Court, the tenant entered
appearance and filed counter in R.C.P. No.211 of 2019. The
landlord filed I.A.No.2 of 2020 in R.C.P. No.211 of 2019 (Ext.P1),
under Section 12 of the Act, seeking an order directing the
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tenant to deposit arrears of rent for the period from 01.01.2018
onwards, at the rate of Rs.3,50,000/- per month, with increase
as provided in the lease deed, and to pay rent for the subsequent
period, during the pendency of that proceedings, within a period
of 15 days from the due date. In I.A.No.2 of 2020, the tenant
filed objections (Ext.P2) raising various contentions. The Rent
Control Court passed Ext.P3 order dated 30.06.2021, under
Section 12(1) of the Act, whereby the tenant was directed to
remit arrears of rent from 01.01.2018 to 30.09.2018, at the rate
of Rs.3,50,000/- per month, and arrears of rent from 01.10.2018
at the rate of Rs.3,85,000/-, within the time limit stipulated in
the order, as provided in Section 12(2) of the Act. The tenant did
not comply with the direction contained in Ext.P3 order. After
considering the show cause statement filed by the tenant, the
Rent Control Court extended for one month, the time stipulated
in Ext.P3 order for depositing the admitted rent. Thereafter, the
Rent Control Court passed Ext.P4 order dated 01.10.2021,
invoking its powers under Section 12(3) of the Act, whereby the
proceedings in R.C.P.No.211 of 2019 stands stopped and the
tenant is directed to put the landlord in the vacant possession of
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the petition schedule building, within a period of one month.
3. The tenant challenged Ext.P4 order by filing
R.C.A.No.57 of 2021 before the Rent Control Appellate Authority
(Additional District Judge-VIII), Ernakulam, invoking the
provisions under Section 18(1)(b) of the Act. The tenant filed
I.A.No.2 of 2021 in R.C.A.No.57 of 2021, seeking an order to
stay the operation and all further proceedings pursuant to Ext.P4
order of the Rent Control Court, during the pendency of that
appeal. The 1st respondent herein filed counter affidavit opposing
the order of stay sought for, by contending that, unless the
appellant-tenant deposits arrears of rent, as ordered by the
Court below, the appeal and the stay petition are not
maintainable. After considering the rival contentions, the
Appellate Authority passed Ext.P5 order dated 11.03.2022,
whereby I.A.No.2 of 2021 in R.C.A.No.57 of 2021 was allowed
and all further proceedings pursuant to Ext.P4 order dated
01.10.2021 of the Rent Control Court in R.C.P.No.211 of 2019 is
stayed, on condition that, the appellant deposits the admitted
arrears of rent as ordered by the court below on or before
07.04.2022 and also continue to pay admitted rent for the future
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months, till the disposal of that appeal. Challenging Ext.P5 order
dated 11.03.2022 of the Rent Control Appellate Authority, the
tenant is before this Court in this original petition, invoking the
supervisory jurisdiction under Article 227 of the Constitution of
India.
4. On 08.06.2022, when this original petition came up
for admission, the learned counsel for the petitioner-tenant
pointed out the listing of the execution petition in R.C.P.No.211 of
2019 before the Munsiff Court, Ernakulam. This Court issued
notice to the respondents through their counsel before the
Munsiff Court, Ernakulam, where the execution petition in
R.C.P.No.211 of 2019 is pending consideration, and listed the
matter today for consideration. Today, when this matter is taken
up for consideration, Advocate Sri.Philip T. Varghese enters
appearance for the respondents.
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 11.03.2022 of the Rent Control Appellate Authority
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in I.A.No.2 of 2021 in R.C.A.No.57 of 2021, invoking the
supervisory jurisdiction of this Court under Article 227 of the
Constitution.
7. The Rent Control Petition, i.e., R.C.P. No.211 of 2019,
is one filed by the landlords, invoking the provisions under
Sections 5 and 11(2)(b) of the Act. In that Rent Control Petition,
the landlords filed I.A.No.2 of 2020, under Section 12 of the Act,
in which the Rent Control Court passed Ext.P3 order, under
Section 12(1) of the Act, whereby the tenant was directed to
deposit the admitted arrears of rent and also rent for the
subsequent period, during the pendency of the RCP, within the
time limit stipulated in that order, under Section 12(2) of the Act.
