MARY BEENA JOHN Vs. ADDL DIST COURT

JUDGEMENT

(1.) THE question referred to us in this case is 'whether the proceedings by way of appeal by the landlords before the Appellate Authority should be taken to be a proceeding for eviction of the tenant for the purpose of S. 12 of the Kerala Buildings (Lease and Rent Control) Act (for short 'the Act') and in such proceedings, whether the tenant is entitled to contest unless he pays all arrears of rent admitted by him'.

(2.) G. Viswanatha Iyer, J. has in a brief judgment categorically held in V. K. Ramaswamy Chettiar v. B. Krishna Arjunan (1979 KLT SN Page71) that the tenant can contest the appeal filed by the landlord before the Appellate Authority without making any deposit of arrears of rent Learned Judge has taken the above view holding that the point has been covered by the decision of the Supreme Court reported in Abdul Hameed Yousuff Sait v. Smt. Kalavathi (1968) II SCWR 618 ). While referring the matter, Sreedharan, J. (as he then was) doubted the correctness of the decisions of Viswanatha Iyer, J.

(3.) S. 12 (1) and (3) of the Act which are similar to S. 29 of the Mysore Act is in the following terms: " 12 (1): No tenant against whom an application for eviction has been made by a landlord under S. 11, shall be entitled to contest the application before the Rent Control Court under that Section, or to prefer in appeal under S. 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 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, until the termination of the proceedings before (he Rent Control Court or the appellate authority as the case may be. (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". Material portion of S. 29 of the Mysore Act is thus: " No tenant against whom an application for eviction has been made by a landlord under S. 21, shall be entitled to contest the application before the Court under that section or to prefer or prosecute an appeal or revision petition under S. 48 or S. 50 against any order made by the Court on the application under S. 21 or an order passed by the District Judge on appeal, as the case may be, unless he has paid or pays to the landlord or deposits with the Court or the District Judge or the High Court as the case may be, all arrears of rent due in respect of the premises up to the date of payment or deposits and continues to pay or to deposit any rent which may subsequently become due in respect of the premises at the rate at which it was last paid or agreed to be paid, until the termination of the proceedings before the Court or the District Judge or the High Court, as the case may be". Except the difference that the provision in the Mysore Act refers to a suit, appeal and revision, there is no material difference between the two provisions. The one other difference in the workings of the two sections in the two Acts is that while S. 29 of the Mysore Act uses the words 'prefer or prosecute'. S. 12 of the Act uses only the word 'prefer'. In our view, the above difference is also not material. For we find that the word prefer has the following meanings noted in Black's Law Dictionary, Fifth Edition: 'prefer: To bring before, to prosecute; to try; to proceed with. ' In fact a Division Bench of this Court in Pochappan Narayanan v. Gopalan (1990 (2) KLT 1) have understood the word 'prefer' used in S. 12 (1) of the Act as having the meaning of lodging or prosecution of the appeal or proceeding with the appeal following the meaning given in Black's Law Dictionary. As such it may not be possible to contend that the two Sections are not similarly worded and the reliance placed by Viswanatha Iyer, J. was not proper and legal.