IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 RCRev..No. 244 of 2009() ------------------------ AGAINST THE ORDER DATED 10/09/2009 IN IA 2312/09 IN RCA.11/2009 of VI ADDL.DISTRICT COURT, ERNAKULAM RCP.53/2008 of I ADDL.M.C.,ERNAKULAM (IA 122/09) .................... REVISION PETITIONER --------------------------------------- K.S.BINURAJ, AGED 35, S/O.O.N.SHANMUGHAM, SAIRAM, KALAPURACKAL, AYYAPPANKAVU, KOCHI-18. BY ADV. SRI.VARGHESE C.KURIAKOSE RESPONDENT(S): ------------------------- A.H.THALISH, S/O.A.M.HABEEB, AGED 48 YEARS, 24, SKYLINE ELYSIUM GARDENS, STADIUM LINK ROAD, KALOOR, KOCHI-17. ADV. SRI.SHAJI P.CHALY SRI.SHAJI P.CHALY FOR CAVEATOR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ---------------------------------------------------- RCR No. 244 of 2009 ------------------------------ Dated, this the 8th day of December, 2009 O R D E R P.R. Raman, J. The tenant in a Rent Control Eviction Petition, who is the revision petitioner and who is directed to put the landlord in possession of the tenanted premises, further stopping the proceedings due to the non payment of the rent during the pendency of the appeal, is challenging the order passed under Section 12(3) of the Kerala Building Lease and Rent Control Act, 1965, by the Appellate Authority in RCA 11/2009. 2. The respondent herein applied for an order of eviction invoking Section 11(3) of the Act on the ground of 'bonafide need'. That application is still pending and contested by the revision petitioner herein. The revision petitioner in course of the proceedings, pending before the Rent Control Court, raised a dispute of title to the landlord by filing I.A.122/2009 in RCP 53/2008. The Rent Control Court by its order dated 27th January, 2009, after adjudication, held that the denial of title of the landlord/petitioner in RCP 53/2008 is not bonafide. Challenging the said order, the tenant filed RCA 11/2009. The appeal was filed on 21.02.2009. In that appeal, the respondent/landlord filed I.A.2312/2009 RCR No. 244 of 2009 2 under Section 12 of the Act seeking a direction to the tenant (revision petitioner herein) to pay the admitted arrears of rent from 2008 April to March, 2009 amounting to Rs.2,76,000/-. That application was filed on 21.03.2009. Objections were filed by the tenant inter alia contending that, the title of the landlord was challenged and hence he is not bound to pay the rent during the pendency of the appeal. During the course of hearing, an amount of Rs.1,50,000/- was tendered on 01.06.2009 and accepted by the landlord through the Counsel and the tenant promised to pay the balance before 30.06.2009 as recorded by the Court below in the impugned order. Therefore, when the matter came up on 30.06.2009, the Court passed an order as follows:- “the tenant shall clear the entire admitted arrears of rent due up to the month of June 2009, within a period of 4 weeks from today and continue to pay the admitted arrears subsequently becomes dues within two weeks of it becomes due”. 3. Thereafter on 25.08.2009, the landlord filed a memo, serving copy to the tenant, stating that the rent due upto the month of August, would come to Rs.3,91,000/-. But the tenant paid only Rs.2,53,000/- and Rs.1,38,000/- was still due. Obviously, the payment of Rs.2,53,000/- made by the tenant was in the mean time prior to 25.08.2009. As is seen from the order, an amount of Rs.1,50,000/- was paid on 01.06.2009 and subsequently as stated by the Counsel for the revision petitioner, an amount of RCR No. 244 of 2009 3 Rs.1,03,000/- was paid on 20.07.2009. Thus receipt of the two amounts (Rs.2,53,000/-) is admitted by the landlord as stated in his memo and referred to in the order impugned. The appellate authority in such circumstances, found that the arrears of Rs.1,38,000/- as on August, 2009 have not cleared and that the tenant has not complied with the direction earlier made. It may be noticed that after 25.08.2009, the matter stood adjourned to 10th September, 2009, the date on which the impugned order was passed. It is not disputed that actual balance amount due as arrears of rent of Rs.1,38,000/- was as such quantified in its order dated 25.08.2009. Eventually as stated earlier, for non compliance of the directions issued, the appellate authority, invoking power under Section 12 (3) of the Act, directed the tenant to put the landlord in possession of the tenanted premises. Hence this revision. 4. Learned counsel for the revision petitioner, Sri.Varghese Kuriakose contended before us that in so far as the very dispute in appeal is on the question of title of the landlord as disputed by the tenant and being not a case where an order of eviction is passed under any of the provisions of the Kerala Building Lease and Rent Control Act and in so far as the very dispute goes to the route of the matter regarding the jurisdiction, the benefit of Section 12(1) is not available to the respondent/landlord and hence no order could have been passed under Section 12(3) of the Act. Per contra, RCR No. 244 of 2009 4 Sri.S.P.Chaly, appearing on behalf of the respondent would contend that on the language of the Section 12 (1) of the Act itself, it can be seen that the landlord is entitled to invoke the benefit under Section 12 (1) in any appeal filed by the tenant under Section 18, since the order impugned in the appeal before the appellate authority arises from the proceedings pending before the Rent Control Court and being one of the issues arising for consideration i.e., as to whether the dispute raised by the tenant is bonafide dispute of title or not, the tenant is bound to deposit the admitted arrears of rent without which he is not entitled to contest the appeal. 5. We have heard both the sides. As per Section 12 of the Act, payment or deposit of rent during the pendency of the proceedings of eviction, is a condition precedent to be coupled with by the tenant to contest the matter whether it be before the Rent Control Court or before the appellate authority as the case may be. As per Section 12 (1), when an application for eviction is made by the landlord under section 11 and even during the pendency of such application and before passing any order of eviction, the bar to contest the matter arises, unless the admitted arrears of rent is deposited. Section 12(1) leaves no doubt that the right to contest the application is taken away, if the admitted arrears is not deposited. Reliance is placed on the decision of a Division Bench of this Court in Sulaiman Sahib Vs. Mohemmed Moosa [2003 (2) KLT 1058] in support of his RCR No. 244 of 2009 5 contention. We have perused the said decision. We find that an ex-parte order of eviction was passed by the Rent Control Court. Subsequently, the tenant sought to set aside the exparte order under Rule 13(3) read with Section 23 (1) (h) of the Kerala Buildings (Lease and Rent Control) Act. That was dismissed by the Rent Control Court against which the appeal under Section 18 was preferred before the appellate authority. This Court held that the tenant is not challenging the order passed by the Rent Control Court under Section 11 of the Act, in order to attract Section 12(1) of the Act. On the other hand, the question here is as to whether there is a bonafide dispute of title or not, is a matter arises before the Rent Control Court in a proceeding initiated by the landlord seeking eviction under Section 11. As per the second proviso to Section 11, where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bonafide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court. In this case, the Rent Control Court held that there is no bonafide dispute of title and which is the subject matter of the appeal filed by the tenant under Section 18. The order thus passed under Section 11(1) is an order appealable under Section 18 as held by this Court in Kallianikutty Amma Vs. Velayudhan (1975 KLT 600). Even as per Section 12(1), an appeal preferred under Section 18 against any order made by the Rent RCR No. 244 of 2009 6 Control Court on the application is circumscribed by the condition of deposit of the arrears of rent or payment. The right of the tenant to contest the matter is curtailed by a condition requiring the deposit of the admitted arrears of rent. Though the payment of the admitted arrears of deposit thereof need not be simultaneously with the filing of the appeal as held by this Court in Pochappan Narayanan Vs. Gopalan [1990(2) KLT 1], however the right to contest such appeal is certainly subjected to rider of payment of the admitted arrears of rent. In other words, the right to contest the matter is taken away, unless the condition is complied with. Eventhough the word 'any order' referred to under Section 12 is succeptible to different interpretation, at any rate for the purpose of the present case, there cannot be any doubt that, this being an order passed under Section 11 and impugned in the appeal, the conditions prescribed under Section 12 is squarely attracted. 6. It was nextly contended that the appellate authority, while adjourning the matter on 25.08.2009, did not quantify the balance amount if any due after adjudication and as such, it could not have proceeded to pass an order under Section 12 (3) without giving an opportunity to pay the balance arrears of rent after adjudication. In this connection, it is pointed out that after the order of the appellate authority made on 30.06.2009, admittedly an amount of Rs.1,03,000- was paid on 20.07.2009 and thereafter an amount of Rs.1,38,000/- was paid subsequently. The Counsel placed RCR No. 244 of 2009 7 reliance on the decision of a Single Bench of this Court reported in Pathumma Beevi Vs. Lonappan [1985 KLT 705] where it was held that the section, no doubt, curtails the right of the tenant to contest the proceedings and has therefore to be strictly applied. In a case where the court does not stipulate that the amount has to be paid or deposited and grants the tenant time to make the deposit, the sufficiency of the amount deposited has to be first decided and if there is any deficit, the tenant has to be called upon to make good the shortfall before invoking the power under sub-section (3) of Section 12. In the absence of any such adjudication, it cannot be said that reasonable and real opportunity was given to the tenant to deposit the admitted arrears or to show cause against the default. In that case, it was alleged by the landlord that the rent at the rate of Rs.110/- per mensem was kept in arrears by the tenant since 07.04.1979. The counter statement was filed by the tenant on 04.03.1980 admitting the arrears from 07.04.1980 and undertaking to deposit the same. On 04.03.1980, the Rent Control Court directed the tenant to pay the admitted arrears if any on 05.04.1980. Since no deposit was made within that time, the tenant was directed to show cause, if any, why Section 12(3) of the Act shall not be invoked, and posted the case to 11.04.1980. On 11.04.1980 the tenant deposited admitted arrears and submitted that due to financial stringency he could not make the deposit in time. The question arose for consideration as to whether the Court RCR No. 244 of 2009 8 could have passed anorder under Section 12(3), in the absence of a specific