JOSE P. O. Vs. XAVIER AND ANOTHER

JUDGEMENT

(1.) Aggrieved by the conditions incorporated in the order of stay granted by the Rent Control Appellate Authority, Thrissur, the tenant came up under Art. 227 of the Constitution of India challenging the legality and propriety of the said order. Originally, an application under Sections 11(2)(b), 11(3), 11(4)(i) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') was filed by the landlord for evicting the tenants, who are the respondents in the said application. They have suffered an order of eviction under Sections 11(2)(b), 11(3) and 11(4)(v) of the Act, before the Rent Control Court. The prayer for eviction under Sec. 11(4)(i) was rejected by the Rent Control Court. The order under Sec. 11(2)(b) was passed subject to the application of Sec. 11(2)(c) of the Act. Subsequently, the tenants filed an application under Sec. 11(2)(c) for vacating the order of eviction under Sec. 11(2)(b) and it is pending. As against the order of eviction under Sections 11(3) and 11(4)(i), an appeal was preferred before the Rent Control Appellate Authority, Thrissur, in R.C.A. No.66/2016 and in that appeal, they moved an application for stay of the order passed under Sections 11(3) and 11(4)(i) of the Act. The First Appellate Court (Rent Control Appellate Authority) passed an order of stay under Exhibit P8, which is extracted below for reference.

(2.) It is well within the jurisdiction of Rent Control Appellate Authority to impose any condition while granting stay of operation of the order of eviction. But, the condition should strike a balance in between the rights and liabilities of the parties under the Act in which the appeal was preferred. Going by the above order, it is clear that the directions issued for deposit of arrears of rent were not complied with. So, a stay was granted as prayed for with a condition that the tenant should pay rent within two weeks and continue to pay rent before fifth of every month and that in the event of making any two defaults, the stay will stand vacated. There is a further direction to deposit the arrears of rent within two weeks. We are at a lost to understand why the Rent Control Appellate Authority proceeded to grant stay instead of resorting to Sec. 12 of the Act. Sec. 12 of the Act is extracted below for reference:

(3.) Sec. 12 of the Act says that the tenant, against whom an application for eviction has been made, is not entitled to contest the application before the Rent Control Court under Sec. 11 of the Act or to prefer an appeal under Sec. 18 of the Act 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 him 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. A mere reading of sub section (1) of Sec. 12 of the Act though gives an impression that payment or deposit of arrears of rent is a pre-requisite or condition precedent either to defend an application under Sec. 11 of the Act before the Rent Control Court or to prefer an appeal under Sec. 18 of the Act, sub section (2) with its proviso and sub section (3) makes the legal position clear that it is not an immediate pre-requisite or condition precedent, but it can be used only after the written statement (written objection) of the tenant to the original petition or an application submitted under Sec. 12 of the Act. The wording used "to prefer an appeal under Sec. 18 against any order" and the wording used "shall be entitled to contest the application" incorporated under Sec. 12(1) is to restrict the right of defence available to the tenant in an application under Sec. 11, if he fails to pay the rent or its arrears. Sub Sec. (2) says that 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). Proviso says 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 order and for subsequent deposit of monthly rent shall not be less than two weeks from the date on which the rent becomes due. Sub section (3) says that if the 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. Sub Sec. (4) deals with the manner in which the notice should be given to the landlord regarding the deposit. A conjoint reading of sub sections (1) to (4) of Sec. 12 of the Act would show that there should be an order passed by the Rent Control Court or the appellate authority, as the case may be, in compliance with the requirement under sub sections (1) and (2) with its proviso so as to have the application of sub section (3) of Sec. 12 of the Act. Unless there is an order in compliance with sub sections (1) and (2) with its proviso, no consequence would flow as envisaged under sub section (3) of Sec. 12 which states that the Rent Control Court or the appellate authority, as the case may be, shall, unless there is sufficient reason for the tenant, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. Sub section (4) deals with the service of notice to the landlord when there is deposit made in compliance with the requirements under sub sections (1) and (2). Sec. 12 is really a supplement to the main Sec. 11 resting on the principle of equity rather than the beneficiary principle applied under Sec. 11 and that is why the legislature had not incorporated the same as a sub section to Sec. 11, as the principles applied thereunder are different. When there is an order passed by the Rent Control Appellate Authority directing the tenant to deposit arrears of rent and when there is failure to deposit the same within the time specified, the Rent Control Appellate Authority should pass an order of termination of proceedings as envisaged under sub section (3) of Sec. 12 and direct the tenant to put the landlord in possession of the building. It is not at all advisable in such a situation to grant stay of the order of eviction in favour of the tenant. If any condition is imposed while granting stay of order of Rent Control Court by the Rent Control Appellate Authority, it should not be for the payment of any amount other than the admitted arrears of rent and the rent which may subsequently become due in respect of the building. In other words, the jurisdiction of Rent Control Appellate Authority or the Rent Control Court to direct the tenant to deposit the rent arrears is confined only to admitted arrears of rent and Sec. 12 of the Act would come into play only on an admission made by the tenant regarding arrears of rent. It can be done only in two ways (1) by filing counter (written objection) to the application submitted under Sec. 11 of the Act or (2) by filing counter to an application under Sec. 12 of the Act filed by the landlord. So, the expression "shall be entitled to contest the application before the Rent Control Court" has to be understood in that context and hence the right to file a counter to the application, though a part of contest, is permissible before insisting compliance under Sec. 12 of the Act. Likewise, in the appellate stage also, unless there is admitted arrears of rent, there cannot be any application of Sec. 12 of the Act, except for the purpose of rent which may subsequently become due in respect of the building.