Kerala High Court
V. Sreenivasan vs Salih Industrial Enterprises ... on 31 May, 2022
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 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944
R.C.REV. NO. 83 OF 2022
AGAINST THE JUDGMENT DATED 11.03.2022 IN R.C.A.NO.18 OF
2021 OF THE RENT CONTROL COURT APPELLATE AUTHORITY
(ADDITIONAL DISTRICT JUDGE-III), THIRUVANANTHAPURAM AND
THE ORDER DATED 31.03.2021 IN R.C.P.NO.71 OF 2016 OF THE
RENT CONTROL COURT (ADDITIONAL MUNSIFF),
THIRUVANANTHAPURAM
REVISION PETITIONER/:
V. SREENIVASAN
AGED 60 YEARS, S/O. T. VIJAYAN, PROPRIETOR,
GENTLEMAN, TC.38/1469(1), HOTEL FORT MANOR
BUILDING, POWER HOUSE JUNCTION,
THIRUVANANTHAPURAM - 695 023.
BY ADVS.
M.R.ANANDAKUTTAN
MAHESH ANANDAKUTTAN
M.J.SAJITHA
RESPONDENT:
M/S SALIH INDUSTRIAL ENTERPRISES PVT. LTD.
REPRESENTED BY ITS MANAGING DIRECTOR ANUP
AHAMED, AGED ABOUT 35 YEARS,
S/O. LATE M.S. AHAMED, T.C.38/1469(11),
HOTEL FORT MANOR, POWER HOUSE JUNCTION,
THIRUVANANTHAPURAM - 695 023.
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 31.05.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2
R.C.Rev.No.83 of 2022
ORDER
Anil K. Narendran, J.
The petitioner is the respondent-tenant in R.C.P.No.71 of
2016 on the file of the Rent Control Court (Additional Munsiff),
Thiruvananthapuram, a petition filed by the respondent
herein-landlord under Section 11(3) of the Kerala Buildings
(Lease and Rent Control) Act, 1965, seeking eviction of the
tenant from the petition schedule building. Before the Rent
Control Court, the tenant entered appearance and contested
the matter by filing counter. R.C.P.No.71 of 2016 was tried
Along with connected cases. On the side of the landlord, PW1
and PW2 were examined and Exts.A1 to A40 were marked.
DWs1 to 7 were examined on the side of the tenants and
Exts.B1 to B47(a) were marked. ExtS.C1 to C2 and Exts.X1 to
X6(a) were marked as court exhibits.
2. After considering the pleadings and evidence on
record, the Rent Control Court, by a common order dated
31.03.2021, allowed R.C.P.No.71 of 2016 and connected
matters by granting an order of eviction under Section 11(3)
R.C.Rev.No.83 of 2022
of the Act and the tenants are directed to give vacant
possession of the petition schedule shop rooms to the
landlord, within one month from the date of that order.
3. Challenging the order of eviction granted by the
Rent Control Court in R.C.P.No.71 of 2016, the tenant filed
R.C.A.No.18 of 2021 before the Rent Control Appellate
Authority (Additional District Judge-III), Thiruvananthapuram,
invoking the provisions under Section 18(1)(b) of the Act.
Paragraphs 10 to 12 of that order reads thus:
"10. The learned counsel for the respondent had
insisted on an order of eviction under Section 12(3) of
the BRC Act. Thus, in the absence of any materials to
show that the tenant has sufficient cause for his failure
to make the deposit/payment as per the direction
under Section 12(1) & (2) of the BRC Act, this court is
bound to pass an order under Section 12(3) of the BRC
Act. It is well settled that financial disability of the
tenant cannot be considered as a sufficient cause for
condoning the delay in making the deposit/payment.
11. Indisputably, the time prescribed by the court
under Section 12(2) of the BRC Act and the time
extended by the court as per the directions in the
proviso to sub-section (2) of Section 12 of the BRC Act
have already expired. Hence, considering the above
R.C.Rev.No.83 of 2022
facts, this court does not think that the tenant is
entitled to get further extension of time under Section
148 of the CPC read with Section 23(i) of the BRC Act.
12. Resultant, the following directions are issued
under Section 12(3) of the BRC Act.
(i) All further proceedings in R.C.A.No.18 of 2021 are
stopped; and
(ii) the tenant (the appellant herein) is directed to put
the landlord in possession of the building."
4. Challenging the judgment dated 11.03.2022 of the
Appellate Authority in R.C.A.No.18 of 2021, the petitioner-
tenant is before this Court in this Rent Control Revision,
invoking the provisions under Section 20 of the Act.
5. Heard the learned counsel for the petitioner-tenant.
6. The issue that arises for consideration in the Rent
Control Revision is as to whether any interference is
warranted on the judgment dated 11.03.2022 of the Appellate
Authority in R.C.A.No.18 of 2021, whereby the proceedings in
that appeal stands stopped, invoking the provisions under
Section 12(3) of the Act, and the tenant is directed to to give
vacant possession of the petition schedule building.
7. During the course of arguments, the learned
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counsel for the petitioner would contend that the petitioner-
tenant has already deposited admitted arrears of rent
amounting to Rs.1,77,200/- on 23.05.2022, before the
Execution Court, and as such, the order passed by the
Appellate Authority under Section 12(3) of the Act is liable to
be set aside, thereby giving an opportunity to the tenant to
prosecute R.C.A.No.18 of 2021.
8. 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
R.C.Rev.No.83 of 2022
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
building. As per Section 12(4), when any deposit is made
R.C.Rev.No.83 of 2022
under sub-section (1), the Rent Control Court or the Appellate
Authority, as the case may be, shall cause notice of the
deposit to be served on the landlord in the prescribed manner,
and the amount deposited may, subject to such conditions as
may be prescribed, be withdrawn by the landlord on
application made by him to the Rent Control Court or the
Appellate Authority in that behalf.
9. 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
R.C.Rev.No.83 of 2022
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.
10. 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.
R.C.Rev.No.83 of 2022
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 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 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
R.C.Rev.No.83 of 2022
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 Appellate Authority, as the case may be, shall,
unless the tenant shows sufficient cause to the contrary, stop
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all further proceedings and make an order directing the tenant
to put the landlord in possession of the building.
13. In Pochappan Narayanan v. Gopalan [1990 (2)
KLT 1] a Division Bench of this Court noticed that, Section
12(3) of the Kerala Buildings (Lease and Rent Control) Act
deals with consequences flowing as a result of the failure on
the part of the tenant to pay or deposit admitted rent. When
the tenant fails to pay or deposit the admitted rent, as
provided in Section 12(1) and (2), the Rent Control Court or
the Appellate Authority, as the case may be, will be required
to ask the tenant to show cause why all further proceedings
should not be stopped and an order be made directing the
tenant to put the landlord in possession. When such an
opportunity is afforded to the tenant, the tenant is entitled to
show, if there is sufficient cause, for his failure to pay the
amount or deposit the rent as provided in Section 12(1) and
(2). If the Rent Control Court or the Appellate Authority is
satisfied that there is sufficient cause for not making the
payment or deposit of the rent within time, it will not make
R.C.Rev.No.83 of 2022
any order stopping further proceedings and directing the
tenant to put the landlord in possession. If, however, the Rent
Control Court or the Appellate Authority is not satisfied about
the cause shown, an order has to be made stopping all further
proceedings and directing the tenant to put the landlord in
possession.
14. In Pochappan Narayanan the Division Bench held
that, before the consequences contemplated by Section 12(3)
of the Act can ensue, the conditions specified in Section 12(1)
and (2) have to be satisfied. It is therefore clear that, before
any steps can be taken under Section 12(3) for making an
order against the tenant who has committed default in paying
or making the deposit as contemplated by Section 12(1), the
procedure prescribed by Section 12(2) has to be satisfied. A
tenant who does not fulfill the obligations imposed on him by
Section 12(1) cannot be visited with the penal consequences
contemplated by Section 12(3), unless all the conditions
specified by Section 12(2) are satisfactorily fulfilled. Even
after the court acts in accordance with Section 12(2) and the
R.C.Rev.No.83 of 2022
tenant still commits default, the tenant has to be given one
more opportunity of showing cause as to why penal
consequences contemplated by Section 12(3) should not be
imposed on him. It is only when the court is not satisfied with
the cause shown that it can pass an order stopping all further
proceedings and directing the tenant to put the landlord in
possession of the building.
15. In Narayanan v. Vinod [2004 (3) KLT 955] the
order passed by the Rent Control Appellate Authority under
Section 12(3) of the Kerala Buildings (Lease and Rent Control)
Act was assailed before the Division Bench, on the ground
that the petitioner-tenant was not granted time as stipulated
in Section 12(2) to deposit the arrears of rent and that, he
had not been issued with any notice under Section 12(3) to
show sufficient cause for not depositing the rent and,
therefore, the order directing eviction of the tenant is contrary
to the provisions of Section 12. The Division Bench noticed
that, the provisions of Section 12 of the Act are mandatory
and no tenant against whom an application for eviction has
R.C.Rev.No.83 of 2022
been made by a landlord is entitled to contest the same or to
prefer an appeal under Section 18, against any order passed
by the Rent Control Court, unless he had paid or pays to the
landlord or deposits with the Rent Control Court or with the
Appellate Authority, all arrears of rent admitted by him to be
due in respect of the demised premises up to the date of
payment and continues to pay or deposit the 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. Section 12(3) of the Act then
mandates that if any tenant fails to pay or deposit the rent as
aforesaid, the Rent Control Court or the Appellate Authority
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 demised
premises. In other words, if the admitted rent due is not
deposited during the pendency of the proceedings before the
Rent Control Court or the Appellate Authority, all further
proceedings have to stop and the authority concerned is
R.C.Rev.No.83 of 2022
required to make an order directing the tenant to put the
landlord in vacant possession of the premises, unless the
tenant shows sufficient cause for not depositing that rent.
16. In Narayanan, on the question as to whether the
Rent Control Court or the Appellate Authority, as the case may
be, where admitted rent has not been paid, is required to
issue a separate notice to the tenant to enable him to show
sufficient cause for the default in payment of admitted rent or
is it for the tenant himself to file an application and bring to
the notice of the Rent Control Court or the Appellate Authority
the reasons which prevented him from depositing the rent,
the Division Bench held that, if the admitted arrears of rent
are not deposited within the time fixed by the Rent Control
Court or the Appellate Authority the tenant makes a default
resulting in the penal consequences of his immediate eviction
by stopping all further proceedings. This, however, will not
happen if the tenant is able to show sufficient cause for
making the default in not depositing the admitted rent. From
the language of Section 12(3) of the Act and the legislative
R.C.Rev.No.83 of 2022
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. When the time fixed for the deposit of 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 of ejectment of the
tenant forthwith.
17. In Narayanan the Division Bench held that, the
Rent Control Court or the Appellate Authority, while fixing the
time within which the arrears of rent shall be deposited by the
tenant should normally adjourn the hearing of the case to a
date beyond the date fixed for depositing the rent, thereby
allowing reasonable time to the tenant to show sufficient
cause for not depositing the rent, if he has committed default
in payment. It will then be for the tenant to move an
application before the concerned authority to show sufficient
cause for the non-payment of rent. In other words, the
interval between the date up to which the rent is to be
R.C.Rev.No.83 of 2022
deposited and the date on which the order under Section
12(3) is passed should be reasonable to enable the tenant to
show sufficient cause for committing the default, if he so
chooses. If the tenant moves such an application and points
out the reasons which prevented him from depositing the
arrears of admitted rent, the concerned authority will examine
the issue on merits to find out whether sufficient cause has
been shown or not. If sufficient cause has been shown, the
Rent Control Court or the Appellate Authority will not order
immediate ejectment of the tenant. If no application is filed
by the tenant or if the reasons shown by the tenant are
insufficient, the penal consequences as contemplated in
Section 12(3) of the Act shall follow. Section 12(3) of the Act
is a mandate to the Rent Control Court or the Appellate
Authority to order immediate ejectment of the tenant, if the
tenant does not deposit the admitted arrears of rent, the only
exception being, if he is able to show sufficient cause for not
doing so. In that view of the matter, the Division Bench
concluded that, the Rent Control Court or the Appellate
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Authority, as the case may be, where admitted rent has not
been deposited by the tenant, is not required to issue any
separate notice to the tenant, to enable him to show sufficient
cause for committing the default.
18. 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.
The Rent Control Court or the Appellate Authority, as the case
may be, should normally adjourn the hearing of the case to a
R.C.Rev.No.83 of 2022
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.
19. 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
R.C.Rev.No.83 of 2022
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
providing reasonable opportunity satisfying the statutory
requirement contained in Section 12(3). Hence the Full Bench
R.C.Rev.No.83 of 2022
concluded that the decision in Narayanan [2004 (3) KLT
955], even though passed without noticing the decision in
Pochappan Narayanan [1990 (2) KLT 1] had laid the
correct law. The Full Bench noticed that its view in this regard
has got support from the decision of the Apex Court in
Sankaran Pillai v. V.P. Venuguduswami [(1999) 6 SCC
396], the decisions of this Court in C.V. Xavier v. Francis
Leonard Pappali [1975 KLT 542] and Narayanan v.
Muraleedhara Maran [1964 KLT 509].
20. In Sankaran Pillai v. V.P. Venuguduswami
[(1999) 6 SCC 396] the Apex Court held that, it is for the
tenant to show sufficient cause and not for the Rent Control
Court or the Appellate Authority, as the case may be, to issue
any show cause notice calling upon the tenant to show cause
why an order of eviction shall not be passed.
21. In C.V. Xavier v. Francis Leonard Pappali
[1975 KLT 542] a Division Bench of this Court held that, the
reasonable opportunity contemplated under Section 12(3) of
the Act must be a reasonable and real opportunity and is not
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an empty formality and that, if the tenant is not given such
opportunity to show sufficient cause, an order passed under
Section 12(3) would be unsustainable.
22. In Narayanan v. Muraleedhara Maran [1964
KLT 509] a Division Bench of this Court held that, when the
court had passed an order directing a party before it to do a
particular thing, in default of which certain consequence is to
follow, if the party is to be relieved of the consequences of
any non-compliance of that order, he has to make a specific
motion thereof showing sufficient cause for his non-
compliance of the order and making appropriate prayer
therein. Otherwise the order would work itself out and the
default to comply with it will bring the appointed
consequences on the tenant.
23. As per sub-section (4) of Section 12, when any
deposit is made under sub-section (1), the Rent Control Court
or the Appellate Authority, as the case may be, shall cause
notice of the deposit to be served on the landlord in the
prescribed manner, and the amount deposited may, subject to
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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.
24. In J. Ramkumar [2022 (1) KHC 495], this Court
held that, Section 12 of the Act imposes certain obligations on
the tenant to pay or deposit admitted rent, during the
pendency of the proceedings for eviction under Section 11,
before the Rent Control Court, and also the proceedings in an
appeal filed under Section 18, before the Appellate Authority,
against such an order of eviction. Section 12(3) of the Act
also provides for the consequences, which were to follow, for
committing default in fulfilling those obligations. Section 12(3)
of the Act deals with the consequences flowing as a result of
the failure of the part of the tenant to pay or deposit admitted
rent. Before the consequences under Section 12(3) can
ensue, the conditions specified in Section 12(1) and (2) have
to be satisfied. Section 12(3) mandates that if any tenant fails
to pay or deposit the admitted rent as provided under Section
12(1) and (2), the Rent Control Court or the Appellate
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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. Therefore, if the Rent Control
Court or the Appellate Authority, as the case may be, is
satisfied about the cause shown by the tenant, it will not
make any order under Section 12(3) of the Act, stopping
further proceedings and directing the tenant to put the
landlord in possession of the building.
