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Madras High Court · body

2000 DIGILAW 159 (MAD)

D. F. Robert v. S. Vijayakumari and another

2000-02-07

S.S.SUBRAMANI

body2000
Judgment : The tenant in R.C.O.P.No.25 of 1997 on the file of the Rent Controller-cum-Principal District Munsif, Tuticorin is the revision petitioner. 2. The eviction was sought by the landlord on the ground that the tenant was committed wilful default in paying the rent and also on the ground that the building is required for their own occupation. I am not going to detailed discussion on the facts of the case except to state that while disposing of the rent control petition, the Rent Controller held that the landlord is not entitled to get eviction on the ground of alleged wilful default in payment of rent, but entitled to get eviction of the tenant on the ground of bona fide own occupation. According to the tenant, the rent is only Rs.800 per month whereas according to the landlord, the rate of rent is Rs.1,600. It is also admitted that the landlord has received advance amount of Rs.24,000. 3. On the allegation that the landlord refused to receive rent, the tenant also moved an application under Sec.8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter referred to as ‘Act’ and both these applications are clubbed together and as per the common judgment dated 18. 1998, the Rent Controller held that the tenants application under Sec.8(5) of the Act is not maintainable and it was dismissed. The Rent Controller further held that the rate of rent is Rs.1,600, but for various reasons, the tenant cannot be considered a wilful defaulter and eviction cannot be ordered on that ground. 4. Against the judgment, the tenant, filed R.C.A.No.36 of 1998 on the file of the Appellate Authority, Tuticorin. The said appeal is against the order of eviction. It is also admitted that the tenant has also filed an appeal against the order dismissing his application under Sec.8(5) of the Act. 5. The reason for filing this revision is, landlord filed I.A.No.9 of 1999 before the Appellate Authority questioning the maintainability of the appeal. The only reason that is stated in the petition is that before filing the appeal, or simultaneously with the filing of appeal, the tenant has not deposited the entire arrears, even though the Rent Controller has found that the rate of rent was Rs.1,600. The only reason that is stated in the petition is that before filing the appeal, or simultaneously with the filing of appeal, the tenant has not deposited the entire arrears, even though the Rent Controller has found that the rate of rent was Rs.1,600. It was further averred in the affidavit that the Rent Controller has not accepted those deposits alleged to have been made in his application under Sec.8(5) of the Act and consequently the tenant cannot take refuge and contend that he has deposited the amounts in that proceedings. He ought to have deposited the entire rent simultaneously alongwith the filing of the appeal and the lower appellate court should not have entertained the appeal without pre-deposit. 6. The said objection was seriously opposed by the tenant and contended that if there is any deficiency in his deposit, he must be given an opportunity to pay the same and his appeal is not liable to be thrown out, as not maintainable. He further contends that he has deposited the entire amount inclusive of the amount which is claimed in the eviction petition and the subsequent arrears thought it is after filing of the appeal. He prayed for the dismissal of the application. 7. After hearing both counsels, the Appellate Authority held that is the duty of the tenant to deposit the entire rent that has become due on the date of filing the appeal, simultaneously with the filing of the same. The Appellate Authority further held that the deposit made by the tenant in proceedings under Sec.8(5) of the Act cannot be taken note of since the Rent Controller held that the application was filed without satisfying the pre-conditions. Since the deposits have not been made along with the appeal, the appeal is not maintainable. 8. The Appellate Authority dismissed the objection and allowed the petition and consequently dismissed the appeal and against the said orders, these revisions are filed. 9. Since the Caveat is filed by the respondents-landlords and since both the parties wanted the revision itself to be heard, the same was heard on merits at the admission stage itself. 10. The application is filed by the landlords under Sec.11(1) of the Rent Control Act. 9. Since the Caveat is filed by the respondents-landlords and since both the parties wanted the revision itself to be heard, the same was heard on merits at the admission stage itself. 