Pochappan Narayanan v. Gopalan — 1990 DIGILAW 158 (KER)

Judgment :- Malimath, CJ. This writ petition is filed by the tenants challenging the decision of the District Judge of Tellicherry in R.C.R.P.No. 40 of 1988 rendered under S.20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the Act), which has come before us on a reference made by Justice Chettur Sankaran Nair on the ground that the view expressed by the learned single judge of this Court in the case reported in 1989(2) KLT 549) between Mohammed Kunju v. Rajamma appears to go against the tenor of the decision rendered by a Division Bench of this Court in the case reported in 1975 KLT 542 between C.V. Xavier and others v. Francis Leonard Pappali. The relevant facts necessary for a disposal of this case may briefly be stated as follows: 2. The first respondent is the landlord and the first petitioner and the 2nd respondent are the tenants under him, of the premises in question which is used for non-residential purposes. The landlord made an application for eviction of the tenants on the grounds of arrears of rent, bona fide requirement for personal occupation, subletting and ceasing to occupy the premises. The tenants resisted the application and denied all the allegations of the landlord. The Rent Control Court made an order as per Ext.P1 dated 14-1-1987 allowing the application for eviction under S.ll(3) of the Act, on the ground of bona fide requirement for use of the landlord's son. The application of the landlord on other grounds was rejected. 3. The tenants took up the matter by way of appeal under S.18 of the Act to * the Court of the Subordinate judge at payyannur. The landlord also filed his cross-objections to the extent his application was rejected in respect of other grounds. The appellate Authority by its order dated 13-1-1988 allowed the tenants' appeal and dismissed the cross-objections of the landlord. Thus the landlord's application for eviction stood dismissed. 4. The landlord challenged the aforesaid decision before the Court of the District Judge at Tellicherry under S.20 of the Act. The District Judge by his order Ext.P3 dated 9-ll-1989, set aside the order of the Appellate Authority. Thus the landlord's application for eviction stood dismissed. 4. The landlord challenged the aforesaid decision before the Court of the District Judge at Tellicherry under S.20 of the Act. The District Judge by his order Ext.P3 dated 9-ll-1989, set aside the order of the Appellate Authority. The District Judge has taken the view that the tenants having deposited the rent for the months of July, August, September and October only on 27-10-1987 after the expiry of the statutory period of limitation prescribed for preferring the appeal, the appeal filed by the tenants was incompetent, the condition precedent prescribed by sub-section (1) ofS.12of the Act of paying or depositing all the admitted arrears of rent not having been satisfied in this case. The learned District Judge having come to the conclusion that the appeal filed by the tenants was not maintainable, did not consider it necessary to examine the case on merits. It is the said decision of the District Judge that is challenged by the tenant and his two brothers in this writ petition filed under Article 227 of the Constitution. 5. The principal question for examination in this writ petition is as to whether the view taken by the learned District Judge that the appeal of the tenant was not competent on the ground that admitted arrears of rent was not paid or deposited on or before the date of preferring the appeal is right or not. 6. The appeal was filed in this case before the Appellate Authority against the order passed by the Rent Control Court under S.18 of the Act. The appeal, it is not disputed, was filed within the prescribed period of limitation. The contention on behalf of the landlord is that it is not enough for maintaining the appeal to satisfy the conditions prescribed by S.18, which is the provision, which confers the right of appeal against the orders of the Rent Control Court. It is his case that S.12 of the Act imposes a condition precedent, which has to be fulfilled before an appeal is filed under S.18 of the Act. That condition, according to the learned counsel for the landlord, is paying or depositing all the arrears of rent admitted' by the tenants to bedue in respect of the building up to the date of payment or deposit. That condition, according to the learned counsel for the landlord, is paying or depositing all the arrears of rent admitted' by the tenants to bedue in respect of the building up to the date of payment or deposit. It is his case that if all arrears of rent admitted by the tenant are not paid or deposited, before presenting the appeal, he would not be entitled to prefer an appeal, having regard to the bar contained in sub-section (1) of S.12 of the Act. To appreciate this contention, it is necessary for us to extract S.12 of the Act, which reads: 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.ll, shall be entitled to contest the application before the Rent Control court under that section, or to preferan 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 ordeposit, 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 fnadewithin such lime as the Court may fix and in such manner as may be prescribed and shall be accompanied by the fee prestrihecl 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. (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. Sub-section (1) of S.12 makes it clear that the tenant against whom an application for" eviction has been made cannot contest the application before the Rent Control Court unless he has paid or deposited all the admitted arrears of rent due up to the payment or deposit. The liability to continue to pay or deposit the admitted arrears of rent for the subsequent period continues till the proceedings are terminated. When an order of eviction is made