Niyas Hassan & Farook v. Dr. C.J. George & Others

## **`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 4[TH] DAY OF AUGUST 2022 / 13TH SRAVANA, 1944 OP (RC) NO. 133OF 2022 ``` ``` FOR SPEEDY DISPOSAL OF R.C.P.NO.93 OF 2020 OF THE RENT CONTROL COURT (MUNSIFF), THRISSUR ``` ``` PETITIONERS: ``` ## **`1 NIYAS HASSAN AGED 43 YEARS`** ``` S/O MANJALIVALAPPIL HASSAN, ASHTAMICHIRA DESOM,VADAKKUMBHAGAM VILLAGE,CHALAKUDY TALUK,ASH- TAMICHIRA P.O. THRISSUR DISTRICT, PIN - 680731 ``` ## **`2 FAROOK`** ``` AGED 48 YEARS ``` ``` S/O KOLLIKKATHARA SUBAIDU,KOMBARA DESOM,MA- NAVALASSERYVILLAGE,MUKUNDAPURAM TALUK,IRINJALA- KUDA P.O. THRISSUR DISTRICT.REPRESENTED BY THE FIRST PETITIONER ABOVE THROUGH A POWER OF ATTOR- NEY ORIGINAL OF WHICH IS PRODUCED IN THE COURT BELOW), PIN - 680121 ``` ``` BY ADVS. K.B.PRADEEP HARISANKAR R JEEVAN KRISHNAKUMAR ``` ``` O.P.(RC)No.133 of 2022 ``` 2 ## **`RESPONDENTS:`** ## **`1 DR.C.J. GEORGE AGED 72 YEARS`** - **`S/O CHEMBUKKAVU JOHN, H.NO.90, 9TH STREET,MUSEUM CROSS ,LANE,CHEMBUKKAVU VILLAGE, THRISSUR TALUK. P.O. CHEMBUKKAVU, THRISSUR DISTRICT, PIN - 680020`** - **`2 JOY C. JOHN AGED 68 YEARS`** - **`S/O CHEMBUKKAVU JOHN, H.NO.90, 9TH STREET,MUSEUM CROSS LANE,CHEMBUKKAVU VILLAGE, THRISSUR TALUK. P.O. CHEMBUKKAVU, THRISSUR DISTRICT, PIN - 680020`** - **`3 FRANCIS C.JOHN AGED 61 YEARS`** - **`S/O CHEMBUKKAVU JOHN, H.NO.90, 9TH STREET,MUSEUM CROSS LANE,CHEMBUKKAVU VILLAGE, THRISSUR TALUK. P.O. CHEMBUKKAVU, THRISSUR DISTRICT, PIN - 680020`** - **`4 GARVASIS C. JOHN AGED 57 YEARS`** - **`S/O CHEMBUKKAVU JOHN, H.NO.90, 9TH STREET,MUSEUM CROSS LANE,CHEMBUKKAVU VILLAGE, THRISSUR TALUK. P.O. CHEMBUKKAVU, THRISSUR DISTRICT, PIN - 680020`** - **`5 JOHN CHEMBUKKAVU AGED 39 YEARS`** - **`S/O CHEMBUKKAVU JOHN,H.NO.90,9TH STREET,MUSEUM CROSS LANE,CHEMBUKKAVU VILLAGE, THRISSUR TALUK. P.O. CHEMBUKKAVU, THRISSUR DISTRICT, PIN - 680020`** ``` BY ADVS. ``` ``` Subramanyan P B P.B.KRISHNAN(K/1193/1994) SABU GEORGE(K/000711/1998) MANU VYASAN PETER(K/000652/2013) MEERA P.(K/000191/2019) ``` ``` THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 04.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(RC)No.133 of 2022 ``` 3 ## **JUDGMENT** ## **Anil K. Narendran, J** . The petitioners are the respondents-tenants in R.C.P.No.93 of 2020 on the file of the Rent Control Court (Munsiff), Thrissur, a petition filed by the respondents herein-landlords under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenants from the petition schedule shop rooms. On receipt of notice, the tenant entered appearance and filed Ext.P2 objection in Ext.P1 Rent Control Petition. The landlords filed I.A.No.2 of 2021 in R.C.P.No.93 of 2020, invoking the provisions under Section 12 of the Act, seeking an order directing the tenant to pay the admitted arrears of rent and continue to pay the rent for the subsequent period, during the pendency of the Rent Control Petition. In that interlocutory application (Ext.P4), the tenants filed Ext.P5 objection. After considering the rival contentions, the Rent Control Court passed Ext.P6 order dated 28.03.2022 under Section 12(1) and (2) of the Act, whereby the tenants are directed to deposit the admitted arrears of rent amounting to Rs.7,32,109/- with interest of 6% per ``` O.P.(RC)No.133 of 2022 ``` 4 annum, within a period of four weeks from the date of that order. Challenging the said order of the Rent Control Court, the tenants are before this Court in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 2. On 12.07.2022, when this original petition came up for admission, this Court issued notice to the respondents-landlords. The learned counsel for the petitioners-tenants was permitted to take out notice to the respondents-landlords through their counsel before the Rent Control Court, Thrissur, where R.C.P.No.93 of 2020 is pending consideration. 