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2017 ICO 1103

2017 (3) KLJ 595

03-07-2017
High Court of Kerala

R.C.R. No. 146 of 2017, R.C.R. No. 147 of 2017

Justice K Harilal, Justice P Somarajan

Sadique ( Represented by, P M Mohammed (Adv.) & Shiraz (Adv.) )

Vs.

Mohammed Umair & Ors ( Represented by, Babu Karukapadath (Adv.) & M A Vaheeda Babu (Adv.) & K M
Faisal (Adv.) & P U Vinod Kumar (Adv.) & Mithun Baby John (Adv.) & J Ramkumar (Adv.) & Amrin
Fathima (Adv.) )

Equivalent Citations : ILR 2017 (3) Ker. 448 :: 2017 (3) KLJ 595 :: 2017 (3) KHC 1003 :: 2017 (3) KLT 759

Mentioned in Citations : 2019 ICO 2299

Headnotes :-

A. Kerala Buildings (Lease and Rent Control) Act, 1965 – Section 12 – It is totally impermissible for
the Rent Control Court or the Appellate Authority to have an adjudication regarding the arrears of
rent, as envisaged under the first limb of Section 12, by conducting an enquiry. The jurisdiction under
the first limb of Section 12 is to look into the ‘admission’ made by the tenant regarding the rate of
monthly rent payable and the arrears of rent. When there is no admission or total denial, no enquiry
can be conducted by the Court in order to bring the matter within the purview of first limb of Section
12. (Para 4)

B. Kerala Buildings (Lease and Rent Control) Act, 1965 – Section 12 – The liability to pay the rent
under the second limb of Section 12 would arise from the date of the Rent Control Petition and not
from the date of the application under Section 12. (Para 4)

C. Kerala Buildings (Lease and Rent Control) Act, 1965 – Section 12 – The expression ‘continue to
pay or deposit any rent’ as envisaged under the second limb of Section 12 casts a statutory duty on the
tenant besides the liability under the lease to continue to pay or deposit the monthly rent, which may
subsequently become due in respect of the building. (Para 5)

D. Kerala Buildings (Lease and Rent Control) Act, 1965 – Section 12 – The payment of rent after the
Rent Control Petition should be with the notice of the Court. (Para 6)

E. Kerala Buildings (Lease and Rent Control) Act, 1965 – Section 12 – The expressions ‘admitted
arrears of rent’ as well as ‘rent’ in Section 12 would be relevant only when there is a landlord-tenant
relationship – The denial of title of landlords, or claim of permanent tenancy by the tenant, should be
answered at first, before proceeding with an application under Section 12. (Para 7)

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F. Kerala Buildings (Lease and Rent Control) Act, 1965 – Section 12(3) – Before passing an order
under Section 12(3), an opportunity must be given to the tenant to explain why he could not remit the
rent as ordered within the time specified - Tenant is not entitled to a separate notice of show cause
under Section 12(3).(Para 11)

ORDER
P. Somarajan, J.
1. Challenging the concurrent findings of the Rent Control Court as well as the Rent Control Appellate
Authority under Sections 12(1), 12(2) and 12(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965
(hereinafter referred to as 'the Act'), the tenant came up with these two Revisions.
2. An application under Section 12 of the Act was filed by the landlords during the pendency of the Rent
Control Petition claiming an amount of 45,000/- as arrears of rent, at the rate of 5,000/- per month. The
tenant, in turn, filed objection disputing and denying the arrears of rent claimed by the landlords and,
according to him, rent paid without default to its original owner one Hajira till the month of January, 2015.
The Rent Control Court thereon considered the rival contentions and passed a detailed order dated
25.05.2015, finding that the rent is in arrears from April, 2014 onwards and thereby, allowed the application
directing the respondent/ tenant to deposit the arrears of rent at the rate of 5,000/- per month from April
2014, within one month and shall continue to deposit the future monthly rent at the said rate. It was
confirmed in appeal, against which R.C.R.No.147 of 2017 is preferred by the tenant. Pursuant to the order
dated 25.05.2015, an order under Section 12(3) was also passed on 26.6.2015, by which the tenant was
directed to put the landlords in possession of the building and stopped further proceedings in the Rent
Control Petition. The said order was confirmed in appeal, against which R.C.R.No.146 of 2017 is preferred.
3. Section 12 of the Act is extracted below for reference.
"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 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

