Isaac Mathew v. Jose Francis

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` FRIDAY, THE 24[TH] DAY OF JUNE 2022 / 3RD ASHADHA, 1944 ``` ``` OP (RC) NO. 112 OF 2022 ``` ``` AGAINST THE ORDER DATED 30/03/2022 IN I.A.NO.6 OF 2022 IN R.C.P.NO.26 OF 2020 OF THE ADDITIONAL RENT CONTROL COURT (MUNSIFF), KOTTAYAM ``` ## **`PETITIONER:`** ``` ISSAC MATHEW, AGED 62 YEARS, SON OF MATHAI, THAZHATHU KARIMBUMALIYIL VEEDU, KUDAMALOOR P.O., AYMANAM VILLAGE, KOTTAYAM - 686017. ``` ``` BY ADVS.S.EASWARAN P.MURALEEDHARAN (IRIMPANAM) K.V.RAJESWARI ``` ``` RESPONDENTS: ``` ``` JOSE FRANCIS, S/O.FRANCIS, KAVIYIL KALAPURACKAL VEEDU, P.O. KOLANI, KOLANI KARA, THODUPUZHA IDUKKI DISTRICT -685605. ``` ``` BY ADVS.S. RANJIT S GOKUL DAS V.V.H.(K/420-A/2005) ``` ``` THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 24.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- O.P(RC)No.112 of 2022 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner filed R.C.P.No.26 of 2020 on the file of the Additional Rent Control Court (Munsiff), Kottayam, under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the respondenttenant from the petition schedule building bearing door No.33 having an area of 3,000 sq.feet, situated in Re-survey No.462/4 in Ward No.VII in Block No.7 of Aymanam Grama Panchayat, along with a charth in its front facing Chungam-Medical College Road. The lease arrangement between the landlord and the tenant was renewed on 05.02.2020, whereby the monthly rent of the building was fixed at the rate of Rs.25,000/- per month till 07.04.2020 and thereafter, at the rate of Rs.26,250/- per month for the remaining 11 months, i.e., till the expiry of the period of agreement, which is marked as Ext.P1. A copy of the Rent Control Petition is marked as Ext.P2 and the objection filed by the tenant is marked as Ext.P3. In the said objection, the entrustment of the petition schedule building, on the strength of the lease agreement dated 05.02.2020 and also the rate of rent agreed in the said document are admitted. In addition to this the fact that the tenant has defaulted payment of monthly -3- O.P(RC)No.112 of 2022 rent in terms of the lease agreement dated 05.02.2020 is also not in dispute. However, in the said objection, the tenant raised certain contentions to avoid his contractual liability to pay monthly rent at the rate agreed in the lease agreement dated 05.02.2020. 2. In R.C.P.No.26 of 2020, the landlord filed Ext.P4 interlocutory application, i.e., I.A.No.4 of 2021 under Section 12 of the Act, seeking an order directing the tenant to deposit the arrears of rent, as stated in that application. In that interlocutory application, the Rent Control Court passed an order dated 02.12.2021, which is extracted in paragraph 10 of the original petition. The said order reads thus; “Petitioner represented. Counter petitioner represented. For paying admitted arrears of rent”. 3. The above order passed by the Rent Control Court, in purported exercise of its powers under Section 12(1) of the Act read with Section 12(2) was followed by an order dated 03.01.2022, which reads thus; “Petitioner represented. CP represented. For paying admitted arrears (No further time)”. After passing such an order, the Rent Control Court posted the matter on 17.01.2022 for payment. On that date, the Rent Control Court passed the following order; -4- ## O.P(RC)No.112 of 2022 “Petitioner represented. CP represented. Admitting arrear did not pay [sic: Admitted arrears not paid]. No application filed for extending the time for payment. Defendant set ex-parte. For evidence”. 3. The case was thereafter listed on 04.02.2022. The tenant filed Ext.P8 interlocutory application, i.e., I.A.No.5 of 2022 seeking an order to set aside the aforesaid order dated 17.01.2022. The landlord filed Ext.P9 objection to Ext.P8 interlocutory application. The tenant has also filed Ext.P10 interlocutory application, i.e., I.A.No.6 of 2022, seeking review of the order dated 02.12.2021 of the Rent control Court, issued in purported exercise of the powers under Section 12(1) of the Act read with Section 12(2). The landlord filed Ext.P11 objection in I.A.No.6 of 2022. 4. After considering the rival contentions, the Rent Control Court, by Ext.P12 order dated 30.03.2022, allowed I.A.No.6 of 2022, whereby setting aside the order dated 02.12.2021 whereby the tenant was directed to pay admitted arrears of rent. Consequently, the order dated 17.01.2022 of the Rent Control Court, whereby the tenant was set ex-parte, is also set aside. 