V.M. Abdulla Koya v. Thoppil Imbichamminabi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN** **&** **THE HONOURABLE MRS. JUSTICE M.R. ANITHA** **MONDAY, THE 9[TH] DAY OF AUGUST 2021 / 18TH SRAVANA, 1943** ## **O.P.(RC)NO.33 OF 2021** **AGAINST THE ORDER OF THE RENT CONTROL APPELLATE AUTHORITY DATED 07.01.2021 IN I.A.NO.1 OF 2020 IN R.C.A.NO.85 OF 2019** ## **PETITIONERS:** **V.M.ABDULLA KOYA, AGED 61 YEARS, S/O. USMAN, BUILDING NO.21/2315-B, PANNIYANKARA AMSOM AND DESOM, KALLAI POST, KOZHIKODE TALUK, PIN-673 003.** **BY ADVS. V.T.MADHAVANUNNI V.A.SATHEESH M.S.VINEETH M.VIVEK RABINDRANATH** ## **RESPONDENTS:** **THOPPIL IMBICHAMINABI, AGED 80 YEARS D/O. K.V.MAMUKOYA HAJI, OWN AFFAIRS, 14/818, SANTHOSH MAHAL, NAGARAM AMSOM AND DESOM, KALLAI POST, KOZHIKODE TALUK, PIN-673 003, REPRESENTED BY POWER OF ATTORNEY HOLDER MUHAMMED ARIF, S/O. MAMULOYA, AGED 48 YEARS, BUSINESS, PUTHIYA PARAMBIL, KARANIVEEDU, NAGARAM AMSOM DESOM, KOZHIKODE-673 003.** **THIS O.P.(RENT CONTROL) HAVING COME UP FOR ADMISSION ON 09.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P.(RC) NO.33 OF 2021** -2- ## **“CR”** ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the respondent-tenant in R.C.P.No.193 of 2012 on the file of the Rent Control Court (Principal MunsiffII), Kozhikode, a petition filed by the respondent hereinlandlord, under Section 5 of the Kerala Buildings (Lease and Rent Control) Act, 1965 for fixation of fair rent of the petition schedule shop room from Rs.475/- to Rs.6,000/- per month. The Rent Control Court, by the judgment dated 28.02.2019 fixed the fair rent of the shop room as Rs.1,800/- per month, with effect from the date of petition, with 10% increase in every three years. 2. The tenant challenged the judgment of the Rent Control Court by filing R.C.A.No.85 of 2019 before the Rent Control Appellate Authority (1[st] Additional District Judge), Kozhikode, invoking the provisions under Section 18(1)(b) of the Act. In that appeal, the landlord filed I.A.No.1 of 2020, invoking the provisions under Section 12(1) and (3) of the Act, seeking an order directing the appellant-tenant to deposit ## **O.P.(RC) NO.33 OF 2021** -3- enhanced rent at the rate of Rs.1,800/- per month, for the period from 10.12.2012 onwards, till date, and continues to deposit the same till the disposal of the appeal, failing which, to dismiss that appeal and put the landlord in possession of the petition schedule shop room. The affidavit dated 10.11.20120 of the landlord, filed in support of I.A.No.1 of 2020 in R.C.A.No.85 of 2019, is marked as Ext.P1. 3. The tenant filed Ext.P2 objection dated 22.12.2020 in I.A.No.1 of 2020, raising a specific contention that the provisions under Section 12 of the Act has no application in an appeal filed before the Rent Control Appellate Authority under Section 18 of the Act, challenging the judgment of the Rent Control Court fixing fair rent under Section 5. The Rent Control Court repelled that contention, relying on the decision of a Division Bench of this Court in **Williams Daniel v. Jose [2019 (5) KHC 205 : 2019 (4) KLT 464 : ILR 2019 (4) Kerala 447]** . By the order dated 07.01.2021, the Appellate Authority allowed I.A.No.1 of 2020 and directed the tenant to pay arrears of rent at the rate fixed by the Rent Control Court, in respect of the petition schedule shop room, at the rate of ## **O.P.(RC) NO.33 OF 2021** -4- Rs.1,800/- per month (with effect from 10.12.2012), with 10% increase in every three years, up to the date of appeal, within a period of five weeks from 07.01.2021, the date of the order, and continues to pay or deposit arrears of rent which may subsequently become due in respect of that shop room, until the termination of proceedings before the Appellate Authority, within a period of three weeks from the dates on which the rent become due. Challenging the said order of the Appellate Authority, 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. 4. On 26.02.2021, when this original petition came up for admission, this Court admitted the matter on file and issued notice to the respondent. This Court granted an interim order staying Ext.P3 order dated 07.01.2021 of the Appellate Authority in I.A.No.1 of 2020 in R.C.A.No.85 of 2019, for a period of four months. The said interim order is still in force, in view of the order of the Full Bench of this Court in the _Suo Motu_ Proceedings, i.e., W.P.