Abdul Salah Thottungal v. Seagulls' Catch Restaurant Private Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY,THE 3[RD] DAY OF NOVEMBER 2021/12TH KARTHIKA,1943** **O.P(RC) NO. 63 OF 2021 AGAINST THE ORDER DATED 30.03.2021 IN I.A.NOS.8 OF 2020 AND 9 OF 2020 IN R.C.P.NO.144 OF 2019 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF-III), ERNAKULAM** **PETITIONER:** **ABDUL SALAH THOTTUNGAL AGED 64 YEARS, S/O.ABOOBACKER THOTTUNGAL, 13/14C, LINK HERITAGE APARTMENT, CHITTOOR ROAD, OPPOSITE NORTH POLICE STATION, KACHERIPADY, ERNAKULAM - 682 018 REPRESENTED BY POWER OF ATTORNEY HOLDER MRS.SAIBA SALAH, AGED 27 YEARS, D/O.ABDUL SALAH THOTTUNGAL, 13/14 C, LINK HERITAGE APARTMENT, CHITTOOR ROAD, OPPOSITE NORTH POLICE STATION, KACHERIPADY, ERNAKULAM - 682 018.** **BY ADVS. SRI.SHINU J.PILLAI SMT.S.SUJA SMT.MARIYA RAJAN SMT.AISWARYA JAMES** ## **RESPONDENT:** **SEAGULLS' CATCH RESTAURANT PRIVATE LIMITED REGISTERED OFFICE, DOOR NO.80/2, VALIYAVEETIL, EDAVANAKAD, PIN - 682 502, REPRESENTED BY ITS MANAGING DIRECTOR, ADBUL AZIZ V.K., AGED 70 YEARS.** **THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(RC) No. 63 of 2021 ## **JUDGMENT** ## Ajithkumar, J. The petitioner-landlord in R.C.P.No.144 of 2019 on the files of the Rent Control Court (III Additional Munsiff), Ernakulam is the petitioner herein. Aggrieved by Exts.P11 and P12 orders passed by the Rent Control Court, he approached this Court invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 2. R.C.P.No. 144 of 2019 was filed seeking eviction of the respondent under Sections 11(2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The respondent entered appearance and filed a counter statement. Thereafter, the petitioner filed Ext.P3 application, I.A.No.1 of 2020, before the Rent Control Court under Section 12 of the Act. The respondent did not file any counter/ objection to that petition, instead, sought time by saying that they would be making payment of the arrears of rent. While so, on 14.03.2020, the respondent handed over a cheque for 3 O.P.(RC) No. 63 of 2021 Rs.5 lakhs towards the arrears of rent. According to the petitioner, at that time, more than Rs.40 lakhs was outstanding towards arrears of rent. On 03.07.2020, the Rent Control Court directed the respondent to pay entire arrears of rent, which was due from February, 2019 onwards, within 30 days and to continue to remit the rent, which may fall due subsequently within 15 days from the date of due. Ext.P4 is a copy of the order. Since the respondent failed to make payment as directed, the Rent Control Court issued a show cause notice asking the respondent thereto to explain why an order under Section 12(3) of the Act should not be passed. The respondent, then filed Ext.P5 application seeking 30 days more time to make payment of arrears of rent and the court granted 30 days as per its order dated 25.08.2020, Ext.P6. It was thereafter the respondent filed I.A.Nos.8 and 9 of 2020. I.A.No.8 of 2020 was filed seeking to condone delay and I.A.No.9 of 2020 to allow the respondent to contest I.A.No.1 of 2020. It was in those applications, Exts.P11 and P12 orders were passed. 4 O.P.(RC) No. 63 of 2021 3. The respondent is a company. It was reported that the managing director of the company died after filing this original petition. As per order dated 10.09.2021, fresh notice was sent to the respondent by speed post, but the same could not be served. This Court therefore ordered to take out paper publication on 07.10.2021, and accordingly, notice on this petition was published in the Malayala Manorama daily and the publication has been produced. 4. When the case is taken up today for hearing, none appeared for the respondent. Heard the learned counsel for the petitioner. 5. The learned Counsel for the petitioner-landlord would contend that once the tenant failed to pay admitted arrears of rent within the time limit specified in the order of the Rent Control Court issued under Section 12(1) and (2) of the Act and show sufficient cause for such non-payment, the Rent Control Court has no option other than to pass an order of eviction under Section 12(3) of the Act. It is alleged that the Rent Control Court instead of doing so, entertained 5 O.P.(RC) No. 63 of 2021 I.A.Nos.8 and 9 of 2020 and passed Ext. P11 and P12 orders resulting in grave injustice. 6. 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 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 6 O.P.(RC) No. 63 of 2021 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 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 prescribed, be withdrawn by the landlord on 7 ## O.P.(RC) No. 63 of 2021 application made by him to the Rent Control Court or the Appellate Authority in that behalf. 7. Section 12(1) of the Act enjoins a tenant, against whom an application for eviction has been made by a landlord under Section 11, to pay to the landlord, or deposit with the Rent Control Court, 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 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, in order to contest that application for eviction before the Rent Control Court. Similarly, Section 12(1) of the Act enjoins a tenant, in order 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, to pay the landlord, or deposits with the Appellate Authority, 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 8 O.P.(RC) No. 63 of 2021 due in respect of the building, until the termination of the proceedings before the Appellate Authority. 8. 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. 9. 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. 9 O.P.(RC) No. 63 of 2021 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 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. 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 10 ## O.P.