Thomas George Vayalil v. Musammil M.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI THURSDAY, THE 21ST DAY OF MARCH 2013/30TH PHALGUNA 1934 RCRev..No. 86 of 2013 () ------------------------- AGAINST THE ORDER/JUDGMENT IN RCA.15/2012 of D.C. & SESSIONS COURT,KOZHIKODE DATED 21-11-2012 AGAINST THE ORDER/JUDGMENT IN RCP.50/2011 of PRL.M.C.,KOZHIKODE-II DATED 19-12-2011 REVISION PETITIONER(S)/REVISION PETITIONER/APPELLANT/RESPONDENT: ----------------------------------------------------------------------------------------------------------------------------- THOMAS GEORGE VAYALIL, AGED 48 YEARS S/O GEORGE VAYALIL, 265-3RD MAIN, CHAMARAJPET BANGALORE-18. BY ADVS.SRI.K.M.FIROZ SMT.ANN SUSAN GEORGE SRI..SHAJA M. RESPONDENT(S)/PETITIONER: -------------------------------------------------- MUSAMMIL M.,, AGED 57 YEARS MUHAMMAD KOYA, 5/1950 A, SHADOW S.V. COLONY ROAD, KACHERI AMSOM KURUMBRAKATTASSERY DESOM, KOZHIKODE-673 502. R BY ADV. SRI.C.P.MOHAMMED NIAS THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14-03-2013, THE COURT ON 21.3.2013 PASSED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & A.V. RAMAKRISHNA PILLAI, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **R.C.R. No. 86 of 2013** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 21ST DAY OF MARCH, 2013** ## **O R D E R** ## Ramachandran Nair, J. The tenant who is faced with an order under Section 12(3) of the Kerala Buildings (Lease & Rent Control) Act (for short 'the Act'), which has been confirmed by the Appellate Authority, has approached this Court by filing this revision petition. 2. The eviction petition was filed as R.C.P.No.50/2011 by the respondent. The grounds alleged for eviction are under Sections 11(2)(b) (arrears of rent) and 11(4)(i) (sub-letting). The tenant filed an objection in the matter. Later, the landlord filed an application as I.A.No.1820/2011 invoking Section 12(3) of the Act to direct the petitioner herein to deposit the admitted arrears of rent. Overruling the objections, the Rent Control Court ordered, as per Annexure A1 order dated 25.10.2011 to deposit the entire arrears of rent on or before 30.11.2011, failing which an order under Section 12(3) shall follow. The petitioner did not deposit the amount in compliance with the said order. The final order passed by the Rent Control RCR No.86/2013 -2- Court has been produced as Annexure A2 which is dated 19.12.2011 directing the petitioner to vacate the building for non compliance of the direction obviously and after stopping the further proceedings in the Rent Control Petition. 3. In the appeal filed as R.C.A.No.15/2012 the Appellate Authority initially granted a conditional order of stay as per Annexure A4. Therein, the tenant was directed to deposit the entire arrears upto date with interest and cost of Rs.1,000/- within 15 days. Annexure A4 is dated 15.3.2012. It is the case of the petitioner that the deposit was made of an amount of Rs.50,000/- on 28.3.2012 and the order was complied with. But later the appeal itself was dismissed by the Appellate Authority confirming the order passed by the Rent Control Court. 4. We heard learned counsel for the petitioner Shri Firoz K.M. and Shri C.P. Muhammed Nias, learned counsel appearing for the respondent. 5. Learned counsel for the petitioner contended mainly that in Annexure A1 order the amount of arrears has not been quantified by the Rent Control Court. It is stated that the landlord's plea about the admitted arrears was accepted straightaway. Even though the landlord contended RCR No.86/2013 -3- that the agreed rate of rent at Rs.1,820/- per month stood increased by 15%, the same was disputed. Alternatively, it was contended that an amount of Rs.50,000/- was paid as security amount which, if adjusted, there will not be any arrears. It is submitted that in the light of the above contention, it was only proper that the amount was quantified by the Rent Control Court. It is submitted that the same vitiates the entire proceedings. 6. The counter statement filed before the Rent Control Court was placed for perusal. He denied that the rate of monthly rent was increased to Rs.2,095/- and the rent per month stood at Rs.1,820/-. It is also stated that the rent was being paid by Money Order which has been returned by the landlord and finally it is stated in para 4 that if the advance amount is adjusted, there will not be any arrears. 7. The Appellate Authority considered the above contentions and found that the order of the trial court is to deposit the entire rent arrears and the case of the tenant in the counter statement itself is that the rent was paid only upto November and it was concluded that rent is in arrears from December 2009. Accordingly, it was held that the order dated 19.12.20111 in I.A.No.1820/2011 to deposit the rent arrears is perfectly justified. With RCR No.86/2013 -4- regard to the order passed under Section 12(3) of the Act it is found that the Rent Control Court directed to make deposit on or before 30.11.2011, but no such deposit was made. Thereafter, on the failure to make deposit, another order is seen passed on 6.12.2011 requiring the tenant to show cause why orders should not be passed under Section 12(3) of the Act. It is also found that sufficient time was given to the tenant to show cause against the proceedings and on failure to show cause the order under Section 12(3) of the Act was passed on 19.12.2011 stopping further proceedings and directing the tenant to put the landlord in possession of the petition schedule building. It was found by the Appellate Authority that sufficient time was given at every stage, to the tenant. We extract Section 12(3) of the Act for easy reference as under: - “12(3) 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.” 8. Arguments were heard on the question whether there should have been a direction by the Rent Control Court in the initial order itself RCR No.86/2013 -5- quantifying the amount and then direct the tenant to deposit the said amount. 9. Learned counsel for the petitioner relied upon the following judgments of this Court: **Celine Sourunny v. Mary Paul Abrao** (1979 KHC 289), **Pathumma Beevi v. Lonappan** (1985 KHC 153), **Binuraj K.S. v. A.H. Thalish** (2010 KHC 6121) and S **anthosh K. Thomas v. Usha Suresh** (2013 (1) KLT 767) to drive home the said point. Learned counsel also relied upon a decision of the Patna High Court in **Ranchhod Lodha v.** **Madhabji Kanji (A** IR 1974 Patna 211) to contend that after the acceptance of the amount deposited in terms of the order passed by the Appellate Authority, the landlord is estopped from raising further contentions for implementation of the order passed under Section 12(3) of the Act. 10. Learned counsel for the respondent submitted that what is ordered by the Court is admitted arrears. That will be at the rate of Rs.1820/- per month, which is the rate admitted by the tenant as payable per month. The tenant's contention is also that if the advance amount is adjusted, there will not be any arrears which cannot be countenanced at all and no such advance has been received. It is therefore submitted that there RCR No.86/2013 -6- is no merit in the contentions raised regarding the legality of the orders passed. 11. On a reading of the judgment of this Court in **Celine Sourunny's case** (1979 KHC 289), it is seen that in the said case, on 21.8.1976 the Rent Control Court adjourned the case to 21.9.1976 for payment of admitted arrears and to show cause why an order under Section 12(3) should not be passed. On 21.9.1976 the petitioners paid Rs.300/- and contended that the amount was more than sufficient to cover the arrears till the date of deposit. There were subsequent payments by Rs.50/- each on 21.10.1976, 19.11.1976 and 9.2.1977. On 14.6.1977 the tenants were again directed to pay the admitted arrears. On 18.6.1977 the tenants again paid Rs.200/- and the case was adjourned. The parties were heard on 3.9.1977 and the order under Section 12(3) of the Act was passed on 7.9.1977. It was held by this Court that the procedure followed by the Rent Control Court is not the one contemplated under Section 12(3) of the Act. In the course of discussion, in para 4, this Court held as follows: “The object of S.12 is not to provide another ground of eviction in addition to those provided in S.11 of the Act. The purpose is to ensure that the tenant does not avail of the pendency of the RCR No.86/2013 -7- petition for eviction for evading regular payment of rent which, even according to him, is due to the landlord. It is not unlikely that disputes may crop - up regarding the calculation of the admitted arrears. In such cases, it is only proper that the Rent Control Court specifies the amount to be deposited and fixes the time for payment of the amount as contemplated in the proviso to S.12(2). The tenant need be deprived of his possession only if he does not make the deposit within the specified time.” Finally, it was observed as follows: “The correct procedure in my view in case of dispute regarding the quantum of the admitted rent is to resolve the dispute before fixing the time for payment of the arrears under proviso to S.12 (2).” Therefore, the facts of the said case are clearly distinguishable. Therein, during different periods deposits were being made and it is in that context the finding as above was rendered. Therefore, the same will not help the contentions of the petitioner herein. 12. In **Pathumma Beevi's case** (1985 KHC 153), a similar issue was considered. In para 11 it was held that “in a case where the court does not stipulate the amount that has to be paid or deposited and grants the tenant time to make the deposit, the sufficiency of the amount deposited has RCR No.86/2013 -8- to be first decided and if there is any deficit, the tenant has to be called upon to make good the shortfall before invoking the power under sub-section (3) of S.12 of the Act. In the absence of any such adjudication, it cannot be said that reasonable and real opportunity was given to the tenant to deposit the admitted arrears or to show cause against the default.” The facts of the said case also will show that arrears were admitted from 7.4.1980 and time was granted by the court. An order to show cause was passed later and then the tenant deposited an amount of Rs.990/- on 11.4.1980. On the same day an order under Section 12(3) was passed. On the basis of the above facts, this Court was of the view that there should have been a specific order stipulating the amount. This was ordered in the light of another plea by the tenant that an amount of Rs.110/- was outstanding with the landlord for ten months. The same also will not apply to the facts of this case. 13. In In **Binuraj's case** (2010 KHC 6121) we find that after the application was filed by the landlord for directing the tenant to deposit the arrears totallying an amount of Rs.2,76,000/- and an amount of Rs.1,50,000/- was tendered and accepted by the landlord. When the matter came up before the Rent Control Court an order was passed directing to RCR No.86/2013 -9- clear the admitted arrears upto the month of June 2009 within a period of four weeks from the said date. Going by the facts discussed in para 3 of the judgment, it can be seen that twice payments were effected and Rs.1,50,000/- was paid on 1.6.2009 and another amount of Rs.1,03,000/was paid on 20.7.2009 which are admitted by the landlord. In para 6, the question whether the Appellate Authority should have quantified the amount was considered and this Court was of the view that an adjudication ought to have been done in the matter. We find that the facts are not similar therein also. 14. The judgment of this Court in **Santhosh K. Thomas' case** (2013 (1) KLT 767) will show that when Section 8(1) of the Act is not in Statute book, as Section 8 was declared ultra vires by a Division Bench of this Court in _Issac Ninan v. State of Kerala_ (1995 (2) KLT 848), based on Section 8(1) of the Act, the tenant cannot contend that the landlord is not entitled to retain the security amount in excess of one month's rent. Therefore, the question of adjustment of the security amount even if raised by the tenant, it cannot be adjusted also. Herein, the plea by the respondent is that no security amount has been furnished. RCR No.86/2013 -10- 15. Then the question is whether in terms of the interim order passed by the Appellate Authority as the petitioner has deposited the arrears and cost, the order will have to go. The decision of the Patna High Court in **Ranchhod Lodha's case** (AIR 1974 Patna 211), which is heavily relied upon by the learned counsel for the petitioner will show that therein the plaintiff withdrew the delayed rent and subsequently applied for striking of the defence on the ground that the defendant had committed breach of the Court's order. The High Court took the view that the plaintiff is deemed to have waived his right to make such application accrued to him under Section 11-A when he withdrew the amount (without any grievance) and that the trial court had committed material irregularity in exercise of its discretion in striking out the defence. 16. Herein, the proceedings under challenge before the Appellate Authority was that of the Rent Control Court and the legality of the same alone was under dispute. It is not a case where in terms of the direction issued by the Rent Control Court the petitioner had made any deposit. In fact, the order dated 6.12.2011 is evident from Annexure A3. The case of the landlord that the rent is in arrears from December 2008 and the RCR No.86/2013 -11- contention of the tenant that the rent has been paid upto November 2009 has been adverted to by the Court and the rate of rent is taken as Rs.1820/per month. A direction was issued to make the deposit. The matter was posted to 18.12.2011 and 18.12.2011 being a holiday, the case was adjourned to 19.12.2011. It was found on 19.12.2011 that the tenant has not made the deposit and failed to show cause for not depositing the admitted arrears of rent. Therefore, no deposit was made by the tenant before the Rent Control Court, even though it was clear from the tenant's case that the rent is due from December, 2009. It is in that context the orders have been passed by the trial court which were found in favour of the landlord by the Appellate Authority also. We find that there is no irregularity in the proceedings. The quantification as such is not required herein, since the petitioner did not pay any amount or continue to pay any amount even after any of the orders have been passed. Since the rate of rent adopted is Rs.1,820/-, the admitted one, there was no difficulty to make the deposit as directed by the Rent Control Court. 17. Therefore, we find no reason to interfere with the order impugned. Learned counsel for the petitioner thus made a fervent plea for RCR No.86/2013 -12- allowing the tenant to contest the matter on merits since it is submitted that he has complied with the interim order passed by the Appellate Authority while granting stay. This is opposed by the learned counsel for the landlord by pointing out that the tenant is not in physical possession of the petition schedule building, but he has inducted a sub tenant. 18. We heard both sides on this point. It is submitted by the learned counsel for the petitioner that the eviction ordered only on the basis of arrears of rent will be highly prejudicial to the petitioner and the landlord will have to establish the ground pleaded in the petition itself. He therefore submitted that this Court can grant an opportunity to the tenant to contest the proceedings. 19. We are inclined to grant an opportunity but only on strict terms. If the petitioner pays or deposits the arrears as on 28.2.2013 within one month from today along with cost of Rs.10,000/- to the landlord within the same period before the Rent Control Court, he will be allowed to contest the proceedings on merits. If the above condition is not fulfilled, the order under Section 12(3) will be treated as final and the landlord can proceed in accordance with law. If the conditions are satisfied, then the order will be RCR No.86/2013 **==> picture [21 x 9] intentionally omitted <==** deemed to have been vacated and the trial court will proceed with the matter accordingly. On such deposit being made, the landlord can withdraw the amount. The revision petition is disposed of as above. No costs. **(T.R.RAMACHANDRAN NAIR, JUDGE)** **(A.V. RAMAKRISHNA PILLAI, JUDGE)** **kav/**