Rajan s/o Narayana Menon v. Kerala Naduvathul Mujahideen Society

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 6TH JANUARY 2011 / 16TH POUSHA 1932 RCRev..No. 416 of 2010(D) ------------------------------RCA.54/2010 of RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT), PALAKKAD RCP.9/2004 of MUNSIFF COURT, OTTAPPALAM .................... ## REVN.PETITIONER/APPELLANT/RESPONDENT -------------------------------------------------- RAJAN, S/O. NARAYANA MENON, SIDHARTHA MEDICALS, ROOM NO.1042, KNM SHOPPING COMPLEX, CHERUPPULASSERY, PALAKKAD. BY ADV. SRI.B.G.BHASKAR SRI.R.O.MUHAMED SHEMEEM SMT.NASEEHA BEEGUM P.S. SRI.P.Z.NIJAZ RESPONDENT(S): RESPONDENT/PETITIONER -------------------------------------------------- KERALA NADUVATHUL MUJAHIDEEN SOCIETY, REPRESENTED BY ITS GENERAL SECRETARY, A.P.ABDUL KHADER MOULAVI, MUJAHID CENTRE ANNIE HALL ROAD, KOZHIKODE P.O., KOZHIKODE-673 001. ADV. SRI V V ASOKAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06/01/2011, ALONG WITH CON. CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. -----------------------------------------------R.C.R Nos.416, 417, 418, 420, 422, 423, 424, 425, 426, 427 & 428 of 2010 -----------------------------------------------Dated this the 6[th] day of January, 2011 ## **ORDER** ## _Pius C. Kuriakose, J_ Under challenge in these revisions filed by the tenants who are in occupation of various rooms in a very large building apparently belonging to the respondents M/s Kerala Nadvathul Mujahideen Society is the judgment of the Rent Control Appellate Authority confirming the orders passed by the Rent Control Court under Section 12(1) and (2) of Act 2 of 1965 directing the various tenants to deposit or pay the arrears of rent mentioned in the order. All the Rent Control Petitions were instituted by the respondent hereinafter referred to as the “landlord/Society” against the revision petitioners who will be hereinafter referred to as the “alleged tenants” invoking the solitary ground of arrears of RCR.416/10 & con. cases -2- rent under Section 11(2)(b). The alleged tenants filed statement of objections in the RCPs disputing the title of the landlord and denying the existence of any landlord-tenant relationship between them. In fact, incidental contentions to the effect that the landlord is not the owner of the building and that the signatory to the RCP is not competent to represent the landlord/society were also raised. The question whether the denial of title raised by the alleged tenant is bona fide was enquired into as a preliminary question by the Rent Control Court. That court would hold that the denial of title raised by the alleged tenant is not bona fide. The Appellate Authority confirmed the above findings of the Rent Control Court and this Court also in revision endorsed the view of both the statutory authorities in this context. It is thereafter that in all the Rent Control Petitions identical applications were filed by the landlord/society under Section 12 seeking a direction RCR.416/10 & con. cases -3- regarding payment or deposit of arrears and a summary order of eviction under Section 12(3) in default of payment. Identical counter affidavits were filed by the alleged tenants contending that they are not liable to pay any rent and much less admitted rent as there is no landlord-tenant relationship between the parties. The Rent Control Court, however, would pass orders under Section 12(1) and (2) directing the alleged tenants to deposit or pay the arrears of rent as alleged by the landlords obviously on the basis of the concluded findings entered in the context of the denial of title raised by the alleged tenants. The alleged tenants preferred appeals to the Rent Control Appellate Authority and the learned Appellate Authority has by the judgments which are impugned in these revisions confirmed the order of the Rent Control Court and dismissed the RCAs. 2. In these revisions under Section 20 various grounds are raised challenging the impugned judgment and we have RCR.416/10 & con. cases -4- heard the submissions of Sri.B.G.Bhasker, the learned counsel for the petitioners and also those of Sri.K.I.Mayankutty Mather, the learned counsel for the respondent. Even though, Sri.B.G.Bhasker addressed arguments on all the grounds raised in the RCR he would give thrust in his submissions to the following points:- 3. The learned Appellate Authority refused to entertain the appeals giving the reason that the impugned orders passed by the Rent Control Court are mere interlocutory orders of a procedural nature which does not affect the civil rights of the parties. According to Sri.Bhasker, the judgment of a Division Bench of this Court in _Sidharthan v. Hassankutty Haji (1994 KHC 363)_ relied on by that court was essentially concerned with the question whether an appeal preferred under Section 18 by a tenant is maintainable in law without pre-deposit of rent in arrears. That question was in fact answered in favour of the tenant RCR.416/10 & con. cases -5- and the learned Division Bench proceeded further under that judgment to hold that the tenant in that case cannot have any legitimate grievance regarding the order that was impugned as the order was purely an interlocutory order. Sri.Bhasker submitted that it was the judgment of the Supreme Court in _Central Bank of India v. Gokul Chand (AIR 1967 SC 799)_ that was relied on by the Division Bench to take such a view. According to the learned counsel, the Supreme Court judgment in _Central Bank of India's case (cited supra)_ could not have been an apposite precedent for the proposition laid down as the order considered by the Supreme Court was an order issuing a commission for local inspection. The order passed by the Rent Control Court which was impugned by the revision petitioners before the Appellate Authority cannot be branded as a mere interlocutory order which does not affect the rights of the revision petitioners, so submitted Sri.Bhasker. According to RCR.416/10 & con. cases -6- the learned counsel, under the impugned order the Rent Control Court has not only found that rent is admittedly in arrears but has else directed the revision petitioners to pay or deposit the arrears quantified. When we drew the attention of Sri.Bhasker to the statutory opportunity given to the tenant under Section 12(3) for showing cause, Sri.Bhaskar would submit that such opportunity will not enable a tenant to contend that he is not liable to pay or deposit arrears of rent or that he has not admitted any rent to be in arrears for the purpose of Section 12(1) and (2). Sri.Bhasker would in this context rely on the judgment of a learned Single Judge of this Court in _A.Ammachi v. Pathumuthu Umma (1972 KLT 401)_ and judgment of another learned Single Judge of this Court in _Mrs.Celine Sourunny v. Mary Paul Abrao (1979 KLT 533)_ . According to him, order under Section 12(1) and (2) directing deposit or payment can be passed only when it can be stated by -7- RCR.416/10 & con. cases merely perusing the pleadings of the parties without holding any enquiry that rent is admittedly in arrears. 