Lali v. Joshi P.

# **`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 26[TH] DAY OF JULY 2022 / 4TH SRAVANA, 1944 OP (RC) NO. 145 OF 2022 AGAINST THE ORDER IN RCP 5/2020 OF RENT CONTROL COURT, (ADDITIONAL MUNSIFF – IV) RCC, THIRUVANANTHAPURAM PETITIONER/PETITIONER: ``` ``` LALI AGED 55 YEARS D/O SARASAMMA, RESIDING AT LALI NIVAS, KAKKAMOOLA, KALLIYOOR P.O, KALLIYOOR VILLAGE, THIRUVANANTHAPURAM, PIN – 695042 ``` ``` BY ADVS.V.G.ARUN (K/795/2004) NEERAJ NARAYAN V.JAYA RAGI R.HARIKRISHNAN (KAMBISSERIL) AVANEETH S.R. ``` ## **`RESPONDENT/RESPONDENT:`** ``` JOSHI.P AGED 60 YEARS S/O PRABHAKARAN, 'KAILASAM", TC 2/1780 (GRA 680), GOWREESAPATTOM, PATTOM P. O., PATTOM VILLAGE, THIRUVANANTHAPURAM – 695004 ``` ``` THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 26.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P. (RC) No. 145 of 2022 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner filed R.C.P. No.5 of 2020 before the Rent Control Court (Additional Munsiff–IV), Thiruvananthapuram, under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short ‘the Act’) seeking eviction of the respondent herein - tenant from the petition schedule building, in which the tenant is conducting a jewellery by name ‘Sulthana Jewellery’ on a monthly rent of Rs.80,000/-. The tenant entered appearance and filed counter in that Rent Control Petition. The landlady filed I.A.No.4 of 2021, an application under Section 12 of the Act seeking an order directing the tenant to remit the admitted arrears of rent amounting to Rs.17,60,000/and in case of failure, to put her in possession of the petition schedule building. In that interlocutory application, which is marked as Ext.P3, the tenant filed Ext.P4 objection, which is dated 08.09.2021. 2. After considering the rival contentions, the Rent Control Court by Ext.P5 order dated 22.01.2022 directed the tenant to pay admitted arrears of rent at the rate of Rs.80,000/per month from January, 2020 onwards within a period of two O.P. (RC) No. 145 of 2022 3 months and to continue to pay the rent for the subsequent period, until termination of that proceedings, under Section 12(1) and (2) of the Act. 3. The grievance of the petitioner – landlady is that though Ext.P5 order is dated 22.01.2022, despite the fact that the tenant has not chosen to make any payment towards the admitted arrears of rent, the Rent Control Court is not proceeding further with the application filed under Section 12 of the Act, by passing appropriate orders in exercise of its powers under Section 12(3) of the Act. Feeling aggrieved, the landlady is before this Court in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India seeking an order directing the Rent Control Court (Additional Munsiff–IV), Thiruvananthapuram, to pass appropriate orders in I.A.No.4 of 2021 in R.C.P.No. 5 of 2020, under Section 12(3) of the Act, within a time limit to be fixed by this Court. 5. Heard the learned counsel for the petitioner-landlady. Considering the nature of relief proposed to be granted, service of notice on the respondent-tenant is dispensed with. 6. The learned counsel for the petitioner would argue that a time bound consideration of an application under Section O.P. (RC) No. 145 of 2022 4 12 of the Act is highly essential, otherwise the very object of that provision would be defeated. 7. 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 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 fx 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), O.P. (RC) No. 145 of 2022 5 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 sufcient 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. 8. 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 O.P. (RC) No. 145 of 2022 6 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. 9. 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. 10. In **J. Ramkumar v. Ashok Jacob [2022 (1) KHC 495** O.P. (RC) No. 145 of 2022 7 **: 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 specifed 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 sufcient cause to the contrary, stop all further proceedings and O.P. (RC) No. 145 of 2022 8 make an order directing the tenant to put the landlord in possession of the building. 