J. Ramkumar v. Ashok Jacob

**'CR'** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY ,THE 08TH DAY OF OCTOBER 2018 / 16TH ASWINA, 1940 OP (RC).No. 84 of 2018 RCA 4/2017 of RENT CONTROL APPELLATE AUTHORITY, MAVELIKKARA AGAINST THE ORDER/JUDGMENT IN RCP 4/2015 of RENT CONTROL COURT,CHENGANNUR ## PETITIONER/PETITIONER: J.RAMKUMAR, AGED 41 YEARS, PROPRIETOR, ARYAS HOTEL, CHENGANNUR, ALAPPUZHA DISTRICT, NOW RESIDING AT ANJILIVILAYIL HOUSE, THONALLUR MURI, PANDALAM P.O., ADOOR TALUK, PATHANAMTITTA DISTRICT. BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.K.N.RADHAKRISHNAN (THIRUVALLA) ## RESPONDENT/RESPONDENT: ASHOK JACOB, PADIPURACKAL HOUSE, THITTAMEL MURI, CHENGANNUR VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT PIN-689 121. BY ADVS. SMT.INDU SUSAN JACOB SRI.LIJU.V.STEPHEN THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 08.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: O.P.(RC) No. 84/2018 -2- ## **'CR'** ## **JUDGMENT** K. Harilal,J. The petitioner is the tenant, who filed R.C.A.No. 4 of 2017 before the Rent Control Control Appellate Authority, Mavelikkara challenging the summary order of eviction passed against him under Section 12(3) of the Kerala Buildings Lease and Rent Control) Act, 1965 ('the Act' for brevity) in R.C.P. No. 4 of 2015. The said RCP was filed against him seeking an order of eviction under Sections 11(2) and 11(3) of the Act. 2. This is the second round of litigation on an application filed under Section 12 of the Act and the case has a chequered history. The respondent/landlord has filed I.A. No. 2111 of 2015 in R.C.P. No. 4 of 2015 under Section 12 of the Act seeking an order directing the petitioner to deposit the admitted arrears of rent. The petitioner filed an objection denying the liability to deposit the admitted arrears contending that in view of lease agreement and the financial transaction between the petitioner and the respondent, he is not entitled to deposit the admitted arrears. After considering the rival pleas, the Rent Control Court dismissed the application. Feeling aggrieved, the respondent/landlord filed R.C.A.No. 2 of 2016 before the Rent Control Appellate Authority, Mavelikkara. The Appellate Authority set aside the O.P.(RC) No. 84/2018 -3- order passed by the Rent Control Court in I.A. No. 2111 of 2015 and passed an order directing him to deposit the admitted arrears of rent within one month from 23.01.2017 in the Rent Control Court. The petitioner did not deposit the admitted arrears within one month in compliance with the said direction and the case was posted to 22.02.2017. But, he did not deposit the amount on that day; instead, he had filed an application seeking permission to deposit the admitted arrears of rent in instalments and thereafter, the case was again adjourned to 15.03.2017. Then also, the payment as directed by the appellate authority was not made. That apart, he did not state any sufficient cause for the non-payment, as contemplated under Section 12(3) of the Act. The petition seeking permission for depositing the amount in instalments was also dismissed by a separate order dated 20.03.2017. Thus, more than two months have been elapsed after the expiry of one month provided for depositing the admitted arrears of rent. On 08.04.2017, the petitioner filed R.C.R No. 215 of 2017 before this Court challenging the order passed under Section 12 of the Act by the Appellate Authority in R.C.A. No. 2 of 2016. This Court, after considering the rival submissions, set aside the order passed by the Appellate Authority under Section 12 of the Act in R.C.A. No. 2 of 2016 on 19.07.2017 and confirmed the order passed by the Rent Control O.P.(RC) No. 84/2018 -4- Court dismissing the application under Section 12 of the Act. Feeling aggrieved, the respondent preferred Special Leave Petition before the Supreme Court. The Supreme Court granted leave and allowed the appeal on 18.05.2018 restoring the judgment passed by the Appellate Authority in RCA No. 2 of 2016. 3. In the mean time, the petitioner filed R.C.A No. 4 of 2018 before the Rent Control Appellate Authority, Mavelikkara challenging the summary order of eviction passed by the Rent Control Court, Chengannur in R.C.P. No. 4 of 2015 under Section 12(3) of the Act. After the disposal of the Civil Appeal by the Supreme Court, the petitioner filed the present I.A. No. 363 of 2018 in the R.C.A. No. 2 of 2016 seeking an order to allow him to deposit the admitted arrears of rent of Rs.25,78,968/- The appellate authority dismissed the said application and the same is under challenge in this O.P.(RC). 4. According to the petitioner, in view of Ext.P4 order passed by the Supreme Court, he will get a fresh period of one month from the date of the order passed by the Supreme Court to deposit the admitted arrears of rent. The Supreme Court passed Ext.P4 order on 18.05.2018 and the petitioner has filed I.A.No. 363 of 2018 expressing his willingness to deposit the admitted arrears of rent on 18.06.2018. That apart, the copy of the order passed by the Supreme Court was served to O.P.(RC) No. 84/2018 -5- him on 28.05.2018 only. Therefore, he will again get one month's time to deposit admitted arrears of rent from the date of order passed by the Supreme Court i.e., 18.05.2018, since the judgment passed by the Appellate Authority stands merged in the order passed by the superior court. 5. The respondent opposed the said application contending that the petitioner has already availed of one month's time provided under Section 12(2) of the Act. Thereafter, the petitioner has filed the application seeking permission to deposit the admitted arrears of rent by way of instalments and the same was also dismissed. After the expiry of the period of one month provided to deposit the admitted arrears of rent under Section 12(2) of the Act, the petitioner has preferred R.C.R. No. 215 of 2017 challenging the order passed by the appellate authority directing him to deposit the admitted arrears of rent under Section 12 of the Act. This Court set aside the order passed by the appellate authority under Section 12 of the Act. Feeling aggrieved, the respondent filed Civil Appeal No. 5686 of 2018 before the Supreme Court and the Supreme Court granted leave, allowed the appeal, set aside the judgment of this Court and restored the judgment of the Rent Control Appellate Authority. The Supreme Court has confirmed the order passed by the appellate authority by a well reasoned judgment and has not O.P.(RC) No. 84/2018 -6- granted an opportunity to the petitioner to deposit the admitted arrears of rent as the statutory period under Section 12(2) of the Act was over. Therefore, since the petitioner has already availed of an opportunity to deposit the admitted arrears of rent under Section 12(2) of the Act, the petitioner will not again get a further opportunity to deposit the admitted arrears for the reason that the Supreme Court has confirmed the order passed by the appellate authority and set aside the order passed by the High Court. 6. After considering the rival claims, the appellate authority dismissed Ext.P5 application on a finding that the order of the Appellate Authority in R.C.A. No. 2 of 2016 has been upheld by the Supreme Court. The order of summary eviction passed by the Rent Control Court in pursuance to the order passed by the appellate authority in R.C.A. No. 2 of 2016 has also not been set aside by the Supreme Court. It is not lawful to permit the petitioner to deposit the admitted arrears of rent in order to save him from eviction. Sufficient opportunity has already been granted by the Rent Control Court to remit the admitted arrears and the Rent Controller passed the summary order of eviction as the said order was not complied by the tenant. The legality and correctness of the aforesaid findings, whereby the appellate authority declined permission to deposit the admitted arrears of rent are challenged in this Original O.P.(RC) No. 84/2018 -7- Petition. 7. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 8. The learned counsel for the petitioner vehemently contended that the doctrine of merger would come into play and therefore, the petitioner would get a fresh period of one month to deposit the admitted arrears of rent from the date of Ext.P4 order passed by the Supreme Court and that the petitioner has filed the application expressing his willingness to deposit the admitted arrears within one month from the date of Ext.P4 order passed by the Supreme Court. Therefore, the appellate authority ought to have allowed the application. In order to fortify the doctrine of merger and its salient features, the learned counsel for the petitioner has placed reliance on _**Kunhayammed v. State of Kerala**_[1] and _**S. Shanmugavel Nadar v. State of T.N and another**_[2] . 9. _Per contra_ , the learned counsel for the respondent submitted that the doctrine of merger would not come into play automatically invariably in all cases, wherein the superior court confirms or set aside the order passed by the inferior courts. In order to support the said argument, the learned counsel has placed reliance on the decisions in > 1 2000 (3) KLT 354 (SC) 2 (2002) 8 SCC 361 O.P.(RC) No. 84/2018 -8- _**State of Madras v. Madurai Mills Co. Ltd**_ .,[3] _**Atma Ram Properties (P) Ltd., v. Federal Motors (P) Ltd**_ .,[4] and _**Thomas v. Thomas**_[5] . More specifically, the learned counsel for the respondent drew our attention to paragraph 6 of the decision in _**Madurai Mills Co. Ltd.**_ 10. In view of the arguments at the Bar, the question to be considered is whether there is any illegality or impropriety in the findings of the courts below that the doctrine of merger would not come into play since the petitioner has already availed off one month time to deposit the admitted arrears of rent and thereafter, he is not entitled to get a further period of one month, in view of the order passed by the Supreme Court in Civil Appeal No. 5686 of 2018. 11. What is doctrine of merger? Though both the petitioner and the respondent cited various decisions highlighting the doctrine of merger and its various aspects, we find that the decision in _**Madurai Mills Co. Ltd.**_ , deserves to be mentioned and considered as the same stands as an authority on the doctrine of merger. In _**Madurai Mills Co. Ltd.**_ , the Apex Court has codified the doctrine and narrated the application of the same in cases falling under various circumstances. 12. The principle that can be culled out from the aforesaid > 3 1967 KHC 556c 4 (2005) 1 SCC 705 > 5 2006(4) KLT 739 O.P.(RC) No. 84/2018 -9- decision is that the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior Court and the other by the superior court passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. What is inferable from the aforesaid legal position is that the doctrine of merger can be applied considering the facts and circumstances of each case, in accordance with the the legal provision under the Statute and the nature of orders passed by the superior court. 13. In the instant case, the question in controversy centres around Section 12(2) and (3) of the Act, which is extracted hereunder: “(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) : Provided that 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. (3) 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.” 14. On a bare reading of Section itself, it could be seen that the O.P.(RC) No. 84/2018 -10- minimum time fixed for the deposit of rent is one month and unless the tenant shows sufficient cause for not depositing the amount within one month, the Rent Control Court shall stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. The maximum period of time is not specifically prescribed and the statutory mandate is that the deposit of arrears of rent shall not be less than four weeks from the date of 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. 15. The operative portion of Ext.P4 judgment passed by the Supreme Court reads as follows: “Unfortunately, the fact that there was no denial of arrears of rent and the fact that the tenant's suit has since been dismissed were both important features, the High Court should not have exercised its revisional jurisdiction. Accordingly, we set aside the judgment of the High Court and restore the well-reasoned judgment passed by the Rent Control Appellate Authority. The appeal is accordingly disposed of. Pending applications, if any, shall stand disposed of.” 16. The sequence of events from the very beginning is relevant and significant while considering the application of the doctrine of merger. Coming to the instant case, the Rent Control Court dismissed the petition under Section 12 of the Act. The Appellate Authority after setting aside the order passed by the Rent Control Court, passed an O.P.(RC) No. 84/2018 -11- order under Section 12(2) of the Act directing the petitioner to deposit the admitted arrears of rent on 23.01.2017. But he did not deposit the rent within the said period of one month. After the said period, the petitioner appeared before the appellate authority on 22.2.2017 and filed an application seeking an order permitting him to deposit the admitted arrears by instalments. Thereafter, the case was adjourned to 15.03.2017. But, he did not deposit the amount. Later, on 08.04.2017, he filed R.C.R. No. 215 of 2017 challenging the said order and seeking a direction to deposit the admitted arrears. It is pertinent to note that no order of stay was granted in the said RCR. In the above context, it is pertinent to note that the petitioner has approached this Court challenging the order passed under Section 12 of the Act directing him to deposit the admitted arrears of rent, after a long lapse of more than three months. It follows that the petitioner had already availed of the statutory period granted to him for depositing the admitted arrears of rent. Moreover, after the period of one month, he did not show cause as to why the order was not complied within the specified period. On the failure to show cause it was incumbent upon the Rent Control Court or the Rent Control Appellate Authority as the case may be to pass a summary order of eviction under Section 12(3) of the Act. In the instant case, such an order was passed on 23.01.2017 and the petitioner has O.P.