10. The application is filed by the landlords under Sec.11(1) of the Rent Control Act. The entire Sec.11 of the Act reads thus: “Payment of deposit of rent during the pendency of proceedings for eviction: No tenant against whom an application for eviction has been made by a landlord under Sec.10 shall be entitled to contest the application before the Controller under that section, or to prefer any appeal under Sec.23 against any order made by the Controller on the application, unless he has paid or pays to the landlord, or deposits with the Controller or the Appellate Authority, as the case may be, all arrears of rent due in respect of the building up to the date of payment of deposits, 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 Controller or the Appellate Authority, as the case may be, .(2) The deposit of rent under Sub-sec.(1) shall be made within the time and in the manner prescribed. .(3) Where there is any dispute as to the amount of rent to be paid or deposited under Sub-sec.(1) of the Controller or the Appellate Authority, as the case may be, shall, on application made to him either by the tenant or by the landlord, and after making such inquiry as he deems necessary, determine summarily the rent to be so paid or deposited. .(4) 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. .(5) The amount deposited under Sub-sec.(1) may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him in that behalf to the Controller or the Appellate Authority, as the case may be.” 11. .(5) The amount deposited under Sub-sec.(1) may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him in that behalf to the Controller or the Appellate Authority, as the case may be.” 11. The learned counsel appearing for the landlords submitted that the tenant cannot prefer any appeal under Sec.23 of the Act against any order of eviction made by the Rent Controller unless he pays to the landlord or deposits with the Rent Controller or the Appellate Authority all arrears of rent due in respect of the building upto the date of payment and in this case, the tenant has not deposited the rent at the time of preferring the appeal. According to the learned counsel appearing for the landlords, the deposits will have to be made at the time of filing or instituting the appeal. It is further argued by the counsel that in this case, there is no scope for any dispute regarding the quantum of rent to be paid since that matter has already been adjudicated by the Rent Controller. Accordingly, his application is filed under Sec.11(1) of the Act which prevents or bars the tenant from filing an appeal without pre-deposit. According to him, his application should not be confused with an application under Sec.11(4) of the Act. 12. As against the said contention, the learned counsel appearing for the tenant-revision petitioner contended that an application under Sec.11(1) of the Act is to be disposed of only under Sec.11(4) of the Act and that contemplates a direction to deposit the rent within the time to be granted and in this case, the Appellate Authority has not given any time and simply held that the appeal is not maintainable since the tenant has not deposited the amount along with the appeal and consequently dismissed the appeal also. Accordingly, the order of the Appellate Authority is patently illegal and goes against the statutory mandate. It is further argued that the rate of rent is a matter in dispute and unless that dispute is resolved for the purpose of Sec.11 and unless he is given time to deposit the rent under Sub-sec.(3) of Sec.11, the further proceedings shall not be allowed to be stopped and he is entitled to contest the appeal. 13. It is further argued that the rate of rent is a matter in dispute and unless that dispute is resolved for the purpose of Sec.11 and unless he is given time to deposit the rent under Sub-sec.(3) of Sec.11, the further proceedings shall not be allowed to be stopped and he is entitled to contest the appeal. 13. Before further going into the merits and demerits of the arguments, the learned counsel appearing for the landlords relied on the following decisions: .(1) K.P.Janaki Ammal and eight others v. K.Badrinarayanaiah K.P.Janaki Ammal and eight others v. K.Badrinarayanaiah K.P.Janaki Ammal and eight others v. K.Badrinarayanaiah , (1999)2 C.T.C. 46 . .(2) P.R.Deshpande v. Maruthi Balaram Haibatti P.R.Deshpande v. Maruthi Balaram Haibatti P.R.Deshpande v. Maruthi Balaram Haibatti , (1998)6 S.C.C. 507 . (3) Sankaran Pillai (dead) by L.Rs. v. V.P.Venuguduswami and others Sankaran Pillai (dead) by L.Rs. v. V.P.Venuguduswami and others Sankaran Pillai (dead) by L.Rs. v. V.P.Venuguduswami and others , (1999)6 S.C.C. 396 . How far those decisions will apply to the facts of the case will be considered in the later portion of this order. 