Kerala High Court
Karaparambil Sidharthan vs Kalathingal Hansankutty Haji And Ors. on 20 July, 1994
Equivalent citations: AIR1995KER122, AIR 1995 KERALA 122, (1996) 2 RENCJ 442, (1994) 2 KER LJ 387, (1995) 2 RENCR 650, (1994) 2 KER LT 419
JUDGMENT Balanarayana Marar, J.
1. Revision is directed against the judgment of Rent Control Appellate Authority, Kozhikode in R.C.A. 129 of 1990. That was an appeal against the order of Rent Control Court, Kozhikode-I in I.A. 4010/89 in R.C.P. 158 of 1987. The second appellant before the Rent Control Appellate Authority is the revision petitioner.
2. The rent control petition was filed by respondents 1 to 11 against revision petitioner and respondents 12 and 13 for eviction on the ground of bona fide need for own occupation. Alleging that the tenant has failed to pay the admitted arrears the landlords moved the Rent Control Court by I.A. 4010/89 for an order under Section 12(3) of the Rent Control Act. After hearing both sides the Rent Control Court by order dated 20-1-1990 directed the respondents in the Rent Control Petition to pay or deposit the entire arrears of rent till date as claimed in the petition on or before 20-2-1990 or to show cause why all further proceedings shall not be stopped and respondents directed to put the petitioners in possession of the petition schedule building. That order was challenged before the Appellate Authority. By order dated 31-5-1990 the Appellate Authority dismissed the petition on account of the failure of the appellants to comply with the requirement under Section 12(2) of the Rent Control Act. Hence the revision.
3. Heard counsel on both sides.
4. Section 18(1)(b) enables any person aggrieved by an order of the Rent Control Court to prefer an appeal to the Appellate Authority within 30 days from the date of order. Section 12(1) inter alia directs that no tenant against whom an order for eviction has been passed shall be entitled to prefer an appeal under Section 18 unless he deposits with the Appellate Authority all arrears of rent admitted by the tenant to be due in respect of the bulding up to the date of deposit. A learned single Judge of this Court in the decision in Muhamed Kunju v. Rajamma (1989 (2) Ker LT 549) held that if the tenant's appeal before the Appellate Authority is not supported by the pre-deposit or pre-payment of the admitted arrears no valid appeal is preferred and unless the deposit or payment is made within the prescribed period the appeal presented will not become valid subsequently either. The Appellate Authority found the appeal to be not maintainable on the basis of this decision. The decision has since then been overruled by a Division Bench in Pochappan Narayanan v. Gopalan (1990 (2) Ker LT 1) : (AIR 1991 Ker 154). The Division Bench held that paying or depositing of all arrears of rent admitted by the tenant is not a condition precedent for presenting an appeal under Section 18 of the Act. The appeal gets properly lodged when the same is presented in accordance with that section. It is further held that a tenant who does not fulfil the obligations imposed on him by Sub-section (1) of Section 12 cannot be visited with the penal consequences contemplated by Sub-section (3) unless all the conditions specified by Sub-section (2) are satisfactorily fulfilled. It is observed that the tenant has to be given one more opportunity by showing cause as to why penal consequence contemplated by Sub-section (3) should not be imposed on him even after the Court acts in accordance with Sub-section (2) of Section 12 and the tenant still commits default. 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.
5. The Division Bench quoted with approval the following observations in C.V. Xavierv. Francis Leonard Pappali, (1975 Ker LT 542):
"It is difficult to read Section 12(3) independent of Section 12(2). It is true that Section 12(1) restricts the right of the tenant against whom an application for eviction has been made under Section 11 to contest the application before the Rent Control Court or to prefer appeal unless he had paid or pays to the landlord or deposits in the Rent Control Court or before the Appellate Authority the admitted arrears. It is evident from Sub-section (2) that the deposit contemplated under Sub-section (1) has to be in accordance with Sub-section (2), which means that it has to be made only in the manner provided under Section 12(2). Hence the deposit the tenant has to make under Section 12(1) has to be within the time to be fixed by an order under Section 12(2). Even if he has been in default he does not lose the right to contest the application until and unless an order under Section 12(2) is passed any without sufficient the tenant fails to comply with it. We have already indicated that this is a safeguard given to a tenant which is necessary in the circumstances of the case. For, if even non-payment of recurring rent without anything more would be sufficient to stop further proceedings and pass an order for eviction it would mean that in every case where a tenant has omitted to pay or delayed payment even by a day not only the arrears of rent due but also the recurring payment he would lose his right to contest the application and would have to receive an order for eviction. The rigor of the provision with regard to an order for eviction without contest has been considerably softened by the safeguards in Sub-section (2), as we have said earlier and therefore, it is only on the passing of order under Section 12(2) that the obligation to comply with it and the consequences of non-compliance attracting Section 12(3) would arise. We cannot conceive of independent obligations under Section 12(1) and 12(2) and their application to different sets of cases ....."
We are in complete agreement with the views expressed in Pochappan Narayanan's case (AIR 1991 Ker 154) (DB) (supra). Viewed in the light of the principles laid down therein the impugned order of the Appellate Authority is unsustainable. The appeal cannot be said to be not maintaianable merely for the reason that the tenant has failed to deposit the admitted arrears along with the presentation of the appeal. The Appellate Authority has not followed the procedure contemplated under Sub-section (2) of Section 12 and explained in the aforesaid decision. The impugned order is liable to be set aside and we do so.
6. The question now arises whether the appeal should be remanded to the Appellate Authority for consideration on merits. We are not inclined to adopt that course since in our ' view the appeal is even otherwise not maintainable. What is challenged in appeal is an interlocutory order in the rent control petition which itself cannot be said to have determined the rights of parties finally nor can it be said that it affects some right or liability of any party. The Rent Control Court has only directed the tenant to pay the arrears of rent or to show cause why further proceedings should not be stopped and the landlord put in possession of the building. It is up to the tenant either to pay the arrears or to show cause why an order directing the tenant to put the landlord in possession should not be passed. Instead of either paying the arrears or showing cause the tenant has rushed to the Appellate Authority challenging that order. Section 18 does not permit the tenant to challenge such an order in appeal.
7. The Supreme Court as early as 1967 held in Central Bank of India v. Gokal Chand, (AIR 1967 SC 799) that even an interlocutory order passed under Section 37(2) of the Delhi Rent Control Act is an order passed under that Act and is subject to appeal provided it affects some right or liability of any party. The Supreme Court observed that the object of Section 38(1) of the Act was to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of Section 38(1) the words "every order of the Controller made under this Act" though very wide, do not include interlocutory orders which are merely procedural and do not affect the rights or liabilities of the parties. The Supreme Court further observed that all interlocutory orders regarding summoning of witnesses, discovery, production and inspection of documents, issue of commission for examination of witness, inspection of premises, fixing the date of hearing and the admissi-bility of a document or the relevancy of a question are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding. It was held that these orders regulate the procedure only and do not affect any right or liability of the parties.
8. Interpreting the provision contained in Section 18 of the Rent Control Act and applying the principles laid down by the Supreme Court in the aforesaid decision a Division Bench of this Court in Thomas John v. Kochammini Amma (1991 (1) Ker LT 99) : (AIR 1991 Ker 132) held that an order passed on an application to set aside the report of the Commissioner and to appoint a fresh Commissioner is only a procedural'one and does not affect the rights of any party. The matter was again considered in Sumathi v. Devasan (1991 (1) Ker LT 453) : (AIR 1991 Ker 295) wherein it was held that an order of refusal to try and decide a particular point as a preliminary issue is not an order affecting the rights of any party and is not appealable. After a survey of various judicial pronouncements this Court held (at p 300 of AIR):
"A conspectus of these decisions leads to the conclusion that though Section 18(1)(b) is wide in its terms an appeal does not lie unless the order in question is finally disposing of the proceedings or is one which affects the rights or liabilities of the parties."
Each case will depend on its own facts. It is observed that apart from the final orders, only those orders which virtually put an end to the proceedings or make it practically impossible for the affected party to get effective relief or to set up or substantitate a defence are rendered appealable. We are in complete agreement with these observations.
9. Viewed in the light of the principles stated above the appeal before the Appellate Authority is not maintainable. The appeal was directed against a procedural order which only directed the tenant to pay the arrears of rent or to show cause why an order under Section 12(3) should not be passed directing the tenant to put the landlord in possession. It is not a final order nor does the order affect any right or liability of any party. The dismissal of the appeal by the Appellate Authority is therefore proper and we sustain the same though for different reasons.
10. We arc constrained to observe that the tenants were able to postpone payment of considerable amount towards arrears of rent on account of frivolous appeal filed by them. The order of the Rent Control Court is dated 20-1-1990, about 4 1/2 years back. It is brought to our notice that some amounts were paid during the pendency of the revision in pursuance to the order of this Court. It appears that there will be considerable amount of arrears even after such payments. Since the direction of the Rent Control Court has not been complied with and even before such compliance the tenants had challenged that order the only course open is to direct the Rent Control Court to proceed from the stage at which the order dated 20-1-1990 was passed. An opportunity has therefore to be given to the tenant to pay or deposit the admitted arrears of rent or to show cause why the proceedings should not be stopped and the landlord to be put in possession of the building.
For the aforesaid reasons the revision is dismissed. At the same time we direct the Rent Control Court to afford an opportunity to the tenants to pay or deposit the admitted arrears of rent or to show cause why all further proceedings should not be stopped and the tenants directed to put the landlord in possession of the building. While doing so, the direction should be to deposit all the admitted arrears up to the date of that order excluding the amounts paid during the pendency of the proceedings. The Rent Control Court shall follow the procedure contemplated in Section 12 and the principles laid down by this Court in Pochappan Narayanan's case (1990 (2) Ker LT 1) : (AIR 1991 Ker 154) (DB).
Revision is disposed of as above.