Kerala High Court
Mohammed Basheer vs Kunhthutty Umma on 11 March, 2022
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 11TH DAY OF MARCH 2022 / 20TH PHALGUNA, 1943
R.C.REV.NO.49 OF 2022
AGAINST THE JUDGMENT DATED 10.12.2021 IN R.C.A.NO.17 OF
2020 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL
DISTRICT JUDGE-II), MANJERI AND THE ORDER DATED 09.06.2020
IN R.C.P.NO.43 OF 2016 OF THE RENT CONTROL COURT (MUNSIFF),
PARAPPANANGADI
REVISION PETITIONER:
MOHAMMED BASHEER
AGED 55 YEARS, S/O ARIMBRATHODI KUNHAHAMMED,
PALLIKAL (PO), PALLIKAL AMSOM, KOONOOLMADU DESOM,
KONDOTTY TALUK, MALAPPURAM DISRICT - 673 634.
BY ADV AASHIQUE AKTHAR HAJJIGOTHI
RESPONDENT:
KUNHTHUTTY UMMA,
AGED 77 YEARS, D/O MANNINGACHALI KOMU HAJI,
W/O AHAMMED, THURAKKAL (PO), KONDOTTY AMSOM,
KOLATHUR DESOM, KONDOTTY TALUK,
MALAPPURAM - 673 638.
BY ADV K.MOHAMMED RAFEEQ (CAVEATOR)
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 11.03.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2
R.C.Rev.No. 49 of 2022
ORDER
Ajithkumar, J.
The respondent filed R.C.P.No.43 of 2016 before the
Rent Control Court (Munsiff), Parappanangadi, seeking
eviction of the petitioner-tenant under Section 11(3) of the
Kerala Buildings (Lease and Rent Control) Act, 1965. In that
rent control petition, the respondent filed I.A.No.1987 of 2019
under Section 12 of the Act. Rent since July 2016 has been
said to be in arrears. An order under Section 12(1) of the Act
was passed directing the petitioner to pay on or before
01.01.2020 the entire admitted arrears of rent and to
continue to pay the rent for the subsequent months within 15
days from the date on which it becomes due. Arrears of rent
was not paid and eventually an order under Section 12(3) of
the Act was passed on 09.06.2020. That order was challenged
by the petitioner before the Rent Control Appellate Authority
(Additional District Judge-II), Manjeri by filing R.C.A.No.17 of
2020 under Section 18(1)(b) of the Act. The appeal was
dismissed on 10.12.2021. Feeling aggrieved thereof, this
R.C.Rev.No. 49 of 2022
revision petition under Section 20 of the Act has been failed.
2. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the
respondent, who had filed Caveat No.23 of 2022.
3. The learned counsel appearing for the petitioner
would contend that the order directing payment of arrears of
rent to a tune of Rs.51,156/- passed on I.A.No.1987 of 2019
was challenged by filing an appeal and having the appeal been
dismissed finding it unmaintainable, the petitioner filed I.A.No.2
of 2020 before the Rent Control Court seeking to recalculate the
amount ordered to be paid. That petition was dismissed on
09.06.2020 and on the same day, without affording a further
opportunity to pay the arrears of rent, the Rent Control Court,
in total negation of the various provisions in Section 12 of the
Act, directed the petitioner to surrender vacant possession of
the petition schedule building within a period of one month. The
learned counsel would submit that by passing the impugned
order on the same day, the right of the petitioner was put to
peril and the said order is violative of the principle laid down by
R.C.Rev.No. 49 of 2022
this Court in Shaji M. v. SNDP Sakha Yogam No.610,
Alappuzha and another [2010 (2) KLJ 574].
4. The learned counsel for the respondent, on the
other hand, would contend that the direction of the Rent
Control Court was to deposit the admitted arrears of rent on
or before 01.01.2020 and as there was no stay obtained from
the Appellate Authority, the petitioner was obliged to pay the
arrears of rent in terms of the said direction. But he failed,
and therefore the impugned order was passed. It is pointed
out that although the direction was to deposit the arrears of
rent on or before 01.01.2020, the time was extended till
23.03.2020 and even thereafter, the matter was adjourned,
which facilitated further time to the petitioner to make
payment and only when he failed to make the payment, the
order dated 09.06.2020 was passed. It is also pointed out
that I.A.No.2 of 2020 was filed for recalculating the arrears of
rent only on the ground of payment of a part of the arrears of
rent, which the Rent Control Court quantified as Rs.51,156/-.
