Rajeevan v. Joy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 22[ND] DAY OF OCTOBER 2021 / 30TH ASWINA, 1943 O.P.(RC)NO.104 OF 2021** **I.A.NO.6 OF 2021 IN R.C.A.NO.64 OF 2020 OF THE II RENT CONTROL APPELLATE AUTHORITY, THRISSUR** **ARISING OUT OF THE** **ORDER DATED 31.01.2020 IN R.C.P.NO.127 OF 2014** **OF THE RENT CONTROL COURT (MUNSIFF), THRISSUR** **PETITIONER:** **RAJEEVAN, AGED 61 YEARS, S/O. THEKKEVARIYAH E.SANKARA WARRIER, KEERANKULANGARA DESOM, CHEMBUKAVU VILLAGE, THRISSUR TALUK** **BY ADVS. LINDONS C.DAVIS E.U.DHANYA RAJITH DAVIS** ## **RESPONDENT:** **JOY,** **AGED 57 YEARS, S/O. KANNAMPUZHA DANIEL, THOTTATHIL LANE, CHELAKKOTTUKARA DESOM, CHIYYARAM VILLAGE, THRISSUR TALUK, PIN-680 005** **THIS O.P.(RENT CONTROL) HAVING COME UP FOR ADMISSION ON 22.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(RC)NO.104 OF 2021 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner filed R.C.P.No.127 of 2014 on the file of the Rent Control Court (Munsiff), Thrissur, under Sections 11(3) and 11(4)(i) [sic:11(4)(vi)] of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the respondent hereintenant from the petition schedule building. The tenant entered appearance and filed counter statement. The Rent Control Petition was allowed by Ext.P1 order dated 31.01.2020, granting order of eviction under Section 11(3) of the Act and the tenant was directed to give vacant possession of the petition schedule building within two months from the date of that order. The order of eviction sought for under Section 11(4)(v) was however declined. Challenging the order of eviction granted by the Rent Control Court under Section 11(3) of the Act, the tenant filed R.C.A.No.64 of 2020 before the Rent Control Appellate Authority (District Judge), Thalassery under Section 18(1)(b) of the Act. In that appeal, the landlord filed I.A.No.6 of 2021, Ext.P7 interlocutory application, under Section 12 of the Act, seeking an order directing the tenant to deposit admitted arrears of rent and to continue to pay the rent O.P.(RC)NO.104 OF 2021 3 for the subsequent period and in case of default to stop the proceedings under Section 12(3) of the Act. In that interlocutory application the respondent-tenant filed Ext.P8 objection dated 28.07.2021. The tenant has also filed Ext.P10 statement showing the admitted arrears of rent. Now, the grievance of the petitioner is that the Appellate Authority is yet to pass orders on Ext.P7 application. His further grievance is regarding delay in final disposal of R.C.A.No.64 of 2020. 2. Heard the learned counsel for the petitioner. 3. Considering the nature of relief proposed to be granted, service of notice on the respondent-tenant is dispensed with. 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 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 A ppellate A uthority, as the case may be, all arrears of rent O.P.(RC)NO.104 OF 2021 4 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 c ourt 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 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 O.P.(RC)NO.104 OF 2021 5 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. Section 12(1) 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 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. Similarly, Section 12(1) of the Act enjoins a tenant, in order 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, to pay the landlord, or deposits with the Appellate Authority, all arrears of rent admitted by the tenant to be due in O.P.(RC)NO.104 OF 2021 6 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 Appellate Authority. 6. In order to have recourse to the provisions of Section 12(1) of the Act, it is a pre-requisite that, there should be an application for eviction made by a landlord under Section 11, or an appeal filed by the tenant under Section 18 against any order made by the Rent Control Court on such an application made by a landlord under Section 11. Without satisfying any one of the conditions given in Section 12(1), the landlord cannot recourse to the provisions of Section 12 of the Act. 7. In **Joy Daniel v. N.A. Ibrahimkutty and others [2020 (2) KHC 543]** , on the question as to whether Section 12(1) of the Kerala Buildings (Lease and Rent Control) Act casts an obligation on the tenant to pay the admitted arrears of rent in order to contest an appeal filed challenging an order under Section 12(3), which is to the effect of stoppage of the proceedings and directing the tenant to put the landlord in possession of the premises, a Full Bench of this Court held that, Section 12(1) provides such an O.P.(RC)NO.104 OF 2021 7 obligation only in the case of an application under Section 11 or in the case of an appeal preferred under Section 18 against an order passed by the Rent Control Court on an application under Section 11. 8. In **Pochappan Narayanan v. Gopalan [1990 (2) KLT 1]** one of the contentions put forward by the learned counsel for the landlord was that, payment or deposit of arrears of rent admitted by the tenant to be due is a condition precedent which has to be satisfied by the tenant, before he can prefer an appeal against an order of eviction made by the Rent Control Court. Reliance was placed on the language of Section 12(1) of the Kerala Buildings (Lease and Rent Control) Act, which provides that no tenant shall be entitled to prefer an appeal under Section 18 against an order of eviction made by the Rent Control Court unless he has paid or deposited all arrears of rent admitted by the tenant to be due till the date of preferring the appeal. The Division Bench, found that the right of appeal against an order of eviction made by the Rent Control Court is not conferred by Section 12 of the Act. The right of appeal is conferred by Section 18. Section 12 imposes certain obligations on the tenant of paying or depositing admitted O.P.(RC)NO.104 OF 2021 8 rent during the pendency of the proceedings for eviction, and the consequences for committing default in fulfilling those obligations. The word 'prefer' used in Section 12(1) is not to convey the same meaning with which it has been employed in Section 18, which confers a right of appeal against an order of the Rent Control Court. The word 'prefer' not having been defined in the Act, it has to be assigned the ordinary meaning having regard to the context in which the said word is used. The meaning of the word 'prefer' given in Black's Law Dictionary, Fifth Edition is “t o bring before; to prosecute; to try; to proceed with". It is therefore clear that the word 'prefer' can be used in the context of Section 12(1) for conveying the lodging of the appeal or prosecution of the appeal or proceeding with the appeal. Section 12(3) of the Act, which speaks of the consequences of the failure to pay or deposit the rent as contemplated by Sections 12(1) and (2), says that all further proceedings should be stopped and an order made directing the tenant to put the landlord in possession of the building. The consequence contemplated is not dismissal of the appeal on the ground that it is not maintainable but only to stop all further proceedings in the appeal. Therefore, the Division Bench held that O.P.(RC)NO.104 OF 2021 9 the word 'prefer' has been used in Section 12(1) of the Act not to convey the lodging of the appeal but to convey that the appeal already lodged in accordance with Section 18 shall not be proceeded with or prosecuted further if the conditions specified in Section 12(1) are not fulfilled. 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 Section 18 of the Act. 9. 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 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, 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 or the Appellate Authority, as the case may be. O.P.(RC)NO.104 OF 2021 10 10. 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. 