KAINIKKARA MUHAMMEDKUTTY v. THACHAPARMBIL KUNHIMOHAMMED and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 31[ST] DAY OF JANUARY 2022 / 11TH MAGHA, 1943 O.P.(RC) NO. 23 OF 2022** **FOR SPEEDY DISPOSAL OF R.C.A.NO.22 OF 2021 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), MANJERI PETITIONER:** ## **KAINIKKARA MUHAMMEDKUTTY** **AGED 68 YEARS, S/O YAHU, THRIKKANDIYUR AMSOM, KUMARAMANGALAM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT – 676 104.** **BY ADVS.** **JAMSHEED HAFIZ** **K.K.NESNA BASIL PAUL** ## **RESPONDENT/S:** **1 THACHAPARMBIL KUNHIMOHAMMED, AGED 54 YEARS, S/O MOHAMED HAJI, TIRUR AMSOM, KOTT DESOM, PO TIRUR, TIRUR TALUK, MALAPPURAM DISTRICT – 676 101.** **2. HAMZA, AGED 71, S/O MOIDUNNI, ELANATTIL HOUSE, PAZHAMKULANGARA, TIRUR AMSOM, KOTT DESOM, PO TIRUR, TIRUR TALUK, MALAPPURAM DISTRICT – 676 101.** **3 NAFEESA, AGED 51 YEARS, W/O MUSTHAFA, CHIRAKKAL HOUSE, MOONNAMMOOLA, PO TANALUR, TIRUR TALUK, MALAPPURAM – 676 307.** 2 ## O.P.(RC) No.23 of 2022 **4. NISAM, AGED 31 YEARS, S/O MUSTHAFA, CHIRAKKAL HOUSE, MOONNAMMOOLA, PO TANALUR, TIRUR TALUK, MALAPPURAM – 676 307.** **5 NAJEEBUNEESA, AGED 36 YEARS, D/O CHIRAKKAL MUSTHAFA, CHIRAKKAL HOUSE, MOONAMMOOLA, TANALUR AMSOM, MEENADATHUR DESOM, TIRUR TALUK, MALAPPURAM – 676 307.** **6. MUNEERA, AGED 34 YEARS, D/O CHIRAKKAL MUSTHAFA, CHIRAKKAL HOUSE, MOONAMMOOLA, TANALUR AMSOM, MEENADATHUR DESOM, TIRUR TALUK, MALAPPURAM – 676 307.** **7. MUBEENA, AGED 30 YEARS, D/O CHIRAKKAL MUSTHAFA, CHIRAKKAL HOUSE, MOONAMMOOLA, TANALUR AMSOM, MEENADATHUR DESOM, TIRUR TALUK, MALAPPURAM – 676 307.** **8. SHAMNA, AGED 19 YEARS, D/O CHIRAKKAL MUSTHAFA, CHIRAKKAL HOUSE, MOONAMMOOLA, TANALUR AMSOM, MEENADATHUR DESOM, TIRUR TALUK, MALAPPURAM – 676 307.** **THIS O.P.(RENT CONTROL) HAVING COME UP FOR ADMISSION ON 31.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(RC) No.23 of 2022 ## **JUDGMENT** ## Ajithkumar, J. The 1[st] respondent is the landlord. He filed R.C.P.No.87 of 2016 before the Rent Control Court (Munsiff), Tirur for eviction of the tenants under Sections 11(2)(b), 11(8), 11(4)(i) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petition was allowed ordering eviction of the tenants. Out of the co-tenants, the 4[th] respondent in the R.C.P., filed R.C.A.No.22 of 2021 under Section 18(1)(b) of the Act challenging the order of eviction. The petitioner seeks an early disposal of the said appeal for which he has filed this original petition under Article 227 of the Constitution of India. 2. Heard the learned counsel for the petitioner. Considering the nature of relief proposed to be granted in the original petition, service of notice on the respondents is dispensed with. 3. The grievance of the petitioner is that the tenants are continuing in occupation of the petition schedule building without paying any rent even inspite of the order of eviction passed by the Rent Control Court. The rent control appeal is 4 O.P.(RC) No.23 of 2022 of the year 2021. It appears that service of notice on all the respondents is yet to be completed. It may take some more time to complete service of notice on all the respondents. However, it remains the fact that the appellant, one of the tenants, who challenges the order of eviction by filing R.C.A.No.22 of 2021, has been prosecuting the appeal without making payment of the rent in arrears. 4. In **Ramkumar J. v. Ashok Jacob [ILR 2021 (4) Kerala 876]** this Court explained the principle contained in Section 12 of the Act. It was observed, '12. 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 5 O.P.(RC) No.23 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, as the case may be. As per Section 12(2), the deposit under subsection (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 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 subsection (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. 6 O.P.(RC) No.23 of 2022 13. 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 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. 14. 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 7 O.P.(RC) No.23 of 2022 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. 15. 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 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. 16. 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 8 O.P.(RC) No.23 of 2022 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 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.' 7. In the light of the law as explained above, it is the obligation of the tenant to pay or deposit the rent in arrears, for entitling him to prosecute an appeal. In the circumstances, the original petition is disposed of with the following directions: i) If the petitioner-landlord files a petition under Section 9 ## O.P.(RC) No.23 of 2022 12 of the Act, the Appellate Authority shall dispose of that petition within a period of two months from the date of filing of the same; and ii) The Appellate Authority shall dispose of R.C.A.No.22 of 2021 within a period of three months thereafter. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** dkr 10 O.P.(RC) No.23 of 2022 ## **APPENDIX OF OP (RC) 23 OF 2022** **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF R.C.A.NO.22 OF 2021 BEFORE RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT) MANJERI DATED 06.09.2021.**