The tenant did not comply with the direction contained in Ext.P3
order. After considering the show cause statement filed by the
tenant, the Rent Control Court extended for one month, the time
stipulated in Ext.P3 order. Thereafter, the Rent Control Court
passed Ext.P4 order dated 01.10.2021, invoking its powers under
Section 12(3) of the Act, stopping the proceedings in R.C.P.
No.211 of 2019 and the tenant is directed to put the landlord in
the vacant possession of the petition schedule building, within a
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period of one month. The said order is under challenge in
R.C.A.No.57 of 2021 filed under Section 18(1)(b) of the Act, in
which the Rent Control Appellate Authority passed Ext.P5 order
in I.A.No.2 of 2021, whereby that interlocutory application was
allowed and all further proceedings pursuant to Ext.P4 order
dated 01.10.2021 of the Rent Control Court in R.C.P.No.211 of
2019 was stayed, on condition that, the appellant deposits the
admitted arrears of rent as ordered by the court below on or
before 07.04.2022 and also continue to pay admitted rent for the
future months, till the disposal of that appeal.
8. During the course of arguments, the learned counsel
for the petitioner-tenant contended that, before the Rent Control
Court, the tenant disputed the execution of the lease deed dated
01.11.2017. The learned counsel for the petitioner has handed
over a copy of the said lease deed for a period of 11 months
(from 01.11.2017 to 30.09.2018) for the perusal of this Court.
The said lease deed bears the signature of the petitioner-tenant,
which is similar to his signature affixed in the vakalath filed
before this Court, which is dated 17.05.2022.
9. Another contention raised by the learned counsel for
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the petitioner-tenant is that, in terms of the lease deed dated
01.11.2017, the tenant has already made a security deposit of
Rs.21,00,000/-, which ought to have been adjusted against the
admitted arrears of rent, before the Rent Control Court passing
an order in R.C.P.No.211 of 2019, under Section 12(3) of the Act.
10. In Nalla Thampy Thera v. Abdulla [2002 (2) KLT
158] the contention raised before the Division Bench, relying on
the decisions of the Apex Court in Modern Hotel, Gudur v. K.
Radhakrishnaiah [AIR 1989 SC 1510] and K. Narasimha
Rao v. T.M. Nasimuddin Ahmed [AIR 1996 SC 1214] was
that the landlord was not justified in not adjusting the advance
amount towards rent arrears. As per the proviso to Section 8(1)
(a) of the Kerala Buildings (Lease and Rent Control) Act, the
tenant is liable to pay only one month's rent, by way of advance.
Therefore, the balance is liable to be adjusted towards rent
arrears. The Division Bench noticed that, in Issac Ninan v.
State of Kerala [1995 (2) KLT 848] the Court has struck
down Sections 5, 6 and 8 of the Kerala Buildings (Lease and Rent
Control) Act in its entirety. Since Section 8 of the Act is not in the
Statute book, it would be open to the tenant and landlord to
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enter into an agreement with regard to the payment of advance.
The Division Bench found that, reliance placed on the above
mentioned decisions of the Apex Court is misplaced. Those are all
cases where there is specific provision in the Andhra Pradesh as
well as Tamil Nadu Rent Control Act, which obliges the landlord to
keep only one month's rent as advance, just like Section 8 of the
Kerala Buildings (Lease and Rent Control) Act. However, as far as
Kerala Rent Control Act is concerned, Section 8 had already been
struck down.
