IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 RCRev..No. 266 of 2009() ------------------------ RCA.4/2006 of DISTRICT COURT, KASARAGOD RCP.19/2004 of MUNSIFF COURT, HOSDRUG .................... PETITIONER/APPELLANT/RESPONDENT(TENANT): -------------------- S.P. ISMAIL,S/O. K.P. MUHAMMED, MASTER OPTICALS, OPPOSIETE KAILAS THEATRE, HOSDURG VILLAGE, HISDURG TALUK, KASARGOD DIST. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S)/RESPONDENT/PETITIONER(LANDLORD): --------------- K. SUDHAKARA SHENOY, S/O. K. NARAYANA SHENOY, KOPRA QUARTERS, KUSHAL NAGAR, HOSDURG VILLAGE, HOSDURG TALUK, KASARGOD DIST. SRI.SURESHKUMAR KODOTH (CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No. 266 OF 2009 ------------------------ Dated this the 23rd day of November, 2009 O R D E R Pius C.Kuriakose, J. The tenant is in revision against the judgment of the Rent Control Appellate Authority dismissing the appeal which he had filed against the order of the Rent Control Court and simultaneously directing him to surrender possession of the petition schedule building within a period of one month from the date of the judgment. 2. The application before the Rent Control Court was for fixation of fair rent under Section 5 of Act 2 of 1965. The Rent Control Court after enquiry would fix the fair rent of the building, which is situated in Kanhangad town, at Rs.3,000/- per month as against the contract rent of Rs.1,600/- per mensem. The tenant preferred appeal R.C.A. No.4/2006 against the order of the Rent Control Court. In the appeal, the landlord filed I.A. No.12/2007 under Section 12 for directing the appellant to pay the arrears of rent as well as the rent which fell due subsequent RCR.No.226/2009 2 to the commencement of the proceedings. The appellate authority passed an order directing the tenant to make the payment. But, no payment was made by the Revision petitioner. It is on the reason that there is no full compliance with the direction of the Appellate Authority to pay the admitted arrears of rent and rent that fell due subsequently that the impugned judgment dismissing the appeal and directing eviction has been passed. 3. We have heard the submissions of Sri.M.Gopikrishnan Nambiar, learned counsel for the revision petitioner and those of Sri.Suresh Kumar Kodoth, learned counsel for the respondent who had lodged caveat on behalf of the respondent. Drawing our attention to Section 12 of Act 2 of 1965, Sri.Gopikrishnan Nambiar submitted that the learned Appellate Authority did not have jurisdiction to invoke Section 12 in as much as the proceedings were not for eviction, but were for fixation of fair rent. Sri.Suresh Kumar Kodoth per contra would justify the impugned judgment. He submitted that having regard to the principles of justice, equity and good conscience which are to govern the proceedings before the Rent Control Court and the RCR.No.226/2009 3 Appellate Authority in terms of Sub Rule 8 of Rule 11 of the Statutory Rules, it was necessary that the tenant, who is pursuing or defending any proceedings whether it before the Rent Control Court or the Appellate Authority pays atleast the rent which he admits to be in arrears. 4. We have very anxiously considered the rival submissions addressed at the Bar. Section 12 of the Act 2 of 1965 reads as follows; “12. Payment or deposit of rent during the pendency of proceedings for eviction:- 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 upto 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. RCR.No.226/2009 4 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). Provided that 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. 3). 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. 4). ........................................(omitted) 5. A careful reading of the above quoted provisions will show that sub Sections 1 to 3 of Section 12 can strictly apply only in cases where the original proceeding is for eviction of the tenant under Section 11. It appears to us that the above fundamental aspect of the matter was missed by the learned Appellate Authority. The best that the landlord could have aspired for in the appeal, was a judgment dismissing the appeal preferred by the revision petitioner there by confirming the fair RCR.No.226/2009 5 rent fixed by the Rent Control Court. Under the impugned Judgment, the respondent has been granted not only such a judgment but an order of eviction also, which was clearly beyond the scope of proceedings under Section 5. The Supreme Court has recently upheld the decision of this court in Edger Ferus v. Abraham Ittycheria (2004 (1) KLT 767). Thus it is now settled beyond doubt that the jurisdiction to fix fair rent of buildings governed by Act 2 of 1965 is that of the Rent Control Court. In the instant case fair rent has been fixed by the Rent Control Court itself. Therefore, it is for the Appellate Authority to decide whether such fixation of fair rent is correct. We set aside the impugned judgment and direct the Rent Control Appellate Authority to restore RCA No.4/2006 back to its file. That authority is also directed to hear both sides to dispose of the RCA in accordance with law at the earliest and at any rate within one month of receiving a copy of this judgment. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk