Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 31ST DAY OF JANUARY 2022 / 11TH MAGHA, 1943 O.P.(RC) NO. 22 OF 2022 AGAINST THE ORDER DATED 11.11.2021 IN I.A.NO.2 OF 2021 IN R.C.A.NO.47 OF 2019 OF THE ADDITIONAL DISTRICT JUDGE-III, THALASERY PETITIONER: THARA RANJITH, AGED 41 YEARS, W/O RENJITH RESIDING AT VASANTHA NIVAS, SOUTH BAZAAR, KANNUR, PIN - 670002. BY ADVS. PRAJIT RATNAKARAN ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH) RESPONDENT: SPCA KANNUR (SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS) NEAR MUNCIPAL OFFICE KANNUR 2, REPRESENTED BY ITS SECRETARY P.C.PRADEEP S/O NARAYANAN, NEAR MUNCIPAL OFFICE, KANNUR, PIN - 670002. THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 31.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Ajithkumar, J.
The petitioner is the respondent-tenant in Rent Control Petition No.6 of 2017 on the file of the Rent Control Court (Munsiff), Kannur, which was filed seeking eviction under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The rent control petition was allowed directing the petitioner to surrender vacant possession of the building to the respondent-landlord. The petitioner preferred an appeal, R.C.A.No.47 of 2019, before the Rent Control Appellate Authority (Additional District Judge-IV), Thalassery. Conditional order of stay granted by the Appellate Authority in that appeal, Ext.P2, is under challenge in this original petition filed under Article 227 of the Constitution of India.
2. Monthly rate of rent for the petition schedule
building is Rs.2,000/-. Alleging that the rent since 2013 has been in arrears, the rent control petition was filed and it was allowed. Along with the R.C.A., the petitioner filed I.A.No.531 of 2019 seeking to stay the operation of the order in R.C.P.No.6 of 2017. As per order dated 03.08.2019, the Appellate Authority stayed operation of the order of eviction on condition that the petitioner shall deposit half of the rent in arrears within a period of thirty days. The petitioner failed to deposit half of the rent in arrears within the time stipulated and therefore, the order of stay lapsed. On a subsequent date, the petitioner deposited half of the rent in arrears. Since the order of stay has already become inoperative by that time, the petitioner filed I.A.No.2 of 2021 in R.C.A.No.47 of 2019 seeking to stay operation of the order of eviction. The Appellate Authority in I.A.No.2 of 2021 has passed the impugned order, by which stay was granted for a period of thirty days on condition of depositing entire arrears of rent within thirty days.
3. Heard the learned counsel appearing for the petitioner. Considering the nature of the relief sought for in this original petition, service of notice on the respondent is dispensed with.
4. The learned counsel for the petitioner would
contend that having the Appellate Authority as per Ext.P1 granted stay on the condition of deposit of half of the rent in arrears and the amount, although belated, been deposited, the Appellate Authority should have granted a stay without imposing any further condition. The learned counsel accordingly would contend that Ext.P2 is illegal.
5. In Ramkumar J. v. Ashok Jacob [ILR 2021 (4) Kerala 876] this Court explained the principle contained in Section 12 of the Act. It was observed,
'12. 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 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.
13. 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 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.
14. 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.
15. 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.
16. 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 proceedings and make an order directing the tenant to put the landlord in possession of the building.'
6. In view of the principles laid by this Court in
J.Ramkumar (supra), it is the obligation of the tenant to pay or deposit the entire rent in arrears and to continue to pay the rent falls due in the subsequent months in order for him to get the right to prosecute an appeal. Therefore, it cannot be said that Ext.P2 order is suffering from any illegality. However, considering the situation emerging on account of the COVID situation that, not only the petitioner, but also every person conducting business is finding it difficult to carry on business in a profitable way, we are of the view that indulgence of this Court is required in the matter.
7. In the above circumstances, we are of the view that
it is appropriate to modify the order of stay so as to grant some more time to the petitioner to pay the rent in arrears. Accordingly, we hold that the petitioner has to pay the entire rent in arrears as on date in three equal monthly instalments starting from 10.02.2022. The petitioner shall also pay the monthly rent which will fall due in the subsequent months without any default. The order of stay granted by the Appellate Authority as per Ext.P2 is modified. Execution of the order in R.C.P.No.6 of 2017 stands stayed till the disposal of R.C.A.No.47 of 2019 on the conditions aforesaid. Needless to say that violation of any of the aforesaid conditions will entail to vacate the order of stay. The petition is disposed of accordingly. Sd/- ANIL K. NARENDRAN, JUDGE Sd/- P.G. AJITHKUMAR, JUDGE dkr APPENDIX OF OP (RC) 22 OF 2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER DATED 03.08.2019 IN I.A.531/2019 IN R.C.A.47/2019 OF ADDITIONAL DISTRICT JUDGE-IV, THALASSERY. Exhibit P1 TRUE COPY OF THE ORDER DATED 11.11.2021 IN I.A.2/2021 IN R.C.A.47/2019 OF ADDITIONAL DISTRICT JUDGE-III, THALASSERY