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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. Section 12 has got two limbs dealing with two situations; namely, pre-litigation phase and post-litigation
phase regarding payment of rent. Both are dealt with under Section 12 of the Act. As far as the first limb,
pre-litigation phase, is concerned, the liability cast on the tenant under Section 12 of the Act is to pay or
deposit the "admitted arrears of rent", but in the second limb, there cannot be any admitted arrears of rent
except the rate of monthly rent payable, as the liability cast on the tenant is to pay and continues to pay the
monthly rent which became due after the petition. The expression "admitted arrears of rent" as envisaged
under Section 12 would operate only to the pre-litigation arrears of rent and it is resting on the admission of
tenant, for which no enquiry is contemplated under Section 12 of the Act, as to what would be the arrears of
rent. The Court cannot substitute its finding on the arrears of rent in the place of admitted arrears of rent and,
if it is allowed, it would fall under the purview of an adjudication under Section 11(2)(b) of the Act, which
can be done only on a later stage, after the trial of the Rent Control Petition. In other words, it is totally
impermissible for the Rent Control Court or the Appellate Authority, as the case may be, to have an
adjudication regarding the arrears of rent, as envisaged under the first limb of Section 12, by conducting an
enquiry. The jurisdiction under the first limb of Section 12 of the Act vested with the Rent Control Court
and the Appellate Authority, as the case may be, is to look into the "admission" made by the tenant
regarding the rate of monthly rent payable and the arrears of rent. When there is no admission or total denial,
no enquiry can be conducted by the Court in order to bring the matter within the purview of first limb of
Section 12 of the Act. But, in so far as the rent which may accrue or become due subsequently after the Rent
Control Petition, there cannot be any application of "admission" by the tenant except for the purpose of rate
of monthly rent payable. The first limb of Section 12 stands for pre-litigation arrears of rent, but in the
second limb, the expression "admitted arrears" is conspicuously absent because of the reason that the second
part is dealing with the question of payment of subsequent monthly rent which may become due after the
Rent Control Petition or the Rent Control Appeal, as the case may be. So, it cannot be reckoned from the
date of filing of an application under Section 12 of the Act. But it has to be reckoned from the date of filing
of the Rent Control Petition or the Rent Control Appeal, as the case may be, and the liability to pay the rent
under the second limb of Section 12 of the Act would arise from the date of the Rent Control Petition and
not from the date of the application under Section 12 of the Act, though the said application gives the tenant
an opportunity to pay the rent within a time specified.
5. In the present case, the Rent Control Petition was filed on 7.4.2014 and admittedly, the rent claimed is the
subsequent rent which became due after the filing of the Rent Control Petition. It would fall under the
second limb of Section 12 of the Act. So, there cannot be any relevance as to whether it is admitted or
disputed by the tenant regarding the rent which may accrue or become due subsequent to the Rent Control
Petition. The expression "continue to pay or deposit any rent" as envisaged under the second limb of Section
12 of the Act casts a statutory duty on the tenant besides the liability under the lease to continue to pay or
deposit the monthly rent which may subsequently become due in respect of the building.
6. In this case, there is no dispute regarding the quantum of monthly rent payable and as such the parties are
strictly bound by the mandate under the second limb of Section 12 of the Act. It is submitted that the
building was taken on lease from one Hajira by the tenant. The rent claimed is the monthly rent
subsequently became due and fell in arrears right from the month of April 2014 till February 2015. His case
is that he used to pay the rent to the original landlord, Hajira. It was disputed by the landlords. It has come
out in evidence that Hajira passed away early in the year 2011. The case advanced by the tenant that he had
paid rent directly to the original landlord, Hajira, till February 2015 would cut the very root of the case
advanced by the tenant regarding payment of subsequent monthly rent accrued after the petition. In fact, no
such enquiry is necessary under the second limb of Section 12 of the Act as the payment of rent after the
Rent Control Petition should be with the notice of the Court.
7. The next question to be considered is what would be the impact of denial of title of landlord or claim of
right of permanent tenancy by the tenant under second proviso to Section 11(1) of the Act while dealing

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with an application under Section 12 of the Act. The expressions "admitted arrears of rent" as well as the
"rent" as envisaged under Section 12 would operate only when there is landlord-tenant relationship. Hence,
the denial of title of landlords or claim of permanent tenancy by the tenant should be answered at first,
before proceeding with an application under Section 12 of the Act. Otherwise, it would defeat the valuable
right of tenant to defend the petition under second proviso to Section 11(1) of the Act. So, both the Rent
Control Court and the Appellate Authority are bound to consider the claim of permanent tenancy or denial
of title of the landlords as a preliminary issue so as to find out whether it is bona fide or not before
considering an application under Section 12 of the Act. An application under Section 12 of the Act can be
proceeded with only after finding that the denial of title of landlords or claim of permanent tenancy by the
tenant are not bona fide, when it was raised.
8. The further question to be considered is whether it is permissible for the Rent Control Court or the
Appellate Authority to pass an order as contemplated under Section 12(3) of the Act on the last day fixed for
the compliance of an order under Section 12(1) & (2) of the Act. The entire scheme of Section 12 of the Act
would show that non-compliance of an order passed under Section 12(1) & (2) of the Act by the tenant
would follow the consequences under Section 12(3) of the Act and there should be a formal order under
Section 12(3) of the Act by the Court. It is not an empty formality and, as such, an opportunity should be
given to the tenant why he could not remit or make payment of arrears of rent as ordered.
9. A Division Bench of this Court in Narayanan v. Vinod reported in 2004 (3) KLT 955 :: 2004 ICO 5875
held that:
"Section 12(3) of the Act is a mandate to the Rent Controller or the Appellate Authority to
order immediate ejectment of the tenant if he does not deposit the admitted arrears of rent, the
only exception being if he is able to show sufficient cause for not doing so. In this view of the
matter, the question posed earlier has to be answered in the negative. The Rent Controller or
the Appellate Authority, as the case may be where admitted rent has not been deposited by the
tenant, is not required to issue any separate notice to the tenant to enable him to show
sufficient cause for committing the default."
10. Earlier in C.V.Xavier and Othes v. Francis Leonard Pappali, 1975 KHC 52 :: 1975 ICO 959 another
Division Bench of this Court considered the very same question and it was held that:
"It may appear that this is quite a drastic provision but evidently the purpose is to compel the
tenant to deposit the rent in arrears as well as the recurring rent to the extent the tenant admits
liability. Even so, safeguards may be necessary for, the inability to make a deposit of the
arrears of rent and the recurring rent even to the extent admitted may be genuine and one
which should not invite such drastic consequences. It is only fair that in that event the default
may have to be excused. That power is given to the court under Section 12(3) by enabling the
tenant to show sufficient cause to the contrary. Even in the proviso to Section 12(2) a
safeguard is provided and that is that the order which the court may pass directing the tenant
to deposit the arrears shall provide for a period of not less than four weeks for such deposit
and in the case of arrears accruing due from time to time the period shall not be less than two
weeks. Thus when Section 12(3) is sought to be applied a tenant is entitled to claim that he
must have the benefit of the safeguards secured to him under the very provision namely, that
he should be given an opportunity to show sufficient cause to the contrary. The opportunity
must be reasonable and real. The requirement, the circumstances would amply bear out, is not
an empty formality to be observed by the Court. If the tenant is not given such an opportunity
to show sufficient cause to the contrary an order passed under Section 12(3) would be
unsustainable."
11. The legal position thus settled is that there should be an opportunity to the tenant why he could not remit
the rent as ordered within the time specified, though he is not entitled to a separate notice of show cause
under Section 12(3) of the Act.

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In the said circumstance, we are of the view that the orders of both the Rent Control Court and the Rent
Control Appellate Authority are liable to be set aside and we do so. The matter is remanded back to the Rent
Control Court with a direction to expedite the disposal of the Rent Control Petition as early as possible, at
any rate, within a time schedule of three months from the date of receipt of a copy of this order. The Rent
Control Court shall, within two weeks from the date of receipt of a copy of this order, consider the
application under Section 12 of the Act and dispose of the said application. Registry shall return the Lower
Court Records forthwith. Parties shall appear before the Rent Control Court on 31.07.2017.
--- End ---

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