C. v. XAVIER VS FRANCIS LEONARD PAPPALI — 1975 DIGILAW 102 (KER)

Judgment :- 1. The revision petitioner is a tenant of a building situate in the Cochin Corporation area and of which the respondent is the landlord. On the ground that the tenant had left the rent in arrears a petition was moved for his eviction under the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965. Soon after the return of notice on the petition, an objection was filed by the tenant to the application for eviction and that was on 3 - 61968.On 16-71968 to which date the case was adjourned the court passed an order directing deposit of all arrears of rent due from the tenant on or before 19 81968. It was not so deposited and on 20 81968 the court passed an order under S.12 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 stopping all further proceedings and ordering eviction of the tenant. It is that order which was challenged in appeal and subsequently in revision. That was confirmed both by the appellate and revisional authorities. That is under challenge in the Civil Revision Petition. That was referred to by a learned Single Judge of this court to the Division Bench for the reason that the question raised is one of general importance The contention of the revision petitioner is that though there was default in the payment of rent on the specified date, in view of the expression "unless the tenant shows sufficient cause to the contrary" occurring in sub-section (3) of S.12 of the Act the tenant was entitled to a further opportunity to show cause for non-compliance with the order. 2. It is apparent that the court which passed the order under S.12 (2) to deposit the arrears of rent on or before 19 81968 passed the order under S.12 (3) by reason of the default in payment of the rent on the due date. The relevant portion of the order of the Rent Controller reads: "4. When the petition came up for enquiry on 16 71968, the counsel for the petitioner submitted that admitted arrears are due to be paid and since that has not been paid the petition has to be dismissed under S.12 of the Act. Hence the case was adjourned to 19 81968 for the payment of admitted arrears. When the petition came up for enquiry on 16 71968, the counsel for the petitioner submitted that admitted arrears are due to be paid and since that has not been paid the petition has to be dismissed under S.12 of the Act. Hence the case was adjourned to 19 81968 for the payment of admitted arrears. On 19 81968 the respondent tenant did not pay any admitted arrears and the counsel for the petitioner canvassed for the application of S.12 and an order of eviction. 5. The respondent in his written objection admitted payment of rent till November, 1967. Rent is in arrears from that date. The admitted arrears have not been paid or deposited in court. That debars him from contesting the petition. No sufficient reason shown why it was not deposited. 6. Hence all further proceedings are stopped and the respondent tenant is ordered to put the landlord in possession of the building shown in the margin of the petition. The petitioner is also entitled to get the costs of the proceedings. Counsel's fee is fixed at Rs. 10/2 3. The contention raised by the counsel for the petitioner before us is that the court, in passing the order of eviction on the failure to deposit the arrears of rent on 19-8-1968, was acting in contravention of the provisions of S.12 (3) of the Act. That is because the court had a duty to furnish a reasonable opportunity to the tenant to show cause to the contrary, and that opportunity had not been provided. It is further said that the order to be passed by the Munsiff under S.12 (3) contemplates consideration of the circumstances with a view to determine whether there was sufficient cause to the contrary within the meaning of that expression under S.12 (3) of the Act and in the order of the Rent Control Court, which is under challenge here, there was no such consideration. 4. S.11 provides for eviction of a tenant from a building on various grounds, one of them being that he has defaulted to pay the rent and that such rent is in arrears. S.12 (1) obliges a tenant to pay the arrears admitted to be due from him and also the rent that may fall due from time to time to the extent admitted by him. S.12 (1) obliges a tenant to pay the arrears admitted to be due from him and also the rent that may fall due from time to time to the extent admitted by him. This is necessary if his contention by way of defence to a petition for eviction is to be considered by the court. It may be profitable to extract S.12 in this context. "12. Payment or deposit of rent during the pendency of proceedings for eviction: (1) No tenant against whom an application for eviction has been made by a landlord under S.11, shall be entitled to contest the application before the Rent Control Court under that section, or to prefer an appeal under S.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 farther proceedings and make an order directing the tenant to put the landlord in possession of the building. (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 farther 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." S.12 (2) provides that the court has to fix the time for the deposit contemplated under S.12 (1) and also provides for the manner of the deposit. Though the tenant is under an obligation to deposit the arrears as well as the rent accruing from time to time to the extent admitted by him as a condition for being permitted to contest the application or the appeal he need deposit the amount only within such time as the court may fix and in such manner as may be prescribed. There is a safeguard in the matter of fixing of such time. The time to be fixed by the court shall not be less than four weeks from the date of the order for deposit of arrears and for the rent which subsequently accrues k shall not be less than two weeks from the date on which the rent becomes due. The consequence of non-compliance with the direction to make a deposit is provided under S.12 (3). In the event of default the Rent Controller shall stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building, unless the tenant shows sufficient cause to the contrary. In such a case there is no duty to consider the grounds for eviction raised in the petition for eviction. There is to be ho consideration of the petition for eviction under S.11 on the merits. All the proceedings under S.11 are to be stopped and the tenant is to be ordered to put the landlord in possession of the building. 5. There is to be ho consideration of the petition for eviction under S.11 on the merits. All the proceedings under S.11 are to be stopped and the tenant is to be ordered to put the landlord in possession of the building. 5. The provision in S.12 (3) precluding a tenant from prosecuting his defence to the petition for eviction precludes him from seeking an opportunity to be heard. It is in the nature of a penal provision which visits very serious consequences on the tenant. Normally any litigant whose rights would be affected by proceedings in court has, as a matter of course, a right to be heard in defence of his stand and the court is obliged to consider his case before any adjudication of the rights of parties is made by the court. Evidently a case where S.12 (3) operates is an exception to this rule, for, when circumstances justifying the application of that provision arises the consequences would be that irrespective of any defence that may have been urged by the tenant and irrespective of the availability of materials in proof of such defence the court has to pass an order for eviction. The proceedings ought not to be disposed of on the merits. 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 S.12 (3) by enabling the tenant to show sufficient cause to the contrary. Even in the proviso to S.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 S.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 S.12 (3) would be unsustainable. 6. When a date has been fixed by a court for deposit of arrears of rent in terms of S.12 (2) of the Act, until the expiry of such date the tenant cannot be said to be in default. If he is not in default he cannot be expected to show sufficient cause to the contrary since that would arise only when he is in default and that would only be on the expiry of the period fixed for making the deposit by an order under S.12 (2) of the Act. The tenant is to show sufficient cause not when an order for eviction under S.12 (3) is passed but prior to that order. Therefore the opportunity is to be given after the expiry of the time fixed for deposit of the arrears of rent but before the passing of the order under S.12 (3). There must be a reasonable interval sufficient for the tenant to show cause to the contrary. What would be reasonable opportunity is not possible of any precise definition and must be left to be decided on the facts and circumstances of each case. It goes without saying that on the language of S.12(3) we have to read a duty on the part of the Rent Control Court which passes an order under S.12 (3) for eviction to consider whether there is sufficient cause to the contrary. If the court on considering this question finds that the tenant has not chosen to show sufficient cause to the contrary that may be sufficient consideration but where the circumstances indicate that the mind of the Court had not adverted to this fact at all the order may not be justified with reference to S.12 (3) of the Kerala Buildings (Lease & Rent Control) Act, 1965. 7. 7. Our attention has been drawn to a decision of a Division Bench of this Court reported in Narayanan v. Muralidhara Marar (1964 KLT 509) and we also find that the courts below have assumed that this decision is sufficient to disentitle the revision petitioner to any relief.. The Courts below have considered the decision as justifying the rejection of the case of the revision petitioner that he is entitled to a sufficient opportunity to show cause to the contrary. But we are afraid that the courts below have misunderstood the scope of the decision. The order for eviction passed by the Rent Control Court in that case showed that there was a specific direction to deposit the arrears of rent and since it was not deposited in full in spite of the court's specific direction, eviction was ordered under S.12. The non-compliance with the order was found by the revisional authority, the Additional District Judge, to be sufficient ground for eviction and that order was under challenge in that case before the Division Bench of this Court in proceedings under Art.226. Dealing with the petition the Division Bench of this Court said: "When a court has passed an order directing a party before it to do a particular thing in default of which a certain statutory consequence is to follow, if the party is to be relieved of the consequences of a non-compliance of that order he has to make a specific motion therefor showing sufficient cause for his non-compliance of the order and making the appropriate prayer therein. Otherwise the order would work itself out and the default to comply with it will bring the appointed consequences on the tenant; and that was what took place in this case." This observation