Kerala High Court
R Radhakrishna Pillai vs Nazarudeen on 29 July, 2022
Author: Anil K. Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 29TH DAY OF JULY 2022 / 7TH SRAVANA, 1944
RCREV. NO. 179 OF 2021
AGAINST THE ORDER DATED 27/11/2019 IN I.A.NO.3508 OF 2019 IN
R.C.P.NO.39 OF 2019 OF THE RENT CONTROL COURT (ADDITIONAL
MUNSIFF-I, KOLLAM AND THE JUDGMENT DATED 30/06/2021 IN
R.C.A.NO.42 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY
(ADDITIONAL DISTRICT JUDGE-V), KOLLAM
REVISION PETITIONER/S:
R RADHAKRISHNA PILLAI
AGED 65 YEARS
S/O.LATE RAMAKRISHNA PILLAI, S/O.LATE RAMAKRISHNA
PILLAI, RESIDING AT PADMA BHAVAN, KOTTAKKAKAM
WARD, KOLLAM WEST VILLAGE, KOLLAM
BY ADVS.
P.PARAMESWARAN NAIR
SREELATHA PARAMESWARAN NAIR
ASWIN KUMAR M J
RENOY VINCENT
HELEN P.A.
ARUN ROY
SHAHIR SHOWKATH ALI
RESPONDENT/S:
1 NAZARUDEEN
AGED 65 YEARS
S/O. HAJI A, MYTHEENKUNJU, ALI MANSION,NO 116,
SAMSAM NAGAR, VADAKKEVILA P.O, KOLLAM 691 010
2 SHARAFUDEEN
AGED 55 YEARS
S/O. HAJI A MYTHEENKUNJU, ALI MANSION,NO 116,
SAMSAM NAGAR, VADAKKEVILA P.O, KOLLAM 691 010
2
R.C.R.Nos.179 of 21, 183 of 2021,
2 of 2022 and 6 of 2022
3 NIZARUDEEN
AGED 53 YEARS
S/O. HAJI A, MYTHEENKUNJU, ALI MANSION,NO 116,
SAMSAM NAGAR, VADAKKEVILA P.O, KOLLAM 691 010
BY ADV ARUN BABU
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON 29.07.2022, ALONG WITH RCRev.183/2021 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
3
R.C.R.Nos.179 of 21, 183 of 2021,
2 of 2022 and 6 of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 29TH DAY OF JULY 2022 / 7TH SRAVANA, 1944
RCREV. NO. 183 OF 2021
AGAINST THE ORDER DATED 27/11/2019 IN I.A.NO.3511 OF 2019 IN
R.C.P.NO.40 OF 2019 OF THE RENT CONTROL COURT (ADDITIONAL
MUNSIFF-I, KOLLAM AND THE JUDGMENT DATED 30/06/2021 IN
R.C.A.NO.44 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY
(ADDITIONAL DISTRICT JUDGE-V), KOLLAM
REVISION PETITIONER/S:
C.A. CHACKO
AGED 74 YEARS
S/O AUGUSTINE,
CHANGAN HOUSE,
VADAKKUMBHAGAM WARD,
KOLLAM WEST, KOLLAM-691001.
BY ADVS.
P.PARAMESWARAN NAIR
SREELATHA PARAMESWARAN NAIR
ASWIN KUMAR M J
RENOY VINCENT
HELEN P.A.
ARUN ROY
SHAHIR SHOWKATH ALI
RESPONDENT/S:
1 NAZARUDEEN
AGED 70 YEARS
S/O LATE HAJI A MYTHEENKUNJU,
ALI MANSION, NO.116, SAMSAM NAGAR, VADAKKEVILA P
O,
KOLLAM-691010.
