Jayakumar K.V v. K. Ramamoorthi Charitable Trust, Kannur

## **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 5[TH] DAY OF APRIL 2022 / 15TH CHAITHRA, 1944** **RCREV. NO. 457 OF 2019 AGAINST THE JUDGMENT DATED 31.08.2019 IN R.C.A.NO.98 OF 2017 ON THE FILES OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-II), THALASSERY FILED AGAINST THE ORDER DATED 28.06.2017 IN R.C.P.NO.227 OF 2016 ON THE FILES OF THE RENT CONTROL COURT(PRINCIPAL MUNSIFF), KANNUR** ## **REVISION PETITIONER:** **JAYAKUMAR K.V AGED 58 YEARS S/O.K.V.KORAN, 58 YEARS, RESIDING AT 'DEEPA', NEAR KRIPA NURSING HOME, TALAP, KANNUR-2.** **BY ADV. ASHWIN SATHYANATH** **RESPONDENT:** **K.RAMAMOORTHI CHARITABLE TRUST KANNUR REP. BY ITS CHAIRMAN KARAKULANGARA VANNADIL SUDHEER KUMAR, S/O.LATE KUNHIRAMA PODUVAL, AGED 49 YEARS, RESIDING AT 'LAKSHMI PARVATHI', PAYYANNUR AMSOM DESOM, THALIPARAMBA TALUK, KANNUR DISTRICT-670 307** **BY ADVS. SRI.C.MURALIKRISHNAN (PAYYANUR) SRI.ABRAHAM GEORGE JACOB** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 24.03.2022, THE COURT ON 05.04.2022 DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.457 of 2019 ## **O R D E R** ## Ajithkumar, J. This revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 was filed by the respondent-tenant in R.C.P.No.227 of 2016 on the file of the Rent Control Court (Principal Munsiff), Kannur. In the rent control petition, the respondent herein-landlord, sought eviction under Section 11(2)(b), 11(3) and 11(4)(v) of the Act. The landlord has, in the R.C.P., filed I.A.No.1536 of 2017 under Section 12 of the Act. An order under Section 12(1) of the Act was passed by the Rent Control Court on 12.4.2017. The petitioner failed to make payment of the admitted arrears of rent as directed. The Rent Control Court, holding that the explanation offered by the petitioner was insufficient, passed an order under section 12(3) of the Act on 28.06.2017. The petitioner herein filed R.C.A.No.98 of 2017, but the Appellate Authority Authority (Additional District Judge-II), Thalassery did not interfere with that order and dismissed the appeal on 31.08.2019. Feeling aggrieved thereof, this revision has been 3 R.C.Rev.No.457 of 2019 filed. 2. On 18.12.2019, the revision petition was admitted and ordered to issue notice to the respondents. Further proceedings in R.C.P.No.227 of 2016 was stayed initially for a period of one month on condition that the petitioner should pay the entire arrears of rent, within a period of two weeks. Interim order was extended from time to time. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. I.A.No.711 of 2017 was filed by the respondent seeking to direct the petitioner-tenant to deposit the entire admitted arrears of rent and to continue to pay the rent for the subsequent period. On 12.04.2017, the Rent Control Court on observing that the petitioner admitted the fact that rent at the rate of Rs.5,500/- per month has been due since 01.01.2016 directed the petitioner to deposit all such arrears of rent within a period of four weeks and to continue to pay rent for the subsequent period within 15 days from the date 4 R.C.Rev.No.457 of 2019 on which it falls due. The respondent has filed I.A.No.1536 of 2017 alleging that the petitioner failed to comply with the aforesaid order, and therefore, to stop all further proceedings in the rent control petition. 5. The petitioner filed an objection to that application raising two-fold contentions. Firstly, the petitioner has contended that it is a Government recognised educational institution, where C-Dit Diploma Courses for the students belonging to Scheduled Castes and Scheduled Tribes is offered, and therefore, a petition for eviction under Section 11 of the Act against the petitioner is not maintainable. Secondly, that the Government did not sanction enough funds enabling the petitioner to pay the arrears of rent and hence it shall be absolved from the penal consequences under Section 12(3) of the Act. 6. The Rent Control Court after hearing both sides, took the view that the petitioner was not a Government institution coming under the provisions of Section 11(11)(ii) so as to get protection from eviction under Section 11 of the 5 R.C.Rev.No.457 of 2019 Act. In order to reach that finding, the Rent Control Court placed reliance on the decision in **Issac Mathew v. G.Nirmala [2016 (1) KLT 898]** . Holding so, the Rent Control Court dismissed I.A.No.1536 of 2017 on 28.06.2017 and on the same day, stopped all the further proceedings in R.C.P.No.227 of 2016, invoking the provisions of Section 12(3) of the Act. A separate order to that effect in the rent control petition was also passed on the same day. 7. The learned counsel appearing for the petitioner would contend that the finding of the Rent Control Court and also the view taken by the Appellate Authority concurring with the said finding are not correct or legal, and liable to be reversed. It is his contention that the Rent Control Court