11. Section 12(2) 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 Section 12(2). As per the statutory mandate of Section 12(1), on an application filed by the landlord under Section 12, the Rent Control Court or the Appellate O.P.(RC)NO.104 OF 2021 11 Authority, as the case may be, has to order payment or deposit of arrears of rent admitted by the tenant to be due in respect of the petition schedule building, up to the date of payment or deposit and the tenant shall also be directed to 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 or the Appellate Authority, regardless of the relief sough for in that application. Therefore, even in a case in which the relief sought for in an application filed under Section 12 of the Act is confined to payment or deposit of admitted arrears of rent up to the date of application or up to the date of order to be passed in that application, the Rent Control Court or the Appellate Authority, as the case may be, is statutorily bound to pass an order directing the tenant to pay or deposit admitted arrears of rent up to the date of payment or deposit and continue to pay or deposit rent which may subsequently become due, until termination of that proceedings. 12. 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 be, shall, unless the tenant O.P.(RC)NO.104 OF 2021 12 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. Since I.A.No.6 of 2021 in R.C.A.No.64 of 2020 is still pending consideration, this original petition is disposed of by directing the Rent Control Appellate Authority, Thalassery, to consider and pass appropriate orders on the said interlocutory application filed by the petitioner-landlord under Section 12 of the Act, as expeditiously as possible, at any rate, within a period of one month from the date of production of a certified copy of this judgment, strictly in accordance with the provisions under Section 12 of the Act. Thereafter, the Appellate Authority shall finally dispose of R.C.A. No.64 of 2020, as expeditiously as possible, at any rate, within a further period of five months. ## **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P. G. AJITHKUMAR, JUDGE** MIN 13 ## O.P.(RC)NO.104 OF 2021 The word “Thalassery” in the first paragraph (line No.15) and in the operative portion (line No.3) of the judgment dated 22.10.2021 in O.P.(RC) No.104 of 2021 in corrected as “Thrissur” as per the order dated 22.11.2021 in O.P.(RC) No.104 of 2021. **Sd/-** **DEPUTY REGISTRAR** O.P.(RC)NO.104 OF 2021 14 ## **APPENDIX OF O.P.(RC) NO.104 OF 2021** **PETITIONER EXHIBITS** - **Exhibit P1** **A TRUE COPY OF THE ORDER DATED 31.01.2020 IN R.C.P.NO.127/2014 OF THE RENT CONTROL COURT, THRISSUR** - **Exhibit P2** - **A COPY OF THE APPEAL MEMORANDUM IN RCA NO.64/2020 FILED BEFORE THE IIND RENT CONTROL APPELLATE AUTHORITY, THRISSUR** - **Exhibit P3** - **A TRUE COPY OF THE IA NO.1/2020 IN RCA NO.64/2020 FILED BEFORE THE IIND RENT CONTROL APPELLATE AUTHORITY, THRISSUR** - **Exhibit P4 A TRUE COPY OF THE COUNTER AFFIDAVIT IN IA NO.1/2020 IN RCA NO.64/2020 FILED BEFORE THE IIND RENT CONTROL APPELLATE AUTHORITY, THRISSUR** - **Exhibit P5 A TRUE COPY OF THE ORDER DATED 10.03.2021 IN IA NO.1/2020 IN RCA NO.64/2020 PASSED BY RENT CONTROL APPELLATE AUTHORITY, THRISSUR** - **Exhibit P6 A COPY OF THE JUDGMENT DATED 18.05.2021 IN OP (RC) NO.60/2021 PASSED BY THIS HONOURABLE COURT** - **Exhibit P7 A TRUE COPY OF THE IA NO.6/2020 IN RCA NO.64/2020 FILED BEFORE THE IIND RENT CONTROL APPELLATE AUTHORITY, THRISSUR** - **Exhibit P8 A COPY OF THE OBJECTION FILED IN IA NO.6/2020 IN RCA NO.64/2020 FILED BY THE RESPONDENT BEFORE THE IIND RENT CONTROL APPELLATE AUTHORITY, THRISSUR** 15 ## O.P.(RC)NO.104 OF 2021 ## **Exhibit P9** **A TRUE COPY OF THE STATEMENT FILED BY THE PETITIONER DATED 06.08.2021 FILED BY THE RESPONDENT BEFORE THE IIND RENT CONTROL APPELLATE AUTHORITY, THRISSUR** **Exhibit P10** **A TRUE COPY OF THE STATEMENT RECEIVED ON 23.09.2021 FILED BY THE RESPONDENT BEFORE THE IIND RENT CONTROL APPELLATE AUTHORITY, THRISSUR**