Mary Beena John v. Addl Dist Court — 1996 DIGILAW 333 (KER)

JUDGMENT T.V. Ramakrishnan, J. 1. The question referred to us in this case is 'whether the proceedings by way of appeal by the landlords before the Appellate Authority should be taken to be a proceeding for eviction of the tenant for the purpose of S.12 of the Kerala Buildings (Lease and Rent Control) Act (for short 'the Act') and in such proceedings, whether the tenant is entitled to contest unless he pays all arrears of rent admitted by him'. 2. G. Viswanatha Iyer, J. has in a brief judgment categorically held in V.K. Ramaswamy Chettiar v. B. Krishna Arjunan (1979 KLT SN Page71) that the tenant can contest the appeal filed by the landlord before the Appellate Authority without making any deposit of arrears of rent Learned Judge has taken the above view holding that the point has been covered by the decision of the Supreme Court reported in Abdul Hameed Yousuff Sait v. Smt. Kalavathi (1968) II SCWR 618). While referring the matter, Sreedharan, J. (as he then was) doubted the correctness of the decisions of Viswanatha Iyer, J. 3. Brief facts necessary to be noted are thus: Petitioners-landlords of a building let out to the second respondent tenant sought recovery of the building on the grounds of arrears of rent and sublease. The Rent Control Court dismissed the petition finding against the petitioners on both the grounds. Petitioners preferred an appeal before the Appellate Authority under S.18 of the Act. In the appeal they moved I. A. No. 1964 of 1994 purporting to be one under S.12(3) of the Act praying for a direction to pay or deposit the admitted arrears of rent. The Appellate Authority ordered the tenants to pay the entire arrears till 1.8.1987 by its order dt 14.8.1987. The amount was not deposited by the tenants. Consequently, the Appellate Authority passed Ext. P4 order directing respondents 2 and 3 (the tenants and the alleged subtenant) to put the petitioners in vacant possession of the scheduled rooms on account of non compliance with the order passed under S.12(3) of the Act. Second respondent took up the matter in revision. The amount was not deposited by the tenants. Consequently, the Appellate Authority passed Ext. P4 order directing respondents 2 and 3 (the tenants and the alleged subtenant) to put the petitioners in vacant possession of the scheduled rooms on account of non compliance with the order passed under S.12(3) of the Act. Second respondent took up the matter in revision. The Revisional Court interfered with the order of the Appellate Authority holding that in an appeal preferred by the landlords against the order of the Rent Control Court the tenant cannot be compelled to pay arrears of rent invoking the provisions contained in S.12(3) of the Act relying upon B. Krishna Arjunan's case (supra) and passed Ext. P5 order. Petitioners have challenged the sustainability of Ext. P5 order and have prayed for quashing the same as illegal. 4. In Abdul Hameed Yousuff Sait's case (supra), the Supreme Court was considering a similar contention raised with reference to S.29 of the Mysore Rent Control Act (for short 'the Mysore Act') which is similar to S.12 of the Act. That was a case where the suit filed for eviction of a tenant was dismissed by the Trial Court and the appellate court and the landlord has taken up the matter in revision to the High Court of Mysore. The order challenged by the tenant before the Supreme Court was one passed by the High Court to put the landlord in possession of the building on the ground that the appellant had failed to pay the respondent or deposit in court the rent that became due during the pendency of the revision petition. The contention raised by the tenant was that the provision which empowers the High Court to stay all further proceedings and to make an order directing the tenant to put the landlord in possession of the premises will be attracted only in a case where the tenant fails to comply with S.29(1) of the Mysore Act. S.29(1) of the Mysore Act would apply only when a tenant contest the application filed by the landlord under S.21 of that Act before the Court as defined in S.3(d) of the Mysore Act or when he prefers or prosecutes an appeal or revision under S.48 or S.50 of that Act. S.29(1) of the Mysore Act would apply only when a tenant contest the application filed by the landlord under S.21 of that Act before the Court as defined in S.3(d) of the Mysore Act or when he prefers or prosecutes an appeal or revision under S.48 or S.50 of that Act. As there is no case that the tenant had failed to comply with the requirements of S.29 when the matter was pending before the Munsiff's Court and since the appeal and revision were filed by the landlord the tenant was neither preferring nor prosecuting the appeal and revision before the appellate court and revisional court, the tenant was not liable to pay or deposit rent which has fallen in arrears either during the pendency of the appeal or revision. The Supreme Court has accepted the above contention of the tenant while rejecting the contention of the landlord that as the tenant was contesting the revision petition filed