having found while disposing of I.A.No.1536 of 2017 that the petitioner is not a Government recognised educational institution entitling protection from eviction under Section 11 of the Act, a further opportunity should have been afforded to make payment of the rent in arrears. The learned counsel also would contend that having the entire arrears of rent been paid 6 R.C.Rev.No.457 of 2019 during the pendency of the appeal, the Appellate Authority ought to have set aside the order under Section 12(3) of the Act. 8. R.C.A.No.98 of 2017 was filed by the petitioner challenging the orders of the Rent Control Court directing payment of the admitted arrears of rent and the eventual order under Section 12(3) of the Act. It is contended by the petitioner that on discarding the contention of the petitioner with reference to Section 11(11) of the Act only his obligation to make payment of the admitted arrears of rent has become crystallized. It is more important that such an order was passed not on I.A.No. 711 of 2017, but on a subsequent application filed by the respondent, ie., I.A.No. 1536 of 2017. It is contended that, therefore, the order of eviction without giving another opportunity to pay the arrears of rent is illegal. The learned counsel, pointing out that the petitioner had deposited the entire rent in arrears in response to I.A. No.1308 of 2018 filed under Section 12 of the Act in the appeal by the respondent, contended that the impugned order 7 R.C.Rev.No.457 of 2019 is liable to be set aside. 9. The learned counsel appearing for the respondent, on the other hand, would submit that on default on the part of the petitioner to make payment of the admitted arrears of rent, as per order dated 12.04.2017, the consequence under 12(3) was automatic and therefore the order passed by the rent control court on 28.06.2017 is not liable to be interfered with. As regards the payment during the pendency of appeal, it has been submitted that such deposit having been made only after the order of the Rent Control Court under Section 12(3) of the Act, that order is not liable to be interfered with. 10. 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 8 R.C.Rev.No.457 of 2019 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 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 9 R.C.Rev.No.457 of 2019 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. 11. 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 10 R.C.Rev.No.457 of 2019 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. 12. 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 [2004 (3) KLT 955]** , from the language of Section 12(3) of the 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. 11 R.C.Rev.No.457 of 2019 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** is more apt and appropriate to be held, as 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. 13. In **Shaji M.** , 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 12 R.C.Rev.No.457 of 2019 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 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 13 R.C.Rev.No.457 of 2019 providing reasonable opportunity satisfying the statutory requirement contained in Section 12(3). 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 become due in respect of the building, until the termination of the 14 R.C.Rev.No.457 of 2019 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. 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 15 R.C.Rev.No.457 of 2019 show sufficient cause for not paying or depositing the admitted arrears of rent, 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). 16. Order directing deposit of all admitted arrears of rent was passed by the Rent control Court on 12.04.2017. Once the tenant is directed to deposit entire arrears of rent within the period fixed by the Court and if he fails to pay, and also to offer any satisfactory explanation, an order under Section 12(3) of the Act is the necessary consequence. Only consideration is whether an opportunity for placing an explanation before the Court was afforded or not. It may be noted that a second application by the landlord reminding the Court to invoke section 12(3) of the Act is not required or contemplated. The law being that, the event that happened subsequent to the order of the Rent Control Court on 12.4.2017 directing the petitioner to deposit the arrears of 16 R.C.Rev.No.457 of 2019 rent assumes importance. 