25. 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
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be, to issue any separate notice to the tenant to enable him to
show sufficient cause for not paying or depositing the
admitted arrears of rent, as held by the Division Bench in
Narayanan [2004 (3) KLT 955] and approved by the Full
Bench in Shaji M. [2020 (2) KHC 574], 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).
26. Before passing an order under Section 12(3) of the
Act, 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 payment or deposit of
admitted rent, thereby allowing reasonable time to the tenant
to show sufficient cause for not paying or depositing the
admitted rent, if he has committed default in payment of the
same, within the time limit stipulated in the order passed
under Section 12(1) and (2). Such an opportunity to be
afforded to the tenant to show sufficient cause is not an
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empty formality. The principles of natural justice would
mandate that the Rent Control Court or the Appellate
Authority should afford such an opportunity to the tenant
before passing an order under Section 12(3).
27. In J. Ramkumar [2022 (1) KHC 495], this Court
held that, 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 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. 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 payment or deposit of admitted
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rent, 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. As held by the Full Bench in Shaji
M. [2020 (2) KHC 574], such a procedure, if followed,
would be sufficient compliance for providing reasonable
opportunity satisfying the statutory requirement contained in
Section 12(3) of the Act.
28. In Venugopalan v. Raphael [1974 KLT 640] the
Division Bench of this Court was dealing with a case in which
the landlord filed Rent Control Petition under Section 11(2)(b)
of the Act claiming eviction of the petition schedule building
on the ground of arrears of rent. The Rent Control Court
passed an order directing the tenant to pay admitted arrears
of rent on or before the 20.09.1971. In the said order it was
made clear that, on default of deposit within the specified
R.C.Rev.No.83 of 2022
period, an order for possession under Section 12(3) of the
Act, will be passed. The order under Section 12(1) and (2)
was not complied with, despite the fact that time for payment
was extended. Therefore, the Rent Control Court passed an
order for possession under Section 12(3) of the Act, which
was dated 25.10.1971. Within thirty days of the said order,
the tenant filed I.A. No. 4143 of 1971 to receive what was
claimed to be the admitted arrears; and I.A. No. 4142 of 1971
to set aside the order for possession passed under Section
12(3) of the Act on 25.10.1971. The Rent Control Court
dismissed I.A. No. 4142 of 1971 holding that an order under
Section 12(3) cannot be set aside or vacated on the mere
ground that the admitted arrears of rent had been deposited
subsequent to the order. It declined to receive the arrears of
rent tendered along with the I.A. No. 4143 of 1971, and
accordingly dismissed the same. The appeals preferred by the
tenant under Section 18(1)(b) of the Act against those orders
were dismissed by the Rent Control Appellate Authority. On
further revision, the revisional court, namely the District
R.C.Rev.No.83 of 2022
Court, Trichur, allowed the revision and set aside the orders of
the Rent Control Court and of the Appellate Authority and
remanded I.A. Nos. 4142 of 1971 and 4143 of 1971 back to
the Rent Control Court for fresh disposal directing that the
time for making deposit of the arrears of rent, will be
extended by the Rent Control Court. Feeling aggrieved
landlord preferred revision petition before this Court.
29. In Venugopalan the Division Bench noticed that,
under Section 11(2)(c) of the Act a tenant, against whom a
decree for eviction has been passed by the Rent Control Court
on the ground that rent had been kept in arrears, is allowed
relief against the forfeiture of tenancy incurred by non-
payment of rent, by depositing the arrears of rent decreed,
within a certain period. In Kurien v. Saramma Chacko
[1964 KLT 1] it was held that the power under Section 11(2)
(c) can be exercised by the Appellate Authority and also by
the Revisional Authority. Section 12 of the Act provides for a
totally different contingency. The deposit of the admitted
arrears enjoined by Section 12, is a condition precedent to the
R.C.Rev.No.83 of 2022
tenant entering on his defence and contesting the application
for eviction, or an appeal filed therefrom. The scope and
purpose of the deposit of arrears of rent enjoined by Section
12 is fundamentally different from the scope and the purpose
of the deposit envisaged by Section 11(2)(c) of the Act. In
K.P. Mohammed v. Madhavi Amma [1963 KLT 688] the
Division Bench held that, Section 11 and Section 12 of the Act
are not dependent on each other. They provide for different
contingencies though the consequence of the non compliance
of the mandates of either Section is eviction. An order of
eviction passed under Section 12(3) of the Act is not
amenable to correction under Section 11(2)(c), which relates
to orders of eviction passed under Section 11(2)(b) only. In
T.B. Mohanan v. Kanakaraja Pillai [1970 KLT 1024] a
learned Judge of this Court held that an order passed under
Section 12 of the Act, cannot be reopened or vacated by
tendering the rent subsequent to the passing of the said
order. In Venugopalan, the Division Bench held that, even
assuming that for purpose of execution an order under
R.C.Rev.No.83 of 2022
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 can not be
vacated or obliterated by payment at any subsequent stages
or periods.