14. The object of Sec.11 of the Act is to prevent the tenant to take undue advantage of the long delay in the disposal of rent control cases. The landlord also should be ensured of his rent during the pendency of the proceedings. The tenant merely by setting up a plea that he has paid the rent and the landlord has not issued the receipt or by denying the quantum of rent, cannot continue to remain in the premises without discharging his obligation to pay rent. The object of section seems to see that the tenant should pay the landlord or deposit in the court the rent payable by him without prejudice to his defence. But at the same time, before invoking the powers under Sec.11 of the Act, the statute is also very clear that the tenant must be given a reasonable opportunity to pay the arrears or future rents and only if he fails to discharge his obligations to obey the orders of court, the proceedings shall be stopped and the tenant is to be directed to put the landlord in possession. The object of this Section is to prevent recalcitrant tenants escaping from the liability to pay rent and continue in occupation of the premises taking advantage of the delay in the disposal of eviction petition. With the above object of the Section, we have to consider whether the contention of the landlords that the tenant will have to pay the rent along with or simultaneously while filing the appeal is correct or not and whether the contention of the tenant that he should be given time to deposit and only on his failure to comply with the direction, further proceedings could be stopped is to be considered. 15. Sec.23 of the Act only says that, “Any person aggrieved by an order passed by an order passed by the Controller may, within fifteen days from the date of such order, prefer an appeal in writing to the Appellate Authority having jurisdiction.” For filing appeal, Sec.23 does not say about the pre-conditions. It only says that any person aggrieved by the order of the Rent Controller can file an appeal to the Appellate Authority. It is clear from the above Section that the only condition to be satisfied for filing the appeal is that there must be an order against him passed by the Rent Controller and if he is aggrieved by that order, he may file an appeal within the period of limitation. If these conditions are fulfilled, he is entitled to file an appeal. One cannot read Sec.23 of the Act subject to the provisions of Sec.11 of the Act. It is true that in both Sec.23 as well as in Sec.11, the word used is “prefer an appeal”. But form the context, it is clear that the scope of the word “prefer” is different in the two sections. 16. Sub-sec.(2) of Sec.11 says: “The deposit of rent under Sub-sec.(1) shall be made within the time and in the manner prescribed.” From this sub-section, it is clear that the Appellate Authority will have to fix the time regarding the deposit of rent referred to in Sub-sec.(1). It can only be in any appeal already filed the time could be granted. Sub-sec.(2) of Sec.11 says: “The deposit of rent under Sub-sec.(1) shall be made within the time and in the manner prescribed.” From this sub-section, it is clear that the Appellate Authority will have to fix the time regarding the deposit of rent referred to in Sub-sec.(1). It can only be in any appeal already filed the time could be granted. Sub-sec.(3) further says that, “Where there is any dispute as to the amount of rent, on application of either landlord or tenant, after making such inquiry, the Appellate Authority or the Controller determine summarily the rent to be so paid or deposited.” If the tenant fails to pay or to deposit the rent as aforesaid and fails to show sufficient cause, the Controller or the Appellate Authority shall stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. 17. From the above provisions, it is clear that in case there is no dispute regarding the rate of rent, the Appellate Authority has to fix a time for payment or deposit and in case if there is a dispute, on the application of either the landlord or tenant, a summary decision is to be taken at the rate of rent and time is to be given for deposit. After such direction, if the tenant fails to pay the amount or is not showing any sufficient cause for non-depositing the same, the Appellate Authority is not dismissing the appeal, but only stops further proceedings of e appeal. If there is no appeal before court, there is no question of stopping the proceedings. The proceedings can be stopped only if the proceedings are already initiated and the stopping of further proceedings is not to prevent the filing of appeal. Further direction is to be given to the tenant to put the landlord in possession. If the contention of the landlords is accepted, the appeal could not be entertained and in such case, there cannot be any stopping of further proceedings nor there could be a direction to put the landlord in the possession of the building. These orders could be passed only in an appeal that is preferred. It is this context the court has to consider what is meant by the word “to prefer an appeal.” 