XAIVER v. SHYAM KRISHNA

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G. GIRISH MONDAY, THE 29[TH] DAY OF JANUARY 2024 / 9TH MAGHA, 1945 ``` ``` OP (RC) NO. 230 OF 2023 ``` ``` I.A.NO.4 OF 2023 IN RCP 124/2023 OF PRINCIPAL RENT CONTROL COURT (MUNSIFF COURT), ERNAKULAM ``` ``` PETITIONER/S: ``` ``` XAIVER AGED 84 YEARS S/O.LEONS, RESIDING AT THOTTAKATH HOUSE, CHEREANELLOOR, ERNAKULAM, PIN - 682034 ``` ``` BY ADVS. SREEJITH S. NAIR BIJU JOSEPH REMIL REGI GEORGE ``` ``` RESPONDENT/S: ``` ``` SHYAM KRISHNA AGED 34 YEARS S/O.RADHAKRISHNAN, KURUPPASSERY HOUSE, CHEREANELLOOR, ERNAKULAM, PIN - 682034 ``` ``` THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 29.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 O.P.(RC) No.230 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner filed RCP No.124 of 2023 before the Rent Control Court (Munsiff), Ernakulam, invoking the provisions under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 seeking eviction of the respondent hereintenant from the petition scheduled building, on the ground of arrears of rent. In that Rent Control Petition, the landlord filed I.A.No.4 of 2023, invoking the provisions under Section 12 of the Act, seeking an order directing the tenant to deposit an amount of Rs.8,98,000/- being the arrears of the rent. The landlord is a senior citizen aged 84 years. Along with this original petition, the landlord has placed on record Ext.P3 discharge summary dated 11.11.2023 to show that he is a cancer patient undergoing treatment at Aster Medicity Hospital. The petitioner has filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order directing the Rent Control Court (Munsiff), Ernakulam to dispose of RCP No.124 of 2023, at the earliest, within a time limit to be fixed by this Court. 2. On 16.01.2024 when this original petition came up for admission, notice on admission by special messenger was 3 O.P.(RC) No.230 of 2023 ordered to the respondent-tenant, returnable by 23.01.2024. 3. Heard the learned counsel for the petitioner-landlord and also Adv.Vinod S Pillai, the learned counsel who entered appearance 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 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 4 O.P.(RC) No.230 of 2023 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 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 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 5 O.P.(RC) No.230 of 2023 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. 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. 6 O.P.(RC) No.230 of 2023 ## 7. In **J. Ramkumar v. Ashok Jacob [2022 (1) KHC** **495 : ILR 2021 (4) Kerala 876]** this Court held that, 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 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 7 O.P.(RC) No.230 of 2023 proceedings and make an order directing the tenant to put the landlord in possession of the building. 8. In **J. Ramkumar [2022 (1) KHC 495]** , this Court held that, Section 12 of the Act imposes certain obligations on the tenant to pay or deposit admitted rent, during the pendency of the proceedings for eviction under Section 11, before the Rent Control Court, and also the proceedings in an appeal filed under Section 18, before the Appellate Authority, against such an order of eviction. Section 12(3) of the Act also provides for the consequences, which were to follow, for committing default in fulfilling those obligations. Section 12(3) of the Act deals with the consequences flowing as a result of the failure of the part of the tenant to pay or deposit admitted rent. Before the consequences under Section 12(3) can ensue, the conditions specified in Section 12(1) and (2) have to be satisfied. Section 12(3) mandates that if any tenant fails to pay or deposit the admitted rent as provided under Section 12(1) and (2), 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. Therefore, if the Rent Control Court or the Appellate Authority, as 8 O.P.(RC) No.230 of 2023 the case may be, is satisfied about the cause shown by the tenant, it will not make any order under Section 12(3) of the Act, stopping further proceedings and directing the tenant to put the landlord in possession of the building. 9. In **Abdul Razak P.M. v. K.C. Thomas and others [2022 (4) KHC 260]** , considering the object of the provisions of Section 12 of the Act, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India, this Court directed all Rent Control Appellate Authorities in the State to ensure time bound disposal of the appeals filed under S.18(1)(b) of the Act, against an order passed by the Rent Control Court under Section 12(3) of the Act. Similarly, this Court directed all Rent Control Courts/Appellate Authorities in the State to ensure time bound disposal of the applications filed under Section 12 of the Act, in pending Rent Control Petitions/Rent Control Appeals. Registrar (District Judiciary) was directed to communicate a soft copy of the judgment to all Rent Control Courts/Appellate Authorities in the State, without any delay. 10. The learned counsel for the respondent-tenant would submit that the tenant shall enter appearance before the Rent 9 O.P.(RC) No.230 of 2023 Control Court (Principal Munsiff), Ernakulam in R.C.P.No.124 of 2023 and file counter in I.A.No.4 of 2023, without further delay. 11. Having considered the submissions made at the Bar this original petition is disposed of with the following directions: (i) The petitioner-landlord and the respondent-tenant shall appear before the Rent Control Court on **12.02.2024** . The Rent Control Court shall grant two weeks’ time to the respondent-tenant to file counter affidavit in I.A.No.4 of 2023, in case counter affidavit is not filed by 12.02.2024. Thereafter, the Rent Control Court shall pass appropriate orders on I.A.No.4 of 2023, as expeditiously as possible, at any rate, within a further period of one month. (ii) The tenant shall also file counter affidavit in R.C.P.No.124 of 2023 within a period of one month from today. The Rent Control Court shall finally dispose of the RCP, as expeditiously as possible, at any rate, within a further period of four months. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- ## **G. GIRISH, JUDGE** SMA 10 O.P.(RC) No.230 of 2023 ## **`APPENDIX OF OP (RC) 230/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1A TRUE COPY OF THE R.C.P.NO.124/2023 DATED 05.10.2023 FILED BY THE PETITIONER BEFORE THE HON'BLE RENT CONTROL COURT, ERNAKULAM. ``` ``` Exhibit P2A TRUE COPY OF THE I.A.NO.4/2023 IN R.C.P.NO.124/2023 DATED 27.11.2023 FILED BY THE PETITIONER BEFORE THE HON'BLE RENT CONTROL COURT, ERNAKULAM. ``` ``` Exhibit P3A TRUE COPY OF THE DISCHARGE SUMMARY IN THE NAME OF THE PETITIONER ISSUED BY ASTER MEDICITY HOSPITAL. ```