5. Feeling aggrieved by Ext.P12 order dated 30.03.2022 of the Rent Control Court in I.A.No.6 of 2022 in R.C.P.No.26 of -5- O.P(RC)No.112 of 2022 2020, the petitioner-landlord is before this Court in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 6. On 08.06.2022, when this original petition came up for admission, this Court issued notice on admission to the respondent through his counsel before the Additional Rent Control Court, Kottayam, where R.C.P.No.26 of 2020 is pending consideration. 7. Heard the learned counsel for the petitioner-landlord and also the learned counsel for the respondent-tenant. 8. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P12 order dated 30.03.2022 of the Rent Control Court in I.A.No.6 of 2022 in R.C.P.No.26 of 2020, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 9. During the course of arguments, the learned counsel for the petitioner-landlord and also the learned counsel for the respondent-tenant raised various legal contentions touching the merits of the matter pending consideration of the Rent Control Court in R.C.P.No.26 of 2020. We do not propose to consider those contentions in this original petition. It is for the landlord -6- O.P(RC)No.112 of 2022 and the tenant to raise all such legal and factual contentions before the Rent Control Court, at the appropriate stage. 10. The issue that requires consideration in this original petition is as to whether the procedure followed by the Rent Control Court, while passing orders on I.A.No.4 of 2021 filed by the landlord, invoking the provisions under Section 12 of the Act is in accordance with law. 11. 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 -7- O.P(RC)No.112 of 2022 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. 12. 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. 13. 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 -8- O.P(RC)No.112 of 2022 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. 14. 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 -9- O.P(RC)No.112 of 2022 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 tenant to put the landlord in possession of the building. 15. 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 -10- O.P(RC)No.112 of 2022 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. ## 16. In **Shiraz K.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, 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. On the facts of the case on hand, the Division Bench noticed that 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 -11- O.P(RC)No.112 of 2022 12.11.2021 in R.C.P.No.97 of 2020, whereby the tenant was set ex-parte, was 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. 17. In the instant case the order dated 02.12.2021 of the Rent Control Court, which is extracted hereinbefore at paragraph 2, whereby the Rent control Petition was ordered to be listed for payment of admitted arrears of rent, by a cryptic order, cannot be termed as an order passed by the said court under Section 12(1) of the Act read with Section 12(2), in view of the law laid down by this Court in **J.Ramkumar [2022 (1) KHC 495]** . By the order dated 17.01.2022 of the Rent Control Court, the tenant was set ex-parte for non-payment of admitted arrears of rent or filing application for extending the time for payment. The said order of the Rent Control Court was also not in conformity with the procedure contemplated under Section 12 of the Act. In case the tenant has defaulted payment of admitted arrears of rent in terms of an order passed by the Rent Control Court, in accordance with the provisions under Section 12(1) read with Section 12(2) of the Act and fails to show -12- O.P(RC)No.112 of 2022 sufficient cause for such non-payment, he Rent Control Court has to proceed further, in accordance with the provisions under Section 12(3) of the Act. The Rent Control Court committed a manifest error while passing the order dated 17.01.2022, whereby the tenant was set ex-parte for non-payment of admitted arrears of rent and also for not filing application for extending the time for payment. 