E. Praseja v. Sudha S. Prabhu and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 ``` ``` RCREV.NO.293 OF 2023 ``` ``` AGAINST THE JUDGMENT DATED 17.08.2023 IN R.C.A.NO.35 OF 2021 OF RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT-IV), THALASSERY ARISING OUT OF THE ORDER DATED 05.08.2021 IN R.C.P.NO.15 OF 2017 OF RENT CONTROL COURT (MUNSIFF), PAYYANNUR ``` ## **`REVISION PETITIONER/RESPONDENT/PETITIONER:`** ``` E.PRASEEJA, AGED 52 YEARS, W/O C.V RAJENDRAN, RAJ MANOHAR NILAYAM, MAVICHERY, PAYYANNUR AMSOM, PO. PAYYANNUR, KANNUR DISTRICT, PIN - 670307 ``` ``` BY ADVS.O.V.MANIPRASAD JOSE ANTONY HARIKRISHNAN P. ``` ## **`RESPONDENTS/APPELLANTS/RESPONDENTS:`** - **`1 SUDHA S. PRABHU, AGED 67 YEARS W/O LATE SATHEESH PRABHU, OPP. BOMBAY DYEING PAYYANNUR AMSOM DESOM, P.O PAYYANNUR, KANNUR DISTRICT, PIN - 670307`** - **`2 SHYLESH PRABHU, AGED 47 YEARS, S/O LATE SATHEESH PRABHU, OPP. BOMBAY DYEING PAYYANNUR AMSOM DESOM, P.O PAYYANNUR, KANNUR DISTRICT, PIN - 670307`** - **`3 SANGEETHA GADIYAR, AGED 44 YEARS, D/O LATE SATHEESH PRABHU, OPP. BOMBAY DYEING PAYYANNUR AMSOM DESOM, P.O PAYYANNUR, KANNUR DISTRICT, PIN - 670307`** ``` BY ADVS.SRI.M.V.AMARESAN ``` ``` S.S.ARAVIND(K/990/2009) ``` 2 R.C.R.No.293 of 2023 ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 R.C.R.No.293 of 2023 ## **ORDER** ## Anil K. Narendran, J. The petitioner-landlord filed R.C.P.No.15 of 2017 before the Rent Control Court (Munsiff), Payyannur invoking the provisions under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the respondents-tenants from the petition schedule shop room on the ground of arrears of rent and bona fide need. During the pendency of that Rent Control Petition, the landlord filed I.A.No.490 of 2020, invoking the provisions under Section 12 of the Act seeking an order directing the tenants to pay admitted arrears of rent. In that application, the Rent Control Court passed an order dated 03.08.2020, which reads thus; “Petitioner and respondent represented. Counter filed. The respondent has admitted Rs.72,478/- as admitted arrears of rent. Hence the respondent is directed to pay the admitted arrears of rent of Rs.72,478/- to the petitioner on the date of this application and pay arrears which became due subsequently on the date of this order and continues to pay which may subsequently become due in respect of the building. Such payment shall be made till the termination of the proceedings before this Rent Control Court. For payment of arrears.” 2. The tenant paid Rs.72,478/- on 07.09.2020. On account of the default committed by the tenant in remitting the 4 R.C.R.No.293 of 2023 monthly rent, which became due for the subsequent period, the Rent Control Court proceeded with that interlocutory application. On 02.08.2021, the landlord filed an affidavit in chief in the Rent Control Petition. On 05.08.2023, when the matter was taken up for consideration, the learned counsel for the tenant reported no instructions by filing a memo. On noticing that no arrears of rent accrued subsequently was remitted, the Rent Control Court stopped further proceedings in R.C.P.No.15 of 2017, invoking its powers under Section 12(3) of the Act, and directed the tenants to put the landlord in vacant possession of the petition schedule shop room. Feeling aggrieved, the tenants filed R.C.A.No.35 of 2021 before the Rent Control Appellate Authority (Additional District Judge-IV), Thalasserry, invoking the provisions under Section 18(1)(b) of the Act. That appeal was allowed by the judgment dated 17.08.2023, whereby the order passed by the Rent Control Court dated 05.08.2023 under Section 12(3) of the Act stands set aside. The reasoning of the Appellate Authority as contained in paragraphs 5 and 6 of that order reads thus; “5. Point Nos.1 to 3:- The landlord filed I.A.No.490 of 2020 under Section 12 of the Act. The said application was allowed by the Rent Control Court directing the tenant to pay admitted arrears of rent. It is undisputed that admitted arrears of rent were not paid by the 5 R.C.R.No.293 of 2023 tenant. In **Shaji M. v. SNDP Sakha Yogam No.610, Alappuzha and another [2020 (2) KLT 866]** , a Full Bench of the Hon’ble High Court of Kerala has held that if the tenant fails to pay the admitted arrears of rent, the Rent Control Court should normally adjourn the hearing of the case for granting reasonable time to the tenant to show sufficient cause for not depositing the rent. The opportunity to be afforded to the tenant to show ‘sufficient cause’ with regard to the failure to pay the rent is not an empty formality and the same has to be scrupulously followed. 6. Even though repeated opportunities were granted to the tenant to make payment; however, no payment was made. On 02.08.2021, the Rent Control Court gave an opportunity to the tenant to clear the arrears of rent. The case was posted to 05.08.2021. On 05.08.2021, the Rent Control Court stopped all further proceedings and directed the tenant to put landlord in possession of the building. The correct course of action would be to provide tenant an opportunity to show reasons for non-payment of rent as envisaged under Section 12 of the Act. As stated earlier by the Full Bench in **Shaji M. v. SNDP Sakha Yogam No.610, Alappuzha and another** (supra), the opportunity afforded to tenant to show sufficient cause is not an empty formality and the same has to be mandatorily complied with. Since, there is no compliance, the order passed by the Rent Control Court is liable to be set aside.” 