Kerala High Court
Zeenath Ibrahim vs Joy Daniel on 7 November, 2024
Author: Kauser Edappagath
Bench: A.K.Jayasankaran Nambiar, Kauser Edappagath
RP No.753/2020 in
RCR No.380/2017 &
RCR No.380/2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
RP NO. 753 OF 2020
AGAINST THE ORDER DATED 28/4/2020 IN RCRev. NO.380 OF
2017 OF HIGH COURT OF KERALA
PETITIONERS/ADDL.RESPONDENTS IN RCR:
1 ZEENATH IBRAHIM
AGED 58 YEARS
W/O. LATE N.A IBRAHIMKUTTY, JNARAKKATIL HOUSE,
BISMILLAH MANZIL, ST.MARY'S STREET,
KURIACHIRA P O, THRISSUR - 680006.
2 RAZIL IBRAHIM
AGED 34 YEARS
S/O. LATE N.A IBRAHIMKUTTY, JNARAKKATIL HOUSE,
BISMILLAH MANZIL, ST.MARY'S STREET,
KURIACHIRA P O, THRISSUR - 680006.
RP No.753/2020 in
RCR No.380/2017 &
RCR No.380/2017
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3 NIZIL IBRAHIM
AGED 30 YEARS
S/O. LATE N.A IBRAHIMKUTTY, JNARAKKATIL HOUSE,
BISMILLAH MANZIL, ST.MARY'S STREET,
KURIACHIRA P O, THRISSUR - 680006.
4 SANAM IBRAHIM
AGED 27 YEARS
D/O. LATE N.A IBRAHIMKUTTY, JNARAKKATIL HOUSE,
BISMILLAH MANZIL, ST.MARY'S STREET,
KURIACHIRA P O, THRISSUR - 680006.
BY ADV P.B.KRISHNAN
RESPONDENT/PETITIONER IN RCR:
JOY DANIEL
AGED 62 YEARS
S/O. DANIEL, KANNAMPUZHA, THOTTATHIL LANE,
CHIYYARAM VILLAGE, THRISSUR - 680003.
ADV.SRI.V.K.PEERMOHAMED KHAN
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION
ON 12.09.2024, THE COURT ON 07.11.2024 DELIVERED THE
FOLLOWING:
RP No.753/2020 in
RCR No.380/2017 &
RCR No.380/2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
RCREV. NO. 380 OF 2017
AGAINST THE ORDER DATED 31.08.2015 IN IA NO.15498/2015
IN RCP NO.105 OF 2013 OF RENT CONTROL COURT,THRISSUR
ARISING OUT OF THE JUDGMENT DATED 07.04.2017 IN RCA NO.75
OF 2015 OF IV ADDITIONAL RENT CONTROL APPELLATE AUTHORITY,
THRISSUR
REVISION PETITIONER/APPELLANT/RESPONDENT:
JOY DANIEL
AGED 59 YEARS, S/O. DANIEL, KANNAMPUZHA,
THOTTATHIL LANE, CHIYYARAM VILLAGE, THRISSUR.
BY ADV SRI.V.K.PEERMOHAMED KHAN
RESPONDENT/RESPONDENT/PETITIONER:
*1 N.A.IBRAHIMKUTTY
RP No.753/2020 in
RCR No.380/2017 &
RCR No.380/2017
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S/O. NJARAKKATTIL, ADIMAKUNJU HAJI, KURIACHIRA
DESOM, CHIYYARAM VILLAGE, THRISSUR - 680 001.
(DIED, LEGAL REPRESENTATIVES IMPLEADED)
2 ADDL.R2. ZEENATH IBRAHIM,
W/O. LATE N.A IBRAHIMKUTTY, AGED 56, NJARAKKATTIL
HOUSE, BISMILLAH MANZIL, ST. MARY'S STREET,
KURIACHIRA P O, THRISSUR-680006.
3 ADDL.R3.RAZIL IBRAHIM,
S/O. LATE N.A IBRAHIMKUTTY, AGED 32, NJARAKKATTIL
HOUSE, BISMILLAH MANZIL, ST. MARY'S STREET,
KURIACHIRA P O, THRISSUR-680006.
