Citation Codes

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citation codes

Case Number

O.P. (R.C.) No. 92 of 2014

Attorney(S)

For the Appellant : K.K. Mohamed Ravuf For the Respondents : N. Deepa

Judges

DR. JUSTICE A.K. JAYASANKARAN NAMBIAR
JUSTICE P.D RAJAN

Acts

S. 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act').
Rent Control)Rules (hereinafter referred to as 'the Rules'). Rule 13(3) of the Rule
S. 23(1)(h) read with R. 13 of the Rules
sub-section (1), the Rent Control Court
sub-section (1) of S. 12
sub-section (3) of S. 12
sub-section (1) of S.
sub-section (3) of S.

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Smart Summary

Judgment Summary — K.T. Sankaran, J.

Factual and Procedural Background

An ex parte order of eviction was passed by the Rent Control Court against the revision petitioner (the tenant) under Section 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act. The tenant applied to set aside that ex parte order and sought condonation of delay; those applications were dismissed by the Rent Control Court. The tenant appealed the dismissal to the Appellate Authority. During that appeal the landlord filed an application under Section 12 of the Act asking the Appellate Authority to direct the tenant to deposit admitted arrears of rent. Meanwhile, and before the Section 12 application was filed (the landlord's Section 12 application was filed after delivery was already effected), the landlord had already taken delivery of the building in execution of the eviction order because no stay had been granted. The Appellate Authority directed the tenant to deposit admitted arrears of rent of Rs. 2,03,000 up to the date of delivery. The tenant asserted that he had paid Rs. 3,00,000 as advance with the landlord and sought adjustment; the Appellate Authority conditioned any adjustment on an endorsement abandoning the appeal. The tenant challenged the Appellate Authority’s order in this Original Petition (Rent Control), raising primarily whether a Section 12 application is maintainable before the Appellate Authority in an appeal filed against an order dismissing an application to set aside an ex parte eviction order, and whether a Section 12 application is maintainable after delivery of possession has been effected.

Legal Issues Presented

Whether an application under Section 12 of the Kerala Buildings (Lease and Rent Control) Act is maintainable before the Appellate Authority in an appeal filed by a tenant against an order dismissing the tenant's application to set aside an ex parte eviction order (i.e., an appeal arising from proceedings under Rule 13(3)/Section 23(1)(h) rather than from an order under Section 11).
Whether, even if a Section 12 application is in principle maintainable in such an appeal, it is maintainable at a stage after delivery of possession has been taken in execution of a final order of eviction.

Arguments of the Parties

Petitioner's (Tenant's) Arguments

The tenant relied on the Division Bench decision in Sulaiman Sahib v. Mohammed Moosa (2003(2) KLT 1058) to contend that Section 12 does not apply to appeals that arise from orders under Rule 13(3) (i.e., applications to set aside ex parte orders under Section 23(1)(h) read with R.13), and therefore the landlord could not maintain a Section 12 application in the appeal pending from the dismissal of the set-aside application.
Implied in the procedural history: the tenant argued that once delivery had been effected in execution of the final order, the Appellate Authority could not, by directing deposit under Section 12, properly exercise the powers envisaged by that section.

Respondent's (Landlord's) Arguments

The landlord (respondent) argued that the phrase "on the application" in Section 12(1) could be read to refer to an application under Section 12 itself, and not exclusively to an application under Section 11. In other words, the respondent contended that the Appellate Authority could direct deposit under Section 12 in appeals against various orders of the Rent Control Court.
The respondent further submitted that an order under Section 12(1) is appealable under Section 18 and that Section 18 is the general provision by which appeals lie to the Appellate Authority from a range of Rent Control Court orders — thus suggesting the Appellate Authority could entertain a Section 12 direction in the appeal then before it.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sulaiman Sahib v. Mohammed Moosa, 2003(2) KLT 1058	Held that Section 12(1) and Section 12(3) are not attracted where the appeal originates from an order made under Rule 13(3) of the Rules (i.e., from a dismissal of an application to set aside an ex parte order), and consequently Section 12(3) cannot be applied in such appeals.	The court expressly agreed with and followed this Division Bench decision, applying its reasoning to hold that the Appellate Authority was not justified in directing deposit under Section 12 in the appeal arising from the dismissal of the application to set aside the ex parte order; the Appellate Authority's order was set aside and the matter remitted for fresh disposal.

Court's Reasoning and Analysis

The court undertook a textual and purposive interpretation of Section 12 of the Act and related provisions to determine whether Section 12 applied to the appeal before the Appellate Authority and, separately, whether it could be invoked after delivery had been effected.

Key steps in the court's analysis:

Statutory reading of Section 12: The court observed that Section 12(1) contemplates two situations — (a) where a tenant contests an application filed by the landlord under Section 11 before the Rent Control Court, and (b) where the tenant prefers an appeal under Section 18 against any order made by the Rent Control Court on such an application under Section 11. In both situations, the tenant must deposit admitted arrears up to the date of deposit and continue to deposit subsequent rent during the proceedings; failure carries the consequence in Section 12(3).
Meaning of "on the application": The court held the phrase "on the application" in Section 12(1) must be read with reference to an earlier mention of "application" in that subsection — namely, an application under Section 11. Therefore, the appeal contemplated by Section 12(1) is an appeal arising from an order under Section 11, not an appeal arising from other orders (such as an order dismissing an application to set aside an ex parte order under Section 23(1)(h) read with Rule 13(3)).
Distinction between Section 11 proceedings and applications under Section 23(1)(h)/Rule 13(3): The court emphasized that an application under Section 23(1)(h) read with Rule 13(3) (to set aside an ex parte order) is procedurally and temporally posterior to the disposal of an application under Section 11. An application under Rule 13(3) arises after the Section 11 process is disposed of; if successful, it only restores the original Section 11 proceedings, and if dismissed it gives effect to the finality of the Section 11 order.
Purpose and operability of Section 12(3): The court considered the practical effect of Section 12(3) — stopping all further proceedings and directing delivery of possession — and concluded this consequence is meaningful only while proceedings are pending. If an order under Section 11 has already become final and delivery has been effected, there is no further proceeding to stop and no meaningful way to direct delivery; therefore Section 12(3) cannot sensibly be applied after delivery or in appeals that do not arise from Section 11 orders.
Rejection of respondent's broader interpretation: The court rejected the respondent's submission that "on the application" could refer to a Section 12 application or that any appeal under Section 18 could trigger Section 12. Accepting that approach would render the qualifying phrase "on the application" meaningless; the court therefore preferred an interpretation that preserves the specific reference to Section 11 applications.
Reliance on precedent: The court agreed with the Division Bench decision in Sulaiman Sahib v. Mohammed Moosa which had reached the same conclusion in comparable facts — namely, that Section 12 cannot be applied in appeals emanating from Rule 13(3) proceedings — and applied that reasoning to set aside the impugned Appellate Authority order.

Holding and Implications

Holding:

The Appellate Authority was not justified in directing the tenant to deposit arrears of rent under Section 12 in an appeal that stemmed from the dismissal of an application to set aside an ex parte order (i.e., a proceeding under Section 23(1)(h) read with Rule 13(3)), and the Appellate Authority could not validly invoke Section 12(3) where delivery of possession had already been effected in execution of a final order.

Direct consequences and disposition:

The judgment passed by the Appellate Authority directing deposit of arrears up to the date of delivery was set aside.
The matter was remitted to the Appellate Authority for fresh disposal on the merits as expeditiously as possible.
The Original Petition (Rent Control) was disposed of in accordance with the above orders.

Broader implications: The court followed existing Division Bench authority (Sulaiman Sahib v. Mohammed Moosa) and did not purport to create a new precedent beyond applying and endorsing that reasoning. The decision clarifies that Section 12's deposit requirement and its coercive consequence in Section 12(3) are applicable to appeals arising from Section 11 proceedings and are not available in appeals that originate from Rule 13(3)/Section 23(1)(h) set-aside applications, nor can Section 12(3) be invoked after delivery of possession following a final order.

Order records appointment of Sri Sathish Ninan, Advocate as Amicus Curiae for assistance when the respondent had not engaged counsel; the court recorded appreciation for his arguments.

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Mohammed Shameer v. Ashokan

K.T. Sankaran, J.

