Roy Thomas v. Augustine Kuruvilla

# **`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 26[TH] DAY OF AUGUST 2022 / 4TH BHADRA, 1944 ``` ## **`R.C.REV.NO.40 OF 2021`** ``` AGAINST THE ORDER DATED 09.02.2021 IN I.A.NO.2 OF 2020 IN ``` ``` R.C.A.NO.47 OF 2020 OF THE RENT CONTROL APPELLATE AUTHORITY (I ADDL. DISTRICT JUDGE), ERNAKULAM. ``` ## **`REVISION PETITIONER:`** ``` ROY THOMAS, AGED 58 YEARS S/O.K.V.THOMAS, HAVING OFFICE AT C.C.58/1157, 1ST FLOOR, CHOOLACKAL PLAZA, MARKET ROAD, KOCHI - 682 018. BY ADVS. V.S.BABU GIREESAN PKX.KUNCHERIA ``` ## **`RESPONDENT:`** ``` AUGUSTINE KURUVILLA AGED 74 YEARS S/O.LATE P.A.KURUVILLA, RESIDING AT CHOOLACKKAL PUTHENVEETTIL, MARKET ROAD, KOCHI - 682 018, ERNAKULAM VILLAGE, KANAYANNUR TALUK, NOW RESIDING AT CHOOLACKAL HOUSE, THUTHIYOOR ROAD, KAKKANAD, KOCHI - 682 037. ``` ``` BY ADV SRI.GEORGE MERLO PALLATH ``` ``` SRI JOHNSON MANAYANI - FOR PETITIONER ``` ``` SMT JENCY SUSAN JOSE - RESPONDENT ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.C.Rev.No.40 of 2021 2 ## **ORDER** ## **Anil K. Narendran, J.** The petitioner is the respondent-tenant in R.C.P.No.194 of 2018 on the file of the Rent Control Court (Munsiff), Ernakulam, a petition filed by the respondent herein-landlord, under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking an order of eviction of the tenant from the petition schedule building. The Rent Control Court by the order dated 29.09.2020 granted an order of eviction under Section 11(2)(b) of the Act and the tenant was directed to give vacant possession of the petition schedule building within 30 days of the said order. In case the tenant pays arrears of rent along with interest and notice charge within 30 days of that order, the order of eviction under Section 11(2)(b) of the Act shall stand vacated under Section 11(2)(c). 2. Challenging the order of eviction granted by the Rent Control Court, the tenant filed R.C.A.No.47 of 2020 before the Rent Control Appellate Authority (Addl. District Judge-I), Ernakulam, invoking the provisions under Section 18(1)(b) of the Act. During the pendency of that appeal, the landlord filed I.A.No.2 of 2020, an application under Section 12 of the Act, R.C.Rev.No.40 of 2021 3 seeking an order directing the tenant to deposit the admitted arrears of rent, and in failure, to direct the tenant to handover vacant possession of the petition schedule building to the landlord. In that interlocutory application, the Rent Control Appellate Authority passed an order dated 13.01.2021, under Section 12(1) and (2) of the Act, whereby the tenant was directed to clear the arrears of rent, within two weeks. The matter was listed on 27.01.2021. The tenant has not chosen to make any payment towards arrears of rent. Thereafter, the Appellate Authority passed an order dated 09.02.2021, in I.A.No.2 of 2020, in exercise of its powers under Section 12(3) of the Act, stopping further proceedings in R.C.A.No.47 of 2020 and the tenant was directed to put the landlord in possession of the building, within two weeks from the date of that order, failing which the landlord was permitted to take possession of the building with the assistance of the court. Challenging the aforesaid order of the Appellate Authority, the tenant has filed this Rent Control Revision before this Court, invoking the provisions under Section 20 of the Act. 3. On 18.02.2021, when this Rent Control Revision came up for admission, this Court admitted the matter on file. In R.C.Rev.No.40 of 2021 4 I.A.No.1 of 2021, this Court granted an interim order staying the execution of the order in R.C.P.No.194 of 2018 of the Rent Control Court, Ernakulam and the order in I.A.No.2 of 2020 in R.C.A.No.47 of 2020 of the Rent Control Appellate Authority (Addl. District Judge-I), Ernakulam, for a period of four months. 4. On 10.09.2021, when this Rent Control Revision came up for consideration, this Court extended the interim order granted in I.A.No.1 of 2021 for a period of three months, on condition that the petitioner-tenant shall pay arrears of rent as on date, within a period of one month, and shall continue to pay monthly rent for the subsequent period, without any default, during the pendency of this revision. On 20.07.2022, the learned counsel for the respondent-landlord pointed out that the petitioner-tenant has not complied with the condition stipulated in the order dated 10.09.2021 and that, as on that date, the arrears of rent come to more than Rs.4,00,000/-. 5. Today, when this matter is taken up for consideration, the respondent-landlord has filed I.A.No.2 of 2022, seeking an order to vacate the order of stay granted in this Rent Control Revision. In the affidavit filed in support of that interlocutory application, it is stated that, the arrears of rent comes to R.C.Rev.No.40 of 2021 5 Rs.4,25,060/-. 6. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlord. The learned counsel for the petitioner-tenant would submit that the tenant is prepared to clear the arrears of rent as on date, for which he requires reasonable time. 7. The issue that arises for consideration this Rent Control Revision is as to whether any interference is warranted on the order dated 09.02.2021 of the Appellate Authority in I.A.No.2 of 2020 in R.C.A.No.47 of 2020. 8. 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 R.C.Rev.No.40 of 2021 6 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 subsection (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 R.C.Rev.No.40 of 2021 7 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. 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 R.C.Rev.No.40 of 2021 8 of the building, until the termination of the proceedings before the Appellate Authority. 10. 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. 11. 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 R.C.Rev.No.40 of 2021 9 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. 12. In **J. Ramkumar v. Ashok Jacob [2022 (1) KHC 495 : ILR 2021 (4) Kerala 876]** this Court held that, 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 rent which may subsequently become due in respect of the building, until the termination of R.C.Rev.No.40 of 2021 10 the proceedings before the Rent Control Court or the Appellate Authority, regardless of the relief sought for in that application. 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. In **Pochappan Narayanan v. Gopalan [1990 (2) KLT 1]** a Division Bench of this Court noticed that, Section 12(3) of the Kerala Buildings (Lease and Rent Control) Act deals with consequences flowing as a result of the failure on the part of the tenant to pay or deposit admitted rent. When the tenant fails to pay or deposit the admitted rent, as provided in Section 12(1) and (2), the Rent Control Court or the Appellate Authority, as the case may be, will be required to ask the tenant to show cause why all further proceedings should not be stopped and an order be made directing the tenant to put the landlord in possession. When such an opportunity is afforded to the tenant, the tenant is entitled to show, if there is sufficient cause, for his failure to pay the amount or deposit the rent as provided in Section 12(1) R.C.Rev.No.40 of 2021 11 and (2). If the Rent Control Court or the Appellate Authority is satisfied that there is sufficient cause for not making the payment or deposit of the rent within time, it will not make any order stopping further proceedings and directing the tenant to put the landlord in possession. If, however, the Rent Control Court or the Appellate Authority is not satisfied about the cause shown, an order has to be made stopping all further proceedings and directing the tenant to put the landlord in possession. 14. In **Pochappan Narayanan** the Division Bench held that, before the consequences contemplated by Section 12(3) of the Act can ensue, the conditions specified in Section 12(1) and (2) have to be satisfied. It is therefore clear that, before any steps can be taken under Section 12(3) for making an order against the tenant who has committed default in paying or making the deposit as contemplated by Section 12(1), the procedure prescribed by Section 12(2) has to be satisfied. A tenant who does not fulfill the obligations imposed on him by Section 12(1) cannot be visited with the penal consequences contemplated by Section 12(3), unless all the conditions specified by Section 12(2) are satisfactorily fulfilled. Even after the court acts in accordance with Section 12(2) and the tenant still R.C.Rev.No.40 of 2021 12 commits default, the tenant has to be given one more opportunity of showing cause as to why penal consequences contemplated by Section 12(3) should not be imposed on him. It is only when the court is not satisfied with the cause shown that it can pass an order stopping all further proceedings and directing the tenant to put the landlord in possession of the building. 15. In **Narayanan v. Vinod [2004 (3) KLT 955]** the order passed by the Rent Control Appellate Authority under Section 12(3) of the Kerala Buildings (Lease and Rent Control) Act was assailed before the Division Bench, on the ground that the petitioner-tenant was not granted time as stipulated in Section 12(2) to deposit the arrears of rent and that, he had not been issued with any notice under Section 12(3) to show sufficient cause for not depositing the rent and, therefore, the order directing eviction of the tenant is contrary to the provisions of Section 12. The Division Bench noticed that, the provisions of Section 12 of the Act are mandatory and no tenant against whom an application for eviction has been made by a landlord is entitled to contest the same or to prefer an appeal under Section 18, against any order passed by the Rent Control Court, unless he had paid or pays to the landlord or deposits with the Rent Control R.C.Rev.No.40 of 2021 13 Court or with the Appellate Authority, all arrears of rent admitted by him to be due in respect of the demised premises up to the date of payment and continues to pay or deposit