3. Feeling aggrieved, the petitioner-landlord is before this Court in this Rent Control Revision, invoking the provisions 6 R.C.R.No.293 of 2023 under Section 20 of the Act. 4. On 24.01.2024, when this Rent Control Revision came up for admission, this Court issued notice on admission by special messenger to the respondents returnable by 05.02.2024. 5. Heard the learned counsel for the petitioner-landlord and also the learned counsel for the respondents-tenants. 6. The issue that arises for consideration in this Rent Control Revision is as to whether any interference is warranted in the impugned judgment dated 17.08.2023 of the Rent Control Appellate Authority in R.C.A.No.35 of 2021. 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 7 R.C.R.No.293 of 2023 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 8 R.C.R.No.293 of 2023 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. 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. 9 R.C.R.No.293 of 2023 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, until the 10 R.C.R.No.293 of 2023 termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. 11. In **Shaji M. v. SNDP Sakhayogam No. 610, Alappuzha [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 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 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. The interpretation made and the directions issued in **Narayanan [2004 (3) KLT 955]** is more apt and appropriate to be held, as 11 R.C.R.No.293 of 2023 a view which can be legally sustained. 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 Section 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 an opportunity. 12. In **Shaji M. [2020 (2) KHC 574]** , on the question as to whether the Rent Control Court or the Appellate Authority is required to issue any specific notice to the tenant to show cause, the Full Bench noticed that, the consequences provided under Section 12(3) of the Act follows when there occurred a default in complying with the direction for deposit or payment of the admitted arrears. Therefore, on the date stipulated for effecting such payment, by virtue of the order passed under Section 12(1) and (2), 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, would follow automatically. Therefore, there is no necessity to alert the tenant by issuing any specific notice in this regard, calling upon him to show sufficient cause. On the other hand, providing of a 12 R.C.R.No.293 of 2023 further opportunity after the last date stipulated for effecting the payment or the deposit, 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. Such a procedure, if followed, would be sufficient compliance for providing reasonable opportunity satisfying the statutory requirement contained in Section 12(3). Hence the Full Bench concluded that the decision in **Narayanan [2004 (3) KLT 955]** , even though passed without noticing the decision in **Pochappan Narayanan v. Gopalan [1990 (2) KLT 1]** had laid the correct law. The Full Bench noticed that its view in this regard has got support from the decision of the Apex Court in **Sankaran Pillai v. V.P. Venuguduswami [(1999) 6 SCC 396]** , the decisions of this Court in **C.V. Xavier v. Francis Leonard Pappali [1975 KLT 542]** and **Narayanan v. Muraleedhara Maran [1964 KLT 509]** . 13. In **J. Ramkumar v. Ashok Jacob [2022 (1) KHC** 13 R.C.R.No.293 of 2023 **495 : ILR 2021 (4) Kerala 876]** , 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 on 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 14 R.C.R.No.293 of 2023 proceedings and directing the tenant to put the landlord in possession of the building. 14. It is clear from the plain language and also the legislative intent of Section 12 of the Act that, it is not for the Rent Control Court or the Appellate Authority, as the case may be, to pass an order under Section 12(3), stopping further proceedings and directing the tenant to put the landlord in possession of the building, once the time limit fixed for payment or deposit of admitted rent runs out, and the tenant defaulted payment or deposit of rent in terms of the order passed under Section 12(1) and (2). Though it is not for the Rent Control Court or the Appellate Authority, as the case may be, to issue any separate notice to the tenant to enable him to show sufficient cause for not paying or depositing the admitted arrears of rent, as held by the Division Bench in **Narayanan [2004 (3) KLT 955]** and approved by the Full Bench in **Shaji M. [2020** **(2) KHC 574]** , the Rent Control Court or the Appellate Authority is not expected to pass an order forthwith, stopping further proceedings and directing the tenant to put the landlord in possession of the building, under Section 12(3). 15. Before passing an order under Section 12(3) of the Act, the Rent Control Court or the Appellate Authority, as the 15 R.C.R.No.293 of 2023 case may be, should normally adjourn the hearing of the case to a date beyond the date fixed for payment or deposit of admitted 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). 