Nandakumar T.P. v. Rajesh George

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 2[ND] DAY OF DECEMBER 2021/11TH AGRAHAYANA,1943** **R.C.REV.NO.174 OF 2021** **AGAINST THE JUDGMENT DATED 16.03.2021 IN R.C.A.NO.2 OF 2021 OF THE RENT CONTROL APPELLATE AUTHORITY (I ADDITIONAL DISTRICT JUDGE), ERNAKULAM AND AGAINST THE ORDER DATED 22.12.2020 IN I.A.NO.1 OF 2020 IN R.C.P.NO.203 OF 2019 OF THE RENT CONTROL COURT (III ADDITIONAL MUNSIFF), ERNAKULAM** ## **REVISION PETITIONER:** **NANDAKUMAR T.P., AGED 57 YEARS, ELAMAKKARA, GILBER AVENUE VILLAS, VIVEKANDA NAGAR, PADOM ROAD, ELAMAKKARA, KOCHI-682026.** **BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.C.R.SANISH** ## **RESPONDENT:** **RAJESH GEORGE,** **APARTMENT 72A, BUILDING 10, STREET 27, AREA 4, MANGAF,KUWAIT,REPRESENTED BY HIS POWER OF ATTORNEY HOLDER DR.GEORGE JOSEPH OLIKKARA, AGED 81 YEARS, RESIDING AT OLIKKARA, THOTTAKKAD.P.O, THOTTAKKAD, KOTTAYAM, KERALA-686539.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 02.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **2** **R.C.Rev.No.174 of 2021** ## **O R D E R** ## Anil K. Narendran, J. The petitioner is the respondent-tenant in R.C.P.No.203 of 2019, a petition filed by the respondent herein-landlord under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule building. During the pendency of that R.C.P., the landlord filed I.A.No.1 of 2020, a petition under Section 12 of the Act, seeking an order directing the tenant to pay admitted arrears of rent amounting to Rs.8,30,000/- along with interest at the rate of 12%, within one month and in the event of failure to pay the arrears of rent, without sufficient cause, direct the tenant to put the landlord in vacant possession of petition schedule building. The tenant contested that petition by filing a counter affidavit. The landlord has also filed a reply affidavit. 2. After considering the rival contentions, the Rent Control Court, by the order dated 22.12.2020 in I.A.No.1 of 2020 in R.C.P.No.203 of 2019 directed the tenant to remit the arrears of rent amounting to Rs.8,30,000/- along with 6% **3** ## **R.C.Rev.No.174 of 2021** interest within 30 days from the date of the order. The landlord was entitled to get costs of the petition from the tenant. 3. Challenging the order dated 22.12.2020 of the Rent Control Court in I.A.No.1 of 2020 in R.C.P.No.203 of 2019, the tenant filed R.C.A.No.2 of 2021 before the Rent Control Appellate Authority (I Additional District Judge), Ernakulam, invoking the provisions under Section 18(1)(b) of the Act. That appeal ended in dismissal by the judgment dated 16.03.2021, on the question of maintainability. 4. Feeling aggrieved, the tenant is before this Court with this revision, filed under Section 20 of the Act, challenging the order dated 22.12.2020 in I.A.No.1 of 2020 in R.C.P.No.203 of 2019 of the Rent Control Court and the judgment dated 16.03.2021 in R.C.A.No.2 of 2021 of the Rent Control Appellate Authority. 5. Heard the learned counsel for the petitioner. 6. The issue that arises for consideration in this revision is as to whether any interference is warranted on the **4** ## **R.C.Rev.No.174 of 2021** impugned order dated 22.12.2020 in I.A.No.1 of 2020 in R.C.P.No.203 of 2019 of the Rent Control Court and the judgment dated 16.03.2021 in R.C.A.No.2 of 2021 of the Rent Control Appellate Authority, in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 7. Section 18 of the Kerala Buildings (Lease and Rent Control) Act deals with appeal. As per Section 18(1)(a) of the Act, the Government may, by general or special order notified in the Gazette, confer on such officers and authorities not below the rank of a Subordinate Judge the powers of appellate authorities for the purposes of this Act in such areas or in such classes of cases as may be specified in the order. As per Section 18(1)(b) of the Act, any person aggrieved by an order passed by the Rent Control Court may, within thirty days from the date of such order, prefer an appeal in writing to the Appellate Authority having jurisdiction. In computing the thirty days aforesaid, the time taken to obtain a certified copy of the order appealed against shall be excluded. **5** **R.C.Rev.No.174 of 2021** 8. Section 20 of the Act deals with revision. As per Section 20(1) of the Act, in cases where the Appellate Authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. 9. Section 12 of the Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per subsection (1) of Section 12, 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 **6** **R.C.Rev.No.174 of 2021** 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 sub-section (2) of Section 12, 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 sub-section (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. 10. As per sub-section (3) of Section 12 of the Act, if any tenant fails to pay or to deposit the rent as aforesaid, the **7** ## **R.C.Rev.No.174 of 2021** 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 sub-section (4) of Section 12, 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. Sub-section (1) of Section 12 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 **8** **R.C.Rev.No.174 of 2021** 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. 12. The liability of a tenant under sub-section (1) of Section 12 of the Act, against whom an application for eviction has been 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. The object of the provisions under subsection (1) of Section 12 of the Act is to deny the defaulting tenant the right to contest the application for eviction before the Rent Control Court unless he pays to the landlord, or deposits with the Rent Control Court, 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 **9** ## **R.C.Rev.No.174 of 2021** respect of the building, until the termination of the proceedings before the Rent Control Court. Sub-section (2) of Section 12 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 subsection (2) of Section 12. 13. In **Sidharthan v. Hassankutty Haji [1994 (2) KLT 419]** a Division Bench of this Court was dealing with a case in which the Rent Control Petition was filed by respondents 1 to 11 therein, against revision petitioner and respondents 12 and 13, for eviction on the ground of bona fide need for own occupation. Alleging that the tenant has failed to pay the admitted arrears, the landlord moved the Rent Control Court in I.A. 4010 of 1989, for an order under Section 12(3) of the Kerala Buildings (Lease and Rent Control) Act. After hearing both sides the Rent Control Court by the **10** **R.C.Rev.No.174 of 2021** order dated 20.01.1990 directed the tenants to pay or deposit the entire arrears of rent till that date, as claimed in the petition, on or before 20.02.1990, or to show cause why all further proceedings shall not be stopped and the tenants directed to put the landlords in possession of the petition schedule building. That order was challenged before the Rent Control Appellate Authority. By the order dated 31.05.1990 the Appellate Authority dismissed the petition on account of the failure of the appellants-tenants to comply with the requirement under Section 12(2) of the Act. Hence the tenants filed revision before this Court under Section 20 of the Act. 14. In **Sidharthan** , the Division Bench noticed that, Section 18(l)(b) of the Act enables any person aggrieved by an order of the Rent Control Court to prefer an appeal to the Appellate Authority within 30 days from the date of the order. Section 12(1) inter alia directs that no tenant against whom an order for eviction has been passed shall be entitled to prefer an appeal under Section 18 unless he deposits with the **11** **R.C.Rev.No.174 of 2021** Appellate Authority all arrears of rent admitted by the tenant to be due in respect of the building up to the date of deposit. 15. In **Pochappan Narayanan v. Gopalan [1990 (2) KLT 1]** a Division Bench held that paying or depositing of all arrears of rent admitted by the tenant is not a condition precedent for presenting an appeal under Section 18 of the Act. The appeal gets properly lodged when the same is presented in accordance with that Section. A tenant who does not fulfil the obligations imposed on him by Section 12(1) cannot be visited with the penal consequences contemplated by Section 12(3) unless all the conditions specified by Section 12(2) are satisfactorily fulfilled. The Division Bench observed that the tenant has to be given one more opportunity by showing cause as to why penal consequence contemplated by Section 12(3) should not be imposed on him, even after the court acts in accordance with Section 12(2) and the tenant still commits default. It is only when the court is not satisfied with the cause shown that it can pass an order stopping all further proceedings and directing the tenant to put the **12** **R.C.Rev.No.174 of 2021** landlord in possession of the building. 16. In **Pochappan Narayanan** , the Division Bench quoted with approval the following observations of another Division Bench in the context of Section 12 of the Kerala Buildings (Lease and Rent Control) Act, in **C.V. Xavier and others v. Francis Leonard Pappali [1975 KLT 542]** ; "9.......It is difficult to read Section 12(3) independent of Section 12(2). It is true that Section 12(1) restricts the right of the tenant against whom an application for eviction has been made under Section 11 to contest the application before the Rent Control Court or to prefer appeal unless he had paid or pays to the landlord or deposits in the Rent Control Court or before the Appellate Authority the admitted arrears. It is evident from Section 12(2) that the deposit contemplated under Section 12(1) has to be in accordance with Section12(2), which means that it has to be made only in the manner provided under Section 12(2). Hence the deposit the tenant has to make under Section 12(1) has to be within the time to be fixed by an order under Section 12(2). Even if he has been in default he does not lose the