Saji George v. Sebastian T.A.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941** **OP (RC).No.49 OF 2020** **AGAINST THE ORDER DATED 19.02.2020 IN I.A.NO.2/2020 IN I.A.NO.6526/2019 RCP 13/2019 OF THE RENT CONTROL COURT, ERNAKULAM** ## **PETITIONER/RESPONDENT/PETITIONER:** **SAJI GEORGE, AGED 56 YEARS S/O. GEORGE KURIAN, KURAN VILLA, KADAPRA P.O., PIN-689547, KUMBANAD THATTACKAD MURI, KOIPRAM VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER, P.K. AKBAR, S/O. V.K.M. HAJI, 32/2843 BTS ROAD, EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK, EDAPPALLY P.O., PIN-682024.** **BY ADV. SRI.PEARLY JOSE** ## **RESPONDENT/APPELLANT/RESPONDENT:** **SEBASTIAN T.A., AGED 44 YEARS, S/O. T.S. ANTONY, THEKKAN HOUSE NO.13/437, KURICHILAKODE, KODANADU P.O., PERUMBAVOOR, ERNAKULAM, KERALA-683544, HAVING ADDRESS ALSO AT WE ONE COMFORT, SUBHASH CROSS ROAD, BEHIND INDIRA GANDHI CO-OPERATIVE HOSPITAL, KADAVANTHRA P.O., PIN-682020.** **R1 BY ADV. SRI.VARGHESE C.KURIAKOSE** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 09.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (RC).No.49 OF 2020** ..2.. ## **JUDGMENT** ## K.HARILAL,J. The petitioner herein is the landlord, who filed R.C.P.No.13/2019 against the respondent herein, seeking an order of eviction under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (herein after referred to as 'the Act') and this OP(RC) has been filed, challenging Ext.P12 order passed by the Rent Control Court under Section 12 of the Act. 2. The petitioner/landlord filed I.A.No. 6526/2019, under Section 12 of the Act, seeking a direction to the respondent/tenant to deposit the admitted arrears of rent. The respondent/tenant filed counter affidavit, **OP (RC).No.49 OF 2020** ..3.. denying the claim for admitted arrears of rent and the landlord-tenant relationship. The Rent Control Court passed Ext.P6 order on 16.12.2019 directing the respondent/tenant to deposit the admitted arrears of rent within one month from 16.12.2019 under Sections 12(1) and 12(2) of the Act and the case was posted to 06.01.2020. 3. The respondent/tenant preferred an appeal against Ext.P6 order before the Rent Control Appellate Authority and the Appellate Authority dismissed the said appeal by Ext.P8 on 06.01.2020, with a specific direction to the Rent Control Court that, after the expiry of 4 weeks, the court below shall proceed with the matter and pass orders under Section 12(3) of the Act, if necessary. As also, the Appellate Authority **OP (RC).No.49 OF 2020** ..4.. found that the appeal is not maintainable. 4. The rent control petition was posted to 07.01.2020 before the Rent Control Court. But, the respondent/tenant has not deposited the admitted arrears of rent before 07.01.2020, in view of Ext.P8 order. Subsequently, on 15.01.2020, the case was posted to show cause for non-compliance of Ext.P6 order. As the respondent failed to show sufficient cause, the Rent Control Court passed Ext.P9 order under Section 12(3) of the Act on 15.01.2020, stopping all the proceedings in R.C.P.No.13/2019 and the respondent/tenant was directed to surrender the vacant possession of the petition schedule building. On 17.01.2020, the respondent/tenant produced Ext.P8 appellate order before the Rent Control Court and filed Ext.P10, I.A.No.1/2020 to put up **OP (RC).No.49 OF 2020** ..5.. R.C.P.No.13/2019 on the file and Ext.P11, I.A.No.2/2020, to recall the order passed under Section 12(3) of the Act, for compliance of the earlier order. Thus, the case came up on 03.02.2020 and on that date, 4 weeks time, granted by the Appellate Court had expired. Even after the expiry of one month, granted by the Appellate Authority under Ext.P8, the respondent/ tenant has not deposited the admitted arrears of rent. So also, no application was filed, seeking extension of time or to show cause why the admitted arrears of rent was not deposited within one month. While so, on 19.02.2020, the Rent Control Court passed Ext.P12 order, whereby the Rent Control Court recalled Ext.P6 order under Section 12(3) of the Act and granted additional 30 days time to the respondent/tenant from 19.02.2020 to show **OP (RC).No.49 OF 2020** ..6.. cause for the noncompliance of Ext.P6 order. Aggrieved by Ext.P12 order granting additional 46 days from 03.02.2020 to the respondent/tenant, the petitioner/landlord has preferred this O.P.