(RC) No. 84/2018 -12- approached this Court by filing R.C.R. on 08.04.2017 only after availing three months instead of the statutory period of one month. 17. We are of the opinion that where the statute prescribes a specific period to do an act and that period has run out, without compliance, and stay from the superior court, when the superior court confirms that order, after a long lapse of time in the appeal preferred by the opposite party, the party who had already availed off the statutory period will not get a fresh period again from the date of order of the superior court, by the application of doctrine of merger. 18. We have meticulously gone through Ext.P4 order passed by the Supreme Court. What has been done by the Apex Court in the said order is that the order which was already stood merged with the order passed by this Court in R.C.R.No. 215 of 2017 was restored. By the restoration of the said order, the Apex Court removed the eclipse caused by the order passed by this Court in R.C.R; no new right will be accrued to the petitioner as he had already availed off the right under the restored order. In other words, he is not entitled to get again an opportunity, which was availed off earlier, under the judgment passed by the Appellate Authority, for the reason that the Supreme Court has confirmed the said order passed by the appellate authority and set aside the order passed by the High Court. O.P.(RC) No. 84/2018 -13- 19. The learned counsel for the petitioner vehemently contended that the order passed by the appellate authority was merged with the order passed by the Supreme Court and thereby the petitioner will get a fresh period of one month to deposit the admitted arrears of rent. As a matter of fact, we are of the opinion that there was no occasion to merge the order of the appellate authority with the order of the Supreme Court, because the order passed by the appellate authority was merged with the order passed by this Court and what the Supreme Court did was that the Supreme Court restored the order passed by the Appellate Authority which stood merged with the order passed by the High Court in the RCR. In other words, the Apex Court had put the order passed by the appellate authority in live only. But the petitioner had already availed off the statutory period of one month, before the merging of that order in the order passed by the High Court. More importantly, it is pertinent to note that the order passed by the appellate authority had been merged with the order passed by the High Court after the passing of summary order of eviction under Section 12(3) of the Act, by the Rent Control Court. 20. When applying the principle propounded by the Supreme Court in the aforesaid decisions to the instant case, we find that in the instant case, there is no merger and even if there is a merger, the O.P.(RC) No. 84/2018 -14- petitioner will not get a fresh period of one month to deposit the admitted arrears of rent as he had already availed off more than one month for depositing the admitted arrears of rent before the merger of the order passed by the appellate authority in the order passed by the High Court. There is no illegality or impropriety in the impugned orders, whereby the Appellate Authority denied the opportunity to deposit the admitted arrears again. In the above analysis, this O.P(R.C) fails and the same is accordingly dismissed. sd/- **K. HARILAL, JUDGE.** sd/- **ANNIE JOHN, JUDGE.** sd/- _Rv_ O.P.(RC) No. 84/2018 -15- ## APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1- THE COPY OF ORDER IN I.A. NO.2111/2015 IN RCP NO.4/2015 OF THE RENT CONTROL COURT, CHENGANNUR DATED 12/1/2016. EXHIBIT P2THE COPY OF THE ORDER IN RCA NO.2/2016 OF THE RENT CONTROL APPELLATE AUTHORITY MAVELIKAKRA, DATED 20/12/2016. EXHIBIT P3THE COPY OF JUDGMENT DATED 19/7/2017 IN RCR NO.215/2017 OF THIS HON'BLE COURT. EXHIBIT P4THE COPY OF THE JUDGMENT OF THE SUPREME COURT IN CIVIL APPEAL NO.5686/2018 DATED 18/5/2018. - EXHIBIT P5THE COPY OF I.A. NO. 363/2018 IN RCA NO.4/2017 OF THE RENT CONTROL APPELLATE AUTHORITY, MAVELIKKARA. EXHIBIT P6THE COPY OF ORDER DATED 7/7/2018 IN I.A. NO.363/2018 IN RCA NO.4/2017 OF THE RENT CONTROL APPELLATE AUTHORITY, MAVELIKKARA ## RESPONDENTS' EXHIBITS: EXHIBIT R2(a): TRUE COPY OF THE ORDER DATED 20.03.2017 IN RCP NO. 4 OF 2015 OF THE RENT CONTROL COURT, CHENGANNUR. /True Copy/ rv PS to Judge.