Thara Ranjith v SPCA Kannur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 2[ND] DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943 O.P.(RC) NO. 19 OF 2022** **SPEEDY DISPOSAL OF I.A.NO.2 OF 2021 IN R.C.A.NO.48 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-IV), THALASSERY** ## **PETITIONER:** **THARA RANJITH, AGED 39 YEARS, W/O RENJITH, RESIDING AT VASANTHA NIVAS, SOUTH BAZAAR, KANNUR, PIN – 670002.** **BY ADVS.** **PRAJIT RATNAKARAN ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH)** ## **RESPONDENT:** **SPCA KANNUR (SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS), NEAR MUNCIPAL OFFICE,KANNUR 2, REPRESENTED BY ITS SECRETARY P.C PRADEEP, S/O NARAYANAN, NEAR MUNCIPAL OFFICE, KANNUR, PIN – 670002.** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(RC) No.19 of 2022 ## **JUDGMENT** ## Ajithkumar, J. The petitioner is the respondent-tenant in Rent Control Petition No.18 of 2017 on the file of the Rent Control Court (Munsiff), Kannur, which was filed seeking eviction under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The rent control petition was allowed directing the petitioner to surrender vacant possession of the building to the respondent-landlord. The petitioner preferred an appeal, R.C.A.No.48 of 2019, before the Rent Control Appellate Authority (Additional District Judge-IV), Thalassery. This petition is filed under Article 227 of the Constitution of India seeking a direction to dispose of within a time frame I.A.No.2 of 2021 in R.C.A.No.48 of 2019, which is one for an order of stay of execution of order of eviction. 2. Monthly rate of rent for the petition schedule building is Rs.2,000/-. Alleging that the rent since 2013 has been in arrears, the rent control petition for eviction was filed and it was allowed. Along with the R.C.A., the petitioner filed I.A.No.533 of 2019 seeking to stay the operation of the order 3 O.P.(RC) No.19 of 2022 in R.C.P.No.18 of 2017. As per order dated 03.08.2019, the Appellate Authority stayed operation of the order of eviction on condition that the petitioner shall deposit half of the rent in arrears within a period of thirty days. The petitioner failed to deposit half of the rent in arrears within the time stipulated and therefore, the order of stay lapsed. Subsequently, the petitioner deposited half of the rent in arrears. Since the order of stay has already become inoperative by that time, the petitioner filed I.A.No.2 of 2021 in R.C.A.No.48 of 2019 seeking to stay operation of the order of eviction. The Appellate Authority has not yet considered the said interlocutory application. 3. Heard the learned counsel appearing for the petitioner. Considering the nature of the relief sought for in this original petition, service of notice on the respondent is dispensed with. 4. The learned counsel for the petitioner would contend that having the Appellate Authority, as per Ext.P1 granted stay on the condition of deposit of half of the rent in 4 O.P.(RC) No.19 of 2022 arrears and the amount, although belated, having been deposited, the Appellate Authority should have ordered stay on I.A.No.2 of 2021. Since the Appellate Authority has not considered the said application so far, there is possibility for the execution court to proceed with coercive step of effecting delivery of the petition schedule room and in that event, the petitioner would be put to irreparable injury and loss. 5. We may notice that petitioner being the tenant has obligation to pay rent every month, whether or not there is a rent control proceedings. When a proceedings under Section 11 of the Act is initiated, the liability to pay rent becomes more onerous, lest the tenant would not get the right to defend the eviction petition or, as the case may be, to prosecute an appeal. 6. In **Ramkumar J. v. Ashok Jacob [ILR 2021 (4) Kerala 876]** this Court explained the principle contained in Section 12 of the Act. It was observed, '12. 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 5 O.P.(RC) No.19 of 2022 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 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 subsection (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 Appellate 6 O.P.(RC) No.19 of 2022 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 subsection (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. 13. 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 7 O.P.(RC) No.19 of 2022 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 of the building, until the termination of the proceedings before the Appellate Authority. 14. 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. 15. 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 8 O.P.(RC) No.19 of 2022 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. 16. 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 the proceedings before the Rent Control Court or the Appellate Authority, regardless of the relief sought for in that application. As per Section 9 O.P.(RC) No.19 of 2022 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.' 7. Going by the principles laid by this Court in **J.Ramkumar (supra),** it is the obligation of the tenant to pay or deposit the entire rent in arrears and to continue to pay the rent falls due in the subsequent months in order for him to get the right to prosecute an appeal. All the same, the right of the tenant to prosecute an appeal cannot be jeopardized only on account of delay in disposing of an application filed by him. The learned counsel for the petitioner would submit that he has already paid the entire arrears of rent as ordered by the Appellate Authority as per Ext.P1, of course, not on time. It is for the Appellate Authority to consider Ext.P2 in the light of the fact that the arrears of rent was deposited as ordered in Ext.P1, although belatedly. In the circumstances, we are of the view that there shall be a direction to the Appellate Authority to dispose of Ext.P2, within a period of one month. 10 ## O.P.(RC) No.19 of 2022 Accordingly, we dispose of this original petition directing the Appellate Authority to dispose of Ext.P2, I.A.No.2 of 2021 in R.C.A.No.48 of 2019, within a period of one month from the date of production of the certified copy of this judgment. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 11 O.P.(RC) No.19 of 2022 ## **APPENDIX OF OP (RC) 19 OF 2022** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE ORDER DATED 03.08.2019 IN I.A.531/2019 IN R.C.A.47/2019 OF ADDITIONAL DISTRICT JUDGE-IV, THALASSERY. Exhibit P1 TRUE COPY OF I.A.2/2021 IN R.C.A.48/2019 OF ADDITIONAL DISTRICT JUDGE-IV, THALASSERY**