Kerala High Court
Koyakkanari Sivadasan vs K.K.Nirmala on 5 April, 2022
Author: Anil K.Narendran
Bench: Anil K.Narendran
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 5TH DAY OF APRIL 2022 / 15TH CHAITHRA, 1944
R.C.REV.NO. 56 OF 2021
AGAINST THE JUDGMENT DATED 30.01.2021 IN R.C.A.NO.163 OF
2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL
DISTRICT JUDGE-I), KOZHIKODE AND THE ORDER DATED 30.09.2019
IN R.C.P.NO.14 OF 2019 OF THE RENT CONTROL COURT (PRINCIPAL
MUNSIFF-I), KOZHIKODE
REVISION PETITIONER:
KOYAKKANARI SIVADASAN
AGED 50 YEARS, S/O. KOYAKKANARI BHASKARAN,
ELATHUR VILLAGE, MOKAVOOR DESOM,
ERANHIKKAL P.O., KOZHIKODE.
BY ADVS.
K.M.FIROZ
SMT.M.SHAJNA
RESPONDENT:
K.K.NIRMALA
AGED 67 YEARS, W/O.KOLANGARAKANDI SREENIVASAN,
USHAS, 5/1587, JAWAHAR NAGAR COLONY,
P.O.ASOKAPURAM, KALATHINKUNNU DESOM,
KOZHIKODE, PIN-673006.
BY ADVS.
SRI.B.PREMNATH (E)
SHRI.SARATH M.S.
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 25.02.2022, THE COURT ON 05.04.2022 DELIVERED
THE FOLLOWING:
2
R.C.Rev.No.56 of 2021
ORDER "C.R."
Ajithkumar, J.
The respondent filed R.C.P.No.14 of 2019 before the Rent Control Court (Principal Munsiff-I), Kozhikode, seeking eviction of the petitioner-tenant under Section 11(2)(b), 11(3), 11(4)(ii) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. On 30.09.2019 that petition was allowed ex-parte and eviction was ordered. The petitioner filed an appeal under Section 18(1)(b) of the Act challenging the said order before the Rent Control Appellate Authority (Additional District Judge-I), Kozhikode. In that appeal, R.C.A.No.163 of 2019, the respondent filed I.A.No.1 of 2020 under Section 12 of the Act. Rent since January 2018 has been said to be in arrears. An order under Section 12(1) of the Act was passed on 22.12.2020 directing the petitioner to pay within 5 weeks the entire admitted arrears of rent and to continue to pay the rent for the subsequent months within 3 weeks from the date on which it becomes due. Arrears of rent was not paid and eventually an order under Section 12(3) of the Act was 3 R.C.Rev.No.56 of 2021 passed on 30.01.2021. That order is under challenge in this revision petition filed under Section 20 of the Act.
2. On 22.03.2021, this revision petition was admitted and notice was issued to the respondent. Execution of the order of eviction was stayed for a period of three months.
3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
4. I.A.No.1 of 2020 in R.C.A.No.163 of 2019 was filed contending that the petitioner has defaulted payment of rent since January 2018 and that fact was admitted by her in the plaint she filed in O.S.No.156 of 2018 before the Principal Munisiff-I, Kozhikode. The rate of rent has also been admitted as Rs. 25,000/- per month. As on March 2020, in which month I.A.No.1 of 2020 was filed, the amount of arrears of rent was Rs. 6,25,000/-. Accordingly, the respondent sought to initiate action under Section 12 of the Act.
5. The petitioner filed a counter-affidavit contending as follows: The petition was filed by the husband of the 4 R.C.Rev.No.56 of 2021 respondent-landlady without her consent. The petitioner paid the rent to the respondent upto November, 2019 in the presence of her employee, Sri. Santhosh Kumar. Even earlier, she did not use to issue receipts. Since, entire rent was thus paid, the petition was not tenable.
6. The Appellate Authority considered the averments in the plaint in O.S.No.156 of 2018, a copy of which was produced along with I.A.No.1 of 2020 in the light of the rival contentions and concluded that rent from January, 2018 had been in arrears. The appellate authority for the purpose of deciding what would amount to 'arrears admitted by the tenant to be due' placed reliance on the decision in Sadique v. Mohammed Umair and others [2017 (3) KLT 759]. The observation of this Court in the decision was that expression admitted arrears applies only to the pre-litigation stage and, not to post-litigation stage. Following that, the Appellate Authority held that there is admitted arrears of rent. Also, the claim of the petitioner regarding payment of rent for the period after filing of the rent control petition has been 5 R.C.Rev.No.56 of 2021 regarded as a fib, in the absence of any receipt or other documents as envisaged in Section 9 of the Act.
7. The learned counsel appearing for the petitioner would contend that the order directing payment of arrears of rent to a tune of Rs.6,25,000/- passed in I.A.No.1 of 2020 was without considering the law on the point in its proper perspective and also without affording a further opportunity of offering her explanation. In the absence of admission by the petitioner in her objection, such an order should not have been passed. The order under Section 12(1) of the Act and also the order under Section 12(3) pronounced in quick succession were, therefore in total negation of the provisions in Section 12 of the Act. The learned counsel would submit that passing of the order of eviction without giving a reasonable opportunity has caused serious prejudice to the petitioner and it is violative of the principle laid down by this Court in Shaji M. v. SNDP Sakha Yogam No.610, Alappuzha and another [2010 (2) KLJ 574].
8. The learned counsel appearing for the respondent, 6 R.C.Rev.No.56 of 2021 on the other hand, would contend that the direction of the Appellate Authority to deposit the admitted arrears of rent was after taking into account a candid admission made by the petitioner in O.S.No.156 of 2018 and the same is perfectly in accordance with the provision of Section 12(1) of the Act. It is incorrect to say that what is admitted by the tenant in the objection filed by him before the Rent Control Court alone can be based on to find as to what is the admitted arrears of rent. Other materials produced before court, which contain admission of the tenant regarding rate of rent and amount of rent due can also be taken into account. It is thus submitted that an inquiry in a limited sense to find out whether there is admission by the tenant as to the said facts is very much postulated by the provisions of Section 12(1) of the Act.
9. Yet another contention raised is that the Rent Control Court and the Appellate Authority, not being courts having all the trappings of a civil court, an order under Section 12(1) of the Act cannot be challenged in an appeal against an order under section 12(3). By virtue of the 7 R.C.Rev.No.56 of 2021 provisions of Order LXIII Rule 1-A of the Code of Civil Procedure, 1908 it is possible to challenge non appealable interlocutory orders in a regular civil appeal. But that recourse is not possible in an appeal under Section 18(1)(b) or, as the case may be in a revision under Section 20 of the Act. Accordingly, the learned counsel for the respondent would submit that there is absolutely no reason to interfere with the order passed by the Appellate Authority under Section 12(3) of the Act. The learned counsel for the respondent has drawn our attention to the decisions in Balakrishnan v. Mariyumma [1997 (1) KLT 205], Krishna Iyer v. Abdul Rasheed [2015 (1) KLT 511], Sadanandan v. Pradeepan [2001 (2) KLT 913] and Mukri Gopalan v. Aboobacker [(1995) 5 SCC 5] to fortify his contention that the Rent Control Court and the Appellate Authority are not civil courts.
10. In Balakrishnan (supra) this Court considered the question whether a Rent Control Court under the Rent Control Act is a 'Court' for the purpose of the provisions of Section 115 of the Code. It was held that even though Rent Control 8 R.C.Rev.No.56 of 2021 Court under the Rent Control Act is a 'Court' and is not a persona designata, it is not a Civil Court for the purpose of the provisions of Section 115 of the Code. In Krishna Iyer (supra) this Court considered the question whether a Rent Control Court under the Rent Control Act can order joint trial of cases invoking its inherent powers or the power available under Section 151 of the Code. It was held that there is no provision in the Act saving the inherent power of the Rent Control Court as is available in Section 151 of the Code. That does not mean that the Rent Control Court has no power to pass orders which are not specifically covered by the provisions in Section 23 of the Act. The Court proceeded to hold that Section 23 of the Act provides for certain powers enumerated therein and which are vested in a Court under the Code of Civil Procedure. Section 23 of the Act would not be a bar for the Rent Control Court to exercise any other power which a Civil Court exercises under the Code of Civil Procedure, provided the facts and circumstances warrant the exercise of such power and it does not offend the Act and the 9 R.C.Rev.No.56 of 2021 Rules. The power to do justice between the parties and to dispose of a Rent Control Petition in accordance with law, would certainly confer certain inherent powers on the Rent Control Court.