by the landlord he must be held to have been prosecuting the revision petition and was thus bound to deposit arrears of rent, observing thus: "In this case, we are concerned only with the period during which the revision petition was pending. We are unable to accept the contention of Mr. B.R.L. Iyengar that as the appellant was contesting the Revision Petition filed by the respondent he must be held to have been prosecuting the Revision Petition. This is a wholly unacceptable contention. To prosecute a petition is one thing, to contest it is a wholly different thing. One is the opposite of the other. In the High Court, the appellant was contesting the petition filed by the respondent. Undoubtedly, he did not prefer that petition nor can it be said that he was prosecuting that petition. In our judgment, the High Court was clearly wrong in holding that the failure on the part of the appellant to deposit the rent due, from him during the pendency of the Revision Petition brought the case within the mischief of S.29(1): That would have been the position if he was the petitioner before the High Court. In our judgment, the High Court was clearly wrong in holding that the failure on the part of the appellant to deposit the rent due, from him during the pendency of the Revision Petition brought the case within the mischief of S.29(1): That would have been the position if he was the petitioner before the High Court. A failure on the part of the tenant to pay or deposit the rent falling due during the pendency of an appeal or revision does not enable the Appellate Court or the High Court to allow the appeal or the Revision Petition as the case may be ...." 5. S.12(1) and (3) of the Act which are similar to S.29 of the Mysore Act is in the following terms: "12(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 in 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 upto 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 (he Rent Control Court or the appellate authority as the case may be. (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". (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". Material portion of S.29 of the Mysore Act is thus: "No tenant against whom an application for eviction has been made by a landlord under S.21, shall be entitled to contest the application before the Court under that section or to prefer or prosecute an appeal or revision petition under S.48 or S.50 against any order made by the Court on the application under S.21 or an order passed by the District Judge on appeal, as the case may be, unless he has paid or pays to the landlord or deposits with the Court or the District Judge or the High Court as the case may be, all arrears of rent due in respect of the premises up to the date of payment or deposits and continues to pay or to deposit any rent which may subsequently become due in respect of the premises at the rate at which it was last paid or agreed to be paid, until the termination of the proceedings before the Court or the District Judge or the High Court, as the case may be". Except the difference that the provision in the Mysore Act refers to a suit, appeal and revision, there is no material difference between the two provisions. The one other difference in the workings of the two sections in the two Acts is that while S.29 of the Mysore Act uses the words 'prefer or prosecute'. S.12 of the Act uses only the word 'prefer'. In our view, the above difference is also not material. For we find that the word prefer has the following meanings noted in Black's Law Dictionary, Fifth Edition: 'Prefer: To bring before, to prosecute; to try; to proceed with.' In fact a Division Bench of this Court in Pochappan Narayanan v. Gopalan ( 1990 (2) KLT 1 ) have understood the word 'prefer' used in S.12(1) of the Act as having the meaning of lodging or prosecution of the appeal or proceeding with the appeal following the meaning given in Black's Law Dictionary. As such it may not be possible to contend that the two Sections are not similarly worded and the reliance placed by Viswanatha Iyer, J. was not proper and legal. 6. The learned counsel for the petitioners, however, contended that since the appeal filed by the petitioners before the Appellate Authority against the order dismissing the eviction petition is bound to be treated as a continuation of the application for eviction and the tenant is contesting the same, he is bound to deposit arrears of rent which becomes due in respect of the building subsequent to the filing of the appeal till the termination of the proceedings before the Appellate Authority. In support of his contention that the appeal filed by the petitioners is bound to be treated as a continuation of the application for eviction, learned counsel for the petitioners has relied upon the decisions reported in Umayamma v. Muthukaruppa ( AIR 1954 TC 353 ), Shyam Sunder v. Shagun Chand (AIR 1967 Allahabad 214) and other decisions holding the view that appeal is a continuation of the suit or other proceedings. In support of the main contention, reliance has also been placed on the decision of the Supreme Court reported in Madan Mohan v. Krishnan Kumar Sood (1994 Supp (1) SC 437). 