18. The reasoning of the Rent Control Court in Ext.P12 order dated 30.03.2022, while allowing I.A.No.6 of 2022 in R.C.P.No.26 of 2020 was that in the petition filed by the landlord under Section 12 of the Act the tenant filed objection stating that no arrears of rent is due and therefore, the tenant did not admit that any amount is to be paid towards arrears of rent. Section 12 of the Act comes into play when the tenant admits arrears of rent. The deposit contemplated under Section 12 is no0t the amount detriment after adjudication, but it is the amount of rent admitted by the tenant. In support of the said reasoning the Rent Control Court relied on the judgment of a learned Single Judge in **Celine Sourunny v. Mary Paul Abravo [1979 KLT 533]** and that of another learned Single Judge in **Ali v. Vasudevan [1989 (2) KLT 223]** . -13- O.P(RC)No.112 of 2022 ## 19. In **Gopala Panicker Baiju and another v. Mallika** **[2018 (5) KHC 95]** the Division Bench of this Court had occasion to deal with a case in which the tenants raised a contention that, no amount was due from them as arrears of rent. That apart, they had spent more than Rs.3,00,000/- for renovation of the building and the landlady is liable to adjust the said amount towards rent. Thus, according to the tenants, there is no admitted arrears of rent payable under Section 12(1) of the Kerala Buildings (Lease and Rent Control) Act. Unless the tenant himself admits in the objection to the petition under Section 12 of the Act or in the counter statement filed in the Rent Control Petition that any amount is due to the landlord, as arrears of rent, there cannot be any admitted arrears of rent. In short, the contention was that the simple denial of the tenant would absolve him from the liability to deposit the admitted arrears under Section 12 of the Act. 20. In **Gopala Panicker Baiju** the Division Bench held that, the admitted arrears of rent contemplated under Section 12(1) of the Act need not be an admission in the rent control proceedings itself and it cannot be insisted that the acceptance of the arrears or the quantum of admitted arrears of rent should come by the express words from the tenant himself in his -14- O.P(RC)No.112 of 2022 counter statement in the Rent Control Petition or in the objection to the application filed under Section 12 of the Act by the landlord. But, it can be inferred from any document containing admission, as to the rate of rent, and period of default made by the tenant. The relevant factors, from which ‘arrears of rent’, can be inferred are the rate of rent and period of default. Normally, the rent deed executed by the tenant is a document which contains admission as to the rate of rent made by the tenant. The periodical enhancement in the rate of rent is evident from the rent receipts, in case the rent deed is not current. Similarly, the rent receipts, postal receipts or bank records, contemplated under Section 9(2) of the Act, produced by the tenant, are the documents which would suggest the period for which rent is paid. According to Section 9(1) of the Act, the tenant is entitled to get receipt on payment of rent and in case of refusal, an alternative remedy for payment of rent is also provided in Section 9(2) of the Act. Therefore, a tenant cannot be heard to say that the landlord refused to issue receipt, on payment of rent. The rent receipt is a statutorily accepted substantive evidence from which the period of default can be inferred indirectly. According to Taylor on evidence, an admission may be direct or indirect, express or implied. -15- O.P(RC)No.112 of 2022 Therefore, rent receipts, money order receipts and other bank records provided under Section 9 of the Act are documents containing admission which would suggest an inference indirectly as to the period of default also. The term 'admitted arrears of rent' has to be understood and construed in conformity with statutorily recognised payment only. Therefore, for the determination of a petition under Section 12 of the Act, it is permissible to require production of rent deed by the landlord and rent receipt or document mentioned in Section 9(2) of the Act by the tenant. These materials would obviously show the admitted arrears of rent, without conducting any enquiry or adjudication. 21. In **Gopala Panicker Baiju** the Division Bench noticed that, any kind of set off or adjustment towards arrears of rent cannot be accepted, while considering an application under Section 12 of the Act, as such counter claims require enquiry and adjudication. Neither Section 11(2)(b) nor Section 12 of the Act recognises or permits any kind of set off, adjustment or counter claim by the tenant towards arrears of rent or admitted arrears. The enabling provision which permits set off towards rent is Section 17(2) of the Act and the same is permissible, where an order to that effect is passed by the -16- O.P(RC)No.112 of 2022 Accommodation Controller, on satisfaction of the failure on the landlord to attend to maintenance and necessary repairs of the building. 