Kuriakose Kurian v. Saramma Chacko — 1962 DIGILAW 5 (KER)

JUDGMENT C.A. Vaidialingam, J. 1. The question that arises for consideration in this writ petition under Articles 226 and 227 of the Constitution, is as to whether the petitioner-tenant is entitled to claim relief under section 11 (2) (b) of the Kerala Buildings (Lease and Rent Control) Act, 1959 (Act No. 16 of 1959). 2. The circumstances under which this writ petition has been filed can be briefly stated. 3. The landlord filed an application under clause 9 (2) (i) of the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950, for eviction of the petitioner, on the ground of default in the payment of rent. The Controller under his order, Ext. P-l, dated 16th September 1958, ordered eviction. That order was again challenged in appeal before the appellate authority under clause 15 of the said Travancore-Cochin Order. But the order of eviction was confirmed under Ext. P-2, dated 20th December 1958. There was again a further attack made against the said order, by carrying the matter in revision before the District Judge under clause 16, and the learned District Judge also confirmed the orders by his order, dated 31st March 1959, evidenced by Ext. P-3. 4. While the revision before the learned District Judge was pending, the Kerala Buildings (Lease and Rent Control) Ordinance, 1959, was promulgated, and it came into force on 17th January 1959. As most of the sections in the Ordinance have been substantially incorporated in the later Act, namely, the Kerala Buildings (Lease and Rent Control) Act, 1959, it is not necessary for me to consider the various provisions in the said Ordinance. 5. The Act itself came into force on 3rd April 1959. On the same date, the petitioner filed an application C.M.P No- 902/59, before the Rent Control Court for vacating the order of eviction, on deposit of the arrears of rent with interest and cost of proceedings, as he will ordinarily be entitled to under section 11 (2) (b) of the Act, if the latter provision applies to him and he is entitled to claim relief on the basis of the said provision. The Rent Control Court accepted the deposit and also the plea of the tenant about his being entitled to claim relief, and accordingly under Ext. P-4 the original order of eviction passed under Ext. P-1 was vacated. 6. The Rent Control Court accepted the deposit and also the plea of the tenant about his being entitled to claim relief, and accordingly under Ext. P-4 the original order of eviction passed under Ext. P-1 was vacated. 6. This order was challenged by the landlord before the appellate authority, and the latter, disagreeing with the views expressed by the Rent Controller, dismissed the application filed by the tenant, viz., C. M. P. 902/1959. It may be mentioned at this stage that the learned District Munsiff, who is the Rent Control Court under the Act, exercised his powers in ordering C.M.P. 902/59, mainly upon the provisions of section 34 of Kerala Act 16 of 1959. This view did not appeal to the appellate authority, namely, the learned Subordinate Judge. The latter has taken the view that the provisions of the Act are not retrospective and that, inasmuch as an order of eviction has been passed in this case long before the coming into force of the Act, the appellate authority held that the application filed by the tenant, C.M.P. 902/59, is not maintainable. In this view it differed from the conclusions arrived at by the Rent Control Court, and declined to grant relief to the petitioner under section 11 (2) (b) of the Act; 7. The tenant carried the matter in revision before the learned District Judge. The learned District Judge has made a slightly different approach to the consideration of this question. He is of the view that the provisions of Kerala Act 16 of 1959 are not retrospective. That is one ground given for holding against the petitioner. The learned District Judge also takes the view that by the dismissal of the revision filed by the petitioner under Ext. P-3, the order under attack before the learned District Judge was left intact and therefore it amounts in law to the position that the District Judge declined to interfere with the order of the appellate authority confirming the order of eviction passed as against the petitioner. In this view, the learned District Judge proceeds further to state that the effective order of eviction is certainly the order of the Rent Control Court as confirmed by the appellate authority, and, therefore, the application filed by the tenant is not maintainable. 8.These two orders, viz., the order of the appellate authority, Ext. P-5, and the order of the revisional authority, Ext. 8.These two orders, viz., the order of the appellate authority, Ext. P-5, and the order of the revisional authority, Ext. P-6, are attacked by Mr. T. S. Krishnamoorthi Iyer, learned counsel for the petitioner in these proceedings. 9. According to Mr. T. S. Krishnamoorthi Iyer, the petitioner is entitled to the benefit of the relief granted to persons like the petitioner under section 11 (2) (b) of the Act. The learned counsel has also relied upon the provisions of the Ordinance III of 1959, as well as the analogous provisions contained in section 33 of the Act, to the effect that proceedings already commenced and pending at the time of the Ordinance and at the time of the Act are to be continued and disposed of according to the provisions of the Act. 10. The learned counsel also urged that under section 18 a right is given to persons like the petitioner, who are aggrieved by the orders of the first authority, to challenge them by filing appropriate appeals before the appropriate authorities. The learned counsel further urged that under section 18 (5) of the Act, it is specifically stated that the decision of the appellate authority, and subject to such decision, an order of the Rent Control Court, shall be final and shall not be liable to be called in question, and he has also relied upon the provision made therein to the effect that persons like the petitioner have also a right to approach the revisional court under section 20. The learned counsel urged that according to the scheme of the enactment, the object of the Legislature in enacting a beneficial provision like section 11 (2) (b), is to grant relief to persons like the petitioner who have committed default in payment of the rent. The learned counsel further urged that having due regard to the object of the enactment and also the various provisions, viz., sections 18 and 20, which give an effective right to persons like the petitioner to challenge the order of the Rent Control Court, the intention of the Legislature is that the petitioner can claim relief under section 11 (2) (b) after the entire proceedings have terminated as against him. Pursuing this line of argument, the learned counsel urged that in this case the final order of eviction must be considered to have been passed as against the petitioner when the learned District Judge, viz., the revisional authority, functioning under clause 16 of the Travancore-Cochin Ordinance, 1950, dismissed the revision filed by the petitioner on 31st March 1959 under Ext. P-3. Within a month to be more accurate within three days of the dismissal of the revision, the petitioner, the learned counsel urged, has made the deposit and also filed an application under section 11 (2) (b) of the Act claiming relief on the basis of that provision. Therefore, according to Mr. T. S. Krishnamoorthi Iyer, a very broad view will have to be taken, having due regard to the scheme of the enactment, and, therefore, it must be held that section 11 (2) (b) can be availed of by a tenant after the entire proceedings by way of eviction become final and conclusive as against him. 11. On the other hand, the learned Advocate-General, appearing for the contesting respondent-landlord has urged that there is absolutely no scope for enlarging the provisions of section 11 (2) (b) than what the clear, wording of that sub-section warrants. The learned Advocate-General urged that section 11 (2) (b) categorically states that a tenant should deposit the arrears of rent with interest and costs of proceedings within a month of the order of the Rent Control Court. It is also provided therein that the Rent Control Court is given a discretion to extend the time, if it is so satisfied, and there is also a further provision that the Rent Control Court, if those conditions are satisfied, shall vacate the order of eviction passed by that authority. 12. This, according to the learned Advocate-General, would indicate that whatever may have been the ultimate intention of the Legislature, the clear wording of the statute, particularly the provisions of section 1f (2) (b) go to show that it is really the order of the Rent Control Court that should form the basis and the date of that order should be taken into account to enable the petitioner to make the deposit of the arrears of rent with interest and cost of proceedings. The learned Advocate-General urged that there is no scope for extending the provisions of section 11 (2) (i) as contended by the learned counsel for the petitioner, that the Legislature intended the order of eviction passed by the Rent Control Court to become final subject to decision by the ultimate authority under the Act, viz., the order passed by the District Judge in revision under section 20 of the Act. 13. Both Mr. T. S. Krishnamoorthi Iyer, learned counsel for the petitioner, and the learned Advocate-General for the landlord, have, no doubt, drawn my attention to certain decisions, wherein the question of merger of an order passed by a subordinate authority, either in revisional order passed by a higher authority, or an appellate order passed by a higher authority, have been considered. In particular, the decisions referred to before me are the decisions of the Supreme Court in UP. State v. Mohammed Nooh A.I.R. 1958 S.C. 86 and I. T. Commissioner v. Amritlal Bhogilal and Co. A.I.R. 1958 S.C. 868. Mr. T. S. Krishnamoorthi Iyer, learned counsel for the petitioner, in particular referred also to a decision of this Court reported in Krishnan Nair v. Velayudhan 1959 K.L.T. 812, particularly the passage at p. 815, to the effect that the function of an appellate court is to determine what decree the court below ought to have made ; and, if so, the decision is in law that of the Rent Court, though it was rendered or was set right in appeal. Mr. T. S. Krishnamoorthi Iyer also referred me to the decision reported in Chandu v. Abdul Kader Badsha 1960 K.L.T. 498, where the learned Judges, Sankaran, C.J., and Govinda Menon, J., had to consider the forum where an application claiming relief under section 34 of Kerala Act 16 of 1959 was to be made. In that case, it will be seen that the order of eviction was passed by the District Court in revision and was confirmed in further revision by this Court. The tenant, after the passing of the Kerala Act 16 of 1959, filed an application, claiming relief under section 34 of the Act before the District Judge, who passed the order of eviction. The tenant, after the passing of the Kerala Act 16 of 1959, filed an application, claiming relief under section 34 of the Act before the District Judge, who passed the order of eviction. Objection was taken that inasmuch as the order of the District Court had been confirmed in revision by the High Court, the proper forum, if at all, where relief is to be claimed, is not the District Court, but either the Rent Court or, in any event, the High Court. 14. In considering that aspect, the learned Chief Justice observes at p. 501: "The effect of such a dismissal order is to leave the order of the District Court as it stood and it will be wrong to say that the District Court's order has become merged in the order of the High Court. The order of the District Court was left intact as the final and effective order of the eviction of the tenant from the building." 15. The position taken by this Court in Chandu v. Abdul Kader Badsha 1960 K.L.T. 498 and adverted to earlier, has been taken also in two decisions of the Bombay High Court reported in Lata Mangeshkar v. Union of India 36 I.T.R. 527 and Ramaniklal Tribhowandas v. V. R. Amin 42 I.T.R. 92. Those decisions lay down the proposition that when an application for the revision of an order of a subordinate authority is dismissed by the revisional authority, there is no confirmation of the order, but only a refusal to exercise the powers of revision, and that, in such a case, the order under revision is left untouched, neither confirmed nor varied, nor reversed, and it remains the order of the original authority, which can be enforced. 16. The particular observation of the Supreme Court, relied upon by the learned Advocate-General in U.P. State v. Mohammed Nooh is at page 95. The observation of the learned Chief Justice is to the effect: "There is nothing in the Indian law to warrant the suggestion that the decree or order of the Court or Tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy, but until it is reversed or modified, it remains effective." 17. Again, Mr. The filing of the appeal or revision may put the decree or order in jeopardy, but until it is reversed or modified, it remains effective." 17. Again, Mr. T. S. Krishnamoorthi Iyer, learned counsel for the petitioner, has relied upon the observation of the Supreme Court in I. T. Commissioner v. Amritlal Bhogilal and Co. particularly at page 871, where the learned Judges lay down the legal position where a parti- cular order is modified, reversed or confirmed by an appellate authority The particular observation regarding this is at page 871 which is as follows : " There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority, the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement; but the question is whether this principle can apply to the Income-tax officer's order granting registration to the respondent." 18. In my view, it may not be really necessary to consider this aspect in this writ petition, because a decision as to whether the petitioner is entitled to claim relief on the basis of section 11 (2) (b) of Act 16 of 1959, must entirely depend on the construction to be placed on that section. 19. Mr. T. S. Krishnamoorthi Iyer, learned counsel for the petitioner pressed one further aspect, viz., that if the provisions of section 11 (2) (b) are to be confined only to orders passed in the first instance by the Rent Control Court, the position will be very anomalous, because, when an order of eviction is passed for the first time either by the appellate authority, functioning under section 18, or by the revisional authority, functioning under section 20, persons like the petitioner can have no relief at all under section 11 (2) (6). 20. 20. At this stage, I may mention that the learned Advocate-General was prepared at any rate to accept the position that when an order of eviction is passed for the first time by the revisional authority functioning under section 20 of the Act, it may be possible to hold that a tenant, who has been directed to be so evicted, can seek relief under section 11 (2) (b) by making the necessary deposit within one month of the revisional order. I am not inclined to accept this suggestion that has been made by the learned Advocate-General. 21. After a consideration of the various aspects that have been presented before me, however hard the result may be, in my view, there is absolutely no scope for enlarging the provisions of section 11 (2) (b) to more than what the clear wording of the section provides for. 22. It may be that the object of the enactment is to give relief to tenants and give them an opportunity to deposit the arrears of rent within the time mentioned therein, even at all stages of the proceedings. Even about this, I have considerable doubts. But, nevertheless, that object has not been achieved by the Legislature in view of the clear expressions used in section 11 (2) (b) of the Act. 23. Under section 2 (5) of the Act, which is the definition section, a Rent Control Court is defined as the Court constituted under section 3. section 3 again relates to the constitution of Rent Control Courts. Under sub-section (1) of section 3, power is given to the State Government, by notification in the Gazette, to appoint a person who is or is qualified to be appointed, a Munsiff to be the Rent Control Court for such local areas as may be specified therein. Therefore, it will be seen that a Rent Control Court must satisfy the definition of section 2 (5), and that person must have been constituted as the Rent Control Court by notification under section 3 (1) of the Act. 24. Section 11 deals with the various circumstances under which a landlord can ask for eviction of a tenant. The particular sub-section that is now material is sub- section (2) of section 11. Under section 11 (2), it is open to a landlord to evict his tenant by applying to the Rent Control Court for a direction in that behalf. 24. Section 11 deals with the various circumstances under which a landlord can ask for eviction of a tenant. The particular sub-section that is now material is sub- section (2) of section 11. Under section 11 (2), it is open to a landlord to evict his tenant by applying to the Rent Control Court for a direction in that behalf. Clauses (a) and (b) of sub-section (2) of section 11 are as follows : " (a) If the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him : Provided that an application under this sub-section shall be made only if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at 6 per cent per annum and postal charges incurred in sending the notice within 15 days of the receipt of the notice or of the refusal thereof. (b) The order directing the tenant to put the landlord in possession of the building shall not be executed before the lapse of one month from the date of the order of the Rent Control Court and if the tenant deposits arrears of rent with interest and cost of proceedings within a month of such order or such other period as may be allowed by the Rent Control Court, it shall vacate that order. " 25. It will be seen that under clause (a), if the Rent Control Court is satisfied about the default made by the tenant in the matter of payment of rent, it shall make an order directing the tenant to put the landlord in possession. That will be when the Rent Control Court makes the direction to put the landlord in possession under section 11 (2) (a). That will be when the Rent Control Court makes the direction to put the landlord in possession under section 11 (2) (a). That is the order, from the date of which the period of one month is to be reckoned under clause (b) of sub-section (2) of section 11. Clause (b) of sub-section (2) clearly shows that the tenant is to deposit the arrears of rent with interest and cost of proceedings within a month of the date of such order. The earlier part of sub-clause (b) states that the order directing the tenant to put the landlord in possession shall not be executed before the lapse of one month from the date of the order of the Rent Control Court, and there is also the provision to the effect that it is the Rent Control Court, which is given power to extend the period of one month referred to in clause (b) of sub-section (2). There is a provision, significant in my opinion, viz., the latter part of sub-clause (b) which enables, on satisfaction of all these conditions, the Rent Control Court to vacate that order. There is clear reference to the order of eviction passed by the Rent Control Court under clause (a) of sub-section (2) of section 11. 26. There are provisions in section 18 which give a right of appeal to the party to attack the order of the Rent Control Court, by taking an, appeal before the Officer constituted as the appellate authority, in this case the Subordinate Judge. No doubt, Mr. T. S. Krishnamoorthi Iyer, learned counsel for the petitioner, has relied upon the provisions of clauses (4) and (5) of section 18. Clause (4) is to the effect that the appellate authority shall have all the powers of the Rent Control Court including the fixin of arrears of rent. According to Mr. T. S. Krishnamoorthi Iyer, co-ordinate powers can be exercised both by the Rent Control Court as well as by the appellate authority, by virtue of the provisions contained in clause (4) of section 18. Again, the learned counsel places reliance on clause (5) of section 18 that the decision of the appellate authority and the decision of the Rent Control Court are to be considered as final, only subject to the result of the decision of the appellate authority or the decision of the revisional authority under section 20. 27. Again, the learned counsel places reliance on clause (5) of section 18 that the decision of the appellate authority and the decision of the Rent Control Court are to be considered as final, only subject to the result of the decision of the appellate authority or the decision of the revisional authority under section 20. 27. In my view, the provisions of sub-clauses (4) and (5) of section 18 will not give any assistance to the learned counsel in this contention that persons like the petitioner in this case are entitled to have the benefit of section 11 (2) (b) of the Act. No doubt, all the powers that are exercisable by the Rent Control Court are exercisable by the appellate authority. No doubt, it is provided that an order of a Rent Control Court shall be final, only subject to the decision of the appellate authority. But that does not certainly carry the matter any far regarding the construction to be placed on clause (b) of sub-section (2) of section 11. 28. Again, section 20, which prescribes the deviational jurisdiction of the revisional authority, does not also indicate that the time for deposit of the arrears of rent with interest and costs of proceedings, can be considered to be in any manner enlarged by a final order passed by the revisional authority. No doubt, it has been held that the powers of revision conferred under section 20 are wider and large in amplitude than the powers that are exercisable by the High Court under section 115 of the Code of Civil Procedure. 