Mohammed Kunju v. Rajamma — 1989 DIGILAW 368 (KER)

Judgment :- 1. Petitioners are tenants of a building which belongs to the contesting respondents. In a Rent Control Proceeding for eviction of the tenants, an order was passed by the Rent Control Court under S.12(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') as a consequence of the tenants' failure to deposit the admitted arrears of rent. They filed an appeal and through another application, they prayed for stay of further proceedings. The Appellate Authority rejected the application on the ground that the appeal without deposit of the admitted arrears is not maintainable. The revision filed by the tenants was dismissed by the District Court and hence they have come to the High Court now with the present Original Petition under Art.227 of the Constitution. 2. The appeal was filed on 22-7-1987 which was within 30 days from the date of the order appealed against after excluding the time taken to obtain the certified copy of the order. But, no amount was deposited towards the admitted arrears of rent till 12-10-1987. The authorities under the Act took the view that there is no valid appeal. 3. S.18(1)(b) of the Act confers the right to file appeal against any order passed by the Rent Control Court. It reads thus: "Any person aggrieved by an order passed by the Rent Control Court, may, within thirty days from the date of such order, prefer an appeal in writing to the appellate authority having jurisdiction. In computing the thirty days aforesaid, the time taken to obtain a certified copy of the order appealed against shall be excluded". Sub-section (2) says that "on such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision on the appeal". Going by the language of the above provision, it is clear that unless the appeal is preferred within the statutory period, the appellate authority cannot exercise powers under subsection (2) of S.18. An embargo is imposed by S.12(1) of the Act against the tenant in preferring the appeal. Going by the language of the above provision, it is clear that unless the appeal is preferred within the statutory period, the appellate authority cannot exercise powers under subsection (2) of S.18. An embargo is imposed by S.12(1) of the Act against the tenant in preferring the appeal. The said sub-section reads as follows: "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". Thus, the tenant has no right under law to prefer the appeal without paying or depositing the admitted arrears of rent. Payment or deposit of the admitted arrears is made a pre-requisite for preferring the appeal. It must be remembered that the right of appeal is only creative of a statute and without a statutory provision creating such a right, the person aggrieved is not entitled to file an appeal. In the words of Lord Atkin "it is to be remembered that all appeals exist merely by statute and unless the statutory conditions are fulfilled, no jurisdiction is given to any court to entertain them". This principle has been approved by the Supreme Court in Anant Mills v. State of Gujarat (AIR 1975 S.C.1234). If the statute gives a right to appeal as such upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant (vide Vijay Prakash v. Collector of Customs - AIR 1988 S.C. 2010). The language in S.12(1) of the Act is one of forbidding the appellant from getting entry into the appellate court without compliance of the condition. The language in S.12(1) of the Act is one of forbidding the appellant from getting entry into the appellate court without compliance of the condition. This could be gathered from the words "no tenant shall be entitled to prefer an appeal unless ". Thus, if one is to go by the words used in S.12(1), it has to be held that any appeal filed without complying with the condition cannot be treated as an appeal lawfully preferred. 4. S.11 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 is worded almost similar to S.12 of the Kerala Act. The only difference is that the obligation of the tenant under the Kerala Act is to deposit the admitted arrears of rent, whether admitted or not. The right to prefer the appeal under the AP. Act is created by S.20 of that Act. Interpreting the requirement of deposit of arrears of rent before preferring the appeal, the Andhra Pradesh High Court in P.S. Lakshmi v. Ramratnam (1977 I.L.R. (AP.) 792) has held that "the condition precedent for invoking the jurisdiction of the Appellate Authority under S.20 of the Act for a tenant as against whom an order of eviction was passed for preferring an appeal is that he must have paid to the landlord or deposited with the Appellate Authority all arrears of rent due in respect of the building, in other words, the appellate authority obtains jurisdiction with respect to the appeal filed by a tenant who was in arrears of rent only when the appeal was filed after the payment of the arrears of rent to the landlord or depositing of the rent before the Appellate Authority". 5. Even if the appeal was filed without such deposit or payment, the tenant can subsequently deposit the admitted arrears to make the appeal valid, provided such deposit is made within the statutory period of thirty days. When the deposit is made subsequently and before the expiry of the statutory period, the Appellate Authority can treat the appeal as lawfully preferred on the date of payment or deposit of the admitted arrears. But if the deposit happened to be made subsequent to the appeal period, the appeal cannot be saved from the legal deficiency, since the appeal should have been preferred within thirty days from the date of the order appealed against. But if the deposit happened to be made subsequent to the appeal period, the appeal cannot be saved from the legal deficiency, since the appeal should have been preferred within thirty days from the date of the order appealed against. (Vide V. Chettiar v. Indira Bai -1981 K.L.T. 756). 6. In an attempt to surmount the difficulty, learned counsel for the petitioners contended that the rigour of S.12(1) stands diluted to some extent by sub-sections (2) and (3). In support of the contention reference was made to the decision of a Division Bench of this Court in Xavier v. Leonard Pappali (1975 K.L.T. 542). The two sub-sections are quoted below: "(2) The deposit under sub-section (1) shall be made within such time as the Court may - fix and in such manner as may be prescribed and shall be accompanied by the fee prescribed for the service of notice referred to in sub-section (4): Provided that the time fixed by the Court for the deposit of the arrears of rent shall not be less than four weeks from the date of the order and the time fixed for the deposit of rent which subsequently accrues due shall not be less than two weeks from the date on which the rent becomes due. (3) If any tenant fails to pay or to deposit the rent as aforesaid, the Rent Control Court or the appellate authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building". The aforesaid sub-sections apply to the stages which subsist during the pendency of the proceedings" in the Rent Control Court or the Appellate Authority. They have obviously no application to the requirement of pre-payment or pre-deposit of admitted arrears to equip the tenant to prefer the appeal. S.12(1) consists of three limbs. The first refers to the tenant's right to contest the application for which also he has to pay or deposit the admitted arrears. The second limb pertains to the tenant's obligation to "continue to pay or deposit any rent which may subsequently become due" until the termination of the proceedings in the Rent Control Court or the appellate authority. It is in the third limb that the right of the tenant to prefer the appeal is conditioned. The second limb pertains to the tenant's obligation to "continue to pay or deposit any rent which may subsequently become due" until the termination of the proceedings in the Rent Control Court or the appellate authority. It is in the third limb that the right of the tenant to prefer the appeal is conditioned. Sub-sections (2) and (3) would, no doubt, govern the first two limbs. The consequence provided in sub-section (3) is that the court shall stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. Such a consequence is redundant for the tenant at the stage when he has to file the appeal because he comes to the appellate authority aggrieved by the direction to put the landlord in possession. Hence those two sub-sections cannot obviously have any application to the condition or pre-requisite for preferring the appeal. 7. Learned counsel referred to some other statutes wherein appeal provisions are conditioned by the performance of certain acts to be done by the appellant. Building Tax Act 1975 contains provision for appeal in S.11. The said right of appeal is made subject to the proviso that "no appeal shall lie unless a building tax has been paid". A Division Bench of this Court in Francis v. Revenue Divisional Officer (1989 (1) K.L.T. 550) held that the words in the said proviso only mean that "appeal will not be held to be properly filed until the tax has been paid". S.34 of the Kerala General Sales Tax Act deals with appeal provisions. The second proviso to sub-section (1) says that "no appeal shall be entertained under this sub-section unless it is accompanied by satisfactory proof of the payment of the tax or other amounts admitted by the appellant to be due ". It must be noted that the first proviso empowers the appellate authority to admit an appeal presented after the expiration of the period, if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the time. The embargo contained in the second proviso is not against the preferring of appeal, but only against its entertainability until compliance of the condition. The embargo contained in the second proviso is not against the preferring of appeal, but only against its entertainability until compliance of the condition. The Supreme Court has interpreted the embargo contained in S.30(1) of the Income Tax Act in which the words "no appeal shall lie against an order unless the tax been paid" are employed, as not an embargo against the presentation of the appeal. In Commissioner of Income Tax v. Filmistan Ltd., (1961 I.T.R. (Vol..42) 163, Kapur, J. has observed thus: "All that the proviso means is that the appeal will not be held to be properly filed until the tax has been paid. If, for instance, the memorandum of appeal is filed on the 20th day, i.e., 10 days before the period of limitation expires and the tax is paid within the rest of the 10 days, the appeal will be a proper appeal; it will be within time and no question of limitation will arise, but if the tax is paid after the period of limitation has expired it will be taken to have been filed on the day when the tax is paid even though the memorandum of appeal was presented earlier and within the period of limitation". The principle evolved in the aforesaid Supreme Court decision could justifiably be adopted in the case of appeal filed under S.18 of the Act also, if the payment or deposit of the admitted arrears is made within the appeal period. It must be remembered that there is no provision in the Act empowering the Appellate Authority to admit the appeal after the expiry of the period. It is well neigh settled that S.5 of the Limitation Act cannot be applied in the rent control proceedings under the Act. (Vide a Full Bench decision in Jokkim Fernandez v. Amina Kunhi Umma -1973 K.L.T. 138). The result of the said discussion is this: If the tenant's appeal before the Appellate Authority is not supported by the pre-deposit or pre-payment of the admitted arrears, no valid appeal is preferred and unless the deposit or payment is made within the appeal period the appeal presented will not become valid subsequently either. Petitioners hence cannot succeed in this Original Petition. It is accordingly, dismissed. Issue carbon copy on usual terms.