18. These orders could be passed only in an appeal that is preferred. It is this context the court has to consider what is meant by the word “to prefer an appeal.” 18. In Commissioner of Income Tax (Central) v. B.N.Bhattacharjee and another Commissioner of Income Tax (Central) v. B.N.Bhattacharjee and another Commissioner of Income Tax (Central) v. B.N.Bhattacharjee and another , (1979)4 S.C.C. 121 . Their Lordships considered the meaning of the word “prefer” under Income Tax Act in Settlement proceedings. In paragraphs Nos.40 to 42 of the judgment, their Lordships considered the question taking into consideration the meaning given in Blacks Law Dictionary and held as follows: “Here the Department did file appeals and later withdrew them before the application for settlement was made. At the time the application before the Settlement Commission was moved no departmental appeal was pending. Indeed, the documents in this case clearly point to the assumption by the C.I.T. and the assessee that if the Revenue withdrew its appeal the disentitlement in the proviso would disappear. Even so, when an appeal is filed by the I.T.O., does not the prohibition operate. This turns on the meaning of the words “preferred an appeal”. “Preferred” is a word of dual import; its semantics depend on the scheme and the context; its import must help, not hamper, the object of the enactment even if liberty with language may be necessary. There is good ground to think that an appeal means an effective appeal. An appeal withdrawn is an appeal non est as judicial thinking suggests. Blacks Law Dictionary gives the following meaning: PREFER: To bring before; to prosecute; to try to proceed with. Thus, preferring an indictment signifies prosecuting or trying an indictment. To give advantage, priority, or privilege; to select for first payment, as to prefer one creditor over others; Thus, it may mean ‘prosecute’ or effectively pursue a proceeding or merely institute it. Purposefully interpreted, preferring an appeal means more than formally filing it but effectively pursuing it. If a party retracts before the consent beings it is as good as not having entered the fray. After all, Chapter XIXA is geared to promotion of settlement and creation of road-blocks in reasonable compositions. The teleological method of interpretation leads us to the view that early withdrawal of the I.T.O.‘s appeal removes the bar of the proviso.” 19. If a party retracts before the consent beings it is as good as not having entered the fray. After all, Chapter XIXA is geared to promotion of settlement and creation of road-blocks in reasonable compositions. The teleological method of interpretation leads us to the view that early withdrawal of the I.T.O.‘s appeal removes the bar of the proviso.” 19. On going through provision 11, we have to read Sub-sec.(2) also in the Sub-sec.(1), if so concluded, the section will have to be read thus: “No tenant against whom an application for eviction has been made by a landlord, under Sec.10 shall be entitled to contest the application before the Controller under that section, or to prefer any appeal under Sec.23 against any order made by the Controller on the application, unless he has paid or pays to the landlord, or deposits with the Controller or the Appellate Authority, as the case may be, within such time and the manner prescribed, all arrears of rent due in respect of the building upto the date of payment or deposits, 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 Controller or the Appellate Authority, as the case may be.” If Sub-sec.(2) of Sec.11 is interpreted in any other way, its purpose will be defeated. If so read, it is clear, that the Appellate Authority cannot dismiss the appeal merely on the ground that the deposit was not made simultaneously or along with the appeal. 20. Under the Kerala Buildings (Lease and Rent Control) Act, 1965, the tenant is bound to deposit all admitted arrears, except for that change, the provisions are the same. If so read, it is clear, that the Appellate Authority cannot dismiss the appeal merely on the ground that the deposit was not made simultaneously or along with the appeal. 20. Under the Kerala Buildings (Lease and Rent Control) Act, 1965, the tenant is bound to deposit all admitted arrears, except for that change, the provisions are the same. Sec.12 of the said Act reads thus: “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 Sec.11, shall be entitled to contest the application before the Rent Control Court under that section, or to prefer an appeal under Sec.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-sec.(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-sec.(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. .(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-sec.(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.” 21. While interpreting the above section, the Division Bench of Kerala High Court in the decision reported in C.V.Xavier and others v. Francis Leonard Pappali C.V.Xavier and others v. Francis Leonard Pappali C.V.Xavier and others v. Francis Leonard Pappali , 1975 K.L.T. 542, held thus: “Sec.12 provides that the court has to fix the time for the deposit contemplated under Sec.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.” 22. The same question came up for consideration in the decision reported in Pochappan Narayanan v. Gopalan , (1990)2 K.L.T. 1 .. In that case, their Lordships considered the question,” what is the meaning of ‘Preferred’ ” Sec.18 of the Kerala Buildings (Lease and Rent Control) Act, 1965 also gives a right of appeal to an aggrieved person. There also, their Lordships considered the entire scope of the section and held thus: “The appeal was filed in this case before the Appellate Authority against the order passed by the Rent Control Court under Sec.18 of the Act. The appeal, it is not disputed, was filed within the prescribed period of limitation. There also, their Lordships considered the entire scope of the section and held thus: “The appeal was filed in this case before the Appellate Authority against the order passed by the Rent Control Court under Sec.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 Sec.18, which is the provision which confers the right of appeal against the orders of the Rent Control Court. It is his case that Sec.12 of the Act imposes a condition precedent, which has to be fulfilled before an appeal is filed under Sec.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 be due 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-sec.(1) of Sec.12 of the Act. … … …. x x x x x 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 Sub-sec.(1) which provides that no tenant shall be entitled to prefer an appeal under Sec.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 Sec.12 of the Act. The right of appeal is conferred by Sec.18 of the Act. Sec.12imposes certain obligations on the tenant of paying or depositing admitted rent during the pendency of the proceedings for eviction, and the consequences for committing defaulting in fulfilling those obligations. The right of appeal is conferred by Sec.18 of the Act. Sec.12imposes certain obligations on the tenant of paying or depositing admitted rent during the pendency of the proceedings for eviction, and the consequences for committing defaulting in fulfilling those obligations. Though the expression used in Sub-sec.(1) is “No tenant…. shall be entitled to…. prefer an appeal under Sec.18Sec.18…. unless he has paid or pays to the landlord or deposits with the Appeallate Authority arrears…. of rent admitted by the tenant to be due.” It appears to us that the word ‘prefer’ used in Sub-sec.(1) of Sec.12 is not to convey the same meaning with which it has been employed in Sec.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 Blacks 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. Sub-sec.(3) of Sec.12 of the Act which speaks of the consequences of the failure to pay or deposit the rent as contemplated by Sub-secs.(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-sec.(1) not to convey the lodging of the appeal but to convey that the appeal already lodged in accordance with Sec.18 shall not be proceeded with or prosecuted further, if the conditions specified in Sec.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 Sec.18 of the Act. In our opinion, the appeal gets properly lodged when the same is presented in accordance with Sec.18 of the Act. 8. Paying or depositing of all arrears of rent admitted by the tenant is not a condition precedent for presenting an appeal under Sec.18 of the Act. In our opinion, the appeal gets properly lodged when the same is presented in accordance with Sec.18 of the Act. 8. Before the consequences contemplated by Sub-sec.(3) can ensue, the conditions specified in Sub-secs.(1) and (2) have to be satisfied. In our opinion, though Sub-sec.(2) has been incorporated as an independent sub-section in Sec.12, in substance it form part of Sub-sec.(1) of Sec.12 itself. When Sub-sec.(1) speaks of the deposit of arrears of rent admitted by the tenant to be due, we have to read Sub-sec.(2) in order to ascertain the manner and method of depositing the admitted arrears. Sub-sec.(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-sec.(1) should be made. It says that the deposit under Sub-sec.(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. ….… It is, therefore, clear that before any steps can be taken under Sub-sec.(3) for making an order against the tenant who has committed default in paying or making the deposit as contemplated by Sub-sec.(1), the procedure prescribed by Sub-sec.(2) has to be satisfied. Sub-sec. (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-sec.(1). We have, therefore, no hesitation in taking the view that A tenant who does not fulfil the obligations imposed on him by Sub-sec.