City Co-operative Hospital v. E.V. Luquman and Hind Luquman

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 24TH DAY OF JULY 2017/2ND SRAVANA, 1939 ## **RCRev..No. 345 of 2015 (E)** AGAINST THE ORDER IN I.A.NO.1028/2013 AND THE JUDGMENT IN R.C.A.NO.33/2013 DATED 21.11.2015 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY/2ND ADDITIONAL DISTRICT JUDGE, KOZHIKODE. AGAINST THE ORDER IN R.C.P.NO.83/2010, DATED 18.12.2012, ON THE FILE OF THE RENT CONTROL COURT/ADDL.MUNSIFF-I, KOZHIKODE. ## REVISION PETITIONERS/APPELLANTS/RESPONDENTS: 1. THE CITY CO-OPERATIVE HOSPITAL BY ITS PRESIDENT, 14/412A,NEAR VATTAMPOYIL, P.O KALLAI, CALICUT 3, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 2. THE SECRETARY THE CITY CO-OPERATIVE HOSPITAL, 14/412A, NEAR VATTAMPOYIL, P.O KALLAI, CALICUT 3, NAGARAM AMSOM DESOM OF KOZHIKODE TALUK. - BY ADVS.SRI.V.V.SURENDRAN - SRI.P.M.PADMANABHAN SRI.P.A.HARISH SMT.SANIKA.V.S. ## RESPONDENTS/RESPONDENTS/PETITIONERS: 1. E.V.LUQUMAN, S/O. MOIDEENKOYA, RESIDING AT 14/436,P.M. HOUSE, P.O. KALLAI, CALICUT 673 003. 2. HIND LUQUMAN, D/O. USMANKOYA, RESIDING AT 14/436,P.M. HOUSE, KALLAI P.O., CALICUT - 673 003. - R1 BY ADV. SRI.PUSHPARAJAN KODOTH R1 BY ADV. SRI.K.JAYESH MOHANKUMAR R1 BY ADV. SMT.VANDANA MENON R1 BY ADV. SMT.N.DEEPA R1 BY ADV. SRI.T.SETHUMADHAVAN (SR.) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 24.07.2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **I.A.NO.3352/2015 IN R.C.R.NO.345/2015** CLOSED 24/07/2017 SD/- **K.HARILAL, JUDGE** SD/- **P.SOMARAJAN, JUDGE** //TRUE COPY// AHZ/ **“C.R.”** **K. Harilal & P. Somarajan, JJ. ---------------------------------------------------R.C.R. No. 345 of 2015 (E)** **---------------------------------------------------Dated this the 24[th] day of July, 2017** ## **O R D E R** ## **Somarajan, J.** The tenant came up in revision aggrieved by the order in I.ANo.1028 of 2013 in R.C.A.No.33 of 2013 of the Rent Control Appellate Authority, Kozhikode. 2. An order was passed under Section 12 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, “the Act”) by the Rent Control Appellate Authority during the pendency of the Rent Control Appeal. Earlier, I.A.No.4138 of 2010 was filed before the Rent Control Court under Section 12 of the Act, which has ended in an order under Section 12(3) of the Act. It was challenged in R.C.A.No.33 of 2013 before the Rent Control Appellate Authority, Kozhikode, by the tenant. During the pendency of R.C.A.No.33 of 2013 before the Rent Control Appellate Authority, the landlord preferred another ## **R.C.R. No. 345 of 2015 (E)** :: 2 :: application under Section 12 of the Act, I.A.No.1028 of 2013, before the Rent Control Appellate Authority and an order was passed on 21.10.2013 under Section 12(3) of the Act, which is under challenge in this revision. 3. Admittedly, R.C.A.No.33 of 2013 was preferred by the tenant challenging an order passed under Section 12(3) of the Act by the Rent Control Court in R.C.P.No.83 of 2010 dated 18.12.2012, and hence the first question came up for consideration is: Whether it is permissible to have a recourse under Section 12 of the Act during the appellate stage in an appeal, filed against an order of the Rent Control Court passed under Section 12(3) of the Act? 4. In order to resolve the above said issue, it is necessary to extract Section 12 (1) of the Act. “Section 12(1) : No tenant against whom an application for eviction has been ## **R.C.R. No. 345 of 2015 (E)** :: 3 :: 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 upto 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.” (emphasis supplied) Section 12 deals with two situations; i.e., restricting the right of tenant to contest an application presumably filed by the landlord and the restriction to prefer an appeal under Section 18 of the Act presumably by the tenant. The wording used in ## **R.C.R. No. 345 of 2015 (E)** :: 4 :: the first limb of section 12 is that “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” makes the legal position clear that the first limb of Section 12 would come into play/operate only when there is an application for eviction by a landlord under Section 11 of the Act. The second limb of Section 12 says that “or to prefer an appeal under section 18 against any order made by the Rent Control Court on the application”. The expression used and engrafted under the second limb of Section 12 on “the application” refers to the application made and mentioned under the first limb of Section 12(1); i.e., an application under Section 11 of the Act. No other interpretation is possible on a mere reading or on a strict interpretation of Section 12(1) of the Act. 5. In order to have the recourse under Section 12, it is a pre-requisite that there should be an application under ## **R.C.R. No. 345 of 2015 (E)** :: 5 :: Section 11, initiated by the landlords, or an appeal preferred by the tenant against the order under Section 11 of the Act. Without satisfying anyone of the abovesaid conditions, there cannot be a recourse under Section 12 of the Act. 6. It is true that Section 18 is wide enough to intake orders passed by the Rent Control Court, involving adjudication of the rights and liabilities of the parties thereunder. In other words, not only the orders passed under Section 11 of the Act but also the other orders passed by the Rent Control Court, involving adjudication of the rights and liabilities of the parties, are amenable to Section 18 of the Act. But that does not mean that Section 12 would come into play in all appeals preferred against the order of the Rent Control Court. The applicability of Section 12 is really restricted to an application under Section 11 or an appeal preferred against an order passed under Section 11 of the Act. ## **R.C.R. No. 345 of 2015 (E)** :: 6 :: 7. This Court on an earlier occasion in _**Sulaiman Sahib v. Mohemmed Moosa (2003 (2) KLT 1058),**_ took the view that no application under Section 12 of the Act can be maintained in an appeal filed against an order passed under Rule 13(3) of the Kerala Buildings (Lease and Rent Control) Rules, refusing to set aside an exparte order of the Rent Control Court. 8. Yet another argument was also advanced by the learned senior counsel for the landlords, that an order passed under Section 12(3) of the Act would terminate the proceedings initiated under Section 11 of the Act and hence, in effect, it would be an order under Section 11 of the Act. The cause title of the judgment of the Rent Control Appellate Authority was brought to our notice, which runs as follows: “Order in I.A.1028/13 & Judgment in R.C.R.33/2013.” It is not permissible to pronounce an order under Section 12 of the Act and a judgment on a Rent Control Petition/Rent Control Appeal simultaneously. The Rent Control Appellate Authority ## **R.C.R. No. 345 of 2015 (E)** :: 7 :: has committed a grave error while rendering an order in Section 12 application and pronouncing a judgment in R.C.A.No.33 of 2013 simultaneously. It is neither permissible nor recognizable under law to consider and pass orders under Section 12(3) of the Act and, at the same time, to pronounce a judgment either in the Rent Control Petition or in the Rent Control Appeal. Both are standing on a different footing, deals with different field of issues at different stages and it cannot be brought under the same order either as a common one or as a joint one. Section 12(3) of the Act really contemplates passing of an order by the Rent Control Court or the Rent Control Appellate Authority, as the case may be, by stopping further proceedings in the Rent Control Petition or Rent Control Appeal. The order of stopping further proceedings in the Rent Control Petition or Rent Control Appeal cannot be treated as or equated as a judgment rendered in consonance with Section 11 of the Act. Section 12(3) is really intended to compel the tenant to pay off the arrears based on the principle of equity. It ## **R.C.R. No. 345 of 2015 (E)** :: 8 :: cannot be equated with any of the provisions contained in the Act including Section 11 of the Act. When an order is passed under Section 12(3) of the Act, it would be an order passed by the Rent Control Court or the Rent Control Appellate Authority, as the case may be, terminating proceedings initiated by way of Rent Control Petition or Rent Control Appeal, but that does not mean that an order of adjudication rendered under Section 11 of the Act. It is a material irregularity committed by the Rent Control Appellate Authority by incorporating the wordings 'judgment in R.C.A.'