7. As regards the proposition that an appeal is a constitution of a suit or other proceedings there cannot be any dispute. However, in the peculiar workings of S.12(1) of the Act, we find it extremely difficult to apply the above principle while interpreting the provisions in S.12(1) of the Act and to hold that an appeal filed by the landlord is a proceeding in which the tenant is bound statutorily to deposit the arrears of rent which became due after the filing of the appeal. 8. There is no contention in this case that the second respondent has kept rent in arrears during the pendency of the application for eviction before the Rent Control Court. The order passed by the Rent Control Court would show that the second respondent has not kept any rent in arrears as claimed by the petitioners. 8. There is no contention in this case that the second respondent has kept rent in arrears during the pendency of the application for eviction before the Rent Control Court. The order passed by the Rent Control Court would show that the second respondent has not kept any rent in arrears as claimed by the petitioners. The ban under S.12 is only against the tenant 'contesting' the application for eviction before the Rent Control Court and preferring an appeal by him under S.18 of the Act unless the tenant pays or deposits the arrears of rent as on the date of preferring the appeal and continues to deposit any rent which may subsequently became due in respect of the building until termination of the proceedings before the Rent Control Court or the Appellate Authority. As such the only way in which the provisions in S.12 of the Act can be interpreted is to hold that the said Section will apply only when a tenant contests the application before the Rent Control Court or the tenant prefers an appeal and prosecutes the same and not when he contests an appeal filed by the landlord. It is significant to note that while dealing with the proceedings before the Rent Control Court, the legislature has used the word 'contest' whereas in the case of appeal before the Appellate Authority the word used is 'to prefer'. It is only when he prefers or lodges the appeal he is bound to pay or deposit arrears of rent as condition for filing the appeal and required to continue to pay or deposit the rent falling due thereafter if he wants to prosecute the appeal filed by him. The contention that sub-s. (1) of S.12 of the Act imposes two obligations on the tenant, namely (1) to deposit the entire arrears of rent till the date of preferring the appeal along with the appeal and (2) to pay or deposit any rent which may became due subsequent to the filling of the proceedings for eviction until the termination of the appeal treating the appeal filed by the landlord as a continuation of the application for eviction cannot be accepted at all. We find from the peculiar terminology used in the section and the scheme of the provisions in the section, that the obligation imposed on the tenant to pay or deposit arrears of rent during the pendency of the proceedings before the Rent Control Court and the Appellate Authority is only for the purpose of contesting the 'application' before the Rent Control Court and preferring the appeal before the Appellate Authority in the sense of lodging and prosecuting an appeal filed by him and not for contesting or defending an appeal filed by the landlord even treating it as a continuation of the application for eviction filed under S.11 of the Act. Such a contention could have been justifiably put forward only if the workings of the section was "to contest the application before the Rent Control Court or the Appellate Authority under the section" or merely "to contest the application under that section". If the wording was in any one of the forms indicated above, an argument could have been put forward and possibly accepted by applying the principle that 'to contest the application' should be understood as one to mean also 'to contest the appeal' which is an extension of the application for eviction. So long as the wording in S.12(l) of the Act is 'to contest the application before the Rent Control Court under that Section' it cannot be held to be a provision intended to apply to a case where the tenant is to contest or defend an appeal filed by the landlord before the Appellate Authority even on the basis that appeal filed by a landlord is liable to be treated as an extention of the application for eviction filed before the Rent Control Court. If the intention of the legislature was to impose an obligation on the tenant to continue to pay or deposit the arrears of rent during the pendency of an appeal filed by the landlord also, the wording of the Section could not have been like the one used by the Legislature in the Section. It could have been easily made clear by stating that "to contest the application before the Rent Control Court under that Section or the appeal before the Appellate Authority" before the words or 'to prefer an appeal under S.18.' 9. It could have been easily made clear by stating that "to contest the application before the Rent Control Court under that Section or the appeal before the Appellate Authority" before the words or 'to prefer an appeal under S.18.' 9. S.12 is a provision imposing a ban on the tenant to contest the application for eviction before the Rent Control Court or in preferring and prosecuting an appeal under the Act Unless the provision is clear it may not be proper on part of the Court to interpret the Section by adding new words or executing words used in the section so as to extend its application to cases other than to which it may have application giving effect to the wordings of the provisions of the Act as it exists in the statute. We feel that without ignoring the significance of the words 'before the Rent Control Court' used in the words and phrases 'to contest the application before the Rent Control Court' as done by the learned Judge in the reference order, it may not be possible to accept the contention of the learned counsel for the petitioners that the Section will have application also to cases where the continuation of the application filed under S.11 of the Act. To us, it appears that the legislature has not intended to have such an effect for S.12 of the Act. In our view, the legislature by the peculiar wording of the Section has made its intention clear to the effect that the provisions in S.12 will have application only when the tenant contests the application before the Rent Controller under S.11 of the Act or while the tenant prefers an appeal and prosecutes the same before the Appellate Authority as held by the learned Judge in V. K. Ramaswamy Chettiar's case (supra) Abdul Hameed Yousuff Salt's case, (supra).) following the decision of the Supreme Court in 10. We find that neither the decision reported in Madan Mohan's case (supra) nor any of the observations contained in it can be justifiably applied while interpreting and understanding the scope and effect of the provisions contained in S.12 of the Act. In the above decision, the Supreme Court was considering the scope to the provisions contained in S.14(1) and (2) of the Himachal Pradesh Urban Rent Control Act, 1987 (for short 'the H.P. Act'). In the above decision, the Supreme Court was considering the scope to the provisions contained in S.14(1) and (2) of the Himachal Pradesh Urban Rent Control Act, 1987 (for short 'the H.P. Act'). From the relevant part of S.14 quoted by the Supreme Court in its judgment it is clear that S.14 of the H.P. Act is similar to S.11 imposing a ban on eviction of tenants except on the ground mentioned in that Section. Of course, the proviso to S.14 has the effect of incorporating part of the provisions contained in S.12 of the Act in S.14 of the H.P. Act. The important aspect to be noted is that S.14 of the H.P. Act which corresponds to S.11 of the Act is a provision prescribing the grounds on which alone the tenant can be evicted and the consequence of certain orders passed during the pendency of the proceedings before the Rent Controller constituted under that Act. It has no application to an appeal proceeding. The Supreme Court has found that the words 'amount due' used in the 3rd proviso has to be understood as meaning the amount of rent due on upto the date of the order of eviction. It was in that background, the Supreme Court has held that the amount to be deposited will take into account not merely the arrears of rent which gave the cause of action to file a petition for eviction but also include the rent which accumulated during the pendency of eviction petition as well. In fact, the combined effect of S.11 and the first part of S.12 of the Act is to that effect It is in this context the Supreme Court has made the observations to the following effect which was strongly relied upon by the learned counsel for the petitioners: "... .The landlord, as per the scheme of the section, cannot be worse off vis-a-vis a tenant who was good enough to deposit in court the arrears of rent together with interest and costs on the first date of hearing. .The landlord, as per the scheme of the section, cannot be worse off vis-a-vis a tenant who was good enough to deposit in court the arrears of rent together with interest and costs on the first date of hearing. If the interpretation given by the High Court is accepted the result would be that the tenant will be better off by avoiding to pay the arrears of rent with interest and costs on the first date of hearing, then prefer suffering order of ejectment after contest and then merely offer the amount due as mentioned in the application for ejectment to avoid eviction. This could not be the intention of the legislature." In the context, in which the above observation were made by the Supreme Court, we do not think that we can follow the said observations while interpreting the provisions in S.12 of the Act. 11. For the forgoing reasons, we find that the view taken by the learned Judge in V.K. Ramaswamy Chettiar v. B. Krishna Arjunan (1979 KLT SN 71) is perfectly justifiable and requires no re-consideration. As such we find no reason to interfere with Ext. P3 order passed by the Revisional Court and challenged in this Original Petition. O.P. is accordingly dismissed. No costs.