order quantifying the amounts of arrears without passing an order on 04.03.1980. The facts as stated therein may appear to be somewhat similar to the present case. But according to the respondent, when the Court passed an order on 30.06.2009, there was a clear direction to pay the entire admitted arrears up to the month of June, 2009 and also to continue to pay the subsequent arrears when became due, within two weeks from the due date. Therefore, either the tenant could contend that the entire admitted arrears have been paid, if payment is effected or he could still contend that there was sufficient cause for non payment of the amount. In this case there was no dispute regarding the amount of rent payable. On 01.06.2009, an amount of Rs.1,50,000/- was paid. It was thereafter that an order was passed on 30.06.2009. Only an amount of Rs.1,03,000/- was paid later, prior to 25.08.2009. There was no dispute in the circumstances that balance was still payable. The tenant did not choose to file any statement either to show that he has cleared the entire arrears or why it was not paid in his memo or statement. In the statement filed by him on 20th July, 2009 while making payment of Rs.1,03,000/- it was merely stated that he was making a payment of Rs.1,03,000/- towards the arrears of rent and that would be subjected to final orders to be passed in the Rent Control Appeal. There was no statement that no further admitted arrears were due from him. RCR No. 244 of 2009 9 However, it is contended that subsequently, at the time of filing revision, Rs.1,38,000/- was paid to the respondent through counsel and accepted on 31.10.2009. True, subsequent payment of Rs.1,38,000/- after the impugned order was passed may not make the order impugned as, in any way, illegal or wrong since the very question that arises for consideration is as to whether, on the date of which the order was passed by the Tribunal, there was sufficient justification for the Court to pass an order invoking Section 12 (3) and whether before passing the order, the appellate authority has complied with the mandatory requirements, as contemplated thereunder. We agree with the respondent's counsel that the balance of Rs.1,38,000/-, as quantified in the order impugned, was not paid prior to the impugned order. But there is some force in the contention of the learned counsel appearing for the revision petitioner that as in Pathumma Beevi's case, the amount to be paid by the tenant was not specified in the order dated 25.08.2009. Thus atleast the revision petitioner was able to raise a doubt in the first instance as to whether the order dated 25.08.2009 ought to have specified the amount required to be paid within the time to be stipulated and when two views are possible, necessarily the benefit of doubt should go to the tenant as held bey this Court in 1990 (2) KLT 1. Further, in an unreported verdict passed by a Division Bench of this Court in CRP 688/2001, with regard to the question as to whether any extension of time is RCR No. 244 of 2009 10 possible, though the Division Bench held that the provisions contained in Section 11(2) are different and that there was no illegality, irregularity or impropriety in the order of the Rent Control Court and the appellate authority in passing an order under Section 12(3); still the Division Bench held that this Court was inclined to show some indulgence to the tenant by granting some more time to pay the rent. As a matter of fact, in the Division Bench decision in Davy Vs. Indu 1999 (3) KLT 434, it was held that Sections 11 and 12 of Act operate in different fields and circumstances; the non-compliance of these mandatory provisions will lead to eviction of the tenant and that an order of eviction once passed under Section 12(3) cannot be undone by resorting to Section 11(2) (C) of the Act. As may be noticed, it was subsequently, that another Bench, of which one of the judges was a party to the decision in 1999 (3) KLT 434, thought it fit to grant extension of time while exercising the power in a revision, filed against the order passed under Section 12 (3). Therefore, even though as of right a tenant is not entitled for any further time for compliance of the direction made under Section 12 (3) by invoking Section 11(2) (C) of the Act, having due regard to the facts and circumstances of the case and having paid the admitted amount before filing the revision; we think it will be appropriate to condone the delay in making the balance payment, and the order impugned will stand set aside on the conditions hereinafter mentioned. RCR No. 244 of 2009 11 (1) That the direction made by the appellate authority in its order dated 10th September, 2009, impugned in this revision shall be strictly complied without any failure to pay the admitted arrears of rent and subsequent rent which falls due, until the appeal is heard and disposed of. (2) It is submitted by the counsel appearing for the respondent herein that subsequently also the tenant has kept rent in arrears at least for the three months past and the balance of Rs.1,38,000/- itself became due even by August, 2009. Necessarily the tenant ought to have paid the subsequent monthly arrears within two weeks from due date itself. Hence if the tenant fails to pay the said amount of Rs.69,000/- on or before 30th of December, 2009, the tenant will loose the benefit of this order. Subject to the above condition, the revision is allowed. We also direct the appeal be heard and disposed of as expeditiously as possible, at any rate before the end of the February, 2010. P.R. RAMAN, JUDGE P. R. RAMACHANDRA MENON, JUDGE dnc