right to contest the application until and unless an order under Section 12(2) is passed and without sufficient cause the tenant fails to comply with it. We have already indicated that this is a safeguard **13** **R.C.Rev.No.174 of 2021** given to a tenant which is necessary in the circumstances of the case. For, if even non-payment of recurring rent without anything more would be sufficient to stop further proceedings and pass an order for eviction it would mean that in every case where a tenant has omitted to pay or delayed payment even by a day not only the arrears of rent due but also the recurring payment he would lose his right to contest the application and would have to receive an order for eviction. The rigor of the provision with regard to an order for eviction without contest has been considerably softened by the safeguards in Section 12(2), as we have said earlier and therefore it is only on the passing of order under Section 12(2) that the obligation to comply with it and the consequences of non-compliance attracting Section 12(3) would arise. We cannot conceive of independent obligations under Sections 12(1) and 12(2) and their application to different sets of cases...." 17. In **Sidharthan** , the Division Bench held that, viewed in the light of the principles laid down in **Pochappan Narayanan** , the impugned order of the Rent Control Appellate Authority is unsustainable, since the appeal cannot be said to be not maintainable merely for the reason that the tenant has failed to deposit the admitted arrears along with **14** **R.C.Rev.No.174 of 2021** the presentation of the appeal. The Appellate Authority has not followed the procedure contemplated under Section 12(2) of the Act, as explained in the aforesaid decision. Therefore, the impugned order is liable to be set aside. 18. Thereafter, in **Sidharthan** , the Division Bench considered the question whether the appeal should be remanded to the Appellate Authority for consideration on merits. The Division Bench was not inclined to adopt that course since it was of the view that the appeal was even otherwise not maintainable. What is challenged in appeal is an interlocutory order in the Rent Control Petition, which itself cannot be said to have determined the rights of parties finally nor can it be said that it affects some right or liability of any party. The Rent Control Court has only directed the tenant to pay the arrears of rent or to show-cause why further proceedings should not be stopped and the landlord put in possession of the building. It is up to the tenant either to pay the arrears or to show-cause why an order directing the tenant to put the landlord in possession should not be passed. **15** **R.C.Rev.No.174 of 2021** Instead of either paying the arrears or showing cause, the tenant has rushed to the Appellate Authority challenging that order. Section 18 of the Act does not permit the tenant to challenge such an order in appeal. ## 19. In **Central Bank of India v. Gokal Chand [AIR** **1967 SC 799]** the Apex Court held that even an interlocutory order passed under Section 37(2) of the Delhi Rent Control Act, 1958 is an order passed under that Act and is subject to appeal, provided it affects some right or liability of any party. The Apex Court observed that the object of Section 38(1) of the Act was to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of Section 38(1) the words "every order of the Controller made under this Act" though very wide, do not include interlocutory orders which are merely procedural and do not affect the rights or liabilities of the parties. The Apex Court further observed that all interlocutory orders regarding summoning of witnesses, discovery, production and inspection of documents, issue of commission for examination of witness, inspection of **16** **R.C.Rev.No.174 of 2021** premises, fixing the date of hearing and the admissibility of a document or the relevancy of a question are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceedings. It was held that these orders regulate the procedure only and do not affect any right or liability of the parties. 20. In **Thomas John v. Kochammini Amma [1991** **(1) KLT 99]** , interpreting the provision contained in Section 18 of the Kerala Buildings (Lease and Rent Control) Act and applying the principles laid down by the Apex Court in **Gokal Chand,** a Division Bench of this Court held that, an order passed on an application to set aside the report of the commissioner and to appoint a fresh commissioner is only a procedural one and does not affect the rights of any party. The matter was again considered in **Sumathi v. Devaran [1991 (1) KLT 453]** , wherein it was held that an order of refusal to try and decide a particular point as a preliminary issue is not an order affecting the rights of any party and is not appealable. After a survey of various judicial **17** **R.C.Rev.No.174 of 2021** pronouncements this Court held that, a conspectus of those decisions leads to the conclusion that, though Section 18(1) (b) is wide in its terms, an appeal does not lie unless the order in question is finally disposing of the proceedings or is one which affects the rights or liabilities of the parties. Apart from the final orders, only those orders which virtually put an end to the proceedings or make it practically impossible for the affected party to get effective relief or to set up or substantiate a defence are rendered appealable. 21. In **Sidharthan** , the Division Bench agreed with the observations in **Thomas John** and concluded that, viewed in the light of the principles stated above the appeal before the Rent Control Appellate Authority was not maintainable. The appeal was directed against a procedural order, which only directed the tenant to pay the arrears of rent or to show cause why an order under Section 12(3) should not be passed directing the tenant to put the landlord in possession. It is not a final order nor does the order affect any right or liability of any party. The Division Bench held that the dismissal of the **18** **R.C.Rev.No.174 of 2021** appeal by the Rent Control Appellate Authority was therefore proper and accordingly, the Division Bench sustained the same, though for different reasons. 22. In **Sidharthan** , on the facts of that case, the Division Bench observed that the tenants were able to postpone payment of considerable amount towards arrears of rent on account of frivolous appeal filed by them. The order of the Rent Control Court was dated 20.01.1990, about 4½ years back. Though the tenants paid some amounts during the pendency of the revision, in pursuance of the order of the Division Bench, there was considerable amount of arrears even after such payments. The Division Bench found that since the direction of the Rent Control Court has not been complied with and even before such compliance the tenants had challenged that order, the only course open is to direct the Rent Control Court to proceed from the stage at which the order dated 20.01.1990 was passed. Therefore, an opportunity has to be given to the tenant to pay or deposit the admitted arrears of rent or to show cause why **19** **R.C.Rev.No.174 of 2021** proceedings should not be stopped and the landlord be put in possession of the building. For the aforesaid reasons, the Division Bench dismissed the revision revision. At the same the Divison Bench directed the Rent Control Court to afford an opportunity to the tenants to pay or deposit the admitted arrears of rent or to show cause why further proceedings should not be stopped and the tenants directed to put the landlord in possession of the building. The Divison Bench has made it clear that while doing so, the direction should be to deposit all the admitted arrears upto the date of that order, excluding the amounts paid during the pendency of the proceedings and that the Rent Control Court shall follow the procedure contemplated in Section 12 of the Act and the principles laid down by this Court in **Pochappan Narayanan [1990 (2) KLT 1]** . 23. Viewed in the light of the law laid down by the Divison Bench of this Court in **Sidharthan** , R.C.A.No.2 of 2021 filed by the petitioner-tenant under Section 18(1)(b) of the Act, challenging the order dated 22.12.2020 in I.A.No.1 **20** ## **R.C.Rev.No.174 of 2021** of 2020 in R.C.P.No.203 of 2019 of the Rent Control Court, Ernakulam, which is an order passed in exercise of its jurisdiction under Sections 12(1) and 12(2) of the Act, is not appealable under Section 18(1)(b) of Act. In such circumstances, the Rent Control Appellate Authority cannot be found fault with in rejecting R.C.A.No.2 of 2021, by the impugned judgment dated 16.03.2021, holding that such an appeal is not maintainable under Section 18(1)(b) of the Act. The only remedy open to a person feeling aggrieved by an order passed by the Rent Control Court or the Appellate Authority, as the case may be, in exercise of its powers under Sections 12(1) and 12(2) of the Act, is to challenge that order invoking Article 227 of the Constitution of India, seeking interference to the extent permissible in exercise of the supervisory jurisdiction of this Court. 24. In such circumstances, this Rent Control Revision fails and the same is accordingly dismissed. 25. The learned counsel for the petitioner-tenant would submit that the tenant proposes to challenge the order dated **21** ## **R.C.Rev.No.174 of 2021** 22.12.2020 in I.A.No.1 of 2020 in R.C.P.No.203 of 2019 of the Rent Control Court by filing an original petition under Article 227 of the Constitution of India. 26. It is made clear that, the dismissal of this Rent Control Revision will not stand in the way of the tenant challenging the aforesaid order of the Rent Control Court, by filing original petition under Article 227 of the Constitution of India, seeking interference to the extent permissible in exercise of the supervisory jurisdiction of this Court. No order as to costs. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr