Abdul Rehim, J.

1. A Division Bench of this court, through its order dated 20-03-2018, referred the above case to be heard by a Full Bench, on the question regarding maintainability of an application filed under Section 12 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for short) in an appeal filed against an order passed under Section 12 (3) of the Act.

2. Brief facts of the case are that, the landlord instituted a Rent Control Petition seeking eviction of the tenant, on the grounds enumerated under Sections 11 (2) (b), 11 (3) and 11 (4) (v) of the Act. Tenant resisted the petition by filing objections. During pendency of the Rent Control Petition, the landlord filed an interim application under Section 12 of the Act, seeking direction against the tenant to deposit the admitted arrears of rent. The Rent Control Court passed an order under Section 12 (1) directing the tenant to pay the admitted arrears, within the date stipulated thereunder. The tenant failed to make deposit / payment of the admitted arrears. The landlord thereupon filed another application seeking orders under sub-section (3) of Section 12 of the Act. The said application was allowed and the Rent Control Court stopped all further proceedings before it directed the tenant to put the landlord in possession of the building. The tenant challenged the said order in appeal before the Rent Control Appellate Authority. In the appeal, the landlord filed an interim application seeking order directing the appellant / tenant to deposit the admitted arrears of rent. The Appellate Authority allowed the said application and the tenant was directed to deposit the admitted arrears, within one month. Since the tenant failed to comply with the direction, the Appellate Authority disposed of the appeal passing an order as follows;

“Appellant directed to put respondent in possession of the petition schedule building within one month as the direction in the order dated 09-03-2017 in IA No.5136/2016 is not complied.”

The said order is under challenge in the above Rent Control Revision Petition, filed under Section 20 of the Act.

3. The Revision Petitioner / tenant contended that the application filed by the landlord before the Appellate Authority under Section 12 of the Act was not maintainable since the appeal was filed against an order passed by the Rent Control Court under Section 12 (3) of the Act. In support of the said contention, reliance was placed on the Division Bench decisions of this Court in Sulaiman Sahib V. Mohemmed Moosa (2003 (2) KLT 1058) and in Mohammed Shameer V. Ashokan (2015 (1) KLT 396). It was contended that the wordings in Section 12 (1), “an appeal under Section 18 against any order made by the rent control court on the application …....” (emphasis supplied) refers only to an application for eviction filed under Section 11 of the Act, and therefore Section 12 (1) would not apply to an appeal arising from any other order passed by the Rent Control Court, including an order passed under Section 12 (3) of the Act. Therefore it is argued that, in the case at hand, the application filed by the landlord before the Appellate Authority under Section 12 of the Act, was not maintainable.

4. Per contra, learned counsel appearing for the respondent / landlord contended that, the question as to whether an application under Section 12 is maintainable in an appeal filed from an order passed under Section 12 (3) of the Act, did not directly arise for consideration in the decisions cited above. In both the decisions cited above the appeals were filed from exparte orders of eviction passed under Section 11 of the Act and not from any order passed under Section 12 (3). It was argued that, the object behind the enactment of Section 12 is to require the tenant to deposit, during pendency of the proceedings, the admitted arrears of rent and to continue to pay the rent which may subsequently fall due in respect of the demised premises, until the proceedings before the Rent Control Court or the Appellate Authority is terminated. Therefore it would be unreasonable to limit the applicability of Section 12 only to appeals from final orders of eviction passed under Section 11 of the Act. Further contention raised was that, even in an order passed under Section 12 (3) of the Act, all that the Rent Control Court does is to stop the proceedings and to direct the tenant to put the landlord in possession of the tenanted premises. Therefore the order needs to be treated as an order having finality as far as the petition for eviction filed under Section 11 is concerned. Such being the position, it was contended that, the declaration of law made by this court in the aforecited decisions require reconsideration.

5. On the basis of the rival contentions, the learned Judges in the Division Bench observed that, they are of the considered opinion that the issue requires to be examined by a Full Bench. They were also persuaded to make such an order of reference because of the reason that, interpretation with respect to the opportunity to be afforded to a tenant under Section 12 (3) of the Act, also arises for consideration in the instant Revision Petition. The Bench noticed that, the said question stands already referred for consideration by a Full Bench, in RCR No.284/2015. We have already considered the reference in RCR No.284/2015 and answered the Reference through a separate order pronounced on today. Hence we are proceeding to consider the question raised in this Revision Petition in order to answer the same.

6. In the decision in Sulaiman Sahib V. Mohemmed Moosa (supra) the Rent Control Court passed an order of eviction under Section 11 of the Act, after setting the tenant exparte. Application filed by the tenant under Rule 13 (3) of the Kerala Buildings (Lease and Rent Control) Rules, 1979 to set aside the ex-parte was dismissed by the Rent Control Court. Dismissal of the said application was challenged before the Appellate Authority. The landlord filed an application in the said appeal seeking direction under Section 12 (1) of the Act. The Appellate Authority held that, it cannot give a direction to the tenant to deposit the arrears of rent, because the appeal filed was only against an order of the Rent Control Court dismissing a petition filed under Rule 13 (3), and not against an order under Section 11 of the Act. The landlord challenged the above said order of the Appellate Authority in Revision before this court. While deciding the issue, this court relied upon an earlier decision of a Division Bench of this court, in Mary Beena John V. Additional District Court (1996 (2) KLT 955), in which it is held that the obligation imposed on the tenant to pay or to deposit the arrears of rent during pendency of the proceedings before the Rent Control Court or the Appellate Authority, is only for the purpose of contesting the application before the Rent Control Court or for preferring an appeal before the Appellate Authority, 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 Section 11 of the Act. Based on the said principle the court in Sulaiman Sahib's case (supra) proceeded to analyse the provisions contained in Section 12 of the Act. It was noticed that the appeal in question is one arising from an order passed by the Rent Control Court under Rule 13 (3) of the Rules. The tenant in the said case is not challenging an order passed by the Rent Controller under Section 11 of the Act, inorder to attract Section 12 of the Act. Therefore it is held that the landlord is not entitled to file an application under Section 12 of the Act, in an appeal which emanated from an order under Rule 13 (3) of the Rules.

7. The legal proposition settled in Sulaiman Sahib's case (supra) was reiterated by another Bench of this court in Mohammed Shameer V. Ashokan (supra). On an elaborate consideration of sub-section (1) of Section 12, it was observed that, the expression 'on the application' contained in Sub-Section (1) must be with reference to an application referred to in the earlier portion of that sub-section itself. The only reference, earlier to the expression 'on the application', contained in Section 12 (1) is the application under Section 11. Therefore an appeal in which the Appellate Authority can direct deposit of the arrears of rent, could only be an appeal arising from an order under Section 11, and not otherwise. An application under Section 23 (1) (h) read with Rule 13 (3) of the Rules cannot be equated with an application under Section 11 so as to attract sub-section (1) of Section 12, is the finding. Hence it is found that the application under Section 12 was not maintainable before the Appellate Authority.

8. In Mohammed Shameer's case (supra) the issue was also approached in another angle. The court observed that, an order passed under Sub-Section (3) of Section 12 is only to stop all further proceedings and directing the tenant to put the landlord in possession of the building. Stoppage of further proceedings would necessarily lead to an order directing the tenant to put the landlord in possession of the building. If an order under Section 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, the court would not be in a position to exercise power under Sub-Section (3) of Section 12. Where an appeal against an order under Section 11 is pending, the matter does not attain finality and the Appellate Authority can exercise jurisdiction under Section 12 (3), if the conditions for the same are available. It was found that, 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 Section 12 is engrafted 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. When the eviction has already been taken place in execution of a final order under Section 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. Hence the only plausible conclusion that can be arrived at is that, the Appellate Authority would be lacking power to invoke Sub-Section (3) of Section 12 in such cases. In Mohammed Shameer's case (supra), the Bench also reiterated the view that, the words 'on the application' occurring in Sub-Section (1) of Section 12 can have reference only to an application under Section 11. The observation was that, it is true that an appeal under Section 18 lies not only against a final order under Section 11, but also against an order passed by the Rent Control Court dismissing an application to set aside the ex-parte order passed under Section 11. Appeal under Section 18 lies against certain other orders passed by the Rent Control Court as well. Though an appeal under Section 18 lies against a variety of orders passed by the Rent Control Court, the appeal which is referred under Section 12 (1), is only an appeal against an order under Section 11. Therefore in other appeals, no order can be passed by the Appellate Authority under Section 12 of the Act, is the conclusion arrived.

9. We take note of a recent decision rendered by another Division Bench of this court in City Co-operative Hospital V. Luquman (2017 (3) KLT 1172), where the above issue came up for consideration. It was held that, neither it is permissible nor recognizable under law to have recourse under Section 12, in an appeal pending against an order passed under Section 12 (3) of the Act. The reasoning mentioned therein is that, the wording used in the first limb of Section 12 (1) is that, “no tenant against whom the 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.” This makes the legal position clear that the first limb of Section 12 (1) would come into play / operate only when there is an application for eviction by a landlord under Section 11 of the Act. The second limb of Section 12 (1) is with the wordings; “or to prefer an appeal under Section 18 against any order made by the Rent Control Court on the application.” The expression used and engrafted under the second limb of Section 12 (1), 'on the application' refers only to an application made and mentioned in the first limb of Section 12 (1), i.e., an application under Section 11 of the Act. No other interpretation is possible on a mere reading or on a strict interpretation of Section 12 (1) of the Act. Therefore it is held that, inorder to have recourse under Section 12, it is a prerequisite that there should be an application under Section 11 initiated by the landlords, or an appeal preferred by the tenant against an order under Section 11 of the Act. Without satisfying any one of the conditions, there cannot be any recourse under Section 12 of the Act, is the finding.

10. Before the Division Bench which decided the City Cooperative Hospital's case (supra) an argument was advanced on behalf of the landlord that, an order passed under Section 12 (3) of the Act would terminate the proceeding initiated under Section 11 of the Act, and hence in effect it would be an order under Section 11 of the Act. The Bench observed that, Section 12 (3) of the Act really contemplates passing of an order by the Rent Control Court or by the Rent Control Appellate Authority, as the case may be, stopping further proceedings in the Rent Control Petition or Rent Control Appeal. The order of stopping further proceeding in the Rent Control Petition or the Rent Control Appeal cannot be treated or equated to a judgment rendered in consonance with Section 11 of the Act. Section 12 is really intended to compel the tenant to pay off the arrears based on the principle of equity. It cannot be equated with any of the provisions contained in the Act, including Section 11 of the Act. When an order is passed under Section 12 (3) of the Act, it would be an order passed by the Rent Control Court or the Rent Control Appellate Authority, as the case may be, terminating the proceedings initiated by way of Rent Control Petition or the Rent Control Appeal. But that does not mean that an order on adjudication was rendered under Section 11 of the Act. Therefore the court found that, it is a material irregularity committed by the Appellate Authority by using the wording “judgment in RCR”. In fact no judgment was delivered in the Rent Control Appeal, either by declaring or proclaiming or adjudging any grounds raised under Section 11 of the Act. Therefore it was held that the Rent Control Appellate Authority went wrong and mistook the real nature of an order that can be drawn under Section 12 (3) of the Act.

