R.C.Rev.No.37 of 2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 14[TH] DAY OF DECEMBER 2021 / 23RD AGRAHAYANA, 1943** **R.C.REV.NO. 37 OF 2020** **AGAINST THE JUDGMENT DATED 30.11.2019 IN R.C.A.NO.52 OF 2018 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICDT JUDGE-VII), ERNAKULAM AND THE ORDERS DATED 04.10.2018 AND 18.06.2018 IN I.A.NO.1145 OF 2018 IN R.C.P.NO.32 OF 2016 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF), ERNAKULAM** ## **REVISION PETITIONER:** **RUBIL P.M., AGED 42 YEARS, S/O. ABDUL MAJEED, 13/412, KOCHANGADI, THOPPUMPADY, KOCHI-682005. BY ADVS. SRI.S.B.PREMACHANDRA PRABHU SRI.K.B.RAJESH** ## **RESPONDENTS:** **1 SEENA W/O. AKBAR, A/D, STAR GARDENS, SUBHASH CHANDRA BOSE ROAD, KADAVANTHRA, KOCHI-682019. 2 SHYNI NAVAS, W/O. NAVAS, CC 5/244, RAMACHAMPARAMBIL, MATTANCHERY, KOCHI-682002. BY ADVS. SRI.N.RATHEESH SMT.SUMA RATHEESH** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 06.12.2021, THE COURT ON 14.12.2021 DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.37 of 2020 ## **O R D E R** Ajithkumar, J. Tenant is the revision petitioner. The respondent-landlord filed R.C.P.No.32 of 2016 before the Rent Control Court (Additional Munsiff), Kochi, seeking eviction of the petitioner from the petition schedule shop room under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The respondent-landlord also filed I.A.No.1145 of 2018 under Section 12 of the Act. The Rent Control Court as per order dated 18.06.2018 directed the petitioner to deposit the admitted arrears of rent and to continue to pay the rent, which subsequently becomes due without default till the final disposal of the R.C.P. The petitioner did not comply with the order and therefore the Rent Control Court as per order dated 04.10.2018 directed under Section 12(3) of the Act to put the respondentlandlord in vacant possession of the petition schedule shop room. The petitioner filed an appeal under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge-VII), Ernakulam as R.C.A.No.52 of 2018. The 3 R.C.Rev.No.37 of 2020 appeal was dismissed. Feeling aggrieved, the petitioner invoking Section 20 of the Act filed this revision petition. 2. The respondent-landlord appeared on notice. As per order dated 13.02.2020 operation of the order of eviction was stayed for a week. The order was extended from time to time. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 4. The respondents filed R.C.P.No.32 of 2016 for eviction on the ground of bonafide need. In the objection filed in the R.C.P. the petitioner has admitted that the monthly rent was Rs.2,200/-, and he averred that rent till March 2017 was paid. While so, I.A.No.1145 of 2018 was filed by the respondents for a direction to pay or deposit admitted arrears of rent and to continue to pay the rent that becomes subsequently due, till the final disposal of the R.C.P. The petitioner filed an objection to that I.A. In that objection also, the petitioner admitted that the rent was enhanced to Rs.2,200/-. He, however, set forth a contention that the rent was enhanced on 4 R.C.Rev.No.37 of 2020 an understanding that he would be permitted to continue as a tenant in the petition schedule shop room for a further period of seven years. He would contend that since the respondents filed eviction petition in violation of the said understanding, he was not obliged to pay the rent at the enhanced rate. He accordingly wanted to adjust the excess rent paid. 5. The learned counsel for the petitioner would contend that the Rent Control Court or the Appellate Authority did not consider the aforementioned contention in its proper perspective and that resulted in passing of the impugned orders. The learned counsel for the petitioner would further contend that as per the directions of the Appellate Authority, entire rent was paid and that aspect also was not taken into account by the Appellate Authority before dismissing the appeal. The learned counsel placed reliance on the decision in **Sadique v. Mohammed Umair [2017 (3) KLT 759]** in support of his submission that no sufficient opportunity to show cause was given to him before ordering eviction under Section 12(3) of the Act and therefore there occurred violation of the 5 R.C.Rev.No.37 of 2020 principles of natural justice. 6. From the submissions of the learned counsel for either side two points arise for consideration; (i) whether admission regarding rate of rent made by the petitioner can be acted upon, and (ii) whether the order passed by the Rent Control Court under Section 12(3) of the Act suffers from vice of illegality. 7. In the rent control petition there has not been any assertion regarding enhancement of rent. It was stated that the tenancy was created on 12.01.2012 and the mutually agreed monthly rent was Rs.1,500/-. The petitioner stated in the objection that he was continuing as a tenant as per a lease agreement dated 10.01.2017 and the monthly rent being paid was Rs.2,200/-. He further stated that even after receipt of a lawyers notice dated 23.08.2016 he paid rent at the rate of Rs.2,200/-. In the counter affidavit filed by the petitioner in I.A.No.1145 of 2018, he added that at the time of enhancing the rent as Rs.2,200/-, there was an understanding that he would be permitted to continue in possession of the tenanted 6 R.C.Rev.No.37 of 2020 premises for seven more years. It is his contention that having the respondents filed the R.C.P. in violation of the said understanding, the petitioner was liable to pay rent at the rate of Rs.1,500/- only. 8. Both the Rent Control Court and the Appellate Authority did not accept the said contention. When the petitioner admits that there was a written contract agreeing to pay Rs.2,200/- as rent per month, the associated clause modifying it, if any, which is not admitted by the respondents should be proved by adducing reliable evidence. When it is his contention that in the lease agreement entered into on 10.01.2017 there is a clause that allows the tenant to continue in possession of the building for seven more years, the said fact can be proved only by producing the lease agreement. The document has not been produced, nor has he taken any steps to get it produced. In the said circumstances, it cannot be said that the findings of the authorities below that the admitted monthly rent was Rs.2,200/- suffer from any illegality, impropriety or irregularity. 7 R.C.Rev.No.37 of 2020 9. 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 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 8 R.C.Rev.No.37 of 2020 (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 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. 