by the Rent Control Court, the tenant cannot prefer 'an appeal under S.18 of the Act, unless he has paid or deposited all arrears of rent admitted to be due up to the date of preferring the appeal. The liability to continue to pay the rent admittedly due for the subsequent period continues till the termination of the proceedings before the appellate Authority. Sub-section (2) deals with the time and manner in which the deposit contemplated by sub-section (1) is required to be made. The liability to continue to pay the rent admittedly due for the subsequent period continues till the termination of the proceedings before the appellate Authority. Sub-section (2) deals with the time and manner in which the deposit contemplated by sub-section (1) is required to be made. It provides that the deposit under sub-section (1) has to be made within the time to be fixed by the Court for that purpose. The first period to be fixed by the Court cannot be less than four weeks from the date of the order and the time to be fixed for the subsequently cannot be less than two weeks. The deposit is required to be accompanied by the fee prescribed for service of notice to be issued to the landlord as per sub-section (4) of S.12 of the Act and the -amount is to be deposited in the manner prescribed under the rules framed under the Act. Sub-section (3) deals with the consequences flowing as a result of the failure on the part of the tenant to pay or deposit the admitted rent. When the tenant fails to pay or deposit the admitted rent, as provided in sub-sections (1) and (2), the Rent Control Court or the Appellate Authority, as the case may be, will be required to ask the tenant to show cause why all further proceedings should not be-Stopped and an order made directing the tenant to put the landlord in possession. When such an opportunity is afforded to the tenant, he is entitled to show if there is sufficient cause for his failure to pay the amount or deposit the rent as provided in sub-sections (1) and (2) of the Act. If the Rent Control Court or the Appellate Authority is satisfied that there is sufficient cause for not making the payment or deposit within time, he will not make any order stopping further payments and directing the tenant to put the landlord in possession. If, however, he is not satisfied about the cause shown an order has to be made of stopping all further proceedings and-directing the tenant to put the landlord in possession. Sub-section (4) deals with the manner in which the amount deposited has to be dealt with and paid to the landlord. 7. The contention put forward on behalf of the landlord is that payment or deposit of arrears of rent admitted. Sub-section (4) deals with the manner in which the amount deposited has to be dealt with and paid to the landlord. 7. The contention put forward on behalf of the landlord is that payment or deposit of arrears of rent admitted. by the tenant to be due is a condition precedent which has to be satisfied by the tenant, before he can prefer an appeal against an order of eviction made by the Rent Control Court. Reliance is placed on the language of subsection (1) which provides that no tenant shall be entitled to prefer an appeal, under S.18 against an order of eviction made by the Rent Control Court unless he has paid or deposited all arrears of rent admitted by the tenant to be due till the date of preferring the appeal. Firstly, it has to be noticed that The right of appeal against an order of eviction made by the Rent Control Court is not conferred by S.12 of the Act. The right of appeal is conferred by S.18 of the Act. S.12 imposes certain obligations on the tenant of payingor depositing admitted rent during the pendency of the proceedings for eviction, and the consequences for committing default in fulfilling those obligations. Though the expression used in sub-section (1) is "No tenant shall be entitled to to prefer an appeal under S.18 unless he has paid or pays to the landlord or deposits with the appellate authority arrears of rent admitted by the tenant to be due ". It appears to us that the word 'prefer' used in sub section (1) of S.12 is not to convey thesame meaning with which it has been employed in S.18, which confers a right of appeal against an order of the Rent Control court. The word 'prefer' not having been defined in the Act, it has to be assigned the ordinary meaning having regard to the context in which the said word is used. The meaning of the word 'prefer' given in Black's Law Dictionary, Fifth Edition is as follows: "Prefer: To bring before; to prosecute; to try; to proceed with". It is therefore clear that the word 'prefer' can be used in the context for conveying the lodging of the appeal or prosecution of the appeal or proceeding with the appeal. The meaning of the word 'prefer' given in Black's Law Dictionary, Fifth Edition is as follows: "Prefer: To bring before; to prosecute; to try; to proceed with". It is therefore clear that the word 'prefer' can be used in the context for conveying the lodging of the appeal or prosecution of the appeal or proceeding with the appeal. Subsection (3) ofS.12 of the Act which speaks of the consequences of the failure to payor deposit the rent as contemplated by sub-sections (1) and (2) says that all further proceedings should be stopped and an order made directing the tenant to put the landlord in possession of the building. The consequence contemplated is not dismissal of the appeal on the ground that it is not maintainable but only to stop all further proceedings in the appeal. We have, therefore, no hesitation in holding the word 'prefer' has been used in sub-section (1) not to convey the lodging of the appeal but to convey that the appeal already lodged in accordance with S.18 shall not be proceeded with or prosecuted further, if the conditions specified in S.12(1) are not fulfilled. Paying or depositing of all arrears of rent admitted by the tenant is not a