4 ADDL.R4. NIZIL IBRAHIM
S/O. LATE N.A IBRAHIMKUTTY, AGED 28, NJARAKKATTIL
HOUSE, BISMILLAH MANZIL, ST. MARY'S STREET,
KURIACHIRA P O, THRISSUR-680006.
5 ADDL.R5. SANAM IBRAHIM
D/O. LATE N.A IBRAHIMKUTTY, AGED 25, NJARAKKATTIL
HOUSE, BISMILLAH MANZIL, ST. MARY'S STREET,
KURIACHIRA P O, THRISSUR-680006. (ADDITIONAL R2 TO
R5 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF
THE DECEASED 1ST RESPONDENT VIDE ORDER DATED
21.02.2018 IN IA 386/18.)
BY ADV SRI.P.B.KRISHNAN
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD
ON 12.09.2024, ALONG WITH RP.753/2020, THE COURT ON
07.11.2024 PASSED THE FOLLOWING:
RP No.753/2020 in
RCR No.380/2017 &
RCR No.380/2017
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"C.R."
ORDER
Dr.Kauser Edappagath, J.
Doubting the correctness of the law declared by the three
Division Benches1 of this Court on the question of maintainability
of an application filed under Section 12 (1) of the Kerala Buildings
(Lease and Rent Control) Act, 1965 (for short, the Rent Control
Act) in an appeal preferred against the order passed under
Section 12(3), a Full Bench2 of this Court thought it appropriate to
refer the question to a Larger Bench for an authoritative
pronouncement, and that is how the above review petition has
been placed before us.
Background Facts
2. The facts of the case lie within a very narrow compass.
The landlord filed a Rent Control Petition against his tenant for
eviction under Sections 11(2)(b), 11(3) and 11(4)(v) of the Rent
Control Act before the Rent Control Court, Thrissur as RCP
1 Sulaiman Sahib v. Mohemmed Moosa, (2003 (2) KLT 1058), Mohammed Shameer v. Ashokan (2015 (1)
KLT 396) and City Co-operative Hospital v. Luquman (2017 (3) KLT 1172)
2 Joy Daniel v. Ibrahimkutty {2020 (2) KLT 850 (FB)}
RP No.753/2020 in
RCR No.380/2017 &
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No.105/2013. There is no dispute between the parties regarding
their jural relationship and rate of rent. The tenant is running an
electric shop in the building under the name and style 'Sara
Electricals'. The rate of rent per month is `66,000/-. During the
pendency of the Rent Control Petition, the landlord filed IA
No.456/2013 on 20/12/2013 at the trial court under Section 12(1)
of the Rent Control Act seeking a direction to the tenant to pay
the admitted arrears of rent. According to the landlord, a sum of
`18,07,819/- was due and payable towards arrears of rent. The
tenant disputed the allegation and filed a statement contending
that he was liable to pay only `5,63,817/-. By the order dated
12/6/2015, the Rent Control Court directed the tenant to pay the
admitted arrears of rent. Though the Rent Control Court granted
sufficient time to the tenant to pay the admitted arrears of rent,
the tenant failed to remit the same. The landlord then filed IA
No.15498/2015 under Section 12(3) of the Rent Control Act
seeking an order to stop further proceedings and to direct the
tenant to hand over the possession of the building to him. By the
order dated 31/8/2015 passed in IA No.15498/2015, the Rent
Control Court recorded a finding that the tenant has failed to pay
RP No.753/2020 in
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the admitted arrears of rent (`5,63,817/-) and consequently
directed the tenant to hand over the petition-scheduled building
to the landlord within a period of one month. By a separate order,
on the same date, the Rent Control Court disposed of the Rent
Control Petition.