the 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. Section 12(3) of the Act then mandates that if any tenant fails to pay or deposit the rent as aforesaid, the Rent Control Court or the Appellate Authority 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 demised premises. In other words, if the admitted rent due is not deposited during the pendency of the proceedings before the Rent Control Court or the Appellate Authority, all further proceedings have to stop and the authority concerned is required to make an order directing the tenant to put the landlord in vacant possession of the premises, unless the tenant shows sufficient cause for not depositing that rent. 16. In **Narayanan** , on the question as to whether the Rent Control Court or the Appellate Authority, as the case may be, where admitted rent has not been paid, is required to issue a separate notice to the tenant to enable him to show sufficient R.C.Rev.No.40 of 2021 14 cause for the default in payment of admitted rent or is it for the tenant himself to file an application and bring to the notice of the Rent Control Court or the Appellate Authority the reasons which prevented him from depositing the rent, the Division Bench held that, if the admitted arrears of rent are not deposited within the time fixed by the Rent Control Court or the Appellate Authority the tenant makes a default resulting in the penal consequences of his immediate eviction by stopping all further proceedings. This, however, will not happen if the tenant is able to show sufficient cause for making the default in not depositing the admitted rent. From the language of Section 12(3) of the Act and 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. When the time fixed for the deposit of 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 of ejectment of the tenant forthwith. 17. In **Narayanan** the Division Bench held that, the Rent Control Court or the Appellate Authority, while fixing the time R.C.Rev.No.40 of 2021 15 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 nonpayment 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 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 R.C.Rev.No.40 of 2021 16 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. 18. In **Shaji M. v. SNDP Sakhayogam No. 610, Alappuzha [2020 (2) KHC 574]** a Full Bench of this Court held that, in view of the principle evolved in **Narayanan [2004 (3)** **KLT 955]** , 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 the Appellate Authority, as the case may be, is not expected to pass an order ordering R.C.Rev.No.40 of 2021 17 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. 19. 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. R.C.Rev.No.40 of 2021 18 Therefore, 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 (3) KLT 955]** , even though passed without noticing the decision in **Pochappan** R.C.Rev.No.40 of 2021 19 **Narayanan [1990 (2) KLT 1]** 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) 6 SCC 396]** , the decisions of this Court in **C.V. Xavier v. Francis Leonard Pappali [1975 KLT 542]** and **Narayanan v. Muraleedhara Maran [1964 KLT 509]** . 20. In **Sankaran Pillai v. V.P. Venuguduswami** **[(1999) 6 SCC 396]** 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. 21. In **C.V. Xavier v. Francis Leonard Pappali [1975 KLT 542]** 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. R.C.Rev.No.40 of 2021 20 ## 22. In **Narayanan v. Muraleedhara Maran [1964 KLT** **509** ] 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 is to be relieved of the consequences of any noncompliance 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. 23. As per sub-section (4) of Section 12, 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. 24. In **J. Ramkumar [2022 (1) KHC 495]** , this Court held that, Section 12 of the Act imposes certain obligations on the tenant to pay or deposit admitted rent, during the pendency R.C.Rev.No.40 of 2021 21 of the proceedings for eviction under Section 11, before the Rent Control Court, and also the proceedings in an appeal filed under Section 18, before the Appellate Authority, against such an order of eviction. Section 12(3) of the Act also provides for the consequences, which were to follow, for committing default in fulfilling those obligations. Section 12(3) of the Act deals with the consequences flowing as a result of the failure of the part of the tenant to pay or deposit admitted rent. Before the consequences under Section 12(3) can ensue, the conditions specified in Section 12(1) and (2) have to be satisfied. Section 12(3) mandates that if any tenant fails to pay or deposit the admitted rent as provided under Section 12(1) and (2), 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. Therefore, if the Rent Control Court or the Appellate Authority, as the case may be, is satisfied about the cause shown by the tenant, it will not make any order under Section 12(3) of the Act, stopping further proceedings and directing the tenant to put