Rasiya vs S.Sujith on 19 November, 2021

[Cites 21, Cited by 0]

Kerala High Court

Rasiya vs S.Sujith on 19 November, 2021

The petitioner is the respondent-tenant in Rent Control Petition No.52 of 2016 on the file of the Rent Control Court (Additional Munsiff), Palakkad, a petition filed by the respondent herein-landlord under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule building. The tenant opposed the order of eviction by filing counter. Before the Rent Control Court, the landlord was examined as PW1 and Exts.A2 to A6 were marked on his side. The tenant was examined as RW1 and Exts.B1 and B2 were marked on her side. After considering the pleadings and evidences on record, the Rent Control Court by the order dated 17.10.2019 ordered eviction of the tenant under Sections 11(2)(b) and 11(3) of the Act and directed the tenant to surrender vacant possession of the petition schedule building to the landlord, within a period of one month from the date of that order. The tenant is also held liable to pay cost to the landlord.

R.C.Rev.No.138 of 2021

2. Challenging the order of eviction granted by the Rent Control Court in R.C.P.No.52 of 2016, the tenant filed R.C.A.No.3 of 2020 before the Rent Control Appellate Authority (Additional District Judge-IV), Palakkad under Section 18(1)(b) of the Act. Along with that appeal, the tenant filed I.A.No.1 of 2020, an application to stay the execution proceedings before the Additional Munsiff Court. In I.A.No.1 of 2020 in R.C.A.No.3 of 2020 the Appellate Authority passed an order dated 08.04.2021, whereby the tenant was directed to pay arrears of rent to the landlord, within one month from the date of that order. It was further ordered that on failure, the tenant will be evicted from the petition schedule building, after expiry of one month. The said order was followed by the order dated 12.08.2021, in R.C.A.No.3 of 2020, which reads thus:

"Appellant and the respondent represented by counsel and submitted that the appellant deposited only Rs.55,000/- (Rupees fifty thousand thousand only). As per the order dated 08.04.2021 the appellant shall deposit arrears of rent Rs.4,00,000/-

(Rupees four lakh only) is pending. Appellant has not complied the order dated 08.04.2021. Hence appeal 4 R.C.Rev.No.138 of 2021 may be dismissed. The appellant shall deposit arrears of rent within 15 days."

3. Being aggrieved by the order dated 08.04.2021 in I.A.No.1 of 2020 in R.C.A.No.3 of 2020 and the order dated 12.08.2021 in R.C.A.No.3 of 2020 of the Rent Control Appellate Authority, Palakkad the petitioner-tenant is before this Court in this Rent Control Revision filed under Section 20 of the Act.

4. On 25.10.2021, when this Rent Control Revision came up for admission, the respondent-landlord entered appearance through counsel.

5. Heard the learned counsel for the petitioner- tenant and also the learned counsel for the respondent- landlord.

6. The issue that arises for consideration in this Rent Control Revision is as to whether any interference is warranted on the order dated 08.04.2021 in I.A.No.1 of 2020 in R.C.A.No.3 of 2020 and the order dated 12.08.2021 in R.C.A.No.3 of 2020 of the Rent Control Appellate Authority, in exercise of the revisional jurisdiction of this Court under Section 20 of the Act.

R.C.Rev.No.138 of 2021

7. The learned counsel for the petitioner-tenant would contend that the order of the Appellate Authority dated 08.04.2021 is one in I.A.No.1 of 2020 in R.C.A.No.3 of 2020 filed by the tenant seeking stay of the execution of the order of eviction passed by the Rent Control Court, i.e. stay of the execution proceedings in E.P.No.5 of 2020 in R.C.P.No.52 of 2016 on the file of the Additional Munsiff Court, Palakkad. In the absence of an application filed by the landlord, invoking the provisions under Section 12 of the Act, the Appellate Authority went wrong in imposing such conditions in the impugned orders. Going by the statutory mandate of Section 12 of the Act, the Rent Control Court or the Appellate Authority, as the case may be, in a petition for eviction filed under Section 11 of the Act or in an appeal arising out of an order of eviction passed by the Rent Control Court on such a petition under Section 11 of the Act, can direct the tenant to pay admitted arrears of rent as on the date of that order and also continue to pay rent for the subsequent months, within a time limit that has to be specified under Section 12(2) of the Act. In case of any default on the part of the tenant in 6 R.C.Rev.No.138 of 2021 depositing or making payment of the admitted arrears of rent, the Rent Control Court or the Appellate Authority, as the case may be, in the absence of sufficient cause shown by the tenant for not complying with the order passed under Section 12(1) of the Act, proceed with under Section 12(3) of the Act. The procedure adopted by the Appellate Authority is not in conformity with the provisions under Section 12 of the Act. The learned counsel for the petitioner mainly relied on the decision of the Apex Court in Chinnamma v. Gopalan [(1995) 6 SCC 491 : 1995 (2) KLT 755] and the decision of this Court in Jose P.O. v. Xavier and another [2017 (3) KHC 844], etc.

8. Per contra, the learned counsel for the respondent-landlord would contend that for the Appellate Authority to pass an order under Section 12 of the Act, it is not necessary that the landlord has to file an application under Section 12 seeking appropriate direction. An order under Section 12 can be passed by the Rent Control Court or the Appellate Authority, as the case may be, even in the absence of such an interlocutory application. Such an order 7 R.C.Rev.No.138 of 2021 can even be passed at the time of consideration of an interlocutory application filed by the tenant before the Appellate Authority seeking stay of execution of the order of eviction passed by the Rent Control Court. The learned counsel for the respondent-landlord mainly relied on the decisions in Davy v. Indu [1999 (3) KLT 434] and Rakesh Menon v. Homex Trade Links (P) Ltd. [2012 (4) KLT 18] and Mohammed Shammer v. Ashokan [2015 (1) KLT 396]. The learned counsel has also relied on the decision of the Apex Court in Chinnamma (Paras.2, 3 and 7) a decision cited by the learned counsel for the petitioner- tenant.

9. Section 11 of the Kerala Buildings (Lease and Rent Control) Act deals with eviction of tenants. As per Section 11(1) of the Act, notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. As per Section 11(2)(a) of the Act, a landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in 8 R.C.Rev.No.138 of 2021 that behalf. As per Section 11(2)(b), if the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him. As per the first proviso to Section 11(2)(b), an application under this sub-section shall be made only if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at six per cent per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or of the refusal thereof. As per Section 11(2)(c), the order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall 9 R.C.Rev.No.138 of 2021 not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow; and if the tenant deposits the arrears of rent with interest and cost of proceedings within the said period of one month or such further period, as the case may be, it shall vacate that order.

10. As per Section 11(3) of the Act, a landlord may apply to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. As per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. As per the second proviso to Section 11(3), the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income 10 R.C.Rev.No.138 of 2021 derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business.

11. Section 12 of the Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per Section 12(1), no tenant against whom an application for eviction has been made by a landlord under Section 11, shall be entitled to contest the application before the Rent Control Court under that Section, or to prefer an appeal under Section 18 against any order made by the Rent Control Court on the application, unless he has paid or pays to the landlord, or deposits with the Rent Control Court or the Appellate Authority, as the case may be, all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. As per Section 11 R.C.Rev.No.138 of 2021 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 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 12 R.C.Rev.No.138 of 2021 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.

12. Section 12(1) of the Act enjoins a tenant, against whom an application for eviction has been made by a landlord under Section 11, to pay to the landlord, or deposit with the Rent Control Court, all arrears of rent admitted by the tenant to be due in respect of the building, up to the date of payment or deposit, and continue to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court, in order to contest that application for eviction before the Rent Control Court. Similarly, Section 12(1) of the Act enjoins a tenant, in order to prefer an appeal under Section 18 of the Act against any order made by the Rent Control Court on an application made by a landlord under Section 11, to pay the landlord, or deposits with the Appellate Authority, all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment or deposit, and continues to pay or to deposit 13 R.C.Rev.No.138 of 2021 any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Appellate Authority.

13. 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.

14. In Suvarna v. Ibrahimkutty and others [2021 (6) KHC 250] a Division Bench of this Court held that, the object of the provisions of Section 12(1) of the Act is to deny the defaulting tenant the right to contest the application for eviction before the Rent Control Court, or to prefer an appeal 14 R.C.Rev.No.138 of 2021 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.

15. In Suvarna the Division Bench held that, Section 12(2) of the Act enjoins a tenant to deposit the admitted rent under sub-section (1), within such time as the court may fix and in such manner as may be prescribed. The time fixed by the court for the deposit of the arrears of rent and the time fixed for the deposit of rent which subsequently accrues due shall not be less than that specified in the proviso to Section 12(2). As per the statutory mandate of Section 12(1), on an application filed by the landlord under Section 12, the Rent Control Court or the Appellate Authority, as the case may be, 15 R.C.Rev.No.138 of 2021 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.

16. In Chinnamma [(1995) 6 SCC 491], a decision relied on by the learned counsel for the petitioner-tenant, the Apex Court was dealing with a case in which the landlord filed R.C.P.(OP)No.141 of 1977 before the Rent Control Court seeking eviction of the tenant under Sections 11(2) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act. The plea of bona fide need under Section 11(3) for own occupation of the landlord was found against. However, the Rent Control Court ordered eviction under Section 11(2)(b) of the Act on the ground of default in payment of rent from 01.06.1975, at the rate of Rs.20/- per month, as demanded in the notice on 22.06.1977. The Rent Control Court ordered 16 R.C.Rev.No.138 of 2021 that, in case the tenant deposits a sum of Rs.820/- as arrears as on 01.11.1978 within one month from the date of the order, i.e., 30.11.1978, the tenant could move an application for vacating the order of eviction. The tenant filed R.C.A.No.8 of 1979 before the Rent Control Appellate Authority. The Appellate Authority, by the order dated 26.07.1979, set aside the order passed by the Rent Control Court and remanded the matter, directing the Rent Control Court to consider the maintainability of the petition. After the remand, the Rent Control Court passed an order on 22.02.1980, directing the tenant to surrender vacant possession of the petition schedule building under Section 11(2)(b) of the Act, within 30 days from the date of order. In that order it was made clear that, in case the tenant deposits the sum of Rs.540/-, which is the arrears of rent due as on 01.02.1980, she will be entitled to apply for getting the order of eviction vacated under section 11(2)(c) of Act. The tenant was directed to pay costs of the landlord including Advocate's fee, which was fixed as Rs.25/-, and interest at 6% per annum on the arrears of Rs.540/- from the date of order. 17 R.C.Rev.No.138 of 2021 R.C.A.No.40 of 1980, filed by the tenant before the Appellate Authority was dismissed on 21.07.1981. Thereafter, the tenant moved the Revisional Authority, the District Court, Palakkad, in R.C.R.P.No. 53 of 1981. The Revisional Authority passed an order dated 24.03.1982 to the effect that the tenant shall be free to get the order vacated by making necessary deposit and application as contemplated in Section 11(2)(c) of Act before the Rent Control Court on or before 24.05.1982. The landlord filed O.P.No.10288 of 1988 before this Court and assailed the said order passed by the Revisional Authority. A learned single Judge of this Court, after referring to the prior history of the case and the earlier orders passed in the various proceedings, posed the question thus:- Whether the revisional court was right in holding that the tenant was not required to pay or deposit more than the amount which was quantified by the Rent Control Court, the same being confirmed by the Appellate Authority and the Revisional Authority or whether the tenant should have deposited the entire arrears of rent that fell due by 06.04.1982, instead of Rs.750/- in terms of the directions of 18 R.C.Rev.No.138 of 2021 the revisional court in R.C.R.P.No.53 of 1991. After referring to Section 11(2)(b) and (c) and Section 12(1) and (2) of the Act, the learned Single Judge held that the expression "arrears of rent" in Section 11(2) (c) of the Act will be the "entire arrears of rent due" as on the date of deposit under that sub clause, in the context of section 12 of the Act. In taking the said view the learned Single Judge followed a Bench decision in Chellamma Varghese v. Cicey [1994 (2) KLT 106] and held that it is not the arrears specified in the order of eviction passed by the Rent Controller dated 22.02.1980 but the deposit of all arrears of rent that accrued even subsequent thereto till the date of filing of the application under Section 11(2)(c) of the Act, that should be made. The learned Single Judge set aside the order passed by the revisional court in R.C.R.P.No.6 of 1985 dated 31.07.1986.

17. In Chinnamma the Apex Court noticed that, it is nobody's case that either the Rent Control Court or the Appellate Authority or the revisional court passed any order under Section 12 of the Act regarding the payment of 19 R.C.Rev.No.138 of 2021 subsequent arrears (or future rent till the termination of proceedings) admitted by the tenant, when the proceedings were pending for eviction and before the order was passed under Section 11(2)(b) of the Act. Before expiry of the time fixed in the aforesaid order of the revisional court, the tenant filed I.A.No.764 of 1982 before the Rent Control Court on 06.04.1982, along with a remittance of a sum of Rs.750/- and prayed for setting aside the order of eviction dated 22.02.1980. The Apex Court held that, a mere look at Sections 11 and 12 of the Act would show that they operate in different situations. Under Section 11(2)(b) of the Act the court passes a final order of eviction, directing the tenant to put the landlord in possession of the building, if there is default as provided therein. The execution of such final order is statutorily suspended for a period of one month. Within that time or such further time as the court may allow, the tenant is given an opportunity to deposit the arrears of rent with interest and cost of the proceedings and, if so done, the court is bound to vacate the order passed under Section 11(2)(b) of the Act. On the other hand, the provisions of 20 R.C.Rev.No.138 of 2021 Section 12 are applicable during the pendency of the proceedings for eviction. It permits the tenant against whom an application has been made by the landlord under Section 11 to contest the application or to prefer an appeal only if the tenant has paid or pays to the landlord or deposits in the court all arrears of rent admitted by the tenant to be due in respect of the building upto the date of payment of deposit and also continues to pay or to deposit any rent which may subsequently become due in respect of the building till the termination of the proceedings before the court. Section 12 is a special provision applicable during the pendency of the proceedings and the provisions thereof point out that an order has to be made by the court fixing a time and the manner for payment or deposit of the amount. If the tenant fails to pay or deposit the rent so specified, unless sufficient cause is shown to the contrary, the Rent Control Court shall stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. In other words, Section 12 provides a summary procedure whereby during the pendency of the proceedings the court 21 R.C.Rev.No.138 of 2021 can direct the tenant to pay the current rent as admitted by the tenant and if it is not so done, the main eviction proceedings itself will come to an end and the court is enabled to pass an order directing the tenant to put the landlord in possession of the building.

18. In Chinnamma the Apex Court held that, for the applicability of Section 12 of the Act the proceedings for eviction should be pending, and the court should, by an order, direct the tenant to pay or deposit all arrears of rent that have been admitted by the tenant to be due and the tenant shall continue to pay the admitted rent that may subsequently become due till the termination of the proceedings and if it is not so done, that itself is treated as an independent default which will enable the court to stop further proceedings and make an order directing the tenant to put the landlord in possession of the building. Section 12 will not apply to a proceeding which is already over under Section 11(2)(b) of the Act. To invoke Section 12 of the Act, an independent order, passed during the pendency of the proceedings under Section 11 is required. With regard to the 22 R.C.Rev.No.138 of 2021 proceedings which have ended in an order passed by the Rent Control Court under Section 11(2)(b), it is only the provisions of Section 11(2)(c) that are applicable. The view of the learned Single Judge that provisions of Section 11(2)

(b) should be read along with Section 12 of the Act, relying on an earlier Bench decision in Chellamma Varghese [1994 (2) KLT 106], is not justified in law. The Apex Court held that Section 12 of the Act has no application to a case wherein the proceedings for eviction are not pending, but on the other hand an order of eviction has been passed by the court under Section 11(2)(b) of the Act. In a case where an order of eviction has been passed under Section 11(2)(b) of the Act, Section 11(2)(c) alone is attracted and Section 12 of the Act is inapplicable.

19. In Davy v. Indu [1999 (3) KLT 434], another decision relied on by the learned counsel for the petitioner- tenant, a Division Bench of this Court held that, though Sections 11 and 12 of the Kerala Buildings (Lease and Rent Control) Act deal with the consequence of non-payment of admitted arrears of rent, both these Sections operate in 23 R.C.Rev.No.138 of 2021 different contingencies. An order passed by the Rent Control Court under Section 11(2)(b) of the Act on the ground of failure to pay the arrears of rent can be vacated under Section 11(2)(c), if the tenant pays arrears of rent within one month or within such other period as allowed by the court. Section 12 of the Act deals with the disability of the tenant to contest the eviction proceedings without paying the arrears of rent. If the tenant fails to pay the arrears of rent and if he does not also show sufficient cause for not paying the rent as ordered by the Court, he is liable to be evicted by an order passed under Section 12(3) of the Act. The above order passed under Section 12(3) of the Act cannot be vacated by a Rent Control Court under Section 11(2)(c), on payment of the rent subsequently.

20. In the instant case, the order of eviction is one passed under Sections 11(2)(b) and 11(3) of the Act. The tenant, invoking the provisions under Section 11(2)(c) of the Act, can seek an order to vacate the order of eviction under Section 11(2)(b) of the Act. Such a course is not open to the tenant to vacate the order of eviction under Section 11(3) of 24 R.C.Rev.No.138 of 2021 the Act. The order of eviction passed in R.C.P.No.52 of 2016 by the Rent Control Court under Sections 11(2)(b) and 11(3) of the Act is still in force, which is under challenge in R.C.A.No.3 of 2020 pending before the Appellate Authority. In that appeal filed by the tenant under Section 18(1)(b) of the Act, against the order of eviction passed by the Rent Control Court under Sections 11(2)(b) and 11(3) of the Act, the provisions of Section 12 has application and therefore, the Appellate Authority has ample power to invoke the provisions under Section 12, during the pendency of R.C.A.No.3 of 2020 filed by the tenant. Now the question that has to be considered is as to whether the Appellate Authority can exercise the power under Section 12 of the Act, in the absence of a formal application filed by the landlord.

21. In Rakesh Menon v. Homex Trade Links (P) Ltd., [2012 (4) KLT 18], a decision relied on by the learned counsel for the respondent-landlord, a Division Bench of this Court repelled the argument that the landlord has to file a petition under Section 12 of the Kerala Buildings (Lease and Rent Control) Act. The Division Bench held that, if the 25 R.C.Rev.No.138 of 2021 Rent Control Court or the Appellate Authority notices that the arrears of rent admitted or the rent that fell due subsequently is not paid or deposited within the period specified in Section 12, it is the duty of the Rent Control Court or the Appellate Authority to follow the procedure envisaged by that Section.

22. In Mohammed Shammer v. Ashokan [2015 (1) KLT 396] it was contended before the Division Bench by the tenant that the expression "on the application" occurring in Section 12(1) of the Kerala Buildings (Lease and Rent Control) Act also can be referable to an application under Section 12. The Division Bench did not accept this submission since Section 12(1) does not refer to an application under that Section, but refers to only an application under Section

11. The words "on the application" against which an appeal is preferred occurring in Section 12(1) can have reference only to the application under Section 11. It is true that an appeal under Section 18 lies not only against a final order under Section 11, but also against the order passed by the Rent Control Court dismissing an application to set aside the ex 26 R.C.Rev.No.138 of 2021 parte order under Section 11. Appeal under Section 18 lies against certain other orders passed by the Rent Control Court as well. The only plausible interpretation that could be made is that though an appeal under Section 18 lies against a variety of orders passed by the Rent Control Court, the appeal which is referred to under Section 12(1) is an appeal against an order under Section 11. In other appeals, no order can be passed by the Appellate Authority under Section 12 of the Act.

23. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that, an application filed by the landlord under Section 12 of the Act is not required for the Rent Control Court or the Appellate Authority to invoke its powers under Section 12 of the Act to pass an order directing the tenant to pay admitted arrears of rent as on the date of the order and continue to pay arrears of rent for the subsequent period, within the time limit specified in Section 12(2) of the Act. Section 12(1) of the Act does not refer to an application under Section 12, but refers to only an application for eviction under Section 11 of the 27 R.C.Rev.No.138 of 2021 Act. Therefore, we find no merit in the contention of the petitioner-tenant that, in the absence of an application filed by the landlord under Section 12 of the Act, the Appellate Authority cannot direct the tenant to deposit admitted arrears of rent during the pendency of R.C.A.No.3 of 2020.

24. 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.

25. In Pochappan Narayanan [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 28 R.C.Rev.No.138 of 2021 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 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.

26. 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 29 R.C.Rev.No.138 of 2021 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 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.

27. 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 30 R.C.Rev.No.138 of 2021 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 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 31 R.C.Rev.No.138 of 2021 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 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.

28. 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 32 R.C.Rev.No.138 of 2021 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 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.

29. 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 33 R.C.Rev.No.138 of 2021 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 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 34 R.C.Rev.No.138 of 2021 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 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.

30. In Shaji M. v. SNDP Sakhayogam No.610, Alappuzha and another [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 35 R.C.Rev.No.138 of 2021 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 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.

31. 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 36 R.C.Rev.No.138 of 2021 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 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 37 R.C.Rev.No.138 of 2021 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 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].

32. 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 such conditions as may be prescribed, be withdrawn by the landlord on application made by him to the 38 R.C.Rev.No.138 of 2021 Rent Control Court or the Appellate Authority in that behalf.