1. An ex parte order of eviction was passed by the Rent Control Court against the revision petitioner under S. 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). The petitioner/tenant filed an application to set aside the ex parte order with an application to condone the delay in filing the application to set aside the ex parte order. Those applications were dismissed by the Rent Control Court. The tenant filed an appeal before the Appellate Authority against the order passed by the Rent Control Court in the application to set aside the ex parte order. In that appeal, the landlord filed an application under S. 12 of the Act to direct the tenant to deposit the admitted arrears of rent. Meanwhile, during the pendency of the appeal, the landlord took delivery of the building in execution of the order of eviction, since no stay was granted by the Appellate Authority in favour of the tenant. It is to be noted that the application was filed by the landlord under Section 12 of the Act before the Appellate Authority in 2014, much after the delivery of the building was taken by the landlord. The Appellate Authority directed the tenant to deposit the admitted arrears of rent till the date of delivery, which comes to ` 2,03,000/-. The tenant raised a contention that ` 3,00,000/- paid as advance is remaining with the landlord. The Appellate Authority held that only if the tenant makes an endorsement on the Memorandum of Appeal that he does not intend to proceed with the appeal, the tenant would be entitled to adjust the arrears of rent as against the advance amount of ` 3,00,000/-. The order passed by the Appellate Authority is under challenge in this O.P.(RC) filed by the tenant. The question which arises for consideration in this Original Petition is whether an application under S. 12 of the Act is maintainable before the Appellate Authority in an appeal filed by the tenant against an order dismissing his application to set aside the ex parte order of eviction. Another incidental question also arises for consideration, namely, even if an application under S. 12 is maintainable in such a case, whether it is maintainable at a stage after effecting delivery.

2. The learned counsel for the petitioner relied on the decision of the Division Bench in Sulaiman Sahib v. Mohammed Moosa (2003(2) KLT 1058).

3. To resolve the question involved in the O.P. (RC), it is apposite to extract S. 12 of the Act. S. 12 reads thus:--

"12. Payment of 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 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.

(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) 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.

4. sub-section (1) of S. 12 contemplates two situations.

(i) In the application filed by the landlord under Section 11, the tenant contests the application before the Rent Control Court; or

(ii) The tenant prefers an appeal under Section 18 of the Act against any order made by the Rent Control Court on the application. In both these cases, the tenant has to pay to the landlord or deposit before the Rent Control Court or the Appellate Authority, as the case may be, all arrears of rent admitted by the tenant to be due. It is not only sufficient that the amount due should be paid or deposited but the tenant shall continue to pay or deposit the subsequent rent until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. Failure to make the deposit as provided under sub-section (1) is visited with the consequence as provided under Sub-section (3) of Section 12 of the Act. In the case of failure to deposit, the Rent Control Court or Appellate Authority, in the absence of any sufficient cause shown by the tenant, shall stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building."

5. What is the meaning of the expression "on the application" in sub-section (1) of Section 12? If this question is answered, it would throw much light on the proper interpretation to be made to S. 12 in the contingencies like the one involved in this case.

The expression "on the application" must be with reference to an application referred to in sub-section (1) earlier. The only reference in S. 12(1) to any application earlier to that expression "on the application" is an application under S. 11. If so, the appeal in which the Appellate Authority may exercise the power to direct deposit, could only be with respect to an appeal arising from an order under S. 11and not otherwise. An application to set aside the ex parte order is traceable to the power of the court under S. 23(1) of the Act. S.23(1) says that subject to such conditions and limitations as may be prescribed, the Accommodation Controller, the Rent Control Court and the Appellate Authority shall have the powers which are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of any of the clauses mentioned as (a) to (k) therein. Clause (h) is "setting aside ex parte orders". The conditions and limitations with respect to an application under S. 23(1)(h) are prescribed in R. 13 of Kerala Buildings (Lease and Rent Control)Rules (hereinafter referred to as 'the Rules'). Rule 13(3) of the Rule provides as follows:--

"13. (1)xxxxxxxx

(2)xxxxxxxxxxx

(3) In any case in which an order is passed ex parte, against a tenant or a landlord, the tenant and the landlord, as the case may be, 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 the 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, an order passed against the tenant or landlord, as the case may be, 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".

6. An application under S. 23(1)(h) read with R. 13 of the Rules cannot be termed as an application under S. 11 so as to attract sub-section (1) of S. 12. In effect, the application under S. 23(1)(h) read with R. 13 of the Rules arises after disposal of the application under S. 11. The consequence of allowing an application to set aside the ex parte order is to restore the application under S. 11. The consequence of dismissal of me application to set aside the ex parte order is giving full effect to the final order under S. 11.