(C)No.11316 of 2021, extending the period of limitation, operation of interim orders, etc. ## **O.P.(RC) NO.33 OF 2021** -5- 5. Heard the learned counsel for the petitioner-tenant. Despite service of notice, none appears for the respondentlandlord. 6. The issue that arises for consideration in this original petition is as to whether any interference is warranted on the order of the Rent Control Appellate Authority dated 07.01.2021 in I.A.No.1 of 2020 in R.C.A.No.85 of 2019, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 7. Section 12 of the Kerala Buildings (Lease and Rent Control) Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per sub-section (1) of Section 12, no tenant against whom an application for eviction has been made by a landlord under S ection 11, shall be entitled to contest the application before the Rent Control Court under that S ection, or to prefer an appeal under S ection 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 **O.P.(RC) NO.33 OF 2021** -6- 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 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. 8. 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 **O.P.(RC) NO.33 OF 2021** -7- 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 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. 9. A reading of the provisions under Section 12 of the Act would show that, sub-section (1) of Section 12 enjoins upon a tenant against whom an application for eviction has been made by a landlord under S ection 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 that court. Similarly, no **O.P.(RC) NO.33 OF 2021** -8- tenant against whom an order of eviction has been made by the Rent Control Court, on an application for eviction made by a landlord under Section 11, shall be entitled to prefer an appeal under S ection 18 against that order, unless he has paid or pays to 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 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 Appellate Authority. In that view of the matter, the provisions under Section 12 of the Act, which deals with payment or deposit of rent during the pendency of proceedings for eviction, have no application in a Rent Control Petition filed by the landlord, before the Rent Control Court, under Section 5 of the Act for fixation of fair rent or in an appeal preferred under Section 18 of the Act, against the order of the Rent Control Court on such an application filed for fixation of fair rent. 10. In **Ismail S.P. v. K. Sudhakara Shenoy [2009 (4) KHC 889 : 2009 (4) KLT 864 : ILR 2010 (1) Ker.** ## **O.P.(RC) NO.33 OF 2021** -9- **281]** , after quoting Section 12 of the Kerala Buildings (Lease and Rent Control) Act, a Division Bench of this Court held that, sub-sections (1) to (3) of Section 12 can strictly apply only in cases where the original proceeding is for eviction of the tenant under Section 11. Therefore, the order of eviction granted by the Rent Control Appellate Authority while dismissing an appeal filed by the tenant under Section 18 of the Act, thereby confirming the fair rent fixed by the Rent Control Court, was clearly beyond the scope of the proceedings under Section 5. Paragraph 5 of that decision reads thus; “5. A careful reading of the above quoted provisions will show that sub-sections (1) to (3) of Section 12 can strictly apply only in cases where the original proceeding is for eviction of the tenant under Section 11. It appears to us that the above fundamental aspect of the matter was missed by the learned Appellate Authority. The best that the landlord could have aspired for in the appeal, was a judgment dismissing the appeal preferred by the revision petitioner there by confirming the fair rent fixed by the Rent Control Court. Under the impugned Judgment, the respondent has been granted not only such a judgment but an order of eviction also, which was **O.P.(RC) NO.33 OF 2021** -10- clearly beyond the scope of proceedings under Section 5.” 