Prasad Kumar K.D. v Subaida Aboobacker

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 18[TH] DAY OF JULY 2022 / 27TH ASHADHA, 1944** ## **R.C.REV.NO.40 OF 2022** **AGAINST THE JUDGMENT DATED 11.01.2022 IN R.C.A.NO.63 OF 2019 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY ERNAKULAM WHICH ARISES FROM THE ORDER DATED 21.02.2019 IN R.C.P.NO.30 OF 2018 ON THE FILE OF THE RENT CONTROL COURT, ERNAKULAM** ## **REVISION PETITIONER:** **PRASAD KUMAR K.D. AGED 45 YEARS S/O.LATE DAYANANDAN, PROPRIETOR, M/S.SPRINT ADS, CC 39/4919, KARIMPATTA CROSS ROAD, PALLIMUKKU, ERNAKULAM, KOCHI-682 016. BY ADV. K.BIJU** ## **RESPONDENTS:** **SUBAIDA ABOOBACKER, 65 YEARS, D/O.RAVU HAJI, KOMHATH HOUSE, KADIKKAKD P.O., PUNNAYURKULAM, CHAVAKKAD, THRICHUR DISTRICT, PIN-681 567. BY ADVS. BASIL MATHEW NINAN JOHN SANJANA SARA VARGHESE ANNIE AJAY KRISHNAN S. SIVAPRIYA AJITH** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 06.07.2022, THE COURT ON 18.07.2022 DELIVERED THE FOLLOWING:** 2 R.C.R.No.40 of 2022 ## **O R D E R** ## Ajithkumar, J The respondent-tenant in R.C.P.No.30 of 2018 on the file of the Rent Control Court (3[rd] Addl.Munsiff), Ernakulam is the revision petitioner. The respondent-landlord filed the R.C.P seeking eviction of the petitioner under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court as per the order dated 21.02.2019 stopped all further proceedings in the R.C.P and directed the petitioner to put the respondent in vacant possession of the petition schedule shop room under Section 12(3) of the Act. The petitioner filed an appeal under Section 18(1)(b) of the Act challenging that order which ended in dismissal. Feeling aggrieved thereof, the petitioner has filed this revision under Section 20 of the Act. 2. On 17.02.2022, this revision was admitted, and notice was ordered to the respondent. On 23.02.2022, the undertaking made by the respondent that she would not insist on any coercive steps in E.P.No.240 of 2019 in R.C.P No.30 of 2018, for a period of three weeks was recorded. 3. Heard the learned counsel appearing for the petitioner 3 R.C.R.No.40 of 2022 and the learned counsel appearing for the respondent. 4. There is no dispute with regard to the rate of rent or the rent in arrears. As per the order in I.A.No.4899 of 2018 which was filed under Section 12 of the Act by the respondent, the Rent Control Court on 20.08.2018 directed the petitioner to pay the arrears of rent admitted to be due for the period from 01.07.2017 to 30.08.2018 amounting to Rs.62,300/- within a period of 30 days and also to continue to pay the rent for the subsequent period. It is contended by the respondent that the said amount of Rs.62,300/- was not deposited within a period of 30 days, but it was deposited after a delay of 45 days. 5. The respondent subsequently filed I.A No.1000 of 2019 on 05.02.2019 contending that the rent fell due after 01.09.2018 was not paid or deposited in terms of the order dated 20.08.2018 and therefore the petitioner was liable to be evicted under the provisions of Section 12(3) of the Act. The learned Counsel appearing for the petitioner would contend that without affording sufficient opportunity to make payment of the rent found due or to offer an explanation for the nonpayment, the order dated 21.02.2019 under section 12(3) of the Act was passed, hence that 4 ## R.C.R.No.40 of 2022 order is illegal. It is also the contention of the learned counsel that while proceeding on I.A No.1000 of 2019, the Rent Control Court ought to have given a direction to make payment of a quantified amount, and only if there occurred failure thereafter, an order under Section 12(3) could be passed. 6. The learned counsel appearing for the respondent on the other hand would contend that the order for payment of rent for the period from 01.09.2018 in terms of the provisions of Section 12(1) of the Act was already passed on 20.08.2018 in I.A No.4899 of 2018 and the failure to comply with the same was enough to attract provisions of Section 12(3) of the Act. It was also urged that I.A No.1000 of 2019 was filed only to remind the court for initiating action for stopping the proceedings and not for any action under Section 12(1) of the Act. 7. Once an order under Section 12(1) of the Act is passed by the Court, it has effect till the termination of the proceedings. Under the order dated 20.08.2018, the petitioner has been obliged to make payment of the rent that falls due each month. It is beyond dispute that the petitioner did not make payment of the rent from 01.09.2018 till the filing of I.A No.1000 of 2019 or 5 ## R.C.R.No.40 of 2022 passing of order under Section 12(3) of the Act on 21.02.2019. It is seen that after filing the said application on 05.02.2019, two opportunities were given to the petitioner. He did not file any objection nor made deposit of the rent admittedly due. The question then is whether there occurred denial of opportunity to