(1) of Sec.12 cannot be visited with the penal consequences contemplated by Sub-sec.(3) unless all the conditions specified by Sub-sec.(2) are satisfactorily fulfilled. We have, therefore, no hesitation in taking the view that A tenant who does not fulfil the obligations imposed on him by Sub-sec.(1) of Sec.12 cannot be visited with the penal consequences contemplated by Sub-sec.(3) unless all the conditions specified by Sub-sec.(2) are satisfactorily fulfilled. Even after the court acts in accordance with Sub-sec.(2) of Sec.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-sec.(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.” [Italics supplied] 23. In the above two decisions, the principles of the above Section were reiterated. In another decision rendered by a Division Bench of Kerala High Court reported in K.A.Aboobacker v. N.Girija K.A.Aboobacker v. N.Girija K.A.Aboobacker v. N.Girija , A.I.R. 1995 Ker. 221, their Lordships held that, “it cannot be said that the appeal is not maintainable merely for the reason that the tenant has failed to deposit the rent along with the presentation of the appeal.” 24. As per Sec.11 of the Rent Control Act, it cannot be said that merely because the tenant did not deposit the rent along or simultaneously with the filing of the appeal, the same is not maintainable. After entertaining the appeal, the court will have to fix a time for deposit and only in case he fails to do so, or fails to show sufficient cause for non-depositing the same, the consequence under Sub-sec.(4) will have to follow. The argument of the counsel for the landlord that he has not filed an application under Sub-sec.(4) and for considering the maintainability, the non-deposit alone is sufficient, cannot be accepted. In fact, no application is contemplated under Sub-sec.(4). If the argument of the counsel is accepted, then it will mean that the appellant is thrown out without hearing him. 25. Now, I will consider the various decisions relied on by the counsel appearing for the respondents. In the decision reported in P.R.Deshpande v. Maruthi Balaram Haibatti P.R.Deshpande v. Maruthi Balaram Haibatti P.R.Deshpande v. Maruthi Balaram Haibatti , (1998)6 S.C.C. 507 , their Lordships considered the scope of Sec.29 of the Karnataka Rent Control Act, 1961. There, the wordings are different. Now, I will consider the various decisions relied on by the counsel appearing for the respondents. In the decision reported in P.R.Deshpande v. Maruthi Balaram Haibatti P.R.Deshpande v. Maruthi Balaram Haibatti P.R.Deshpande v. Maruthi Balaram Haibatti , (1998)6 S.C.C. 507 , their Lordships considered the scope of Sec.29 of the Karnataka Rent Control Act, 1961. There, the wordings are different. In that statute, the words used are “to prefer or prosecute a revision petition.” In that view of the matter, Their Lordships held that even at the time of initiation of proceedings, he has deposited the rents. Because the different words that are used in that case, their Lordships interpreted the word “prefer” as “initiation of proceedings” since the next word is “prosecute”. In paragraph No.15, Their Lordships held thus: “The words in Sub-sec.(1) “or to prefer or prosecute a revision petition under Sec.50” encompass two stages. First is at the threshold when the tenant files the petition for revision. Second is a stage when he prosecutes his revision. On the first stage, his revision petition is not maintainable unless it is accompanied by either payment or deposit of “all the arrears of rent due up to the date of payment or deposit.” If the revision is validly preferred, then in the next stage of prosecution of revision, the tenant has to continue to pay or deposit “any rent which may subsequently become due” until termination of the proceedings.” 26. It is clear from the above decision that when a statute provides both the words to “prefer” as well as “prosecute”, they gave two different meanings according to the context in which they are used. As stated earlier, the word “prefer” has a different meaning. It has also a meaning of “institution of a proceeding. It has also a meaning of” prosecuting “ it. When two different words are used in two different contexts, their Lordships interpreted the Karnataka Act as” at the time of initiation of proceedings, the amount has to be deposited and at the time of the prosecution also, the same will have to continue. So far as our Act is concerned, we have only the word “prefer”. In view of provisions of Sub-sec.(2) and for the various reasons stated above, I do not think that the above decision will have any application to the facts of the case. .27. So far as our Act is concerned, we have only the word “prefer”. In view of provisions of Sub-sec.