Kerala High Court
Karthyayani vs S.N.D.P. Sakha Yogam on 16 September, 2004
Equivalent citations: 2004(3)KLT524
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, P.R. Raman
ORDER K.S. Radhakrishnan, J.
1. Has the Rent Control Court got the discretion to allow time more than once to the tenant to pay arrears of rent with interest and cost of proceedings under Section 11 (2)(c) of Act 2 of 1965 after the expiry of statutory period of one month, is the question that has come up for consideration in this case.
2. This matter has been placed before us on a reference made by one of us (K.S. Radhakrishnan, J.) in view of the conflicting opinions expressed by various Division Benches with regard to the powers of the Rent Control Court under Section 11(2)(c) of the Act while dealing with application filed by the tenant for extension of time for deposit of arrears of rent, interest and cost of proceedings.
3. Section 11 (2)(a) enables a landlord to apply to the Rent Control Court for an order of eviction if the tenant has not paid or deposited 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 or in the absence of any such agreement by the last day of the month next following that for which the rent is payable. Rent Control Court if it is satisfied, after giving the tenant an opportunity of showing cause against the application shall make an order under Section 11(2)(b) directing the tenant to put the landlord in possession of the building or else it can reject the application. Proviso to Section 11(2)(b) states that application under Section 11(2)(a) 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 6% per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or of the refusal thereof. Statute has however made a restriction under Section 11(2)(c) stating that the order passed by the Rent Control Court under Section 11(2)(b) shall 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. If the tenant deposits the arrears of rent with interest and cost of proceedings within the period of one month statutorily fixed or within such further period allowed by the Rent Control Court it shall vacate the order of eviction.
4. The question that is posed for consideration is whether the Rent Control Court has got the power to allow time more than once after the expiry of one month's time statutorily fixed enabling the tenant to deposit the rent with interest and cost of proceedings. Similar issue came up for consideration before a learned Single Judge of this Court, while dealing with Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1959. Interpreting the said provision, especially the words "such other period", learned Single Judge of this Court (P.T. Raman Nayar, J.) in Mohamed Khani Rawther v. Thaivana Ammal, 1963 KLT 205, held that the use of the expression, "other period" instead of, "further period" contemplates a "substituion" of the time allowed by the section and not an "enlargement" or "other modification". The learned Judge further held that if the time allowed by the section is to be displaced, that must be done when the order for eviction is made; or else the time allowed by the section comes into play. It was held that such other period means the time allowed by the order itself and not by any other order. The provisions of 1959 Act again came up for consideration before a Full Bench of this Court in Kurian v. Saramma Chacko, 1964 KLT 1, and the Bench held that the order directing the tenant to put the landlord in possession of the building shall not be executed before the lapse of one month from the date of the order of the Rent Control Court and if the tenant deposits arrears of rent with interest and cost of proceedings within one month of such order or such other period as may be allowed by the Rent Control Court, it shall vacate that order. A learned Single Judge (V. Balakrishna Eradi, J.) in Harihara Iyer v. First Additional District Judge, 1969 KLT 974, also considered a similar application filed under the Travancore-Cochin Buildings, Lease and Rent Control Order. While the proceeding was pending, Kerala Buildings Lease and Rent Control Ordinance, 1959 came into force. Justice Eradi however rejected the prayer of the tenant for further extension of time.
5. A Division Bench of this Court consisting of Justice T.C. Raghavan and Justice E.K. Moidu in Bava Cheriyan v. Mahadeva Iyer, 1971 KLT 199, later examined the correctness of the decisions in Mohamed Khani Rawther v. Thaivana Animal, 1963 KLT 205 and Harihara Iyer v. First Additional District Judge, 1969 KLT 974, in the light of the Kerala Buildings (Lease and Rent Control) Amendment Act, 1965, as amended by Act 7 of 1966 by which the words "such other period" were replaced by "such further period" in Clause 11(2)(c)of the Act. Placing reliance on the reasoning of the Full Bench in Kurien's case, supra, (1964 KLT 1) the Division Bench in Bava Cherian's case, held as follows:
"Two reasons appear to have weighed with the Single Judge in Mohamed Khani Rawther's case. The first was that the language of Section 11(2)(b) in its original form -- in its unamended form -- was "within a month of such order or such other period as may be allowed". The learned Judge has pointed out that, since the expression used was "such other period" instead of "such further period", the Rent Control Court had no jurisdiction to extend the time. The reasoning was that the expression "other period" suggested a "substitution" and not an "enlargement" or "other modification" and the substitution had to be made by the Rent Control Court itself when it passed the order in eviction. This suggestion thrown out by the learned Judge appears to have been accepted by the legislature, since the legislature has substituted by Act 7 of 1966 Clause (c) to Section 11(2) by adding "such further period" in the place of "such other period". Therefore, this reasoning based on the language, even if it had force at the time when the decision in Mohamed Khani Rawther's case was given, ceased to have force after Clause (c) was substituted. The amendment had taken away the force of the reasoning of the Single Judge in that case, and it had strengthened or added to the reasoning of the Full Bench, though the Full Bench came to its conclusion on other reasoning".
The Bench therefore concluded that the decisions in Mohamed Khani Rowther's case and Harihara Iyer's case are not good law.
6. Later another Division Bench of this Court headed by Justice Balakrishna Eradi in Sreedharan v. Muhammed Kunhi, 1978 KLT 20, followed the decision in Cheriyan v. Mahadeva Iyer, 1971 KLT 199, and held as follows:
"The circumstance that the one month period of suspension of execution is laid down by the statute does not deprive the Rent Control Court's power to enlarge the period as the power to enlarge or to grant "such further period" is conferred by the statute itself. There is nothing in the expression "such further period" to suggest that the power to enlarge the period could be exercised only before and not after its expiry. Even though the expression "such further period" would have only empowered the Rent Control Court to substitute a different period by the order of eviction, the words "such further period" by which it was substituted, permit an enlargement by a subsequent order. The power to enlarge thus flows from Section 11(2)(c) itself. Nor is this the sole source of power for Section 23(1)(i) expressly confers the power to enlarge the time originally fixed or granted as is vested in a Court under the Civil Procedure Code".
The above decision of the Division Bench was later followed by another Division Bench in Rabi Umma v. Mukundan, 1992 (1) KLT 700, and held as follows:
"If that be the ultimate object or purpose of the legislation as is clear from the provisions in Section 11 (2)(c) of the Act; there cannot be any doubt about the fact that so long as the order for surrender remains executable the Rent Control Court and the appellate authority should have power to exercise their discretionary power to grant further time at least once as explained in Lakshmi v. Kuppuswamy Chettiar, 1983 KLT 703 and Madhavan v.District Judge, 1988(1) KLT 318. Till the order for surrender is actually executed the tenant must be held to be entitled to move the Court to grant further time and to get the order for surrender (vacated) sic as contemplated by Section 11(2)(c)of the Act".
The Division Bench however took the view that there cannot be any dispute regarding the power of the Rent Control Court and the appellate authority to grant further time either before or after the expiry of the period originally fixed either statutorily or as per the order of the Court. The Bench however opined that the Rent Control Court and the Appellate Authority should have the power to exercise the discretion to grant further time at least once as explained in Lakshmi v. Kuppuswamy Chettiar, 1983 KLT 703, and Madhavan v. District Judge, 1988 (1) KLT 318. The Bench also took the view that till the order for surrender is actually executed the tenant must be held to be entitled to move the Court to grant further time and to get the order for surrender vacated as contemplated by Section 11(2)(c) of the Act. The Bench held that one cannot find any justification in the provisions in Section 11(2)(c) of the Act or in the object and purpose of the Act to hold that filing of an execution petition or initiation of any other steps in execution will preclude the Rent Control Court or the Appellate Authority from exercising the discretionary power to grant further time under Section 11(2)(c) of the Act till such power is exhausted by its exercise at least once by the concerned authorities.
7. A learned Judge of this Court however in Lakshmi v. Kuppuswamy Chettiar, 1983 KLT 703, held as follows:
"The language of Section is clear that if extension of time is granted by the Rent Control Court once, then the power to grant extension of time for payment provided by Section 11(2)(c) is exhausted and thereafter, no question of granting any further extension of time for payment in exercise of the powers under Section 11 (2)(c) arises."
We have already referred to the Division Bench decision in Rabi Umma's case, supra, 1992 (1) KLT 700, which also took the same view. Another Division Bench in Jeboy v. Subratnonian, 1990 (2) KLT 167, affirming the decision of the learned Single Judge in Lakshmi v. Kuppuswami Chettiar, 1983 KLT 703, took the view that on a plain reading of the provisions of the Act, it is evident that if extension of time is granted once, the Court becomes functus officio and thereafter it is not open to the Rent Control Court to grant further extension of time. In an unreported decision in C.R.P. No. 2334 of 1994 a Division Bench of tins Court took the view that if the Court is initially granting more than one month the Court is exhausting its power under Section 11(2)(c) of the Act. The Bench however, took the view that the power to enlarge time could be traced to Section 23(1)(i) of the Act. In Manoharan v. Narayana Menon, 2003 (1) KLT 538, following the earlier Division Bench decision in Rabi Umma's case, supra, 1992 (1) KLT 700, Division Bench of this Court held that the Rent Control Court can extend the period only once. It was also held that Section 23(1)(i) has to be read subject to such conditions and limitations as may be prescribed that is within the time prescribed statutorily under Section 11(2)(c), that is, one month and such further period as the Rent Control Court may in Us discretion allow.
8. The Division Bench while dealing with the present C.R.P. felt in view of the conflicting views taken by various Benches of this Court with regard to the scope and ambit of Section 11(2)(c) the matter has to be placed before a larger Bench for an authoritative pronouncement and hence this reference. The relevant provision is extracted below for easy reference.
11. Eviction of tenants:--
(2)(a) A landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf.
(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.
(c) The order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall 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".
9. Counsel appearing for the tenant Sri. K.V. Sohan submitted that the expression "such further period" would enable the Rent Control Court to allow further time in its discretion. Counsel submitted that the statute has not placed any restriction on the discretionary power conferred on the Rent Control Court in granting further time to the tenant, that is more than once depending upon the merits of each case. Counsel for the landlord Sri. V. Giri submitted that "such further period" is a substitution of the period fixed by the statute in the first limb of Section 11 (2)(c). Counsel submitted once Rent Control Court has fixed a period longer than one month, Rent Control Court exhausts its power and cannot further enlarge the time to enable the tenant to pay the arrears of rent.
10. In our view, the statute has not placed any restriction in the discretionary powers conferred on the Rent Control Court under Section 11 (2)(c) of the Act. By virtue of Section 11 (2)(b) of the Act the order of eviction stands stayed for a period of one month. But the Rent Control Court can in its discretion allow further time over and above what has been fixed by the statute. The expression "such further period" is not in substitution of the period of one month fixed by the statute, but enlargement of a period fixed by the statute. The word "such" means of that kind, of the same or like kind. The word "such" generally refers to its last antecedent. The word "such" in an adjective meaning the one previously indicated or specified or contextually implied. The expression "further" has been defined in the 20th Century Dictionary to mean, "at or to a greater distance or degree: in addition". The word "period" (noun) has been defined to mean "the time in which anything runs its course". Such further period therefore would mean period like the one fixed by the statute. While restricting the execution of the order of eviction by one month the statute has used a negative language which is clearly prohibitory. Statute while conferring power on the Rent Control Court has used only affirmative words which stand at a weaker footing than negative words. We have to interpret the provisions of Section 11(2)(c) taking into consideration the object and purpose of the Act. It is a recognised rule of interpretation of statutes that the expression used should ordinarily be understood in a sense in which they shall best harmonise with the object of the statute and which effectuate the object of the legislation. Apex Court in E. Palanisamy v. Palanisamy, (2003) 1 SCC 123, held that the Rent Control legislation is normally intended for the benefit of the tenants, at the same time,- the benefits conferred on the tenants through a relevant statute could be enjoyed only on the basis of strict compliance with the statutory provisions. In Balwant Singh and Ors. v. Anandkumar Sharma, (2003) 3 SCC 433, the Apex Court held that Rent Control legislation is a welfare legislation but beneficial to the landlord also. Statute therefore not only thought of imposing a restriction in the matter of granting time for a period of one month under Section 11(2)(c) but further conferred discretion on the Rent Control Court to grant such further period. Statute has conferred discretion on the Rent Control Court to allow further time to enable the tenant to deposit the arrears of rent and to avert the inevitable. Rent Control Court is therefore conferred with a discretionary power so that it can give the tenant a chance of locus paenitentiae, lest the tenant would be evicted. The discretion however conferred on the Rent Control Court has to be judiciously exercised. Discretion has to be exercised reasonably and lawfully and not mechanically. Tenant has necessarily to show sufficient reasons which would enable the Rent Control Court to grant further period.
11. Therefore, the decisions in Lakshmi v. Kuppuswamy Chettiar, 1983 KLT 703, Jeboy v. Subramonian, 1990 (2) KLT 167, Manoharan v. Narayana Menon 2003 (1) KLT 538 and the unreported decision in C.R.P. No. 2334 of 1994 holding that Rent Control Court has no power under Section 11(2)(c) to extend the period more than once are not correctly decided and stand overruled. We also hold that it is unnecessary to examine the question as to whether Section 23(1)(i) would apply since we have already found that Section 11(2)(c) itself confers ample power on the Rent Control Court to grant time more than once. In our view, Section 23(1)(i) also would lend support to the our reasoning. Section 23(1) stipulates that the Rent Control Court and the Appellate Authority shall have powers which are vested in a Court under the Code of Civil Procedure, 1908 which includes enlargement of time originally fixed or granted.
12. We may incidentally refer to the decision of the Full Bench of this Court in . While interpreting Section 11(2)(b) of the Buildings (Lease and Rent Control) Act, 1959, the Court held that the "Rent Control Court" includes the original Court and the appellate and revisional authorities. Sub-section (4) of Section 18 of the present Act states that the Appellate Authority shall have all the powers of the Rent Control Court including the fixing of arrears of rent. Revisional Courts exercising powers under Section 20 of the Act also have got the discretion to pass such order as it thinks fit. Provisions by which powers are conferred on the appellate as well as Revisional Authority would itself indicate that they are also entitled to exercise power under Section 11(2)(c) of the Act. Consequently in appropriate cases those authorities can also allow such further period depending upon the facts and circumstances of each case which would also show that the legislative intention is not to restrict the discretion conferred on the Rent Control Court but to grant time depending upon the merits of each case.
13. We may now examine whether the Rent Control Court has properly exercised its discretion while refusing to grant further time in the case on hand. In the instant case landlord had filed O.S.No. 276 of 1984 before the Munsiff's Court, Cherthala claiming arrears of rent. While the same was pending Rent Control Act was made applicable to the area in question. Suit was later decreed on 30.9.1988 allowing the landlord to recover an amount of Rs. 964/- with interest at 6% from the tenant and his assets. Landlord then preferred R.C.P.No. 28 of 1988 seeking eviction under Sections 11(2)(b) and 11(4)(iii) of Act 2 of 1965. By order dated 30.6.1990 the Rent Control Court allowed the claim under Section 11 (2)(b), but rejected the claim .under Section 11(4)(iii) of the Act. Rent Control Court while allowing the claim under Section 11(2)(b) directed the tenant to give vacant possession of the tenanted premises after a month from the date of the order and within the completion of two months to the landlord. Tenant then filed I.A.No. 2910 of 1990 for vacating the order passed by the Rent Control Court. The Rent Control Court vacated the order on 30.10.1990. Aggrieved by the said order landlord filed R.C.A.No. 20 of 1991 before the Appellate Authority, Alappuzha. Appellate Authority noticed that the tenant had not paid the entire arrears of rent as per the decree in O.S.No. 276 of 1984 and therefore set aside the order and the matter was remanded to the Rent Control Court for fresh disposal. Tenant then paid the decree amount in O.S.No. 276 of 1984 along with I.A.No. 1960 of 1993 and wanted the order of eviction passed under Section 11 (2)(b) be vacated. Rent Control Court however dismissed the petition stating that the tenant had failed to deposit the entire arrears of rent within the period of one month from the date of the order passed or within the extended period. The Rent Control Court noticed that the tenant had paid the arrears of rent only on 28.6.1993 and hence the application for vacating the order of eviction was rejected. Tenant then filed R.C.A. No. 70 of 1995 before the Appellate Authority. Appellate Authority found no reason to interfere with the discretion exercised by the Rent Control Court. Before the Appellate Authority tenant contended that he was under the impression that landlord might initiate execution proceedings for realisation of the decree amount and therefore he had not deposited the amount. Appellate Authority did not accept this reasoning and found no reason to grant further enlargement of time. The Appellate Authority has also held that the tenant has no regard for equity and justice and therefore he cannot be heard to say that he is entitled to get further enlargement of time for deposit of arrears of rent. Further it was also noticed that the tenant had not made any prayer in I.A. 1960 of 1993 for enlargement of time. The Court also noticed that the tenant was not willing to pay the decree amount though he filed I.A.No. 2910 of 1990 for vacating the eviction order. The Appellate Authority therefore took the view that the Rent Control Court has rightly exercised the discretion by rejecting the request for enlargement of time. No acceptable explanation has been given by the tenant for not depositing the arrears of rent within the statutory period and thereafter. In the facts and circumstances of the case, we find no illegality, irregularity or impropriety in the discretionary jurisdiction exercised by the Rent Control Court. We therefore find no reason to interfere with the orders passed by the Courts below in our revisional jurisdiction. We therefore answer the reference as follows:
(i) The Rent Control Court while exercising the powers under Section 11 (2)(c) of the Act has got the discretion to grant time more than once enabling the tenant to deposit the arrears of rent with interest and cost of proceedings.
(ii) Rent Control Court has to exercise its discretion based on the sound legal principles judiciously depending upon the facts and circumstances of each case.
The Civil Revision Petition therefore would stand dismissed. Cross-objection is also dismissed. No costs.