the landlord in possession of the building. R.C.Rev.No.40 of 2021 22 25. It is clear from the plain language and also the legislative intent of Section 12 of the Act that, it is not for the Rent Control Court or the Appellate Authority, as the case may be, to pass an order under Section 12(3), stopping further proceedings and directing the tenant to put the landlord in possession of the building, once the time limit fixed for payment or deposit of admitted rent runs out, and the tenant defaulted payment or deposit of rent in terms of the order passed under Section 12(1) and (2). Though it is not for the Rent Control Court or the Appellate Authority, as the case may be, to issue any separate notice to the tenant to enable him to show sufficient cause for not paying or depositing the admitted arrears of rent, as held by the Division Bench in **Narayanan [2004 (3) KLT 955]** and approved by the Full Bench in **Shaji M. [2020 (2) KHC 574]** , the Rent Control Court or the Appellate Authority is not expected to pass an order forthwith, stopping further proceedings and directing the tenant to put the landlord in possession of the building, under Section 12(3). 26. Before passing an order under Section 12(3) of the Act, the Rent Control Court or the Appellate Authority, as the case may be, should normally adjourn the hearing of the case to a R.C.Rev.No.40 of 2021 23 date beyond the date fixed for payment or deposit of admitted rent, thereby allowing reasonable time to the tenant to show sufficient cause for not paying or depositing the admitted rent, if he has committed default in payment of the same, within the time limit stipulated in the order passed under Section 12(1) and (2). Such an opportunity to be afforded to the tenant to show sufficient cause is not an empty formality. The principles of natural justice would mandate that the Rent Control Court or the Appellate Authority should afford such an opportunity to the tenant before passing an order under Section 12(3). 27. In **J. Ramkumar [2022 (1) KHC 495]** , this Court held that, the consequences provided under Section 12(3) of the Act follow when there occurred a default by the tenant in complying with the direction in an order passed under Section 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 Section 12(3) would follow automatically. There is no necessity to alert R.C.Rev.No.40 of 2021 24 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 payment or deposit of admitted rent, 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. As held by the Full Bench in **Shaji M. [2020 (2) KHC 574]** , such a procedure, if followed, would be sufficient compliance for providing reasonable opportunity satisfying the statutory requirement contained in Section 12(3) of the Act. 28. In **Venugopalan v. Raphael [1974 KLT 640]** the Division Bench of this Court was dealing with a case in which the landlord filed Rent Control Petition under Section 11(2)(b) of the Act claiming eviction of the petition schedule building on the ground of arrears of rent. The Rent Control Court passed an order directing the tenant to pay admitted arrears of rent on or before the 20.09.1971. In the said order it was made clear that, on R.C.Rev.No.40 of 2021 25 default of deposit within the specified period, an order for possession under Section 12(3) of the Act, will be passed. The order under Section 12(1) and (2) was not complied with, despite the fact that time for payment was extended. Therefore, the Rent Control Court passed an order for possession under Section 12(3) of the Act, which was dated 25.10.1971. Within thirty days of the said order, the tenant filed I.A. No. 4143 of 1971 to receive what was claimed to be the admitted arrears; and I.A. No. 4142 of 1971 to set aside the order for possession passed under Section 12(3) of the Act on 25.10.1971. The Rent Control Court dismissed I.A. No. 4142 of 1971 holding that an order under Section 12(3) cannot be set aside or vacated on the mere ground that the admitted arrears of rent had been deposited subsequent to the order. It declined to receive the arrears of rent tendered along with the I.A. No. 4143 of 1971, and accordingly dismissed the same. The appeals preferred by the tenant under Section 18(1)(b) of the Act against those orders were dismissed by the Rent Control Appellate Authority. On further revision, the revisional court, namely the District Court, Trichur, allowed the revision and set aside the orders of the Rent Control Court and of the Appellate Authority and remanded I.A. Nos. 4142 of 1971 R.C.Rev.No.40 of 2021 26 and 4143 of 1971 back to the Rent Control Court for fresh disposal directing that the time for making deposit of the arrears of rent, will be extended by the Rent Control Court. Feeling aggrieved landlord preferred revision petition before this Court. 