11. In Sadanandan (supra) this Court considered the question whether Article 137 of the Limitation Act would apply to a Rent Control Court and for that purpose, can a Rent Control Court be said to be a Civil Court. The Court held, "There is considerable controversy whether a Rent Control Court is a "Court" or merely "persona designata". In any event, the Rent Control Court is not a "civil court" in the strict sense of the term on the scheme of the Kerala Buildings (Lease and Rent Control) Act."
12. The question here is whether this Court, while considering a revision filed under Section 20 of the Act against an order under Section 12(3) of the Act, can also consider legality of the order under Section 12(1) directing the tenant to pay or deposit all arrears of rent admitted by him to be due. In the context of this question the principle laid down in Gopakumar G. and others v. Ancy Thankachan Philip and others [2019 (3) KHC 760 : 2019 (3) KLT 346] is 10 R.C.Rev.No.56 of 2021 more relevant.
13. The issue there was as to the Appellate Court's power to condone delay in filing an appeal by relying on Section 5 of the Limitation Act. The Division Bench in order to answer the question took cue from the decisions of the Apex Court in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker [(1995) 5 SCC 5], Consolidated Engineering Enterprises v. Irrigation Department [(2008) 7 SCC 169] and M. P. Steel Corporation v. Commissioner of Central Excise [(2015) 7 SCC 58] and also the decision of this Court in Ratheesh v. A. M. Chacko and another [2018 (5) KHC 35 : 2018 (4) KLJ 841]. It was held that an Appellate Authority under the Act, being a District Judge, undoubtedly possesses all the required powers under the Code for an effective adjudication of the case. Generally speaking, the appellate power is an extension of the original authority's power. In other words, appellate power is co- extensive to and co-terminus with the original power. The Court concluded that the Appellate Authority under the Act is 11 R.C.Rev.No.56 of 2021 a District Judge with full-fledged powers vested in a District Court to which the entire Code applies. Same analogy applies to this Court while exercising revisional jurisdiction under Section 20 of the Act. Viewed so, provisions of Order LXIII Rule I-A of the Code which enables to challenge non- appealable orders in an appeal against the decree will also get application. Legality of an order under Section 12(1) can be challenged in an appeal or, as the case may be, revision filed against an order under Section 12(3) of the Act.
14. 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 12 R.C.Rev.No.56 of 2021 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 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 13 R.C.Rev.No.56 of 2021 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 prescribed, be withdrawn by the landlord on application made by him to the Rent Control Court or the Appellate Authority in that behalf.
15. 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 preferred 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 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 14 R.C.Rev.No.56 of 2021 Rent Control Court or the Appellate Authority, as the case may be.
16. 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 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.
17. The term 'arrears of rent admitted by the tenant to be due' has been a subject of judicial discourse many a time. From the submissions of the learned Counsel appearing on 15 R.C.Rev.No.56 of 2021 either side, the question emerges for consideration is, as to how the court should come to a finding regarding the admitted arrears of rent; from what is apparent from the pleadings, namely, objections filed by the tenant, to the eviction petition and/or objection to the petition under Section 12 of the Act alone, or can the Court undertake an inquiry to ascertain the admission by the tenant?
18. The learned counsel appearing for the petitioner would contend that the Appellate Authority went wrong in considering the copy of the plaint in O.S.No.156 of 2018, produced by the respondent along with I.A.No.1 of 2020 to render a finding regarding the admitted arrears of rent. This Court in Sadique v. Mohammed Umair [2017 (3) KLT 759] held that the expression 'admitted arrears of rent' as envisaged under Section 12 of the Act is operative only to the pre-litigation stage and it is resting on the admission of the tenant, for which no enquiry is contemplated. The term 'admitted arrears of rent' has fallen for consideration of this Court in Sadique (supra), where it was held that, 16 R.C.Rev.No.56 of 2021 '4. xx xx xx The Court cannot substitute its finding on the arrears of rent in the place of admitted arrears of rent and, if it is allowed, it would fall under the purview of an adjudication under Section 11(2)(b) of the Act, which can be done only on a later stage, at the trial of the Rent Control Petition. In other words, it is totally impermissible for the Rent Control Court or the Appellate Authority, as the case may be, to have an adjudication regarding the arrears of rent, as envisaged under the first limb of Section 12, by conducting an enquiry.'
19. As regards the possibility or not of an enquiry in order to ascertain what is the arrears of rent admitted by the tenant to be due this Court in Williams Daniel v. Jose [2019 (4) KLT 464] held as follows,-
'11. xx xx xx Arrears of rent admitted under Section 12 do not postulate adjudicated rent, when there is denial of liability and the only enquiry which could be taken as granted by law in this respect is to find out whether the tenant has made any admission of liability and, if so the extent thereof, so that the arrears of admitted rent could well be ascertained by the court.'
20. Section 13(1) in the Tripura Buildings (Lease and Rent Control) Act, 1975, is a provision pari materia Section 12(1) of the Kerala Buildings (Lease and Rent Control) Act, 17 R.C.Rev.No.56 of 2021 1965, where also similar terminology namely, 'all arrears of rent admitted by the tenant to be due in respect of the building' is used. In the context of that provision, a Division Bench of the Apex Court in Manik Lal Majumdar and others v. Gouranga Chandra Dey and others [(2004) 12 SCC 448] considered as to what is the legislative intention behind enacting a provision that admitted arrears and recurring rent to be deposited or paid by the tenant during eviction proceedings or appeal preferred by him. In view of divergency of opinion on the question; whether an appeal can be preferred by a tenant under Section 20 of the Tripura Buildings (Lease and Rent Control) Act, 1975 without making payment or deposit of admitted arrears of rent, as stated in Section 13(1) of that Act, the matter was referred to a larger Bench.
21. Accordingly, that question was come to be decided by a three-Judge Bench of the Apex Court in Manik Lal Majumdar and others v. Gouranga Chandra Dey and others [(2005) 5 SCC 400]. The extent and ambit of 'enquiry' that is allowed to ascertain the 'rent admitted by the tenant to be due' in the context of Tripura Buildings (Lease 18 R.C.Rev.No.56 of 2021 and Rent Control) Act, 1975 was considered by the Apex Court and held as follows:
'6. xx xx xx The expression "all arrears of rent admitted by the tenant to be due", if interpreted literally, would mean that unless the tenant specifically admits any arrears of rent to be due to the landlord, the condition to make the payment of arrears of rent in order to contest the original proceedings before the Rent Control Court or to prefer an appeal as provided under Section 13 of the Act would not arise. The High Court in Binapani Roy's case (1994 (1) Gau.LR 98) has held that giving literal meaning to the words "admitted by the tenant to be due" would frustrate the provisions of Section 13 of the Act and make the same nugatory or otiose. The object of sub-section (1) of Section 13 of the Act is to avoid litigation for realization of arrears of rent which is likely to accumulate during the course of litigation, which may be a long period and also to deter the tenant from resorting to an unfair practice to use and occupy the tenanted premises without payment of any rent so long as the litigation continues. The High Court was of the opinion that the reasonable meaning of the words "admitted by the tenant to be due" is the inference of admission from the material on record. If the material on record prima facie discloses the admission of relationship of landlord and tenant and the 19 R.C.Rev.No.56 of 2021 rate of monthly rent payable, the tenant would be required to pay or deposit arrears of rent and continue payment of current rent during the pendency of the litigation, as enjoined under Section 13 of the Act.' (Underline supplied)
22. The principle that can be deduced from the aforesaid decisions is that in order to ascertain the 'arrears admitted by the tenant to be due' the court can have an enquiry in a limited sense. The enquiry allowed is scrutiny of the petitions under Sections 11 and 12 of the Act, the objections thereto and the other materials brought on record by either parties for purpose only of ascertaining admission regarding landlord-tenant relationship, the rate of monthly rent and the quantum of arrears of rent payable. If the materials on record disclose or infer such admission, the Court shall direct the tenant to pay or deposit the arrears of rent due as on the date of application under Section 12 of the Act and continue to pay subsequent rent which falls due during the pendency of the litigation.
23. The learned counsel appearing for the petitioner drew our attention to yet another decision in order to contend 20 R.C.Rev.No.56 of 2021 that this Court took a different view from what has been held by the Apex Court as regards the possible enquiry to ascertain the admitted arrears of rent. In Jose P.O. v. Xavier and another [2017 3 KLT 222], this Court considered when can the Rent Control Court and the Appellate Authority direct the tenant to deposit or pay the entire arrears of rent admitted to be due. It was held that the admission regarding the rent can be found only on two ways, namely, (i) by filing counter (written objection) to the application submitted under Section 11 of the Act; or (2) by filing counter to an application under Section 12 of the Act filed by the landlord.
24. In Jose P.O. (supra) this Court did not consider whether there could be an enquiry by the court to ascertain the rent admitted to be in arrears. The court only decided, when the Rent Control Court or, as the case may be, the Appellate Authority, can take up the question as to the obligation of the tenant to deposit or pay the arrears of rent for him to contest the petition for eviction or the appeal. The decision did not consider the question as to whether an enquiry, to ascertain 21 R.C.Rev.No.56 of 2021 the rent admitted by the tenant to be due, is possible or not.
25. The observations of this Court in Sadique [2017 (3) KLT 759] is that the Court cannot substitute its finding after an enquiry and adjudication on the arrears of rent, in the place of admitted arrears of rent for, an adjudication would fall under the purview of Section 11(2)(b) of the Act only. It was thus held that it was totally impermissible for the Rent Control Court or the Appellate Authority, as the case may be, to have an adjudication after conducting an enquiry regarding the arrears of rent contemplated under Section 12 of the Act. After an anxious consideration we hold that the principles in Sadique [2017 (3) KLT 759] or Jose P.O. [2017 3 KLT 222] are not in conflict with the law laid down by the Apex Court in Manik Lal Majumdar [(2005) 5 SCC 400]. The decisions in Sadique and Jose P.O. are thus explained.
26. The Appellate Authority directed the petitioner to deposit the admitted arrears of rent after taking into account an admission made by the petitioner in O.S.No.156 of 2018 which was admittedly filed by him before the Principal 22 R.C.Rev.No.56 of 2021 Munisiff-I, Kozhikode, besides the averments in the rival pleadings. In view of the principle of law discussed above, conduct of such an enquiry cannot be said to be faulty. The direction was to deposit an amount of Rs.6,25,000/- which was the arrears of rent admitted to be due as on March 2020, in which month I.A.No.1 of 2020 was filed. The petitioner did not make payment of that amount ever.
27. The order under Section 12(1) of the Act was passed by the Appellate Authority on 22.12.2020 directing the petitioner to pay within five weeks the entire admitted arrears of rent and to continue to pay the rent for the subsequent months within three weeks from the date on which it becomes due. The Appeal was posted to 27.01.2021 to pay the arrears of rent. No payment was made as per the direction. The appeal was therefore postponed to 30.01.2021. Since no payment was made and no explanation was offered on that day also, the Authority pronounced the judgment on that day directing the petitioner to surrender vacant possession of the tenanted premises under Section 12(3) of the Act. 23 R.C.Rev.No.56 of 2021
28. In Shaji M. v. SNDP Sakhayogam No.610, Alappuzha and another [2020 (2) KHC 574 : 2020 (2) KLT 866] a Full Bench of this Court held that, in view of the principle evolved in Narayanan v. Vinod [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 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 24 R.C.Rev.No.56 of 2021 arrears of rent. Only thing is that 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.
29. Therefore, there is no necessity to alert the tenant by issuing any specific notice, calling upon him to show sufficient cause. On the other hand, providing 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 an extended date to which the rent control petition is posted, it is absolutely within the authority and competence to stop the proceedings and direct the tenant to put the landlord in possession of the building.
30. Viewed in the light of the aforesaid legal principles, the impugned orders of the Appellate Authority dated 22.12.2020 and the judgment dated 30.01.2021 do not suffer 25 R.C.Rev.No.56 of 2021 from any illegality, irregularity or impropriety. The revision petition, therefore, fails. We dismissed it. No order as to costs.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
P.G. AJITHKUMAR, JUDGE dkr