Asif v. Muhammed Rafi Saithalavi (RCREV. NO. 178 OF 2021)

``` 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 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944 RCREV. NO. 178 OF 2021 ``` ``` AGAINST THE JUDGMENT DATED 17.03.2021 IN R.C.A.28 OF 2020 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT JUDGE), KOZHIKODE AND ORDER DATED 16.11.2019 IN ``` ``` R.C.P.NO.185 OF 2018 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF-I), KOZHIKODE. ``` ## **`REVISION PETITIONER:`** ``` ASIF, AGED 55 YEARS S/O. HYDRU, ROOM NO. 8/15, R.C. ROAD, NEAR TA- GORE CENTERARY HALL, NAGARAM AMSOM AND DESOM, KOZHIKODE 673 001. ``` ``` BY ADVS. K.M.FIROZ M.SHAJNA ``` ## **`RESPONDENTS:`** ``` MUHAMMED RAFI SAITHALAVI, AGED 53 YEARS S/O. SAITHALAVI, THOTTUNGAL VALAPPIL GRAND HOUSE, FRANCIS ROAD, NAGARAM AMSOM AND DESOM, KOZHIKODE-673 001 ``` ``` BY ADV G.SREEKUMAR (CHELUR) ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 25.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.C.Rev.No.178 of 2021 2 ## **ORDER** ## **Anil K. Narendran, J.** The petitioner is the respondent-tenant in R.C.P.No.185 of 2018 on the file of the Rent Control Court (Principal Munsiff Court-I), Kozhikode, a petition filed by the respondent hereinlandlord, under Sections 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking an order of eviction of the tenant from the petition schedule shop room. In the Rent Control Petition, the tenant entered appearance and filed a counter. The landlord filed I.A.No.2082 of 2019, a petition filed under Section 12 of the Act seeking an order to direct the tenant to deposit the admitted arrears of rent of the petition schedule shop room. In that interlocutory application, the Rent Control Court passed an order dated 30.09.2019, whereby the tenant is directed to pay the admitted rent, at the rate of Rs.1,000/-, for the period from 15.12.2018 till the date of that order, within four weeks. In the said order, which is placed on record along with this Rent Control Revision, the Rent Control Court noticed that the respondent has not filed any counter to I.A.No.2082 of 2019. The Rent Control Court noticed that, the tenant admitted arrears of rent in the counter filed in R.C.P.No.185 of 2018. According to the tenant, he has paid rent upto 14.12.2018. The order dated 30.09.2019 R.C.Rev.No.178 of 2021 3 of the Rent Control Court in I.A.No.2082 of 2019 was followed by another order dated 16.11.2019, whereby proceedings in R.C.P.No.185 of 2019 stands stopped under Section 12(3) of the Act, on the ground that the tenant failed to comply with the orders dated 30.09.2019 and 02.11.2019 in I.A.No.2082 of 2019, by paying the admitted arrears of rent or showing cause to the contrary. The said order was under challenge in R.C.A.No.28 of 2020 filed before the Rent Control Appellate Authority (Addl. District Judge-IV), Kozhikode, under Section 18(1)(b) of the Act. Though the Appellate Authority noticed the submission made by the learned counsel for the appellant-tenant that the tenant has filed counter in I.A.No.2082 of 2019, wherein it was stated that the tenant had paid entire arrears of rent and hence, the finding of the Rent Control Court that the tenant has paid rent upto 14.12.2018 is factually incorrect, the Appellate Authority dismissed that appeal by the judgment dated 17.03.2021, thereby confirming the order passed by the Rent Control Court under Section 12(3) of the Act. 2. On 06.12.2021, when this Rent Control Revision came up for admission, this Court admitted the matter on file. Urgent notice by speed post was ordered to the respondent, returnable R.C.Rev.No.178 of 2021 4 within two weeks. In I.A.No.1 of 2021, this Court granted an interim order staying the operation and execution of the order dated 16.11.2019 in R.C.P.No.185 of 2018 of the Rent Control Court, Kozhikode as confirmed by the judgment dated 17.03.2021 in R.C.A.No.28 of 2020 passed by the Rent Control Appellate Authority, Kozhikode and all further proceedings in E.P.No.16 of 2020 on the file of the Principal Munsiff Court-I, Kozhikode, for a period of one month. The said interim order, which was extended from time to time, is still in force. 3. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlord. 4. The issue that arises for consideration in this Rent Control Revision is as to whether the judgment dated 17.03.2021 of the Rent Control Appellate Authority in R.C.A.No.28 of 2020 and the order dated 16.11.2019 of the Rent Control Court in R.C.P.No.185 of 2018 warrant interference, in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 5. The learned counsel for the petitioner-tenant would contend that, though the tenant has filed counter in I.A.No.2082 of 2019, the Rent Control Court proceeded with the matter as if the tenant has not chosen to file counter in that interlocutory R.C.Rev.No.178 of 2021 5 application. Therefore, the procedure adopted by the Rent Control Court while passing the order dated 30.09.2019 and also the order dated 16.11.2019, which is one issued under Section 12(3) of the Act is _per se_ arbitrary and illegal. The Appellate Authority failed to consider the said contention raised by the tenant appropriately, while dismissing R.C.A.No.28 of 2020. 