33. In Suvarna v. Ibrahimkutty and others [2021 (6) KHC 250] a Division Bench of this Court held that, Section 12 of the Kerala Buildings (Lease and Rent Control) 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 Authority, as the case may be, shall, unless the 39 R.C.Rev.No.138 of 2021 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.

34. In Suvarna the Division Bench found that, 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 be, to issue any separate notice to the tenant to enable him to show sufficient 40 R.C.Rev.No.138 of 2021 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).

35. In Suvarna the Division bench held that, 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 empty formality. The principles of natural justice would mandate that the Rent 41 R.C.Rev.No.138 of 2021 Control Court or the Appellate Authority should afford such an opportunity to the tenant before passing an order under Section 12(3). 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 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 42 R.C.Rev.No.138 of 2021 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.

36. In the instant case, challenging the order of eviction granted by the Rent Control Court in R.C.P.No.52 of 2016, under Section 11(2)(b) and 11(3) of the Act, the tenant filed R.C.A.No.3 of 2020 before the Appellate Authority under Section 18(1)(b) of the Act. I.A.No.1 of 2020 in R.C.A.No.3 of 2020, an application filed by the tenant to stay the execution proceedings pending before the Additional Munsiff Court, the Appellate Authority passed an order dated 08.04.2021, whereby the tenant was directed to pay arrears of rent to the landlord, within one month from the date of that order, failing which, the tenant will be evicted from the petition schedule building after expiry of one month. The said order was followed by the order dated 12.08.2021, in 43 R.C.Rev.No.138 of 2021 R.C.A.No.3 of 2020, whereby the tenant was directed to deposit arrears of rent within 15 days.

37. Though, in R.C.A.No.3 of 2020 filed by the tenant before the Appellate Authority under Section 18(1)(b) of the Act, an application filed by the landlord under Section 12 of the Act is not required for the Appellate Authority to invoke its powers under Section 12 of the Act to pass an order directing the tenant to pay admitted arrears of rent as on the date of the order and continue to pay arrears of rent for the subsequent period, within the time limit specified in Section 12(2) of the Act, such an order passed by the Appellate Authority should satisfy the requirements of Section 12. As per the mandate of Section 12(1), the Appellate Authority 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, within the time limit specified in Section 12(2), until the termination of the proceedings before the Appellate 44 R.C.Rev.No.138 of 2021 Authority. If any tenant fails to pay or deposit the admitted rent as provided under Section 12(1) and (2), 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 building. The order dated 08.04.2021 of the Appellate Authority in I.A.No.1 of 2020 in R.C.A.No.3 of 2020 cannot be said to be one passed in conformity to the requirements of Section 12 of the Act and also the law laid down in the decisions referred to supra. Therefore, the said order and also the subsequent order of the Appellate Authority dated 12.08.2021 in R.C.A.No.3 of 2020 cannot be sustained in law.

38. In the result, this Rent Control Revision is allowed by setting aside the order dated 08.04.2021 of the Rent Control Appellate Authority (Addl. District Judge-IV), Palakkad, in I.A.No.1 of 2020 in R.C.A.No.3 of 2020 and also the order dated 12.08.2021 in R.C.A.No.3 of 2020, by directing the said Authority to reconsider I.A.No.1 of 2020 in R.C.A.No.3 of 2020, strictly in accordance with law, and take 45 R.C.Rev.No.138 of 2021 an appropriate decision thereon, taking note of the statutory requirements of Section 12 of the Act and also the law laid down in the decisions referred to supra, as expeditiously as possible, at any rate, within a period of three weeks from the date of appearance of parties. Both the parties shall appear before the Appellate Authority on 17.12.2021.

39. Till such orders are passed, no coercive steps shall be taken against the tenant in E.P.No.5 of 2020 in R.C.P.No.52 of 2016 pending before the Principal Munsiff Court, Palakkad.

The contentions raised by the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlord as to quantum of admitted arrears of rent are left open. Both parties to raise appropriate contentions before the Appellate Authority.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE dkr 46 R.C.Rev.No.138 of 2021 APPENDIX OF R.C.REV. 138 OF 2021 PETITIONER ANNEXURE Annexure A1 A TRUE COPY OF THE LAWYER NOTICE DATED 01.07.2016 ISSUED LANDLORD TO THE TENANT.

Annexure A2          A TRUE COPY OF THE ORDER DATED
                     17.10.2019 IN R.C.P. NO.52 OF 2016 OF
                     THE RENT CONTROL COURT (ADDITIONAL
                     MUNSIFF), PALAKKAD.

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