11. In **Joy Daniel v. N.A. Ibrahimkutty and others [2020 (2) KHC 543: 2020 (2) KLT 850 : ILR 2020 (2) Kerala 398]** , on the question as to whether Section 12(1) of the Kerala Buildings (Lease and Rent Control) Act casts an obligation on the tenant to pay the admitted arrears of rent in order to contest an appeal filed against an order under Section 12(3), which is to the effect of stoppage of the proceedings and directing the tenant to put the landlord in possession of the premises, a Full Bench of this Court held that, Section 12(1) of the Act provides such an obligation only in the case of an application under Section 11 or in the case of an appeal preferred under Section 18, against an order passed by the Rent Control Court on an application under Section 11. As long as the obligation cast under Section 12(1) is exclusively confined to an application for eviction filed under Section 11 and to an appeal filed challenging an order passed on such an application, the obligation in this regard cannot be extended in the case of an appeal instituted against an order passed by **O.P.(RC) NO.33 OF 2021** -11- the Rent Control Court under Section 12(3). 12. In the instant case, the landlord filed R.C.P.No.193 of 2012 before the Rent Control Court, under Section 5 of the Act, for fixation of fair rent of the petition schedule shop room. By the judgment dated 28.02.2019, the Rent Control Court fixed the fair rent of the shop room as Rs.1,800/- per month, with effect from the date of petition, with 10% increase in every three years. The tenant challenged that judgment by filing R.C.A.No.85 of 2019 before the Rent Control Appellate Authority, invoking the provisions under Section 18(1)(b) of the Act. In that appeal, the landlord filed I.A.No.1 of 2020, under Section 12(1) and (3) of the Act, seeking an order directing the appellant-tenant to deposit fair rent at the rate of Rs.1,800/- per month, for the period from 10.12.2012 onwards, till date, and continues to deposit the same till the disposal of the appeal, failing which, to dismiss that appeal and put the landlord in possession of the petition schedule shop room. 13. As already held hereinbefore at paragraph 9, the provisions under Section 12 of the Act have no application in a **O.P.(RC) NO.33 OF 2021** -12- Rent Control Petition filed by the landlord, before the Rent Control Court, under Section 5 of the Act for fixation of fair rent or in an appeal preferred under Section 18 of the Act, against the order of the Rent Control Court on such an application filed for fixation of fair rent. Therefore, as rightly contended by the tenant, the provisions under Section 12 of the Act have no application in R.C.A.No.85 of 2019 filed before the Appellate Authority under Section 18 of the Act, challenging the judgment of the Rent Control Court in R.C.P.No.193 of 2012 fixing fair rent under Section 5, and as such the Appellate Authority ought to have dismissed I.A.No.1 of 2020 in R.C.A.No.85 of 2019, as not maintainable. 14. In the impugned order dated 07.01.2021 the Appellate Authority repelled the contention of the tenant as to the maintainability of I.A.No.1 of 2020 in R.C.A.No.85 of 2019, relying on the decision of a Division Bench of this Court in **Williams Daniel v. Jose [2019 (5) KHC 205 : 2019 (4) KLT 464 : ILR 2019 (4) Kerala 447]** . In the said order, the Appellate Authority held that, the tenant is liable to pay the fair rent fixed by the Rent Control Court, in accordance with **O.P.(RC) NO.33 OF 2021** -13- the provisions under Section 12 of the Act, since it is a proceedings under Section 18 of the Act against the order passed by the Rent Control Court. 15. In **Williams Daniel** the Division Bench was dealing with a case in which the petitioner-landlord filed R.C.P.No.39 of 2008 before the Rent Control Court, Thrissur, seeking eviction of the respondent-tenant from the tenanted shop room under Section 11(4) (iii) of the Kerala Buildings (Lease and Rent Control) Act. The respondent denied landlord-tenant relationship with the petitioner and he claimed to be the tenant under the previous landlord, paying monthly rent of Rs.1,400/-. According to the respondent, during the currency of tenancy, he entered into an oral agreement for sale with the previous owner and consequently, his liability to pay rent came to an end. In R.C.P. No.39 of 2008, the Rent Control Court passed an order of eviction under Section 11(4)(iii) of the Act. The respondent challenged the order of eviction in R.C.P. No.39 of 2008, by filing R.C.A. No.59 of 2012 before the Rent Control Appellate Authority, Thrissur, invoking Section 18 of the Act. In R.C.A.59 of 2012, the petitioner filed **O.P.