17. After passing the order dated 12.4.2017, the respondent filed I.A.No. 1536 of 2017, again under section 12 of the Act. Of Course, it was filed seeking to pass a default order under section 12(3) of the Act. Even in the absence of that application, the Court was obliged to decide whether or not an order under section 12(3) to be passed. But, when such an application was filed, it had necessitated to give another opportunity to the petitioner of being heard. The petitioner then has filed a statement of objection and explanation; one of the contentions was that the respondent being a Government recognised educational institution the petitioner has exemption from being proceeded for eviction under section 11 of the Act. Of course, that contention was negatived by the Rent Control Court. The Appellate Authority considered in detail the legality of that order and confirmed it as well. The rule that once the time for deposit of the admitted arrears of rent is over and the tenant failed to offer any explanation, resulting in an order stopping further 17 ## R.C.Rev.No.457 of 2019 proceedings, any deposit made thereafter will not absolve the tenant from being evicted. ## 18. Section 11(11) of the Act reads as follows: (11) Notwithstanding anything contained in sub-sections (1) to (10), no order for eviction or for putting the landlord in possession shall be passed,- (i) against any tenant who is engaged in any employment or class of employment notified by the Government as an essential service for the purpose of this sub-section, unless the landlord is himself engaged in any employment or class of employment which has been so notified and the landlord requires the building for his own occupation: or (ii) in respect of any building which has been let for use as an educational institution, and is actually being used as such, provided that the institution has been recognised by the Government or any authority empowered by them in this behalf, so long as such recognition continues. ## As held in **Issac Mathew v. G.Nirmala (supra)** that looking at the phraseologies employed in section 11(11)(ii) of the Act it is clear that the interdiction created thereunder apply only if the building was let out for use as an educational institution and the same is being used as such and the 18 R.C.Rev.No.457 of 2019 educational institution has been recognised by the Government or any other authority empowered thereunder. 19. The petitioner-tenant did not produce any document to show that the the institution which claims to be conducted in the petition schedule building has recognition from the Government. It is claim that the petitioner has been conducting C-Dit Diploma Courses for the students belonging to Scheduled Castes and Scheduled Tribes. In order to get exemption under Section 11(11) of the Act, it should be proved that from the very inception and now also, such an institution is being run in the petition schedule shop room and it has recognition from the Government. But, absolutely no evidence is produced to prove that fact. In the light of the said facts and evidence, the petitioner cannot claim the benefit of Section 11(11) of the Act. Hence, the contention was also rightly turned down by the courts below. Both authorities below concurrently found that petitioner's institution is not an institution of that kind. We find no reason to interfere with the findings of the courts below. 19 R.C.Rev.No.457 of 2019 20. Facts of this case is however peculiar. The contention raised by the petitioner, in answer to I.A.No.1536 of 2017, which was based on Section 11(11) of the Act is one touching the very jurisdiction of the Rent Control Court. Had the contention of the petitioner been accepted, the Rent Control Petition would have to be dismissed as not maintainable. Having raised such a legal contention affecting the maintainability of the Rent Control Petition, the petitioner would have a reasonable expectation of getting his contention accepted. The Rent Control Court did not accept, we say rightly, that contention. But, passing of an order under Section 12(3) of the Act simultaneous to the order rejecting that plea of the petitioner, certainly has resulted prejudice to him. We are of the view that, in the light of the aforesaid special circumstances, the Rent Control Court after passing that order, ought to have postponed the matter for a short period before passing the order under Section 12(3) of the Act. Since the Rent Control Court did not do so, the impugned order dated 28.06.2017 has become irregular and is liable to 20 R.C.Rev.No.457 of 2019 be set aside. This Revision petition is therefore allowed. The judgment dated 31.08.2019 in R.C.A No. 98 of 2017 and order of the Rent Control Court dated 28.06.2017 in R.C.P No.227 of 2016 are set aside. The Rent Control Court will restore R.C.P No.227 of 2016 on file and proceed in accordance with law. It is made clear that this order is not a bar for the respondentlandlord to file a petition under Section 12 of the Act if any rent is yet in arrears. Rent Control Petition is of the year 2016. Therefore, the Rent Control Court is directed to finally dispose of R.C.P.No.227 of 2016 as expeditiously as possible, at any rate, within three months from the date of reopening of the Civil Courts after summer recess. Parties are directed to appear before the Rent Control Court on 18.05.2022. **Sd/ANIL K.NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** PV