Kunduvalappil Kannan S/O Paru Amma v. M.S. Fathima Beevi and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 21ST DAY OF JUNE 2016/31ST JYAISHTA, 1938** **RCRev..No. 191 of 2016 ()** **-------------------------IN RCA 192/2013 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY DATED 09-02-2016 IN RCP 40/2011 of MUNSIFF COURT, PAYYANNUR DATED 04-09-2013** **------------------------------------------------------** ## **REVISION PETITIONER(S)/APPELLANT/RESPONDENT NO.4::** **----------------------------------------------------------------------------------------** **KUNDUVALAPPIL KANNAN S/O. PARU AMMA, AGED 51 YEARS, VELLUR AMSOM, KANDOTH DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT.** ## **BY ADVS.SRI.M.SASINDRAN SRI.SATHEESHAN ALAKKADAN** ## **RESPONDENT(S)/RESPONDENTS/PETITIONERS AND RESPONDENT NOS. 1 TO 3 & 5 :** **---------------------------------------------------------------------------------------------------------------------------** ## **1. M.S. FATHIMA BEEVI** **W/O. LATE SAITH HASSAN, AGED 50 YEARS HOSDURG TALUK, AJANOOR MANIKOTH GRAMAM, PO.MANIKOTH-671361 KASARAGOD DISTRICT.** ## **2. ABOOBACKER MIDLAJ** **S/O. LATE SAITH HASSAN, AGED 29 YEARS, HOSDURG TALUK, AJANOOR, MANIKOTH GRAMAM, PO. MANIKOTH-671316 KASARAGOD DIST.** ## **3. SAITH ABDUL KHADER MOHSIA** **S/O LATE SAITH HASSAN, AGED 26 YEARS HOSDURG TALUK, AJANOOR, MANIKOTH GRAMAM, PO. MANIKOTH-671316 KASARAGOD DISTRICT.** **-2-** **-2-** ## **RCRev..No. 191 of 2016 ()** ## **-------------------------------------** ## **4. NAFEESATHUL MUPHEEDA** **D/O LATE SAITH HASSAN, AGED 18 YEARS HOSDURG TALUK, AJANOOR, MANIKOTH GRAMAM, PO. MANIKOTH-671316 KASARAGOD DISTRICT.** ## **5. SAITH MUHAMMED SIRAJ** **S/O LATE SAITH HASSAN AGED 18 YEARS HOSDURG TALUK, AJANOOR, MANIKOTH GRAMAM, PO. MANIKOTH0671316 KASARAGOD.** ## **6. AYISHATHUL MAHAREESHA** **S/O. LATE SAITH HASSAN, AGED 15 YEARS HOSDURG TALUK, AJANOOR, MANIKOTH GRAMAM,PO MANIKOTH-671316,KASARAGOD DISTRICT.** ## **7. PERIYADAN THAYYIL JANAKI** **D/O. KALYANI AMMA, AGED 56 YEARS VELLUR AMSOM DESOM, THALIPARAMBA TALUK, PIN-670307,KANNUR DISTRICT.** ## **8. ANIDIL KIZHAKKINAKATH SAVITHRI AMMA** **D/O.KUNHIRAMA PODUVAL, AGED 54 YEARS VELLUR AMSOM DESOM, TALIPARAMBA TALUK, PIN-670307** ## **9. PENELATT KUNHAPAN** **S/O.KALYANI AMMA, AGED 55 YEARS VELLUR AMSOM DESOM, THALIPARAMBA TALUK, MAJJUR DISTRICT, PIN-670307** ## **10. THALIYIL VEETTIL VANAJA** **D/O.SAROJINI AMMAAGED 39 YEARS VELLUR AMSOM DESOM, THALIPARAMBA TALUK, PIN-670307,KANNUR DISTRICT** ## **R-R BY ADV. SRI..DEEPU THANKAN (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 21-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VS** C.R. ## K.SURENDRA MOHAN & MARY JOSEPH, JJ. ---------------------------------------- R.C.R. No.191 of 2016 ----------------------------------------Dated this the 21[st] day of June, 2016 ## ORDER ## K.SURENDRA MOHAN, J. The tenant is in revision before us, challenging the judgment dated 09.02.2016 of the Rent Control Appellate Authority, Thalassery in R.C.R.No.192/13. The appeal was filed by the tenant, challenging an order dated 04.09.2013 of the Rent Control Court, Payyannur in R.C.P.No.40/2011. As per the order of the Rent Control Court, an order of eviction was granted against the tenant, under Sections 11(2)(b), 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to 'the Act' for short). During the pendency of the appeal, I.A.No.1467/15 was filed by the landlords under Section 12 of the Act, seeking a direction to deposit the admitted arrears of rent. Accordingly, an order was R.C.R. No.191 of 2016 -2- passed under Section 12(2) of the Act, directing the tenant to deposit the admitted arrears of rent within three weeks and to pay the subsequent rent as and when it accrues. The said order was passed on 28.09.2015. Pursuant to the said order, though the tenant paid the arrears of rent, he failed to make payment of the rent that had accrued due subsequently. Therefore, his default was brought to the notice of the Appellate Authority by the landlords by filing I.A.No.115/2016. In spite of the filing of the said I.A. also, no deposit of rent was made by the tenant. The Appellate Authority therefore found that there was default in payment of the rent from July 15 onwards. No cause was shown by the tenant for not having paid the rent. Therefore, the Appellate Authority stopped all further proceedings in the appeal and directed the tenant to put the landlord in possession of the shop room. The tenant is aggrieved by the said judgment. 2. According to Advocate Mr.M.Sasindran, who appears for the tenant, the mandate of Section 12(2) of the Act R.C.R. No.191 of 2016 -3- has not been complied with by the Appellate Authority, while stopping the proceedings and ordering the tenant to put the landlords in possession of the premises. Placing reliance on the proviso to Sub Section 2 of Section 12, it is contended by the counsel that, it was incumbent on the Appellate Authority to have passed a fresh order granting at least two weeks time to the tenant to deposit the subsequent arrears. Failure to do so, according to the counsel has vitiated the exercise of the power under Section 12(3) of the Act. For the above reason, it is contended that, interference with the judgment of the Appellate Authority is called for, in revision. 