V.M. Pailee v. Anna John Chackola and Paul John Chackola

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 30[TH] DAY OF AUGUST 2022 / 8TH BHADRA, 1944** **R.C.REV. NO. 144 OF 2020** **AGAINST THE JUDGMENT DATED 18.06.2020 IN R.C.A.NO.56 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (II ADDITIONAL DISTRICT JUDGE), ERNAKULAM AND THE ORDER DATED 20.05.2019 IN R.C.P.NO.66 OF 2018 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF-III), ERNAKULAM** ## **REVISION PETITIONER:** **V.M. PAILEE,** **AGED 82 YEARS, S/O. LATE V.P. MATHAI, M/S. MARINE TAILORING, DOOR NO.27/4314, PANDIT KARUPPAN ROAD, PERUMANOOR-682015, RESIDING AT VADAKKEKUTTUMPARAMBIL HOUSE, PERUMANOOT, KOCHI-682015.** **BY ADVS.** **N.KRISHNA PRASAD SRI.R.SANJITH SMT.C.S.SINDHU KRISHNAH SRI.B.R.ANEES SMT.P.S.ANJU** ## **RESPONDENTS:** **1 ANNA JOHN CHACKOLA, AGED63 YEARS, W/O. LATE JOHN P.CHACKOLA, RESIDING AT PARIJATHAM HOUSE, PARIJATHAM ROAD, CHANGAMPUZHA NAGAR P.O., KALAMASSERY P.O., PIN-682033, THRIKKAKARA NORTH VILLAGE, ERNAKULAM DISTRICT.** 2 R.C.Rev.No.144 of 2020 **2 PAUL JOHN CHACKOLA, S/O. LATE JOHN P. CHACKOLA, AGED 36 YEARS, RESIDING AT PARIJATHAM HOUSE, PARIJATHAM ROAD, CHANGAMPUZHA NAGAR P.O., KALAMASSERY P.O., THRIKKAKARA NORTH VILLAGE, ERNAKULAM DISTRICT, PIN-682033.** **BY ADVS. BASIL MATHEW(CAVEATOR) BASIL MATHEW NINAN JOHN SANJANA SARA VARGHESE ANNIE AJAY KRISHNAN S.** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 17.08.2022, THE COURT ON 30.08.2022 DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.144 of 2020 ## **O R D E R** ## Ajithkumar, J. This revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, is filed by the respondent-tenant in R.C.P.No.66 of 2018 on the file of the Rent Control Court (Additional Munsiff-III), Ernakulam. The respondents-landlords filed the Rent Control Petition seeking eviction of the petitioner from the petition schedule building under Sections 11(2)(b) and 11(3) of the Act. The respondents filed I.A.No.9588 of 2018 in the R.C.P. under Section 12 of the Act. In that petition, the Rent Control Court on 27.03.2019 issued an order under Section 12(1) directing the petitioner to pay the admitted arrears of rent within thirty days. The petitioner failed. Hence, on 20.05.2019, an order under Section 12(3) of the Act was passed thereby the proceedings in the R.C.P. was stopped and the petitioner was directed to surrender vacant possession of the building to the respondents. An appeal was preferred by the petitioner challenging the said order, under Section 18(1)(b) of the Act, 4 R.C.Rev.No.144 of 2020 before the Rent Control Appellate Authority (Additional District Judge-II), Ernakulam. The appeal was dismissed as per the judgment dated 18.06.2020. The said order and the judgment are under challenge in this Revision. 2. On 09.09.2020, notice on admission was directed to be served on the respondents. Execution of the order of eviction was stayed subject to the condition of depositing an amount of Rs.2,21,345/- by the petitioner within ten days. The interim order of stay was extended from time to time. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 4. The contention of the respondents was that the rent since 01.04.2012 has been in arrears. The rate of rent from 01.04.2012 to 21.09.2012 was at the rate of Rs.60 per month and thereafter at the rate of Rs.5,424/- per month. The difference was on account of fixation of fair rent. 5. The petitioner did not dispute the said facts very much. The Rent Control Court, after considering the 5 R.C.Rev.No.144 of 2020 contentions by either side, directed the petitioner on 27.03.2019 to deposit the arrears of rent admitted to be due within 30 days and to continue to pay the rent for the subsequent period. After passing such an order, the case was posted to 20.05.2019. On that date, the Rent Control Court ordered,- “Petitioner represented. Respondent represented. No cause shown for non-compliance of order in I.A.9588 of 2018 dated 27.03.2019. Hence, all proceedings in R.C.P.66 of 2018 stopped. Tenant is directed to surrender vacant possession of petition schedule building forthwith and put the landlord in possession of the same. Ordered accordingly.” 