Kerala High Court
M. Shaji vs S.N.D.P. Sakhayogam No.6 on 28 April, 2020
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim, A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
and
THE HONOURABLE MRS. JUSTICE SHIRCY V.
TUESDAY, THE 28TH DAY OF APRIL 2020 / 8TH VAISAKHA, 1942
RCRev..No.284 OF 2015
AGAINST THE ORDER IN RCA 9/2015 OF DISTRICT COURT, ALAPPUZHA
REVISION PETITIONER/APPELLANT/COUNTER PETITIONER/ TENANT:
M. SHAJI,
S/O. MADHAVAN, AGED 43 YEARS,
MANAPARAMBU HOUSE, PUNNAPRAMURI,
PUNNAPRA VILLAGE, ALAPPUZHA DISTRICT.
BY ADVS.
SRI.K.S.HARIHARAPUTHRAN
SRI.GEORGE MATHEW
SHRI.SUNIL KUMAR A.G
RESPONDENT/RESPONDENT/PETITIONER/LAND LORD:
1 S.N.D.P. SAKHAYOGAM NO.610,
PUNNAPRA EAST, PUNNAPRA, ALAPPUZHA DISTRICT,
REPRESENTED BY ITS SECRETARY, K.S. SYAMALAL,
S.N.D.P. SAKHAYOGAM No.610, PUNNAPRA EAST, ALAPPUZHA,
PIN-688 004.
2 PRESIDENT UTHAMAN OF DO DO
R1 BY ADV. SRI.A.N.RAJAN BABU(B/O)
R1 BY ADV. SRI.R.AZAD BABU
R1 BY ADV. SRI.G.KEERTHIVAS
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 28-
11-2019, THE COURT ON 28-04-2020 PASSED THE FOLLOWING:
R.C.R No.284/2015 -2-
'C.R.'
C.K. ABDUL REHIM, J.
A. HARIPRASAD, J.
&
SHIRCY V., J.
-------------------------------------------------
R.C.R No. 284 OF 2015
-------------------------------------------------
DATED THIS THE 28th DAY OF APRIL, 2020
ORDER
Abdul Rehim, J:
Through an order of reference passed by a Division Bench of this court on 04-12-2015, the above Rent Control Revision Petition is posted for consideration of a Full Bench, for a decision on the issue, whether the Rent Control Court was bound to issue notice to the tenant calling upon him to show sufficient cause as to why further proceedings before that court shall not be stopped and an order of eviction passed, under Section 12 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for short).
2. Brief facts involved are that, the landlord sought eviction of the tenant on the ground of arrears of rent and bonafide need of the tenanted premises for own occupation, under Section 11 (2) (b) and 11 (3) of the Act. During pendency of the proceedings before the Rent Control Court, the landlord filed an interim application under Section 12 of the Act praying R.C.R No.284/2015 -3- for an order directing the tenant to pay the admitted arrears of rent till date, and for continued payment of the rent without default till the final disposal of the rent control petition. The tenant did not file any counter statement / affidavit resisting the application. On 01-11-2014, the Rent Control Court passed an order under Sub-Sections (1) of Section 12, directing the tenant to pay the arrears of rent at the admitted rate, within a period of 4 weeks. The interim application was directed to be posted on 15-12-2014 for reporting about the payment. But the tenant filed an application seeking further time of 15 days for depositing the arrears, under Section 148 of the Code of Civil Procedure. The Rent Control Court allowed the said application and directed payment of the arrears on or before 01-01-2015. On 01-01-2015 the tenant submitted that, an application seeking further enlargement of time for two weeks has been filed. But there was no such application available on record. However, based on the oral submission of the counsel for the tenant, the Rent Control Court again granted two weeks time from 05-01-2015 and directed to post the case on 20-01-2015, for verification of the payment. The tenant filed yet another interim application seeking further time of 10 days for making the payment. The said interim application was dismissed by the Rent Control Court R.C.R No.284/2015 -4- on 20-01-2015 and the case was adjourned to 24-01-2015. On that day, having found that the tenant had not paid or deposited the arrears of rent, the Rent Control Court passed an order under Section 12 (3), stopping further proceedings in the rent control petition and directing the tenant to put the landlord in possession of the building. The tenant attempted an appeal from the said order before the Appellate Authority, which was unsuccessful. It is against the order of the Appellate Authority dismissing the appeal, that the present Revision Petition is filed.
3. On behalf of the Revision Petitioner / tenant, the order of the Rent Control Court, passed under Section 12, (3) of the Act was assailed on the ground that, there occurred failure to comply with the stipulations in sub-section (3) of Section 12 in so far as the tenant was not provided with an opportunity to show cause why further proceedings shall not be stopped in the rent control petition and an order of eviction passed. In this regard the Revision Petitioner relied on a Division Bench Decision of this court in Pochappan Narayanan V. Gopalan ((1990 (2) KLT 1). It is held therein that, when the tenant fails to pay or deposit the admitted rent, as directed under sub-sections (1) & (2) of Section 12, the Rent Control Court or the Appellate Authority, as the case may be, is required to ask the tenant to R.C.R No.284/2015 -5- show cause why all further proceedings should not be stopped and an order made directing the tenant to put the landlord in possession. When such an opportunity is afforded to the tenant, he is entitled to show if there is any sufficient cause for his failure to pay the amount or to deposit the rent. If the Rent Control Court or the Appellate Authority is satisfied that there existed sufficient cause in not making payment or depositing the amount within the time, he will not make an order stopping further proceedings and directing the tenant to put the land lord in possession. If, however, he is not satisfied about the cause shown, an order has to be made stopping all further proceedings and directing the tenant to put the land lord in possession. The Division Bench also observed that, before any steps can be taken under sub-section (3) for making an order against the tenant who has committed default in paying or depositing the arrears as contemplated under sub-section (1), the procedure prescribed under sub-section (2) has to be satisfied. Sub-section (2) imposes an obligation on the part of the court to grant time to the tenant who has committed the default in paying or depositing admitted arrears of rent contemplated by sub-section (1). Therefore the tenant who does not fulfill the obligation imposed on him by sub- section (1) cannot be visited with the penal consequences R.C.R No.284/2015 -6- contemplated by sub-section (3), unless all the conditions specified in sub-section (2) are satisfactorily fulfilled. Even after the courts acts in accordance with sub-sections (1) & (2) of Section 12 and the tenant still continues with the default, the tenant has to be given one more opportunity of showing cause as to why the penal consequences contemplated under sub-section (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.
4. Contention of the Revision Petitioner / tenant enumerated as above was resisted by the landlord by placing reliance on another Division Bench decision of this court, in Narayanan V. Vinod (2004 (3) KLT 955). The question dealt with was that, whether the Rent Controller 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 the admitted rent; or is it for the tenant himself to file application and to bring to the notice of the court the reasons which prevented him from depositing the rent. It was held that, if the admitted arrears of rent are not deposited within the time R.C.R No.284/2015 -7- fixed by the court, the tenant makes a default resulting in penal consequences of his immediate eviction by stopping further proceedings. This, however, will not happen if the tenant is able to show 'sufficient cause' in making the default in depositing the admitted rent. From the language of Section 12 (3) of the Act and the legislative intent, it is not for the Rent Controller or the Appellate Authority to issue any separate notice to the tenant to enable him to show sufficient cause in not depositing the admitted arrears of rent. When the time fixed by the court for deposit of the arrears of rent runs out and the tenant has not deposited the same, the Rent Controller or the Appellate Authority, as the case may be, is not expected to pass an order ordering ejectment of the tenant forthwith. The Rent Controller or the Appellate Authority, while fixing the time within which the arrears of rent shall be deposited by the tenant should normally adjourn the hearing of the case to a date beyond the date fixed for depositing the rent, thereby allowing reasonable time to the tenant to show sufficient cause for not depositing the rent if he has committed default in payment.