3. Assailing the aforesaid order in IA No.15498/2015, the
tenant filed RCA No.75/2015 before the Rent Control Appellate
Authority, Thrissur (for short, the Appellate Authority). Pending
adjudication of the appeal, the landlord filed IA No.5136/2016 on
16/11/2016 invoking Section 12(1) of the Rent Control Act
seeking an order directing the tenant to deposit the then
admitted arrears of rent. By the order dated 9/3/2017, the
Appellate Authority passed an order under Section 12(2) in IA
No.5136/2016 and directed the tenant to pay the admitted
arrears of rent of `10,88,000/- within four weeks or to show
cause. The Appellate Authority passed an order on 7/4/2017
under Section 12(3) directing the tenant to put the landlord in
possession of the building as the direction in IA No.5136/2016
was not complied with.
4. The tenant preferred RCR No.380/2017 challenging the
RP No.753/2020 in
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order dated 7/4/2017 in RCA No.75/2015. In the revision petition,
the tenant essentially took up a contention that the application
filed by the landlord, i.e., IA No. 5136/2016 was not maintainable
and it was not open to the landlord to invoke Section 12(1) of the
Rent Control Act in an appeal filed by the tenant against an order
passed by the Rent Control Court in exercise of its power under
Section 12(3) of the Rent Control Act. In support of the said
contention, the tenant heavily relied on the two decisions of the
Division Benches of this Court in Sulaiman Sahib v. Mohammed
Moosa3 and Mohammed Shameer v. Ashokan4 wherein it was held
that the landlord is not entitled to file an application under
Section 12(1) of the Act in an appeal filed by the tenant against
an order dismissing his application to set aside the ex parte order
of eviction filed under Section 23(1)(h) of the Rent Control Act r/w
Rule 13(3) of the Kerala Buildings (Lease and Rent Control) Rules,
1979 (for short, the Rent Control Rules). The Division Bench
found that the above said dictum laid in Sulaiman Sahib and
Mohammed Shameer requires reconsideration by a Larger Bench.
Accordingly, the Division Bench, by the order dated 20/3/2018,
3(2003 (2) KLT 1058)
4(2015 (1) KLT 396)
RP No.753/2020 in
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referred the Revision Petition to the Full Bench. After the Division
Bench passed the said order of reference, another Division Bench
of this Court in City Co-operative Hospital v. Luquman5 held that
an application under Section 12(1) of the Rent Control Act cannot
be filed in an appeal pending against an order passed under
Section 12(3) of the Act. By order dated 28/4/2020, the Full Bench
in Joy Daniel answered the reference in favour of the tenant
upholding the law laid in City Co-operative Hospital, Sulaiman
Sahib and Mohammed Shameer. It was declared that the Rent
Control Act does not cast an obligation on the tenant to pay the
admitted arrears of rent while pursuing an appeal filed by him
against an order passed by the Rent Control Court under Section
12(3) of the Rent Control Act. The landlord then filed Review
Petition No.753/2020 seeking review of the order dated
28/4/2020 of the Full Bench. On 26/5/2022, the Full Bench
referred the Review Petition to a Larger Bench doubting the
correctness of the decisions in City Co-operative Hospital,
Sulaiman Sahib and Mohammed Shameer.
Points for Determination
5(2017 (3) KLT 1172)
RP No.753/2020 in
RCR No.380/2017 &
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5. The issue referred to us concerns the interpretation of
the provisions of Section 12 of the Rent Control Act that casts an
obligation on the tenant to pay the arrears of the rent to the
extent admitted by him to contest any proceedings for eviction,
whether it be before the Rent Control Court or the Appellate
Authority. In particular, we are called upon to give an
authoritative pronouncement on the question - whether an
application under Section 12(1) of the Rent Control Act is
maintainable in an appeal filed under Section 18 against an order
passed under Section 12(3)? Incidentally, we will also be
addressing the issue regarding the maintainability of an
application under Section 12(1) in an appeal arising from other
types of orders passed during the course of eviction proceedings
under Section 11.
Rival Submissions
6. We have heard the learned Senior Counsel
Sri.P.B.Krishnan on behalf of the landlord and the learned
Counsel Sri. V.K.Peermohamed Khan on behalf of the tenant. We
have also perused the records.
