J.M James, J.:— Petitioner in I.A No. 1832/1993, who is the respondent/landlord in R.C.A 2/1993 on the file of the Rent Control Appellate Authority (1st Addl. District Judge), Palakkad, is the revision petitioner. The tenant filed the appeal, R.C.A 2/1993, challenging the dismissal of the petition, I.A 2600/1992, filed by him praying to set aside the ex parte order passed against him. As the tenant had not deposited the admitted arrears of rent, amounting to Rs. 32,450/- the landlord prayed to stop the appeal proceedings and to make an order of eviction against the tenant, under section 12(3) of the Kerala Buildings (Lease and Rent Control) Act, (in short ‘the Act’). The dismissal of the same is challenged in this revision.
2. The brief facts of the case, required for the disposal of this revision, are that the landlord filed R.C.P 8/1986 before the Rent Control Court, Palakkad for evicting the tenant under Section 11(2) and 11(4)(v) of the Act. The Rent Controller passed an order of eviction after setting the tenant ex parte. I.A 2600/1992 was filed under Rule 13(3) of the Kerala Buildings (Lease and Rent Control) Rules, (in short ‘the rules’), to set aside the ex parte order passed against him. The Rent Controller dismissed the same. R.C.A 2/1993 was filed by the tenant, challenging the said dismissal. In that appeal the landlord filed I.A 1832 of 1993 for a direction under Section 12(3) of the Act. The Appellate Authority held that the tenant having filed the I.A before the Rent Controller under Rule 13(3) of the Rules and not under section 11 of the Act, the Court cannot give a direction to the tenant to deposit the arrears of rent, and therefore, the petition is unsustainable. The question for consideration is whether a direction Under Section 12(3) of the Act could be given by the Rent Controller or the Appellate Authority during the pendency of proceedings arising under Rule 13(3) of the Rules.
3. Heard both sides. Learned counsel for the revision petitioner/landlord argued that though the R.C.P was filed in 1986 because of the protractive tactics of the tenant, the court could not take a final decision so far. It is contended that the petition filed by the tenant to set aside the ex parte order passed against him was dismissed. It is urged that the arrears of rent amounts to Rs. 32,450/- and the same is not deposited so far. It is, therefore, contended that the refusal of the appellate authority to direct the tenant to deposit the arrears of rent, and the dismissal of the petition filed by the landlord under Section 12(3) of the Act is against law.
4. Learned counsel appearing for the tenant resisted the above arguments and submitted that the petition for setting aside an ex parte order could only be filed under Rule 13(3) of the Rules. The same being not a proceeding under Section 11 of the Act, the landlord cannot file an application under Section 12(3) of the Act, and therefore, prayed to dismiss the revision.
5. The question whether the tenant is entitled to contest the proceedings before the Appellate Authority, unless he pays all admitted arrears of rent, came up for consideration of a Division Bench of this Court in Mary Beena John v. Addl. District Court (1996 (2) KLT 955). That was a case where the landlords were successful in getting an order of eviction against the tenant on the grounds of arrears of rent and sub-lease. The tenant challenged it before the Appellate Authority. The landlords filed I.A under Section 12(3) of the Act, praying for a direction to pay or deposit the admitted arrears of rent by the tenant. The I.A was allowed by passing an order against the tenant, who failed to deposit the rent arrears. Therefore, eviction order was passed against the tenant and the alleged sub-tenant under Section 12(3) of the Act. That was challenged in revision. The revisional court interfered with the judgment of the Appellate Authority by passing an order holding that the tenant cannot be compelled to pay arrears of rent invoking Section 12(3) of the Act, relying on the decision in V.K Ramaswamy Chettiar v. B. Krishna Arjunan (1979 KLT SN Page 71). The view taken in Ramaswamy Chettiar's case was that the tenant can contest the appeal filed by the landlord before the Appellate Authority without making any deposit of arrears of rent. The correctness of this view was doubted, and therefore, the matter was referred to the Division Bench. After analysing Sections 12 and 18 of the Act, as well as the principles of law, the Division Bench held that the view taken in Ramaswamy Chettiar's case (cited supra) is perfectly justifiable and requires no reconsideration. Hence, the Division Bench refrained from interfering with the order passed by the revisional court. In disposing of the matter, the division Bench held thus:
“We find from the peculiar terminology used in the Section and the scheme of the provisions in the Section, that the obligation imposed on the tenant to pay or deposit arrears of rent during the pendency of the proceedings before the Rent Control Court and the Appellate Authority is only for the purpose of contesting the ‘application’ before the Rent Control Court and preferring the appeal before the Appellate Authority in the sense of lodging and prosecuting an appeal filed by him and not for contesting or defending an appeal filed by the landlord even treating it as a continuation of the application for eviction filed under S. 11 of the Act”.
6. The contention that the appeal of the tenant was not competent on the ground that admitted arrears of rent was not paid or deposited on of before the date of preferring the appeal was considered in Pochappan Narayanan v. Gopalan (1990 (2) KLT 1). There the landlord sought eviction under Section 1(2)(b), 11(3), 11(4)(i) and 11(4)(v) of the Act. The Rent Controller allowed eviction under Section 11(3) of the Act and dismissed all other grounds. Both the tenant as well as the landlord challenged the decision of the Rent controller. The appeal by the tenant was allowed and the crossobjection of the landlord was dismissed, thereby disallowing the application of the landlord for eviction. The same was challenged by the landlord under Section 20 of the Act before the District Court. The revisional court held that as the tenant did not pay or deposit all the admitted arrears of rent under Section 12(1) of the Act, the appeal filed by the tenant was incompetent, and therefore, without considering the matter on merit, held that the appeal was not maintainable. The said decision was challenged under Article 227 of the Constitution of India through a writ petition. After analysing Sections (12(1), 12(2), 18)(1) and 18(2) of the Act, the Division Bench observed thus:
“We have, therefore, no hesitation in taking the view that a who does not fulfil the obligation imposed on him by sub-section (1) of S. 12 cannot be visited with the penal consequences contemplated by sub-section (3), unless all the conditions specified by sub-section (2) are satisfactorily fulfilled. Even after the court acts in accordance with sub-section (2) of S. 12 and the tenant will commits default, the tenant has to be given one more opportunity of showing cause as to why penal consequences contemplated by sub-section (3) should not be imposed on him. It is only when the court is not satisfied with the cause shown that it can pass an order stopping all further proceedings and directing the tenant to put the landlord in possession of the building.”
7. The Court, therefore, allowed the writ petition and quashed the judgment of the revisional court. The matter was remitted to the District Judge for disposal on merit, in accordance with law.
8. We shall now proceed to examine the application of Section 12 of the Act and Rule (13) 3 of the Rules. For clarity, we reproduce below Rule 13(3) of the Rules.
“(3) In any case in which an order is passed ex parte, against a tenant or a landlord, the tenant or the landlord, as the case may be, may within fifteen days from the date of receipt of the order, apply to the Accommodation Controller or the Rent Control Court, as the case may be, by whom the order was passed, for an order to set aside, and if tenant or landlord satisfies the Accommodation Controller or the Rent Control Court, as the case may be, that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the application was called on for hearing, the Accommodation Controller or the Rent Control Court, as the case may be shall make such order as it deems fit, and shall appoint a day for proceeding with the application:
Provided that no order shall be set aside on any such application as aforesaid unless notice thereon has been served on the opposite party.”
9. Sub-sections (1), (2) and (3) of Section 12 are also extracted below for reference.
10. 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 the 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 any 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.(2) The deposit under sub-section (11) 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 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.”
11. I.A 2600/1992 was filed by the tenant under Rule 13(3) of the Rules to set aside the ex parte order. The dismissal of the same was challenged in appeal before the Appellate Authority. Thus, the tenant did not file the appeal from an order of the rent controller passed on an application filed by the landlord under Sections 11 of the Act. The authorities, cited supra, are dealing, with the facts arising from orders passed under Sections 12 of the Act. Whereas the facts of the case under discussion are one originating from the order passed under Rule 13(3) of the Rules. Hence, when the provisions given above are interpreted, it can be seen that the tenant is not challenging an order passed by the Rent Controller under Section 11 of the Act to attract Section 12(1) of the Act. Consequently, Section 12(3) of the Act also will not be available for applying against the tenant.
12. Therefore, we have no hesitation to hold hat the landlord is not entitled to file an application under Section 12(3) of the Act in an appeal, which emanated from the proceedings under Rule 13(3) of the Rules. Hence, we find that there is nothing to be interfered with in the order passed by the appellate authority, dismissing I.A 1832 of 1993. There is no merit in the revision and the same is dismissed. However, we direct the parties to bear their respective costs.
13. The facts, as stated above, show that the revision petition was filed in the year 1986. More than Rs. 32,450/- is in arrears. Tenant has not paid the same so far. The appellate Authority shall dispose of the appeal as expeditiously as possible.
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