29. In **Venugopalan** the Division Bench noticed that, under Section 11(2)(c) of the Act a tenant, against whom a decree for eviction has been passed by the Rent Control Court on the ground that rent had been kept in arrears, is allowed relief against the forfeiture of tenancy incurred by non-payment of rent, by depositing the arrears of rent decreed, within a certain period. In **Kurien v. Saramma Chacko [1964 KLT 1]** it was held that the power under Section 11(2)(c) can be exercised by the Appellate Authority and also by the Revisional Authority. Section 12 of the Act provides for a totally different contingency. 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 is fundamentally different from the scope and the purpose of the deposit envisaged by Section 11(2)(c) of the Act. In **K.P. Mohammed v. Madhavi Amma** R.C.Rev.No.40 of 2021 27 **[1963 KLT 688]** the Division Bench held that, Section 11 and Section 12 of the Act are not dependent on each other. 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. In **T.B. Mohanan v. Kanakaraja Pillai [1970 KLT 1024]** a learned Judge of this Court held that an order passed under Section 12 of the Act, cannot be reopened or vacated by tendering the rent subsequent to the passing of the said order. In **Venugopalan** , the Division Bench held that, 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 can not be vacated or obliterated by payment at any subsequent stages or periods. 30. In **Venugopalan** it was argued before the Division Bench that Section 12(3) of the Act is discriminatory and violative of Article 14 of the Constitution of India. The Division Bench R.C.Rev.No.40 of 2021 28 observed that, the scope and the purpose of Section 11(2)(c) and Section 12 are fundamentally different. The one is meant to relieve against forfeiture, and the other, as a condition precedent to be performed by the tenant before entering on his defence. The law itself does not encourage or put a premium on dishonesty, although those inclined to be dishonest may make use of its provisions to suit their purpose. Therefore, the Division Bench repelled the contention of the tenant that Section 12(3) of the Act is discriminatory. 31. In **Davy v. Indu [1999 (3) KLT 434]** a Division Bench of this Court reiterated that Section 11 and Section 12 of the Act operate in different fields and circumstances. The compliance of these mandatory provisions will lead to eviction of the tenant. But an order of eviction once passed under Section 12(3) cannot be undone by resorting to Section 11(2)(c) of the Act. Section 11(2)(c) of the Act relates to orders of eviction passed under Section 11(2) only. Therefore, Section 11 and 12 of the Act are not dependent on each other. ## 32. In **Nasiruddin v. Sita Ram Agarwal [(2003) 2 SCC** **577]** the question as to the applicability of Section 5 of the Limitation Act, 1963, in the matter of default in deposit of rent R.C.Rev.No.40 of 2021 29 as also interpretation of the word ‘shall’ occurring in Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, came up for consideration before a Three-Judge Bench of the Apex. Section 13(1)(a) of the Act enables a landlord to sue for a decree of eviction in the event a tenant has neither paid nor tendered the amount of rent due from him for six months. In terms of Section 13(3), which was substituted by Section 8(i) of Rajasthan Act 14 of 1976, it is obligatory on the court to provisionally determine the amount of rent wherefor no application is required to be filed. As per Section 13(4) of the Act, the tenant shall deposit in court or pay to the landlord the amount determined by the court under Section 13(3) within fifteen days from the date of such determination, or within such further time, not exceeding three months, as may be extended by the court. The tenant shall also continue to deposit in court or pay to the landlord, month by month, the monthly rent subsequent to the period up to which determination has been made, by the fifteenth of each succeeding month or within such further time not exceeding fifteen days, as may be extended by the court, at the monthly rate at which the rent was determined by the court under Section 13(3). Under Section 13(5), if a tenant fails to R.C.Rev.No.40 of 2021 30 deposit or pay any amount referred to in Section 13 (4), on the date or within the time specified therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. 33. In **Nasiruddin** the Apex Court held that, a bare perusal of the aforementioned provisions would show that in terms of Section 13(4), a tenant is required to deposit the amount of rent determined by the court under Section 13(3) within fifteen days of the date of determination or within such further time not exceeding three months, as may be extended by the court. By reason of the 1976 Amendment, the following was specifically inserted: “within such further time, not exceeding three months as may be extended by the court” or the words “or within such further time, not exceeding fifteen days, as may be extended by the court, at the monthly rate at which the rent was determined by the court under sub-section (3)” The word “shall”, which is ordinarily imperative in nature, has been used in Section 13(4). The power of the court has also been limited to the extent that it can extend time for such deposit not exceeding three months and so far as the deposit of monthly rent is concerned, by fifteen days. The court's power, therefore, is restricted. In case the tenant deposits the provisional rent as R.C.Rev.No.40 of 2021 31 determined by the court within the stipulated period the tenant is relieved by the eviction decree. 34. In **Nasiruddin** the Apex Court noticed that, Section 13(1) of the M.P. Accommodation Control Act, 1961 dealt with in the decision in **Shyamcharan Sharma v. Dharamdas [(1980)** **2 SCC 151],** the court has been conferred power to extend the time for deposit of rent to any such further time, as it may, on an application made to it, allow in this behalf. The power of the court under the M.P. Act is not restricted. However, discretion available to the court under the Rajasthan Premises (Control of Rent and Eviction) Act is limited. Furthermore, in Section 13(6) of the M.P. Act, the word “may” has been used which is directory; in contradistinction with the word “shall” employed in the Rajasthan Act. The M.P. Act provides for the power of the court to extend the time in the event sufficient cause therefor is shown which is absent in the Rajasthan Act. Furthermore, in terms thereof once the rent has been determined, the same has to be deposited within the prescribed period wherefor there exists no provision for filing an application. Wherever the special Act provides for extension of time or condonation of default, the court possesses the power therefor, but where the statute does not R.C.Rev.No.40 of 2021 32 provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the court does not have the power to do so. In that view of the matter it must be held that in the absence of such provisions in the Rajasthan Premises (Control of Rent and Eviction) Act, the court did not have the power to either extend the period to deposit the rent or to condone the default in depositing the rent. 35. In **Nasiruddin** the Apex Court observed that, it is true that the Rajasthan Premises (Control of Rent and Eviction) Act does not expressly exclude the application of the Limitation Act, 1963. But Section 5 of the Limitation Act in its terms is not applicable to wherever there is a default in depositing the rent by the tenant. The provisions of Section 5 of the Limitation Act must be construed having regard to Section 3 thereof. For filing an application after the expiry of the period prescribed under the Limitation Act or any other special statute, a cause of action must arise. Compliance with an order passed by a court of law in terms of a statutory provision does not give rise to a cause of action. On failure to comply with an order passed by a court of law, instant consequences are provided for under the statute. The court can condone the default only when the statute confers such R.C.Rev.No.40 of 2021 33 a power on the court and not otherwise. In that view of the matter the Apex Court held that Section 5 of the Limitation Act has no application in the case on hand. 36. In **J. Ramkumar [2022 (1) KHC 495]** , this Court concluded that, the consequences provided under Section 12(3) of the Act follow when there occurred a default by the tenant in complying with the direction in an order passed under Section 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 Section 12(3) would follow automatically. As held by a Division Bench 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 can not be vacated or obliterated by payment at any subsequent stages or periods. The R.C.Rev.No.40 of 2021 34 law laid down by a Three-Judge Bench of the Apex Court in **Nasiruddin [(2003) 2 SCC 577]** 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 stipulated period, the court does not have the power to do so. 37. The judgment of this Court in **J. Ramkumar [2022** **(1) KHC 495]** was under challenge before the Apex Court in SLP(C)No.18301 of 2021. After having heard the learned counsel for the parties, the Apex Court was not inclined to interfere with the order of this Court and accordingly, the special leave petition along with connected matters were dismissed by the order dated 18.11.2021. The said order reads thus; "After having heard the learned counsel for the parties, we are not inclined to interfere with the Special Leave Petitions. Mr.Roy Abraham, learned counsel for the petitioner R.C.Rev.No.83 of 2022 points out that he deposited a sum of Rs.26,00,000/- in compliance of order dated 16.04.2019 passed by this Court. According to him that represented the rent due as on that day. According to the petitioner, the amount of Rs.26,00,000/- represented the amount of admitted arrears. He, therefore, prays that when this Court is not accepting the request to set aside the order under Section 12(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 and R.C.Rev.No.40 of 2021 35 grant relief otherwise the Court may direct to return the amount