11. In **J. Ramkumar [2022 (1) KHC 495]** , this Court held that, Section 12 of the Act imposes certain obligations on the tenant to pay or deposit admitted rent, during the pendency of the proceedings for eviction under Section 11, before the Rent Control Court, and also the proceedings in an appeal filed under Section 18, before the Appellate Authority, against such an order of eviction. Section 12(3) of the Act also provides for the consequences, which were to follow, for committing default in fulfilling those obligations. Section 12(3) of the Act deals with the consequences flowing as a result of the failure of the part of the tenant to pay or deposit admitted rent. Before the consequences under Section 12(3) can ensue, the conditions specified in Section 12(1) and (2) have to be satisfied. Section 12(3) mandates that if any tenant fails to pay or deposit the admitted rent as provided under Section 12(1) and (2), the Rent Control Court or the Appellate Authority, as the case may be, shall, unless the tenant shows sufcient cause to the contrary stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. Therefore, if the O.P. (RC) No. 145 of 2022 9 Rent Control Court or the Appellate Authority, as the case may be, is satisfed about the cause shown by the tenant, it will not make any order under Section 12(3) of the Act, stopping further proceedings and directing the tenant to put the landlord in possession of the building. 12. In **Shiraz K.V. 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, 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. On the facts of the case, this Court noticed that, the tenant has not chosen to contest the Rent Control Petition by filing counter. The tenant has O.P. (RC) No. 145 of 2022 10 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 12.11.2021 in R.C.P.No.97 of 2020, whereby the tenant was set _ex parte_ , is 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. 13. In **Abdul Razak P.M. v. K.C. Thomas and others [2022 (4) KHC 260]** , considering the object of the provisions of Section 12 of the Act, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India, this Court directed all Rent Control Appellate Authorities in the State to ensure time bound disposal of the appeals filed under S.18(1)(b) of the Act, against an order passed by the Rent Control Court under Section 12(3) of the Act. Similarly, this Court directed all Rent Control Courts/Appellate Authorities in the State to ensure time bound disposal of the applications fled under Section 12 of the Act, in O.P. (RC) No. 145 of 2022 11 pending Rent Control Petitions/Rent Control Appeals. Registrar (District Judiciary) was directed to communicate a soft copy of the judgment to all Rent Control Courts/Appellate Authorities in the State, without any delay. In such circumstances, this Original Petition is disposed of by directing the Rent Control Court (Additional Munsiff–IV), Thiruvananthapuram, to pass orders in I.A.No.4 of 2021 in R.C.P.No. 5 of 2020, the application filed by the petitionerlandlady under Section 12 of the Act, taking note of the statutory provisions referred to hereinabove and also the law laid down in the decisions referred to supra, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K.NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** DCS/27.07.2022 O.P. (RC) No. 145 of 2022 12 ## **`APPENDIX`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 ``` ``` THE TRUE COPY OF THE LEASE AGREEMENT DATED 13.11.2018 ``` ``` Exhibit P2 ``` ``` THE TRUE COPY OF THE PETITION IN RCP NO. 5 OF 2020 ON THE FILES OF THE RENT CONTROLLER, THIRUVANANTHAPURAM ``` ``` Exhibit P3 ``` ``` THE TRUE COPY OF IA NO. 4 OF 2021 IN RCP NO. 5 OF 2020 ON THE FILES OF THE RENT CONTROL COURT, (ADDITIONAL MUNSIFF -IV) RCC, THIRUVANANTHAPURAM DATED 04.08.2021 ``` ``` Exhibit P4 ``` ``` THE TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN RCP NO. 5 OF 2020 DATED 08.09.2021 ON THE FILES OF THE RENT CONTROL COURT, (ADDITIONAL MUNSIFF -IV) RCC, THIRUVANANTHAPURAM ``` ``` Exhibit P5 ``` ``` THE TRUE COPY OF THE ORDER DATED 22.01.2022 IN IA NO. 4 OF 2021 IN RCP NO. 5 OF 2020 ON THE FILES OF THE RENT CONTROL COURT, (ADDITIONAL MUNSIFF -IV) RCC, THIRUVANANTHAPURAM ```