RP No.753/2020 in
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7. The submissions of the learned Senior Counsel for the
landlord, briefly stated, are as follows:
(i) An order passed in exercise of the power under Section
12(3) of the Rent Control Act is essentially an order
passed on an application under Section 11, and such an
order falls within the purview of the expression 'any
order' in Section 12. Any other interpretation has the
effect of offering room to the tenant to evade payment of
even the admitted arrears of rent and procrastinate the
proceedings thereby depriving the landlord of the
machinery provided by the integrated scheme of the Act
to redress the default made by the tenant to pay even
the admitted arrears of rent during the prosecution of an
application filed under Section 11.
(ii) The Rent Control Authorities have a statutory obligation
to ensure that the tenant is not able to contest the
eviction petition or the appeal without depositing or
paying the admitted arrears of rent. Therefore, the view
that the application under Section 12 is not maintainable
in an appeal instituted against an order passed by the
RP No.753/2020 in
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Rent Control Court under Section 12(3) is not justifiable
and legally sustainable.
(iii) It would be unreasonable to limit the applicability of
Section 12 only to appeals from final orders of eviction
passed under Section 11 of the Rent Control Act.
(iv) The challenge which is being pursued by a tenant against
an order under Section 12(3) is equal to a challenge
against an order of eviction passed under Section 11 and
therefore even in the absence of any specific mention in
Section 12, the tenant can be permitted to challenge the
order by preferring an appeal before the Appellate
Authority only on its compliance with respect to payment
of the arrears of the admitted rent as contemplated
under Section 12. Reliance was placed on Sahadevan v.
Kesavan Nair 6.
(v) The law declared in City Co-operative Hospital, Sulaiman
Sahib and Mohammed Shameer that Section 12 of the
Rent Control Act will be attracted only in an appeal from
the final order of eviction under Section 11 and not in an
appeal arising from other types of orders is not good law
6 (1973 KLT 37)
RP No.753/2020 in
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and liable to be overruled.
(vi) The dictum laid down by the Full Bench in Joy Daniel that
the Rent Control Act does not cast an obligation on the
tenant to pay the admitted arrears of rent while pursuing
an appeal filed by him against an order passed by the
Rent Control Court under Section 12(3) cannot be
sustained.
8. Per contra the submissions of the learned counsel for
the tenant, briefly stated, are as follows:
(i) Section 12(1) of the Rent Control Act does not impel the
tenant to pay the admitted arrears of rent while pursuing
an appeal filed by him against an order passed under
Section 12(3) of the Act.
(ii) The wordings in Section 12(1) of the Rent Control Act
refers only to an application for eviction filed under
Section 11 of the Act, and therefore Section 12(1) does
not apply to an appeal arising from any other order
passed by the Rent Control Court, including an order
passed under Section 12(3).
(iii) City Co-operative Hospital, Sulaiman Sahib, Mohammed
RP No.753/2020 in
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Shameer and Joy Daniel have been correctly decided and
do not require any reconsideration.
Analysis and Findings
9. The lease of immovable property is ordinarily
governed by the Transfer of Property Act. Such a lease comes to
an end by any of the modes prescribed by the Transfer of
Property Act, and the landlord gets the right of re-entry. This right
of reversion is restricted and fettered by the provisions of Rent
Control Legislation enacted in various States in India. One such
Rent Control Legislation enacted in Kerala - the Rent Control Act-
restricts the unfettered right enjoyed by the landlord under the
Transfer of Property Act to evict his tenant. Though the Rent
Control Act is mainly meant to protect the tenant from arbitrary
and whimsical eviction, it at the same time, ensures the
landlord's right to get his building back on certain specified
grounds. Sub-sections (2), (3), (4), (7) and (8) of Section 11 of the
Rent Control Act enable the landlord to file an application for
eviction on the ground mentioned therein. The tenant's right to
contest such an application or to prefer the appeal against an
RP No.753/2020 in
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order passed in such an application is circumscribed by his vital
obligation to pay the rent as mandated in Section 12.
10. Section 12 of the Rent Control Act reads as under:
"12. Payment of deposit of rent during the pendency of
proceedings for eviction: (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.
