Maliyekkal Abdu Razak v. Karuthedath Moosa Haji 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** **WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944 R.C.REV.NO. 9 OF 2022** **AGAINST THE JUDGMENT DATED 25.09.2021 IN R.C.A.NO.15 OF 2021 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), MANJERI AND THE ORDER DATED 09.04.2021 IN R.C.P.NO.37 OF 2017 OF THE RENT CONTROL COURT (MUNSIFF),** ## **PARAPPANANGADI** ## **REVISION PETITIONER:** ## **MALIYEKKAL ABDU RAZAK** **AGED 53 YEARS, S/O. KUNHIBAVA, NANNAMBRA AMSOM, DESOM TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 676306.** **BY ADVS.** **RAJESH SIVARAMANKUTTY K.VIJINA ARUL MURALIDHARAN** ## **RESPONDENT:** **1 KARUTHEDATH MOOSA HAJI, AGED 62 YEARS, S/O. MOIDEEN, ULLANAM AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 676306.** **2 PALAMUTTATH ABOOBACKER, AGED 62 YEARS, S/O. MUHAMMED, ULLANAM AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 676306.** 2 ## R.C.Rev.No.9 of 2022 **3 ARAKKAL KUNHIMUHAMMEDKUTTY, AGED 57 YEARS, S/O. KUNHIRAYIN, NEDUVA AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 676306.** **4 PALLIPURATH MUHAMMEDKUTTY, AGED 55 YEARS, S/O. MOIDEEN, NEDUVA AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 676306. BY ADV C.M.MOHAMMED IQUABAL (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 08.06.2022, THE COURT ON 22.06.2022 DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.9 of 2022 ## **O R D E R** ## Ajithkumar, J. The petitioner is the tenant. The respondents-landlords filed R.C.P.No.37 of 2017 before the Rent Control Court (Munsiff), Parappanangadi, seeking eviction of the petitioner under Section 11(2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The respondents filed I.A.No.3344 of 2018 in the R.C.P. under Section 12 of the Act. Holding that the petitioner failed to deposit arrears of rent admitted to be due, in terms of the order dated 27.03.2019 under Section 12(1) of the Act and the petitioner did not offer any satisfactory explanation, the Rent Control Court on 09.04.2021 passed an order under Section 12(3) of the Act. Further proceedings in the rent control petition was stopped and the petitioner was directed to put the respondents in vacant possession of the petition schedule building within two months from the date of that order. The petitioner filed an appeal, R.C.A.No.15 of 2021, under Section 18(1)(b) of the Act. The Rent Control Appellate Authority (District Judge), 4 R.C.Rev.No.9 of 2022 Manjeri, did not accept the contentions of the petitioner. The appeal was dismissed as per judgment dated 25.09.2021. Assailing the judgment and the order, this revision under Section 20 of the Act has been filed by the petitioner. 2. On 17.01.2022, the respondents for whom a caveat was filed entered appearance through their counsel. 3. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondents. 4. There was a dispute regarding the rate of rent. The rent agreed by the petitioner is Rs.7,620/- per month. Provisions of Section 12(1) of the Act permit only to act upon the admitted rate of rent and the courts below rightly had accepted the rate of rent as Rs.7,620/- as admitted by the petitioner. 5. Regarding the period of tenancy also, there was dispute. Section 12(1) of the Act invests the court jurisdiction to direct the tenant to deposit only the arrears of rent admitted to be due. Again, the courts below had acted upon 5 R.C.Rev.No.9 of 2022 the admission of the petition regarding the rent that remains due. It was in the said premises that the Rent Control Court ordered on 27.03.2019 in I.A.No.3344 of 2018 that the petitioner should deposit the arrears of rent in lump the amount of rent due till February 2017, and continue to pay the rent for the subsequent months, within 15 days from the date on which such rent falls due. 6. The petitioner did not accept the said order and he filed R.C.A.No.16 of 2019 before the Appellate Authority. That appeal was, however, dismissed as not maintainable as per judgment dated 16.12.2020. Thereupon, the petitioner filed O.P.(RC) No.22 of 2021 before this Court. As per the judgment dated 08.02.2021, this court disposed of the said original petition holding that the petitioner could raise all his contentions regarding the period of rent during which he admits to be due before the Rent Control Court. The petitioner had filed a statement regarding the amount paid towards rent and arrears. The Rent Control Court thereafter ordered that rent from January, 2020 has been remaining due and the 6 ## R.C.Rev.No.9 of 2022 petitioner was directed to pay such rent within 15 days from the due date. 7. The learned counsel appearing for the petitioner would contend that both the courts below did not consider the aspect that the amount of arrears of rent was finally determined only when the order dated 09.04.2021 was rendered, and therefore, the order under Section 12(3) of the Act passed on the same day, without affording a further opportunity to the petitioner for making payment of the rent in arrears is against the provisions of Section 12(3) of the Act and is unsustainable in law. 8. The Appellate Authority dismissed R.C.A.No.15 of 2021 on 25.09.2021 and by that time, the petitioner was obliged to pay rent till September, 2021, in terms of the order of the Rent Control Court. It is contended that the petitioner has in fact deposited the entire rent to be paid till October, 2021, on 20.10.2021, and as such, the order of summary eviction against the petitioner is liable to be set aside. 9. As per the direction of this Court in the judgment 7 R.C.Rev.No.9 of 2022 dated 08.02.2021 in O.P.(RC) No.22 of 2021, the Rent Control Court considered the matter afresh, and therefore, what is available for consideration is the legality, regularity and propriety of the said order as well as the judgment in R.C.A.No.15 of 2021. In the order passed by the Rent Control Court under Section 12(3) of the Act on 09.04.2021, it was ## observed:- “5. I.A.3344/2018 was filed by the petitioner in which an order was passed by this court directing the respondent to pay Rs.50,000/- being the admitted arrears of rent up to July 2017. As per clause 2 of the said order the respondent was also directed to pay rent for the period from August 2017 to February 2019 at the rate of Rs.7,620/- within two months from the date of said order, that is 27.03.2019. The respondent was also directed to pay rent at the rate Rs.7,620/- for the subsequent months ie. from March 2019 within 15 days from the date on which the rent for each month becomes due. Now the case of the respondent is that he has already complied with the first clause by depositing Rs.50,000/-. According to the respondent there is no admission on the part of him that he is liable to pay rent from August 2017 to February 2019 as directed in clause 2 of the order in I.A.3344/2018. That is the 8 R.C.Rev.No.9 of 2022 cause shown for not proceeding under section 12(3) of the Act. On perusal of the petition, I.A.3344/2018, it is seen that the petitioner has sought for the admitted arrears of rent as stated in the objection filed by the respondent to the original petition. In the counter filed by the respondent in that petition it is stated that he is not liable to pay 88,900/- as stated in the petition but he is only liable to play Rs.50,000/-. However, this court has also directed the respondent to pay the rent from August 2017 to February 2019 ie. up to passing order in I.A.3344/2018. So the contentions raised regarding 2nd clause in the said order by the respondent is accepted. However, as per the 3rd clause in I.A.3344/2018 the respondent is directed to pay the rent for the subsequent months also. In the statement showing cause, filed under section 12(3) of the Act it is admitted by the respondent that he has paid the rent up to 31st December 2019. He has no case that he has neither paid nor deposited the rent from January 2020 till date. It shows that he has not complied with the 3rd clause in the order in I.A.3344/2018. No explanation is given for not complying with the 3rd clause in I.A.3344/2018. Hence this court has no other course than to proceed under section 12(3) of the Act.” 10. The aforesaid observations would imply that question now remains is in a narrow compass. The entire rent 9 R.C.Rev.No.9 of 2022 admitted to be due till December, 2019 was cleared. What was due thereafter has been the rent since January, 2020 at the rate of Rs. 7620/- per month. The question, therefore, is whether nonpayment of those arrears of rent amounts to disobedience of the order dated 27.3.2019. 