(RC). 5. Heard the learned counsel for the petitioner/landlord and the learned counsel for the respondent/tenant. 6. The sum and substance of the argument advanced by the learned counsel for the petitioner/landlord is that, even though 30 days time was provided to pay the admitted arrears of rent under Section 12(2) of the Act, by Exts.P8 and P12 orders, the respondent/tenant herein has got more than three months. According to the learned counsel, the original order was passed on 06.12.2019 by Ext.P6 and the last date for depositing the admitted arrears of rent was **OP (RC).No.49 OF 2020** ..7.. on 06.01.2020. Before 06.01.2020, no application was filed, seeking extension of time to deposit the admitted arrears of rent. Similarly, no explanation was given to show cause, why the admitted arrears of rent was not deposited before 06.01.2020. Instead, the respondent/tenant approached the Appellate Authority and the Appellate Authority has again granted one more months time to deposit the admitted arrears of rent and the respondent/tenant failed to deposit the admitted arrears of rent within 4 weeks from 06.01.2020 and no application was filed, seeking extension of time or no explanation was given to show cause why the admitted arrears of rent was not deposited before 06.02.2020. Instead of passing an order under Section 12(3) of the Act, directing the respondent to put the **OP (RC).No.49 OF 2020** ..8.. petitioner in possession of the tenanted premises, the court again granted time to show cause why the admitted arrears of rent was not deposited within the said period. 7. _Per contra_ , the learned counsel for the respondent/tenant advanced arguments to justify Ext.P12 order passed by the Rent Control Court. According to the learned counsel, the respondent/tenant got one more month from 06.01.2020 to deposit the admitted arrears of rent by Ext.P12 order passed by the Rent Control Court. So also, it is contended that the Rent Control Court is justified in recalling the earlier order in view of Ext.P8 order passed by the Appellate Authority. 8. In view of the arguments at the bar, the question to be considered is whether there is any illegality or impropriety in **OP (RC).No.49 OF 2020** ..9.. Ext.P12 order passed by the Rent Control Court. 9. It is not disputed that as per Section 12 of the Act, the tenant is liable to deposit the admitted arrears of rent within four weeks from the date of the order under Section 12(2) of the Act. As per the decision of the Hon'ble Supreme Court in _**Narayanan**_ v. _**Vinod [2004 (3) KLT 955]**_ , from the language of Section 12(3) of the Act and the legislative intent, it is not for the Rent Controller 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 by the Court for the deposit of arrears of rent runs out and the tenant has not deposited the same, the Rent Controller or the Appellate Authority, as **OP (RC).No.49 OF 2020** ..10.. the case may be, is not expected to pass an order, ordering the ejectment of the tenant forthwith. The Rent Controller 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 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 **OP (RC).No.49 OF 2020** ..11.. sufficient cause for committing default, if he so chooses. If he moves such an application and points out the reasons, which prevented him from depositing the arrears of rent, the Court concerned will examine the issue on merits, to find out whether sufficient cause has been shown or not. If sufficient cause is shown, the Rent Controller 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 under Section 12(3) of the Act shall follow. 10. Bearing the aforesaid proposition in mind, we have meticulously examined the legality and correctness of Exts.P6, P8 and P12 orders. At the outset, we find that the **OP (RC).No.49 OF 2020** ..12.. Appellate Authority, after arriving at a finding that the appeal is not maintainable, erroneously ordered that one more months time can be granted for depositing the admitted arrears of rent. The Appellate Authority should not have passed such an order granting one more month, when the appeal was found not maintainable. Since the Rent Control Court was not required to issue a separate notice to show cause why the admitted arrears of rent was not deposited, there was no circumstance granting one more month to deposit the admitted arrears of rent by Ext.P8. However, even if that order was an erroneous one, the tenant has got one more month, to deposit the admitted arrears of rent and the said period has expired on 06.02.2020. **OP (RC).No.49 OF 2020** ..13.. 11. Admittedly, no application was filed by the respondent/tenant to extend the period of time to deposit the admitted arrears of rent, either before the Appellate Authority or before the Rent Control Court and no explanation was filed, disclosing to show cause why the admitted arrears of rent was not deposited before 06.02.2020. However, Ext.P12 order was passed on 19.02.2020 only. The respondent has not deposited the admitted arrears of rent during the period from 06.02.2020 and 19.02.2020 and no application was filed, seeking extension of time also. 12. In the above circumstance, we find that the Rent Control Court should have passed order under Section 12(3) of the Act, directing the respondent/tenant to put the petitioner/landlord in possession of the **OP (RC).No.49 OF 2020** ..14.. petition schedule building, but, instead of passing such an order, the Rent Control Court again granted an opportunity to show cause. It is pertinent to note that the first order directing the respondent/tenant to deposit the admitted arrears of rent, by Ext.P6 was on 06.12.2019. But, the respondent/tenant did not pay the admitted arrears of rent so far and no explanation was given to show cause why the admitted arrears of rent was not deposited so far. However, he got three months time, instead of one month as provided under Section 12(2) of the Act. Therefore, the respondent/tenant will not be entitled to get any further opportunity to show cause, for not depositing admitted arrears of rent. 13. In the above circumstances, we hereby direct the Rent Control Court to pass **OP (RC).No.49 OF 2020** ..15.. summary order of eviction under Section 12(3) of the Act forthwith to put the petitioner/landlord in possession of the petition schedule building. This OP(RC) is allowed. **Sd/K.HARILAL JUDGE** **Sd/C.S.DIAS JUDGE** SB/11/03/2020 **OP (RC).No.49 OF 2020** ..16.. ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF RCP NO.13/19 DATED 14/01/19 BEFORE RENT CONTROL COURT, ERNAKULAM.** - **EXHIBIT P2 TRUE COPY OF THE STATEMENT OF OBJECTION FILED BY RESPONDENT DATED 08/07/19.** - **EXHIBIT P3 TRUE COPY OF THE REPLY RECEIVED FROM THE PUBLIC INFORMATION OFFICE OF COCHIN CORPORATION DATED 29/08/2019 ALONG WITH ENCLOSURES.** - **EXHIBIT P4 TRUE COPY OF IA NO.6526/19 (UNDER SECTION 12) DATED 02/09/2019.** - **EXHIBIT P5 TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE RESPONDENT IN AI 6526/19 DATED 23/09/19.** - **EXHIBIT P6 TRUE COPY OF THE ORDER PASSED IN IA NO.6526/19 DATED 06/12/19.** - **EXHIBIT P7 MEMORANDUM OF RENT CONTROL APPEAL NO.1/2020 DATED 01/01/2020.** - **EXHIBIT P8 TRUE COPY OF THE ORDER PASSED BY RENT CONTROL APPELLATE AUTHORITY IN APPEAL NO.1/2020 DATED 06/01/2020.** - **EXHIBIT P9 TRUE COPY OF THE ORDER PASSED IN RCP 13/19 DATED 15/01/19.** - **EXHIBIT P10 TRUE COPY OF IA NO 1/2020 IN RCP 13/19 DATED 17/01/2020.** - **EXHIBIT P11 TRUE COPY OF IA NO.2/2020 IN RCP 13/19 DATED 17/01/2020.** - **EXHIBIT P12 TRUE COPY OF THE ORDER PASSED IA 2/2020 DATED 19/02/2020 OF RENT CONTROL COURT.** **RESPONDENTS EXTS: NIL // TRUE COPY //** **P.A to JUDGE**