29. Again, the provisions of section 33 of the Act relating to the continuation of the proceedings already commenced, do not also throw any light on the construction to be placed on section 11 (2) of the Act. 30. I am adverting to some of these aspects, because I am trying to consider the question from this point of view, viz., of a tenant having been directed to be evicted under the provisions of Kerala Act 16 of 1959 and having challenged the order of eviction before the appellate authority and the revisional authority and having failed in all these forums, as to whether a person like the petitioner-tenant is entitled to claim relief on the basis of section 11 (2) (b). If a person, who has been evicted under the provisions of the Act in the manner mentioned above and if such a person is not entitled to claim relief on the basis of section 11 (2) (b) after the order of the District Court in revision, persons like the petitioner, against whom proceedings have been taken under the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950, and who a have been evicted long before the Act came into force, stand on an entirely different footing, and the position is much worse under the provisions of the Kerala Act 16 of 1959. 31. As I mentioned earlier, the provisions of clause (b) of sub-section (2) of section 11 are quite clear and there is absolutely no doubt or ambiguity relating to the clear and unequivocal expressions used by the Legislature, viz., (1) the period of one month given to a tenant to deposit the arrears of rent is to be calculated under that section from the date of the order of the Rent Control Court; (2) that order of the Rent- Control Court passed by way of eviction is, as I have already indicated, the one passed under clause (a) of sub-section (2) of section 11 ; (3) it is the Rent Control Court which is given the power or jurisdiction to extend the period as it may consider necessary in the particular circumstances of the case ; and (4) it is the Rent Control Court that is given the power to vacate the order of eviction passed by that authority under clause (a) of sub-section (2) of section 11. 32. If the contention of Mr.T. S. Krishnamoorthi Iyer, learned counsel for the petitioner, that a tenant can file, an application under section 11(2) (b) after the complete termination of the proceedings by virtue of the last order of the District Court passed under section 20 of the Act, is to be accepted, it will lead to the anomalous position, viz., that the District Court must be considered as the Rent Control Court, for which, in my view, there is absolutely no warrant in either the statute or in the particular section. I have referred to the definition of ' Rent Control Court' in section 2 (5) and also to the constitution of the Rent Control Court under section 3. I have referred to the definition of ' Rent Control Court' in section 2 (5) and also to the constitution of the Rent Control Court under section 3. Further, it cannot be visualised that the Legislature gave power to a subordinate authority, like the Rent Control Court, to vacate an order of a District Judge, and that will be the natural result if the contention of Mr. T. S. Krishnamoorthi Iyer is accepted. As I mentioned earlier, it may be that the Legislature intended to provide some relief to persons like the petitioner, who are being sought to be evicted on the ground of non-payment of rent. But whatever may have been the motive, the relief is clearly restricted by the terms of clause (b) of sub-section (2) of section 11. In no sense can the appellate authority or the revisional authority be considered to be a Rent Control Court. It may be that the appellate authority can exercise co-ordinate powers of the Rent Control Court, and it may further be that the revisional court may also exercise the same powers. But those circumstances by themselves, in my view, will not justify this Court from enlarging and giving a wider meaning to the expression used in clause (b) of sub-section (2) of section 11. 33. No doubt, the question of merger has been raised in these proceedings on the ground that the order of the District Court confirming the order of the appellate authority regarding eviction proceedings as against the petitioner, cannot be considered to have merged in the revisional order of the District Court, but the effective order that could be executed is either the order of the Rent Control Court passed on 16th September 1958, or the order of the appellate authority passed on 20th December 1958. Therefore, the learned Advocate-General urged that, considering the order of eviction to have been passed either under Ext. P-1 or under Ext. P-2, the period of one month provided under section 11 (2) (5) has long ago expired and, therefore, the petitioner cannot claim relief under section 11 (2) (b) of the Act. As I mentioned earlier, it is not really necessary for me to go into the question of merger of such orders either in the appellate orders or in the revisional order, and I have already indicated the various decisions regarding that aspect. 34. As I mentioned earlier, it is not really necessary for me to go into the question of merger of such orders either in the appellate orders or in the revisional order, and I have already indicated the various decisions regarding that aspect. 34. Therefore to conclude: However hard the result may be, in my view, the decision of both the appellate authority and the learned District Judge that persons like the petitioner are not entitled to claim relief under section 11 (2) (b) of the Kerala Buildings (Lease and Rent Control) Act, 16 of 1959, has to be confirmed, and this writ petition dismissed. There will be no order as to costs.