offer explanation as provided under Section 12(3) of the Act. 8. **In Suvarna v. Ibrahimkutty and others [2021 (6) KHC 250]** this Court considered in detail the question regarding the method of and sufficiency of opportunity to be provided to the tenant under Section 12(3) of the Act. It was held, “In **Shaji M. v. SNDP Sakhayogam No.610, Alappuzha and Another (2020 (2) KHC 574 : 2020 (2) KLT 866 : ILR 2020 (2) Ker. 389 : 2020 (2) KLJ 820)** a Full Bench of this Court held that, in view of the principle evolved in **Narayanan (2004 KHC 1238 : 2004 (3) KLT 955 : ILR 2004 (3) Ker. 161)** , from the language of Section 12(3) of the of the Kerala Buildings (Lease and Rent Control) Act, and from the legislative intent, it is not for the Rent Control Court or the Appellate Authority to issue any separate notice to the tenant to enable him to show sufficient cause for not depositing the admitted arrears of rent. Instead, when the time fixed for deposit of the arrears of rent runs out and the tenant has not deposited the same, the Rent Control Court or 6 R.C.R.No.40 of 2022 the Appellate Authority, as the case may be, is not expected to pass an order ordering ejectment of the tenant forthwith. The Rent Control Court or the Appellate Authority, as the case may be, should normally adjourn the hearing of the case to a date beyond the date fixed for deposit, thereby allowing reasonable time to the tenant to show sufficient cause for not depositing the rent, if he has committed default in payment of the arrears of rent. The interpretation made and the directions issued in Narayanan is more apt and appropriate to be held, as a view which can be legally sustained. The opportunity to be afforded to the tenant to show sufficient cause with respect to the failure to pay or deposit rent, as directed in Section 12(1) and (2), within the date stipulated, is not an empty formality. The principles of natural justice would mandate that the Rent Control Court or the Appellate Authority, as the case may be, should afford the tenant with such an opportunity. 26. In **Shaji M.** , on the question as to whether the Rent Control Court or the Appellate Authority is required to issue any specific notice to the tenant to show cause, the Full Bench noticed that, the consequences provided under Section 12(3) of the Act follows when there occurred a default in complying with the direction for deposit or payment of the admitted arrears. Therefore, on the date stipulated for effecting such payment, by virtue of the order passed under 7 R.C.R.No.40 of 2022 Section 12(1) and (2), the tenant becomes fully aware that, unless sufficient cause has not been shown for the default committed, the consequence of stoppage of the proceedings and direction to put the landlord in possession of the building, would follow automatically. 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 of a further opportunity after the last date stipulated for effecting the payment or the deposit, is 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; and is the natural consequence that the Rent Control Court or the Appellate Authority, as the case may be, should stop the proceedings and direct the tenant to put the landlord in possession of the building. Such a procedure, if followed, would be sufficient compliance for providing reasonable opportunity satisfying the statutory requirement contained in Section 12(3). Hence the Full Bench concluded that the decision in **Narayanan (2004 KHC 1238 : 2004 (3) KLT 955 : ILR 2004 (3) Ker. 161)** , eventhough passed without noticing the decision in **Pochappan Narayanan (1990 KHC 324 : 1990 (2) KLT 1 : 1990 (1) KLJ 704 : ILR 1990 (3) Ker. 1105 : AIR 1991 Ker. 154 : 1990 (2) Ren. CR 223)** had laid the correct law. The Full Bench noticed that its view 8 R.C.R.No.40 of 2022 in this regard has got support from the decision of the Apex Court in **Sankaran Pillai v. V. P. Venuguduswami (1999 KHC 1291 : (1999) 6 SCC 396 : AIR 1999 SC 3060 : 1999 AIR SCW 2995 : JT 1999 (5) SC 385)** , the decisions of this Court in **C. V. Xavier v. Francis Leonard Pappali (1975 KHC 52 : 1975 KLT 542)** and **Narayanan v. Muraleedhara Maran (1964 KHC 137 : 1964 KLT 509 : 1964 KLJ 605)** . 27. In **Sankaran Pillai v. V. P. Venuguduswami** the Apex Court held that, it is for the tenant to show sufficient cause and not for the Rent Control Court or the Appellate Authority, as the case may be, to issue any show cause notice calling upon the tenant to show cause why an order of eviction shall not be passed. 28. In **C. V. Xavier v. Francis Leonard Pappali** a Division Bench of this Court held that, the reasonable opportunity contemplated under Section 12(3) of the Act must be a reasonable and real opportunity and is not an empty formality and that, if the tenant is not given such opportunity to show sufficient cause, an order passed under Section 12(3) would be unsustainable. 29. In **Narayanan v. Muraleedhara Maran** a Division Bench of this Court held that, when the Court had passed an order directing a party before it to do a particular thing, in default of which certain consequence is to follow, if the party 9 R.C.R.No.40 of 2022 is to be relieved of the consequences of any non - compliance of that order, he has to make a specific motion thereof showing sufficient cause for his non - compliance of the order and making appropriate prayer therein. Otherwise, the order would work itself out and the default to comply with it will bring the appointed consequences on the tenant.” 9. In the light of the law stated above, it cannot be said that there occurred a denial of opportunity to the petitioner to offer his explanation. Enough time to make payment of the rent due from 01.09.2018 was obtained by the petitioner. He did not make payment in time. He did not furnish any reason for such non-payment also. Therefore, the order of the Rent Control Court dated 21.02.2019 to stop the proceedings cannot be held incorrect. 10. The learned counsel appearing for the petitioner submitted that as per the direction of the appellate authority, an amount of Rs.58,500/-was deposited towards arrears of rent. Later, Rs.40,000/- and Rs.13,500/- were deposited on 24.08.2020 and 08.02.2021 respectively towards arrears of rent. It is contended that in the light of the said payments, the order under Section 12(3) of the Act cannot be sustained. 10 R.C.R.No.40 of 2022 11. In **Venugopalan v. Raphael [1974 KLT 640]** this Court noticed that, the deposit of the admitted arrears enjoined by Section 12, is a condition precedent to the tenant entering on his defence and contesting the application for eviction, or an appeal filed therefrom. The scope and purpose of the deposit of arrears of rent enjoined by Section 12 are fundamentally different from the scope and the purpose of the deposit envisaged by Section 11(2) (c) of the Act. They provide for different contingencies though the consequence of the non-compliance of the mandates of either Section is eviction. An order of eviction passed under Section 12(3) of the Act is not amenable to correction under Section 11(2) (c), which relates to orders of eviction passed under Section 11(2) (b) only. It was further held that even assuming that for the purpose of execution of an order under Section 12(3) of the Act, it can be equated with and treated as the same, as one under Section 11 of the Act, the consequence enjoined by an order under Section 12(3) for failure to deposit the admitted arrears in time cannot be vacated or obliterated by payment at any subsequent stages or periods. 12. In **Ramkumar J. v. Ashok Jacob [2022 (1) KHC** 11 R.C.R.No.40 of 2022 ## **495]** this Court held, 42. As already noticed hereinbefore, the consequences provided under S.12(3) of the Act follow when there occurred a default by the tenant in complying with the direction in an order passed under S.12(1) and (2), for deposit or payment of the admitted arrears of rent. On the date stipulated for effecting such payment, by virtue of that order, the tenant becomes fully aware that, unless sufficient cause has not been shown for the default committed, the consequence of stoppage of the proceedings and direction to put the landlord in possession of the building, under S.12(3) would follow automatically. 43. As held by a Division Bench of this Court in **Venugopalan [1974 KLT 640]** and reiterated in **Davy [1999 (3) KLT 434]** even assuming that for purpose of execution an order under Section 12(3) of the Act can be equated with and treated as the same, as one under Section 11 of the Act, the consequence enjoined by an order under Section 12(3) for failure to deposit the admitted arrears in time cannot be vacated or obliterated by payment at any subsequent stages or periods. The law laid down by a Three - Judge Bench of the Apex Court in **Nasiruddin [(2003) 2 SCC 577 : AIR 2003 SC 1543]** is to the effect that, where the Statute does not provide either for extension of time or to condone the default in depositing the rent within the 12 R.C.R.No.40 of 2022 stipulated period, the Court does not have the power to do so” 13. In view of the position of law as stated above, subsequent payment of arrears of rent will not obliterate an order under Section 12(3) of the Act. Therefore the contention of the learned counsel appearing for the petitioner in this regard can only be turned down. 14. In view of what are stated above, we are of the view that the order of the Rent Control Court under Section 12(3) of the Act, which has been confirmed by the Appellate Authority by giving detailed reasons in its judgment dated 11.01.2022 is not liable to be interfered with in the exercise of jurisdiction of this court under Section 20 of the Act. Hence this revision fails. We dismiss the same. ## **Sd/-** ## **ANIL K.NARENDRAN JUDGE** **Sd/-** **P.G. AJITHKUMAR JUDGE** PV