GOPALAKRISHNAN v. SEETHEERAKATH ABDUL RASHEED

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA MONDAY, THE 12[TH] DAY OF JULY 2021 / 21ST ASHADHA, 1943 OP (RC) NO. 53 OF 2021** **AGAINST THE ORDER/JUDGMENT IN I.A.NO.170/2019 IN RCR 26/2017 OF RENT CONTROL (MUNSIFF} COURT, PAYYANNUR, KANNUR** ## **PETITIONER/RESPONDENT(TENANT):** GOPALAKRISHNAN AGED 55 YEARS S/O. LATE SUBRAHMANYA SHENOY, RESIDING AT RASHEED QUARTERS NEAR PREMIER ENGINEERING WORKS, TEMPLE ROAD, PAYYANUR P.O. KANNUR 670 307. BY ADV MAHESH V RAMAKRISHNAN ## **RESPONDENT/PETITIONER(LANDLORD):** SEETHEERAKATH ABDUL RASHEED AGED 70 YEARS S/O. K.P. KUNHAMMAD RESIDING AT VADAKKE THRIKKARPUR, P.O. THRIKARPUR, KASARAGOD 671 312. BY ADVS. ZUBAIR PULIKKOOL (K/1214/1995)-26585 P.S.BINU **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 12.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(R.C.) No.53 of 2021 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, who is a tenant in R.C.P. No.26 of 2017 on the file of the Rent Control Court, Payyannur has filed this Original Petition under Article 227 of the Constitution of India, seeking an order to set aside Ext.P5 order dated 16.12.2020 of the said court in I.A. No.170 of 2019 in that Rent Control Petition. The petitioner has also sought for an order directing the court below to grant atleast three months' time for clearing the admitted arrears of rent, as ordered in Ext.P5 order dated 16.12.2020. 2. The respondent-landlord filed R.C.P.No.26 of 2017 against the petitioner-tenant, under Sections 5 and 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking an order directing the tenant to pay the arrears of rent with interest from November 2016 till the date of application; and in default, direct the tenant to surrender vacant possession of petition schedule room to the landlord. The landlord has also sought for an order directing the tenant to pay the enhanced rent of Rs.20,000/- from the date of filing of the petition. 3. In R.C.P.No.26 of 2017, the landlord filed I.A.No.170 of 2019, under Section 12 of the Act, seeking an order directing the O.P.(R.C.) No.53 of 2021 3 tenant to deposit rent arrears amounting to Rs.11,200/- and in default, put the landlord in possession of the petition schedule shop. In the affidavit filed in support of that application, a copy of which is marked as Ext.P3, the landlord alleged that the tenant had paid rent only up to November, 2016. The tenant opposed the relief sought for in I.A.No.170 of 2019, by filing Ext.P4 counter, wherein it is stated that he had paid rent up to 30.09.2017. However, the landlord has issued receipt for payment of rent only up to 09.12.2015. The tenant contended that the petition schedule shop is in a dilapidated condition, since no periodical maintenance is being done by the landlord. The Rent Control Court, by Ext.P5 order dated 16.12.2020, directed the tenant to pay the arrears of rent to the landlord, either directly or through court, on or before 15.01.2021. 4. In Ext.P5 order, the Rent Control Court noticed the contention of the landlord that the enhanced rent is Rs.2,800/-. The court found that since the tenant has admitted that he had paid rent of the petition schedule shop only up to 30.09.2017, rent is in arrears from 10/2017 onwards. By the impugned order dated 16.12.2020, the Rent Control Court directed the tenant to pay the arrears of rent from 10/2017 up to 12/2017 [sic: 12/2020] either directly or through court, on or before O.P.(R.C.) No.53 of 2021 4 ## 15.01.2021. 5. Challenging Ext.P5 order dated 16.12.2020 of the Rent Control Court in I.A.No.170 of 2019 in R.C.P.No.26 of 2017, the tenant is before this Court in this original petition. 6. On 07.04.2021, when this Original Petition came up for admission, this Court admitted the matter on file and issued notice to the respondent by speed post. This Court granted an interim order staying all further proceedings pursuant to Ext.P5 order dated 16.12.2020 of the Rent Control Court, Payyannur, for a period of two months. 7. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlord. 8. The learned counsel for the petitioner would contend that in Ext.P5 order, the Rent Control Court did not grant a reasonable time to the tenant to pay the admitted arrears of rent. The court ought to have granted atleast three months' time to the tenant for paying the admitted arrears of rent. The learned counsel would also point out the mistake in Ext.P5 order, by directing payment of admitted arrears of rent only for a period of two months, i.e., up to 12/2017. 9. On the other hand, the learned counsel for the respondent-landlord would point out that in Ext.P4 counter O.P.(R.C.) No.53 of 2021 5 affidavit filed in I.A.No.170 of 2019, the tenant did not raise any serious dispute as to the monthly rent, at the rate of Rs.2,800/-. In the counter affidavit, the tenant has admitted that he had paid rent only up to 30.09.2017. 10. Section 12 of the Kerala Buildings (Lease and Rent Control) Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per sub-section (1) of Section 12, 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 A ppellate A uthority, 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 sub-section (2) of Section 12, the deposit under subsection (1) shall be made within such time as the c ourt may fix and in such manner as may be prescribed and shall be O.P.(R.C.) No.53 of 2021 6 accompanied by the fee prescribed for the service of notice referred to in sub-section (4). As per the proviso to sub-section (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. 