Issac Mathew vs Jose Francis
2022 Latest Caselaw 7406 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
       THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                            &
        THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
  FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
                 OP (RC) NO. 112 OF 2022
AGAINST THE ORDER DATED 30/03/2022 IN I.A.NO.6 OF 2022 IN
R.C.P.NO.26 OF 2020 OF THE ADDITIONAL RENT CONTROL COURT
                   (MUNSIFF), KOTTAYAM
PETITIONER:

         ISSAC MATHEW, AGED 62 YEARS, SON OF MATHAI,
         THAZHATHU KARIMBUMALIYIL VEEDU, KUDAMALOOR P.O.,
         AYMANAM VILLAGE, KOTTAYAM - 686017.

         BY ADVS.S.EASWARAN
         P.MURALEEDHARAN (IRIMPANAM)
         K.V.RAJESWARI


RESPONDENTS:

         JOSE FRANCIS, S/O.FRANCIS, KAVIYIL KALAPURACKAL
         VEEDU, P.O. KOLANI, KOLANI KARA, THODUPUZHA
         IDUKKI DISTRICT -685605.

         BY ADVS.S. RANJIT S
         GOKUL DAS V.V.H.(K/420-A/2005)


     THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION
ON 24.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                -2-
O.P(RC)No.112 of 2022




                           JUDGMENT

Anil K. Narendran, J.

The petitioner filed R.C.P.No.26 of 2020 on the file of the

Additional Rent Control Court (Munsiff), Kottayam, under

Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and

Rent Control) Act, 1965, seeking eviction of the respondent-

tenant from the petition schedule building bearing door No.33

having an area of 3,000 sq.feet, situated in Re-survey No.462/4

in Ward No.VII in Block No.7 of Aymanam Grama Panchayat,

along with a charth in its front facing Chungam-Medical College

Road. The lease arrangement between the landlord and the

tenant was renewed on 05.02.2020, whereby the monthly rent

of the building was fixed at the rate of Rs.25,000/- per month

till 07.04.2020 and thereafter, at the rate of Rs.26,250/- per

month for the remaining 11 months, i.e., till the expiry of the

period of agreement, which is marked as Ext.P1. A copy of the

Rent Control Petition is marked as Ext.P2 and the objection filed

by the tenant is marked as Ext.P3. In the said objection, the

entrustment of the petition schedule building, on the strength

of the lease agreement dated 05.02.2020 and also the rate of

rent agreed in the said document are admitted. In addition to

this the fact that the tenant has defaulted payment of monthly

O.P(RC)No.112 of 2022

rent in terms of the lease agreement dated 05.02.2020 is also

not in dispute. However, in the said objection, the tenant raised

certain contentions to avoid his contractual liability to pay

monthly rent at the rate agreed in the lease agreement dated

05.02.2020.

2. In R.C.P.No.26 of 2020, the landlord filed Ext.P4

interlocutory application, i.e., I.A.No.4 of 2021 under Section 12

of the Act, seeking an order directing the tenant to deposit the

arrears of rent, as stated in that application. In that

interlocutory application, the Rent Control Court passed an

order dated 02.12.2021, which is extracted in paragraph 10 of

the original petition. The said order reads thus;

"Petitioner represented. Counter petitioner represented. For paying admitted arrears of rent".

3. The above order passed by the Rent Control Court,

in purported exercise of its powers under Section 12(1) of the

Act read with Section 12(2) was followed by an order dated

03.01.2022, which reads thus;

"Petitioner represented. CP represented. For paying admitted arrears (No further time)".

After passing such an order, the Rent Control Court posted the

matter on 17.01.2022 for payment. On that date, the Rent

Control Court passed the following order;

O.P(RC)No.112 of 2022

"Petitioner represented. CP represented. Admitting arrear did not pay [sic: Admitted arrears not paid]. No application filed for extending the time for payment. Defendant set ex-parte. For evidence".

