B. Vijayan Pillai v. Usha Sudheer and Sandhya Radhakrishnan

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 10[TH] DAY OF OCTOBER 2022 / 18TH ASWINA, 1944** **RCREV. NO. 173 OF 2019** **[AGAINST THE ORDER DATED 8TH AUGUST,2018 IN RC(OP) NO.21 OF 2015 OF PRINCIPAL RENT CONTROL COURT, KOLLAM AND JUDGMENT DATED 27.02.2019 IN RCA NO.28 OF 2018 OF II ADDITIONAL DISTRICT COURT (IIND ADDL.RENT CONTROL APPELLATE AUTHORITY),KOLLAM]** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** B.VIJAYAN PILLAI AGED 66 YEARS SREELEKSHMI FAMILY STORE, OPP. KOLLAM RAILWAY STATION, ANDAMUKKAM CHERRY, KOLLAM EAST VILLAGE, KOLLAM, PIN-691001. BY ADVS. C.R.VIJAYAKUMARAN PILLAI SRI.R.SANTHOSH (VARKALA) SRI.A.CHANDRA BABU SMT.S.SANTHY (S-3446) ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** 1 USHA SUDHEER D/O. THANKAMMA, PATTATHUVILA VEEDU,PATTATHANAM, KADAPPAKKADA, KOLLAM-691008. 2 SANDHYA RADHAKRISHNAN, D/O. THANKAMA, PATTATHUVILA VEEDU, PATTATHANAM, KADAPPAKKADA, KOLLAM-691008. BY ADV SRI.SAJU J PANICKER **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION** **ON 10.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.R.NO.173 OF 2019 :-2-: ## **O R D E R** ## **SHOBA ANNAMMA EAPEN, J.** This Rent Control Revision is filed by the respondent-tenant in R.C.(O.P) and the appellant in Rent Control Appeal, challenging the Judgment in R.C.A.No.28/2018 dated 27.02.2019 by the Addl.Rent Control Appellate Authority-II, Kollam and the order dated 8.8.2018 passed by the Principal Rent Control Court, Kollam in R.C.(O.P).No.21/2015. For convenience, we shall refer to the parties with reference to their status in the rent control petition, unless otherwise stated. 2. The respondents herein, landladies, filed R.C (O.P) No.21/2015 before the Rent Control Court, Kollam, seeking eviction of the petitioner under Sections 11(2)(b), 11(3) & 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). Thereupon, they filed I.A.No.648 of 2018 in the R.C.(O.P) under Section 12 of the Act. On 26.02.2018, an order was passed by the Rent Control Court directing the tenant to pay the admitted R.C.R.NO.173 OF 2019 :-3-: arrears before the Rent Control Court within four weeks. A Review Petition No.1538/2018 filed by the tenant to the above order was dismissed, but granted one week's time to pay the arrears of rent. Again the tenant filed I.A.No.3386/2018 seeking two weeks' time to pay the arrears of rent and the IA was allowed. In spite of repeated directions, the tenant failed to deposit admitted arrears, in terms of the order dated 26.02.2018 under Section 12(1) of the Act and the Rent Control Court on 08.08.2018 passed an order under Section 12(3) of the Act. Further proceedings in the rent control petition were stopped and the tenant was directed to give vacant possession of the petition schedule building to the landladies forthwith. Aggrieved by the said order, the tenant filed an appeal, R.C.A.No.28 of 2018, under Section 18 of the Act. The Rent Control Appellate Authority (Additional Rent Control Appellate Authority-II), Kollam, did not accept the contentions of the tenant and the appeal was dismissed as per judgment dated 27.02.2019. Challenging the judgment and the order, this revision petition under Section 20 of the Act has been filed by R.C.R.NO.173 OF 2019 ## :-4-: the petitioner-tenant. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents in detail. 4. The RC.(O.P.) was filed by the landladies for eviction on the ground of _bona fide_ need and arrears of rent. During the pendency of the petition, the landladies filed I.A.No.648 of 2018 under Section 12 of the Act for eviction under arrears of rent. Provisions of Section 12(1) of the Act permit to act upon the admitted rate of rent. 5. As per Section 12(1) of the Act, the court has jurisdiction to direct the tenant to deposit the arrears of rent admitted to be due. Thus, the landladies filed I.A.No.648 of 2018 under Section 12 of the Act claiming arrears of rent before the court below. The said application was resisted by the tenant by filing objection stating that Rs.2,00,000/- paid by him as advance has to be adjusted towards the arrears of rent. On 26.02.2018, the Rent Control Court passed an order directing the tenant to deposit the admitted arrears of rent forthwith. ## R.C.R.NO.173 OF 2019 :-5-: Sufficient time was granted for payment of arrears of rent. 6. The tenant did not comply with the order. The Rent Control Court passed the order dated 08.08.2018 and tenant filed R.C.A.No.28 of 2018 before the Appellate Authority and the appeal was, however, dismissed as per judgment dated 27.02.2019. 