C. Jayaraj Panicker and O.V. ShyLaja v. M.P. Mujeeb Rahman

# **`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 18[TH] DAY OF JULY 2022 / 27TH ASHADHA, 1944 ``` ``` OP (RC) NO.140 OF 2022 ``` ``` AGAINST PENDING PROCEEDINGS IN I.A.NO.8 OF 2021 IN R.C.P.NO.102 OF 2017 BEFORE RENT CONTROL COURT (ADDITIONAL MUNSIFF-II), KOZHIKODE ``` ## **`PETITIONERS/PETITIONERS:`** ``` 1 C.JAYARAJ PANICKER AGED 67 YEARS S/O.LATE APPU NAIR, RESIDING AT KANNADATH HOUSE, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK, FEROKE P.O, PIN - 673631 ``` ``` 2 O.V.SHYLAJA AGED 55 YEARS W/O.C.JAYARAJ PANICKER, RESIDING AT KANNADATH HOUSE, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK, FEROKE P.O -, PIN - 673631 BY ADVS. SMT.SUMATHI DANDAPANI (SR) FOR PETITIONER MILLU DANDAPANI RONIT ZACHARIAH GOPIKA P.J. SIRAJ ABDUL SALAM ``` ## **`RESPONDENT/RESPONDENT:`** ``` M.P.MUJEEB RAHMAN AGED 46 YEARS DOING BUSINESS AT M.R. WOODLINE 19/1704, EAST KALLAI, PO KALLAI AMSOM DESOM, KOZHIKODE TALUK, PIN -, PIN - 673003 ``` ``` THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 18.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 ## O.P.(RC) No.140 of 2022 ## **J U D G M E N T** ## Anil K. Narendran, J. The petitioners-landlords filed R.C.P.No.102 of 2017 before the Rent Control Court (Additional Munsiff-II), Kozhikode, under Sections 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 shop room. The tenant entered appearance and filed Ext.P3 counter in R.C.P.No.102 of 2017, denying the title of the landlords. In Ext.P4 order dated 19.01.2022 the Rent Control Court found that the denial of title by the landlord is not bona fide. The said order of the Rent Control Court is under challenge in R.C.A.No.31 of 2022 filed by the tenant before the Rent Control Appellate Authority (Additional District Judge-III), Kozhikode. A copy of the memorandum of appeal is placed on record as Ext.P5. In the said appeal the tenant filed I.A.No.1 of 2022 (Ext.P6), seeking interim stay. In that interlocutory application, the landlords filed an objection (Ext.P7), wherein it is pointed out that the tenant has kept the rent in arrears, which has mounted to Rs.19,44,156/- as on 30.04.2022. The landlords have filed I.A.No.8 of 2021 in 3 ## O.P.(RC) No.140 of 2022 R.C.P.No.102 of 2017, under Section 12 of the Act, seeking an order directing the tenant to deposit the admitted arrears of rent within a period to be fixed by the Rent Control Court failing which the tenant may be directed to vacate the petition schedule shop room. In that interlocutory application, the tenant has filed a counter dated 11.10.2021 (Ext.P9). The grievance of the petitioners-landlords is that though the aforesaid interlocutory application came up for consideration on 17.01.2022, the matter is being adjourned by the Rent Control Court, awaiting orders of the Rent Control Appellate Authority in R.C.A.No.31 of 2022, despite the fact that in I.A.No.1 of 2022, the application for stay, no orders have been passed by the Appellate Authority. On 29.06.2022 the Rent Control Court adjourned I.A.No.8 of 2021 in R.C.P.No.102 of 2017 to 02.08.2022. Therefore, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, the petitioners-landlords are seeking an order directing the Rent Control Court (Additional Munsiff-II), Kozhikode to dispose of I.A.No.8 of 2021 in R.C.P.No.102 of 2017, in accordance with Section 12 of the Act. 2. Heard the learned counsel for the petitioners-landlords. 4 ## O.P.(RC) No.140 of 2022 Considering the nature of relief proposed to be granted, service of notice on the respondent-tenant is dispensed with. 3. The learned Senior Counsel for the petitionerslandlords would submit that I.A.No.8 of 2021 in R.C.P.No.102 of 2017, filed by the landlords under Section 12 of the Act, is pending consideration before the Rent Control Court. That interlocutory application filed on 08.09.2021 is being adjourned, even after Ext.P4 order dated 19.01.2022 of the Rent Control Court on the denial of title by the tenant. In I.A.No.1 of 2022 in R.C.A.No.31 of 2022 the landlords filed Ext.P7 objection pointing out that the tenant has kept the rent in arrears, which has mounted to Rs.19,44,156/- as on 30.04.2022. Despite the fact that no interim order has been granted by the Appellate Authority in R.C.A.No.31 of 2022, the Rent Control Court is adjourning the consideration of I.A.No.8 of 2021 in R.c.P.No.102 of 2017, an application filed by the landlords under Section 12 of the Act. The learned Senior Counsel would point out that the 1[st] petitioner is a senior citizen aged 67 years. 