4
R.C.R.Nos.179 of 21, 183 of 2021,
2 of 2022 and 6 of 2022
2 SHARAFUDEEN
AGED 60 YEARS
S/O LATE HAJI A MYTHEENKUNJU,
BEEMA'S HOUSE NO.115-A,
SAMSAM NAGAR, VADAKKEVILA P O,
KOLLAM-691010.
3 NIZARUDEEN
AGED 56 YEARS
S/O LATE HAJI A MYTHEENKUNJU,
"AL-FALAH" NO.115B,
SAMSAM NAGAR, VADAKKEVILA P O,
KOLLAM-691010.
BY ADVS.
ARUN BABU (CAVEATOR)
ARUN BABU
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON 29.07.2022, ALONG WITH RCRev.179/2021 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
5
R.C.R.Nos.179 of 21, 183 of 2021,
2 of 2022 and 6 of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 29TH DAY OF JULY 2022 / 7TH SRAVANA, 1944
RCREV. NO. 2 OF 2022
AGAINST THE ORDER DATED 27/11/2019 IN I.A.NO.3510 OF 2019 IN
R.C.P.NO.43 OF 2019 OF THE RENT CONTROL COURT (ADDITIONAL
MUNSIFF-I, KOLLAM AND THE JUDGMENT DATED 30/06/2021 IN
R.C.A.NO.43 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY
(ADDITIONAL DISTRICT JUDGE-V), KOLLAM
REVISION PETITIONER/S:
1 ARATHY
AGED 35 YEARS
D/O.CHACKO, JOY BHAVANAM, VIDHYA NAGAR, NEAR
VIDHYADHIRAJA SCHOOL, KOTTAMUKKU, KOLLAM WEST,
KOLLAM - 691 003.
2 C.A.CHACKO
AGED 74 YEARS
S/O.AUGUSTINE, CHANGAN HOUSE, VADAKKUMBHAGAM WARD,
KOLLAM WEST, KOLLAM.
BY ADVS.
P.PARAMESWARAN NAIR
ASWIN KUMAR M J
SREELATHA PARAMESWARAN NAIR
RENOY VINCENT
HELEN P.A.
ARUN ROY
SHAHIR SHOWKATH ALI
RESPONDENT/S:
1 NAZARUDEEN
AGED 70 YEARS
6
R.C.R.Nos.179 of 21, 183 of 2021,
2 of 2022 and 6 of 2022
S/O.LATE HAJI A., MUTHEEH KUNJU, ALI MANSION,
NO.116, SAMSAM NAGAR, VADAKKEVILA P.O., KOLLAM -
691 010.
2 SHARAFUDEEN
AGED 60 YEARS
S/O.LATE HAJI A.MYTHEEN KUNJU, BEEMA'S HOUSE
NO.115-A, SAMSAM NAGAR, VADAKKEVILA P.O., KOLLAM -
691 010.
3 NIZARUDEEN
AGED 56 YEARS
S/O.LATE HAJI A.MYTHEEN KUNJU, "AL-FALAH, NO.115B,
SAMSAM NAGAR, VADAKKEVILA P.O., KOLLAM - 691 010.
BY ADVS.
ARUN BABU (CAVEATOR)
ARUN BABU
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON 29.07.2022, ALONG WITH RCRev.179/2021 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
7
R.C.R.Nos.179 of 21, 183 of 2021,
2 of 2022 and 6 of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 29TH DAY OF JULY 2022 / 7TH SRAVANA, 1944
RCREV. NO. 6 OF 2022
AGAINST THE ORDER DATED 27/11/2019 IN I.A.NO.3509 OF 2019 IN
R.C.P.NO.41 OF 2019 OF THE RENT CONTROL COURT (ADDITIONAL
MUNSIFF-I, KOLLAM AND THE JUDGMENT DATED 30/06/2021 IN
R.C.A.NO.41 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY
(ADDITIONAL DISTRICT JUDGE-V), KOLLAM
REVISION PETITIONER/S:
R.GOPALAKRISHNA PILLAI
AGED 70 YEARS
S/O LATE RAMAKRISHNA PILLAI, PROPRIETOR, M/S
QUILON HARDWARES, HOSPITAL ROAD, KOLLM-691001.
BY ADVS.
P.PARAMESWARAN NAIR
ASWIN KUMAR M J
SREELATHA PARAMESWARAN NAIR
RENOY VINCENT
ARUN ROY
SHAHIR SHOWKATH ALI
RESPONDENT/S:
1 NAZARUDEEN
AGED 65 YEARS
S/O HAJI A, MYTHEENKUNJU, ALI MANSION, NO.116,
SAMSAM NAGAR, VADAKKEVILA P O, KOLLAM-691010.
2 SHARAFUDEEN
AGED 55 YEARS
S/O HAJI A, MYTHEENKUNJU, ALI MANSION, NO.115-A,
8
R.C.R.Nos.179 of 21, 183 of 2021,
2 of 2022 and 6 of 2022
SAMSAM NAGAR, VADAKKEVILA P O, KOLLAM-691010.
3 NIZARUDEEN
AGED 53 YEARS
S/O HAJI A, MYTHEENKUNJU, ALI MANSION, NO.115-B,
SAMSAM NAGAR, VADAKKEVILA P O, KOLLAM-691010.
BY ADV ARUN BABU (CAVEATOR)
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 29.07.2022, ALONG WITH RCRev.179/2021 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
9
R.C.R.Nos.179 of 21, 183 of 2021,
2 of 2022 and 6 of 2022
ORDER
Anil K. Narendran, J.
Since common issue is raised, these Rent Control Revisions, i.e., R.C.R.Nos.179 of 2021, 183 of 2021, 2 of 2022 and 6 of 2022 are heard together and being disposed of by this common order.
2. R.C.R.No.179 of 2021:- The petitioner is the respondent-tenant in R.C.P.No.39 of 2019 on the file of the Rent Control Court (Additional Munsiff-I), Kollam, a petition filed by the respondents herein under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 seeking eviction of the tenant from the petition schedule shop room. During the pendency of that RCP, the landlords filed I.A.No.3508 of 2019, an application under Section 12 of the Act seeking an order directing the tenant to deposit the admitted arrears of rent. That application was dismissed by the order dated 27.11.2019 on the ground that the tenant has not admitted the arrears of rent, since he had already filed appeal before the Rent Control Appellate Authority against the order of the Rent Control Court in R.C.P.Nos.1, 2, 3, 4 and 17 of 2014 fixing the fair rent of the petition schedule shop room and the adjacent shop rooms, under Section 5(1) of the Act. 10 R.C.R.Nos.179 of 21, 183 of 2021, 2 of 2022 and 6 of 2022 Challenging the order dated 27.11.2019, the landlords filed R.C.A.No.42 of 2019 before the Rent Control Appellate Authority (Additional District Judge-V), Kollam, invoking the provisions under Section 18(1)(b) of the Act. That appeal was allowed by the judgment dated 30.06.2021 and the tenant was directed to pay or deposit arrears of rent, at the rate fixed by the Rent Control Court by a common order passed in R.C.P.Nos.1, 2, 3, 4 and 17 of 2014, with effect from 01.01.2014, with costs. Feeling aggrieved by the judgment dated 30.06.2021 of the Rent Control Appellate Authority in R.C.A.No.42 of 2019, the tenant is before this Court in this Rent Control Revision, invoking the provisions under Section 20 of the Act.
3. R.C.R.No.183 of 2021:- The petitioner is the respondent-tenant in R.C.P.No.40 of 2019 on the file of the Rent Control Court (Additional Munsiff-I), Kollam, a petition filed by the respondents herein under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 seeking eviction of the tenant from the petition schedule shop room. During the pendency of that RCP, the landlords filed I.A.No.3511 of 2019, an application under Section 12 of the Act seeking an order directing the tenant 11 R.C.R.Nos.179 of 21, 183 of 2021, 2 of 2022 and 6 of 2022 to deposit the admitted arrears of rent. That application was dismissed by the order dated 27.11.2019 on the ground that the tenant has not admitted the arrears of rent, since he had already filed appeal before the Rent Control Appellate Authority against the order of the Rent Control Court in R.C.P.Nos.1, 2, 3, 4 and 17 of 2014 fixing the fair rent of the petition schedule shop room and the adjacent shop rooms, under Section 5(1) of the Act. Challenging the order dated 27.11.2019, the landlords filed R.C.A.No.44 of 2019 before the Rent Control Appellate Authority (Additional District Judge-V), Kollam, invoking the provisions under Section 18(1)(b) of the Act. That appeal was allowed by the judgment dated 30.06.2021 and the tenant was directed to pay or deposit arrears of rent, at the rate fixed by the Rent Control Court by a common order passed in R.C.P.Nos.1, 2, 3, 4 and 17 of 2014, with effect from 01.01.2014, with costs. Feeling aggrieved by the judgment dated 30.06.2021 of the Rent Control Appellate Authority in R.C.A.No.44 of 2019, the tenant is before this Court in this Rent Control Revision, invoking the provisions under Section 20 of the Act.
4. R.C.R.No.2 of 2022:- The petitioner is the respondent- 12 R.C.R.Nos.179 of 21, 183 of 2021, 2 of 2022 and 6 of 2022 tenant in R.C.P.No.43 of 2019 on the file of the Rent Control Court (Additional Munsiff-I), Kollam, a petition filed by the respondents herein under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 seeking eviction of the tenant from the petition schedule shop room. During the pendency of that RCP, the landlords filed I.A.No.3510 of 2019, an application under Section 12 of the Act seeking an order directing the tenant to deposit the admitted arrears of rent. That application was dismissed by the order dated 27.11.2019 on the ground that the tenant has not admitted the arrears of rent, since he had already filed appeal before the Rent Control Appellate Authority against the order of the Rent Control Court in R.C.P.Nos.1, 2, 3, 4 and 17 of 2014 fixing the fair rent of the petition schedule shop room and the adjacent shop rooms, under Section 5(1) of the Act. Challenging the order dated 27.11.2019, the landlords filed R.C.A.No.43 of 2019 before the Rent Control Appellate Authority (Additional District Judge-V), Kollam, invoking the provisions under Section 18(1)(b) of the Act. That appeal was allowed by the judgment dated 30.06.2021 and the tenant was directed to pay or deposit arrears of rent, at the rate fixed by the Rent Control Court by a 13 R.C.R.Nos.179 of 21, 183 of 2021, 2 of 2022 and 6 of 2022 common order passed in R.C.P.Nos.1, 2, 3, 4 and 17 of 2014, with effect from 01.01.2014, with costs. Feeling aggrieved by the judgment dated 30.06.2021 of the Rent Control Appellate Authority in R.C.A.No.43 of 2019, the tenant is before this Court in this Rent Control Revision, invoking the provisions under Section 20 of the Act.