7. The learned counsel appearing for the revision petitioner would contend that the landladies had no _locus standi_ to file R.C.(O.P.) as there was no privity of contract between the landladies. It was further contended that Rs.2,00,000/- paid as advance is not yet returned and if there are any arrears of rent it has to be adjusted from the said advance amount. Another contention was that the landladies are well settled and they have no _bona fide_ need to start a business and that the landladies own several shop rooms and those rooms are lying vacant. It was further contended that the tenant has no other business and he is depending on the income from the aforesaid business for his livelihood and that the courts below did not consider all these aspects and ## R.C.R.NO.173 OF 2019 :-6-: therefore, the order passed under Section 12(3) of the Act is unsustainable in law. 8. The learned counsel for the respondents herein/landladies submitted that the landladies are without any employment and the petition schedule shop room is required by them to start a fancy store and since they have no other income they are put to great difficulty due to the non-payment of arrears of rent. It was further contended that the landladies derived title over the petition schedule shop room as per Settlement Deed No.2224 of 2003 of the SRO, Kollam executed by their mother Thankamma, who was the original landlady and they are now the owners of the property and thus, they have _locus standi_ to file the rent control petition. It was also contended that sufficient time was granted to the tenant to pay the arrears of rent, but the petitioner did not deposit the admitted arrears of rent and no payment had been made so far. 9. The issue that arises for consideration in this Rent Control Revision is whether any interference is warranted ## R.C.R.NO.173 OF 2019 :-7-: on the Judgment dated 08.08.2018, whereby the order of eviction granted by the Rent Control Court under Section 12(3) of the Act in R.C.(O.P.) No.21 of 2015 stands confirmed. 10. Pursuant to the order in I.A.No.648 of 2018 dated 26.02.2018 directing the tenant to pay the arrears of rent forthwith, the tenant did not care to make any payment. Thereafter sufficient time was granted by the court below, pursuant to I.A.Nos.1538/2018 and 3386/2018 filed by the tenant. Providing a further opportunity for effecting the payment of arrears of rent or to make deposit, is not mandatory. If no sufficient cause is shown, it is absolutely within the authority and competence to stop the proceedings and direct the tenant to put the landlord in possession of the building. However, time was granted by the court below for depositing the admitted arrears of rent upto 08.08.2018. 11. Section 12 of the Act deals with payment or deposit of rent during the pendency of proceedings for eviction. Section 12 of the Act reads as follows: R.C.R.NO.173 OF 2019 ## :-8-: ## 12. **Payment of deposit of rent during the pendency of proceedings for eviction** .-- - _(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._ - _(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)._ - _Provided that 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._ - _(3) 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._ - _(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_ ## R.C.R.NO.173 OF 2019 :-9-: _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.”_ 12. In order to avoid the proceedings under Section 12(3) of the Act, the petitioner should have made deposits of admitted arrears of rent at least before 08.08.2018, which the petitioner failed to do. 13. In **Shaji M.** v. **SNDP Sakhayogam No.610, Alappuzha & Anr.** [2020 (2) KLT 866 (F.B.)] : [2020 (2) KHC 574)], a Full Bench of this Court held that, in view of the principle evolved in **Narayanan** v. **Vinod** [2004 (3) KLT 955] 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 R.C.R.NO.173 OF 2019 ## :-10-: 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. Only thing is that the opportunity to be afforded to the tenant to show sufficient cause with respect to the failure to pay or deposit rent, as directed in S.12(1) and (2), within the date stipulated, is not an empty formality. The principles of natural justice would mandate that the Rent Control Court or the Appellate Authority, as the case may be, should afford the tenant with such opportunity. 14. Therefore, there is no necessity to alert the tenant by issuing any specific notice, calling upon him to show sufficient cause. On the other hand, providing a further opportunity after the last date stipulated for effecting the ## R.C.R.NO.173 OF 2019 ## :-11-: payment or the deposit, is mandatory. If no sufficient cause is shown within such an extended date to which the rent control petition is posted, it is absolutely within the authority and competence to stop the proceedings and direct the tenant to put the landlord in possession of the building. 15. In the present case, the order under Section 12 was passed on 26.02.2018 by the Rent Control Court directing the tenant to pay the admitted arrears before the Rent Control Court within four weeks. Thereafter, though the Review Petition filed by the tenant to the above order was dismissed, the court granted one week's time to pay the arrears of rent. Again the tenant filed an IA seeking two weeks' time to pay the arrears of rent and the IA was allowed and time was granted. In spite of repeated directions, the tenant failed to deposit admitted arrears and the order was passed on 08.08.2018 under Section 12(3) of the Act. Thus sufficient opportunity was granted by the rent control court to the tenant to pay the arrears of rent. 16. As per Section 12 of the Act, the tenant is entitled to contest an application only if he pays the entire admitted ## R.C.R.NO.173 OF 2019 ## :-12-: arrears of rent and continues to pay or deposit as the case may be, until termination of the proceedings in the Rent Control Court. The legislature considered payment of rent to the landlord as the primary duty of the tenant. Unless that obligation is fulfilled the tenant is not given the right to contest the petition and the result is that the petition will go uncontested and end in an order against the eviction of the tenant. Though ample opportunities were given, admittedly, the tenant did not pay the arrears of rent. 17. In **Sobhana Nair K.N.** v. **Shaji S.G. Nair** (2016 (1) KLT 994 = 2016 (1) 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 Art.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 Art.227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, ## R.C.R.NO.173 OF 2019 **==> picture [35 x 10] intentionally omitted <==** 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. 18. In the instant case, there was no other option for the court below than to stop the rent control proceedings and pass order under Section 12(3). In the circumstances, the order dated 08.08.2018 passed by the Principal Rent Control Court, Kollam in R.C.(OP).No.21/2015 cannot be found fault with. The appellate authority, after considering all the aspects, has confirmed the said order as per its judgment in R.C.A.No.28/2018 dated 27.02.2019. The findings therein are not suffering from any illegality, irregularity or impropriety. We, therefore, find no reason to interfere with the impugned order and the judgment in exercise of the powers of this Court under Section 20 of the Act. 19. In the result, the Rent Control Revision fails and the same is accordingly dismissed. Taking note of the request made by the learned counsel for the petitioner-tenant, we grant one month's time R.C.R.NO.173 OF 2019 :-14-: to pay entire arrears of rent. Needless to say, if the petitioner - tenant fails to pay the arrears of rent as directed above, the impugned Judgment in R.C.A.No.28/2018 dated 27.02.2019 by the Addl.Rent Control Appellate Authority-II, Kollam and the order dated 8.8.2018 passed by the Principal Rent Control Court, Kollam in R.C.(OP).No.21/2015 shall continue to operate. ## **Sd/-** **A.MUHAMED MUSTAQUE JUDGE** **sd/SHOBA ANNAMMA EAPEN JUDGE** MBS/