11. What is contended by the petitioner under ground ‘C’ in the petition is that the rent from January 2020 to October 2021 at the admitted rate of Rs.7,620/- for 22 months amounting to Rs.1,67,640/- was deposited on 20.10.2021. The learned counsel for the petitioner would submit that only when the order dated 09.04.2021 was pronounced the liability of the petitioner was crystallized and therefore the said deposit would suffice to satisfy the direction under Section 12(1) of the Act as per order dated 27.03.2019. His contention is that the law laid down in **Shaji M. v.** ## **S.N.D.P Shakhayogam No. 610, Alappuzha and another,** **2020 (2) KLT 866** was not followed by the Rent Control Court while passing the order under Section 12(3) of the Act on 09.04.2021. 10 R.C.Rev.No.9 of 2022 12. In **Shaji M.** what was held is that on the date stipulated for effecting payment by virtue of the order passed under sub-sections (1) & (2), the tenant becomes fully aware that unless sufficient cause is not shown for the default committed, the consequence of stoppage of the proceedings and direction to put the landlord in possession of the building under sub-section (3) of Section 12 of the Act, would follow automatically, and 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 a further opportunity after the last date stipulated for effecting the payment or the deposit, is not 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 to stop the proceedings and direct the tenant to put the landlord in possession of the building. 13. In this case, as per clause 3 in the order dated 27.03.2019 the petitioner ought to pay rent at the admitted rate of Rs.7,620/- per month from January, 2020 onwards 11 R.C.Rev.No.9 of 2022 within 15 days from the date of due. The dispute was only with respect to the payment of admitted rent till December 2019. The case of the petitioner in that regard was accepted by the Rent Control Court and therefore, the question is confined to, whether the petitioner deposited/paid rent since January 2020 in compliance with Order dated 27.03.2019 and if not, whether sufficient reason is shown? He has obligation to continue to pay rent every month. That liability was not discharged by the petitioner and that the default recurred every month from January, 2020 till the petitioner made a deposit on 20.10.2021. In order to avoid stoppage of proceedings under Section 12(3) of the Act, he should have made deposits within 15 days from the date on which rent for every month since January, 2020 has become due. Admittedly he did not. No satisfactory explanation was offered. In the circumstances, the order dated 09.04.2021 passed by the Rent Control Court cannot be found fault with. 14. It is true that the petitioner deposited entire arrears of rent till October, 2021 on 20.10.2021. This Court in 12 R.C.Rev.No.9 of 2022 ## **Ramkumar J. v. Ashok Jacob [ILR 2021 (4) Ker. 876]** held that the consequence enjoined by an order under Section 12(3) of the Act for failure to deposit the admitted arrears in time cannot be vacated or obliterated by payment at any subsequent stages or periods. The order dated 09.04.2021 passed by the Rent Control Court therefore cannot be obliterated by the deposit of rent made by the petitioner on 20.10.2021. The appellate authority after considering all the aspects has confirmed the said order as per its judgment dated 25.09.2021. We, therefore, find no reason to interfere with the impugned order and the judgment in the exercise of the powers of this Court under Section 20 of the Act. The revision therefore fails and we dismiss it. The petitioner shall surrender vacant possession of the petition schedule building within one month from the date of this Order. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 13 R.C.Rev.No.9 of 2022 ## **APPENDIX OF R.C.REV.NO.9 OF 2022** ## **PETITIONER ANNEXURES** **Annexure A TRUE COPY OF TREASURY RECEIPT DATED 6.12.2021 AND THE MEMO ALONG WITH THE APPLICATION DATED 21.10.2021 FILED IN E.P NO. 115/2021 IN R.C.P NO.37/2017 BEFORE THE RENT CONTROL COURT, PARAPPANANGADI. Annexure B TRUE COPY OF TREASURY RECEIPT DATED 6.12.2021 AND THE MEMO DATED 6.12.2021 FILED IN EP.NO.115/2021 IN R.C.P NO.37/2017 BEFORE THE RENT CONTROL COURT, PARAPPANANGADI.**