22. In **Gopala Panicker Baiju** the Division Bench concluded that the admitted arrears is an amount that can be quantified by the Rent Control Court from the rent deed produced by the landlord and the receipts or documents specified under Section 9 of the Act, evidencing payment of rent, produced by the tenants, unless the rent deed contains anything to the contrary. To sum up, the tenant cannot be allowed to wriggle out from the statutory liability, under Section 12 of the Act, by a blank denial in his counter statement or objection to the application filed under Section 12 of the Act, where the rent deed and receipts would quantify an amount, as admitted arrears of rent, from the admissions therein; but otherwise, the determination empowered with the Rent Control Court contemplated under Section 12(1) of the Act would come to an end, on a bare denial of the tenant and thereby the purpose of Section 12 of the Act itself would be defeated. 23. In **Nandanam Tiles and Sanitaries (P) Ltd. V. Abdul Gafoor [2022 (4) KHC 201]** this Court held that in a proceedings under Section 12 of the Act, a tenant cannot be -17- O.P(RC)No.112 of 2022 allowed to wriggle out from the statutory liability by making a blank denial. A blank denial in the counter statement or objection to the application filed under Section 12 of the Act that no amount is payable towards arrears of rent is not at all sufficient. 24. Viewed in the light of the law laid down in the decisions referred to supra, the conclusion of the Rent Control Court in paragraph 9 of Ext.P12 order on the applicability of the provisions under Section 12 of the Act runs contrary to the very object of the said provision, which deals with payment of admitted arrears by the tenant, during the pendency of eviction proceedings before the Rent Control Court or the Appellate Authority. Though no interference is warranted on Ext.P12 order dated 30.03.2022 in I.A.No.6 of 2022 in R.C.P.No.26 of 2020, to the extent of allowing that interlocutory application by setting aside the order dated 02.12.2021 and the consequential order dated 17.01.2022, the conclusion of the Rent control Court in paragraph 9 of the said order dated 30.03.2022 on the applicability of the provisions under Section 12 of the Act is set aside. In the result, this original petition is disposed of by directing Additional Rent Control Court (Munsiff), Kottayam, to -18- O.P(RC)No.112 of 2022 reconsider Ext.P7 interlocutory application, i.e., I.A.No.4 of 2021 in R.C.P.No.26 of 2020 filed by the landlord under Section 12 of the Act strictly in accordance with law, taking note of the law laid down by this Court in the decisions referred to supra. Both parties shall appear before the Rent Control Court on **11.07.2022** . The Rent Control Court shall pass appropriate orders on the said interlocutory application, as expeditiously as possible, at any rate, within a period of two months from the date of production of a certified copy of this judgment. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** AV/27/6 -19- O.P(RC)No.112 of 2022 ## **`APPENDIX OF OP (RC) 112/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 COPY THE RENT AGREEMENT DATED 5.2.2020 BETWEEN THE PETITIONER AND RESPONDENT ``` ``` ExhibitP2 COPY OF RCP NO 26 OF 2020 ON THE FILES OF ADDITIONAL RENT CONTROL COURT KOTTAYAM ``` ``` ExhibitP3 COPY OF THE OBJECTION FILED BY THE RESPONDENT IN RCP 26 OF 2020 ON THE FILES OF THE ADDITIONAL RENT CONTROLLER KOTTAYAM ``` ``` Exhibit4 COPY OF THE PLAINT IN OS NO 218 OF 2020 ON THE FILES OF MUNSIFF'S COURT KOTTAYAM ``` - **`Exhibit P5 COPY OF THE COMMISSIONERS REPORT IN OS NO 218 OF 2020 ON THE FILES OF MUNSIFFS COURT KOTTAYAM`** - **`Exhibit P6 COPY OF THE COMMISSIONERS REPORT IN RCP 26 OF 2020 ON THE FILE OF ADDITIONAL RENT CONTROLLER KOTTAYAM`** - **`ExhibitP7 COPY OF IA NO 4 OF 2021 IN RCP 26 OF 2020 ON THE FILES OF ADDITIONAL RENT CONTROLLER KOTTAYAM`** - **`ExhibitP 8 COPY OF IA NO 5 OF 2022 IN RCP 26 OF 2020 ON THE FILES OF ADDITIONAL RENT CONTROLLER KOTTAYAM`** - **`Exhibit P9 COPY OF THE OBJECTIONS SUBMITTED BY PETITIONER TO IA 5 OF 2022 IN RCP 26 OF 2020 ON THE FILES OF ADDITIONAL RENT CONTROLLER KOTTAYAM`** - **`Exhibit10 COPY IA NO 6 OF 2022 IN RCP 26 OF 2020 ON THE FILES OF RENT CONTROLLER KOTTAYAM`** ``` Exhibit P11 COPY OF THE OBJECTIONS FILED BY PETITIONER TO IA 6 OF 2022 ON THE ``` -20- O.P(RC)No.112 of 2022 ``` FILES OF ADDITIONAL RENT CONTROLLER KOTTAYAM ``` ``` Exhibit P12 COPY OF THE ORDER DATED 30.3.2022 IN IA NO 6 OF 2022 IN RCP 26 OF 2020 ON THE FILES OF ADDITIONAL RENT CONTROLLER KOTTAYAM ```