condition precedent for presenting an appeal under S.18 of the Act. In our opinion, the appeal gets properly lodged when the same is presented in accordance with S.18 of the Act. 8. Before the consequences contemplated by sub-section (3) can ensue, the conditions specified in sub-sections (n and (2) have to be satisfied. In our opinion, though sub-section (2) has been incorporated as an independent sub-section in S.12, in substance it form part of sub-section (1) of S.12 itself. When sub-section (1) speaks of the deposit of arrears of rent admitted by the tenant to be due, we have to read subsection (2) in order to ascertain the manner and method of depositing the admitted arrears. Sub-section (2) only says as to how and within what period of time the deposit of arrears of rent admitted by the tenant, contemplated by sub-section (1) should be made. It says that the deposit under sub-section (1) shall be made within the time to be fixed by the court and in the manner prescribed and accompanied by the prescribed fee. It says that the deposit under sub-section (1) shall be made within the time to be fixed by the court and in the manner prescribed and accompanied by the prescribed fee. It further provides that the time to be fixed by the court shall not be less than four weeks from the date of the order and as regards the time to be fixed for the deposit of the rent, which accrues subsequently, it is provided that not less than two weeks should be granted. Therefore, sub-section (2) has to be read into sub-section (1), as sub-section (2) only deals with the manner of deposit contemplated by sub-section (1). When so read, sub-section would read as follows: "No tenant against whom an application for eviction has been made by a landlord under S.ll, 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 within such lime 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 subjection (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, 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 of 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". 9. It is, therefore, clear that before any steps can betaken under sub-section* (3) for making an order against the tenant who has committed default in paying or making the deposit as contemplated by sub-section (1), the procedure prescribed by sub-section (2) has to be satisfied. 9. It is, therefore, clear that before any steps can betaken under sub-section* (3) for making an order against the tenant who has committed default in paying or making the deposit as contemplated by sub-section (1), the procedure prescribed by sub-section (2) has to be satisfied. Sub-section (2) imposes an obligation on the part of the court to grant time to the tenant who has committed default in paying or depositing admitted arrears of rent contemplated by sub-section (1). We have, therefore, no hesitation in taking the view that A tenant who does not fulfil the obligations imposed on him by sub-section (1) or S.12 cannot be visited with the penal consequences contemplated by sub-section (3), unless all the conditions specified by sub-section (2) are satisfactorily fulfilled. Even after the court acts in accordance with sub-section (2) of S.12 and the tenant still commits default, the tenant has to be given one more opportunity of showing cause as to why penal consequences contemplated by sub-section (3) should not be imposed on him. It is only when the court is not satisfied with the cause shown that it can pass an order stopping all further proceedings and directing the tenant to put the landlord in possession of the building. 10. It was, however, submitted that as sub-section (2) of S.12 uses the word 'court' and not the expression 'appellate authority', the procedure contemplated by subsection (2) will not govern the appeals filed by the tenant against the order of eviction. It is necessary to notice that what the Act contemplates is the Rent Control Court and the appellate authority and not a court simpliciter. Whereas in sub-sections (1),(3) and (4) the expression used is 'Rent Control or appellate authority', the expression used in subsection (2) is 'court'. As the word 'Rent Control Court' is riot used in sub-section (2), it maybe argued that the said clause would not govern the Rent Control Court either. This would lead to absurdity. In the context it is obvious that the word 'court' has been used to encompass within its ambit the Rent Control Court as also the appellate authority. Subsection (4) of S.18 makes it clear that the appellate authority shall have all the powers of the Rent Control Court including fixing of arrears of rent. This would lead to absurdity. In the context it is obvious that the word 'court' has been used to encompass within its ambit the Rent Control Court as also the appellate authority. Subsection (4) of S.18 makes it clear that the appellate authority shall have all the powers of the Rent Control Court including fixing of arrears of rent. If, therefore, the Rent Control Court has the power of granting time for paying or depositing the rent the very same power can be regarded as having been conferred on the appellate authority as well. Besides, it is necessary to point out that sub-section (3) says that the Rent Control Court or the appellate authority can proceed to take appropriate action if the tenant fails to pay or deposit rent 'as aforesaid'. The expression 'as aforesaid', therefore, in the context takes within its ambit the deposit of rent before the Rent Control Court as also the appellate authority. We have, therefore, no hesitation in holding that though the word used in subsection (2) is 'court', it is applicable to the Rent Control Court as also the appellate authority. 