Disposed

A. Subramaniyam Pillai v. Ushakumari R.

Kerala HC1 Dec 2021OP (RC)/119/2021

Case brief

AI extract

What is this about?

Regarding a writ petition under Article 227 challenging the delay in disposal of a rent control petition and an interlocutory application for arrears, the High Court held that interest at 12% cannot be claimed under Section 12, the tenant must deposit rent due subsequently, and it directed the subordinate court to expedite the proceedings.

What did the court decide?

Directed the appellate court to dispose of the RC.P. and I.A. within one month, apply Section 12 provisions correctly without interest, and advance the hearing date.

A. Subramaniyam Pillai Vs Ushakumari R. — Contract and Commercial Disputes | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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WEDNESDAY, THE 1^ST DAY OF DECEMBER 2021 / 10TH AGRAHAYANA,

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1943

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OP (RC) NO. 119 OF 2021

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SPEEDY DISPOSAL OF R.C.P.NO.48 OF 2021 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF), THIRUVANANTHAPURAM PETITIONER/PETITIONER IN R.C.P.:

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A. SUBRAMANIYAM PILLAI AGED 90 YEARS

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S/O ARUNACHALAM PILLAI, RESIDING AT T.C.2/3204 (1), "VATTAVILAKOM HOUSE", OPPOSITE ARCH-BISHOP'S HOUSE, PATTOM P. O., THIRUVANANTHAPURAM - 695 004.

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BY ADVS.G.RAJEEV BINCY JOB REJITH RAJENDRAN AJITH KUMAR.S

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RESPONDENT/COUNTER PETITIONER IN R.C.P.:

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USHAKUMARI R. AGED 48 YEARS W/O.ANIL KUMAR R., RESIDING AT "MURALEE BHAVAN", CHOWALLUR, PULIYARAKONAM P. O., VILAPPIL, THIRUVANANTHAPURAM - 695 573.

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THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 01.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (RC) NO. 119 OF 2021

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JUDGMENT

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Anil K. Narendran, J.

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The petitioner, who is a senior citizen aged 90 years, filed R.C.P.No.48 of 2021 before the Rent Control Court (Additional Munsiff Court), Thiruvananthapuram, which is a petition filed under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the respondent herein-tenant from the petition schedule building. Along with the Rent Control Petition, the petitioner filed I.A.No.1 of 2021 (Ext.P6) invoking the provisions under Section 12 of the Act seeking an order directing the tenant to pay a sum of Rs.6,41,700/- towards arrears of rent up to August, 2021 with interest at the rate of 12% per annum from the date of default till payment and in case of default, directing the tenant to vacate the petition schedule building. Now, the grievance of the petitioner is the delay in disposal of the R.C.P.No.48 of 2021 and also I.A.No.1 of 2021 filed in the Rent Control Petition under Section 12 of the Act.

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Heard the learned counsel for the petitioner. Considering the nature of relief proposed to be granted, we

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OP (RC) NO. 119 OF 2021

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deem it appropriate to dispense with the service of notice on the respondent.

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In this original petition filed under Article 227 of the Constitution of India, the petitioner is seeking disposal of R.C.P.No.48 of 2021, pending before the Rent Control Court, Thiruvananthapuram, within two months. As evident from Ext.P8 case status, R.C.P.No.48 of 2021 is one filed on 25.06.2021, in which service of notice is complete on the tenant and the tenant entered appearance on 11.11.2021. The tenant is yet to file counter statement in the Rent Control Petition. Along with the Rent Control Petition, the landlord filed I.A.No.1 of 2021 under Section 12 of the Act, which is also pending consideration. Along with this original petition, the petitioner has placed on record Exts.P1 and P2 medical records in order to show that the petitioner, who is a senior citizen aged 90 years, is under treatment for various ailments.

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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

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OP (RC) NO. 119 OF 2021

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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 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

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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.

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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

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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 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.

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In Joy Daniel v. N.A. Ibrahimkutty and others

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[2020 (2) KHC 543] , 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 challenging 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

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OP (RC) NO. 119 OF 2021

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possession of the premises, a Full Bench of this Court held that, Section 12(1) 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.

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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.

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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

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OP (RC) NO. 119 OF 2021

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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.

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Section 12(2) of the Act enjoins a tenant to deposit

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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,

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OP (RC) NO. 119 OF 2021

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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. Therefore, even in a case in which the relief sought for in an application filed under Section 12 of the Act is confined to payment or deposit of admitted arrears of rent up to the date of application or up to the date of order to be passed in that application, the Rent Control Court or the Appellate Authority, as the case may be, is statutorily bound to pass an order directing the tenant to pay or deposit admitted arrears of rent up to the date of payment or deposit and continue to pay or deposit rent which may subsequently become due, until termination of that proceedings.

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As per Section 12(3) of the Act, if any tenant fails

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to pay or to deposit the rent as aforesaid, the Rent Control

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OP (RC) NO. 119 OF 2021

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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.

