C. Janardhanan v. Cheriyapparambath Kollantavida Zeenath

``` 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 9[TH] DAY OF JANUARY 2023 / 19TH POUSHA, 1944 ``` ``` RCREV. NO. 220 OF 2022 ``` ``` AGAINST THE ORDER AND JUDGMENT DATED 31.10.2022 IN I.A.NO.1 OF 2022 AND RCA 135 OF 2019 OF ADDITIONAL DISTRICT COURT- II, ``` ## **`THALASSERY`** ``` RCP 104/2015 OF ADDITIONAL MUNSIFF COURT, KANNUR ``` ``` REVISION PETITIONER/S: ``` ``` C. JANARDHANAN, AGED 71 YEARS S/O CHORAN RAMAN, BUILDING NO. CP IV 930, REENA AGENCIES, KATTAMBALLY ROAD, KANNUR, PIN - 670011 ``` ``` BY ADV K.RAJESH SUKUMARAN ``` ## **`RESPONDENT/S:`** ``` CHERIYAPARAMBATH KOLLANTAVIDA ZEENATH AGED 51 YEARS, W/O SIDDIQUE, RESIDING AT REENAS, THAVAKKARA, KANNUR, PIN - 670001 BY ADVS. ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH)(K/1364/2003) E.MOHAMMED SHAFI(K/1057/1993) ``` ``` THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.C.Rev.No.220 of 2022 ## **ORDER** ## **Anil K. Narendran, J.** The petitioner is the respondent-tenant in R.C.P.No.104 of 2015 on the file of the Rent Control Court (Additional Munsiff), Kannur, a petition filed by the respondent herein-landlady under Section 11(2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule shop room. On receipt of notice, the tenant entered appearance and filed counter statement, opposing the reliefs sought for. Before the Rent Control Court, PW1 was examined and Exts.A1 to A4 were marked on the side of the landlady. The tenant was examined as RW1 and Exts.B1 to B6 were marked on his side. The report and sketch of the Advocate Commissioner were marked as Exts.C1 and C2. After considering the pleadings and evidence on record, the Rent Control Court, by the order dated 26.07.2019, allowed R.C.P.No.104 of 2015 in part by granting an order of eviction under Section 11(3) of the Act and the tenant was directed to surrender vacant possession of the petition schedule shop room to the landlady within a period of one month, failing which she would be at liberty to execute the order through the process of court. Challenging the order of eviction granted by the 3 ## R.C.Rev.No.220 of 2022 Rent Control Court, the tenant filed R.C.A.No.135 of 2019 before the Rent Control Appellate Authority (Additional District Judge-II), Thalassery, invoking the provisions under Section 18(1)(b) of the Act. In that Rent Control Appeal, the landlady filed I.A.No.1 of 2020, an application under Section 12 of the Act, seeking an order directing the tenant to pay the admitted arrears of rent. In that application, the Appellate Authority passed an order dated 31.10.2022. The reasoning of the Appellate Authority in the order dated 31.10.2022 and also its operative portion read thus; “In the case on hand, the admitted arrears is paid only upto and inclusive of the month of May, 2022. Admittedly, the rent thereafter is in arrears and the tenant failed to pay or deposit the same. No sufficient cause to the contrary is shown by the tenant. Therefore, this application is allowable. In the result, I.A.No.1 of 2020 is allowed. The tenant is directed to put the landlord in possession of the building forthwith.” Based on the said order dated 31.10.2022, the Appellate Authority stopped further proceedings in R.C.A.No.135 of 2019, by the judgment dated 31.10.2022. Paragraph 7 and also the operative portion of that judgment reads thus; “7. In case on hand, the admitted arrears is paid only upto and inclusive of the month of May, 2022. Admittedly, the rent thereafter is in arrears and the tenant failed to pay or deposit the same. No sufficient cause to the contrary is shown by the 4 R.C.Rev.No.220 of 2022 tenant. Therefore, I.A.No.1 of 2020 is allowed. In the result, all further proceedings in the R.C.A.No.135 of 2019 is stopped. The tenant/appellant is directed to put the landlord/respondent in possession of the building forthwith.” Feeling aggrieved, the tenant is before this Court in this Rent Control Revision, invoking the provisions under Section 20 of the Act. 2. On 12.12.2022, when this Rent Control Revision came up for admission, this Court issued notice before admission to the respondent. In I.A.No.2 of 2022 this Court granted an interim order staying the judgment dated 31.10.2022 in R.C.A.No.135 of 2019 and also the order dated 26.07.2019 in R.C.P.No.104 of 2015 for a period of one month. The said interim order was extended till 09.01.2023 by the order dated 05.01.2023. 3. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlady. 4. The issue that arises for consideration in this Rent Control Revision is as to whether the order dated 31.10.2022 of the Rent Control Appellate Authority in I.A.No.1 of 2020 in R.C.A.No.135 of 2019 and also the consequential judgment dated 31.10.2022 in R.C.A.No.135 of 2019 can be sustained in law. 5. The learned counsel for the petitioner-tenant would rely on the judgment of this Court in **Suvarna v. Ibrahimkutty [2022** 5 ## R.C.Rev.No.220 of 2022 ## **(1) KLT 818]** and **Sivadasan v. Nirmala [2022 (3) KLT 313]** in order to contend that the procedure adopted by the Rent Control Appellate Authority while considering I.A.No.1 of 2020, which is an application filed under Section 12 of the Act, is contrary to the statutory mandate. 6. On the other hand, the learned counsel for the respondent-landlady would contend that, when the tenant has defaulted payment of admitted arrears of rent, no interference is required in the impugned order and judgment, in exercise of the revisional jurisdiction under Section 20 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 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 6 R.C.Rev.No.220 of 2022 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, 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 7 ## R.C.Rev.No.220 of 2022 prescribed, be withdrawn by the landlord on application made by him to the Rent Control Court or the Appellate Authority in that behalf. 8. 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 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. 8 ## R.C.Rev.No.220 of 2022 9. 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. 10. 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 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, 9 ## R.C.Rev.No.220 of 2022 until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. ## 11. 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 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. ## 12. In **Pochappan Narayanan v. Gopalan [1990 (2) KLT** **1]** one of the contentions put forward by the learned counsel for the landlord was that, payment or deposit of arrears of rent admitted by the tenant to be due is a condition precedent which has to be satisfied by the tenant, before he can prefer an appeal against an order of eviction made by the Rent Control Court. Reliance was placed on the language of Section 12(1) of the Kerala Buildings 10 R.C.Rev.No.220 of 2022 (Lease and Rent Control) Act, which provides that no tenant shall be entitled to prefer an appeal under Section 18 against an order of eviction made by the Rent Control Court unless he has paid or deposited all arrears of rent admitted by the tenant to be due till the date of preferring the appeal. The Division Bench found that the right of appeal against an order of eviction made by the Rent Control Court is not conferred by Section 12 of the Act. The right of appeal is conferred by Section 18. Section 12 imposes certain obligations on the tenant of paying or depositing admitted rent during the pendency of the proceedings for eviction, and the consequences for committing default in fulfilling those obligations. The word 'prefer' used in Section 12(1) is not to convey the same meaning with which it has been employed in Section 18, which confers a right of appeal against an order of the Rent Control Court. The word 'prefer' not having been defined in the Act, it has to be assigned the ordinary meaning having regard to the context in which the said word is used. The meaning of the word 'prefer' given in Black's Law Dictionary, Fifth Edition is “to bring before; to prosecute; to try; to proceed with". It is therefore clear that the word 'prefer' can be used in the context of Section 12(1) for conveying the lodging of the appeal or prosecution of the appeal or proceeding with the appeal. 