4. Sri.Mayankutty Mather, the learned counsel for the respondent would submit at the very outset that all these revisions are liable to be dismissed in limine as they amount to abuse of legal process by the revision petitioners. Mr.Mayankutty Mather would draw our attention to the judgment of this Court in RCR.235/07 series and submit that this Court has finally held that there is a landlord-tenant relationship between the revision petitioners and the revision respondent and also that the denial of landlord's title raised by the revision petitioners is bereft of any bona fides. In the teeth of such concluded findings entered by this Court, it is futile for the revision petitioners to contend that they are not liable to pay the rent which is alleged by the respondent to be due from them. The petitioners may not be permitted to resurrect an issue which has been finally RCR.416/10 & con. cases -8- decided by this Court. When we enquired of Sri.Mayankutty Mather as to the scope of the show cause proceedings envisaged by Section 12(3) of Act 2 of 1965, the learned counsel's answer was that on the facts of the present case, the show cause proceedings will be an unnecessary exercise as the finding by this Court that there is landlord-tenant relationship between the parties and that the denial of title raised by the revision petitioners is not bona fide is binding not only on the parties but also on the Rent Control Court. 5. We have anxiously considered the rival submissions addressed at the Bar. It is profitable to extract the entire Section 12 as follows:- “S.12:- Payment or deposit of rent during the pendency of proceedings for eviction:- (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 RCR.416/10 & con. cases -9- 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 upto 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. (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): Provided that 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. (3) 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 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. (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 RCR.416/10 & con. cases -10- behalf.” 6. It is clear to our mind that on noticing that there is no compliance by the tenant of the order under Section 12 (1) and (2) for deposit or payment of arrears of rent admitted the court is bound to afford opportunity to the tenant to show cause against passage of the summary order of eviction under Section 12(3). Sri.Bhasker is certainly right when he submits that ordinarily orders for deposit of admitted arrears as envisaged by Section 12(1) and (2) are expected to be passed by the Rent Control Courts on a perusal of the pleadings raised by the parties and other materials which can be treated as part of the pleadings. A reading of the impugned orders passed by the Rent Control Court will show that the court has proceeded to discuss and take a decision on the question whether rent is admittedly in arrears on the basis of the finding that the denial of title raised by the alleged tenant is not bona fide. Nevertheless RCR.416/10 & con. cases -11- the order passed by the Rent Control Court is an order passed under Section 12(1) and (2) which cannot be followed up by a summary order of eviction under Section 12(3) without affording opportunity to the petitioners to show cause against the passage of the summary order. As statutory opportunity is given for showing cause against passage of summary order of eviction under Section 12(3), it may be possible for a tenant in a given case to convince the Rent Control Court that the summary order of eviction passed under Section 12(3) is not liable to be passed as the rent is not admittedly in arrears. The order passed by the Rent Control Court in these cases and the impugned judgment of the learned Appellate Authority will not stand in the way of the revision petitioners showing as a cause before the Rent Control Court, that they have no liability to pay rent. Whether the cause shown by the revision petitioners is sufficient or not is a matter for the Rent RCR.416/10 & con. cases -12- Control Court to decide on the basis of all relevant materials. According to us, the petitioners does not have to be aggrieved by the orders passed by the Rent Control Court and under the impugned judgments as it is only orders under Section 12(1) and (2) that are presently passed against them. If the Rent Control Court notices noncompliance with the present orders on the day to which the cases are posted, that court will give a short adjournment (at least three days) so that the revision petitioners can show cause against the prospective summary orders of eviction under Section 12(3). Once the revision petitioners show cause, the Rent Control Court will decide at the earliest as to whether the cause shown by the revision petitioners is sufficient to enable the revision petitioners to avoid a summary order of eviction under Section 12(3). We are sure that decision will be taken by the learned Rent Control Court on the sufficiency of cause if any shown by the RCR.416/10 & con. cases -13- revision petitioners, taking into account all relevant materials in the light of law as found in Section 12 of Act 2 of 1965 and binding judicial precedents. We are therefore, in agreement with the learned Appellate Authority that the Appeals were not maintainable in law. These revisions are dismissed. No costs. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/-