11. In Santhosh K. Thomas v. Usha Suresh [2013 (1)
KLT 767], before the Division Bench of this Court, relying on the
decision of a learned Single Judge of this Court in Pathumma
Beevi v. Lonappan [1985 KLT 705], the learned counsel for
the petitioner-tenant argued that the landlord is bound to adjust
the security amount towards the arrears of rent and when there
is a deposit of security amount, tenant cannot be directed to
deposit arrears of rent, before adjusting the security amount,
under Section 12 of the Kerala Buildings (Lease and Rent
Control) Act. The tenant also relied on the decision of the Apex
Court in G. Reghunathan v. K.V. Varghese [(2005) 7 SCC
OP (RC) NO. 111 OF 2022
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317]. In the said decision, relying on Section 8(1) of the Kerala
Buildings (Lease and Rent Control) Act, the Apex Court held that
no landlord is entitled to receive as advance any amount in
excess of one month's rent and if he has accepted or received
any amount in excess of one month's rent, it is liable to be repaid
to the tenant forthwith. The Division Bench held that, when
Section 8(1) of the Act is not in Statute book, as Section 8 was
declared ultra vires by the Division Bench of this Court in Issac
Ninan v. State of Kerala [1995 (2) KLT 848], based on
Section 8(1) of the Act the tenant cannot contend that the
landlords are not entitled to retain the security amount in excess
of one month's rent and therefore, he is not liable to deposit the
arrears of rent as found by Rent Control Court. Though in Edger
Ferus v. Abraham Ittycheria [2004 (1) KLT 767] Section
5(1) out of Section 5, Section 6 and Section 8 which were
declared ultra vires in Issac Ninan was severed and retained in
the Statute, the declaration in Issac Ninan that Section 8 of the
Act is ultra vires is still subsisting. Another Division Bench in
Nalla Thampy Thera v. Abdulla [2002 (2) KLT 158]
considered the said question and held that Section 8 is not in the
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Statute book and based on Section 8(1), a tenant is not entitled
to contend that the landlord is not entitled to retain the advance
in excess of one month's rent. In such circumstances, the
Division Bench repelled the case of the tenant that the Rent
Control Court was not justified in passing an order under Section
12(1) of the Act, when there is deposit of Rs.2,00,000/- as
security.
12. Section 8 of the Act has already been declared ultra
vires by the Division Bench of this Court in Issac Ninan v. State
of Kerala [1995 (2) KLT 848]. When Section 8(1) of the Act is
not in Statute book, as it was declared ultra vires, a tenant is not
entitled to contend that the landlord is not entitled to retain the
advance in excess of one month's rent. Therefore, the contention
of the tenant that, the security deposit made by him, in terms of
the lease deed dated 01.11.2017, which is still with the landlord,
has to be adjusted against the admitted arrears of rent, before
the Rent Control Court passing an order in R.C.P.No.211 of 2019,
under Section 12(3) of the Act, can only be rejected as
untenable, and we do so.
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13. 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 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
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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 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.
14. 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
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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 due in respect
of the building, until the termination of the proceedings before
the Appellate Authority.
15. The liability of a tenant under Section 12(1) of the Act,
against whom an application for eviction has been made by a
landlord under Section 11, or who prefer an appeal under Section
18 of the Act, against any order made by the Rent Control Court
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on an application 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 or the Appellate
Authority, as the case may be.
16. 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.
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17. 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 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
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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.
18. In Pochappan Narayanan v. Gopalan [1990 (2)
KLT 1], one of the contentions put forward by the learned
counsel for the landlord was that, payment or deposit of arrears
of rent admitted by the tenant to be due is a condition precedent
which has to be satisfied by the tenant, before he can prefer an
appeal against an order of eviction made by the Rent Control
Court. Reliance was placed on the language of Section 12(1) of
the Act, which provides that no tenant shall be entitled to prefer
an appeal under Section 18 against an order of eviction made by
the Rent Control Court unless he has paid or deposited all arrears
of rent admitted by the tenant to be due till the date of
preferring the appeal. The Division Bench, found that the right of
appeal against an order of eviction made by the Rent Control
Court is not conferred by Section 12 of the Act. The right of
appeal is conferred by Section 18. Section 12 imposes certain
obligations on the tenant of paying or depositing admitted rent
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during the pendency of the proceedings for eviction, and the
consequences for committing default in fulfilling those
obligations. The word 'prefer' used in Section 12(1) of the Act is
not to convey the same meaning with which it has been
employed in Section 18, which confers a right of appeal against
an order of the Rent Control Court. The word 'prefer' not having
been defined in the Act, it has to be assigned the ordinary
meaning having regard to the context in which the said word is
used. The meaning of the word 'prefer' given in Black's Law
Dictionary, Fifth Edition is "to bring before; to prosecute; to try;
to proceed with". It is therefore clear that the word 'prefer' can
be used in the context of Section 12(1) of the Act, for conveying
the lodging of the appeal or prosecution of the appeal or
proceeding with the appeal. Section 12(3) of the Act, which
speaks of the consequences of the failure to pay or deposit the
rent as contemplated by Sections 12(1) and (2), says that all
further proceedings should be stopped and an order made
directing the tenant to put the landlord in possession of the
building. The consequence contemplated is not dismissal of the
appeal on the ground that it is not maintainable but only to stop
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all further proceedings in the appeal. Therefore, the Division
Bench held that, the word 'prefer' has been used in Section 12(1)
of the Act not to convey the lodging of the appeal but to convey
that the appeal already lodged in accordance with Section 18
shall not be proceeded with or prosecuted further if the
conditions specified in Section 12(1) are not fulfilled. 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 Section 18 of the Act.
19. In order to have recourse to the provisions of Section
12(1) of the Act, it is a pre-requisite that, there should be an
application for eviction made by a landlord under Section 11, or
an appeal filed by the tenant under Section 18 against any order
made by the Rent Control Court on such an application made by
a landlord under Section 11. Without satisfying any one of the
conditions given in Section 12(1), the landlord cannot take
recourse to the provisions of Section 12 of the Act.
20. In Sidharthan v. Hassankutty Haji [1994 (2) KLT
419], the Division Bench of this Court was dealing with a case in
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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.No.4010 of
1989, for an order under Section 12(3) of the 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. The tenant
challenged the order of the Rent Control Court under Section
12(3) of the Act, in an appeal filed before the Rent Control
Appellate Authority under Section 18(1)(b) of the Act. By the
order dated 31.05.1990, the Appellate Authority dismissed the
appeal on account of the failure of the appellants-tenants to
comply with the requirement under Sections 12(1) and (2) of the
Act. Hence the tenants filed revision before this Court under
Section 20 of the Act.
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21. In Sidharthan [1994 (2) KLT 419], the Division
Bench noticed that, Section 18(1)(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. As held by the Division Bench in Pochappan
Narayanan [(1990) 2 KLT 1], 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. 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
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the presentation of the appeal.
22. In Ismail S.P. v. K. Sudhakara Shenoy [2009 (4)
KHC 889], after quoting Section 12 of the Act, a Division Bench
of this Court held that, Sections 12(1) to (3) can strictly apply
only in cases where the original proceeding is for eviction of the
tenant under Section 11. Therefore, the order of eviction granted
by the Rent Control Appellate Authority while dismissing an
appeal filed by the tenant under Section 18 of the Act, thereby
confirming the fair rent fixed by the Rent Control Court, was
clearly beyond the scope of the proceedings under Section 5.
Paragraph 5 of that decision reads thus;
"5. A careful reading of the above quoted provisions will
show that sub-sections (1) to (3) of Section 12 can strictly
apply only in cases where the original proceeding is for
eviction of the tenant under Section 11. It appears to us
that the above fundamental aspect of the matter was
missed by the learned Appellate Authority. The best that the
landlord could have aspired for in the appeal, was a
judgment dismissing the appeal preferred by the revision
petitioner there by confirming the fair rent fixed by the Rent
Control Court. Under the impugned Judgment, the
respondent has been granted not only such a judgment but
an order of eviction also, which was clearly beyond the
scope of proceedings under Section 5."
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23. In Joy Daniel v. N.A. Ibrahimkutty [2020 (2) KHC
543], on the question as to whether Section 12(1) of the Act
casts an obligation on the tenant to pay the admitted arrears of
rent, in order to contest an appeal filed under Section 18(1)(b)
against an order under Section 12(3), which is to the effect of
stoppage of the proceedings and directing the tenant to put the
landlord in possession of the premises, a Full Bench of this Court
held that, Section 12(1) of the Act provides such an obligation
only in the case of an application under Section 11 or in the case
of an appeal preferred under Section 18, against an order passed
by the Rent Control Court on an application under Section 11. As
long as the obligation cast under Section 12(1) is exclusively
confined to an application for eviction filed under Section 11 and
to an appeal filed challenging an order passed on such an
application, the obligation in this regard cannot be extended in
the case of an appeal instituted against an order passed by the
Rent Control Court under Section 12(3).