11. Sri. P.B. Krishnan, learned counsel appearing for the respondent / tenant raised contention that an order passed under Section 12 (3) is having the same effect of an order passed under Section 11. It is pointed out that the challenge which is being pursued by a tenant against an order under Section 12 (3) is equal to a challenge against an order of eviction passed under Section 11. Therefore, even in the absence of any specific mention in Section 12 (1), the tenant can be permitted to challenge the order by preferring an appeal before the Appellate Authority only on his compliance with respect to payment of the arrears of the admitted rent as contemplated under Section 12. He placed reliance on one of the oldest decisions of this court in Sahadevan V. Kesavan Nair (1973 KLT 37). The question considered therein was regarding executability of an order passed under Section 12 (3) of the Act. It was observed that, on a proper consideration of the provisions contained in Section 11 and Section 12 (3), it has to be said that an order passed under Section 12 (3) is really an order passed under Section 11. Therefore the absence of mention about Section 12 in Section 14, is of no consequence and such mention is unnecessary. It was noticed that, by virtue of a subsequent amendment, Section 12 also was included in Section 14. So that an order under Section 12 is executable under provisions of Section 14, is the finding. Likewise, it was pointed out by the counsel that, an order passed under Section 12 (3) has all the characteristics of a final order of eviction under Section 11, because the effect of an order of eviction passed under Section 12 (3) cannot be effaced or obliterated by payment made at any subsequent stage. Having all the characteristics of a final order of eviction, challenge against such order need to be construed as challenge against an order of eviction passed under Section 11, is the argument. Hence the obligations under Section 12 (1) is equally applicable with respect to such appeals also, it was contended. Learned counsel also placed reliance on a decision of a Division Bench of this court in M. Venugopalan V. Raphael (1974 KLT 640), in this regard. Reliance was also placed on the decision in Davy V. Indu (1999 (3) KLT 434), in order to show that an order passed under Section 12 (3) of the Act cannot be vacated by the Rent Control Court under Section 11 (2) (c), on payment of the rent, subsequently. Therefore it is contended that, by virtue of an order under Section 12 (3), finality is attained with respect to the proceedings for eviction and therefore it has all the characteristics of an order passed under Section 11 of the Act. According to the counsel, the obligation cast upon the tenant by virtue of Section 12 (1) is to pay the arrears of rent to the extent admitted by him, if he wants to contest the proceedings for eviction, whether it be before the Rent Control Court or the Appellate Authority. It is also his obligation to pay the rent which falls due subsequent to commencement of the proceedings. Therefore when the tenant challenges an order of eviction, inorder to contest matter before the Appellate Authority, the statute casts an obligation upon him to pay the arrears of rent, to the extent admitted. Therefore it is not justifiable or legally sustainable to permit the tenant to continue with the contest in the proceedings in the appeal, without discharging such an obligation. In this regard reliance is placed on another decision of this court in Jain Abraham V. Best Buy T.V. & Home Appliances (2009 (1) KLT 477). It is also pointed out that, by virtue of a decision of this court in Rakesh Menon V. Homex Trade Links (p) Ltd. (2012 (4) KLT 18) it remains settled that, if the Rent Control Court or the Appellate Authority notices that the arrears of rent admitted or the rent that has fallen due subsequently is not paid or deposited within the period specified in Section 12, it is the duty of the Rent Control Court or the Appellate Authority, as the case may be, to follow the procedure envisaged under Sub-Section (3) of Section 12. Therefore it is evident that it is a statutory obligation cast upon the rent control authorities to see that a tenant is not permitted to contest the eviction petition or the appeal without making deposit or payment of the admitted arrears of rent. Therefore the view that the application under Section 12 is not maintainable in an appeal instituted against an order passed by the Rent Control Court under Section 12 (3), is not justifiable and legally sustainable, is the contention.

12. While evaluating contentions enumerated as above, we are of the opinion that, the question is not whether an order under Section 12 (3) is final or not, nor it is a question as to whether an order under Section 12 (3) can be equated with an order of eviction passed under Section 11. But the real issue is based on the question as to whether Section 12 (1) casts an obligation on the tenant to pay the admitted arrears of rent in order to contest an appeal filed challenging an order under Section 12 (3), which is to the effect of stoppage of the proceedings and directing to put the landlord in possession of the premises. Such an obligation can be attracted only if Section 12 (1) provides it statutorily. As analysed by this court in the decisions in Sulaiman Sahib (supra) and Mohammed Shameer (supra) and in City Co-operative Hospital's case (supra), Section 12 (1) provides such an obligation only in the case of an application under Section 11 or in the case of an appeal preferred under Section 18 against an order passed by the Rent Control Court on an application under Section 11. As long as the obligation cast under Section 12 (1) is exclusively confined to an application for eviction filed under Section 11 and to an appeal filed challenging an order passed on such an application, this court cannot hold that the obligation in this regard can be extended even in the case of an appeal instituted against an order passed by the Rent Control Court under Section 12 (3). Therefore we are inclined to hold that the law laid in City Co-operative Hospital's case (supra), which is following the decisions in Sulaiman Sahib's case (supra) and Mohammed Shameer's case (supra), need to be declared as correct law. Hence the issue referred for decision of the Full Bench is answered accordingly.

The Registry shall post the above Rent Control Revision Petition for consideration before the Division Bench dealing with the subject, as per the roster, for disposal on the basis of the question / issue answered as hereinabove.