Hyder Haji v. Tajudheen Ahamed

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 23[RD] DAY OF AUGUST 2022 / 1ST BHADRA, 1944 OP (RC) NO. 162 OF 2022 ``` ``` SPEEDY DISPOSAL OF I.A.NO.7 OF 2022 AND R.C.P.NO.104 OF 2016 OF THE RENT CONTROL COURT (MUNSIFF), TIRUR ``` ## **`PETITIONER:`** ``` HYDER HAJI AGED 71 YEARS S/O. HYDROSS HAJI, CHEKIDAN KUZHIYIL HOUSE, KATTIPARUTHI AMSOM, DESOM, VALANCHERRY P.O., TI- RUR TALUK, MALAPPURAM DISTRICT, PIN - 676552 ``` ``` BY ADVS. C.M.MOHAMMED IQUABAL P.ABDUL NISHAD RAIHANATH T.H. ANFAS C.K. ``` ## **`RESPONDENT/S:`** ``` TAJUDHEEN AHAMMED AGED 51 YEARS S/O. ABDU MASTER, MADAPEEDIYEKKAL HOUSE, THOZHU- VANUR AMSOM, DESOM, THOZHUVANUR P.O., TIRUR TALUK, MALAPPURAM DIS- TRICT, PIN - 676552 ``` ``` THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 23.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(RC)No.162 of 2022 ``` 2 ## **JUDGMENT** ## **Anil K. Narendran, J** . The petitioner filed R.C.P.No.104 of 2016 on the file of the Rent Control Court (Munsiff), Tirur, a petition under Section 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the respondent herein-tenant from the petition schedule shop room. In that Rent Control Petition filed on 18.10.2016, the Rent Control Court passed Ext.P3 ex-parte order of eviction dated 10.01.2020. The tenant filed an application to set aside that order of eviction. That application was allowed and R.C.P.No.104 of 2016 was restored to file on 01.04.2022. The landlord filed I.A.No.7 of 2022, an application under Section 12 of the Act, seeking an order directing the tenant to deposit admitted arrears of rent amounting to Rs.6,50,000/-. In that application, the tenant is yet to file his objection. The grievance of the petitioner is the delay in disposing R.C.P.No.104 of 2016 and also I.A.No.7 of 2022. 2. Heard the learned counsel for the petitioner-landlord. Considering the nature of relief proposed to be granted, service of notice on the respondent-tenant is dispensed with. ``` O.P.(RC)No.162 of 2022 ``` 3 3. The learned counsel for the petitioner would submit that the Rent Control Petition is of the year 2016. The petitioner is a senior citizen aged 71 years. Therefore, time bound consideration of the Rent Control Petition and also the interlocutory application is highly essential. 4. 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 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 ``` O.P.(RC)No.162 of 2022 ``` 4 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 prescribed, be withdrawn by the landlord on application made by him to the Rent Control Court or the Appellate Authority in that behalf. ``` O.P.(RC)No.162 of 2022 ``` 5 5. 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. 6. 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 ``` O.P.(RC)No.162 of 2022 ``` 6 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. In **J. Ramkumar v. Ashok Jacob [2022 (1) KHC 495 : ILR 2021 (4) Kerala 876]** this Court held that, Section 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 ``` O.P.(RC)No.162 of 2022 ``` 7 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 tenant to put the landlord in possession of the building. 8. 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 ``` O.P.(RC)No.162 of 2022 ``` 8 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 proceedings and directing the tenant to put the landlord in possession of the building. 9. 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 ``` O.P.(RC)No.162 of 2022 ``` 9 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 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. 10. 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 ``` O.P.(RC)No.162 of 2022 ``` 10 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 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. Having considered the submissions made by the learned counsel for the petitioner-landlord, this original petition is disposed of by directing the Rent Control Court (Munsiff), Tirur to pass appropriate orders in I.A.No.7 of 2022 in R.C.P.No.104 of 2016, taking note of the statutory provisions stated hereinbefore and also the law laid down in the decisions referred to supra, after affording an opportunity to the respondent-tenant to file objections, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. The Rent Control Court shall finally dispose of ``` O.P.(RC)No.162 of 2022 ``` 11 R.C.P.No.104 of 2016, as expeditiously as possible, at any rate, within a further period of three months. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR** **JUDGE** **yd** ``` O.P.(RC)No.162 of 2022 ``` 12 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:`** |**`Exhibit P1`**|**`THE TRUE COPY OF THE RENT CONTROL`**| |---|---| ||**`PETITION IN RCP. NO. 104/2016 OF THE`**| ||**`RENT CONTROL COURT, TIRUR DATED`**| ||**`18.10.2016`**| |**`Exhibit P2`**|**`THE TRUE COPY OF THE COUNTER OF THE`**| ||**`RESPONDENT IN RCP. NO. 104/2016 OF THE`**| ||**`RENT CONTROL COURT, TIRUR DATED`**| ||**`18.03.2017`**| |**`Exhibit P3`**|**`THE TRUE COPY OF THE ORDER IN RCP. NO.`**| ||**`104/2016 OF THE RENT CONTROL COURT,`**| ||**`TIRUR DATED 10.01.2020`**| |**`Exhibit4`**|**`THE TRUE COPY OF THE AFFIDAVIT IN`**| ||**`SUPPORT OF I.A. NO. 7/2022 IN RCP. NO.`**| ||**`104/2016 OF THE RENT CONTROL COURT,`**| ||**`TIRUR DATED 04.04.2022`**| |**`Exhibit P5`**|**`THE TRUE COPY OF THE E-COURT STATUS OF`**| ||**`RCP. NO. 104/2016 OF THE RENT CONTROL`**| ||**`COURT, TIRUR`**| ## **`RESPONDENT'S EXHIBITS:NIL`** ``` TRUE COPY ``` ## **`P.A. TO JUDGE`**