Seena Shahul v. K.V. Manikuttan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 9[TH] DAY OF JUNE 2022 / 19TH JYAISHTA, 1944 O.P.(RC) NO. 100 OF 2022** **AGAINST THE ORDER DATED 05.04.2022 IN R.C.P.NO.31 OF 2020 OF RENT CONTROL COURT (PRINCIPAL MUNSIFF), ERNAKULAM PETITIONER:** **SEENA SHAHUL AGED 44 YEARS, WIFE OF SHAHUL HAMEED, VEGETABLE & FRUITS VENDOR, G- 22, BIJU VIHAR, THEKKUMBHAGOM, THRIPPUNITHURA, NADMA VILLAGE, KANAYANNUR TALUK , PIN – 682301.** **BY ADVS. M.A.SULFIA ABDUL JALEEL.A** **RESPONDENT:** **K.V. MANIKKUTTAN AGED 71 YEARS, SON OF N.K. VASU, KANNEMBILLIL HOUSE, THEKKUMBHAGOM KARA, NADMA VILLAGE, KANAYANNUR TALUK, PIN – 682301.** **BY ADV P.M.JOSHI** **THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(RC) No.100 of 2022 ## **JUDGMENT** ## Ajithkumar, J. The revision petitioner is the respondent-tenant in R.C.P.No.31 of 2020 of the Rent Control Court (Principal Munsiff), Ernakulam, filed under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The respondent-landlord filed I.A.No.3 of 2022, Ext.P5, in the R.C.P. under Section 12 of the Act. The Rent Control Court as per order under Section 12(1) of the Act, on 10.02.2022, directed the petitioner to pay or deposit before the court within 30 days Rs.5,72,800/-, being the arrears of rent from 19.02.2020 to 30.01.2022. There was a further direction to the petitioner to continue to remit the rent for the subsequent period within 15 days from the date of due. Arrears of rent was not deposited in time or within the extended period. The Rent Control Court holding that no sufficient explanation was shown by the petitioner, as per Ext.P10 order dated 05.04.2022 directed the petitioner to handover vacant possession of the petition schedule building to the respondent 3 ## O.P.(RC) No.100 of 2022 within a period of 30 days from the date of that order, under the provision of Section 12(3) of the Act. The petitioner challenges the said orders, Exts.P7 and P10, in this Original Petition filed under Article 227 of the Constitution of India. 2. The respondent entered appearance through Advocate Sri.P.M.Joshy. As per order dated 10.05.2022, this Court as a last chance granted three weeks' time for making payment of the admitted arrears of rent. 3. Today, we heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent. 4. 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 4 O.P.(RC) No.100 of 2022 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 5 O.P.(RC) No.100 of 2022 aforesaid, the Rent Control Court or the Appellate Authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. As per Section 12(4), when any deposit is made under sub-section (1), the Rent Control Court or the Appellate Authority, as the case may be, shall cause notice of the deposit to be served on the landlord in the prescribed manner, and the amount deposited may, subject to such conditions as may be prescribed, be withdrawn by the landlord on an application made by him to the Rent Control Court or the Appellate Authority in that behalf. 5. 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 6 ## O.P.(RC) No.100 of 2022 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. 6. 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. A tenant who does not fulfill the 7 O.P.(RC) No.100 of 2022 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 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. 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. 7. Going by the said provisions an order under Section 12(3) of the Act is one deciding the rights of the parties conclusively and is final. Therefore a party aggrieved by that order is entitled to prefer an appeal under Section 18(1)(b) of the Act. It is therefore not ordinarily available for a party aggrieved to challenge such an order under Article 227 of the Constitution of India. But it is indisputable that an order under 8 ## O.P.(RC) No.100 of 2022 Section 12(1) of the Act is not appealable. It is not an order deciding the rights of the parties finally. In regard to the question of whether an appeal lies against an under Section 12(1) of the Act, a Division Bench of this Court in **Sidharthan v. Hassankutty Haji [1994 (2) KLT 419]** held,- “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 does not permit the tenant to challenge such an order in appeal.” 8. This view was reiterated in **Sathyaseelan and** ## **others v. Chengot Abdul Samad and others [2021 (1) KLT** **795]** . Hence, we find that Ext.P7 order which is one passed under Section 12(1) of the Act is not appealable under Section 9 O.P.(RC) No.100 of 2022 18(1)(b) of the Act. The petitioner may be justified in approaching this Court to challenge that order under Article 227 of the Constitution of India if there occurred glaring injustice. But, once the proceedings have come to an end by passing an order to stop the proceedings and directing the tenant to put the landlord in possession of the tented premises as provided under Section 12(3) of the Act, the remedy invokable is the appeal and not the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India. In the circumstances, we dismiss this original petition, without prejudice to the right of the petitioner to prefer an appeal in the matter. We also make it clear that we have not made any observation on the merits of the case. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr 10 O.P.(RC) No.100 of 2022 ## **APPENDIX OF OP (RC) 100/2022** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF RCP NO.31 OF 2020 Exhibit P2 TRUE COPY OF O.S. NO.1103 OF 2017 Exhibit P3 TRUE COPY OF THE WRITTEN STATEMENT Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN RCP 31/2020 Exhibit P5 TRUE COPY OF THE I.A 3/2020.** **Exhibit P6 TRUE COPY OF THE COUNTER AFFIDAVIT IN I.A 3/2020.** **Exhibit P7 COPY OF THE ORDER DATED 10.02.2022 IN I.A. 03 OF 2022 Exhibit P8 TRUE COPY OF I.A 7/2022 Exhibit P9 TRUE COPY OF IA 8/2022 Exhibit P10 TRUE COPY OF THE ORDER IN THE RCP 31 OF 2020**