3. The case was thereafter listed on 04.02.2022. The

tenant filed Ext.P8 interlocutory application, i.e., I.A.No.5 of

2022 seeking an order to set aside the aforesaid order dated

17.01.2022. The landlord filed Ext.P9 objection to Ext.P8

interlocutory application. The tenant has also filed Ext.P10

interlocutory application, i.e., I.A.No.6 of 2022, seeking review

of the order dated 02.12.2021 of the Rent control Court, issued

in purported exercise of the powers under Section 12(1) of the

Act read with Section 12(2). The landlord filed Ext.P11 objection

in I.A.No.6 of 2022.

4. After considering the rival contentions, the Rent

Control Court, by Ext.P12 order dated 30.03.2022, allowed

I.A.No.6 of 2022, whereby setting aside the order dated

02.12.2021 whereby the tenant was directed to pay admitted

arrears of rent. Consequently, the order dated 17.01.2022 of

the Rent Control Court, whereby the tenant was set ex-parte, is

also set aside.

5. Feeling aggrieved by Ext.P12 order dated 30.03.2022

of the Rent Control Court in I.A.No.6 of 2022 in R.C.P.No.26 of

O.P(RC)No.112 of 2022

2020, the petitioner-landlord is before this Court in this original

petition, invoking the supervisory jurisdiction of this Court under

Article 227 of the Constitution of India.

6. On 08.06.2022, when this original petition came up

for admission, this Court issued notice on admission to the

respondent through his counsel before the Additional Rent

Control Court, Kottayam, where R.C.P.No.26 of 2020 is pending

consideration.

7. Heard the learned counsel for the petitioner-landlord

and also the learned counsel for the respondent-tenant.

8. The issue that arises for consideration in this original

petition is as to whether any interference is warranted on

Ext.P12 order dated 30.03.2022 of the Rent Control Court in

I.A.No.6 of 2022 in R.C.P.No.26 of 2020, invoking the

supervisory jurisdiction of this Court under Article 227 of the

Constitution of India.

9. During the course of arguments, the learned counsel

for the petitioner-landlord and also the learned counsel for the

respondent-tenant raised various legal contentions touching the

merits of the matter pending consideration of the Rent Control

Court in R.C.P.No.26 of 2020. We do not propose to consider

those contentions in this original petition. It is for the landlord

O.P(RC)No.112 of 2022

and the tenant to raise all such legal and factual contentions

before the Rent Control Court, at the appropriate stage.

10. The issue that requires consideration in this original

petition is as to whether the procedure followed by the Rent

Control Court, while passing orders on I.A.No.4 of 2021 filed by

the landlord, invoking the provisions under Section 12 of the Act

is in accordance with law.

11. Section 12(1) of the Act enjoins a tenant, against

whom an application for eviction has been made by a landlord

under Section 11, to pay to the landlord, or deposit with the

Rent Control Court, all arrears of rent admitted by the tenant to

be due in respect of the building, up to the date of payment or

deposit, and continue to pay or deposit any rent which may

subsequently become due in respect of the building, until the

termination of the proceedings before the Rent Control Court, in

order to contest that application for eviction before the Rent

Control Court. Similarly, Section 12(1) of the Act enjoins a

tenant, in order to prefer an appeal under Section 18 of the Act

against any order made by the Rent Control Court on an

application made by a landlord under Section 11, to pay the

landlord, or deposits with the Appellate Authority, all arrears of

rent admitted by the tenant to be due in respect of the building

O.P(RC)No.112 of 2022

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.

12. 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 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.

13. 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

O.P(RC)No.112 of 2022

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.

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

O.P(RC)No.112 of 2022

become due in respect of the building, until the termination of

the proceedings before the Rent Control Court or the Appellate

Authority, regardless of the relief sought for in that application.

As per Section 12(3) of the Act, if any tenant fails to pay or to

deposit the rent as aforesaid, the Rent Control Court or the

Appellate Authority, as the case may be, shall, unless the tenant

shows sufficient cause to the contrary, stop all further

proceedings and make an order directing the tenant to put the

landlord in possession of the building.

