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1999 DIGILAW 442 (KER)

Davy v. Indu

1999-09-24

C.S.RAJAN, P.K.BALASUBRAMANYAN

body1999
Judgment :- C.S. Rajan, J. The tenant who was a defaulter in payment of arrears of rent and who faced an order of eviction on account of the above default is the Revision Petitioner in the Civil Revision Petition. The respondents who are landlords filed a petition for eviction under Ss.11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). According to the landlords, the tenant was not paying the rent from 1.1.1996 onwards. Pending the trial of the petition the landlords filed LA. 455 of 1998 on 15.1.1998 under S.12 of the Act praying for a direction to the tenant to pay arrears from 1.1.1996 at the rate of Rs. 7,200/- per month till date and on failure, to stop all further proceedings and make an order directing the tenant to put the landlord in possession on failure of the deposit of arrears of rent. The Revision Petitioner filed objections to the above petition contending that the petition was not maintainable and that the rent was highly excessive and he was not legally bound to pay the same. The Rent Control Court after hearing the parties allowed the above petition as per order dated 13.7.1998 directing the Revision Petitioner to deposit the admitted arrears within four weeks from the date of the order. Thus, the Revision Petitioner had to deposit the amount on or before 11.8.1998. The Revision Petitioner did not deposit the above amount. But filed I.A. 5114 of 1998 on 13.8.1998 requesting for enlargement of time to deposit the amount. The Rent Control Court found that the admitted arrears of rent had not been deposited in compliance with the order. Therefore, as per order dated 14.8.1998 an order of eviction was passed. I.A. 5114 of 1998 was dismissed on the ground that the above petition was received after the order of eviction was passed. Against the above order of the Rent Control Court the petitioner filed an appeal before the Rent Control Appellate Authority. The Rent Control Appellate Authority also dismissed the appeal. Aggrieved by these two orders the Revision Petitioner has filed this Civil Revision Petition. 2. The main ground which has been pressed by Sri. Against the above order of the Rent Control Court the petitioner filed an appeal before the Rent Control Appellate Authority. The Rent Control Appellate Authority also dismissed the appeal. Aggrieved by these two orders the Revision Petitioner has filed this Civil Revision Petition. 2. The main ground which has been pressed by Sri. M.S. Narayanan, learned counsel for the petitioner is that a tenant would have to be given an opportunity to show cause as to why penal consequence contemplated by sub-s.(3) of S.12 of the Act should not be imposed even after an order under sub-s.(2) of S.12 is passed. In order to drive home the above point the learned counsel cited a number of decisions of this Court. The sheet anchor of the petitioner is the decision of the Division Bench of this Court reported in Xavier v. Leonard Pappali (1975 KLT 542). In the above case this Court held as follows: "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) f or eviction to consider whether there is sufficient cause to the contrary. 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) f or 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". 3. Another Division Bench of this Court in the ruling reported in Pochappan Narayanan v. Gopalan (1990 (2) KLT1) has considered the question in the following lines: "9. It is therefore, clear that before any steps can be taken under sub-s.(3) for making an order against the tenant who has committed default in paying or making the deposit as contemplated by sub-s.(1), the procedure prescribed by sub-s.(2) has to be satisfied. Sub-s.(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-s.(1). We have, therefore, no hesitation in taking the view that a tenant who does not fulfil the obligations imposed on him by sub-s.(1) of S.12 cannot be visited with the penal consequences contemplated by sub-s.(3) unless all the conditions specified by sub-s.(2) are satisfactorily fulfilled. Even after the Court acts in accordance with sub-s.(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-s.(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." These two rulings have been followed by another Division Bench of this Court in the ruling reported in Sidharthan v. Hassankutty Haji (1994 (2) KLT 419). 4. In this connection, it is pertinent to advert to one of the earliest decisions on this point reported in Narayanan v, Muralidhara Marar (1964 KLT 509) (a ruling referred to in Xavier 's case (1975 KLT 542)). 4. In this connection, it is pertinent to advert to one of the earliest decisions on this point reported in Narayanan v, Muralidhara Marar (1964 KLT 509) (a ruling referred to in Xavier 's case (1975 KLT 542)). Paragraph 3 of the above ruling which deals with the above question is as follows: "3. S.12(2) of Act XVI of 1959 provides for an order fixing a time to deposit the arrears of rent accrued during the proceedings for eviction and sub-s.(3) says that if that order is not complied with and no good cause is shown for that non-compliance, the Rent Control Court has to "make an order directing the tenant to put the landlord in possession of the building." The orders of the Rent Control Court and of the revisional authority show that it was for non-compliance of an order passed under S.12(2) that eviction was ordered in this case under S.12(3) of the Act. The order made under S.12(2) is not in proof in this proceeding; but it is conceded that such an order has been made by the Rent Control Court. 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 therefore 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." 5. Before examining this question in detail it is better to refer the relevant provisions in the Act with regard to the order of eviction on the ground of arrears of rent. S.11(2) deals with the right of the landlord to seek eviction of his tenant on the ground of arrears of rent. (2xa) A landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf. S.11(2) deals with the right of the landlord to seek eviction of his tenant on the ground of arrears of rent. (2xa) A landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf. (b) If the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him: Provided that an application under this sub-section shall be made only if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at six per cent per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or of the refusal thereof. (c) The order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow; and if the tenant deposits the arrears of rent with interest and cost of proceedings, within the said period of one month or such further period, as the case may be, it shall vacate that order." 6. Under S.12(1) of the Act, a tenant is not entitled to contest the proceedings unless he deposits or pays all arrears of rent admitted to be paid after the date of payment and continues to pay the same until the termination of the proceedings before the Rent Control Court as well as the Appellate Authority. Under S.12(2), the deposit under sub-s.(1) should be made within such time as the Court may fix. It shall not be less than two weeks. Under S.12(2), the deposit under sub-s.(1) should be made within such time as the Court may fix. It shall not be less than two weeks. The various rulings referred to above centre round the interpretation of S.12(3) of the Act which is as follows: "12(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". 7. Ss.11 and 12 of the Act operate in different fields and circumstances. The compliance of these mandatory provisions will lead to eviction of the tenant. But an order of eviction once passed under S.12(3) cannot be undone by resorting to S.11(2)(c) of the Act. S.11(2)(c) of the Act relates to orders of eviction passed under S.11(2) only. Therefore, Ss.11 and 12 of the Act are not dependent on each other. The above view has been approved by a Division Bench of this Court as early as 1963 (please see Mohammed v. Madhavi Amma (1963 KLT 688)). In order to complete the citations another ruling of the Division Bench reported in Venugopalan v. Raphael (1974 KLT 640) can also be usefully pressed into service. "It will be noticed that the deposit of the admitted arrears enjoined by the above section, is a condition precedent to the tenant entering on his defence and contesting the application for eviction, or an appeal filed therefrom. The scope and purpose of the deposit of arrears of rent, enjoined by S.12 is fundamentally different from the scope and the purpose of the deposits envisaged by S.11 of the act Int. B.mohanan v. Kanakarajapillai (1919 KLT 124) learned judge of this Court also observed that an order passed under S.12 of the Rent Control Act, cannot be reopened or vacated by tendering the rent subsequent to the passing of the said order. These decisions, we think, are clear enough authorities against the view taken by the Revisional Court in the order now under challenge. These decisions, we think, are clear enough authorities against the view taken by the Revisional Court in the order now under challenge. But even assuming that for purpose of execution an order under S.12(3) can be equated with, and treated as the same as., one under S.11 of the Act, we are unable to hold that the consequence enjoined by an order under S.12(3) for failure to deposit the admitted arrears in time can be vacated or obliterated by payment at the subsequent stage or periods; and we think that the decisions we have referred to earlier in 1963 KLT 688 and 1970 KLT 1024 are sufficient authorities for this position." Thus, the legal position emerging from these decisions is as follows: Though Ss.11 and 12 deal with the consequence of non-payment of admitted arrears, both these Sections operate in different contingencies. An order passed by the Rent Control Court under S.11(2)(b) of the Act on the ground of failure to pay the arrears of rent can be vacated under S.11(2)(c) if the tenant pays arrears of rent within one month or within such other period as allowed by the Court. S.12 of the Act deals with the disability of the tenant to contest the eviction proceedings without paying the arrears of rent. If the tenant fails to pay the arrears of rent and if he does not also show sufficient cause for not paying the rent as ordered by the Court, he is liable to be evicted by an order passed under S.12(3) of the Act. The above order passed under S.12(3) of the Act cannot be vacated by a Rent Control Court under S. 11(2)(c) on payment of the rent subsequently. In Narayanan's case (1964 KLT 509) this Court has taken a view that unless the tenant makes a specific motion for allowing sufficient cause for his non compliance of the order under S.12(3) of the Act the order would work itself out and the default to comply with it will result in the eviction of the tenant. But later three rulings of this Court referred to above definitely take the stand that an opportunity must be given to the tenant after the expiry of the time fixed for the deposit of arrears of rent before passing the order under S.12(3) of the Act. 8. In this back-ground let us examine the facts of this case. But later three rulings of this Court referred to above definitely take the stand that an opportunity must be given to the tenant after the expiry of the time fixed for the deposit of arrears of rent before passing the order under S.12(3) of the Act. 8. In this back-ground let us examine the facts of this case. The Rent Control Petition for eviction was filed on 14.10.1996. The petition under S.12(1) of the Act was filed on 7.1.1998. Objection to the petition was filed by the tenant on 15.6.1998. The Court ordered payment of the arrears of rent from 1.1.1996 within four weeks from 13.7.1998. The stipulated time was over on 11.8.1998. The petition came up for hearing on 14.8.1998 and no sufficient cause was shown and as the admitted arrears of rent was not paid an order of eviction was passed. The tenants filed appeal before the Appellate Authority on 21.1.1999 without depositing the admitted arrears of rent. The appeal was posted for hearing on several occasions before it was finally heard on 5.7.1999. On 5.7.1999, the appeal was dismissed. No payment was made even before the Appellate Authority. Though the tenant claimed that an amount of Rs. 1,80,000/- had already been deposited before the Appellate Authority on 3.7.1999, on verification of the original chalan it was found that the amount has been deposited only as per chalan No. 803 dated 9.7.1999 in the Treasury. 9. While considering the nature and ambit of the opportunity to be given to the tenant to show sufficient cause in Xavier's case (1975 KLT 542) this Court observed as follows: "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. 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." Thus, in this case as already noticed the petitioner had ample time to deposit the amount from 13.7.1998 to 11.8.1998 apart from the fact that the Rent Control Petition was pending from 14.10.1996 onwards. The petitioner did not file any petition for extension of time till an order under S.12(3) of the Act was passed on 14.8.1998. No sufficient cause was shown by the petitioner. Thereafter even before the appellate authority the tenant did not choose to deposit the arrears of rent. In fact Rs. 1,80,000/- was deposited only after the Appellate Court dismissed the appeal. The landlord has a case that the amount does not represent the actual arrears of rent. Therefore, the two Courts have found that the tenant had not shown sufficient cause to avoid the eviction under S.12(3) of the Act. As rightly observed by V.P. Gopalan Nambiyar, J. (as he then was) in Venugopalan's case (1974 KLT 640) the law itself does not encourage or put a premium on dishonesty, although those inclined to be dishonest may make use of its provisions to suit their purpose. 10. In a very recent decision reported in Sankaran Pillai (dead) by Lrs. v. V.P. Venguduswami & Ors. (JT 1999 (5) SC 385) the Supreme Court had considered the ambit and scope of "sufficient cause" appearing in S.11(4) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 which is in pari materia with S.12(3) of the Act. The Supreme Court observed as follows: "The question that is required to be seen is, what does the expression 'sufficient cause' mean in sub-s.(4) of S.11 of the Act? It is no doubt true that the expression 'sufficient cause' has to be liberally construed to do substantial justice between the parties. The Supreme Court observed as follows: "The question that is required to be seen is, what does the expression 'sufficient cause' mean in sub-s.(4) of S.11 of the Act? It is no doubt true that the expression 'sufficient cause' has to be liberally construed to do substantial justice between the parties. But the expression'sufficient cause' necessarily implies an element of sincerity, bona fide, and reasonableness. It has to be shown by the tenant who has not deposited the rent within time, as directed by the Controller, that non-deposit of the rent was beyond his control and there was no element of negligence or inaction or lack of bonafides on his part in not depositing the rent within time. In that case also the tenant did not deposit the rent on or before the date fixed by the Court. When the order of eviction was passed, no application was moved by the tenant for revoking the order striking out defence. The tenant deposited the amount before the Appellate Authority. But it was held that the tenant's subsequent deposit of the arrears of rent before the appellate authority being requirement of law for hearing the appeal on merits cannot be treated as bona fide deposit. 11. The authoritative pronouncement of the Supreme Court also militates against accepting the contention of the petitioner. It is also pertinent to point out that the petitioner had already been evicted on 16.7.1999. Under these circumstances, we are not inclined to accept the contentions of the petitioner and we are also not impressed that it is a fit case to interfere under the revisional jurisdiction of this Court. The Civil Revision Petition is, therefore, dismissed.