11. As per sub-section (3) of Section 12 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 sub-section (4) of Section 12, 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. 12. Sub-section (1) of Section 12 of the Act enjoins a tenant, against whom an application for eviction has been made O.P.(R.C.) No.53 of 2021 7 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. 13. The liability of a tenant under sub-section (1) of Section 12 of the Act, against whom an application for eviction has been 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. The object of the provisions under sub-section (1) of Section 12 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 O.P.(R.C.) No.53 of 2021 8 subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court. Sub-section (2) of Section 12 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 sub-section (2) of Section 12. 14. In view of the statutory mandate of sub-section (1) of Section 12 of the Act, in an application filed by the landlord under Section 12 of the Act, the Rent Control Court has to order payment 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 ordered 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. Therefore, the direction contained in Ext.P5 order of the Rent Control Court in I.A.No.170 of 2019 in R.C.P.No.26 of 2017 has to be construed as one directing the tenant to pay arrears of rent from 10/2017 up to 12/2020, either directly or through court. As per the mandate of O.P.(R.C.) No.53 of 2021 9 sub-section (1) of Section 12, the tenant shall continue to pay or deposit any rent which may subsequently become due in respect of the building, until termination of the proceedings in R.C.P. No.26 of 2017. 15. In **Jasbir Singh v. State of Punjab [(2006) 8 SCC** **294]** the Apex Court held that the power of superintendence conferred upon the High Court under Article 227 of the Constitution of India over all courts and Tribunals throughout the terittory of the State is both of administrative and judicial nature and it could be excercised _suo motu_ also. 16. In **Radhey Shyam v. Chhabi Nath [(2015) 5 SCC 423]** a Three-Judge Bench of the Apex Court reiterated that Article 227 of the Constitution of India can be invoked by the High Court _suo motu_ as a custodian of justice. 17. Ext.P5 order of the Rent Control Court is one dated 16.12.2020. Challenging the said order, the tenant filed this original petition before this Court on 30.03.2021, in which this Court granted an order of stay for a period of two months, on 07.04.2020. On account of that interim order, which is still in force in view of the order of the Full Bench of this Court in the _Suo Motu_ Proceedings, i.e., W.P.(C)No.11316 of 2021, extending the period of limitation, operation of interim orders, etc., the tenant has O.P.(R.C.) No.53 of 2021 10 already got nearly 7 months' time from the date of Ext.P5 order for payment of the admitted arrears of rent. 18. One of the reliefs sought for in this original petition is an order directing the Rent Control Court to grant atleast three months' time for clearing the admitted arrears of rent, as ordered in Ext.P5 order. 19. Since the petitioner-tenant has already got nearly 7 months' time from the date of Ext.P5 order for payment of admitted arrears of rent, he cannot seek any further time to clear the arrears. 20. After arguing for sometime, the learned counsel for the petitioner-tenant would undertake that the tenant shall pay the admitted arrears of rent from 10/2017 within three weeks from this date and that, the tenant shall continue to pay the rent which may subsequently become due in respect of the building, until the termination of R.C.P. No.26 of 2017. For the reasons stated above, we find no grounds to entertain the challenge made in this original petition, by the petitioner-tenant, against Ext.P5 order dated 16.05.2020 of the Rent Control Court, Payyannur in I.A. No.170 of 2019 in R.C.P. No.26 of 2017. In the result, the challenge made in this original petition against Ext.P5 order fails and the original petition is O.P.(R.C.) No.53 of 2021 11 accordingly dismissed, after recording the above undertaking given by the learned counsel for the petitioner-tenant, on behalf of the tenant, that the tenant shall pay the admitted arrears of rent from 10/2017 within three weeks from this date and that, the tenant shall continue to pay the rent which may subsequently become due in respect of the building, until the termination of R.C.P. No.26 of 2017. **Sd/-** **ANIL K. NARENDRAN JUDGE** **Sd/-** **M.R. ANITHA** shg **JUDGE** O.P.(R.C.) No.53 of 2021 12 ## **APPENDIX OF OP (RC) 53/2021** ## PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF THE RENT CONTROL PETITION| |---|---| ||DATED NIL IN RCP NO. 26/2017 OF THE| ||RENT CONTROL COURT (MUNSIFF), PAYYANUR.| |EXHIBIT P2|TRUE COPY OF THE COUNTER STATEMENT| ||DATED 06.12.2018 FILED BY THE| ||PETITIONER HEREIN IN RCP NO. 26/2017 OF| ||THE RENT CONTROL COURT (MUNSIFF)| ||PAYYANUR.| |EXHIBIT P3|TRUE COPY OF THE AFFIDAVIT DATED| ||27.07.2019 BY THE RESPONDENT HEREIN| ||FILED IN SUPPORT OF I.A. NO. 170/2019| ||IN R.C.P. NO. 26/2017.| |EXHIBIT P4|TRUE COPY OF THE COUNTER STATEMENT| ||DATED 15.03.2019 FILED BY THE| ||PETITIONER HEREIN I.A. NO. 170/2019 IN| ||R.C.P. NO. 26/2017.| |EXHIBIT P5|TRUE COPY OF THE ORDER DATED 16.12.2020| ||I.A NO. 170/2019 IN R.C.P. NO. 26/2017.|