6. The learned counsel appearing for the petitioner would contend that after making the order directing payment of the admitted arrears of rent, the court did not afford an opportunity to show cause before passing the order under Section 12(3) of the Act. As a matter of fact, an application seeking extension of time was filed by the petitioner before the Rent Control Court, but on account of an inadvertent omission, the same could not be submitted 6 R.C.Rev.No.144 of 2020 on 20.05.2019, but submitted only on 21.05.2019. Although the matter was represented before the court on 20.05.2019, the Rent Control Court proceeded to pass the impugned order. The learned counsel, pointing out the aforesaid facts, would submit that an opportunity to explain the reason for nonpayment was denied, and therefore, the said order is liable to be set aside. It is submitted that the Appellate Authority although adverted to **Shaji M. v. SNDP Shaka Yogam No.610, Alappuzha and another [2020 (2) KHC 574 (FB)]** , the principle therein was misunderstood. 7. The learned counsel appearing for the petitioner would contend that the Rent Control Court, on finding that the arrears of rent was not deposited or paid, should not have invoked the powers under Section 12(3) of the Act immediately; instead, the matter should have been postponed to another day. The learned counsel appearing for the respondents, on the other hand, would contend that an order under Section 12(1) of the Act was passed on 27.03.2019 and 7 ## R.C.Rev.No.144 of 2020 after about two months only the order under Section 12(3) of the Act was passed. Since the direction was to make payment within thirty days, the petitioner obtained enough time to show cause, if any, and therefore, the order dated 20.05.2019 under Section 12(3) of the Act is legal and not liable to be interfered with. 8. Another contention raised by the petitioner is that he spent an amount of Rs.4,23,300.50 for the renovation of the petition schedule building and if that amount is adjusted against the rent, there would not be any arrears. The Rent Control Court or the Appellate Authority failed to consider that contention and for that reason also the impugned order is assailed by the petitioner. 9. As regards the claim of the petitioner that the amount he said to have spent for the renovation of the petition schedule building should have been set off against the rent due, the law is definite. In **Nandanam Tiles and Sanitary Pvt.Ltd. v. Abdul Gafoor [2022 (4) KHC 201]** , this Court held that the tenant has no right to contend that 8 R.C.Rev.No.144 of 2020 the amount due to him from the landlord on some other head or even in respect of maintenance or renovation of the tenanted building has to be adjusted towards arrears of rent. Therefore, the said contention of the petitioner is not tenable. 10. In **Shaji M.** (supra) a Full Bench of this Court held that,- “11. In view of the principle evolved in Narayanan V. Vinod (supra), from the language of Section 12 (3) of the Act and from the legislative intent, it is not for the Rent Controller or the Appellate Authority to issue any separate notice to the tenant to enable him to show sufficient cause for not depositing the admitted arrears of rent. Instead, when the time fixed by the court for deposit of the arrears of rent runs out and the tenant has not deposited the same, the Rent Controller or the Appellate Authority, as the case may be, is not expected to pass an order ordering ejectment of the tenant forthwith. The Rent Controller or the Appellate Authority, as the case may be, should normally adjourn the hearing of the case to a date beyond the date fixed for deposit, thereby allowing reasonable time to the tenant to show sufficient cause for not depositing the rent if he has committed default in payment of the arrears of rent. We are of the considered opinion that the interpretation made and the directions issued in 9 R.C.Rev.No.144 of 2020 Narayanan V. Vinod (supra) is more apt and appropriate to be held as a view which can be legally sustained. It cannot be disputed that the opportunity to be afforded to the tenant to show 'sufficient cause' with respect to the failure to pay or to deposit the rent as directed in subsections (1) & (2), within the date stipulated, is not an empty formality. The principle of natural justice would mandate that the Rent Controller or the Appellate Authority, as the case may be, should afford the tenant with such an opportunity. But the question is whether the Rent Controller or the Appellate Authority need to issue any specific notice in this regard to the