Ananthavalli Amma and Santosh Kumar v. Salim P. M., O.P.(RC) No.118 of 2021, High Court of Kerala, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 29[TH] DAY OF NOVEMBER 2021/ 8TH AGRAHAYANA, 1943 O.P.(RC) NO.118 OF 2021** **SPEEDY DIPOSAL OF I.A.NO.1 OF 2020 IN R.C.P.NO.214 OF 2020 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT,** ## **ERNAKULAM** ## **PETITIONERS:** - **1 ANANTHAVALLI AMMA AGED 75 YEARS, W/O. M.P.SREEDHARAN NAIR, MALIYEKKAL HOUSE, ELAMAKKARA, SOUTH EDAPPALLY VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, KERALA - 682 026.** - **2 SANTHOSH KUMAR** **AGED 56 YEARS, S/O. M.P.SREEDHARAN NAIR, MALIYEKKAL HOUSE, ELAMAKKARA, SOUTH EDAPPALLY VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, KERALA, PIN - 682 026.** **BY ADV SRI.P.RAMACHANDRAN** ## **RESPONDENT:** **SALIM P. M.** **S/O. MOIDEENKUNJU, HOUSE NO.41/1923, PANIKKASSERY HOUSE, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, KERALA, PIN - 682 018.** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION** **ON 29.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **2** **O.P.(RC) No.118 of 2021** ## **JUDGMENT** ## Anil K. Narendran, J. The 1[st] petitioner is a senior citizen aged 75 years and the 2[nd] petitioner is her son. The petitioners-landlord have filed R.C.P.No.214 of 2020 before the Rent Control Court (Munsiff), Ernakulam, a petition filed under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, against the respondent herein-tenant seeking eviction from the petition schedule building. A copy of the R.C.P. is placed on record as Ext.P1. 2. Along with R.C.P.No.214 of 2020, the landlord filed I.A.No.1 of 2020, an application under Section 12 of the Act, seeking an order directing the tenant to pay Rs.2,50,000/- to the landlord or deposit the said amount towards arrears of rent with 18% interest from February, 2020, failing which to stop all further proceedings in R.C.P.No.214 of 2020 and put the landlords the possession of the petition schedule building. Now, the grievance of the petitioners is the delay in disposal of I.A.No.1 of 2020 in R.C.P.No.214 of 2020. In this original petition filed under Article 227 of the constitution of India **3** ## **O.P.(RC) No.118 of 2021** invoking the supervisory jurisdiction of this Court, the relief sought for is an order directing the Rent Control Court, Ernakulam to dispose of I.A.No.1 of 2020 in R.C.P.No.214 of 2020 in accordance with law, within a time frame to be fixed by this Court. 3. Heard the learned counsel appearing for the petitioners-landlord. Considering the nature of relief proposed to be granted, service of notice on the respondent-tenant is dispensed with. 4. I.A.No.1 of 2020 in R.C.P.No.214 of 2020 is one filed by the landlords under Section 12 of the Act, during the pendency of R.C.P.No.214 of 2020, which is one filed under Sections 11(2)(b) and 11(3) of the Act, seeking eviction of the respondent-tenant from the petition schedule building. 5. 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 **4** **O.P.(RC) No.118 of 2021** 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 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, **5** ## **O.P.(RC) No.118 of 2021** 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 application made by him to the Rent Control Court or the Appellate Authority in that behalf. 6. 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, **6** ## **O.P.(RC) No.118 of 2021** 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 due in respect of the building, until the termination of the proceedings before the Appellate Authority. 7. In **Joy Daniel v. N.A. Ibrahimkutty and others [2020 (2) KHC 543]** , on the question as to whether Section 12(1) of the Kerala Buildings (Lease and Rent Control) Act casts an obligation on the tenant to pay the admitted arrears of rent in order to contest an appeal filed challenging an order under Section 12(3), which is to the effect of stoppage of the proceedings and directing the tenant to put the landlord in possession of the premises, a Full Bench of this Court held that, Section 12(1) provides such an obligation only in the **7** ## **O.P.(RC) No.118 of 2021** case of an application under Section 11 or in the case of an appeal preferred under Section 18 against an order passed by the Rent Control Court on an application under Section 11. 8. 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 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, 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 he shall 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, as the case may be. 9. 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 **8** ## **O.P.(RC) No.118 of 2021** 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. 10. 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. 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 **9** **O.P.(RC) No.118 of 2021** 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. Therefore, even in a case in which the relief sought for in an application filed under Section 12 of the Act is confined to payment or deposit of admitted arrears of rent up to the date of application or up to the date of order to be passed in that application, the Rent Control Court or the Appellate Authority, as the case may be, is statutorily bound to pass an order directing the tenant to pay or deposit admitted arrears of rent up to the date of payment or deposit and continue to pay or deposit rent which may subsequently become due, until termination of that proceedings. 11. 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 **10** ## **O.P.(RC) No.118 of 2021** all further proceedings and make an order directing the tenant to put the landlord in possession of the building. 12. In **Suvarna v. Ibrahimkutty and others [2021 (6) KHC 250]** this Court held in paragraph 32 that 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 due in respect of the building, until the termination of the proceedings before the Appellate Authority. The time fixed by the Appellate Authority 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) of the Act, regardless of the relief sought for in the application filed by the landlord under Section 12, the Appellate Authority has to order **11** ## **O.P.(RC) No.118 of 2021** payment 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 Appellate Authority. Therefore, in I.A.No.3440 of 2016, the application filed by the landlord under Section 12 of the Act, instead of directing the tenant to pay admitted arrears of rent within a period of 4 weeks from the date of that order, the Appellate Authority ought to have directed the tenant to pay or deposit admitted arrears of rent up to the date of payment or deposit, within a period of 4 weeks from the date of that order and continue to pay or deposit any rent which may subsequently become due, until the termination of the proceedings before the Appellate Authority, within two weeks from the date on which the rent becomes due. 13. In view of the provisions under Section 12 of the Act, in a petition filed by the landlord under Section 12 of the Act seeking an order directing the tenant to pay a deposit of **12** ## **O.P.(RC) No.118 of 2021** admitted arrears of rent during the pendency of the proceeding for eviction, the landlord cannot demand interest at the rate of 18% per annum. Therefore, such a claim made in I.A.No.1 of 2020 in R.C.P.No.214 of 2020 cannot be sustained. 14. The learned counsel for the petitioners would submit that a time bound consideration of I.A.No.1 of 2020 in R.C.P.No.214 of 2020 is highly essential. The learned counsel for the petitioners would point that, as evident from Ext.P3 case status of R.C.P.No.214 of 2020, the respondent-tenant has already entered appearance before the Rent Control Court through Advocate B.M.Ajith. 15. Having considered the submissions made by the learned counsel for the petitioners, we deem it appropriate to dispose of this original petition with the following directions: - i) On receipt of a certified copy, the petitioners shall move an application before the Rent Control Court to advance R.C.P.No.214 of 2020 to a near date; - ii) In case the respondent-tenant is yet to file counter/ objection in I.A.No.1 of 2020 in R.C.P.No.214 of 2020, **13** ## **O.P.(RC) No.118 of 2021** the same shall be filed within a period of three weeks from the date of such posting; and - iii) The Rent Control Court, Ernakulam shall pass appropriate orders on I.A.No.1 of 2020 in R.C.P.No.214 of 2020 strictly in accordance with the provisions under Section 12 of the Act, as expeditiously as possible, at any rate, within a further period of one month. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr **14** ## **O.P.(RC) No.118 of 2021** ## **APPENDIX OF OP (RC) 118/2021** ## **PETITIONER EXHIBITS** **Exhibit P1 COPY OF THE PETITION R.C.P.NO.214 OF 2020 ON THE FILE OF THE RENT CONTROL COURT, ERNAKULAM DATED 8.12.2020** **Exhibit P2** **COPY OF THE PETITION I.A.NO.1 OF 2020 IN R.C.P.NO.214 OF 2020 ON THE FILE OF THE RENT CONTROL COURT, ERNAKULAM DATED 8.12.2020** **Exhibit P3** **COPY OF THE CASE STATUS AND CASE HISTORY IN RESPECT OF R.C.P.NO. 214 OF 2020 OBTAINED ONLINE FROM THE SITE ECOURTS.GOV.IN.** **Exhibit P4** **TRUE COPY OF THE CERTIFICATE DATED 30.10.2021 ISSUED BY DR.D.K. VIJAYAKUMAR, PROFESSOR AND HEAD, AMRITHA CENTRE FOR BREAST DECEASES, KOCHI.**