that was deposited by him. This is objected to Mr.Liju V. Stephen, learned counsel for the respondent. We notice that the order was dated 16.04.2019. We would take the view that the interest of justice would require that after deducting a sum of Rs.11,10,000/- which would be the rent due for a period of 30 months from 16.04.2019 the amount remaining, namely, Rs.14,90,000/- must be returned to the petitioner. It is accordingly so ordered. Out of the amount of Rs.26,00,000/-, petitioner is free to withdraw a sum of Rs.14,90,000/- from the Rent Control Court. It will be open to the respondent- landlord to appropriate towards the rent for the period as already noted the balance amount of Rs.11,10,000/-. It can be withdrawn by the respondent-landlord. We leave it open to the landlord- R.C.Rev.No.83 of 2022 respondent to seek remedies as regards any amount due towards arrears of rent. Accordingly, the Special Leave Petitions stands dismissed. Pending application(s), if any, stands disposed of." (underline supplied) 38. In the instant case, the Rent Control Appellate Authority passed an order dated 13.01.2021 in I.A.No.2 of 2020 in R.C.A.No.47 of 2020, invoking its powers under Section 12(1) and (2) of the Act, whereby the tenant was directed to clear the admitted arrears of rent within two weeks and the case was posted to 27.01.2021. The tenant has not chosen to clear the admitted arrears of rent within the time limit stipulated in the R.C.Rev.No.40 of 2021 36 said order. On 27.01.2021 when that application was came up for consideration, the Appellate Authority adjourned the matter to 06.02.2021 and thereafter to 09.02.2021. The tenant has not chosen to deposit the admitted arrears of rent till 09.02.2021. In the order dated 09.02.2021, the Appellate Authority noticed that the tenant does not want any extension of time. The tenant has admitted that he had paid rent only up to March 2016. The case of the tenant is that no rent is in arrears. According to the tenant, the landlord owes Rs.2,75,040/- towards the tenant as legal fee for the expenses incurred for different works entrusted to him. The tenant wants to adjust the said amount towards the arrears of rent payable from March 2016. The Appellate Authority repelled the said contention by holding that the tenant is not legally entitled to adjust the said amount towards the arrears of rent payable. In support of the said conclusion the Appellate Authority relied on the decision of a Division Bench of this Court in **Abdul Gafoor M.C. v. K. Abdurahiman and another [2015** **(3) KHC 775]** , wherein it was held that the advance amount paid by the tenant is not liable to be adjusted towards arrears of rent. In the order dated 09.02.2021, the Appellate Authority found that the tenant has not shown any sufficient cause for non- R.C.Rev.No.40 of 2021 37 payment of the admitted arrears of rent, which he is statutorily bound to pay in terms of the order passed under Section 12(1) and (2) of the Act. It was in such circumstances that the Appellate Authority passed the order dated 09.02.2021 in I.A.No.2 of 2020 whereby further proceedings in R.C.A.No.47 of 2020 was stopped, and the appellant-tenant was directed to put the landlord in vacant possession of the petition schedule building, under Section 12(3) of the Act, within the time limit specified in that order. In the said order it was provided that, in case the tenant fails to put the landlord in vacant possession of the said building, the landlord can take possession with the assistance of the court. 39. Viewed in the light of the law laid down in the decisions referred to supra, the reasoning of the Appellate Authority in the order dated 09.02.2021, which is one issued in exercise of its powers under Section 12(3) of the Act, is neither perverse nor patently illegal and it cannot also be said that while passing such an order the said Authority has committed a manifest error. Despite the order of this Court dated 10.09.2021 the tenant has not remitted the admitted arrears of rent. Today when this Rent Control Revision is taken up for consideration, the respondent- R.C.Rev.No.40 of 2021 38 landlord has filed I.A.No.2 of 2022 seeking an order to vacate the interim stay granted in this matter. In the affidavit filed in support of that interlocutory application the landlord has stated that the tenant deposited a sum of Rs.30,000/- on 27.10.2021, against the pending arrears of Rs.4,10,540/- and that the execution court has posted the matter for delivery. In view of the law laid down by this Court in **J. Ramkumar [2022 (1) KHC 495]** , an order passed under Section 12(3) of the Act cannot be set aside or vacated on deposit of admitted arrears of rent by the tenant, subsequent to such an order stopping further proceedings in the Rent Control Petition or in the Rent Control Appeal, as the case may be. In the result, this Rent Control Revision fails and the same is accordingly dismissed. Sd/- ## **ANIL K.NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd**