Saseendran Babu v. A.R. Ayappan Pillai and Anitha

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` TUESDAY, THE 14[TH] DAY OF NOVEMBER 2023 / 23RD KARTHIKA, ``` ``` 1945 ``` ## **`R.C.REV.NO.221 OF 2023`** ``` RCA NO.9 OF 2022 DATED 25.08.2023 OF THE RENT CONTROL APPELLATE AUTHORITY (II ADDITIONAL DISTRICT JUDGE), KOLLAM AND ORDER DATED 14.12.2021 IN RC(OP) NO.57 OF 2011, I ADDITIONAL DISTRICT COURT AND I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM ``` ## **`REVISION PETITIONER/APPELLANT/RESPONDENT:`** ``` SASEENDRAN BABU, AGED 68 YEARS, S/O.KUTTAPPAN, RESIDING AT SREYAS, MANALIL NAGAR - 58, KUREEPUZHA, KAVANAD, KOLLAM DISTRICT, PIN - 691003 ``` ``` BY ADVS. G.P.SHINOD GOVIND PADMANAABHAN AJIT G ANJARLEKAR ATUL MATHEWS GAYATHRI S.B. ``` ## **`RESPONDENTS/RESPONDENTS/PETITIONERS:`** - **`1 A.R.AYYAPPAN PILLAI, AGED 68 YEARS, S/O. RAGHAVAN PILLAI, AMMA VEEDU, CUTCHERRY WARD, KOLLAM DISTRICT, PIN - 695013`** ``` 2 ANITHA, AGED 64 YEARS W/O.AYYAPPAN PILLAI, AMMA VEEDU, CUTCHERRY WARD, KOLLAM DISTRICT, PIN - 691013 ``` 2 R.C.Rev.No.221 of 2023 ``` BY ADVS. PRATHEESH P, ANJANA KANNATH (CAVEAT) ``` ## **`OTHER PRESENT:`** ## **`SMT. ANJANA KANNATH AND`** ## **`SRI. PRATHEESH P FOR RESPONDENTS`** ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 R.C.Rev.No.221 of 2023 ## **ORDER** ## **Anil K. Narendran, J.** The tenant in R.C.(OP) No.57 of 2011 on the file of the Rent Control Court (Munsiff), Kollam, has filed this Rent Control Revision invoking the provisions under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, challenging the judgment dated 25.08.2023 of the Rent Control Appellate Authority (II Additional District Judge), Kollam in R.C.A.No.9 of 2022, which was one filed under Section 18(1)(b) of the said Act challenging the order dated 14.12.2021 of the Rent Control Court in I.A.No.6 of 2021 in R.C.(OP) No.57 of 2011. The said interlocutory application was one filed by the respondentslandlords, invoking the provisions under Section 12 of the Act, seeking an order directing the tenant to deposit the admitted arrears of rent and continue to pay rent during the pendency of the rent control proceedings. In that interlocutory application, the Rent Control Court passed the order dated 14.12.2021, in exercise of its powers under Section 12(1) of the Act, read with Section 12(2), whereby the tenant was required to pay admitted arrears of rent amounting to Rs.3,37,500/-, within 15.01.2022 and to continue to pay or deposit the rent before the Rent Control Court, 4 ## R.C.Rev.No.221 of 2023 at the rate of Rs.1,500/- per month, which accrues subsequent to December 2021, within twenty days from the date of accrual of the rent. The challenge made in R.C.A.No.9 of 2022 against the order dated 14.12.2021 of the Rent Control Court in I.A.No.6 of 2021 in R.C.(OP) No.57 of 2011 ended in dismissal by the judgment dated 25.08.2023, which is under challenge in this Rent Control Revision filed under Section 20 of the Act. 2. Heard the learned counsel for the petitioner/tenant and also the learned counsel for the respondents/landlords. 3. Section 12 of the Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per subsection (1) of Section 12, 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 5 R.C.Rev.No.221 of 2023 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 sub-section (2) of Section 12, 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 subsection (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. 4. As per sub-section (3) of Section 12 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 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 6 ## R.C.Rev.No.221 of 2023 on the landlord in the prescribed manner, and the amount deposited may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him to the Rent Control Court or the Appellate Authority in that behalf. 5. Sub-section (1) of Section 12 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. 6. The liability of a tenant under sub-section (1) of Section 12 of the Act, against whom an application for eviction has been 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 7 ## R.C.Rev.No.221 of 2023 before the Rent Control Court. The object of the provisions under sub-section (1) of Section 12 of the Act is to deny the defaulting tenant the right to contest the application for eviction before the Rent Control Court unless he pays to the landlord, or deposits with the Rent Control Court, 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. Sub-section (2) of Section 12 of the Act enjoins a tenant to deposit the admitted rent under subsection (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 sub-section (2) of Section 12. ## 7. In **Sidharthan v. Hassankutty Haji [(1994) 2 KLT** **419]** a Division Bench of this Court was dealing with a case in which the Rent Control Petition was filed by respondents 1 to 11 therein, against revision petitioner and respondents 12 and 13, for eviction on the ground of _bona fide_ need for own occupation. 8 R.C.Rev.No.221 of 2023 Alleging that the tenant has failed to pay the admitted arrears, the landlord moved the Rent Control Court in I.A. 4010 of 1989, for an order under Section 12(3) of the Kerala Buildings (Lease and Rent Control) Act. After hearing both sides the Rent Control Court by the order dated 20.01.1990 directed the tenants to pay or deposit the entire arrears of rent till that date, as claimed in the petition, on or before 20.02.1990, or to show cause why all further proceedings shall not be stopped and the tenants directed to put the landlords in possession of the petition schedule building. That order was challenged before the Rent Control Appellate Authority. By the order dated 31.05.1990 the Appellate Authority dismissed the petition on account of the failure of the appellants-tenants to comply with the requirement under Section 12(2) of the Act. Hence the tenants filed revision before this Court under Section 20 of the Act. 8. In **Sidharthan [(1994) 2 KLT 419]** , the Division Bench noticed that Section 18(l)(b) of the Act enables any person aggrieved by an order of the Rent Control Court to prefer an appeal to the Appellate Authority within 30 days from the date of the order. Section 12(1) inter alia directs that no tenant against whom an order for eviction has been passed shall be entitled to 9 ## R.C.Rev.No.221 of 2023 prefer an appeal under Section 18 unless he 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 deposit. 9. In **Pochappan Narayanan v. Gopalan [(1990) 2 KLT 1]** a Division Bench held that paying or depositing of all arrears of rent admitted by the tenant is not a condition precedent for presenting an appeal under Section 18 of the Act. The appeal gets properly lodged when the same is presented in accordance with that Section. A tenant who does not fulfil 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. The Division Bench observed that the tenant has to be given one more opportunity by showing cause as to why penal consequence contemplated by Section 12(3) should not be imposed on him even after the court acts in accordance with Section 12(2) and the tenant still commits default. 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. 10 R.C.Rev.No.221 of 2023 10. In **Pochappan Narayanan [(1990) 2 KLT 1]** , the Division Bench quoted with approval the following observations of another Division Bench in the context of Section 12 of the Kerala Buildings (Lease and Rent Control) Act, in **C.V Xavier v. Francis Leonard Pappali [1975 KLT 542]** ; “9……. It is difficult to read Section 12(3) independent of Section 12(2). It is true that Section 12(1) restricts the right of the tenant against whom an application for eviction has been made under Section 11 to contest the application before the Rent Control Court or to prefer an appeal unless he had paid or pays to the landlord or deposits in the Rent Control Court or before the Appellate Authority the admitted arrears. It is evident from Section 12(2) that the deposit contemplated under Section 12(1) has to be in accordance with Section 12(2), which means that it has to be made only in the manner provided under Section 12(2). Hence the deposit the tenant has to make under Section 12(1) has to be within the time to be fixed by an order under Section 12(2). Even if he has been in default he does not lose the right to contest the application until and unless an order under Section 12(2) is passed and without sufficient cause, the tenant fails to comply with it. We have already indicated that this is a safeguard given to a tenant which is necessary in the circumstances of the case. For, if even non-payment of recurring rent without anything more would be sufficient to stop further proceedings and