24. In the instant case, R.C.A.No.57 of 2021 pending
before the Rent Control Appellate Authority is one filed by the
tenant under Section 18(1)(b) of the Act, against Ext.P4 order
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passed by the Rent Control Court in R.C.P.No.211 of 2019, under
Section 12(3) of the Act. The said appeal is one filed under
Section 18(1)(b) of the Act against an order made by the Rent
Control Court on an application made by the landlord under
Section 11. When the obligation cast under Section 12(1) is
exclusively confined to an application for eviction filed under
Section 11 and to an appeal filed challenging an order passed on
such an application, such an obligation cannot be extended for
prosecuting an appeal instituted against an order passed by the
Rent Control Court under Section 12(3) of the Act. The obligation
cast under Section 12(1) of the Act cannot be extended by the
Appellate Authority for consideration of an interlocutory
application for stay filed in such an appeal, for granting stay of
the order passed by the Rent Control Court under Section 12(3)
of the Act. It would be certainly open to the Appellate Authority
to impose any reasonable condition, considering the facts and
circumstances of the case, for granting an order of stay, in case
the appellant-tenant has made out a prima facie case for such an
interim order.
25. By Ext.P5 order in I.A.No.2 of 2021 in R.C.A.No.57 of
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2021, the Rent Control Appellate Authority allowed that
interlocutory application and stayed all further proceedings
pursuant to Ext.P4 order dated 01.10.2021 of the Rent Control
Court in R.C.P.No.211 of 2019, on condition that, the appellant-
tenant deposits the admitted arrears of rent as ordered by the
court below on or before 07.04.2022 and also continue to pay
admitted rent for the future months, till the disposal of that
appeal. When the obligation cast under Section 12(1) is
exclusively confined to an application for eviction filed under
Section 11 and to an appeal filed challenging an order passed on
such an application, such an obligation cannot be extended for
prosecuting an appeal instituted against an order passed by the
Rent Control Court under Section 12(3) of the Act. Therefore, the
Appellate Authority committed a manifest error in extending the
obligation cast under Section 12(1) of the Act, for consideration
of an interlocutory application for stay filed in the appeal, for
granting stay of Ext.P4 order passed by the Rent Control Court
under Section 12(3) of the Act. It is for the Appellate Authority to
impose any reasonable condition, considering the facts and
circumstances of the case, for granting an order of stay, in case
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the appellant-tenant has made out a prima facie case for such an
interim order.
26. In Shalini Shyam Shetty v. Rajendra Shankar
Patil [(2010) 8 SCC 329] the Apex Court, while analysing the
scope and ambit of the power of superintendence under Article
227 of the Constitution, held that the object of superintendence,
both administrative and judicial, is to maintain efficiency, smooth
and orderly functioning of the entire machinery of justice in such
a way as it does not bring it into any disrepute.
27. In K.V.S. Ram v. Bangalore Metropolitan
Transport Corporation [(2015) 12 SCC 39], the Apex Court
held that, in exercise of the power of superintendence under
Article 227 of the Constitution of India, the High Court can
interfere with the order of the court or tribunal only when there
has been a patent perversity in the orders of the tribunal and
courts subordinate to it or where there has been gross and
manifest failure of justice or the basic principles of natural justice
have been flouted.
28. Viewed in the light of the law laid down in the
decisions referred to supra, conclusion is irresistible that, the
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Rent Control Appellate Authority committed a manifest error
while passing Ext.P5 order dated 11.03.2022 in I.A.No.2 of 2021
in R.C.A.No.57 of 2021, which warrants interference of this
Court, in exercise of the supervisory jurisdiction under Article
227 of the Constitution of India.
29. The learned counsel for the respondents-landlords
would point out that the arrears of rent in respect of the petition
schedule building is more than Rs.2,00,00,000/-. The learned
counsel for the petitioner-tenant would submit that, the tenant
shall clear the admitted arrears of rent, in monthly instalments,
for which he requires a reasonable time.