(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):
Provided that 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.
(3) If any tenant fails to pay or to deposit the rent as
RP No.753/2020 in
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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 landlord in
possession of the building.
(4) When any deposit is made under sub-section (1), the
Rent Control Court or the appellate authority, as the case
may be, shall cause notice of the deposit to be served on
the landlord in the prescribed manner and the amount
deposited may, subject to such conditions as may be
prescribed, be withdrawn by the landlord on application
made by him to the Rent Control Court or the appellate
authority in that behalf."
11. The opening sentence in the above provision, ' No
tenant against whom an application for eviction has been made
by a landlord under Section 11' , makes it clear that the special
restriction for contesting can only apply in cases where the
original proceeding is for eviction of the tenant under Section 11.
The restriction cannot apply to an application filed by the landlord
under sub-section (5) of Section 11 seeking renovation of the
building. The application under sub-section (5) of Section 11 is
not for eviction but only for a direction to the tenant to permit the
landlord to enter into the tenanted premises and carry out the
renovation without parting with possession. Similarly, provisions
RP No.753/2020 in
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under Section 12 cannot be put in service where the application
is for fixation of fair rent under Section 5.
12. Sub-section (1) of Section 12 obliges a tenant who
wants to contest any proceedings for eviction, whether it be
before the Rent Control Court or the Appellate Authority, to pay
all arrears of rent admitted by him. It is also his obligation to pay
rent which falls due subsequent to the commencement of the
proceedings. The deposit contemplated under sub-section (1) is
not the amount determined after adjudication but is the amount
admitted by the tenant. Section 12 proceedings can be invoked
against the tenant, only when the arrears of rent is admitted.
Sub-section (2) deals with the time and manner in which the
deposit contemplated by sub-section (1) is to be made. Sub-
section (3) deals with the consequence of non-deposit as
contemplated in Section 12(2). If the tenant fails to pay or
deposit the admitted rent without any reasonable cause, as
provided under sub-sections (1) and (2), the landlord acquires the
right under Section 12(3) to get an eviction. Sub-section (4)
deals with the manner in which the amount deposited should be
dealt with and paid to the landlord. Once the petition came to a
RP No.753/2020 in
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close and an order for eviction was passed, there was no further
occasion or right for the tenant to contest the petition for eviction
or appeal as the case may be on depositing the arrears of rent.
13. Section 12 which is part and parcel of proceedings on
an application for eviction under Section 11, consists of two
limbs. The first limb has application for contesting an application
under Section 11. It refers to the tenant's right to contest the
application for eviction under Section 11, for which he must pay
or deposit the admitted arrears. The second limb has application
while preferring an appeal under Section 18. It refers to the
tenant's right to prefer an appeal for which also he must pay or
deposit the admitted arrears. However, the Supreme Court 7 while
interpreting a pari materia provision under the Tripura Rent
Control Act, held that the expression 'prefer an appeal' must be
interpreted to mean 'proceed with the appeal' without paying the
admitted arrears of rent. Recently the Kerala High Court 8 also
took the same view and held that paying or depositing of all
arrears of rent admitted by the tenant is not a condition
precedent for presenting an appeal under Section 18. The
7 Manik Lal Majumdar and Others v Gouranga Chandra Dey and Others (AIR 2005 SC 1090)
8 Suvarna v. Ibrahimkutty (2022 (1) KLT 818)
RP No.753/2020 in
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pendency of an original petition of eviction under Section 11 is a
condition precedent to attract the first limb, and the pendency of
an appeal under Section 18 against an order made by the Rent
Control Court on the application for eviction is a condition
precedent to attract the second limb. We are concerned with the
second limb inasmuch as the primary question that falls for
consideration before us relates to the maintainability of an
application filed under Section 12(1) in an appeal filed against an
order passed under Section 12(3).