6. Per contra, the learned counsel for the respondentlandlord would contend that the reasoning of the Rent Control Court in the orders dated 30.09.2019 and 16.11.2019 is perfectly legal, which warrants no interference in this Rent Control Revision. The learned counsel would submit that, as noticed by the Appellate Authority, the tenant has filed a counter in I.A.No.2082 of 2019, the application filed by the landlord under Section 12 of the Act. 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 R.C.Rev.No.178 of 2021 6 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 subsection (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 R.C.Rev.No.178 of 2021 7 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. 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 R.C.Rev.No.178 of 2021 8 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. 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 R.C.Rev.No.178 of 2021 9 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 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 R.C.Rev.No.178 of 2021 10 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 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. 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 R.C.Rev.No.178 of 2021 11 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 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). 13. 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 R.C.Rev.No.178 of 2021 12 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 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. 14. In the instant case, by the order dated 30.09.2019 in I.A.No.2082 of 2019 in R.C.P.No.185 of 2018, the Rent Control Court directed the tenant to pay the admitted arrears of rent, under Section 12(1) and (2) of the Act. In the said order, the Rent Control Court noticed that the tenant has not filed any counter in I.A.No.2082 of 2019 and that, in the counter filed in R.C.P.No.185 of 2018, the tenant has admitted arrears of rent. We have perused the counter filed by the tenant in I.A.No.2082 R.C.Rev.No.178 of 2021 13 of 2019, in which after reiterating the contentions raised in the counter filed in R.C.P.No.185 of 2018 that he has cleared the entire arrears of rent upto 14.12.2018, it is stated that the tenant has already paid the arrears of rent. It is further stated that there is no arrears of rent payable to the landlord. The learned counsel for the respondent-landlord would contend that the aforesaid statement made in the counter filed in I.A.No.2082 of 2019 would not make it clear that the tenant has paid arrears of rent after 14.12.2018. 15. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, we find that the Rent Control Court proceeded with I.A.No.2082 of 2019 filed by the landlord under Section 12 of the Act as if the tenant has not chosen to file any counter in that application. It is for the Rent Control Court to proceed with that interlocutory application after taking note of the contentions raised in the counter filed by the tenant and also the statutory provisions referred to hereinbefore and also the law laid down in the decisions referred to supra. For the aforesaid reason, we find that the impugned orders of the Rent Control Court and the Appellate Authority warrant interference and the Rent Control R.C.Rev.No.178 of 2021 14 Court has to reconsider I.A.No.2082 of 2019 and pass appropriate orders, in accordance with law, after hearing both sides. 16. 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. In the result, this Rent Control Revision is disposed of by setting aside the judgment dated 17.03.2021 in R.C.A.No.28 of 2020 of the Rent Control Appellate Authority (Addl. District Judge-IV), Kozhikode and the orders dated 30.09.2019, R.C.Rev.No.178 of 2021 15 02.11.2019 and 16.11.2019 in I.A.No.2082 of 2019 and in R.C.P.No.185 of 2018 of the Rent Control Court (Munsiff), Kozhikode and thereby directing the said court to reconsider and pass appropriate orders in I.A.No.2082 of 2019 in R.C.P.No.185 of 2018 filed by the respondent-landlord, with notice to both sides, taking note of the statutory provisions referred to hereinbefore and also the law laid down in the decisions referred to supra, as expeditiously as possible, at any rate, within a period of two months from the date of production of a certified copy of this judgment. Thereafter, the Rent Control Court shall finally dispose of R.C.P.No.185 of 2018, within a further period of three months. Sd/- ## **ANIL K.NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd**