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2022 DIGILAW 547 (KER)

Manikkoth Shaniba v. Kunnoth Ayisha

2022-07-04

ANIL K.NARENDRAN, P.G.AJITHKUMAR

body2022
JUDGMENT : Anil K. Narendran, J. The petitioner is the respondent-tenant in R.C.P.No.9 of 2020 on the file of the Rent control Court (Munsiff), Nadapuram, which is one filed by the respondent herein-landlady under Section 11(2)(b) and Section 5 of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction on the ground of arrears of rent and for fixation of fair rent in respect of the petition schedule shop room. The petitioner-tenant entered appearance and filed counter. The landlady filed I.A.No.3 of 2021, an application under Section 12(1) of the Act, seeking an order directing the tenant to deposit admitted arrears of rent. In that application, the tenant filed counter. Thereafter, the Rent Control Court passed Ext.P3 order dated 09.12.2021, under Section 12(1) of the Act, read with Section 12(2), whereby the tenant was directed to pay admitted arrears of rent in respect of the petition schedule shop room at the rate of Rs.11,500/- per month from August, 2019 in a lump sum on or before four weeks from the date of that order. The tenant was further directed to pay the rent of the building for the subsequent period, within 15 days from the due date. 2. Challenging Ext.P3 order of the Rent Control Court, the tenant filed R.C.A.No.7 of 2022 before the Rent Control Appellate Authority (Addl. District Judge), Vadakara. In Ext.P4 order dated 02.04.2022 in I.A.No.1 of 2022 in R.C.A.No.7 of 2022, the Appellate Authority found that the R.C.A.No.7 of 2022 is not maintainable since the order under challenge is an order under Section 12(1) of the Act, which is not appealable. The tenant filed Ext.P5 interlocutory application, i.e., I.A.No.6 of 2022, before the Rent Control Court, seeking an order to adjust the advance amount of Rs.4,00,000/- towards the arrears of rent. Thereafter, the tenant filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order to set aside Ext.P3 order dated 09.12.2021 of the Rent Control Court (Munsiff), Nadapuram in I.A.No.3 of 2021 in R.C.P.No.9 of 2020 and to direct the said court to decide Ext.P5 interlocutory application in accordance with law. 3. On 03.06.2022, when this original petition came up for consideration, this Court admitted the matter on file and issued notice to the respondent through her counsel before the Rent Control Court, Nadapuram, where R.C.P.No.9 of 2020 is pending consideration. 4. 3. On 03.06.2022, when this original petition came up for consideration, this Court admitted the matter on file and issued notice to the respondent through her counsel before the Rent Control Court, Nadapuram, where R.C.P.No.9 of 2020 is pending consideration. 4. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlady. 5. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P3 order dated 09.12.2021 of the Rent Control Court in I.A.No.3 of 2021 in R.C.P.No.9 of 2020 and whether the petitioner-tenant is entitled for the order directing the Rent Control Court to decide Ext.P5 petition in accordance with law. 6. Ext.P3 order is one issued by the Rent Control Court in exercise of its powers under Section 12(1), read with Section 12(2) of the Act, whereby the tenant is directed to pay admitted arrears of rent to the landlady within the time limit stipulated therein. Before the Rent Control Court and also before this Court, the stand taken by the tenant is that the landlady is having with her Rs.4,00,000/- paid by the tenant towards security deposit, which has to be adjusted against the admitted arrears of rent, which comes to Rs.3,79,500/-. 7. The learned counsel for the respondent-landlady would contend that the security amount is higher than Rs.4,00,000/-, which cannot be adjusted towards admitted arrears of rent. Further, Ext.P3 order passed by the Rent Control Court, in exercise of its powers under Section 12(1) of the Act, warrants no interference in this original petition. 8. Section 12 of the Act deals with payment or deposit of rent during the pendency of proceedings for eviction. Further, Ext.P3 order passed by the Rent Control Court, in exercise of its powers under Section 12(1) of the Act, warrants no interference in this original petition. 8. Section 12 of the Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per Section 12(1), no tenant against whom an application for eviction has been made by a landlord under Section 11, shall be entitled to contest the application before the Rent Control Court under that Section, or to prefer an appeal under Section 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. As per Section 12(2), the deposit under sub-section (1) shall be made within such time as the court may fix and in such manner as may be prescribed and shall be accompanied by the fee prescribed for the service of notice referred to in sub-section (4). As per the proviso to Section 12(2), 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. As per Section 12(3) of the Act, 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. As per Section 12(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. 