MOHAMMED SHAMEER Vs. ASHOKAN

JUDGEMENT

(1.) An ex parte order of eviction was passed by the Rent Control Court against the revision petitioner under S. 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). The petitioner/tenant filed an application to set aside the ex parte order with an application to condone the delay in filing the application to set aside the ex parte order. Those applications were dismissed by the Rent Control Court. The tenant filed an appeal before the Appellate Authority against the order passed by the Rent Control Court in the application to set aside the ex parte order. In that appeal, the landlord filed an application under S. 12 of the Act to direct the tenant to deposit the admitted arrears of rent. Meanwhile, during the pendency of the appeal, the landlord took delivery of the building in execution of the order of eviction, since no stay was granted by the Appellate Authority in favour of the tenant. It is to be noted that the application was filed by the landlord under Section 12 of the Act before the Appellate Authority in 2014, much after the delivery of the building was taken by the landlord. The Appellate Authority directed the tenant to deposit the admitted arrears of rent till the date of delivery, which comes to Rs. 2,03,000/-. The tenant raised a contention that Rs. 3,00,000/- paid as advance is remaining with the landlord. The Appellate Authority held that only if the tenant makes an endorsement on the Memorandum of Appeal that he does not intend to proceed with the appeal, the tenant would be entitled to adjust the arrears of rent as against the advance amount of Rs. 3,00,000/-. The order passed by the Appellate Authority is under challenge in this O.P.(RC) filed by the tenant. The question which arises for consideration in this Original Petition is whether an application under S. 12 of the Act is maintainable before the Appellate Authority in an appeal filed by the tenant against an order dismissing his application to set aside the ex parte order of eviction. Another incidental question also arises for consideration, namely, even if an application under S. 12 is maintainable in such a case, whether it is maintainable at a stage after effecting delivery.

(2.) The learned counsel for the petitioner relied on the decision of the Division Bench in Sulaiman Sahib v. Mohammed Moosa, 2003 2 KerLT 1058).

(3.) To resolve the question involved in the O.P. (RC), it is apposite to extract S. 12 of the Act. S. 12 reads thus:--