tenant to show cause. It is to be noticed that, the consequences provided under sub-section (3) follows when there occurres a default in complying with the direction for deposit or payment of the admitted arrears. Therefore, on the date stipulated for effecting such payment, by virtue of the order passed under subsections (1) & (2), the tenant becomes fully aware that unless sufficient cause has not been shown for the default committed, the consequence of stoppage of the proceedings and direction to put the landlord in possession of the building, would follow automatically. Therefore there is no necessity to alert the tenant by issuing any specific notice in this regard, calling upon him to show 'sufficient cause'. On the other hand, providing of a further opportunity after the last date 10 R.C.Rev.No.144 of 2020 stipulated for effecting the payment or the deposit, is not mandatory. If no sufficient cause is shown within such extended date to which the rent control petition is posted, it is absolutely within the authority and competence; and is the natural consequence that the Rent Controller or the Appellate Authority, as the case may be, should stop the proceedings and direct the tenant to put the landlord in possession of the building. Such a procedure, if followed, would be sufficient compliance for providing reasonable opportunity satisfying the statutory requirement contained in Section 12(3).” 11. The above said principle was dilated by this Court in **J.Ramkumar v. Ashok Jacob [ILR 2021 (4) Ker.876]** and held that when the tenant failed to comply with the direction in an order passed under Section 12(1) of the Act, he becomes fully aware that unless sufficient cause is shown for the default committed, the consequence is the stoppage of the proceedings. It is further explained that although there is no necessity to alert the tenant by issuing any specific notice in that regard, there shall be an opportunity for him to show cause. 11 R.C.Rev.No.144 of 2020 ## 12. In **Suvarna v. Ibrahimkutty and others [2021** **(6) KHC 250]** , this Court has held that the opportunity to be given in the event of failure of the tenant depositing the arrears of rent admitted to be due in compliance with the order under Section 12(1) of the Act shall not be an empty formality. The principles of natural justice would mandate that the Rent Control Court or the Appellate Authority should afford a reasonable opportunity to the tenant before passing an order under Section 12(3) of the Act. 13. In this case, an order under Section 12(1) of the Act was issued on 27.03.2019. The direction was to deposit arrears of rent within 30 days from the date of that order. It is pertinent to note that the civil courts closed for summer recess on 12.04.2019 and the courts reopened only on 20.05.2019. After passing the order on 27.03.2019, the matter was posted to the reopening day, i.e., 20.05.2019. In such circumstances, there was no opportunity for the petitioner to file any application or his explanation before 20.05.2019. As a matter of fact, as noted by the Appellate 12 R.C.Rev.No.144 of 2020 Authority, an application seeking extension of time was placed on record by the petitioner on 21.05.2019. Before that, the impugned order was passed and therefore, the application seeking time was closed by the Rent Control Court. 14. As held in **Suvarna** (supra) the opportunity required to be given to explain the reason for non-payment should not be an empty formality. Of course, no separate notice is required. But the Rent Control Court should have postponed the case from 20.05.2019 on finding that the arrears of rent was not paid or deposited. So that the petitioner would get a reasonable opportunity to explain the reason thereof. Since the Rent Control Court passed the impugned order on 20.05.2019 itself, that resulted in denial of opportunity and violation of principles of natural justice. Therefore, the said order is bad in law and liable to be set aside. 15. Accordingly, we allow this Rent Control Revision. The judgment dated 18.06.2020 of the Appellate Authority and the order dated 20.05.2019 in R.C.P.No.66 of 2018 of the 13 R.C.Rev.No.144 of 2020 Rent Control Court are set aside. The Rent Control Court will restore I.A.No.9588 of 2018 and R.C.P.No.66 of 2018 on file and proceed with in accordance with law. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr