Sanjeev v. Siju P. Thomas

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944 ``` ``` OP (RC) NO.130 OF 2022 ``` ``` AGAINST THE ORDER DATED 13.06.2022 IN I.A.NO.1 OF 2021 IN R.C.A.NO.34 OF 2021 OF IV ADDITIONAL RENT CONTROL APPELLLATE AUHTORITY (DISTRICT COURT), THRISSUR ``` ## **`PETITIONER/APPELLANT/PETITIONER/RESPONDENT:`** ``` SANJEEV, AGED 56 YEARS S/O.MULACKAL KESAVAN, MULACKAL HOUSE, CHIRANGARA DESOM, KORATTY KIZHAKKUMURI VILLAGE, CHALAKUDY TALUK, TRISSUR DISTRICT, PIN - 680308 ``` ``` BY ADVS.JOHN JOSEPH(ROY) SABIR N.S. ``` ## **`RESPONDENT/RESPONDENT/RESPONDENT/PETITIONER:`** ``` SIJU P. THOMAS, AGED 46 YEARS, S/O. PANACKAL THOMAS, POTTA DESOM & VILLAGE CHALAKUDY TALUK REPRESENTED BY POWER OF ATTORNEY HOLDER VINO VAR- GHESE, S/O.KOTTACKAL VARGHESE, SOUTH KORATTY DESOM, MURINGOOR THEKKEMURI VILLAGE, CHALAKUDY TALUK, PIN - 680308 ``` ``` BY ADVS.SADCHITH P KURUP C.P.ANIL RAJ(K/872/2007) ``` ``` THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 25.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- O.P.(RC) No.130 of 2022 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner is the respondent-tenant in R.C.P.No.3 of 2019 on the file of the Rent Control Court (Munsiff), Chalakudy, a petition filed by the respondent herein-landlord under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule building in which the tenant is conducting a CBSE School on payment of a monthly rent of Rs.15,000/-. Before the Rent Control Court, the tenant entered appearance and filed counter. The landlord filed I.A.No.1 of 2020, an application under Section 12 of the Act, seeking an order directing the tenant to deposit the admitted arrears of rent and continue to pay rent for the subsequent period. In that interlocutory application, the Rent Control Court passed an order dated 06.02.2020, under Section 12(1) and (2) of the Act, whereby the tenant was directed to pay the admitted arrears of rent amounting to Rs.4,60,000/- within the time limit specified in that order. After the said order, the tenant was set _ex parte_ and the Rent Control Court passed an _ex parte_ order of eviction dated 12.02.2020 in R.C.P.No.3 of 2019. The tenant -3- O.P.(RC) No.130 of 2022 filed I.A.No.31 of 2020, an application seeking an order to set aside the _ex parte_ order of eviction in R.C.P.No.3 of 2019. Though the said application was filed within the period of limitation, the same was dismissed by the Rent Control Court, by Ext.P1 order dated 12.11.2021. Challenging that order of the Rent Control Court, the tenant filed R.C.A.No.34 of 2021 before the Additional Rent Control Appellate Authority-IV (Additional District Judge-IV), Thrissur, invoking the provisions under Section 18(1)(b) of the Act. In that appeal, the tenant filed I.A.No.1 of 2021, seeking an order to stay the further proceedings in E.P.No.132 of 2020 in R.C.P.No.3 of 2019 on the file of the Munsiff Court, Chalakudy. In that interlocutory application, the Appellate Authority passed Ext.P2 order dated 23.03.2022 granting interim stay against delivery of the petition schedule building in E.P.No.132 of 2020 in R.C.P.No.3 of 2019. That order was modified by Ext.P3 order dated 13.06.2022, which reads thus; “Heard both sides. The respondent produced order in I.A.No.1 of 2020 in R.C.P.No.3 of 2019. As per that order the trial Court directed to deposit admitted arrears of rent of Rs.4,60,000/- within a period of 30 days from 06.02.2020. The learned counsel for respondent further submits that as on today -4- O.P.(RC) No.130 of 2022 Rs.8,95,000/- is the arrear. There is nothing on record to show that the appellant paid the above arrears. So interim stay is extended till 27.06.2022 on condition that the appellant shall deposit above said admitted arrears of rent of Rs.4,60,000/on or before 27.06.2022. I make it clear that if the above said amount is not deposited within the time, the interim stay will automatically vacated and the trial court can proceed with execution petition as per law. Call on 27.06.2022.” Feeling aggrieved by Ext.P3 order dated 13.06.2022, the petitioner-tenant is before this Court in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 2. On 15.07.2022, when this original petition came up for admission, this Court issued notice on admission to the respondent-landlord. The learned counsel for the petitioner was permitted to take out notice to the respondent through his counsel appearing before the Munsiff Court, Chalakudy, where E.P.No.132 of 2020 in R.C.P.No.3 of 2019 is pending consideration. 3. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlord. 4. The issue that arises for consideration in this original -5- O.P.(RC) No.130 of 2022 petition is as to whether any interference is warranted on Ext.P3 order dated 13.06.2022 of the Rent Control Appellate Authority in I.A.No.1 of 2021 in R.C.A.No.34 of 2021, whereby interim stay granted on 23.03.2022 was extended till 27.06.2022 on condition that the tenant shall deposit the admitted arrears of rent amounting to Rs.4,60,000/- as per the order dated 06.02.2020 in I.A.No.1 of 2020 in R.C.P.No.3 of 2019 of the Rent Control Court, on or before 27.06.2022, failing which the order of stay in R.C.A.No.34 of 2021 will stand vacated and the execution petition shall be proceeded with in accordance with law. 5. From the pleadings and materials on record and also the submissions made by the learned counsel on both sides, we notice that after the order passed by the Rent Control Court under Section 12(1) and (2) of the Act, the tenant was set exparte and an _ex parte_ order of eviction was also passed in R.C.P.No.3 of 2019, on 12.02.2020. Thereafter, the tenant filed I.A.No.31 of 2020 in R.C.P.No.3 of 2019, seeking an order to set aside the _ex parte_ order of eviction and that application is filed within the time limit specified in Rule 13(3) of the Kerala Buildings (Lease and Rent Control) Rules, 1979, which provides -6- O.P.(RC) No.130 of 2022 that in any case in which an order is passed _ex parte_ against a tenant or a landlord, the tenant or the landlord, as the case may be, within fifteen days from the date of receipt of the order, apply to the Accommodation Controller or the Rent Control Court, as the case may be, by whom the order was passed, for an order to set aside, and if the tenant or the landlord satisfies the Accommodation Controller or the Rent Control Court, as the case may be, that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the application was called on for hearing, the Accommodation Controller or the Rent Control Court, as the case may be, shall make such order as it deems fit, an order passed against the tenant or landlord, as the case may be, and shall appoint a day for proceeding with the application. As per the proviso to Rule 14(3), no order shall be set aside on any such application as aforesaid unless notice thereon has been served on the opposite party. By the order dated 13.06.2022, which is under challenge in R.C.A.No.34 of 2021 before the Rent Control Appellate Authority, the Rent Control Court dismissed I.A.No.31 of 2020 in R.C.P.No.3 of 2019 on the ground that the tenant has not produced any documents to show that on -7- O.P.(RC) No.130 of 2022 12.02.2020 he was suffering from diarrhea. Another reason stated in the said order not to set aside the _ex parte_ order was that the tenant has not deposited admitted arrears of rent of Rs.4,60,000/- as per order dated 06.02.2020 in I.A.No.1 of 2020. The provisions under Rule 13(3) of the Kerala Buildings (Lease and Rent Control) Rules, 1979 is _pari materia_ to the provisions under Order IX Rule 13 of the Code of Civil Procedure, 1908. 6. In **G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC** **54]** in the context of an application filed under Order IX, Rule 13 of the Code, for setting aside an _ex parte_ decree, the Apex Court held that, the word ‘was prevented by any sufficient cause from appearing’ occurring in Order IX, Rule 13 of the Code must be liberally construed to enable the court to do complete justice between the parties, particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX, Rule 13 of the Code has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. -8- O.P.(RC) No.130 of 2022 7. In **G.P. Srivastava** , the Apex Court held further that, ‘sufficient cause’ for non-appearance refers to the date on which the absence was made a ground for proceeding _ex parte_ and cannot be stretched to rely upon other circumstances anterior in time. If ‘sufficient cause’ is made out for nonappearance of the defendant on the date fixed for hearing when _ex parte_ proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the _lis_ decided on merits. 8. In **Peeves Enterprises v. Muhammed Ashraf [2015 (3) KHC 981]** , relying on the law laid down by the Apex Court in **G.P. Srivastava** , a Division Bench of this Court held that, on an application filed under Order IX, Rule 13 of the Code of Civil Procedure, the court has to find out whether the erring party has made out sufficient cause for setting aside the _ex_ -9- O.P.(RC) No.130 of 2022 _parte_ decree. When no negligence or inaction is imputable to the erring party and the absence was not mala fide or intentional, the discretion has to be exercised in his favour, especially when the application is within the statutory time limit. In appropriate cases, the plaintiff can be compensated by adequate costs for the loss of time and the inconvenience caused to him. But any such condition shall not be too onerous. 9. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that when an application to set aside the _ex parte_ order of eviction was made within the statutory time limit and no negligence or inaction is imputable to the tenant and the absence was not mala fide or intentional, the Rent Control Court ought to have exercised the discretion in favour of the tenant, instead of rejecting that application on the ground that the tenant did not produced any document to substantiate that his absence on 12.02.2020 was for the reason stated in that application or that the tenant has not chosen to deposit the admitted arrears of rent in terms of the order dated 06.02.2020. Therefore, the reasoning of the Rent Control Court in Ext.P1 order dated 12.11.2021 for dismissing I.A.No.31 of 2020 in R.C.P.No.3 of -10- O.P.(RC) No.130 of 2022 2019 cannot be sustained in law. 10. Ext.P1 order is under challenge in R.C.A.No.34 of 2021 filed before the Rent Control Appellate Authority, which is one filed under Section 18(1)(b) of the Act. When the said appeal is one filed against an order in an interlocutory application filed for setting aside the _ex parte_ order of eviction, instead of directing the tenant to deposit arrears of rent in terms of the order dated 06.02.2020 in I.A.No.1 of 2020 in R.C.P.No.3 of 2019, which is one issued under Section 12(1) and (2) of the Act, the Appellate Authority ought to have finally decided R.C.A.No.34 of 2021, especially when I.A.No.31 of 2020 filed by the tenant in R.C.P.No.3 of 2019 seeking an order to set aside the _ex parte_ order of eviction passed on 12.02.2020, in one filed within the period of limitation prescribed in Rule 13(3) of the Kerala Buildings (Lease and Rent Control) Rules. 11. 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 -11- O.P.(RC) No.130 of 2022 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 (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 -12- O.P.(RC) No.130 of 2022 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. 12. 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 -13- O.P.(RC) No.130 of 2022 Rent Control Court or the Appellate Authority, as the case may be. 13. 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. 14. 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 -14- O.P.(RC) No.130 of 2022 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 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. 15. 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 -15- O.P.(RC) No.130 of 2022 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. -16- O.P.(RC) No.130 of 2022 ## 16. In **Abdul Razak P.M. v. K.C. Thomas and others** **[2022 (4) KHC 260]** , considering the object of the provisions of Section 12 of the Act, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India, this Court directed all Rent Control Appellate Authorities in the State to ensure time bound disposal of the appeals filed under S.18(1)(b) of the Act, against an order passed by the Rent Control Court under Section 12(3) of the Act. Similarly, this Court directed all Rent Control Courts/Appellate Authorities in the State to ensure time bound disposal of the applications filed under Section 12 of the Act, in pending Rent Control Petitions/Rent Control Appeals. Registrar (District Judiciary) was directed to communicate a soft copy of the judgment to all Rent Control Courts/Appellate Authorities in the State, without any delay. 17. The learned counsel for the respondent-landlord would point out that the Rent Control Petition is of the year 2019. The tenant had defaulted payment of monthly rent, despite the order of the Rent Control Court dated 06.02.2020 in I.A.No.31 of 20202 in R.C.P.No.3 of 2019, an application filed by the landlord under Section 12 of the Act. The said order is one -17- O.P.(RC) No.130 of 2022 passed by the Rent Control Court under Section 12(1) and (2) of the Act. Once the _ex parte_ order of eviction is set aside, the Rent Control Court has to proceed further in that application, in exercise of its powers under Section 12(3) of the Act. 18. The learned counsel for the petitioner-tenant would submit that the tenant was conducting a CBSE School, having classes up to Standard IV, in the building in question. Due to the situation prevailing on account of Covid-19 pandemic, he was forced to close down the school and in such circumstances, he could not pay the arrears of rent. 19. The learned counsel for the respondent-landlord would point out the registration of Crime No.556 of 2017 of Chalakudy Police Station against the tenant in connection with the conduct of the said School, alleging commission of an offence under Section 420 of the Indian Penal Code, 1860. 20. For the reasons, hereinbefore this original petition is disposed of by setting aside the order dated 13.06.2022 in I.A.No.1 of 2021 in R.C.A.No.34 of 2021 of the Additional Rent Control Appellate Authority-IV, Thrissur and also the order dated 12.01.2021 of the Rent Control Court, Chalakudy in I.A.No.31 of 2020 in R.C.P.No.3 of 2019 and also the _ex parte_ -18- O.P.(RC) No.130 of 2022 order of eviction dated 12.02.2020 in R.C.P.No.3 of 2019, on deposit of **Rs.1,00,000/-** towards arrears of rent by the petitioner-tenant, before the Rent Control Court, within a period of one month from the date of this judgment. On such deposit, I.A.No.31 of 2020 in R.C.P.No.3 of 2019 on the file of the Rent Control Court, Chalakudy and R.C.A.No.34 of 2021 on the file of the Additional Rent Control Appellate Authority-IV, Thrissur will stand allowed and accordingly the _ex parte_ order of eviction passed on 12.02.2020 in R.C.P.No.3 of 2019 will stand vacated. Thereafter, the Rent Control Court shall pass further orders in I.A.No.1 of 2020 in R.C.P.No.3 of 2019, invoking its powers under Section 12(3) of the Act, taking note of the statutory provisions referred to hereinbefore and also the law laid down in the decisions referred to _supra_ , as expeditiously as possible, at any rate, within a period of one month from the date of appearance of the parties before the Rent Control Court. The Rent Control Court shall finally dispose of R.C.P.No.3 of 2019, within a further period of three months. Both parties are directed to appear before the Rent Control Court, Chalakudy, on **09.08.2022** . The Rent Control Court shall permit the landlord to withdraw Rs.1,00,000/- -19- O.P.(RC) No.130 of 2022 deposited by the tenant in terms of this judgment. In case of any default on the part of the tenant in remitting the said amount, within the time limit specified hereinbefore, R.C.A.No.34 of 2021 on the file of the Additional Rent Control Appellate Authority-IV, Thrissur will stand dismissed, thereby confirming Ext.P1 order dated 12.11.2021 of the Rent Control Court, Chalakudy in I.A.No.31 of 2020 in R.C.P.No.3 of 2019. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** AV/29/7 -20- O.P.(RC) No.130 of 2022 ## **`APPENDIX OF OP (RC) 130/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF THE ORDER DATED 12-11-2021 IN I.A.NO.31 OF 2020 IN R.C.P. NO. 3 OF 2019 OF THE RENT CONTROL COURT, CHALA- KUDY . ``` ``` Exhibit P2TRUE COPY OF THE ORDER IN I.A.NO.1 OF 2021 IN RCA NO.34 OF 2021 DATED 23-03- 2022 OF THE IV ADDITIONAL RENT CONTROL APPELLATE AUTHORITY ,TRISSUR ``` ``` Exhibit P3TRUE COPY OF THE ORDER IN I.A.NO.1 OF 2021 IN RCA NO.34 OF 2021 DATED 13-06- 2022 OF THE IV ADDITIONAL RENT CONTROL APPELLATE AUTHORITY ,TRISSUR ```