15. 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

O.P(RC)No.112 of 2022

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.

16. In Shiraz K.V.Binny Emmatty [2022 (3) KHC

227], this Court held that, 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, 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.

On the facts of the case on hand, the Division Bench noticed

that the petitioner-tenant has not chosen to contest the Rent

Control Petition by filing counter. The tenant has not even filed

an application to set aside the order dated 11.02.2021 in

R.C.P.No.97 of 2020, whereby he was set ex-parte. On

04.12.2021, the Rent Control Court recalled the order dated

12.11.2021 in I.A.No.2 of 2021, since the same happened to be

passed in the absence of the tenant. However, the order dated

O.P(RC)No.112 of 2022

12.11.2021 in R.C.P.No.97 of 2020, whereby the tenant was set

ex-parte, was not yet recalled. When the tenant has not chosen

to contest R.C.P.No.97 of 2020 and continues to be ex-parte,

the Rent Control Court committed a manifest error in passing

an order in I.A.No.2 of 2021, invoking the provisions under

Section 12(1) of the Act.

17. In the instant case the order dated 02.12.2021 of

the Rent Control Court, which is extracted hereinbefore at

paragraph 2, whereby the Rent control Petition was ordered to

be listed for payment of admitted arrears of rent, by a cryptic

order, cannot be termed as an order passed by the said court

under Section 12(1) of the Act read with Section 12(2), in view

of the law laid down by this Court in J.Ramkumar [2022 (1)

KHC 495]. By the order dated 17.01.2022 of the Rent Control

Court, the tenant was set ex-parte for non-payment of admitted

arrears of rent or filing application for extending the time for

payment. The said order of the Rent Control Court was also not

in conformity with the procedure contemplated under Section

12 of the Act. In case the tenant has defaulted payment of

admitted arrears of rent in terms of an order passed by the Rent

Control Court, in accordance with the provisions under Section

12(1) read with Section 12(2) of the Act and fails to show

O.P(RC)No.112 of 2022

sufficient cause for such non-payment, he Rent Control Court

has to proceed further, in accordance with the provisions under

Section 12(3) of the Act. The Rent Control Court committed a

manifest error while passing the order dated 17.01.2022,

whereby the tenant was set ex-parte for non-payment of

admitted arrears of rent and also for not filing application for

extending the time for payment.

18. The reasoning of the Rent Control Court in Ext.P12

order dated 30.03.2022, while allowing I.A.No.6 of 2022 in

R.C.P.No.26 of 2020 was that in the petition filed by the landlord

under Section 12 of the Act the tenant filed objection stating

that no arrears of rent is due and therefore, the tenant did not

admit that any amount is to be paid towards arrears of rent.

Section 12 of the Act comes into play when the tenant admits

arrears of rent. The deposit contemplated under Section 12 is

no0t the amount detriment after adjudication, but it is the

amount of rent admitted by the tenant. In support of the said

reasoning the Rent Control Court relied on the judgment of a

learned Single Judge in Celine Sourunny v. Mary Paul

Abravo [1979 KLT 533] and that of another learned Single

Judge in Ali v. Vasudevan [1989 (2) KLT 223].

O.P(RC)No.112 of 2022

19. In Gopala Panicker Baiju and another v. Mallika

[2018 (5) KHC 95] the Division Bench of this Court had

occasion to deal with a case in which the tenants raised a

contention that, no amount was due from them as arrears of

rent. That apart, they had spent more than Rs.3,00,000/- for

renovation of the building and the landlady is liable to adjust the

said amount towards rent. Thus, according to the tenants, there

is no admitted arrears of rent payable under Section 12(1) of

the Kerala Buildings (Lease and Rent Control) Act. Unless the

tenant himself admits in the objection to the petition under

Section 12 of the Act or in the counter statement filed in the

Rent Control Petition that any amount is due to the landlord, as

arrears of rent, there cannot be any admitted arrears of rent. In

short, the contention was that the simple denial of the tenant

would absolve him from the liability to deposit the admitted

arrears under Section 12 of the Act.