14. The very same question came up for consideration
before the Division Bench in City Co-operative Hospital. It was
held that neither is it permissible nor recognizable under law to
have recourse under Section 12 in an appeal pending against an
order passed under Section 12(3) of the Act. The Division Bench
relied upon the decisions of the two earlier Division Benches in
Sulaiman Sahib and Mohammed Shameer. In both those decisions,
it was held that the landlord is not entitled to file an application
under Section 12(1) of the Act in an appeal which arises from
Rule 13(3) of the Rent Control Rules. In fact, the question whether
in an appeal filed by the tenant from an order passed under
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Section 12(3) of the Act, an application under Section 12(1) of the
Act is maintainable or not, did not directly arise for consideration
in those decisions, since in both cases challenge in the appeal
was against order passed dismissing an application filed by the
tenant to set aside the ex parte order passed against him.
15. The Full Bench of this Court in Joy Daniel answering the
reference approved the law declared in Sulaiman Sahib,
Mohammed Shameer and City Co-operative Hospital and held
that the Rent Control Act does not cast an obligation on the
tenant to pay the admitted arrears of rent while pursuing an
appeal filed by him against an order passed by the Rent Control
Court under Section 12(3). The Full Bench has arrived at the
aforesaid proposition on the reasoning that the obligation cast
under Section 12(1) is exclusively confined to an application for
eviction filed under Section 11 and in an appeal filed challenging
an order passed on such an application, but it cannot be
extended in the case of an appeal instituted against an order
passed by the Rent Control Court under Section 12(3). We are
unable to subscribe to the dictum laid down by the Division
Benches in Co-operative Hospital, Sulaiman Sahib, Mohammed
RP No.753/2020 in
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Shameer and endorsed by the Full Bench in Joy Daniel for the
following reasons.
16. While arriving at the finding that the appeal in which
the Appellate Authority may exercise the power to direct deposit
of admitted rent could only be with respect to an appeal arising
from a final order of eviction under Section 11 and not otherwise,
the Division Bench in City Co-operative Hospital and Mohammed
Shameer interpreted the term "on the application" found in
Section 12(1) as one refers only to an application made and
mentioned in the first limb of Section 12(1), i.e., an application
under Section 11 of the Rent Control Act. We are of the view that
such an interpretation would run contrary to the integrated
scheme of Sections 11 and 12 of the Rent Control Act. The
expression in sub-section 12(1) that "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
RP No.753/2020 in
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authority, as the case may be, all arrears of rent admitted by the
tenant ...." clearly suggests that the tenant is not entitled to
contest the application for eviction and to even prefer an appeal
against any order made on the Section 11 application without
paying the admitted arrears of rent. The Division Bench in Co-
operative Hospital and Mohammed Shameer did not advert or
consider the purport of the word "any order" preceding the word
"on the application" while interpreting the latter word as above. It
is an accepted principle of interpretation of statutes that a
provision in a statute must be read as a whole, and no word of a
provision in a statute could be construed in isolation. It is also
well settled that the Court should examine every word of a
provision in a statute in its context. The interpretation is best
which makes the textual interpretation contextual9. The twin
object of the Rent Control Act is to protect the tenant from
arbitrary and whimsical eviction and, at the same time, ensure
the right of the landlord to recover possession of the tenanted
premises on certain contingencies. Thus, it is a social legislation
beneficial to both landlord and tenant. The legislature considered
9 Reserve Bank of India v Peerless General Finance and Investment Co.Ltd ., (AIR 1987 SC 1023)
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the payment of rent as the primary duty of the tenant and that is
why Section 12 has been incorporated. Section 12 conceives a
scheme to protect the rights of the landlord to receive the rent,
which is the consideration for the contract of lease, and to
compel the tenant to discharge his fundamental obligation to pay
rent to contest proceedings initiated by the landlord for eviction.
It is a provision intended for the benefit of the landlord. While
interpreting a beneficial provision in a statute, the court must
always interpret the words in the provision in such a manner that
the relief contemplated by the provision is secured and not
denied to the class intended to be benefited. Thus, the use of the
expression "any order.....on the application" without denoting a
particular order warrants an interpretation in furtherance of the
said legislative intention. The said expression requires a liberal
interpretation in its widest amplitude in the landlord's favour.