pass an order for eviction it would mean that in every case where a tenant has omitted 11 ## R.C.Rev.No.221 of 2023 to pay or delayed payment even by a day not only the arrears of rent due but also the recurring payment he would lose his right to contest the application and would have to receive an order for eviction. The rigor of the provision with regard to an order for eviction without contest has been considerably softened by the safeguards in Section 12(2), as we have said earlier and therefore it is only on the passing of order under Section 12(2) that the obligation to comply with it and the consequences of non-compliance attracting Section 12(3) would arise. We cannot conceive of independent obligations under Section 12(1) and 12(2) and their application to different sets of cases….” 11. In **Sidharthan [(1994) 2 KLT 419]** , the Division Bench held that, viewed in the light of the principles laid down in **Pochappan Narayanan [(1990) 2 KLT 1]** , the impugned order of the Rent Control Appellate Authority is unsustainable, since the appeal cannot be said to be not maintainable merely for the reason that the tenant has failed to deposit the admitted arrears along with the presentation of the appeal. The Appellate Authority has not followed the procedure contemplated under Section 12(2) of the Act, as explained in the aforesaid decision. Therefore, the impugned order is liable to be set aside. 12. Thereafter, in **Sidharthan [(1994) 2 KLT 419]** , the Division Bench considered the question whether the appeal should 12 R.C.Rev.No.221 of 2023 be remanded to the Appellate Authority for consideration on merits. The Division Bench was not inclined to adopt that course since it was of the view that the appeal was even otherwise not maintainable. What is challenged in appeal is an interlocutory order in the Rent Control Petition, which itself cannot be said to have determined the rights of parties finally nor can it be said that it affects some right or liability of any party. The Rent Control Court has only directed the tenant to pay the arrears of rent or to show-cause why further proceedings should not be stopped and the landlord put in possession of the building. It is up to the tenant either to pay the arrears or to show-cause why an order directing the tenant to put the landlord in possession should not be passed. Instead of either paying the arrears or showing cause, the tenant has rushed to the Appellate Authority challenging that order. Section 18 of the Act does not permit the tenant to challenge such an order in appeal. ## 13. In **Central Bank of India v. Gokal Chand [AIR** **1967 SC 799]** the Apex Court held that even an interlocutory order passed under Section 37(2) of the Delhi Rent Control Act, 1958, is an order passed under that Act and is subject to appeal, provided it affects some right or liability of any party. The Apex 13 ## R.C.Rev.No.221 of 2023 Court observed that the object of Section 38(1) of the Act was to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of Section 38(1) the words “every order of the Controller made under this Act” though very wide, do not include interlocutory orders which are merely procedural and do not affect the rights or liabilities of the parties. The Apex Court further observed that all interlocutory orders regarding summoning of witnesses, discovery, production and inspection of documents, issue of commission for examination of witness, inspection of premises, fixing the date of hearing and the admissibility of a document or the relevancy of a question are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceedings. It was held that these orders regulate the procedure only and do not affect any right or liability of the parties. ## 14. In **Thomas John v. Kochammini Amma [(1991) 1** **KLT 99]** , interpreting the provision contained in Section 18 of the Kerala Buildings (Lease and Rent Control) Act and applying the principles laid down by the Apex Court in **Gokal Chand [AIR 1967 SC 799]** , a Division Bench of this Court held that, an order passed on an application to set aside the report of the 14 R.C.Rev.No.221 of 2023 commissioner and to appoint a fresh commissioner is only a procedural one and does not affect the rights of any party. The matter was again considered in **Sumathi v. Devaran [(1991) 1** **KLT 453]** , wherein it was held that