5. Section 12 of the Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per 5 ## O.P.(RC) No.140 of 2022 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 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 6 ## O.P.(RC) No.140 of 2022 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 the Appellate Authority in that behalf. 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 7 ## O.P.(RC) No.140 of 2022 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. 7. 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, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. 8. In **J. Ramkumar v. Ashok Jacob [2022 (1) KHC 495 : ILR 2021 (4) Kerala 876]** this Court held that, Section 8 ## O.P.(RC) No.140 of 2022 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. 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 9 ## O.P.(RC) No.140 of 2022 tenant to put the landlord in possession of the building. 9. 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 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 10 O.P.(RC) No.140 of 2022 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. ## 10. 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 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 11 ## O.P.(RC) No.140 of 2022 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 manifest error in passing an order in I.A.No.2 of 2021, invoking the provisions under Section 12(1) of the Act. ## 11. 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 12 ## O.P.(RC) No.140 of 2022 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. 12. In the instant case, I.A.No.8 of 2021 in R.C.P.No.102 of 2017 is one filed by the landlords on 08.09.2021, invoking the provisions under Section 12 of the Act. By Ext.P4 order dated 19.01.2022 the Rent Control Court found that the denial of title by the landlords is not bona fide. Merely for the reason that R.C.A.No.31 of 2022 filed by the tenant is pending consideration before the Rent Control Appellate Authority, the Rent Control Court cannot keep pending the application filed by the landlords under Section 12 of the Act. Though the tenant filed I.A.No.1 of 2022 in R.C.A.No.31 of 2022 seeking interim stay of operation and enforcement of Ext.P4 of the Rent Control Court, no orders have been passed by the Appellate Authority in that application. In view of the law laid down in the decisions referred to supra, the Rent Control Court has to ensure time bound disposal of the application filed by the landlords under Section 12 of the Act. 13 O.P.(RC) No.140 of 2022 In such circumstances, this original petition is disposed of by directing the Rent Control Court (Additional Munsiff-II), Kozhikode, to consider and pass appropriate orders in I.A.No.8 of 2021 in R.C.P.No.102 of 2017 filed by the petitioners-landlords, as expeditiously as possible, at any rate, within a period of two months from the dated of production of a certified copy of this judgment, taking note of the law laid down in the decisions referred to supra. It is made clear that the directions contained in this judgment will certainly be subject to any interim order being passed by the Rent Control Appellate Authority (Additional District Judge-III), Kozhikode in R.C.A.No.31 of 2022 filed by the tenant challenging Ext.P4 order dated 19.01.2022 of the Rent Control Court. Sd/- ## **ANIL K.NARENDRAN JUDGE** Sd/- ## **P.G. AJITHKUMAR JUDGE** PV 14 ## O.P.(RC) No.140 of 2022 ## **`APPENDIX OF OP (RC) 140/2022`** ``` PETITIONER'S EXHIBITS ``` ``` Exhibit P1 ``` ``` TRUE COPY OF THE RENT CONTROL PETITION FILED BY THE PETITIONER ON 30.06.2017 ON THE FILES OF ADDL MUNSIFF- II KOZHIKODE AS RCP 102/2017 ``` ``` Exhibit P2 TRUE COPY OF LEASE DEED DATED 01.10.2014 EXECUTED BETWEEN THE PETITIONERS AND RESPONDENT ``` ``` Exhibit P3 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT DATED 19.01.2018 IN RCP 102/2017 ``` ``` Exhibit P4 TRUE COPY OF THE ORDER DATED 19.01.2022 IN RCP 102/2017 PASSED BY THE LEARNED RENT CONTROLLER (ADDL. MUNSIFF II), KOZHIKODE ``` ``` Exhibit P5 TRUE COPY OF THE APPEAL MEMO IN RCA 31/2022 BEFORE THE HON'BLE RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT - III A) KOZHIKODE ``` ``` Exhibit P6 THE TRUE COPY OF IA 1/2022 ALONG WITH THE AFFIDAVIT IN RCA 31/2022 ``` ``` Exhibit P7 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONERS HEREIN IN RCA 31/2022 DATED 19.05.2022 ``` ``` Exhibit P8 THE TRUE COPY OF THE STAY PETITION I.A. 8/2021 IN RCP 102/2017 ``` ``` Exhibit P9 TRUE COPY OF THE COUNTER DATED 11.10.2021 FILED BY THE RESPONDENT ```