3. Heard the learned counsel for the petitioners-tenants and also the learned counsel for the respondents-landlords. 4. 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 ``` O.P.(RC)No.133 of 2022 ``` 5 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 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 ``` O.P.(RC)No.133 of 2022 ``` 6 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 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. 5. 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 preferred 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 of rent admitted by the tenant to be due in respect of the building, up to the date of payment or deposit, and to continue to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the ``` O.P.(RC)No.133 of 2022 ``` 7 proceedings before the Rent Control Court or the Appellate Authority, as the case may be. 6. 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. 7. The learned counsel for the respondents-landlords would submit that, after Ext.P6 order dated 28.03.2022 of the Rent Control Court, which is one passed under Section 12(1) and (2) of the Act, the matter was listed before the Rent Control Court on 28.05.2022, 16.06.2022 and 25.06.2022, granting sufficient ``` O.P.(RC)No.133 of 2022 ``` 8 opportunity to the tenants to make payment of the admitted arrears of rent or to show-cause for non-payment. Thereafter, on 01.07.2022, the Rent Control Court has passed orders invoking the provisions under Section 12(3) of the Act, whereby the proceedings in R.C.P.No.93 of 2020 stands stopped. 8. In **Koyakkanari Sivadasan v. K.K. Nirmala [2022** **(3) KHC 375]** this Court held that the legality of an order under Section 12(1) of the Act can be challenged in an appeal filed before the Appellate Authority under Section 18(1)(b) of the Act, against an order passed by the Rent Control Court under Section 12(3) of the Act. 9. The learned counsel for the petitioners-tenants would submit that, in view of the order passed by the Rent Control Court under Section 12(3) of the Act, this original petition may be disposed of, leaving open the legal and factual contentions raised by the petitioners-tenants, without prejudice their right to challenge the said order passed by the Rent Control Court in an appeal filed before the Appellate Authority under Section 18(1)(b) of the Act and also the legality of Ext.P6 order, in view of the law ``` O.P.(RC)No.133 of 2022 ``` 9 laid down by this Court in **Koyakkanari Sivadasan [2022 (3) KHC 375]** . 10. Recording the aforesaid submission made by the learned counsel for the petitioners-tenants, this original petition is disposed of without prejudice to the aforesaid rights of the tenants. The legal and factual contentions raised by both sides are left open to be raised before the appropriate forum, at appropriate stage. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR** **JUDGE** **yd** ``` O.P.(RC)No.133 of 2022 ``` 10 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:`** ``` Exhibit P1TRUE COPY OF THE RENT CONTROL PETITION, RCP 93/2020 DATED 02-11-2020. ``` ``` Exhibit P2TRUE COPY OF THE STATEMENT OF OBJECTIONS DATED NIL ``` ``` Exhibit P3TRUE COPY OF THE LAWYER NOTICE DATED 21- 09-2020 ``` - **`Exhibit P4 TRUE COPY OF THE I.A NO. 2 OF 2021 DATED 08-12-2021 APPLICATION FILED BY RESPONDENTS.`** ``` Exhibit P5TRUE COPY OF THE PETITIONERS OBJECTION DATED NIL TO EXT P-3 ``` - **`Exhibit P6 TRUE COPY OF THE ORDER DATED 28-03-2022 PASSED BY THE RENT CONTROL COURT, THRISSUR IN EXT. P-3 APPLICATION`** ``` Exhibit P7 TRUE COPY OF THE LICENCE DEED DATED 01.07.2019. ``` - **`Exhibit P8 TRUE COPY OF THE SCREENSHOT OF THE WHATSAPP COMMUNICATION DATED 24.07.2020.`** ``` RESPONDENT EXHIBITS: NIL ``` ``` TRUE COPY ``` ``` P.A. TO JUDGE ```