20. In Gopala Panicker Baiju the Division Bench held

that, the admitted arrears of rent contemplated under Section

12(1) of the Act need not be an admission in the rent control

proceedings itself and it cannot be insisted that the acceptance

of the arrears or the quantum of admitted arrears of rent should

come by the express words from the tenant himself in his

O.P(RC)No.112 of 2022

counter statement in the Rent Control Petition or in the objection

to the application filed under Section 12 of the Act by the

landlord. But, it can be inferred from any document containing

admission, as to the rate of rent, and period of default made by

the tenant. The relevant factors, from which 'arrears of rent',

can be inferred are the rate of rent and period of default.

Normally, the rent deed executed by the tenant is a document

which contains admission as to the rate of rent made by the

tenant. The periodical enhancement in the rate of rent is evident

from the rent receipts, in case the rent deed is not current.

Similarly, the rent receipts, postal receipts or bank records,

contemplated under Section 9(2) of the Act, produced by the

tenant, are the documents which would suggest the period for

which rent is paid. According to Section 9(1) of the Act, the

tenant is entitled to get receipt on payment of rent and in case

of refusal, an alternative remedy for payment of rent is also

provided in Section 9(2) of the Act. Therefore, a tenant cannot

be heard to say that the landlord refused to issue receipt, on

payment of rent. The rent receipt is a statutorily accepted

substantive evidence from which the period of default can be

inferred indirectly. According to Taylor on evidence, an

admission may be direct or indirect, express or implied.

O.P(RC)No.112 of 2022

Therefore, rent receipts, money order receipts and other bank

records provided under Section 9 of the Act are documents

containing admission which would suggest an inference

indirectly as to the period of default also. The term 'admitted

arrears of rent' has to be understood and construed in

conformity with statutorily recognised payment only. Therefore,

for the determination of a petition under Section 12 of the Act,

it is permissible to require production of rent deed by the

landlord and rent receipt or document mentioned in Section 9(2)

of the Act by the tenant. These materials would obviously show

the admitted arrears of rent, without conducting any enquiry or

adjudication.

21. In Gopala Panicker Baiju the Division Bench

noticed that, any kind of set off or adjustment towards arrears

of rent cannot be accepted, while considering an application

under Section 12 of the Act, as such counter claims require

enquiry and adjudication. Neither Section 11(2)(b) nor Section

12 of the Act recognises or permits any kind of set off,

adjustment or counter claim by the tenant towards arrears of

rent or admitted arrears. The enabling provision which permits

set off towards rent is Section 17(2) of the Act and the same is

permissible, where an order to that effect is passed by the

O.P(RC)No.112 of 2022

Accommodation Controller, on satisfaction of the failure on the

landlord to attend to maintenance and necessary repairs of the

building.

22. In Gopala Panicker Baiju the Division Bench

concluded that the admitted arrears is an amount that can be

quantified by the Rent Control Court from the rent deed

produced by the landlord and the receipts or documents

specified under Section 9 of the Act, evidencing payment of rent,

produced by the tenants, unless the rent deed contains anything

to the contrary. To sum up, the tenant cannot be allowed to

wriggle out from the statutory liability, under Section 12 of the

Act, by a blank denial in his counter statement or objection to

the application filed under Section 12 of the Act, where the rent

deed and receipts would quantify an amount, as admitted

arrears of rent, from the admissions therein; but otherwise, the

determination empowered with the Rent Control Court

contemplated under Section 12(1) of the Act would come to an

end, on a bare denial of the tenant and thereby the purpose of

Section 12 of the Act itself would be defeated.

23. In Nandanam Tiles and Sanitaries (P) Ltd. V.

Abdul Gafoor [2022 (4) KHC 201] this Court held that in a

proceedings under Section 12 of the Act, a tenant cannot be

O.P(RC)No.112 of 2022

allowed to wriggle out from the statutory liability by making a

blank denial. A blank denial in the counter statement or

objection to the application filed under Section 12 of the Act that

no amount is payable towards arrears of rent is not at all

sufficient.