16. 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 16 R.C.R.No.293 of 2023 the tenant by issuing any specific notice in this regard, calling 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. [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. 17. In **J. Ramkumar [2022 (1) KHC 495]** , this Court concluded 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, 17 R.C.R.No.293 of 2023 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. As held by a Division Bench in **Venugopalan v. Raphael [1974 KLT 640]** and reiterated in **Davy v. Indu [1999 (3) KLT 434]** even assuming that for purpose of execution an order under Section 12(3) of the Act can be equated with and treated as the same, as one under Section 11 of the Act, the consequence enjoined by an order under Section 12(3) for failure to deposit the admitted arrears in time can not be vacated or obliterated by payment at any subsequent stages or periods. The law laid down by a Three-Judge Bench of the Apex Court in **Nasiruddin v. Sita Ram Agarwal [(2003) 2 SCC 577]** is to the effect that, where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the court does not have the power to do so. 18. The failure of the tenant to deposit the admitted arrears of rent becomes a ‘default’ in terms of Section 12(3) of the Act once the Rent Control Court or the Appellate Authority records its satisfaction in an order under Section 12(3) that the - tenant failed to show sufficient cause for non payment of the admitted arrears of rent. On such satisfaction being recorded the 18 R.C.R.No.293 of 2023 consequence of stoppage of the proceedings and the direction to put the landlord in possession of the building would follow automatically. The default committed by the tenant in depositing the rent in terms of the order under Section 12(1) and (2) cannot be condoned by the Rent Control Court or the Appellate Authority, while passing an order under Section 12(3), by permitting the tenant to pay the admitted arrears of rent after such an order. 19. The judgment of this Court in **J. Ramkumar [2022 (1) KHC 495]** was under challenge before the Apex Court in SLP(C)No.18301 of 2021. After having heard the learned counsel for the parties, the Apex Court was not inclined to interfere with the order of this Court and accordingly, the special leave petition, along with connected matters, was dismissed by the order dated 18.11.2021. ## 20. In **Shiraz v. Binny Emmatty [2022 (3) KHC 227]** this Court held that the object of the provisions of S.12(1) of the Act is to deny the defaulting tenant the right to contest the application for eviction before the Rent Control Court, unless he pays to the landlord, or deposits with the Rent Control Court, 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 19 R.C.R.No.293 of 2023 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. When the tenant has not chosen to contest the Rent Control Petition and continues to be _ex-parte_ , the Rent Control Court committed a manifest error in passing an order invoking the provisions under Section 12(1) of the Act. Paragraphs 12 and 13 of that decision read thus; “12. As already noticed hereinbefore, 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, unless he pays to the landlord, or deposits with the Rent Control Court, 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. 13. In the instant case, the petitioner-tenant has not chosen to contest the Rent 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 20 R.C.R.No.293 of 2023 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.” 21. Viewed in the light of the law laid down in the decisions referred to supra, we find that I.A.No.490 of 2020 filed by the petitioner-landlord in R.C.P.No.15 of 2017 requires reconsideration at the hands of the Rent Control Court (Munsiff), Payyannur, taking note of the statutory provisions referred to hereinbefore and also the law laid down in the decisions referred to supra. Once the Appellate Authority arrives at a conclusion that the order passed by the Rent Control Court under Section 12(3) of the Act is liable to be set aside, since the tenant was not afforded with an opportunity to show sufficient cause for non-payment of the admitted arrears of rent, instead of directing final disposal of the Rent Control Petition, the Appellate Authority ought to have directed the Rent Control Court to pass fresh orders under Section 12(3) of the Act, in the interlocutory application filed under Section 12 of the Act. 22. In the result, this Rent Control Revision is disposed of by setting aside the judgment dated 17.08.2023 of the Rent Control Appellate Authority in R.C.A.No.35 of 2021 and the order dated 05.08.2021 of the Rent Control Court in R.C.P.No.15 of 21 R.C.R.No.293 of 2023 2017 and by directing the Rent Control Court, Payyannur to pass fresh orders in I.A.No.490 of 2020 in R.C.P.No.15 of 2017, under Section 12(3) of the Act, taking note of the law laid down in the decisions referred to supra, as expeditiously as possible, at any rate, within a period of one month from the date of appearance of the parties. Both parties are directed to appear before the Rent Control Court, Payyannur, on **26.02.2024** . Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** AV/7/2