7. There is another way of approaching the question. As stated earlier, the consequence of failure to deposit the arrears of rent as mentioned in sub-section (1) of S. 12 is an order under sub-section (3) thereof. An order under sub-section (3) of S. 12 is to stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. The stoppage of all further proceedings should necessarily lead to an order directing the tenant to put the landlord in possession of the building. If an order under S. 11 has become final, there could be no order stopping all further proceedings and directing the tenant to put the landlord in possession of the building. If delivery of the building has been taken in execution of the order of eviction, then the court would not be in a position to exercise the power under sub-section (3) of S. 12. Where an appeal against an order under Section 11 is pending, the matter does not attain finality and the Appellate Authority can exercise the jurisdiction under S. 12(3), if the conditions for the same are available. It cannot be assumed that the law makers would make a provision like Sub-section (3) to be applied in circumstances where it would be otiose. sub-section (3) of S. 12 is with a specific purpose. That purpose can be achieved only if there could be a lawful order directing the tenant to deposit the arrears of rent. Where eviction has already taken place in execution of a final order under S. 11 the Appellate Authority could not exercise its jurisdiction, as was done in the present case, to direct the tenant to deposit the arrears of rent. This is the only plausible conclusion that can be arrived at, since the Appellate Authority would be lacking any power to invoke sub-section (3) of S. 12 in such cases.

8. The learned counsel for the respondent contended that the expression "on the application" occurring in S. 12(1) also can be referable to an application under S. 12. We are not in a position to accept this submission since S. 12(1) does not refer to an application under that section but refers to only an application under S. 11. Learned counsel for the respondent submitted that an appeal under sub-section (1) of S. 12 could be against any order made by the Rent Control Court. The learned counsel submitted that an order under S. 12(1) is also appealable under S. 18. It is submitted that the only provision for filing an appeal before the Rent Control Appellate Authority is S. 18. The argument is attractive. But if it is accepted, the, expression "on the application" in sub-section (1) of S. 12 would be meaningless. The words "on the application" against which an appeal is preferred occurring in sub-section (1) of S. 12 can have reference only to the application under S. 11. It is true that an appeal under S. 18 lies not only against a final order under S. 11, but also against the order passed by the Rent Control Court dismissing an application to set aside the ex parte order under S. 11. Appeal under S. 18 lies against certain other orders passed by the Rent Control Court as well. We are of the view that the only plausible interpretation that could be made is that though an appeal under S. 18 lies against a variety of orders passed by the Rent Control Court, the appeal which is referred to under S. 12(1) is an appeal against an order under S. 11. In other appeals, no order can be passed by the Appellate Authority under S. 12 of the Act.

9. In Sulaiman Sahib v. Mohammed Moosa (2003(2) KLT 1058), a Division Bench considered a similar question and held thus:--

"9. I.A. 2600/1992 was filed by the tenant under R. 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 an appeal from an order of the Rent Controller passed on the application filed by the landlord under S.11 of the Act. The authorities, cited supra, are dealing with the facts arising from orders passed under S.12 of the Act, whereas the facts of the case under discussion are one originating from the order passed under R. 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 S. 11 of the Act to attract S.12(1) of the Act. Consequently, S. 12(3) of the Act also will not be available for applying against the tenant.

10. Therefore, we have no hesitation to hold that the landlord is not entitled to file an application under S.12(3) of the Act in an appeal, which emanated from the proceedings under R. 13(3) of the Rules."

We are in respectful agreement with the view taken by the Division Bench in Sulaiman Sahib v. Mohammed Moosa (2003(2) KLT 1058).

10. For the aforesaid reasons, we are of the view that the Appellate Authority was not justified in directing the tenant to deposit the arrears of rent for the period till the date of delivery. The judgment passed by the Appellate Authority is set aside and the matter is remitted to the Appellate Authority for fresh disposal on the merits as expeditiously as possible. We appointed Sri Sathish Ninan, Advocate as Amicus Curie at a time when the respondent had not engaged a counsel. We record our appreciation and thanks to Sri Sathish Ninan for his meticulous arguments. O.P.(RC) is disposed of as above.

___________

Mohammed Shameer v. Ashokan

Judgment Summary — K.T. Sankaran, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's (Tenant's) Arguments

Respondent's (Landlord's) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mohammed Shameer v. Ashokan

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