Allowed

Akhilesh v. Mr. Abdul Kader

Kerala HC2 Feb 2024RCRev./5/2024

Case brief

AI extract

What is this about?

The High Court set aside an Appellate Authority order directing eviction for non-payment of arrears. The Court held that under Section 12(3) of the Kerala Buildings Act, the Authority must allow a chance to show cause for default before stopping proceedings and ordering eviction.

What did the court decide?

Revision allowed; order dated 19.12.2023 set aside; Appellate Authority directed to pass fresh orders within one month.

Akhilesh Vs Mr. Abdul Kader — Pension and Retirement Benefits | Kerala HC (2024)

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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 G. GIRISH

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FRIDAY, THE 2ND DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945

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R.C.REV.NO.5 OF 2024

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AGAINST THE ORDER DATED 19.12.2023 IN I.A.NO.3 OF 2023 IN RCA.NO.5 OF
2023 OF RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE),
TIRUR, ARISING OUT OF THE ORDER DATED 25.01.2023 IN RCP NO.30 OF 2020

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OF RENT CONTROL COURT (MUNSIFF), PONNANI

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REVISION PETITIONER/RESPONDENT/APPELLANT:

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AKHILESH, AGED 47 YEARS
S/O. KRISHNAN NAIR, PROPRIETOR, GOLDEN MOTORS, KOZHIKODE
ROAD, EDAPPAL, RESIDING AT PUNCHATH HOUSE, KUTTIPPURAM
AMSOM, PERASSANNOOR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT,
PIN - 679571
BY ADVS.
C.M.MOHAMMED IQUABAL
ISTINAF ABDULLAH
RENEESH U.R.
P.ABDUL NISHAD
RAIHANATH T.H.
MUHAMMED AMEEN

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RESPONDENTS/PETITIONERS/RESPONDENTS:

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1 MR. ABDUL KADER, AGED 57 YEARS
S/O. VALIYAPEEDIYEKKAL AALIKUTTY HAJI, VATTAMKULAM AMSOM,
THEVALASSERY DESOM, PONNANI TALUK, MALAPPURAM DISTRICT, PIN
- 679578

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2 MR. ABDULLAKUTTY, AGED 50 YEARS
S/O. VALIYAPEEDIYEKKAL AALIKUTTY HAJI, VATTAMKULAM AMSOM,
THEVALASSERY DESOM, PONNANI TALUK, MALAPPURAM DISTRICT, PIN
- 679578
BY ADVS.
AMRIN FATHIMA
ARAVIND AJITH(K/231/2016)

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON

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02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.C.Rev.No.5 of 2024

ORDER

Anil K. Narendran, J.

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The petitioner is the respondent-tenant in RCP No.30 of 2020 on the file of the Rent Control Court (Munsiff) Ponnani, a petition filed by the respondents herein-landlords invoking the provisions under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule building. In that Rent Control Petition, the Rent Control Court passed an order of eviction dated 25.01.2022 under Sections 11(2)(b) and 11(3) of the Act, whereby the tenant is directed to put the landlords in vacant possession of the petition schedule building within the time limit specified therein. It was made clear that the order of eviction under Section 11(2)(b) of the Act will stand vacated, if the tenant pays the arrears of rent, in terms of the provisions under Section 11(2)(c) of the Act.

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Challenging the order of eviction granted by the Rent Control Court, the tenant filed R.C.A.No.5 of 2023 before the Rent Control Appellate Authority (Additional District Judge), Tirur. In that appeal the landlords filed I.A.No.3 of 2023, an application under Section 12 of the Act, seeking an order directing the

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R.C.Rev.No.5 of 2024

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tenant to deposit the admitted arrears of rent. In that interlocutory application, the Appellate Authority passed an order dated 16.10.2023, invoking the provisions under Sections 12(1) and (2) of the Act, whereby the tenant was directed to pay an amount of Rs.6,23,222/- towards admitted arrears of rent. Paragraph 10 of that order reads thus;

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“10. As already stated above, the Rent Control Petition was filed in the month of November 2020. Present petition U/s.12 is filed in the month of August 2023. The intervening period is 34 months. Rent for 34 months at the rate of Rs.38,945/- is Rs.13,24,130/-. During the pendency of the RCP before the trial Court the respondent made 6 payments by way of cheques and the total amount paid is Rs.7,01,009/-. So, the balance will be Rs.6,23,222/- (Rupees six lakhs twenty three thousand two hundred and twenty two only). The respondent is liable to pay the said amount to the petitioner as admitted arrears of rent. The respondent/tenant is directed to pay the said amount within 4 weeks from today.”