(RC) No. 63 of 2021 to put the landlord in possession of the building. ## 10. In **Shaji M. v. SNDP Sakhayogam No.610, Alappuzha and another [2020 (2) KHC 574]** a Full Bench of this Court held that 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 arrears of rent. 11 O.P.(RC) No. 63 of 2021 11. In **Shaji M.,** on the question as to whether the Rent Control Court or the Appellate Authority is required to issue any specific notice to the tenant to show cause, the Full Bench noticed that, the consequences provided under Section 12(3) of the Act follows when there occurred 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 Section 12(1) and (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 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 extended date to which the rent control petition is posted, it is absolutely within the 12 O.P.(RC) No. 63 of 2021 authority and competence; and is the natural consequence that the Rent Control Court 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). 12. Once a tenant is called upon to make payment of the rent in arrears as provided under Section 12(1) of the Act, it is an obligation to make deposit/payment within the time fixed and in the manner prescribed by the court. There is no provision insisting the court to issue a show cause notice after directing payment within the period prescribed by the court in terms of Section 12(2). The respondent after obtaining time more than once to deposit the rent in arrears, came forward with the application, I.A.No.9 of 2020, for setting aside the order to deposit saying that he did not get an opportunity to contest the application filed under Section 12 of the Act. The respondent filed and the Rent Control Court treated the 13 O.P.(RC) No. 63 of 2021 application as one under Order IX, Rule 9 of the Code of Civil Procedure. The Court also considered I.A.No.8 of 2020 to decide whether there was sufficient cause for condoning the delay for filing I.A.No.9 of 2020. The court after holding that in the light of the directions issued by this Court and the Government from time to time in the wake of the spread of COVID-19, the delay should be condoned, ordered vide impugned orders that an opportunity to contest the matter should be granted to the petitioner. 13. It is not Order IX, Rule 9 of the Code, but it is Rule 13(3) of the Kerala Buildings (Lease and Rent Control) Rules, 1979 which applies. Rule 13(3) reads: "In any case in which an order is passed ex-parte, against a tenant or a landlord, the tenant or the landlord, as the case may be, may within fifteen days from the date of receipt of the order apply to the Accommodation Controller or the Rent Control Court, as the case may be, by whom the order was passed, for an order to set aside, and if tenant or the landlord satisfies the Accommodation Controller or the Rent Control Court, as the case may be, that the summons was not duly served or that he was prevented by any sufficient cause from appearing when 14 O.P.(RC) No. 63 of 2021 the application was called on for hearing, the Accommodation Controller or the Rent Control Court, as the case may be, shall make such order as it deems fit, an order passed against the tenant or landlord, as the case may be, and shall appoint a day for proceeding with the application. Provided that no order shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party". 14. Once notice is given, the tenant is bound to make payment of the arrears of admitted rent or to explain the reason for the non-payment. In this case, direction for payment of arrears of rent was given to the respondent under Section 12(1) of the Act and he took time for more than one occasion for making the deposit. A part of the admitted arrears of rent was deposited in the meantime. The Rent Control Court never declared the respondent ex parte, nor did pass any default order. Therefore, the Rent Control Court went wrong in entertaining an application for condoning the delay and to set aside ex parte order, which is not in existence. The Rent Control Court was, in fact, not clothed with jurisdiction to 15 ## O.P.(RC) No. 63 of 2021 consider such an application as per the provisions of Rule 13(3) of the Kerala Building (Lease and Rent Control) Rules, 1979. 15. In view of the factual situation and the principle of law mentioned above Exts.P11 and P12 orders are illegal and liable to be set aside. We do so. The Rent Control Court will proceed to decide first the petition under Section 12 of the Act and then, depending upon the order thereon decide the Rent Control Petition in accordance with law, untramelled by any of the observations in this judgment. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 16 O.P.(RC) No. 63 of 2021 ## **APPENDIX OF OP (RC) 63/2021** **PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE POWER OF ATTORNEY DATED 02/03/2021. Exhibit P2 TRUE COPY OF THE RENT CONTROL PETITION IN RCP NO.144 OF 2019 FILED ON 05/09/2019. Exhibit P3 COPY OF THE INTERIM APPLICATION I.A.NO.1 OF 2020 DATED 06/01/2020. Exhibit P4 TRUE COPY OF THE ORDER IN I.A.NO.1 OF 2020 DATED 03/07/2020. Exhibit P5 THE COPY OF THE PETITION IN I.A.NO.5 OF 2020 DATED 03/08/2020. Exhibit P6 TRUE COPY OF THE ORDER IN I.A.NO.5 OF 2020 DATED 25/08/2020. Exhibit P7 TRUE COPY OF REPLY AFFIDAVIT SHOW CAUSE DATED 17/08/2020. Exhibit P8 TRUE COPY OF THE I.A.NO.8 OF 2021 DATED 16/11/2020. Exhibit P9 TRUE COPY OF THE I.A.NO.9 OF 2021 DATED 16/11/2020. Exhibit P10 A COPY OF THE OBJECTION DATED 04/12/2020. Exhibit P11 TRUE COPY OF THE ORDER IN I.A.NO.8 OF 2020 DATED 30/03/2021. Exhibit P12 TRUE COPY OF THE ORDER IN I.A.NO.9 OF 2020 DATED 30/03/2021.** 17 ## O.P.(RC) No. 63 of 2021 **Exhibit P13 THE TYPED COPY OF THE ORDER SHEET TAKEN FROM THE ONLINE WEB PORTAL (ECOURTS ONLINE PORTAL).** **Exhibit P14 THE TRUE PRINTOUT OF THE CASE STATUS IN CMA (ARB) NO.743 OF 2020. Exhibit P15 THE COMPLAINT DATED 02/03/2021.**