11 ## R.C.Rev.No.220 of 2022 Section 12(3) of the Act, which speaks of the consequences of the failure to pay or deposit the rent as contemplated by Sections 12(1) and (2), says that all further proceedings should be stopped and an order made directing the tenant to put the landlord in possession of the building. The consequence contemplated is not dismissal of the appeal on the ground that it is not maintainable but only to stop all further proceedings in the appeal. Therefore, the Division Bench held that the word 'prefer' has been used in Section 12(1) of the Act not to convey the lodging of the appeal but to convey that the appeal already lodged in accordance with Section 18 shall not be proceeded with or prosecuted further if the conditions specified in Section 12(1) are not fulfilled. Paying or depositing of all arrears of rent admitted by the tenant is not a condition precedent for presenting an appeal under Section 18 of the Act. The appeal gets properly lodged when the same is presented in accordance with Section 18 of the Act. 13. In **Suvarna v. Ibrahimkutty and others [2021 (6) KHC 250]** a Division Bench of 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 12 ## R.C.Rev.No.220 of 2022 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. 14. In **Suvarna** the Division Bench reiterated the law laid down in **Pochappan Narayanan** that, before the consequences contemplated by Section 12(3) of the Act can ensue, the conditions specified in Section 12(1) and (2) have to be satisfied. It is therefore clear that, before any steps can be taken under Section 12(3) for making an order against the tenant who has committed default in paying or making the deposit as contemplated by Section 12(1), the procedure prescribed by Section 12(2) has to be satisfied. A tenant who does not fulfil the obligations imposed on him by Section 12(1) cannot be visited with the penal consequences contemplated by Section 12(3), unless all the conditions specified by Section 12(2) are satisfactorily fulfilled. Even after the court acts in accordance 13 ## R.C.Rev.No.220 of 2022 with Section 12(2) and the tenant still commits default, the tenant has to be given one more opportunity of showing cause as to why penal consequences contemplated by Section 12(3) should not be imposed on him. It is only when the court is not satisfied with the cause shown that it can pass an order stopping all further proceedings and directing the tenant to put the landlord in possession of the building. 15. In the instant case, the order dated 31.10.2022 of the Rent Control Appellate Authority, Thalassery, whereby the petitioner-tenant is directed to put the landlord in vacant possession of the petition schedule shop room in R.C.P.No.104 of 2015, with the consequence contemplated by Section 12(3) of the Act, cannot be sustained in law, since before the consequences contemplated under Section 12(3) of the Act can ensue, the conditions specified in Section 12(1) and (2) of the Act has to be satisfied. Therefore, the order dated 30.10.2022 in I.A.No.1 of 2020 in R.C.A.No.135 of 2019 of the Rent Control Appellate Authority and also the consequential order dated 31.10.2022 in R.C.A.No.135 of 2019 cannot be sustained in law. 16. In such circumstances, this Rent Control Revision is allowed by setting aside the order dated 30.10.2022 in I.A.No.1 of 14 ## R.C.Rev.No.220 of 2022 2020 in R.C.A.No.135 of 2019 and the judgment dated 31.10.2022 in R.C.A.No.135 of 2019 of the Rent Control Appellate Authority, Thalassery. The Rent Control Appellate Authority is directed to reconsider I.A.No.1 of 2020 in R.C.A.No.135 of 2019 and take an appropriate decision in that interlocutory application, taking note of the law laid down by this Court in the decisions referred to supra, as expeditiously as possible, at any rate, within a period of two months from the date of appearance of parties. The parties shall appear before the Rent Control Appellate Authority, Thalassery, on **30.01.2023** . Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** bkn/- 15 ``` APPENDIX OF RCREV. 220/2022 ``` ## R.C.Rev.No.220 of 2022 ``` PETITIONER’S ANNEXURES ``` ``` Annexure A 1 ``` ``` PHOTOSTAT COPY OF THE ORDER DATED 31.10.2022 IN IA 01/2020 IN RCA 135/2019 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT-II) THALASERRY ```