Interpreting so, the expression "any order made by the Rent
Control Court on the application" found in Section 12(1) must be
understood to encompass all orders which may be passed during
the course of prosecution of an application for eviction under
Section 11.
RP No.753/2020 in
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17. Though the issue involved in Sulaiman Sahib and
Mohammed Shameer was as to the maintainability of an
application under Section 12(1) in an appeal filed by the tenant
against an order dismissing his application to set aside the ex
parte order of eviction, the ultimate finding therein was that
Section 12 would be attracted only in an appeal from a final order
of eviction under Section 11 and not in appeals arising from other
types of orders passed during the course of the proceedings
under Section 11 before the Rent Control Court. There is nothing
to indicate in Section 12(1) to restrict the applicability of the said
provision to the final order of eviction passed under Section 11
alone. The embargo cast on the tenant to contest the
application/appeal postulated by Section 12(1) applies to any
order passed in the course of pursuing an application under
Section 11. If the proposition laid down by the Division Bench and
Full Bench that the obligation cast under Section 12(1) is
exclusively confined to an order of eviction passed under Section
11 is accepted, it may provide room to a tenant who persistently
defaulted in paying even the admitted arrears of rent to continue
to evade payment and prolong the adjudication of Section 11
RP No.753/2020 in
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application besides nullifying the paramount objective of
incorporating Section 12 for effective and meaningful prosecution
of proceedings for eviction under Section 11. Therefore, an order
passed in the exercise of the power under Section 12(3) of the
Rent Control Act or Rule 13(3) of the Rent Control Rules would fall
within the purview of the expression "any order" in Section 12(1).
18. The scheme of the Rent Control Act reflects that the
order under Section 12(3) is a final order of eviction passed
during the course of eviction proceedings under Section 11. On
passing an order under Section 12(3), the proceedings for
eviction under Section 11 or appeal under Section 18, as the case
may be, come to an end and stand closed. Thus, an order passed
under Section 12(3) has all the characteristics, trappings and
effect of a final order of eviction passed under Section 11. In
Sahadevan, in the context of the applicability of Section 14 of the
Rent Control Act (prior to its amendment in 1966 by Act 7 of
1966) to an order passed under Section 12(3), the Division Bench
of this Court observed that on a proper consideration of the
provisions contained in Sections 11 and 12(3), it has to be said
that an order passed under Section 12(3) is really an order
RP No.753/2020 in
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passed under Section 11.
19. While finding that the order to stop further
proceedings in the Rent Control Petition or Rent Control Appeal
cannot be treated or equated to an order rendered in consonance
with Section 11 of the Act, the Division Bench in City Co-operative
Hospital observed that when an order is passed under Section
12(3), it would be an order passed by the Rent Control Court or
the Rent Control Appellate Authority, as the case may be,
terminating the proceedings initiated by way of Rent Control
Petition or the Rent Control Appeal, but that does not mean it is
an order of eviction under Section 11 of the Rent Control Act
itself. We cannot subscribe to the said view. The words used in
Section 12(3) are "stop all further proceedings and make an
order directing the tenant to put the landlord in possession of the
building". The very same words "order directing the tenant to put
the landlord in possession of the building " have been used in sub-
sections (2), (3), (4), (7), and (8) of Section 11 as well. Thus, an
order passed under Section 12(3) is actually and effectively a
final order of eviction. In fact, it is more effective than an order of
eviction passed under Section 11 because the effect of an order
RP No.753/2020 in
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of eviction passed under Section 12(3) cannot be undone or
obliterated at all unlike an order passed under sub-section (2)(b),
3 or (4)(iv) of Section 11. An order of eviction passed under
Section 11(2)(b) can be set aside under Section 11(2)(c) on
payment of entire arrears of rent with interest and cost within
one month or an extended period. An order of eviction passed
under Section 11(3) is subject to Section 11(12) which says that a
landlord who has obtained possession of a building pursuant to
an order under Section 11(3) does not occupy it without
reasonable cause within one month of the date of obtaining
possession, or having so occupied it, vacates it without
reasonable cause within six months of such date, the tenant is
entitled to get restoration of possession. A tenant who is evicted
under Section 11(4)(iv) shall have the first option to have a
reconstructed building allotted to him with liability to its fair rent
under the proviso. When an order is passed under Section 12(3)
in an application for eviction filed under sub-sections (2), (3) or
(4)(iv) of Section 11, the provisions of sub-sections (2)(c), (12) or
Proviso to sub-section 4(iv) as indicated above will not apply.