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The order dated 16.10.2023 of the Appellate Authority

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under Sections 12(1) and (2) of the Act was under challenge before this Court in R.C.Rev.No.256 of 2023 filed by the tenant, which ended in dismissal by the order dated 11.12.2023 granting the tenant liberty to canvas the correctness of that order in the revision petition, if any, preferred against the order to be passed

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by the Appellate Authority in I.A.No.3 of 2023 under Section 12(3) of the Act. Paragraph 3 of that order reads thus;

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“3. This Court has held in M.R. Martin v. M.R. Rajendran Nair [2021 SCC OnLine Ker 8698] that an order directing the tenant to pay the admitted arrears of rent due in terms of Section 12(1) of the Act cannot be challenged in a proceedings under Section 18 of the Act, and the correctness of the same can be canvassed only in the appeal preferred against the order under Section 12(3) of the Act, if an order is passed under that provision consequent on the non-compliance of the direction to pay the admitted arrears. The same principles, according to us, would apply to an order passed under Section 12(1) at the stage of appeal as well. In the said view of the matter, the rent control revision is not maintainable and the same is accordingly dismissed. It is, however, made clear that if the Appellate Authority stops the proceedings in the appeal consequent on the failure of the petitioner to pay the admitted arrears and makes an order directing the petitioner to put the respondents in possession of the property, the petitioner would be free to canvass the correctness of the impugned order in revision, if any, preferred by him against the said order.”

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The tenant produced a copy of the order dated 11.12.2023 of this Court in R.C.Rev.No.256 of 2023 before the Appellate Authority. Immediately, thereafter, the Appellate Authority passed the order dated 19.12.2023, in exercise of its powers under Section 12(3) of the Act, which reads thus;

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“Hon’ble High Court has dismissed the Rent Control Revision. Respondent has not deposited the admitted arrears of rent as quantified and ordered as per the order

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R.C.Rev.No.5 of 2024

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dated 16.10.2023 within 4 weeks and extended period. No explanation is also offered by the respondent. Hence further proceedings in the appeal is stopped and respondent is directed to put the petitioner/landlord in possession of petition schedule building.”

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Feeling aggrieved by the orders dated 16.10.2023 and 19.12.2023 by the Rent Control Appellate Authority, the petitioner is before this Court in this Rent Control Revision, invoking the provisions under Section 20 of the Act.

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Heard the learned counsel for the petitioner-tenant

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and also the learned counsel for the respondents-landlords.

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The issue that requires consideration in this Rent Control Revision is as to whether any interference is warranted in the order dated 19.12.2023 of the Rent Control Appellate Authority.

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Regarding the order dated 16.10.2023 passed by the Appellate Authority under Section 12(1) and (2) of the Act, the learned counsel for the petitioner-tenant would point out the stand taken by the landlords in the affidavit filed in support of I.A.No.3 of 2023, which has been extracted in paragraph 3 of that order, which reads thus;

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“3. Now the respondent/landlord has filed the present petition claiming that the respondent has kept the rent in arrears from January 2020 and towards the arrears of rent

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R.C.Rev.No.5 of 2024

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the appellant has paid only Rs.7,78,900/- and till 2023 June there is a balance of Rs.8,56,790/-. In view of Sec.12 of the Act a tenant cannot maintain an appeal without depositing the admitted rent. So, show cause notice may be issued to the appellant to show cause why he shall not be directed to deposit the admitted arrears and if he does not deposit the amount, stop all the proceedings and make order directing the appellant to put the respondent in possession of the building.”

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By mistake, the Appellate Authority noted the figure ‘Rs.7,78,900/-‘ as ‘Rs.7,01,009/-‘ in paragraph 10 of that order dated 16.10.2023. The learned counsel for the respondentslandlords would point out that the actual arrears of rent as on that date is Rs.6,23,222/-, as stated in the order dated 16.10.2023, which is evident from the records in R.C.P.No.30 of 2020, which is already before the Appellate Authority.

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We do not propose to consider the above aspect in this proceedings, in view of the order of this Court dated 11.12.2023 in R.C.Rev.No.256 of 2023. It is for both sides to raise their contentions on the above aspect, at an appropriate stage, before the appropriate authority.

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The order dated 19.12.2023 of the Appellate Authority in I.A.No.3 of 2023 in R.C.A.No.5 of 2023 is one issued under Section 12(3) of the Act.

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R.C.Rev.No.5 of 2024

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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 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

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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

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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

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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 subsequently become due in respect of the building, until the

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R.C.Rev.No.5 of 2024

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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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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

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R.C.Rev.No.5 of 2024

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building, until the termination of the proceedings before the Rent

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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

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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,

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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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In J. Ramkumar v. Ashok Jacob [2022 (1) KHC 495 : ILR 2021 (4) Kerala 876] , 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

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the Appellate Authority, against such an order of eviction.

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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 on 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 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.

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It is clear from the plain language and also the legislative intent of Section 12 of the Act that, it is not for the Rent Control Court or the Appellate Authority, as the case may be, to pass an order under Section 12(3), stopping further

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proceedings and directing the tenant to put the landlord in possession of the building, once the time limit fixed for payment or deposit of admitted rent runs out, and the tenant defaulted payment or deposit of rent in terms of the order passed under Section 12(1) and (2). Though it is not for the Rent Control Court or the Appellate Authority, as the case may be, to issue any separate notice to the tenant to enable him to show sufficient cause for not paying or depositing the admitted arrears of rent, as held by the Division Bench in Narayanan v. Vinod [2004 (3) KLT 955] and approved by the Full Bench in Shaji M. v. SNDP Skhayogam No.610, Allapuzha [2020 (2) KHC 574] , the Rent Control Court or the Appellate Authority is not expected to pass an order forthwith, stopping further proceedings and directing the tenant to put the landlord in possession of the building, under Section 12(3).

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Before passing an order under Section 12(3) of the Act, the Rent Control Court 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 payment or deposit of admitted rent, thereby allowing reasonable time to the tenant to show sufficient cause for not paying or depositing the admitted rent, if he has committed default in payment of the same, within the

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time limit stipulated in the order passed under Section 12(1) and (2). Such an opportunity to be afforded to the tenant to show sufficient cause is not an empty formality. The principles of natural justice would mandate that the Rent Control Court or the Appellate Authority should afford such an opportunity to the tenant before passing an order under Section 12(3).

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In J. Ramkumar [2022 (1) KHC 495] , this Court held that, the consequences provided under Section 12(3) of the Act follow when there occurred a default by the tenant in complying with the direction in an order passed under Section 12(1) and (2), for deposit or payment of the admitted arrears of rent. On the date stipulated for effecting such payment, by virtue of that order, 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, under Section 12(3) would follow automatically. 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 stipulated for effecting payment or deposit of admitted rent, is mandatory. If no sufficient cause is shown within such extended date to which the

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R.C.Rev.No.5 of 2024

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rent control petition is posted, it is absolutely within the authority and competence, and is the natural consequence that, the Rent Control Court 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. As held by the Full Bench in Shaji M. [2020 (2) KHC 574] , such a procedure, if followed, would be sufficient compliance for providing reasonable opportunity satisfying the statutory requirement contained in Section 12(3) of the Act.

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In J. Ramkumar [2022 (1) KHC 495] , this Court concluded that the consequences provided under Section 12(3) of the Act follow when there occurred a default by the tenant in complying with the direction in an order passed under Section 12(1) and (2), for deposit or payment of the admitted arrears of rent. On the date stipulated for effecting such payment, by virtue of that order, 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, under Section 12(3) would follow automatically. As held by a Division Bench in Venugopalan v. Raphael [1974 KLT 640] and reiterated in Davy v. Indu [1999 (3) KLT 434] even assuming that for

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purpose of execution an order under Section 12(3) of the Act can be equated with and treated as the same, as one under Section 11 of the Act, the consequence enjoined by an order under Section 12(3) for failure to deposit the admitted arrears in time can not be vacated or obliterated by payment at any subsequent stages or periods. The law laid down by a Three-Judge Bench of the Apex Court in Nasiruddin v. Sitha Ram Agarwal [(2003) 2 SCC 577] is to the effect that, where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the court does not have the power to do so.

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The failure of the tenant to deposit the admitted arrears

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of rent becomes a ‘default’ in terms of Section 12(3) of the Act once the Rent Control Court or the Appellate Authority records its satisfaction in an order under Section 12(3) that the tenant failed to show sufficient cause for non-payment of the admitted arrears of rent. On such satisfaction being recorded the consequence of stoppage of the proceedings and the direction to put the landlord in possession of the building would follow automatically. The default committed by the tenant in depositing the rent in terms of the order under Section 12(1) and (2) cannot be condoned by the Rent Control Court or the Appellate

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Authority, while passing an order under Section 12(3), by permitting the tenant to pay the admitted arrears of rent after such an order.

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The judgment of this Court in J. Ramkumar [2022 (1) KHC 495] was under challenge before the Apex Court in SLP(C)No.18301 of 2021. After having heard the learned counsel for the parties, the Apex Court was not inclined to interfere with the order of this Court and accordingly, the special leave petition along with connected matters were dismissed by the order dated 18.11.2021.

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The question as to whether the Rent Control Court or the appellate authority can extent the time limit for deposit of admitted arrears of rent, after an order passed under Section 12(3) of the Act, invoking the provisions under Section 23(1)(j) of that Act, came up for consideration before this Court in M/s.Greenix Ventures Pvt. Ltd [2022 (4) KLJ 311 : 2023 (1) KLT SN.1] . After referring to the statutory provisions, the Division Bench of this Court in which one among us [Anil K. Narendran, J.] was a party, held that in an order passed under Section 12(3) of the Act, which is one passed on being satisfied that the tenant has not shown sufficient cause for non-payment of the admitted arrears of rent, in terms of the order under

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R.C.Rev.No.5 of 2024

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Section 12(1) read with Section 12(2) of the Act, the Rent Control Court or the Appellate Authority cannot enlarge the time limit originally granted for payment of the admitted arrears of rent, invoking the provisions under Section 23(1). Since, on passing such an order under Section 12(3) of the Act, the consequence of stoppage of proceedings and the direction to put the landlord in possession of the building follow automatically, no such extension is legally impermissible, either by the Rent Control Court or the Appellate Authority. In that view of the matter, we find no reason to interfere with the reasoning of the Appellate Authority in the judgment dated 21.06.2023 in R.C.A.No.41 of 2022, declining to interfere with the order of the Rent Control Court dated 02.04.2022 in I.A.No.2 of 2021 in R.C.P.No.3 of 2021.

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Viewed in the light of the law laid down in the decisions referred to supra, we find no reason to sustain the order dated 19.12.2023 of the Appellate Authority in I.A.No.3 of 2023 in R.C.A.No.5 of 2023, which is one issued in exercise of its powers under Section 12(3) of the Act.

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In the result, this Rent Control Revision is allowed by setting aside the order dated 19.12.2023 of the Rent Control Appellate Authority in I.A.No.3 of 2023 in R.C.A.No.5 of 2023

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and by directing the Appellate Authority to pass fresh orders under Section 12(3) of the Act, taking note of the law laid down in the decisions referred to supra, as expeditiously as possible, at any rate, within a period of one month from the date of production of a certified copy of this order.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/- G. GIRISH, JUDGE

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das

Akhilesh v. Mr. Abdul Kader

Case brief

What is this about?

What did the court decide?

Akhilesh v. Mr. Abdul Kader

Case brief

What is this about?

What did the court decide?

What the court decided

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