9 R.C.Rev.No.37 of 2020 10. 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 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. 10 R.C.Rev.No.37 of 2020 11. 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. 12. 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, 11 R.C.Rev.No.37 of 2020 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. 13. 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 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 12 R.C.Rev.No.37 of 2020 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 sought 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. 14. 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. 13 R.C.Rev.No.37 of 2020 ## 15. In **Suvarna v. Ibrahimkutty and others [2021 (6)** **KHC 250]** this Court considered the nature of opportunity to be given before an order of eviction under Section 12(3) of the Act can be ordered. It was held, '24. In **Narayanan** the Division Bench held that, the Rent Control Court or the Appellate Authority, while fixing the time within which the arrears of rent shall be deposited by the tenant should normally adjourn the hearing of the case to a date beyond the date fixed for depositing the rent, thereby allowing reasonable time to the tenant to show sufficient cause for not depositing the rent, if he has committed default in payment. It will then be for the tenant to move an application before the concerned authority to show sufficient cause for the non - payment of rent. In other words, the interval between the date up to which the rent is to be deposited and the date on which the order under Section 12(3) is passed should be reasonable to enable the tenant to show sufficient cause for committing the default, if he so chooses. If the tenant moves such an application and points out the reasons which prevented him from depositing the arrears of admitted rent, the concerned authority will examine the issue on merits to find out whether sufficient cause has been shown or not. If sufficient cause has been shown, the Rent Control Court or the Appellate Authority will not order immediate 14 R.C.Rev.No.37 of 2020 ejectment of the tenant. If no application is filed by the tenant or if the reasons shown by the tenant are insufficient, the penal consequences as contemplated in Section 12(3) of the Act shall follow. Section 12(3) of the Act is a mandate to the Rent Control Court or the Appellate Authority to order immediate ejectment of the tenant, if the tenant does not deposit the admitted arrears of rent, the only exception being, if he is able to show sufficient cause for not doing so. In that view of the matter, the Division Bench concluded that, the Rent Control Court or the Appellate Authority, as the case may be, where admitted rent has not been deposited by the tenant, is not required to issue any separate notice to the tenant, to enable him to show sufficient cause for committing the default. 25. 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 15 R.C.Rev.No.37 of 2020 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 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, 16 R.C.Rev.No.37 of 2020 on the date stipulated for effecting such payment, by virtue of the order passed under 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 :** 17 R.C.Rev.No.37 of 2020 **AIR 1991 Ker. 154 : 1990 (2) Ren. CR 223]** had laid the correct law. The Full Bench noticed that its view 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.' 16. In this case I.A.No.1145 of 2018 was posted for hearing by the Rent Control Court on 18.06.2018. The Rent Control Court after hearing both sides directed the petitioner to 18 ## R.C.Rev.No.37 of 2020 deposit admitted arrears of rent at the rate of Rs.2,200/- per month from April, 2017 onwards. The Rent Control Court ought to have directed to make payment of the rent for the subsequent period also. The petitioner did not deposit or pay the arrears of rent as directed on or before 16.07.2018, the date fixed by the Court. That I.A. was postponed from time to time and it was on 04.10.2018, on finding that the arrears of rent was not paid even by that date, the Rent Control Court passed order under Section 12(3) of the Act directing the petitioner to put the respondents in possession of the petition schedule shop room. In the said circumstances the principle laid down in **Sadique v. Mohammed Umair [supra]** regarding sufficiency of opportunity to be given in a petition under Section 12 of the Act is not available to the help of the petitioner. 17. It is true that during the pendency of R.C.A.No.52 of 2018, following the direction of the Appellate Authority, rent in arrears was deposited by the petitioner. The Appellate Authority however did not find any reason to interfere with the order of the Rent Control Court under Section 12(3) of the Act on taking 19 R.C.Rev.No.37 of 2020 the view that the order was legally correct. 18. Having considered all the aforesaid aspects, we are of the definite view that there is no reason to interfere with the finding of the judgment of the Appellate Authority or the order of the Rent Control Court on the ground of illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it. 19. The learned counsel for the petitioner submitted that a period of one year may be allowed to surrender vacant possession of the building. The learned counsel for the respondents would submit that a period of three months is the reasonable period. 20. Having considered all the aspects, we deem it appropriate to grant four months’ time to surrender vacant possession of the petition schedule shop room, subject to the following conditions: - (i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court within four weeks from the date of receipt of a certified copy of this 20 R.C.Rev.No.37 of 2020 - order, expressing an unconditional undertaking that he will surrender vacant possession of the petition schedule shop room to the petitioners-landlord within four months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room and further that he will conduct any business in the petition schedule shop room only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; - (ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default; - (iii) Needless to say, in the event of the respondent-tenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition 21 R.C.Rev.No.37 of 2020 schedule shop room will stand cancelled automatically and the petitioners-landlord will be at liberty to proceed with the execution of the order of eviction. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr