Ashtapadi Foundation v. S. Radhakrishnan

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` THURSDAY, THE 4[TH] DAY OF AUGUST 2022 / 13TH SRAVANA, 1944 ``` ``` OP (RC) NO. 127OF 2022 ``` ``` SPEEDY DISPOSAL OF I.A.NO.2 OF 2021 AND R.C.P.NO.6 OF 2021 OF THE RENT CONTROL COURT (MUNSIFF), PUNALUR ``` ## **`PETITIONER:`** ``` ASHTAPADI FOUNDATION AGED 43 YEARS GROUND FLOOR, PAVAKKULAM BUILDING, KALOOR, COCHIN-682017 REP. BY ITS GENERAL SECRETARY, MR. DEEPAK KRISHNAN, AGED 43 S/O M. GOPALAKRISHNAN RESIDING AT 37/3839, KARTHIKA AVENUE 7 BANK ROAD, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM, PIN - 682017 ``` ``` BY ADVS. N.ABHILASH PRAVEEN K. JOY K.I.MOHAMMED SHAFFI MATHER ``` ## **`RESPONDENT:`** ``` S.RADHAKRISHNAN AGED 60 YEARS S/O SANKU,DIRECTOR, NAVYA CAREER INSTITUTE, KOWDIAR, TRIVANDRUM-695003 RESIDING AT THEJAS HOUSE, VELLIYAR P.O, AYROOR VILLAGE, RANNI, PATHANAMTHITTA DISTRICT, PIN - 689612 ``` ``` THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 04.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(RC)No.127 of 2022 ``` 2 ## **JUDGMENT** ## **Anil K. Narendran, J** . The petitioner filed R.C.P.No.6 of 2021 on the file of the Rent Control Court (Munsiff), Punalur, a petition under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the respondent herein-tenant from the petition schedule building. The petitioner is before this Court in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India, seeking an order directing the Rent Control Court to take up R.C.P.No.6 of 2021 and dispose of the same, within a time limit to be fixed by this Court. 2. On 30.06.2022, when this original petition came up for admission, this Court issued notice to the respondent-tenant by speed post, returnable within three weeks. Registry was directed to call for a report from the Rent Control Court, Punalur as to the present status of R.C.P.No.6 of 2021 and also the interlocutory application filed under Section 12 of the Act. 3. Pursuant to the order dated 30.06.2022, a report dated 07.07.2022 is received from the Rent Control Court, Punalur, wherein it is stated that an interlocutory application, i.e., I.A.No.1 ``` O.P.(RC)No.127 of 2022 ``` 3 of 2021, filed by the landlord seeking an order directing the tenant to pay an amount of Rs.1,82,726/- being the arrears of rent till 21.11.2021 and Rs.1,00,000/- being electricity charge is pending consideration, which now stands posted to 09.08.2022 for objection. As per the said report, I.A.No.1 of 2021 is one filed under Section 151 of the Cod of Civil Procedure, 1908. In the report, it is stated that there are 2925 cases pending before that court, out of which 549 cases belongs to 5+ year old matters and in 11 cases, there are already directions for time bound disposal. 4. Heard the learned counsel for the petitioner-landlord. Despite service of notice, none appears for the respondent-tenant. 5. The learned counsel for the petitioner-landlord would submit that R.C.P.No.6 of 2021 is one filed on 23.11.2021. The tenant has defaulted payment of monthly rent and as such a time bound consideration of that Rent Control Petition is highly essential. 6. Seeking an order directing the tenant to deposit the arrears of rent and also electricity charges, the landlord has filed I.A.No.1 of 2021 before the Rent Control Court, which is pending consideration. Though the provision quoted in I.A.No.1 of 2021 is ``` O.P.(RC)No.127 of 2022 ``` 4 Section 151 of the Code of Civil Procedure, the relief sought for in that application for paymen t of admitted arrears of rent falls under Section 12 of the Kerala Buildings (Lease and Rent Control) Act, 1965. 7. 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 ``` O.P.(RC)No.127 of 2022 ``` 5 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 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 ``` O.P.(RC)No.127 of 2022 ``` 6 the Appellate Authority in that behalf. 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 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 ``` O.P.(RC)No.127 of 2022 ``` 7 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. 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 ``` O.P.(RC)No.127 of 2022 ``` 8 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 to put the landlord in possession of the building. 11. 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 ``` O.P.(RC)No.127 of 2022 ``` 9 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 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. 12. In **Shiraz K.V. v. Binny Emmatty [2022 (3) KHC** **227]** this Court held that, 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 ``` O.P.(RC)No.127 of 2022 ``` 10 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. On the facts of the case, this Court noticed that, the tenant has not chosen to contest the Rent Control Petition by filing counter. The tenant has not even filed an application to set aside the order dated 11.02.2021 in R.C.P.No.97 of 2020, whereby he was set _ex parte_ . On 04.12.2021, the Rent Control Court recalled the order dated 12.11.2021 in I.A.No.2 of 2021, since the same happened to be passed in the absence of the tenant. However, the order dated 12.11.2021 in R.C.P.No.97 of 2020, whereby the tenant was set _ex parte_ , is not yet recalled. When the tenant has not chosen to contest R.C.P.No.97 of 2020 and continues to be _ex parte_ , the Rent Control Court committed a ``` O.P.(RC)No.127 of 2022 ``` 11 manifest error in passing an order in I.A.No.2 of 2021, invoking the provisions under Section 12(1) of the Act. 13. In **Abdul Razak P.M. v. K.C. Thomas and others** **[2022 (4) KHC 260]** , considering the object of the provisions of Section 12 of the Act, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India, this Court directed all Rent Control Appellate Authorities in the State to ensure time bound disposal of the appeals filed under S.18(1)(b) of the Act, against an order passed by the Rent Control Court under Section 12(3) of the Act. Similarly, this Court directed all Rent Control Courts/Appellate Authorities in the State to ensure time bound disposal of the applications filed under Section 12 of the Act, in pending Rent Control Petitions/Rent Control Appeals. Registrar (District Judiciary) was directed to communicate a soft copy of the judgment to all Rent Control Courts/Appellate Authorities in the State, without any delay. 14. As per the report dated 07.07.2022 of the Rent Control Court, I.A.No.1 of 2021 in R.C.P.No.6 of 2021 now stands posted to 09.08.2022 for filing objection by the tenant. ``` O.P.(RC)No.127 of 2022 ``` 12 15. In such circumstances, this original petition is disposed of by directing the Rent Control Court to ensure time bound disposal of I.A.No.1 of 2021 in R.C.P.No.6 of 2021 in so far as payment of admitted arrears of rent is concerned, taking note of the provisions stated hereinbefore and also the law laid down in the decisions referred to supra. Orders in that application shall be passed as expeditiously as possible, at any rate, within a period of two months from the next posting date, after affording the respondent an opportunity to file objection. The relief sought for in this original petition for time bound disposal of R.C.P.No.6 of 2021 is left open. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR** **JUDGE** **yd** ``` O.P.(RC)No.127 of 2022 ``` 13 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:`** |**`Exhibit P1`**|**`TRUE COPY OF THE PETITION IN RCP`**| |---|---| ||**`NO.6/2021 DATED 22.11.2021 ON THE FILES`**| ||**`OF RENT CONTROLLER (MUNSIFF COURT)`**| ||**`PUNALUR`**| |**`Exhibit P2`**|**`TRUE COPY OF THE COMMISSION REPORT IN IA`**| ||**`NO.2/2021 IN RCP NO.6/2021DATED`**| ||**`29.11.2021`**| |**`Exhibit P3`**|**`TRUE COPY OF THE DIRECTION PETITION IN`**| ||**`RCP NO.6/2021 DATED 01.01.2022 FOR`**| ||**`PERMITTING THE PETITIONER TO CONDUCT THE`**| ||**`RENOVATION WORK OF THE BUILDING`**| |**`Exhibit P4`**|**`TRUE COPY OF THE E-COURT STATUS OF RCP`**| ||**`NO.6/2021 OF MUNSIFF COURT, PUNALUR`**| |**`Exhibit P5`**|**`TRUE COPY OF THE E-COURT PROCEEDINGS OF`**| ||**`RCP NO.6/2021 DATED 08.03.2022`**| |**`Exhibit P6`**|**`TRUE COPY OF THE E-COURT PROCEEDINGS OF`**| ||**`RCP NO.6/2021 DATED 18.03.2022`**| |**`Exhibit P7`**|**`TRUE COPY OF THE E-COURT PROCEEDINGS`**| ||**`DATED 06.04.2022`**| ## **`RESPONDENT'S EXHIBITS:NIL`** ``` TRUE COPY ``` ## **`P.A. TO JUDGE`**