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In Suvarna v. Ibrahimkutty and others [2021

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(6) KHC 250] this Court held in paragraph 32 that 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 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. The time fixed by the Appellate Authority 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) of the Act, regardless

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OP (RC) NO. 119 OF 2021 of the relief sought for in the application filed by the landlord under Section 12, the Appellate Authority has to order payment 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 Appellate Authority. Therefore, in I.A.No.3440 of 2016, the application filed by the landlord under Section 12 of the Act, instead of directing the tenant to pay admitted arrears of rent within a period of 4 weeks from the date of that order, the Appellate Authority ought to have directed the tenant to pay or deposit admitted arrears of rent up to the date of payment or deposit, within a period of 4 weeks from the date of that order and continue to pay or deposit any rent which may subsequently become due, until the termination of the proceedings before the Appellate Authority, within two weeks from the date on which the rent becomes due.

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In view of the provisions under Section 12 of the

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OP (RC) NO. 119 OF 2021

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Act, in a petition filed by the landlord under Section 12 of the Act seeking an order directing the tenant to pay a deposit of admitted arrears of rent during the pendency of the proceeding for eviction, the landlord cannot demand interest at the rate of 12% per annum. Therefore, such a claim made

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in I.A.No.1 of 2021 in R.C.P.No.48 of 2021 cannot be sustained.

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The learned counsel for the petitioner would submit that a time bound consideration of I.A.No.1 of 2021 and R.C.P.No.48 of 2021 is highly essential.

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Having considered the submissions made by the learned counsel for the petitioner, we deem it appropriate to dispose of this original petition with the following directions:

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i) On receipt of a certified copy of this judgment, the petitioner shall move an application before the Rent Control Court, to advance R.C.P.No.48 of 2021 to a near date.

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ii) In case the respondent-tenant is yet to file counter/ objection in I.A.No.1 of 2021 in R.C.P.No.48 of 2021, the same shall be filed within a period of two weeks from the

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OP (RC) NO. 119 OF 2021

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date of such posting;

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iii) The Rent Control Court, Thiruvananthapuram shall pass appropriate orders on I.A.No.1 of 2021 in R.C.P.No.48 of 2021, strictly in accordance with the provisions under Section 12 of the Act, as expeditiously as possible, at any rate, within a further period of one month;

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iv) Insofar as the final disposal of R.C.P.No.48 of 2021 is concerned, it is for the Rent Control Court to take an appropriate decision as to expeditious disposal of the matter, once a decision is taken in I.A.No.1 of 2021.

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Sd/ANIL K.NARENDRAN, JUDGE

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Sd/P.G. AJITHKUMAR, JUDGE

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AV/1/12

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OP (RC) NO. 119 OF 2021

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APPENDIX OF OP (RC) 119/2021

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PETITIONER EXHIBITS

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Exhibit P1 TRUE COPY OF THE EMERGENCY TREATMENT SUMMARY DATED 20.11.2021 OF COSMOPOLITAN HOSPITAL PVT. LTD., THIRUVANANTHAPURAM. Exhibit P1(a) TRUE COPY OF THE EMERGENCY TREATMENT SUMMARY DATED 21.11.2021 OF COSMOPOLITAN HOSPITAL PVT. LTD., THIRUVANANTHAPURAM. Exhibit P1(b) TRUE COPY OF THE EMERGENCY TREATMENT SUMMARY DATED 22.11.2021 OF COSMOPOLITAN HOSPITAL PVT. LTD., THIRUVANANTHAPURAM. Exhibit P2 TRUE COPY OF THE LETTER DATED 24.11.2021 OF NIRMALA HOSPITAL, THIRUVANANTHAPURAM. Exhibit P3 THE TRUE COPY OF THE PLAINT IN O.S.NO.1041 OF 2020 DATED 05.10.2020, ON THE FILE OF THE III ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM.

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Exhibit P4 THE TRUE COPY OF THE WRITTEN STATEMENT WITH COUNTER-CLAIM IN O.S.NO.1041 OF 2020 DATED 16.03.2021, ON THE FILE OF THE III ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM.

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Exhibit P5 THE TRUE COPY OF THE PETITION IN RCP NO.48 OF 2021 DATED 25.06.2021, ON THE FILE OF THE RENT CONTROL COURT, THIRUVANANTHAPURAM.

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Exhibit P6 THE TRUE COPY OF THE I.A.NO.1 OF 2021 DATED 11.08.2021 IN RCP NO.48 OF 2021, ON THE FILE OF THE RENT CONTROL COURT, THIRUVANANTHAPURAM.

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Exhibit P7 THE TRUE COPY OF E-COURTS PRINTOUT SHOWING THE CASE STATUS OF O.S.NO.1041 OF 2020, ON THE FILE OF THE III ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM.

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Exhibit P8 THE TRUE COPY OF E-COURTS PRINTOUT SHOWING THE CASE STATUS OF RCP NO.48 OF 2021, ON THE FILE OF THE RENT CONTROL COURT, THIRUVANANTHAPURAM.

A. Subramaniyam Pillai v. Ushakumari R.

Case brief

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A. Subramaniyam Pillai v. Ushakumari R.

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