(RC) NO.33 OF 2021** -14- I.A.No.761 of 2018, under Section 12 of the Act, seeking an order directing the respondent to deposit the arrears of fair rent with effect from 01.09.2006, as fixed by the orders passed in the earlier round of litigation, i.e., R.C.P.No.81 of 2006, in which the Rent Control Court fixed fair rent of the tenanted shop room, under Section 5(1) of the Act and ordered eviction under Section 11(2)(b) of the Act. In R.C.A.No.88 of 2010 filed by the petitioner, the Rent Control Appellate Authority, Thrissur, enhanced the fair rent fixed by the Rent Control Court. R.C.A.No.72 of 2010 filed by the respondent ended in dismissal. The common order dated 19.03.2018 of the Appellate Authority was challenged before this Court by filing R.C.R.Nos.225 and 226 of 2018, which ended in dismissal. The revisional order was challenged before the Apex Court by filing S.L.P.Nos.30773-74 of 2018, which were also dismissed. By contending that the liability of respondent for contractual rent was replaced by the order of the Appellate Authority in R.C.A.No.88 of 2010 fixing fair rent, the petitioner filed I.A.No.761 of 2018, under Section 12 of the Act, in R.C.A.59 of 2012 filed by the respondent, which is **O.P.(RC) NO.33 OF 2021** -15- an appeal preferred under Section 18 of the Act, against an order of eviction passed by the Rent Control Court under Section 11(4)(iii) of the Act, seeking an order directing the respondent to pay a sum of Rs.18,35,894/- towards arrears of fair rent due with effect from 01.09.2006. The Appellate Authority, after hearing both sides, allowed I.A.No.761 of 2018, by the order dated 14.08.2018. That order was challenged before this Court by filing O.P.(RC) No.171 of 2018, which ended in dismissal by the judgment dated 26.11.2018. Thereafter, on 28.11.2018, the petitioner moved the Appellate Authority by filing I.A.No.4637 of 2018 in R.C.A.59 of 2012, seeking an order of eviction of the respondent under Section 12(3) of the Act for non-deposit of the arrears of rent in compliance with the order in I.A.No.761 of 2018. The respondent filed I.A.No.4801 of 2018 seeking permission to deposit arrears of contractual rent and for consequential discharge of his liability. The Appellate Authority, while dismissing I.A. Nos.4637 and 4801 of 2018, by its order dated 28.05.2019, took the view that the admitted arrears of rent do not take in fair rent determined by the court **O.P.(RC) NO.33 OF 2021** -16- and therefore, a tenant, who deposits arrears of contractual rent agreed by the parties, has a right to prosecute the appeal uninhibited by the bar provided by Section 12 of the Act. 16. In **Williams Daniel** a Division Bench of this Court held that, once fair rent is fixed by the court, the rent agreed or stipulated by the parties to lease transaction comes to a total cessation and becomes unenforceable under law. The contractual rent is fully replaced by fair rent adjudged by the court in exercise of the powers vested in it under Section 5(1) of the Act. When the court adjudicates and quantifies the fair rent, the contract between the parties agreeing to any rate of rent or terms of payment vanishes forever. The right or liability of parties to receive or pay the rent is thereafter governed by the terms of the order of court adjudicating the fair rent. The parties can no longer fall back upon the contractual rent and build his or her claim thereon, since the contract rent is non-existent under law. In order to contest an eviction petition or to prosecute an appeal, the tenant is bound to pay or deposit the arrears of fair rent already fixed by the court, as if the fair rent means the rent admitted by the **O.P.(RC) NO.33 OF 2021** -17- tenant and payable by him under Section 12 of the Act. The expression 'arrears of rent admitted' in Section 12 of the Act, when read in the light of the scheme of the Act and provisions for fixing fair rent, could only be construed as rent incapable of being disputed or denied by the tenant. When a party is legally disentitled or disabled under law from denying or disputing a fact which was decided by the court after adjudicatory process, it is as good as a fact admitted by him, since under no circumstance he can wriggle out of the binding decision, unless it could be shown to be inconclusive. A tenant bound by an order fixing fair rent under Section 5(1) of the Act, cannot contend that he is not liable under Section 12 to deposit fair rent greater than contract rent agreed to between parties, adjudged by the court nor can a landlord similarly contend that he is entitled to contract rent larger than the fair rent adjudged by the court. The fair rent adjudged by the court is at par with the expression 'admitted rent' used in Section 12, inasmuch as the parties are estopped or precluded from disowning or renouncing their liability to pay or receive fair rent as long as it has attained finality under law. The **O.P.