5. R.C.R.No.6 of 2022:- The petitioner is the respondent- tenant in R.C.P.No.41 of 2019 on the file of the Rent Control Court (Additional Munsiff-I), Kollam, a petition filed by the respondents herein under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 seeking eviction of the tenant from the petition schedule shop room. During the pendency of that RCP, the landlords filed I.A.No.3509 of 2019, an application under Section 12 of the Act seeking an order directing the tenant to deposit the admitted arrears of rent. That application was dismissed by the order dated 27.11.2019 on the ground that the tenant has not admitted the arrears of rent, since he had already filed appeal before the Rent Control Appellate Authority against the order of the Rent Control Court in R.C.P.Nos.1, 2, 3, 4 and 17 of 2014 fixing the fair rent of the petition schedule shop room and the 14 R.C.R.Nos.179 of 21, 183 of 2021, 2 of 2022 and 6 of 2022 adjacent shop rooms, under Section 5(1) of the Act. Challenging the order dated 27.11.2019, the landlords filed R.C.A.No.41 of 2019 before the Rent Control Appellate Authority (Additional District Judge-V), Kollam, invoking the provisions under Section 18(1)(b) of the Act. That appeal was allowed by the judgment dated 30.06.2021 and the tenant was directed to pay or deposit arrears of rent, at the rate fixed by the Rent Control Court by a common order passed in R.C.P.Nos.1, 2, 3, 4 and 17 of 2014, with effect from 01.01.2014, with costs. Feeling aggrieved by the judgment dated 30.06.2021 of the Rent Control Appellate Authority in R.C.A.No.41 of 2019, the tenant is before this Court in this Rent Control Revision, invoking the provisions under Section 20 of the Act.
6. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondents-landlords.
7. The order of the Rent Control Court fixing the fair rent of the petition schedule shop rooms, under Section 5(1) of the Act, vide a common order, was under challenge before the Rent Control Appellate Authority in R.C.A.Nos.19 of 2019, 21 of 2019, 22 of 2019 and 23 of 2019. Since fixation of the fair rent by the Rent Control 15 R.C.R.Nos.179 of 21, 183 of 2021, 2 of 2022 and 6 of 2022 Court was at a lower rate, the landlords have also filed R.C.A.Nos.22 of 2019, 23 of 2019, 25 of 2019 and 27 of 2019 before the Rent Control Appellate Authority. The learned counsel for the petitioner- tenant would submit that the Rent Control Appellate Authority, by a common judgment dated 27.07.2022 dismissed the above appeals and the tenant proposes to challenge the said judgment, invoking the revisional jurisdication of this Court under Section 20 of the Act.
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 rent which may subsequently become due in respect of the building, until the termination of the proceedings before the 16 R.C.R.Nos.179 of 21, 183 of 2021, 2 of 2022 and 6 of 2022 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 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 17 R.C.R.Nos.179 of 21, 183 of 2021, 2 of 2022 and 6 of 2022 prescribed, be withdrawn by the landlord on application made by him to the Rent Control Court or the Appellate Authority in that behalf.
9. 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.
10. 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 18 R.C.R.Nos.179 of 21, 183 of 2021, 2 of 2022 and 6 of 2022 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.
11. Section 12(2) of the Act enjoins a tenant to deposit the admitted rent under sub-section (1), within such time as the court may fix and in such manner as may be prescribed. The time fixed by the court for the deposit of the arrears of rent and the time fixed for the deposit of rent which subsequently accrues due shall not be less than that specified in the proviso to Section 12(2). As per the statutory mandate of Section 12(1), on an application filed by the landlord under Section 12, the Rent Control Court or the Appellate Authority, as the case may be, has to order payment or deposit of arrears of rent admitted by the tenant to be due in respect of the petition schedule building, up to the date of payment or deposit and the tenant shall also be directed to continue to pay or deposit any rent which may subsequently 19 R.C.R.Nos.179 of 21, 183 of 2021, 2 of 2022 and 6 of 2022 become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, regardless of the relief sought for in that application. Therefore, even in a case in which the relief sought for in an application filed under Section 12 of the Act is confined to payment or deposit of admitted arrears of rent up to the date of application or up to the date of order to be passed in that application, the Rent Control Court or the Appellate Authority, as the case may be, is statutorily bound to pass an order directing the tenant to pay or deposit admitted arrears of rent up to the date of payment or deposit and continue to pay or deposit rent which may subsequently become due, until termination of that proceedings.