30. In Venugopalan it was argued before the Division
Bench that Section 12(3) of the Act is discriminatory and
violative of Article 14 of the Constitution of India. The Division
Bench observed that, the scope and the purpose of Section
11(2)(c) and Section 12 are fundamentally different. The one
is meant to relieve against forfeiture, and the other, as a
condition precedent to be performed by the tenant before
entering on his defence. The law itself does not encourage or
put a premium on dishonesty, although those inclined to be
dishonest may make use of its provisions to suit their
purpose. Therefore, the Division Bench repelled the
contention of the tenant that Section 12(3) of the Act is
discriminatory.
R.C.Rev.No.83 of 2022
31. In Davy v. Indu [1999 (3) KLT 434] a Division
Bench of this Court reiterated that Section 11 and Section 12
of the Act operate in different fields and circumstances. The
compliance of these mandatory provisions will lead to eviction
of the tenant. But an order of eviction once passed under
Section 12(3) cannot be undone by resorting to Section 11(2)
(c) of the Act. Section 11(2)(c) of the Act relates to orders of
eviction passed under Section 11(2) only. Therefore, Section
11 and 12 of the Act are not dependent on each other.
32. In Nasiruddin v. Sita Ram Agarwal [(2003) 2
SCC 577] the question as to the applicability of Section 5 of
the Limitation Act, 1963, in the matter of default in deposit of
rent as also interpretation of the word 'shall' occurring in
Section 13(4) of the Rajasthan Premises (Control of Rent and
Eviction) Act, 1950, came up for consideration before a Three-
Judge Bench of the Apex. Section 13(1)(a) of the Act enables
a landlord to sue for a decree of eviction in the event a tenant
has neither paid nor tendered the amount of rent due from
him for six months. In terms of Section 13(3), which was
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substituted by Section 8(i) of Rajasthan Act 14 of 1976, it is
obligatory on the court to provisionally determine the amount
of rent wherefor no application is required to be filed. As per
Section 13(4) of the Act, the tenant shall deposit in court or
pay to the landlord the amount determined by the court under
Section 13(3) within fifteen days from the date of such
determination, or within such further time, not exceeding
three months, as may be extended by the court. The tenant
shall also continue to deposit in court or pay to the landlord,
month by month, the monthly rent subsequent to the period
up to which determination has been made, by the fifteenth of
each succeeding month or within such further time not
exceeding fifteen days, as may be extended by the court, at
the monthly rate at which the rent was determined by the
court under Section 13(3). Under Section 13(5), if a tenant
fails to deposit or pay any amount referred to in Section 13
(4), on the date or within the time specified therein, the court
shall order the defence against eviction to be struck out and
shall proceed with the hearing of the suit.