an order of refusal to try and decide a particular point as a preliminary issue is not an order affecting the rights of any party and is not appealable. After a survey of various judicial pronouncements this Court held that, a conspectus of those decisions leads to the conclusion that, though Section 18(1)(b) is wide in its terms, an appeal does not lie unless the order in question is finally disposing of the proceedings or is one which affects the rights or liabilities of the parties. Apart from the final orders, only those orders which virtually put an end to the proceedings or make it practically impossible for the affected party to get effective relief or to set up or substantiate a defence are rendered appealable. 15. In **Sidharthan [(1994) 2 KLT 419]** , the Division Bench agreed with the observations in Thomas John and concluded that, viewed in the light of the principles stated above the appeal before the Rent Control Appellate Authority was not maintainable. The appeal was directed against a procedural order, which only directed the tenant to pay the arrears of rent or 15 R.C.Rev.No.221 of 2023 to show cause why an order under Section 12(3) should not be passed directing the tenant to put the landlord in possession. It is not a final order nor does the order affect any right or liability of any party. The Division Bench held that the dismissal of the appeal by the Rent Control Appellate Authority was therefore proper and accordingly, the Division Bench sustained the same, though for different reasons. 16. In **Sidharthan [(1994) 2 KLT 419]** , on the facts of that case, the Division Bench observed that the tenants were able to postpone payment of a considerable amount towards arrears of rent on account of frivolous appeal filed by them. The order of the Rent Control Court was dated 20.01.1990, about 4½ years back. Though the tenants paid some amounts during the pendency of the revision, in pursuance of the order of the Division Bench, there was considerable amount of arrears even after such payments. The Division Bench found that since the direction of the Rent Control Court has not been complied with and even before such compliance the tenants had challenged that order, the only course open is to direct the Rent Control Court to proceed from the stage at which the order dated 20.01.1990 was passed. Therefore, an opportunity has to be given to the tenant to pay or deposit the 16 R.C.Rev.No.221 of 2023 admitted arrears of rent or to show cause why proceedings should not be stopped and the landlord be put in possession of the building. For the aforesaid reasons, the Division Bench dismissed the revision. At the same time, the Division Bench directed the Rent Control Court to afford an opportunity to the tenants to pay or deposit the admitted arrears of rent or to show cause why further proceedings should not be stopped and the tenants were directed to put the landlord in possession of the building. The Division Bench has made it clear that while doing so, the direction should be to deposit all the admitted arrears up to the date of that order, excluding the amounts paid during the pendency of the proceedings and that the Rent Control Court shall follow the procedure contemplated in Section 12 of the Act and the principles laid down by this Court in **Pochappan Narayanan [(1990) 2 KLT 1]** . 17. Viewed in the light of the law laid down by the Division Bench of this Court in **Sidharthan [(1994) 2 KLT 419]** , R.C.A. No. 9 of 2022 filed by the petitioner-tenant under Section 18(1)(b) of the Act, challenging the order dated 14.12.2021 of the Rent Control Court, Kollam, in I.A No. 6 of 2021 in R.C.(OP)No. 57 of 2011, which is an order passed in exercise of its jurisdiction 17 R.C.Rev.No.221 of 2023 under Section 12(1) of the Act, read with Section 12(2), is not appealable under Section 18(1)(b). 18. The learned counsel for the petitioner seeks permission to withdraw this Rent Control Revision, without prejudice to the right of the petitioner to challenge the subsequent order passed by the Rent Control Court under Section 12(3) of the Act, by filing an appeal before the Rent Control Appellate Authority. In such circumstances, without prejudice to the aforesaid right of the petitioner, this Rent Control Revision is dismissed as withdrawn. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** MIN