BASHEER ABOOBACKER Vs. SHAMSUDHEEN

JUDGEMENT

(1.) THE petitioners herein are the tenants in an eviction proceeding brought under Section 11 (2) (b) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act' for short) before the Rent Control Court (Munsiff's Court), Chavakkad. The petition schedule building was let out to the tenants, on a high monthly rent, even before the completion of construction of the building. When the landlords allege default on the part of the tenants in payment of rent, the tenants allege default on the part of the landlords in completing the construction as agreed. Alleging default in payment of rent, the landlords filed R.C.P. No.117 of 2012 before the Rent Control Court.

(2.) PENDING the eviction proceedings, the landlords filed I.A No.6067 of 2013 for an order of eviction under Section 12 (3) of the Act on the ground that the tenants have not made payment of rent even after the filing of the eviction petition, and such tenants are not entitled to contest the eviction proceeding in view of the prohibition contained in Sub -section (1) of Section 12 of the Act. In the said proceeding, the learned Rent Controller passed orders under Section 12 (1) of the Act, directing the tenants to deposit an amount of 20 lakhs on or before 22.11.2013. The said order was passed on 7.10.2013. The section of law under which the landlords filed I.A No.6067 of 2013 was wrongly shown as Section 11 (2) in the impugned order dated 7.10.2013. For correcting the said mistake, the tenants filed review application as I.A No.146 of 2014. On the said application, the learned Rent Controller passed orders correcting the section of law as 12 (1) of the Act in exercise of the inherent powers to correct mistakes. The prayer for review as such was rejected by the Rent Controller. The said order in I.A No.146 of 2014 was passed on 10.012014. The order dated 7.10.2013 in I.A No.6067 of 2013 is produced before this Court as Ext.P11 and the order dated 10.01.2014 in I.A No.146 of 2014 is produced as Ext.P13. The prayer in this proceeding brought under Article 227 of the Constitution of India, is to set aside Ext.P11 order on the ground of illegality and irregularity.

(3.) ON hearing both sides, we find that the impugned order is liable to be set aside by this Court in exercise of the supervisory powers under Article 227 of the Constitution. In the petition brought by the landlords, for order of eviction under Section 12 (3) of the Act, the learned Rent Controller, did not make enquiry, or hear the parties as meant under Section 12 (1) of the Act. Instead of making a direction for deposit of the admitted rent arrear, the trial court simply made an order directing the tenants to deposit a lump sum amount of 20 lakhs. This is not the proper and legal way for dealing with an application brought under Section 12 of the Act. We are not happy with the way in which the learned Rent Controller dealt with the matters and passed orders on the application filed under Section 12 of the Act. When such an application is brought alleging failure to make payment of rent, the Rent Control Court will have to pass an order initially under Section 12 (1) of the Act, directing the tenant to make deposit of the rent arrear, admitted by the tenant to be due in respect of the building. The law under Section 12 (1) of the Act is that no tenant against whom an application for eviction has been filed by a landlord under Section 11, shall be entitled to contest the application or to prefer an appeal under Section 18 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.