5. On behalf of the landlord / respondent, reliance was paced on a decision of the Hon'ble Supreme Court in Sankaran Pillai V. V.P. Venuguduswami ((1991) 6 SCC 396 = AIR R.C.R No.284/2015 -8- 1999 SC 3060) to support the contention that it is for the tenant to show 'sufficient cause' and not for the Rent Control Court or the Appellate Authority, as the case may be, to issue any show cause notice calling upon the tenant to show cause why an order of eviction shall not be passed.
6. Based on the rival contentions, the Division Bench found that there arose an issue to be decided as to whether the Rent Controller was bound to issue a notice to the tenant calling upon him to show cause why further proceedings before it shall not be stopped and an order of eviction passed under Section 12 (3) of the Act. In the order of reference it is mentioned that, in Narayanan V. Vinod (supra) the Division Bench held that the Rent Controller or the Appellate Authority, as the case may be, where the 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. But while deciding the said case, the Division Bench decision in Pochappan Narayanan V. Gopalan (supra) was not brought to the notice of this court. It is also pointed out that, another Division Bench decision in C.V. Xavier and others V. Francis Leonard Pappali (1975 KLT 542) was also not R.C.R No.284/2015 -9- brought to notice while deciding the case in Narayanan V. Vinod (supra). In C.V. Xavier V. Francis Leonard Pappali (supra) it was held that, the reasonable opportunity contemplated under Section 12 (3) of the Act must be a reasonable and real opportunity and is not an empty formality. If the tenant is not given such opportunity to show sufficient cause, an order passed under Section 12 (3) would be unsustainable. It is found that the tenant is to show sufficient cause not when an order of eviction under Section 12 (3) is passed, but prior to that order. Therefore the opportunity has to be given after the expiry of the time fixed for deposit of the arrears of rent, but before passing of the order under Section 12 (3). There must be a reasonable interval sufficient for the tenant to show cause to the contrary. What would be the reasonable opportunity is not possible of any precise definition and must be left to the decision based on the facts and circumstances of each case.
7. It is in view of the conflicting decisions on the point, as to how and in what manner the opportunity to the tenant to show 'sufficient cause' has to be provided, the matter was placed for consideration of the Full Bench. We heard Shri.A.N. Rajan Babu appearing for the Revision Petitioner and Shri. G. Keerthivas, who appeared for the respondent.
R.C.R No.284/2015 -10-
8. It may be beneficial to extract sub-section (3) of Section 12.
Section 12 (3) : 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."
9. Question referred for decision is whether the Rent Control Court or the Appellate Authority, as the case may be, is bound to issue a notice to the tenant calling upon him to show cause why further proceedings before it shall not be stopped and an order of eviction be passed under Section 12 of the Act. One of the oldest case on the subject is a Division Bench decision of this court in Narayanan V. Muraleedhara Maran (1964 KLT 509). Findings therein is that, when the court had passed an order directing a party before it to do a particular thing, in default of which certain consequence is to follow, if the party is to be relieved of the consequences of any non-compliance of that order, he has to make a specific motion thereof showing sufficient cause for his non-compliance of the order and making appropriate prayer therein. Otherwise the order would work itself out and the default to comply with it will bring the appointed consequences on the tenant. In the year 1975, in R.C.R No.284/2015 -11- C.V. Xavier and others V. Francis Leonard Pallali (supra) another Division Bench of this court found that, the opportunity to be afforded to show 'sufficient cause' must be reasonable and real and is not an empty formality to be observed by the court. If there is any failure in giving such opportunity the order passed under Section 12 (3) would be unsustainable. It is also further held therein that, such opportunity is to be given after the expiry of the time fixed for deposit of the arrears of rent, but before passing of order under Section 12 (3). It is held that there must be a reasonable interval sufficient for the tenant to show cause to the contrary. The court found that, what would be reasonable is not possible for any precise definition and must be left to be decided on the facts and circumstances of each case. While deciding the case, Pochappan Narayanan V. Gopalan (supra), in the year 1992, another Division Bench found that, the Rent Control Court or the Appellate Authority, as the case may be, will be required to be asked the tenant to show cause why all further proceedings shall not be stopped and an order made directing the tenant to put the landlord in possession. When such an opportunity is afforded to the tenant, he is entitled to show if there is sufficient cause for the failure to pay the amount or deposit the rent as directed under sub-sections (1) & (2) of R.C.R No.284/2015 -12- Section 12. The Hon'ble Supreme Court in Sankaran Pillai V. V.P. Venuguduswami (supra) had considered the question with respect to scope of the term, 'show sufficient cause' contained in Section 11 (4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, which is in pari materia with Section 12 (3) of the Act. It is held that, it is no doubt true that the expression 'sufficient cause' has to be liberally construed to do substantial justice between the parties. But the expression 'sufficient cause' necessarily implies an element of sincerity, bonafide, and reasonableness. It has to be shown by the tenant who has not deposited the rent within the time, as directed by the Rent Controller, that the non-deposit of the rent was beyond his control and there was no element of negligence or inaction or lack of bonafides on his part in not depositing the rent within the time.
10. Referring to all the above cited decisions, another Division Bench of this court in Davy V. Indu (1999 (3) KLT
434) observed that, when the tenant did not file any petition for extension of time and when no sufficient cause was shown by him, the contention that the court should provide him with sufficient opportunity does not deserves consideration. R.C.R No.284/2015 -13-
11. In view of the principle evolved in Narayanan V. Vinod (supra), from the language of Section 12 (3) of the Act and from the legislative intent, it is not for the Rent Controller 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 by the court for deposit of the arrears of rent runs out and the tenant has not deposited the same, the Rent Controller or the Appellate Authority, as the case may be, is not expected to pass an order ordering ejectment of the tenant forthwith. The Rent Controller 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. We are of the considered opinion that the interpretation made and the directions issued in Narayanan V. Vinod (supra) is more apt and appropriate to be held as a view which can be legally sustained. It cannot be disputed that the opportunity to be afforded to the tenant to show 'sufficient cause' with respect to the failure to pay or to deposit the rent as directed in sub- sections (1) & (2), within the date stipulated, is not an empty R.C.R No.284/2015 -14- formality. The principle of natural justice would mandate that the Rent Controller or the Appellate Authority, as the case may be, should afford the tenant with such an opportunity. But the question is whether the Rent Controller or the Appellate Authority need to issue any specific notice in this regard to the tenant to show cause. It is to be noticed that, the consequences provided under sub-section (3) follows when there occurres 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 sub- sections (1) & (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 not 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 R.C.R No.284/2015 -15- Controller or the Appellate Authority, as the case may be, should stop the proceedings and direct the tenant to put the landlord in possession of the building. Such a procedure, if followed, would be sufficient compliance for providing reasonable opportunity satisfying the statutory requirement contained in Section 12 (3). Hence we are of the considered opinion that the decision in Narayanan V. Vinod (supra), eventhough passed without noticing the decision in Pochappan Narayanan V. Gopalan (supra) had laid the correct law. The view in this regard has got support from the decision of the Hon'ble Supreme Court in Sankaran Pillai V. V.P. Venuguduswami (supra) and also from the decision of this court in C.V. Xavier V. Francis Leonard Pappali (supra) and Narayanan V. Muraleedhara Maran (supra). Hence the reference is answered accordingly.
The Registry shall post the Rent Control Revision Petition for disposal before the Bench dealing with the subject matter, as per the roster.
Sd/-
C.K.ABDUL REHIM, JUDGE.
Sd/-
A.HARIPRASAD, JUDGE.
Sd/-
SHIRCY V., JUDGE.
AMG