24. Viewed in the light of the law laid down in the

decisions referred to supra, the conclusion of the Rent Control

Court in paragraph 9 of Ext.P12 order on the applicability of the

provisions under Section 12 of the Act runs contrary to the very

object of the said provision, which deals with payment of

admitted arrears by the tenant, during the pendency of eviction

proceedings before the Rent Control Court or the Appellate

Authority. Though no interference is warranted on Ext.P12 order

dated 30.03.2022 in I.A.No.6 of 2022 in R.C.P.No.26 of 2020,

to the extent of allowing that interlocutory application by setting

aside the order dated 02.12.2021 and the consequential order

dated 17.01.2022, the conclusion of the Rent control Court in

paragraph 9 of the said order dated 30.03.2022 on the

applicability of the provisions under Section 12 of the Act is set

aside.

In the result, this original petition is disposed of by

directing Additional Rent Control Court (Munsiff), Kottayam, to

O.P(RC)No.112 of 2022

reconsider Ext.P7 interlocutory application, i.e., I.A.No.4 of

2021 in R.C.P.No.26 of 2020 filed by the landlord under Section

12 of the Act strictly in accordance with law, taking note of the

law laid down by this Court in the decisions referred to supra.

Both parties shall appear before the Rent Control Court on

11.07.2022. The Rent Control Court shall pass appropriate

orders on the said interlocutory application, as expeditiously as

possible, at any rate, within a period of two months from the

date of production of a certified copy of this judgment.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE

AV/27/6

O.P(RC)No.112 of 2022

APPENDIX OF OP (RC) 112/2022

PETITIONER EXHIBITS

Exhibit P1 COPY THE RENT AGREEMENT DATED 5.2.2020 BETWEEN THE PETITIONER AND RESPONDENT

ExhibitP2 COPY OF RCP NO 26 OF 2020 ON THE FILES OF ADDITIONAL RENT CONTROL COURT KOTTAYAM

ExhibitP3 COPY OF THE OBJECTION FILED BY THE RESPONDENT IN RCP 26 OF 2020 ON THE FILES OF THE ADDITIONAL RENT CONTROLLER KOTTAYAM

Exhibit4 COPY OF THE PLAINT IN OS NO 218 OF 2020 ON THE FILES OF MUNSIFF'S COURT KOTTAYAM

Exhibit P5 COPY OF THE COMMISSIONERS REPORT IN OS NO 218 OF 2020 ON THE FILES OF MUNSIFFS COURT KOTTAYAM

Exhibit P6 COPY OF THE COMMISSIONERS REPORT IN RCP 26 OF 2020 ON THE FILE OF ADDITIONAL RENT CONTROLLER KOTTAYAM

ExhibitP7 COPY OF IA NO 4 OF 2021 IN RCP 26 OF 2020 ON THE FILES OF ADDITIONAL RENT CONTROLLER KOTTAYAM

ExhibitP 8 COPY OF IA NO 5 OF 2022 IN RCP 26 OF 2020 ON THE FILES OF ADDITIONAL RENT CONTROLLER KOTTAYAM

Exhibit P9 COPY OF THE OBJECTIONS SUBMITTED BY PETITIONER TO IA 5 OF 2022 IN RCP 26 OF 2020 ON THE FILES OF ADDITIONAL RENT CONTROLLER KOTTAYAM

Exhibit10 COPY IA NO 6 OF 2022 IN RCP 26 OF 2020 ON THE FILES OF RENT CONTROLLER KOTTAYAM

Exhibit P11 COPY OF THE OBJECTIONS FILED BY PETITIONER TO IA 6 OF 2022 ON THE

O.P(RC)No.112 of 2022

FILES OF ADDITIONAL RENT CONTROLLER KOTTAYAM

Exhibit P12 COPY OF THE ORDER DATED 30.3.2022 IN IA NO 6 OF 2022 IN RCP 26 OF 2020 ON THE FILES OF ADDITIONAL RENT CONTROLLER KOTTAYAM