M VENUGOPALAN Vs. RAPHAEL
LAWS(KER)-1974-5-6
HIGH COURT OF KERALA
Decided on May 28,1974

M. VENUGOPALAN Appellant
VERSUS
RAPHAEL Respondents

JUDGEMENT

V.P. Gopalan Nambiyar, J. - (1.) THIS revision petition preferred by a landlord arises out of certain proceedings instituted by him in the Rent Control Court, Trichur, claiming eviction of a building belonging to him on the ground that rent had been kept in arrear. The Rent Control Court passed orders directing the tenant to pay all admitted arrears on or before the 20th September 1971. It was made clear that on default of deposit, within the specified period, an order for possession under S.12(2) of the Act, will be passed. The order was not complied with, despite the tact that time for payment was extended. Therefore, the Rent Control Court passed an order for possession under S.12 (3) of the Act. THIS was on 25-10-1971. Within thirty days of the said order, the tenant filed I. A. 4143 of 1971 to receive what was claimed to be the admitted arrears; and I. A. 4142 of 1971 to set aside the order for possession passed on 25-10-1971. The Rent Control Court dismissed I. A. 4142 of 1971 holding that an order under S.12(3), cannot be set aside or vacated on the mere ground that the admitted arrears of rent had been deposited subsequent to the order. It declined to receive the arrears of rent tendered along with the I. A. 4143 of 1971, and accordingly dismissed the same. The appeals preferred by the tenant against these orders were dismissed by the appellate authority. On further revision, the Revisional Court, namely the District Court, Trichur, allowed the revision and set aside the orders of the Rent Control Court and of the Appellate Authority and remanded I. A. Nos. 4142 of 1971 and 4143 of 1971 back to the Rent Control Court for fresh disposal directing that the time for making deposit of the arrears of rent, will be extended by the Rent Control Court. The aggrieved landlord has preferred this revision petition.
(2.) S.11(2)(c) of the Buildings (Lease and Rent) Control Act 1965 reads: "11(2)(c): The order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow; and if the tenant deposits the arrears of rent with interest and cost of proceedings, within the said period of one month or such further period, as the case may be it shall vacate that order." Under the above provision, a tenant against whom a decree for eviction has been passed by the Rent Control Court on the ground that rent had been kept in arrears, is allowed relief against the forfeiture of the tenancy incurred by nonpayment of rent, by depositing the arrears decreed, within a certain period. It has been ruled by this Court in Kurien v. Saramma Chacko (1964 KLT 1) that the power under S.11(2)(c) can be exercised by the Appellate Authority and also by the Revisional Authority. S.12 of the Act provides for a totally different contingency. We may read Sub-s.(1) to (3) of the Section: "12. Payment of deposit of rent during the pendency of proceedings for eviction.- (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 an 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 deposit 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 the Rent Control Court or the Appellate Authority, as the case may be. (2) The deposit under sub-s.(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-s.(4): Provided 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 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. (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." It will be noticed that the deposit of the admitted arrears enjoined by the above Section, is a condition precedent to the tenant entering on his defence and contesting the application for eviction, or an appeal filed therefrom. The scope and purpose of the deposit of arrears of rent, enjoined by S.12 is fundamentally different from the scope and the purpose of the deposits envisaged by S.11 of the Act. In K. P. Mohammed v. Madhavi Amma (1963 KLT 688) a Division Bench of this Court observed: "7. Counsel contended that the opinion of the learned Judge that orders for eviction passed under S.12(3) of the Act cannot be vacated under S.11(2)(b) requires reconsideration by us. S.11 and 12 of the Act are not dependent on each other. They provide for different contingencies though the consequence of the non compliance of the mandates of either section is eviction. It must then follow that an order of eviction passed under S.12(3) is not amenable to correction under S.11(2)(b), which relates to orders of eviction passed under that sub-section i. e. S.11(2) only. We are thus in agreement with the view of the learned Judge on the matter." In T. B. Mohanan v. Kanakaraja Pillai (1970 KLT 1024), a learned Judge of this Court also observed that an order passed under S.12 of the Rent Control Act, cannot be reopened or vacated by tendering the rent subsequent to the passing of the said order. These decisions, we think, are clear enough authorities against the view taken by the Revisional Court in the order now under challenge. But that Court seems to have found that the decision of a Division Bench of this Court in Sahadevan v. Kesavan Nair (1973 KLT 37) was direct authority for the position that an order passed under S.12(3) of the Act is really an order passed under S.11. From this, the Revisional Court jumped to the conclusion that if the power under S.11 were available to an Appellate Authority, the power under S.12(3) should also be available to that Authority. We are unable to accept this view as correct. The limited question that was considered and that arose for determination in the Division Bench ruling in 1973 KLT 37 was whether an order under S.12(3) of the Act was executable by the Rent Control Court. It was held by the Division Bench that it was. That question is not actually or directly before us, and we need not express any opinion on the same. But even assuming that for purpose of execution an order under S.12(3) can be equated with, and treated as the same as, one under S.11 of the Act, we are unable to hold that the consequence enjoined by an order under S.12(3) for failure to deposit the admitted arrears in time can be vacated or obliterated by payment at any subsequent stages or periods; and we think that the decisions we have referred to earlier in 1963 KLT 688 and 1970 KLT 1024 are sufficient authorities for this position. We are therefore unable to sustain the order of the Revisional Court. Counsel for the respondent then attempted the argument that S.12(3) of the Act, is itself discriminatory and violative of Art.14 of the Constitution. C. M. P. 5004 of 1974 was filed challenging the vires of S.12(3) of the Act, and the said application was allowed by us. Notice was issued to the Advocate General, and the Government Pleader was present at the hearing. Counsel for the respondent contended that the Section really had the effect of encouraging dishonesty and penalising an honest tenant. For, if a tenant honestly chose to admit that rent was in arrear, he had necessarily to perform the obligations enjoined by S.12(1) of the Act, and pay the penalty of being visited by the consequence provided by S.12(3) for default of compliance; whereas, if he dishonestly chose to dispute that arrears of rent were due, and eventually a decree for eviction were passed against him, he could take advantage of the provisions of S.11(3) of the Act, before the Rent Control Court and before the Appellate Authority and even the Revisional Authority. It was argued that this benefit was unavailable in the case of the obligation enjoined by S.12 of the Act. We do not think this constitutes discrimination. As we said earlier, the scope and the purpose of the two sections, are fundamentally different. The one is meant to relieve against forfeiture, and the other, as a condition precedent to be performed by the tenant before entering on his defence. The law itself does not encourage or put a premium on dishonesty, although those inclined to be dishonest may make use of its provisions to suit their purpose. We see, in the circumstances, no case of discrimination. It was then contended that the power under S.12(3) is conceded only to the Rent Control Court and to the Appellate Authority, but not to the Revisional Authority and therefore on this ground again the provision is discriminatory. We are unable to appreciate this argument as advanced by the Counsel for the respondent in this revision petition, who is himself a tenant. That apart, we should also think that there is a difference between the powers of the Appellate Authority and those of the Revisional Authority.
(3.) WE reject the contention of Counsel for the respondent that S.12(3) of the Rent Control Act is discriminatory and violative of Art.14 of the Constitution for the reasons urged. On the merits, we allow this revision petition, set aside the order of the Revisional Authority and restore that of the Appellate Authority with costs. Allowed;


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