12. In Williams Daniel v. Jose [2019 (5) KHC 205] the question that came up for consideration before the Division Bench of this Court is as to whether the expression "arrears of rent admitted" in Section 12 of the Kerala Buildings (Lease and Rent Control) Act could be interpreted to include the 'fair rent' fixed in a rent control proceeding under Section 5(1) of the Act also, apart from the contractual rent agreed to between the parties. The 20 R.C.R.Nos.179 of 21, 183 of 2021, 2 of 2022 and 6 of 2022 Division Bench held that, Section 12 of the Act enjoins a tenant to pay or deposit arrears of rent admitted by him in the proceeding, in order to entitle him to contest a petition for eviction or prosecute an appeal, whether the ground of eviction be under Section 11(2)(b) of the Act or any other grounds statutorily recognised under Section 11. Section 12 makes it very clear that liability of a tenant to pay or deposit rent is only to the extent he admits the rate of rent or period of default. The object of the Section appears to deny the defaulting tenant's right to resist eviction proceeding without his making payment or deposit of arrears of rent to the extent he has acknowledged his liability. When the tenant denies the rate of rent or else disowns liability to pay or deposit arrears, the court has no power under Section 12 of the Act to conduct an enquiry and decide whether the denial is true or not.
13. In Williams Daniel the Division Bench held further that, once fair rent is fixed by the court, the rent agreed or stipulated by the parties to lease transaction comes to a total cessation and becomes unenforceable under law. The contractual rent is fully replaced by fair rent adjudged by the court in exercise 21 R.C.R.Nos.179 of 21, 183 of 2021, 2 of 2022 and 6 of 2022 of power vested in it under Section 5(1) of the Act. When the court adjudicates and quantifies the fair rent, the contract between the parties agreeing to any rate of rent or terms of payment vanishes for ever. The right or liability of parties to receive or pay the rent is thereafter governed by the terms of the order of court adjudicating the fair rent. Parties can no longer fall back upon the contractual rent and build his or her claim thereon, since the contract rent is non-existent under law. A tenant, in order to qualify to contest an eviction petition or prosecute an appeal, is bound to pay or deposit the arrears of fair rent already fixed by the court, as if the fair rent also means rent admitted by the tenant and payable by him under Section 12 of the Act. The expression 'arrears of rent admitted' in Section 12 of the Act, when read in the light of the scheme of the Act and provisions for fixing fair rent, could only be construed as rent incapable of being disputed or denied by the tenant. When a party is legally dis- entitled or disabled under law from denying or disputing a fact which was decided by the court after adjudicatory process, it is as good as a fact admitted by him, since under no circumstance he can wriggle out of the binding decision, unless it could be shown 22 R.C.R.Nos.179 of 21, 183 of 2021, 2 of 2022 and 6 of 2022 to be inconclusive. A tenant bound by an order fixing fair rent under Section 5(1) of the Act, cannot contend that he is not liable under Section 12 to deposit fair rent greater than contract rent agreed to between parties, adjudged by the court nor can a landlord similarly contend that he is entitled to contract rent larger than the fair rent adjudged by the court. The fair rent adjudged by the Court is at par with the expression 'admitted rent' used in Section 12 inasmuch as parties are estopped or precluded from disowning or renouncing their liability to pay or receive fair rent as long as it has attained finality under law.
14. The Rent Control Court dismissed the applications filed by the landlords under Section 12 of the Act seeking an order directing the tenant to remit or deposit admitted arrears of rent, on the ground that the tenant has not admitted the arrears of rent, since he had already filed appeals before the Rent Control Appellate Authority against the order of the Rent Control Court fixing the fair rent of the petition schedule shop rooms.
15. The fixation of the fair rent of the petition schedule shop rooms by the order of the Rent Control Court in R.C.P.Nos.1 of 2014 and connected matters, under Section 5(1) of the Act, 23 R.C.R.Nos.179 of 21, 183 of 2021, 2 of 2022 and 6 of 2022 was under challenge before the Rent Control Appellate Authority in the appeals filed by the tenant, invoking the provisions under Section 18(1)(b) of the Act. The landlords have also filed appeals before the Appellate Authority dissatisfied with the fixation of the fair rent by the Rent Control Court. The appeals filed by the tenant against the fixation of fair rent of the petition schedule shop rooms by the Rent Control Court was pending before the Rent Control Appellate Authority, when the Rent Control Court passed the impugned order dated 27.11.2019, in the applications filed by the landlords under Section 12 of the Act. The mere fact that the tenant has filed appeal against the order of the Rent Control Court fixing the fair rent of the petition schedule shop rooms is not a valid reason for the Rent Control Court to reject the application filed by the landlord under Section 12 of the Act, on the ground that the tenant has not admitted the arrears of rent.
16. It is well settled that mere filing of a petition, appeal or suit would by itself not operate as stay until specific prayer in this regard is made and orders thereon are passed. [See: Madan Kumar Singh v. District Magistrate, Sultanpur (2009) 9 SCC 79].
24R.C.R.Nos.179 of 21, 183 of 2021, 2 of 2022 and 6 of 2022
17. In Inderchand Jain (Dead) through LRs. V. Motilal (Dead) through LRs. [(2009) 14 SCC 663], the Apex Court held that Order XLI Rule 5(1) of the Code of Civil Procedure, 1908 stipulates that the filing of an appeal would not amount to automatic stay of execution of the decree. The law acknowledges that, during the pendency of the appeal, it is possible for the decree holder to get the decree executed.
18. In Reliance General Insurance Co. Ltd. and others v. Ambika Kumari K. and another [2020 (3) KLT 450] this Court held that, in view of the provisions under Order XLI, sub- rule (1) of Rule 5 of the Code of Civil Procedure, 1908 and the law laid down by the Apex Court in Madan Kumar Singh (supra) and Inderchand Jain (supra), mere filing of an appeal would by itself not operate as stay until specific prayer in this regard is made and orders thereon are passed by the appellate court. During the pendency of the appeal, it is possible for the decree holder to get the decree executed. In view of the provisions under Explanation to sub-rule (1) of Rule 5 of the Code of Civil Procedure, an order by the appellate court for the stay of execution of the decree shall be effective only from the date of communication of such order to 25 R.C.R.Nos.179 of 21, 183 of 2021, 2 of 2022 and 6 of 2022 the court of first instance. However, pending the receipt from the appellate court of the order for stay of execution, an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the appellate court shall be acted upon by the court of first instance.
19. In view of the law laid down in Williams Daniel [2019 (5) KHC 205] and also that laid down in Ambika Kumari K. [2020 (3) KLT 450, we find no reason to sustain the reasoning of the Rent Control Court in the order dated 27.11.2019 on the interlocutory applications filed by the landlords under Section 12 of the Act. The Appellate Authority, in the impugned judgment dated 30.06.2021, set aside the aforesaid order of the Rent Control Court, placing reliance on the law laid down by this Court in Williams Daniel [2019 (5) KHC 205] and directed the tenant to pay or deposit the arrears of rent of the petition schedule shop rooms, at the rate fixed by the Rent Control Court in the common order passed under Section 5(1) of the Act, i.e., the order passed in R.C.P.No.1 of 2014 and connected matters, with effect from 01.01.2014.
26R.C.R.Nos.179 of 21, 183 of 2021, 2 of 2022 and 6 of 2022 In the result, no interference is warranted in the impugned judgment dated 30.06.2021 of the Rent Control Appellate Authority in R.C.A.Nos.41, 42, 43 and 44 of 2019. These Rent Control Revisions are accordingly dismissed.
The submission made by the learned counsel for the petitioner-tenant that the tenant proposes to challenge the judgment of the Rent Control Appellate Authority dated 27.07.2022 in R.C.A.Nos.19 of 2019 and connected matters is recorded.
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ANIL K.NARENDRAN JUDGE Sd/-
P.G. AJITHKUMAR JUDGE PV