Since there was no dispute regarding the said quantification
R.C.Rev.No. 49 of 2022
and the contention in I.A.No.2 of 2020 being that a part of the
said amount was already paid, the only possible way out was
to invoke Section 12(3) of the Act for, the balance of the
admitted arrears of rent remained unpaid. Accordingly, the
learned counsel for the respondent would submit that there is
absolutely no reason to interfere with the order passed under
Section 12(3) of the Act by the Rent Control Court, which
stands confirmed by the Appellate Authority.
5. 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
R.C.Rev.No. 49 of 2022
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 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
R.C.Rev.No. 49 of 2022
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.
6. 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
R.C.Rev.No. 49 of 2022
building, until the termination of the proceedings before the
Rent Control Court or the Appellate Authority, as the case may
be.
7. 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.
8. In Suvarna v. Ibrahimkutty and others [2021
(6) KHC 250] this Court held in paragraph 32 that 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 12, 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
R.C.Rev.No. 49 of 2022
the termination of the proceedings before the Appellate
Authority. The time fixed by the Appellate Authority 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) of the Act, regardless
of the relief sought for in the application filed by the landlord
under Section 12, the Appellate Authority has to order
payment 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 Appellate Authority. These
stipulations are applicable equally to a proceedings under
Section 11 of the Act before the Rent Control Court.
9. It is submitted by the learned Counsel for the
petitioner that after dismissal of I.A.No.2 of 2020 sufficient
time was not given either to pay the balance arrears of rent or
R.C.Rev.No. 49 of 2022
to show cause thereby the mandatory provisions of section
12(1) and 12(3) are violated. Initial direction under section
12(1) was to deposit the arrears of rent on or before
01.01.2020, but the time was extended till 23.03.2020.
Matter was again adjourned and facilitated further time to the
petitioner to make payment. It was thereafter I.A.No.2 of
2020 was filed for recalculating the arrears of rent. Even on
admitting the case of the petitioner that he paid a part of the
rent arrears, the balance of the arrears of rent as quantified
by the Rent Control Court remained unpaid. Since there was
no dispute regarding the quantification of arrears by the Rent
Control Court, the petitioner cannot have grievance in
invoking section 12(3) of the Act on 9.6.2020.
10. In Shaji M. v. SNDP Sakhayogam No.610,
Alappuzha and Another, 2020 (2) KHC 574 : 2020 (2)
KLT 866 a Full Bench of this Court held that, in view of the
principle evolved in Narayanan [2004 KHC 1238 : 2004
(3) KLT 955] from the language of Section 12(3) of the of
the Kerala Buildings (Lease and Rent Control) Act, and from
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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. 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
R.C.Rev.No. 49 of 2022
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.
11. 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
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
R.C.Rev.No. 49 of 2022
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
providing reasonable opportunity satisfying the statutory
requirement contained in Section 12(3).
12. This Court after surveying all the relevant decisions
on the point held in Ramkumar J. v. Ashok Jacob, 2022
(1) KHC 495 : ILR 2021 (4) Ker. 876, (one among us, Anil
K. Narendran J. authored the decision) as thus,-
'42. As already noticed hereinbefore, the consequences
provided under Section 12(3) of the Act follow when
there occurred a default by the tenant in complying with
the direction in an order passed under Section 12(1)
and (2), for deposit or payment of the admitted arrears
of rent. On the date stipulated for effecting such
payment, by virtue of that order, the tenant becomes
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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, under Section
12(3) would follow automatically.
43. As held by a Division Bench of this Court in
Venugopalan [1974 KHC 143 : 1974 KLT 640] and
reiterated in Davy [1999 KHC 613 : 1999 (3) KLT
434 : 1999 (2) KLJ 879] even assuming that for
purpose of execution an order under Section 12(3) of
the Act can be equated with and treated as the same,
as one under Section 11 of the Act, the consequence
enjoined by an order under Section 12(3) for failure to
deposit the admitted arrears in time cannot be vacated
or obliterated by payment at any subsequent stages or
periods. The law laid down by a Three-Judge Bench of
the Apex Court in Nasiruddin [2003 KHC 864 :
(2003) 2 SCC 577 : AIR 2003 SC 1543] is to the
effect that, where the Statute does not provide either
for extension of time or to condone the default in
depositing the rent within the stipulated period, the
Court does not have the power to do so.'
13. In the light of the principles of law laid down in the
above decisions, we are of the view that there is no reason to
interfere with the findings of the Rent Control Court or the
Appellate Authority. The findings are perfectly legal, regular
R.C.Rev.No. 49 of 2022
and proper. The revision petition fails, and therefore, the
same is dismissed. No order as to costs.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