(2) and for the various reasons stated above, I do not think that the above decision will have any application to the facts of the case. .27. Another decision on which the learned counsel relied on is Sankaran Pillai (dead) by L.Rs. v. V.P.Venuguduswami and others Sankaran Pillai (dead) by L.Rs. v. V.P.Venuguduswami and others Sankaran Pillai (dead) by L.Rs. v. V.P.Venuguduswami and others , (1999)6 S.C.C. 396 . The question on that is now before us was not a matter in issue therein. The question therein was whether there was sufficient cause for not depositing the amount of rent. That decision will have no application to the facts of the case on hand. The decision reported in K.P.Janaki Ammal and eight others v. K.Badrinarayaniah K.P.Janaki Ammal and eight others v. K.Badrinarayaniah K.P.Janaki Ammal and eight others v. K.Badrinarayaniah , (1999(2 C.T.C. 46, the facts are entirely different and the question that came for consideration therein also is not a matter in issue in this case. The decision relied on by the learned counsel have no application. Since the Appellate Authority has not fixed any time for payment after holding an enquiry, the impugned order is liable to be set aside. .28. The learned counsel appearing for the petitioner also relied on decisions reported in Ravi Ram v. Somasundaram , (1984)1 MLJ. 52 and Azariah v. A.K.A.Mohammed Ismail Sahib Azariah v. A.K.A.Mohammed Ismail Sahib Azariah v. A.K.A.Mohammed Ismail Sahib , (1995)2 MLJ. 648 . In Ravi Ram v. Somasundaram , (1984)1 MLJ. 52 , in paragraph 6 of the judgment, His Lordship held thus: .“Sec.11(1) read along with Sec.23 of the Act, which clearly gives the right for a tenant or to a person aggrieved by an order passed by the Rent Controller to prefer an appeal, clearly visualises an appeal to be filed questioning the determination of such a rent summarily under Sec.11(3) of the Act. The decision reported in Iqbal and Company v. Abdul Rahim, does not visualise depositing of rents decided before preferring an appeal against the determination of rent under Sec.11(3) of the Act. The decision reported in Iqbal and Company v. Abdul Rahim, does not visualise depositing of rents decided before preferring an appeal against the determination of rent under Sec.11(3) of the Act. A reading of the judgment rendered by Mohan, J., in the above decision, clearly spells out that the rent admitted by the tenant as arrears has to be paid before any appeal has to be heard. Hence, I am of the view, that an appeal against an order rendered by the Rent Controller under Sec.11(3) of the Act can be heard even without the tenant depositing the arrears of rent determined by the Rent Controller.” 29. In this case, the quantum of rent fixed by the Rent Controller is a matter in issued and when an application is filed by the landlord questioning the maintainability of the appeal, an objection is also raised by the tenant that without fixing the quantum, he cannot deposit the amount. Admittedly, there is no order fixing the quantum. The learned counsel appearing for the respondents submitted that since there is already an order passed by the Rent Controller fixing the quantum of rent at the rate of Rs.1,600, there is no necessity for a further adjudication. I do not think that the above submission of the counsel could be accepted. When the order of the Rent Controller is challenged, the Appellate Authority for the purpose of Sec.11 have to summarily decide and direct the tenant to deposit the amount and time have to be given. The above decision fully supports the view taken by the counsel appearing for the petitioner. 30. InAzariah v. A.K.A.Mohammed Ismail Sahib Azariah v. A.K.A.Mohammed Ismail Sahib Azariah v. A.K.A.Mohammed Ismail Sahib , (1995)2 MLJ. 648 , His Lordships Justice Srinivasan (as he then was) held thus: “without deciding the amount to be deposited and giving time to the tenant to deposit, an order under Sec.11(4) of the Act cannot be passed.” 31. The counsel appearing for the petitioner also submitted that he has deposited entire arrears and all amounts due and as on this date, also, he deposited at the rate of Rs.1,600. The fact that the entire amount was deposited by the tenant is not disputed. But I do not want to decide as to whether the entire amount has been deposited or not. 32. The fact that the entire amount was deposited by the tenant is not disputed. But I do not want to decide as to whether the entire amount has been deposited or not. 32. Since the procedure adopted by the Appellate Authority is not correct, I set aside the impugned orders and direct the Appellate Authority to re-consider his decision after holding an enquiry as contemplated under Sec.11(3) of the Act. If any amount has to be deposited by the tenant, the Appellate Authority shall given time for deposit and pass appropriate orders in accordance with law. 33. In the result, the impugned order is set aside and the revision petitions are allowed. No costs. Consequently, C.M.P.No.1736 of 2000 is closed.