30. We do not propose to consider the said request, in this
proceedings, since the order passed by the Rent Control Court,
which is under challenge in R.C.A.No.57 of 2021 pending before
the Rent Control Appellate Authority is one passed under Section
12(3) of the Act. However, having considered the facts and
circumstances of the case, we deem it appropriate to direct the
petitioner-tenant to remit a sum of Rs.10,00,000/- before the
Rent Control Appellate Authority, within a period of two weeks
from the date of receipt of a copy this judgment, for payment to
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..29..
the landlords. Thereafter, the Appellate Authority shall re-
consider the application for stay, i.e., I.A.No.2 of 2021 in
R.C.A.No.57 of 2021, and pass appropriate orders thereon, as
expeditiously as possible, at any rate, within a period of five
weeks from the date of receipt of a copy this judgment. In case
the appellant-tenant has made out a prima facie case for an
interim stay, the Appellate Authority shall impose any reasonable
condition for granting such an interim order of stay, considering
the facts and circumstances of the case, taking note of the law
laid down in this judgment.
31. In the result, this original petition is allowed by setting
aside Ext.P5 order dated 11.03.2022 of the Rent Control
Appellate Authority in I.A.No.2 of 2021 in R.C.A.No.57 of 2021,
and by directing the Appellate Authority to re-consider that
application for stay and pass appropriate orders thereon, as
directed above. The Appellate Authority shall finally dispose of
R.C.A.No.57 of 2021, as expeditiously as possible, at any rate,
within a period of three months from the date of receipt of a
copy of this judgment.
32. As already noticed hereinbefore, the object of the
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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. In an appeal
filed under Section 18(1)(b) of the Act, against the order passed
by the Rent Control Court under Section 12(3) of the Act, the
legality of the said order alone is under challenge, unlike other
appeals in which the order of eviction granted under Section 11
of the Act is under challenge, which requires re-appreciation of
evidence on record.
33. In Jasbir Singh v. State of Punjab [(2006) 8 SCC
294] the Apex Court held that the power of superintendence
conferred upon the High Court under Article 227 of the
Constitution of India over all courts and Tribunals throughout the
territory of the State is both of administrative and judicial nature
and it could be exercised suo motu also.
34. In Radhey Shyam v. Chhabi Nath [(2015) 5 SCC
423] a Three-Judge Bench of the Apex Court reiterated that
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Article 227 of the Constitution of India can be invoked by the
High Court suo motu as a custodian of justice.
35. Considering the object of the provisions of Section 12
of the Act, in exercise of the supervisory jurisdiction under Article
227 of the Constitution of India, we direct all Rent Control
Appellate Authorities in the State to ensure time bound disposal
of the appeals filed under Section 18(1)(b) of the Act, against an
order passed by the Rent Control Court under Section 12(3) of
the Act. Similarly, we direct all Rent Control Courts/Appellate
Authorities in the State to ensure time bound disposal of the
applications filed under Section 12 of the Act, in pending Rent
Control Petitions/Rent Control Appeals.
Registrar (District Judiciary) shall communicate a soft copy
of this judgment to all Rent Control Courts/Appellate Authorities
in the State, without any delay.
Sd/-
ANIL K. NARENDRAN
JUDGE
Sd/-
P.G. AJITHKUMAR
JUDGE
PR
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APPENDIX OF OP (RC) 111/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF I.A. 2/2020 FILED BY THE
RESPONDENTS BEFORE THE HONOURABLE RENT
CONTROL COURT, ERNAKULAM IN RCP 211/2019
Exhibit P2 TRUE COPY OF THE COUNTER AFFIDAVIT FILED
BY THE PETITIONER IN IA. 2/2020 IN RCP
211/2019 BEFORE THE HONOURABLE RENT
CONTROL COURT, ERNAKULAM
Exhibit P3 TRUE COPY OF THE ORDER DATED 30/06/2021
PASSED BY THE RENT CONTROL COURT,
ERNAKULAM IN IA. 2/2020 IN RCP 211/2019
Exhibit P4 TRUE COPY OF THE ORDER DATED 01/10/2021
PASSED BY THE RENT CONTROLLER IN RCP
211/2019
Exhibit P5 CERTIFIED COPY OF THE ORDER DATED
11/03/2022 PASSED BY THE ADDITIONAL
DISTRICT COURT-VIII, ERNAKULAM IN IA.
2/2021 IN RCA 57/2021