11. It is a well settled principle recognised by the Supreme Court (Vide Mani SubratJain v. Raja Ram Vohra, AIR 1980 SC 299) that the rent control legislation being a beneficial measure, it must be liberally construed to achieve the object of the Act and that if two views are possible the one in favour of the tenant should be preferred. The scheme of S.12 itself indicates the amount of care that is taken in engrafting the provisions to protect the interest of the tenant who fails to pay or deposit admitted rent within time. Law requires that the defaulting tenant should be given time and even if he further fails to deposit the rent within the time given by the court, he has to be given an opportunity of showing cause before any order is made under sub-section (3) of S.12. Even in case of eviction of a tenant on the ground of non-payment of rent, S.11(2)(c) enables the tenant to avoid the consequences of the order of eviction on the ground of non-payment of rent by depositing the arrears of rent with interest and costs of the proceedings within a period of one month or such further time as the Rent Control Court may in its discretion grant. This has been done realising the problems of tenants. It is, therefore, not reasonable to construe sub-section (1) of S.12 as rendering the appeal itself invalid, merely because the tenant does not deposit all the admitted arrears of rent before the presentation of the appeal under S.18 of the Act. On a construction of S.12 and taking into consideration the object and scheme of the Act, we have no hesitation in holding that if the tenant against whom an order of eviction is passed prefers an appeal without paying or depositing all the admitted arrears of rent at or before the time of presentation of the appeal, the same is not liable to be dismissed on the ground that it is not a valid appeal. 12. Though this question did not directly arise for consideration in the case reported in 1975 KLT 542 between C.V.Xavier & Others and Francis Leonard Pappali, the observations made therein do support the view which we have taken. The relevant observations are at age 548 which we extract as follows: "It is difficult to reads. 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.ll to contest the application before the Rent Control Court or to prefer appeal unless he had 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 sub-section (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. 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 how 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 subsection (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 " 11. Another decision pressed into service by the counsel for the respondents is the case reported in AIR 1961 SC ll34 between the Commissioner of Income Tax, Bombay and Mis. Filmistan Limited. Construing S.30(1) of the Income Tax Act it was held that an appeal will not be held to be properly filed until the tax has been paid. As the provisions of sub-section (1) of S.30 of the Income Tax Act, 1922 are not in pari materia with the provisions of S.12 read with S.1Softhe Act, the question of invoking the principle laid down by the Supreme Court does not arise. 12. Another decision relied upon by the learned counsel for the respondent is the one reported in ILR (1977) A.P. 792 between Pothuri Seethamahalakshmi and Siddemsethi Ramaratnam & Others. 12. Another decision relied upon by the learned counsel for the respondent is the one reported in ILR (1977) A.P. 792 between Pothuri Seethamahalakshmi and Siddemsethi Ramaratnam & Others. Though the provisions of S.ll of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act 1960 dealt with in the said decision are analogous to the provisions of S.12 of the Act, with which we are concerned, for the reasons already stated we find it difficult to agree with the view taken by the Andhra Pradesh High Court, that payment or deposit of rent is a condition precedent for preferring an appeal and that if such deposit is not made the appeal cannot be regarded as having been validly preferred. 13. It is no doubt true that the decision of a learned single judge of this court reported in 1989 (2) KLT 549 between Mohammed Kunju and Rajamma supports the case put forward by the respondents. Though the learned single judge has considered the decision of a Division Bench of this court in 1975 KLT 542(Xavier v. Leonard Pappali), we do not find, with respect, any reason for not giving full weight to the observations made in paragraph 9 of the judgment which we have extracted earlier. Though the learned single judge has relied upon the decision of the Supreme court in 1961 ITR (Vol.42) 163 (AIR 1961 SC ll34), we have pointed out that the principle laid down in the said case on the interpretation of S.30(1) of the Indian Income Tax Act, 1922 will not be of assistance for construing S.12 of the Act, as the two provisions are not pari materia. On a thorough examination of S.12of the Act as aforesaid, we have found it difficult, with respect, to agree with the view taken by the learned single judge that depositing of all admitted arrears of rent at or before the time of presentation of the appeal is a condition precedent for presenting a valid appeal. We therefore over-rule the decision of the learned single judge in 1989 (2) KLT 549. 14. For the reasons stated above we hold that the learned District Judge was not right in holding that the appeal preferred by the tenants before the appellate authority was not maintainable on the ground that on the date of presentation of the appeal the tenants had not paid all the admitted arrears of rent. 14. For the reasons stated above we hold that the learned District Judge was not right in holding that the appeal preferred by the tenants before the appellate authority was not maintainable on the ground that on the date of presentation of the appeal the tenants had not paid all the admitted arrears of rent. For the reasons stated above this writ petition is allowed, the judgment of the learned District Judge, Ext.P3, is quashed and the case is remitted to the District Judge for disposal on merits and in accordance with law expeditiously. No costs.