Anwar v. Ramachandran (OP(RC) No. 160 of 2022)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 19[TH] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944 ``` ``` OP (RC) NO. 160OF 2022 ``` ``` AGAINST THE ORDER IN I.A. NO.1 of 2020 IN RC(OP)NO.16 of ``` ``` 2020 OF PRINCIPAL MUNSIFF COURT, KOLLAM ``` ## **`PETITIONER/RESPONDENT/RESPONDENT:`** ``` ANWAR AGED 49 YEARS S/O. ABDUL AZEEZ, RESIDING AT KALAVARA HOUSE, PUNNATHALACHERRY, THANKASSERI .P.O., KOLLAM WEST VILLAGE, KOLLAM, PIN - 691007 BY ADVS. S.SREEKUMAR (KOLLAM) NAMITHA RAJESH ``` ## **`RESPONDENT/PETITIONER/PETITIONER:`** ``` RAMACHANDRAN AGED 71 YEARS S/O. GOPALAN, RESIDING AT KAVERI, CHERUMOODUCHERRY, PERINADU VILLAGE, VELLIMON.P.O., KOLLAM, PIN - 691511 ``` ``` THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 19.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(RC)NO.160 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner is the respondent-tenant in R.C.(OP)No.16 of 2020 on the file of the Rent Control Court (Principal Munsiff), Kollam, a petition filed by the respondent herein-landlord under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule building. During the pendency of that Rent Control Petition, the landlord filed I.A.No.1 of 2020, an application under Section 12 of the Act, seeking an order directing the tenant to deposit the admitted arrears of rent and continue to pay rent for the petition schedule building, during the pendency of the said proceedings. The tenant filed Ext.P2 objection in Ext.P1 application. After considering the rival contentions, the Rent Control Court passed Ext.P3 order dated 21.05.2022, whereby the tenant is directed to remit the admitted arrears of rent, from August 2020 to May 2022, at the rate of Rs.55,000/- per month, within a period of eight weeks from the date of that order and continue to pay rent for the subsequent period, within 15 days from the date on which it accrues. Challenging the said order of the Rent Control Court, the ``` OP(RC)NO.160 OF 2022 ``` ``` 3 ``` petitioner-tenant is before this Court in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 2. Heard the learned counsel for the petitioner-tenant. 3. The learned counsel for the petitioner-tenant would contend that the directions contained in Ext.P3 order, whereby the petitioner is required to pay admitted arrears of rent from August, 2020 is legally unsustainable, since the tenant had already cleared the arrears of rent upto December, 2020. After the said period, the tenant could not pay monthly rent at the rate of Rs.55,000/-, on account of the situation prevailing in the State due to Covid-19 pandemic. Therefore, the Rent Control Court went wrong in allowing I.A.No.1 of 2022, by directing the tenant to remit the arrears of rent under Sections 12(1) and (2) of the Act. 4. 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 ``` OP(RC)NO.160 OF 2022 ``` ``` 4 ``` 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 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 ``` OP(RC)NO.160 OF 2022 ``` ``` 5 ``` 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 application made by him to the Rent Control Court or the Appellate Authority in that behalf. 5. 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 ``` OP(RC)NO.160 OF 2022 ``` ``` 6 ``` 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. 6. 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 ``` OP(RC)NO.160 OF 2022 ``` ``` 7 ``` the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. ## 7. In **J. Ramkumar v. Ashok Jacob [2022 (1) KHC** **495 : ILR 2021 (4) Kerala 876]** this Court held that, 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 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. ``` OP(RC)NO.160 OF 2022 ``` ``` 8 ``` 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. 8. In **J. Ramkumar [2022 (1) KHC 495]** , this Court held that, Section 12 of the Act imposes certain obligations on the tenant to pay or deposit admitted rent, during the pendency of the proceedings for eviction under Section 11, before the Rent Control Court, and also the proceedings in an appeal filed under Section 18, before the Appellate Authority, against such an order of eviction. Section 12(3) of the Act also provides for the consequences, which were to follow, for committing default in fulfilling those obligations. Section 12(3) of the Act deals with the consequences flowing as a result of the failure of the part of the tenant to pay or deposit admitted rent. Before the consequences under Section 12(3) can ensue, the conditions specified in Section 12(1) and (2) have to be satisfied. Section 12(3) mandates that if any tenant fails to pay or deposit the admitted ``` OP(RC)NO.160 OF 2022 ``` ``` 9 ``` rent as provided under Section 12(1) and (2), 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. Therefore, if the Rent Control Court or the Appellate Authority, as the case may be, is satisfied about the cause shown by the tenant, it will not make any order under Section 12(3) of the Act, stopping further proceedings and directing the tenant to put the landlord in possession of the building. 9. Before passing an order under Section 12(3) of the Act, 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 payment or deposit of admitted rent, thereby allowing reasonable time to the tenant to show sufficient cause for not paying or depositing the admitted rent, if he has committed default in payment of the same, within the time limit stipulated in the order passed under Section 12(1) and (2). Such an opportunity to be afforded to the tenant to show sufficient cause is not an empty formality. The principles of ``` OP(RC)NO.160 OF 2022 ``` ``` 10 ``` natural justice would mandate that the Rent Control Court or the Appellate Authority should afford such an opportunity to the tenant before passing an order under Section 12(3). 10. In **J. Ramkumar [2022 (1) KHC 495]** , this Court held that, the consequences provided under Section 12(3) of the Act follow when there occurred a default by the tenant in complying with the direction in an order passed under Section 12(1) and (2), for deposit or payment of the admitted arrears of rent. On the date stipulated for effecting such payment, by virtue of that order, 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, under Section 12(3) would follow automatically. 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 of a further opportunity after the last date stipulated for effecting payment or deposit of admitted rent, 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 authority ``` OP(RC)NO.160 OF 2022 ``` ``` 11 ``` 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. As held by the Full Bench in **Shaji M. v. SNDP Sakhayogam No.610, Alappuzha [2020** **(2) KHC 574]** , such a procedure, if followed, would be sufficient compliance for providing reasonable opportunity satisfying the statutory requirement contained in Section 12(3) of the Act. 11. In the instant case, the rate of rent of the petition schedule building is Rs.55,000/- per month. The said fact is not in dispute. It is also not in dispute that the tenant has defaulted payment of monthly rent from January, 2021 onwards. Though the tenant has raised a contention that he had cleared monthly rent upto December, 2020 and as such the claim made by the landlord for payment of arrears of rent from August, 2020 till December, 2020 is legally unsustainable, the said contention is not supported by any material to prove payment of monthly rent for the period upto December, 2020. The tenant could not produce any receipt in terms of Section 9(2) of the Act to substantiate his contentions. In such circumstances, the Rent ``` OP(RC)NO.160 OF 2022 ``` ``` 12 ``` Control Court cannot found fault with in directing the tenant to pay admitted arrears of rent, under Section 12(1) and (2) of the Act, by the impugned order dated 21.05.2022 in I.A.No.1 of 2020 in R.C.(OP)No.16 of 2020. The reasoning of the Rent Control Court in the said order is neither perverse nor patently illegal and it cannot also be said that, while passing such an order, the said court has committed any material irregularity. 12. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Clause (2) of Article 227 provides that, without prejudice to the generality of the provisions under clause (1), the High Court may call for returns from such courts; make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. Going by clause (4), nothing in Article 227 shall be deemed to confer on a High Court powers of superintendence ``` OP(RC)NO.160 OF 2022 ``` ``` 13 ``` over any court or tribunal constituted by or under any law relating to the Armed Forces. ## 13. In **Shalini Shyam Shetty v. Rajendra Shankar** **Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. ## 14. In **Jai Singh v. Municipal Corporation of Delhi** **[(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals ``` OP(RC)NO.160 OF 2022 ``` ## **`14`** exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 15. In **K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39]** the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 16. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1)** ``` OP(RC)NO.160 OF 2022 ``` ``` 15 ``` **KHC 1]** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law. 17. In view of the law laid down in the decisions referred to supra, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave ``` OP(RC)NO.160 OF 2022 ``` ## **`16`** dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 18. In the above circumstances, no interference is warranted in the impugned order of the Rent Control Court, Kollam dated 21.05.2022 in I.A.No.1 of 2020 in R.C(OP)No.16 of 2020, in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. In the result, this original petition fails and the same is accordingly dismissed. No order as to costs. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** LU ``` OP(RC)NO.160 OF 2022 ``` ``` 17 ``` ## **`APPENDIX OF OP (RC) 160/2022`** ## **`PETITIONER EXHIBITS`** |**`EXHIBIT- P1`**|**`THE TRUE COPY OF THE SECTION 12 PETITION`**| |---|---| ||**`FILED BY THE RESPONDENT IN I.A.NO. 1 OF`**| ||**`2020 IN RC(OP) NO. 16/2020 OF THE`**| ||**`PRINCIPAL RENT CONTROLLER, KOLLAM`**| |**`EXHIBIT- P2`**|**`THE TRUE COPY OF THE OBJECTION FILED BY`**| ||**`THE RESPONDENT`**| |**`EXHIBIT- P3`**|**`THE TRUE COPY OF THE ORDER DATED`**| ||**`21.05.2022 IN I.A. NO. 1/2020 IN RC(OP)`**| ||**`NO. 16/2020 OF THE PRINCIPAL RENT`**| ||**`CONTROLLER, KOLLAM`**| ``` // True Copy // PA To Judge ```