(RC) NO.33 OF 2021** -18- Division Bench held that the liability of the tenant to deposit arrears of admitted rent under Section 12, must be identified with the arrears of fair rent payable by him and computed in accordance with the rates specified in the common order of the Rent Control Appellate Authority dated 19.03.2018. Therefore, the order of the Appellate Authority accepting the statement of arrears of rent filed by the tenant based on the monthly contract rent of Rs.1,400/- and his consequential discharge from the liability is illegal and unsustainable. 17. The _ratio decidendi_ in **Williams Daniel** is that, the expression 'arrears of rent admitted' in Section 12 of the Kerala Buildings (Lease and Rent Control) Act, when read in the light of the scheme of the Act and the provisions under Section 5 for fixing fair rent, could only be construed as rent incapable of being disputed or denied by the tenant. A tenant bound by an order fixing fair rent under Section 5(1) of the Act, cannot contend that he is not liable under Section 12 to deposit fair rent greater than contract rent agreed to between parties, adjudged by the court nor can a landlord similarly contend that he is entitled to contract rent larger than the fair **O.P.(RC) NO.33 OF 2021** -19- rent adjudged by the c ourt. Therefore, in order to contest an application for eviction before the Rent Control Court or to prefer an appeal under Section 18 of the Act against any order made on such application, such a tenant is bound to pay or deposit the arrears of fair rent already fixed by the court in a proceedings between the parties, under Section 5(1) of the Act. The liability of the tenant under Section 12(1) of the Act to pay or deposit the arrears of rent admitted by him will arise only in an application for eviction filed under Section 11 of the Act or in an appeal preferred under Section 18 of the Act, against any order made on such application. 18. In the instant case, the provisions under Section 12 of the Act have no application in R.C.A.No.85 of 2019 filed before the Rent Control Appellate Authority, under Section 18 of the Act, challenging the judgment of the Rent Control Court in R.C.P.No.193 of 2012 fixing fair rent under Section 5, since it is not an appeal filed against any order passed by the Rent Control Court on an application for eviction made by the landlord under Section 11 of the Act. In that view of the matter, conclusion is irresistible that, while entertaining **O.P.(RC) NO.33 OF 2021** -20- I.A.No.1 of 2020 in R.C.A.No.85 of 2019, the Rent Control Appellate Authority committed manifest error, and the reasoning of the said Authority in the impugned order dated 07.01.2021 is patently erroneous and illegal, which warrants interference of this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. 19. In the result, this original petition is allowed by setting aside the impugned order dated 07.01.2021 of the Rent Control Appellate Authority, Kozhikode in I.A.No.1 of 2020 in R.C.A.No.85 of 2019, thereby dismissing I.A.No.1 of 2020 as not maintainable in law. No order as to costs. ## **ANIL K. NARENDRAN, JUDGE** Sd/- **M.R. ANITHA, JUDGE** STK ## **O.P.(RC) NO.33 OF 2021** -21- ## **APPENDIX OF O.P.(RC)No.33 of 2021** **PETITIONER EXHIBITS** **EXHIBIT P1** **TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE I.A.NO.1 OF 2020 IN R.C.A. NO.85 OF 2019 U/S 12 OF THE ACT 2 OF 1965 IN RENT CONTROL APPELLATE AUTHORITY (IST ADDITIONAL DISTRICT JUDGE), KOZHIKODE.** ## **EXHIBIT P2** **TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN I.A.NO.1 OF 2020 IN R.C.A. NO.85 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY & I ADDITIONAL DISTRICT JUDGE, KOZHIKODE.** **EXHIBIT P3** **TRUE COPY OF THE ORDER IN I.A.NO.1 OF 2020 IN R.C.A. NO.85 OF 2019 U/S 12 OF THE ACT 2 OF 1965 BY THE RENT CONTROL APPELLATE AUTHORITY (IST ADDITIONAL DISTRICT JUDGE), KOZHIKODE, DATED 7.1.2021.**