. In fact, no judgment was delivered in the Rent Control Appeal either declaring or proclaiming or adjudging any ground under Section 11 of the Act by the Rent Control Appellate Authority. The Rent Control Appellate Authority went wrong and mistook the real nature of an order that can be drawn under Section 12(3) of the Act. 9. In support of the argument that an application under Section 12 is perfectly maintainable in an appeal preferred ## **R.C.R. No. 345 of 2015 (E)** :: 9 :: against an order passed by the Rent Control Court under Section 12 of the Act, the learned senior counsel appearing for the respondents/landlords canvased our attention to the following decisions rendered by this Court: _**Sidharthan v. Hassankutty Haji (1994 (2) KLT 419); Mohammed Shameer v. Ashokan (2015 (1) KLT 396); Narayanan v. Vinod (2004 KHC 1238 = 2004 (3) KLT 955); Davy v. Indu (1999 KHC 613 = 1999 (3) KLT 434); Jose v. Xavier (2017 (3) KLT 222) and C.V.Xavier and others v. Francis Leonard Pappali (1975 KLT 542)**_ . 10. The decisions drawn in _**Sidharthan's case (supra)**_ and in _**Mohammed Shameer 's case**_ (supra), deal with the question of maintainability of an appeal against an order passed by the Rent Control Court under Section 12 of the Act. The question whether an application under Section 12 can be maintained in an appeal against the order under Section 12 of the Act was neither raised nor discussed or adjudicated in ## **R.C.R. No. 345 of 2015 (E)** :: 10 :: these two cases. In the decision rendered in _**Davy's case (supra)**_ , what is considered is the relation in between Section 11(2)(b) and Section 12 of the Act and it was held that Sections 11 and 12 of the Act are not dependent on each other. In the decision in _**Jose v. Xavier**_ (supra) also, the said question was not raised and adjudicated. In _**Narayanan v. Vinod**_ (supra) and _**C.V.Xavier and others v. Francis Leonard Pappali**_ (supra), the question raised is whether the tenant is entitled to have a separate notice (show cause notice) before passing an order under Section 12(3) of the Act. 11. As discussed in the earlier paragraphs, it is neither permissible nor recognizable under law to have a recourse under Section 12 in an appeal pending against the order passed under Section 12 (3) of the Act. Hence the order passed by the Rent Control Appellate Authority is without jurisdiction. ## **R.C.R. No. 345 of 2015 (E)** :: 11 :: 12. It was also submitted by the learned senior counsel for the landlords that the said question was not raised in the Revision by the tenant even though several grounds were raised and hence, it is not permissible for this revisional court to take up and consider the question which was neither raised nor brought to the notice of this Court by way of Revision. We are not in a position to agree with the abovesaid submission simply because of the reason that if it is a question pertaining to the jurisdiction of the Court in passing an order, it would be amenable for the revisional jurisdiction, though it was not specifically raised as a ground of attack. The order passed by the Rent Control Appellate Authority is without jurisdiction and hence, liable to be set aside and we do so by allowing this Revision. We are of the considered view that it would be fit and proper to direct the Rent Control Appellate Authority to dispose of the Rent Control Appeal within a time schedule, preferably within a period of three months. ## **R.C.R. No. 345 of 2015 (E)** :: 12 :: In the result, the Revision is allowed. The order of the Rent Control Appellate Authority in I.A.No.1028 of 2013 is hereby set aside. The Rent Control Appellate Authority is hereby directed to dispose of the Rent Control Appeal as stated above. No order as to costs. ## **K. Harilal Judge** **P. Somarajan Judge** ahz/