in the judgment of the Division Bench has been understood by the appellate and revisional authorities in this case to mean that when default is made by the tenant the order passed as a consequence thereof without further examination of sufficient cause would be justified. We are afraid that this does not follow from the decision adverted to. It is true that normally when there is a default to make deposit as directed under S.12 (2) the consequence would be an order under S.12 (3) and the only way the tenant could avoid the situation is by showing sufficient cause to the contrary. We are afraid that this does not follow from the decision adverted to. It is true that normally when there is a default to make deposit as directed under S.12 (2) the consequence would be an order under S.12 (3) and the only way the tenant could avoid the situation is by showing sufficient cause to the contrary. On whom is the burden to show sufficient cause is possibly indicated in the decision adverted to. That is on the tenant. But the question here is not whether the burden is on the tenant or the landlord but whether the court has given a reasonable opportunity to the tenant to show cause, a question on which the decision adverted to has not spoken. It is an elementary principle of natural justice that opportunity has to be given to the party to explain the circumstances to avoid the very serious consequences that may otherwise follow. More so in this case when in the provision with which we are concerned there is a specific mandate which obliges the court to grant such an opportunity. 8. We may in this context refer to the decision of the High Court of Andhra Pradesh reported in Subbama v. Venkata Ratnamma (1965 (1) An. W.R. 381). That was a case in which a tenant was in arrears of rent and his eviction was sought before the Rent Controller. He deposited the arrears of rent due up to the date of the petition but the landlady moved an application under S.11 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act alleging that since the date of earlier payment the tenant had not paid or tendered the rent and as such the tenant was not entitled to contest the application. The Rent Controller acting under S.11 (4) of the Act which materially corresponds to S.12 (3) of the Kerala Act ordered eviction of the tenant. The propriety of that order was examined by the High Court of Andhra Pradesh and dealing with this question the learned judges said: "It is obvious therefore that unless there was failure to deposit as provided in sub-clause (2) the tenant could not possibly incur any penalty under the section. The propriety of that order was examined by the High Court of Andhra Pradesh and dealing with this question the learned judges said: "It is obvious therefore that unless there was failure to deposit as provided in sub-clause (2) the tenant could not possibly incur any penalty under the section. In our judgment, as it is in case of arrears of rent due at the time of filing of petition under S.10, so also in cases of all subsequent rents which fell into arrears during the pendency of the petition, the procedure for deposit is the same as prescribed in sub-rule (6) of R.S. That being the case, the Rent Controller ought to have complied with the rule and fixed reasonable time for deposit of the rent as enjoined by R.5 (6). Further, even afterwards he has to bear in mind and comply with the provision in sub-clause (4) which enjoins on him to be satisfied that the default was without sufficient cause. His order directing the tenant to deliver possession without complying with the said provisions is wholly without power. One would do well to bear in mind that the right of defence is a basic right of a litigant which cannot be easily trifled with. No doubt, S.11 has fettered this right with some limitations in certain eventualities, but that is not to say that such limitations can be invoked even though essential conditions therefor are not fulfilled. As it is, a penal clause should be strictly construed and the conditions for its application must be wholly satisfied before it can be invoked. Right of defence, so valuable for the litigant, cannot certainty be rendered nugatory unless the statute is imperative in that behalf or it becomes otherwise inevitable under law. Inasmuch as the penalty contemplated by S.11 involves an implied negation of one of the basic rules of natural justice popularly known as the rule of audi alteram partem. Legislature has taken care to make important provisions in sub-clauses 2,3 and 4 of S.11." The same court in the Hyderabad Construction Co. v. Major E. Hussain 1966 (II) An. Inasmuch as the penalty contemplated by S.11 involves an implied negation of one of the basic rules of natural justice popularly known as the rule of audi alteram partem. Legislature has taken care to make important provisions in sub-clauses 2,3 and 4 of S.11." The same court in the Hyderabad Construction Co. v. Major E. Hussain 1966 (II) An. W.R.373) said: "The Rent Controller no doubt in the last para of his judgment did mention the fact that the rent of January, 1965 was also not paid till the date of order i.e., 5th March, 1965, but there is no indication that any opportunity was given to the petitioner to explain why the rent for January, 1965 was not paid. Under S.11 (4) of the Act h is laid down that: "If any tenant fails to pay or to deposit the rent as aforesaid, the Controller 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." To my mind in respect of each default, unless the previous default is sufficient to order eviction an opportunity should be given to the tenant to show cause as to why he has not been able to pay the rent. In the instant case, if the petitioner had explained the default committed in respect of payment of rent for December, 1964 it would not have been necessary to refer to the default committed in January, 1965. But once the default in January, 1965 is taken the basis for eviction, unless the petitioner is given an opportunity to show sufficient cause for non-payment an order under the said sub-section cannot be made." The same view was taken by a learned judge of the High Court of Madras in applying S.7A (4) of the corresponding Madras Act in C.R.P. No. 451 of 1956. The learned judge said in that case: "There is nothing on record to show that the tenant has been given any opportunity to show cause as to why he was not able to deposit the arrears of rent. There is no enquiry on that point." The learned counsel for the respondent draws our attention to a later decision of the Madras High Court in Kanapathi Rao v. Balakrishna Mehta (1960) II MLJ. There is no enquiry on that point." The learned counsel for the respondent draws our attention to a later decision of the Madras High Court in Kanapathi Rao v. Balakrishna Mehta (1960) II MLJ. 281) and it is urged that the decision of the Madras High Court to which we have just now adverted has not been adopted in that case. But we see the same view we have taken here has been taken in that case, for the court said: "The principal argument that has been advanced before me is that while it is no doubt true that the tenant is under a liability to keep up the payment of the rents as they fall due, during the pendency of the proceedings, before the appellate authority makes an order stopping further proceedings and directing the tenant to put the landlord in possession of the building, due notice should be given to the tenant to show sufficient cause why such an order should not be made. Normally, I would have accepted that position, but for certain peculiar features which appear in this case. Had the matter been brought to the notice of the Court for the first time that the tenant was in arrears and had not complied with sub-clause (1) of S.7-A and if the Court thought that he could no longer be allowed to continue the proceedings and desired to make an order stopping the proceeding under sub-s. (4), the appellate authority should normally call upon the party before it to show cause why such an order should not be passed. That will be in keeping with the principles of natural justice. But where it is seen that on an earlier occasion this tenant had been directed to pay the arrears, which were already overdue on that date but the order of the Court was not complied with, it lay upon the tenant, if he desired to avoid any consequential order of stoppage of proceedings, to appear before Court and explain why such an order should not be made. The tenant did really have a notice of a proposed order under sub-s. (4) by reason of the Court's direction made on 23rd March, 1959, directing the deposit of the arrears. The case decided by Basheer Ahmad Sayeed, J., in Abdul Waheb v. C. Dorairaj (1957) 1MLJ. (NRC.) 33 has been cited before me. The tenant did really have a notice of a proposed order under sub-s. (4) by reason of the Court's direction made on 23rd March, 1959, directing the deposit of the arrears. The case decided by Basheer Ahmad Sayeed, J., in Abdul Waheb v. C. Dorairaj (1957) 1MLJ. (NRC.) 33 has been cited before me. The learned judge therein observed thus in connection with a matter where the scope of sub-s. (4) of S.7-A was in question. "There is nothing on record to show that the tenant has been given any opportunity to show cause as to why he was not able to deposit the arrears of rent. There is no enquiry on that point. The order of eviction is therefore vitiated and there is failure of justice." I have been at some pains to show that the present case differed from the facts of the one dealt with by Basheer Ahmed Sayeed, J., in that there was an opportunity given to the tenant. I would therefore hold that this decision has no application to the facts." 9. We may also advert in this context to a decision of a learned single judge of this Court in C.R.P. No. 40 of 1971 the short notes of which decision is seen reported in Sivan Pillai v. Gomathi Ammal (1971 KLT SN. 22). That was a case where a tenant moved this court in revision against an order passed by the revisional authority in Rent Control proceedings. The Rent Controller in that case passed an order for eviction and there was an appeal from that order. At the time the appeal was taken up the appellate authority held that there was to be no interference in appeal for the reason that the arrears of rent accrued due had not been deposited by the tenant and therefore in the appeal the tenant could not be heard. The tenant challenged this stand taken by the appellate court and that ultimately reached this Court in proceedings by way of revision. The learned Judge Sadasivan J. who dealt with that case held that the obligation on the part of a tenant to deposit arrears of rent was a condition precedent for being heard in the Rent Control proceedings or in appeal and that obligation was independent of the obligation which arises from S.12 (2) of the Act. The learned Judge Sadasivan J. who dealt with that case held that the obligation on the part of a tenant to deposit arrears of rent was a condition precedent for being heard in the Rent Control proceedings or in appeal and that obligation was independent of the obligation which arises from S.12 (2) of the Act. According to the learned judge a person who has defaulted to make the deposits of rent which were in arrears and also the rent accrued due from time to time shall not be entitled to be heard. The proceedings were to be stopped and an order for eviction has to be passed in such cases. S.12 (2) which provides for an order by a court directing deposit to be made within a particular time was held by the learned judge as an enabling provision which gives right to a party who already lost his right by non-compliance with the provision in S.12 (2) to seek an extension of time and the learned judge further found that S.12 (3) will arise for application only in a case where there is an order under S.12 (2) and that means where there is no motion for extension of time for deposit of arrears of rent there is no scope for applying S.12 (3). Reference was then made to the decision of this court in Narayanan v. Muralidhara Marar (1964 KLT 509) and in particular to the passage to which we have adverted earlier. We do not see any observation in the passage in Narayanan's case noticed by the learned judge which is of any support to the view taken by the learned Judge. It is difficult to read S.12 (3) independent of S.12 (2). It is true that S.12 (1) restricts the right of the tenant against whom an application for eviction has been made under S.11 to contest the application before the Rent Control Court or to prefer appeal unless he has paid or pays to the landlord or deposits in the Rent Control Court or before the Appellate authority the admitted arrears. It is evident from sub-section (2) that the deposit contemplated under subsection (1) has to be in accordance with sub-section (2), which means that it has to be made only in the manner provided under S.12 (2). It is evident from sub-section (2) that the deposit contemplated under subsection (1) has to be in accordance with sub-section (2), which means that it has to be made only in the manner provided under S.12 (2). Hence the deposit the tenant has to make under S.12 (1) has to be within the time to be fixed by an order under S.12(2). Even if he has been in default he does not lose the right to contest the application until and unless an order under S.12 (2) is passed and without sufficient cause the tenant fails to comply with it. We have already indicated that this is a safeguard given to a tenant which is necessary in the circumstances of the case. For, if even non-payment of recurring rent without anything more would be sufficient to stop further proceedings and pass an order for eviction it would mean that in every case where a tenant has omitted to pay or delayed payment even by a day not only the arrears of rent due but also the recurring payment he would lose his right to contest the application and would have to receive an order for eviction. The rigour of the provision with regard to an order for eviction without contest has been considerably softened by the safeguards in sub s.(2), as we have said earlier and therefore it is only on the passing of order under S.12(2) that the obligation to comply with it and the consequences of non-compliance attracting S.12(3) would arise. We cannot conceive of independent obligations under S.12(1) and 12(2) and their application to different sets of cases. We find no warrant either in the language or spirit of the section to sustain the stand taken by our learned brother Sadasivan J. in the decision to which we have adverted to. Nor do we find any support for such a view in the decision in Narayanan v. Muralidhara Marar (1964 KLT 509). Therefore with great respect we dissent from the decision of the learned single judge. 10. Though certain other decisions are also cited before us at the bar those do not have any relevancy to the question before us and therefore we do not propose to deal with them. 11. Therefore with great respect we dissent from the decision of the learned single judge. 10. Though certain other decisions are also cited before us at the bar those do not have any relevancy to the question before us and therefore we do not propose to deal with them. 11. As indicated by us earlier the Rent Control Court could have passed an order directing eviction in terms of S.12(3) only after giving reasonable opportunity to show sufficient cause to the contrary and after adverting to the question whether there was sufficient cause to the contrary. The order of the Rent Controller does not indicate that there was any advertence to this question at all. Again, the last day for deposit was 19-81968 and the order was passed the next day, i.e., 20 81968. Till the close of the day 19 8 1968 there was a right in the tenant to deposit and the obligation to show cause arose only thereafter and the tenant had very little opportunity to show cause when the order for eviction was passed the very next day. Therefore on the facts we find there was no reasonable opportunity afforded to the tenant. We also find that there has been no advertence to the question whether sufficient cause to the contrary was shown by the tenant. This would be sufficient to vitiate the order pasted by the Rent Controller under S.12(3) of the Act. That would mean that the order of the Rent Control Court as confirmed by the appellate and revisional authorities has to be vacated. The matter goes back to the Rent Control Court for consideration afresh of the question of the order to be passed by reason of the default of the tenant to deposit. In disposing of the matter again what we have said of the scope and application of S.12(3) would be borne in mind by the Rent Control Court. In the circumstances of the case we direct the parties to suffer costs in the revision petition. Allowed.