9. Section 12(1) of the Act enjoins a tenant, against whom an application for eviction has been made by a landlord under Section 11, to pay to the landlord, or deposit with the Rent Control Court, 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 continue to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court, in order to contest that application for eviction before the Rent Control Court. Similarly, Section 12(1) of the Act enjoins a tenant, in order to prefer an appeal under Section 18 of the Act against any order made by the Rent Control Court on an application made by a landlord under Section 11, to pay the landlord, or deposits with the Appellate Authority, 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 Appellate Authority. 10. 10. The liability of a tenant under Section 12(1) of the Act, against whom an application for eviction has been made by a landlord under Section 11, or who prefer an appeal under Section 18 of the Act, against any order made by the Rent Control Court on an application made by a landlord under Section 11, is limited to 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 he shall continue to pay or 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. 11. The object of the provisions of Section 12(1) of the Act is to deny the defaulting tenant the right to contest the application for eviction before the Rent Control Court, or to prefer an appeal under Section 18 of the Act against any order made by the Rent Control Court on an application made by a landlord under Section 11, unless he 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 him 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. 12. In J. Ramkumar v. Ashok Jacob [ 2022 (1) KHC 495 : ILR 2021 (4) Kerala 876] this Court held that, Section 12(2) of the Act enjoins a tenant to deposit the admitted rent under sub-section (1), within such time as the court may fix and in such manner as may be prescribed. The time fixed by the court for the deposit of the arrears of rent and the time fixed for the deposit of rent which subsequently accrues due shall not be less than that specified in the proviso to Section 12(2). The time fixed by the court for the deposit of the arrears of rent and the time fixed for the deposit of rent which subsequently accrues due shall not be less than that specified in the proviso to Section 12(2). As per the statutory mandate of Section 12(1), on an application filed by the landlord under Section 12, the Rent Control Court or the Appellate Authority, as the case may be, has to order payment or deposit of arrears of rent admitted by the tenant to be due in respect of the petition schedule building, up to the date of payment or deposit and the tenant shall also be directed to continue to pay or 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, regardless of the relief sought for in that application. As per Section 12(3) of the Act, 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. 13. In Gopala Panicker Baiju and another v. Mallika [ 2018 (5) KHC 95 ] the Division Bench of this Court had occasion to deal with a case in which the tenants raised a contention that, no amount was due from them as arrears of rent. That apart, they had spent more than Rs.3,00,000/- for renovation of the building and the landlady is liable to adjust the said amount towards rent. Thus, according to the tenants, there is no admitted arrears of rent payable under Section 12(1) of the Kerala Buildings (Lease and Rent Control) Act. Unless the tenant himself admits in the objection to the petition under Section 12 of the Act or in the counter statement filed in the Rent Control Petition that any amount is due to the landlord, as arrears of rent, there cannot be any admitted arrears of rent. In short, the contention was that the simple denial of the tenant would absolve him from the liability to deposit the admitted arrears under Section 12 of the Act. 14. In short, the contention was that the simple denial of the tenant would absolve him from the liability to deposit the admitted arrears under Section 12 of the Act. 14. In Gopala Panicker Baiju the Division Bench held that, the admitted arrears of rent contemplated under Section 12(1) of the Act need not be an admission in the rent control proceedings itself and it cannot be insisted that the acceptance of the arrears or the quantum of admitted arrears of rent should come by the express words from the tenant himself in his counter statement in the Rent Control Petition or in the objection to the application filed under Section 12 of the Act by the landlord. But, it can be inferred from any document containing admission, as to the rate of rent, and period of default made by the tenant. The relevant factors, from which ‘arrears of rent’, can be inferred are the rate of rent and period of default. Normally, the rent deed executed by the tenant is a document which contains admission as to the rate of rent made by the tenant. The periodical enhancement in the rate of rent is evident from the rent receipts, in case the rent deed is not current. Similarly, the rent receipts, postal receipts or bank records, contemplated under Section 9(2) of the Act, produced by the tenant, are the documents which would suggest the period for which rent is paid. According to Section 9(1) of the Act, the tenant is entitled to get receipt on payment of rent and in case of refusal, an alternative remedy for payment of rent is also provided in Section 9(2) of the Act. Therefore, a tenant cannot be heard to say that the landlord refused to issue receipt, on payment of rent. The rent receipt is a statutorily accepted substantive evidence from which the period of default can be inferred indirectly. According to Taylor on evidence, an admission may be direct or indirect, express or implied. Therefore, rent receipts, money order receipts and other bank records provided under Section 9 of the Act are documents containing admission which would suggest an inference indirectly as to the period of default also. The term 'admitted arrears of rent' has to be understood and construed in conformity with statutorily recognised payment only. Therefore, rent receipts, money order receipts and other bank records provided under Section 9 of the Act are documents containing admission which would suggest an inference indirectly as to the period of default also. The term 'admitted arrears of rent' has to be understood and construed in conformity with statutorily recognised payment only. Therefore, for the determination of a petition under Section 12 of the Act, it is permissible to require production of rent deed by the landlord and rent receipt or document mentioned in Section 9(2) of the Act by the tenant. These materials would obviously show the admitted arrears of rent, without conducting any enquiry or adjudication. 15. In Gopala Panicker Baiju the Division Bench noticed that, any kind of set off or adjustment towards arrears of rent cannot be accepted, while considering an application under Section 12 of the Act, as such counter claims require enquiry and adjudication. Neither Section 11(2)(b) nor Section 12 of the Act recognises or permits any kind of set off, adjustment or counter claim by the tenant towards arrears of rent or admitted arrears. The enabling provision which permits set off towards rent is Section 17(2) of the Act and the same is permissible, where an order to that effect is passed by the Accommodation Controller, on satisfaction of the failure on the landlord to attend to maintenance and necessary repairs of the building. 16. In Gopala Panicker Baiju the Division Bench concluded that the admitted arrears is an amount that can be quantified by the Rent Control Court from the rent deed produced by the landlord and the receipts or documents specified under Section 9 of the Act, evidencing payment of rent, produced by the tenants, unless the rent deed contains anything to the contrary. To sum up, the tenant cannot be allowed to wriggle out from the statutory liability, under Section 12 of the Act, by a blank denial in his counter statement or objection to the application filed under Section 12 of the Act, where the rent deed and receipts would quantify an amount, as admitted arrears of rent, from the admissions therein; but otherwise, the determination empowered with the Rent Control Court contemplated under Section 12(1) of the Act would come to an end, on a bare denial of the tenant and thereby the purpose of Section 12 of the Act itself would be defeated. 17. 17. In Nalla Thampy Thera v. Abdulla [ 2002 (2) KLT 158 ] the contention raised before the Division Bench, relying on the decisions of the Apex Court in Modern Hotel, Gudur v. K. Radhakrishnaiah [ AIR 1989 SC 1510 ] and K. Narasimha Rao v. T.M. Nasimuddin Ahmed [ AIR 1996 SC 1214 ] was that the landlord was not justified in not adjusting the advance amount towards rent arrears. As per the proviso to Section 8(1)(a) of the Kerala Buildings (Lease and Rent Control) Act the tenant is liable to pay only one month’s rent, by way of advance. Therefore, the balance is liable to be adjusted towards rent arrears. The Division Bench noticed that, in Issac Ninan v. State of Kerala [ 1995 (2) KLT 848 ] the Court has struck down Sections 5, 6 and 8 of the Kerala Buildings (Lease and Rent Control) Act in its entirety. Since Section 8 of the Act is not in the Statute book, it would be open to the tenant and landlord to enter into an agreement with regard to the payment of advance. The Division Bench found that, reliance placed on the above mentioned decisions of the Apex Court is misplaced. Those are all cases where there is specific provision in the Andhra Pradesh as well as Tamil Nadu Rent Control Act, which obliges the landlord to keep only one months rent as advance, just like Section 8 of the Kerala Buildings (Lease and Rent Control) Act. However, as far as Kerala Rent Control Act is concerned, Section 8 has already been struck down. 18. In Santhosh K. Thomas v. Usha Suresh [ 2013 (1) KLT 767 ], before the Division Bench of this Court, relying on the decision of a learned Single Judge of this Court in Pathumma Beevi v. Lonappan [ 1985 KLT 705 ], the learned counsel for the petitioner tenant argued that the landlord is bound to adjust the security amount towards the arrears of rent and when there is a deposit of security amount, tenant cannot be directed to deposit arrears of rent, before adjusting the security amount, under Section 12 of the Kerala Buildings (Lease and Rent Control) Act. The tenant also relied on the decision of the Apex Court in G. Reghunathan v. K.V. Varghese [ (2005) 7 SCC 317 ]. The tenant also relied on the decision of the Apex Court in G. Reghunathan v. K.V. Varghese [ (2005) 7 SCC 317 ]. In the said decision, relying on Section 8(1) of the Kerala Buildings (Lease and Rent Control) Act, the Apex Court held that no landlord is entitled to receive as advance any amount in excess of one month's rent and if he has accepted or received any amount in excess of one month's rent, it is liable to be repaid to the tenant forthwith. The Division Bench held that, when Section 8(1) of the Act is not in Statute book, as Section 8 was declared ultra vires by the Division Bench of this Court in Issac Ninan v. State of Kerala [ 1995 (2) KLT 848 ], based on Section 8(1) of the Act the tenant cannot contend that the landlords are not entitled to retain the security amount in excess of one month's rent and therefore, he is not liable to deposit the arrears of rent as found by Rent Control Court. Though in Edger Ferus v. Abraham Ittycheria [ 2004 (1) KLT 767 ] Section 5(1) out of Section 5, Section 6 and Section 8 which were declared ultra vires in Issac Ninan was severed and retained in the Statute, the declaration in Issac Ninan that Section 8 of the Act is ultra vires is still subsisting. Another Division Bench in Nalla Thampy Thera v. Abdulla [ 2002 (2) KLT 158 ] considered the said question and held that Section 8 is not in the Statute book and based on Section 8(1) a tenant is not entitled to contend that the landlord is not entitled to retain the advance in excess one month's rent. In such circumstances, the Division Bench repelled the case of the tenant that the Rent Control Court was not justified in passing an order under Section 12(1) of the Act, when there is deposit of Rs.2,00,000/- as security. 19. Section 8 of the Act has already been declared ultra vires by the Division Bench of this Court in Issac Ninan v. State of Kerala [ 1995 (2) KLT 848 ]. When Section 8(1) of the Act is not in Statute book, as it was declared ultra vires, a tenant is not entitled to contend that the landlord is not entitled to retain the advance in excess of one month's rent. When Section 8(1) of the Act is not in Statute book, as it was declared ultra vires, a tenant is not entitled to contend that the landlord is not entitled to retain the advance in excess of one month's rent. Therefore, the contention of the tenant that, the security amount deposited by him, which is still with the landlord, has to be adjusted towards admitted arrears of rent payable under Section 12(1) of the Act, and as such, he is not liable to deposit the admitted arrears of rent as per Ext.P4 order of the Rent Control Court is untenable. 20. Viewed in the light of the law laid in the decisions referred to supra, the Rent Control Court cannot be directed to consider and dispose of Ext.P5 application made by the petitioner-tenant, since the relief sought for in that application, for adjustment of rental advance against the admitted arrears of rent, which is legally impermissible. Further, Ext.P3 order of the Rent Control Court, in exercise of its powers under Section 12(1), read with Section 12(2) of the Act, cannot be said to be one issued contrary to the provisions under Section 12, which warrants no interference in this original petition. In the result, this original petition fails and the same is accordingly dismissed.