R.C.Rev.No.83 of 2022
33. In Nasiruddin the Apex Court held that, a bare
perusal of the aforementioned provisions would show that in
terms of Section 13(4), a tenant is required to deposit the
amount of rent determined by the court under Section 13(3)
within fifteen days of the date of determination or within such
further time not exceeding three months, as may be extended
by the court. By reason of the 1976 Amendment, the
following was specifically inserted:
"within such further time, not exceeding three
months as may be extended by the court" or the
words "or within such further time, not exceeding
fifteen days, as may be extended by the court, at
the monthly rate at which the rent was determined
by the court under sub-section (3)"
The word "shall", which is ordinarily imperative in nature, has
been used in Section 13(4). The power of the court has also
been limited to the extent that it can extend time for such
deposit not exceeding three months and so far as the deposit
of monthly rent is concerned, by fifteen days. The court's
power, therefore, is restricted. In case the tenant deposits the
R.C.Rev.No.83 of 2022
provisional rent as determined by the court within the
stipulated period the tenant is relieved by the eviction decree.
34. In Nasiruddin the Apex Court noticed that, Section
13(1) of the M.P. Accommodation Control Act, 1961 dealt with in
the decision in Shyamcharan Sharma v. Dharamdas [(1980)
2 SCC 151] the court has been conferred power to extend the
time for deposit of rent to any such further time, as it may, on an
application made to it, allow in this behalf. The power of the
court under the M.P. Act Act is not restricted. However, discretion
available to the court under the Rajasthan Premises (Control of
Rent and Eviction) Act is limited. Furthermore, in Section 13(6)
of the M.P. Act, the word "may" has been used which is directory;
in contradistinction with the word "shall" employed in the
Rajasthan Act. The M.P. Act provides for the power of the court to
extend the time in the event sufficient cause therefor is shown
which is absent in the Rajasthan Act. Furthermore, in terms
thereof once the rent has been determined, the same has to be
deposited within the prescribed period wherefor there exists no
provision for filing an application. Wherever the special Act
R.C.Rev.No.83 of 2022
provides for extension of time or condonation of default, the
court possesses the power therefor, but 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. In that view of the matter it must
be held that in absence of such provisions in the Rajasthan
Premises (Control of Rent and Eviction) Act, the court did not
have the power to either extend the period to deposit the rent or
to condone the default in depositing the rent.
35. In Nasiruddin the Apex Court observed that, it is
true that the Rajasthan Premises (Control of Rent and
Eviction) Act does not expressly exclude the application of the
Limitation Act, 1963. But Section 5 of the Limitation Act in its
terms is not applicable to wherever there is a default in
depositing the rent by the tenant. The provisions of Section 5
of the Limitation Act must be construed having regard to
Section 3 thereof. For filing an application after the expiry of
the period prescribed under the Limitation Act or any other
special statute, a cause of action must arise. Compliance with
R.C.Rev.No.83 of 2022
an order passed by a court of law in terms of a statutory
provision does not give rise to a cause of action. On failure to
comply with an order passed by a court of law, instant
consequences are provided for under the statute. The court
can condone the default only when the statute confers such a
power on the court and not otherwise. In that view of the
matter the Apex Court held that Section 5 of the Limitation
Act has no application in the case on hand.
36. In J. Ramkumar [2022 (1) KHC 495], this Court
concluded that, 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. As held by a Division Bench in
Venugopalan [1974 KLT 640] and reiterated in Davy
[1999 (3) KLT 434] 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
R.C.Rev.No.83 of 2022
Section 12(3) for failure to deposit the admitted arrears in
time can not 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) 2
SCC 577] 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.
37. The judgment of this Court in J. Ramkumar
[2022 (1) KHC 495] was under challenge before the Apex
Court in SLP(C)No.18301 of 2021. After having heard the
learned counsel for the parties, the Apex Court was not
inclined to interfere with the order of this Court and
accordingly, the special leave petition along with connected
matters were dismissed by the order dated 18.11.2021. The
said order reads thus;
"After having heard the learned counsel for the
parties, we are not inclined to interfere with the
Special Leave Petitions.
Mr.Roy Abraham, learned counsel for the petitioner
R.C.Rev.No.83 of 2022
points out that he deposited a sum of Rs.26,00,000/-
in compliance of order dated 16.04.2019 passed by
this Court. According to him that represented the rent
due as on that day.
According to the petitioner, the amount of
Rs.26,00,000/- represented the amount of admitted
arrears. He, therefore, prays that when this Court is
not accepting the request to set aside the order under
Section 12(3) of the Kerala Buildings (Lease and Rent
Control) Act, 1965 and grant relief otherwise the
Court may direct to return the amount that was
deposited by him. This is objected to Mr.Liju V.
Stephen, learned counsel for the respondent. We
notice that the order was dated 16.04.2019. We
would take the view that the interest of justice would
require that after deducting a sum of Rs.11,10,000/-
which would be the rent due for a period of 30
months from 16.04.2019 the amount remaining,
namely, Rs.14,90,000/- must be returned to the
petitioner. It is accordingly so ordered.
Out of the amount of Rs.26,00,000/-, petitioner is
free to withdraw a sum of Rs.14,90,000/- from the
Rent Control Court. It will be open to the respondent-
landlord to appropriate towards the rent for the period
as already noted the balance amount of
Rs.11,10,000/-. It can be withdrawn by the
respondent-landlord. We leave it open to the landlord-
R.C.Rev.No.83 of 2022
respondent to seek remedies as regards any amount
due towards arrears of rent.
Accordingly, the Special Leave Petitions stands
dismissed.
Pending application(s), if any, stands disposed of."
(underline supplied)
38. In the instant case, in R.C.A.No.18 of 2021, the
landlord filed an interlocutory application, invoking the
provisions under Section 12 of the Act, seeking an order
directing the tenant to pay or deposit admitted arrears of rent
and continue to pay or deposit the rent for the subsequent
period. In that interlocutory application, the Appellate Authority
passed an order under Section 12(1) read with Section 12(2)
of the Act, whereby the tenant was directed to deposit or pay
the entire arrears of rent admitted by him within a period of 30
days from 23.12.2021. He was further directed to deposit or
pay rent, which subsequently became due.
39. The tenant filed I.A.No.4 of 2022 seeking extension
of time by six months for depositing the admitted arrears of
rent. The Appellate Authority granted 30 days time for making
deposit or payment. But the tenant did not comply with that
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direction. The Appellate Authority after hearing the learned
counsel on both sides, dismissed I.A.No.4 of 2022 vide order
dated 08.03.2022. Thereafter, R.C.A.No.18 of 2021 was
posted for giving another opportunity to the tenant to show
cause under Section 12(3) of the Act. But the tenant is not
chosen to avail that opportunity.
40. On 11.03.2022, when R.C.A.No.18 of 2021 came
up for consideration, the learned counsel for the appellant-
tenant sought six months' time to make the deposit. Since the
application for enlargement of time has already been
dismissed on 08.03.2022, the learned counsel for the landlord
insisted for an order under Section 12(3) of the Act. After
considering the materials on record, the Appellate Authority
passed the impugned judgment on 11.03.2022, stopping the
proceedings in R.C.A.No.18 of 2021, invoking its powers
under Section 12(3) of the Act, and the appellant-tenant is
directed to put the landlord vacant possession of the petition
schedule shop room.
41. In view of the law laid down in the decisions
R.C.Rev.No.83 of 2022
referred to supra, conclusion is irresistible that subsequent
deposit of admitted arrears of rent made by the tenant on
23.05.2022 will not enable the Appellate Authority to vacate
or recall the order passed under Section 12(3) of the Act,
whereby the proceedings in R.C.P.No.71 of 2016 and
R.C.A.No.18 of 2021 stand stopped. On the date stipulated for
effecting such payment, by virtue of that order, 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, under Section 12(3) would
follow automatically.
We find no merits in the grounds raised in this Rent
Control Revision and the same is accordingly dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
R.C.Rev.No.83 of 2022
APPENDIX OF RCREV. 83/2022
PETITIONER ANNEXURES
Annexure 1 TRUE COPY OF THE DEMAND DRAFT FOR RS.
1,77,200/- IN FAVOUR OF THE RESPONDENT
DATED 23.05.2022.
Annexure 2 TRUE COPY OF THE MEMO FILED BEFORE THE
PRINCIPAL MUNSIFF COURT IN E.P.NO.268
OF 2021 IN R.C.P. NO.71 OF 2016.