3. Adv.Deepu Thankan, who appears for the respondent/landlords disputes the contentions of the counsel for the revision petitioner/tenant. It is pointed out by the counsel that, an order directing the tenant to deposit the admitted arrears of rent and to pay the subsequent rent that accrues due, within a period of three weeks had been passed by the Appellate Authority on 28.09.2015. Therefore, it was R.C.R. No.191 of 2016 -4- necessary for the tenant to have complied with the said order and paid the rent regularly and without default, until the termination of the entire proceedings. It is contended that, neither an opportunity to show cause nor a further opportunity for payment is contemplated by Section 12(2), as contended. Therefore, the counsel seeks dismissal of the revision. ## 4. Heard. ## 5. Section 12 of the Act is reproduced hereunder for convenience of reference. “Payment of deposit of rent during the pendency of proceedings for eviction :- (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 R.C.R. No.191 of 2016 -5- Control Court or the appellate authority, as the case may be.” 6. A perusal of Clause (1) leaves no doubt in our mind that, it is the obligation of the tenant to pay up the arrears of rent in respect of the tenanted premises and thereafter to continue to pay or deposit the rent that subsequently accrues due, without delay or default. It is clear from the difference in the wordings employed by the legislature in the former part of Section 12(1) that the tenant is not expected to commit default in payment of rent, in respect of the subsequent rent that accrues due, after an order is passed under Section 12(1). This is for the reason that, in the former part of Section 12(1), the legislature talks of arrears of rent admitted by the tenant. Whereas, the concluding portion of the provision mandates that the tenant "continues to pay or to deposit any rent which may subsequently became due in respect of the building, until termination of the proceedings before the Rent Control Court or the Appellate Authority as the case may be”. Therefore, the obligation of a tenant is two R.C.R. No.191 of 2016 -6- fold, namely, to pay of the entire admitted arrears of rent, in first place and secondly to continue to pay the rent that subsequently accrues due, until termination of the proceedings. Sub section (2) stipulates the manner in which the court is to pass orders under the said provision for deposit of the arrears of rent. As per the proviso to sub Section (2), the court is required to direct deposit of the admitted arrears of rent. It is mandated that the time stipulated for deposit of such arrears shall not be less than four weeks. At the same time, the time fixed for deposit of rent which subsequently accrues due is stipulated to be two weeks from the date on which the rent becomes due. The use of the expression “Rent becomes due” and the expression “Rent which subsequently accrues”, makes it clear that, a default in payment of the subsequent rent is not contemplated by the provision at all. It is the duty of the tenant to continue to pay the subsequent rent that accrues, without delay or default. No further opportunity for payment of the subsequent rent that accrues R.C.R. No.191 of 2016 -7- due, if default is committed is contemplated by the provision. 7. Going by the wording of the provision, no separate order directing payment of the rent that subsequently accrues due is also contemplated by the provision. It is the duty of the tenant to make payment of the subsequent rent that accrues due, within two weeks from the date on which the rent becomes due or payable. 8. In the present case, it is stated by the Appellate Authority in its judgment that, as per order dated 28.09.2015 in I.A.No.1467/2015, the tenant was directed to pay or deposit the admitted arrears of rent within three weeks as and when it accrues. Therefore, there was not only an order to pay the admitted arrears of rent but also to pay the subsequent rent that would accrue. In spite of the above, the tenant has admittedly defaulted payment of the subsequent rent, from July 15 onwards. Though I.A.No.115/2015 was filed by the landlords, on 18.01.2016 and notice was given to the tenant through his counsel, no rent was paid. Even before us, the R.C.R. No.191 of 2016 -8- contention of the counsel for the tenant is that, the tenant is ready and willing to pay the rent. We are not satisfied that any opportunity could be granted for the purpose, at this point of time. This is a case in which, the tenant has not abided by the order passed by the Appellate Authority. He has also not discharged his statutory obligation to continue to pay the rent in respect of the premises, in tune with the mandate of Section 12. 9. The counsel for the petitioner has placed reliance on the decision of the Division Bench of this Court in Jain Abraham v. Best Buy T.V. & Home Appliances reported in 2009 (1) KLT 477. The question that was involved in the said case before this Court was whether the rent that falls subsequently due can be described as “arrears of Rent”. This Court has held that, the rent that subsequently falls due cannot be described as arrears of rent. In Paragraph 4 of Jain Abraham's case (supra) this Court has concluded the issue, in the following words. R.C.R. No.191 of 2016 -9- “The legislature has drawn a distinction between arrears of rent and the rent which falls due subsequently. Arrears obviously means the rent which had already accrued as payable as on the date of the issuance of the statutory demand notice under S.11(2) and at the time of institution of the R.C.P. The rent which falls due subsequently cannot be described as arrears since the same fell due only subsequent to the commencement of the rent control proceedings.” The above being the legal position, we are not satisfied that any interference with the judgment of the Appellate Authority is called for in the present case. The Rent Control Revision fails and is accordingly dismissed. Sd/K.SURENDRA MOHAN, JUDGE Sd/MARY JOSEPH, JUDGE vs /TRUE COPY/ PA TO JUDGE