Having all the characteristics of a final order of eviction, a
RP No.753/2020 in
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challenge against such an order under Section 12 (3) needs to be
construed as a challenge against an order of eviction under
Section 11. Hence, the obligation under Section 12(1) is equally
applicable with respect to an appeal filed under Section 12(3).
20. In the light of the above findings, we hold that the law
declared in Sulaiman Sahib and Mohammed Shameer that Section
12 of the Rent Control Act will be attracted only in an appeal from
the final order of eviction under Section 11 and not in an appeal
arising from other types of orders and in City Co-operative
Hospital that it is not permissible to invoke Section 12(1) of the
Rent Control Act in an appeal preferred against an order passed
under Section 12(3) is not good law and liable to be overruled.
Conclusions
21. In conclusion, we answer the reference as follows:
(i). An order passed in exercise of the power under Section
12(3) of the Rent Control Act is essentially an order passed on an
application under Section 11, and, as such, falls within the
purview of the expression "any order" in Section 12.
(ii). An order passed under Section 12(3) of the Rent Control
RP No.753/2020 in
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Act during the course of eviction proceedings under Section 11
has all the characteristics, trappings and effect of a final order
passed under Section 11.
(iii). An application under Section 12(1) of the Rent Control
Act is maintainable in an appeal filed under Section 18 against an
order passed under Section 12(3).
(iv). An application under Section 12(1) of the Rent Control
Act is maintainable not only in appeal from a final order of
eviction under Section 11 but also in appeals arising from other
types of orders passed during the course of proceedings under
Section 11 before the Rent Control Court.
(v). The judgments in City Co-operative Hospital, Sulaiman
Sahib and Mohammed Shameer do not lay down the correct law
and are hereby overruled.
Relief
22. In view of the declaration of law that an application
under Section 12(1) of the Rent Control Act is perfectly
maintainable in an appeal filed against an order passed under
Section 12(3), the judgment of the Full Bench in Joy Daniel is
RP No.753/2020 in
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reversed.
23. Having answered the reference as above, in normal
course, we would have remitted the case to the Division Bench
for disposal. But we feel that such a course is not necessary since
there is hardly anything more to be considered on the merits of
the case.
24. It is quite open for this court to decide the merit as
well instead of sending the case back to the appropriate Bench
for further consideration after answering the reference by virtue
of the specific power conferred under Section 7 of the Kerala High
Court Act, 1958.
25. There is no dispute regarding the quantum of admitted
rent. The Appellate Authority gave four weeks' time to the tenant
to deposit the arrears of rent as contemplated under the proviso
to sub-section (2) of Section 12. The tenant failed to pay the rent
or show sufficient cause to the contrary. The sufficient cause
must be some reasonable circumstances which prevented the
tenant from making the deposit in time. In the counter statement
to IA No.5136/2016, the tenant had set up a case that he had
incurred huge expenses towards carrying out repair works of the
RP No.753/2020 in
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building and the same has to be adjusted towards the admitted
arrears. Any claim for set-off cannot be treated as a sufficient
cause for making the deposit in time.
We, therefore, see no reason to interfere with the order of
the Appellate Authority. We, accordingly, dismiss the Rent
Control Revision (RCR No.380/2017) and direct the tenant to give
vacant possession of the building to the landlord within two
months from today.
Sd/-
DR.A.K.JAYASANKARAN NAMBIAR, JUDGE
Sd/-
DR. KAUSER EDAPPAGATH, JUDGE
Sd/-
MOHAMMED NIAS C.P., JUDGE
Sd/-
C.S.SUDHA, JUDGE
Sd/-
SYAM KUMAR V.M., JUDGE
Rp
