Paripoornan, J. - (1.) The first respondent in O.P.No.10288/28, Kerala High Court - hereinafter referred to as the Rs. tenant' - appeals against the judgment of the High Court dated 27-10-1994. The petitioner in the original petition - hereinafter referred to as the Rs. landlord' is the first respondent herein. The statutory authorities and other pro forma respondents in the High Court are the respondents in this civil appeal. The learned Judge of the High Court, by the judgment dated 27-10-1994, in exercise of the power under Art.227 of the Constitution, set aside the order passed by the District Judge, Palakkad in R.C.R.P. No.6 of 1985 dated 31-7-1986 (Ext.P.3) and restored the order passed by the Rent Control Court and appellate authority rendered in I.A. No.764/82 in R.C.P. (O.P.) No.141/77 (Ext.P-1) and R.C.A. 68/83 (Ext.P-2). The appellant tenant was given three months Rs. time to surrender the possession of the building in question to the respondent-landlord.
(2.) This litigation has a chequered history. The appellant is a tenant of a residential building bearing Door No.22/70 in Sriram Street, Moothanthara, Koppom, Palakkad Taluk under the first respondent-landlord. The appellant took the building on lease at a rent of Rs.20/- per mensum from the landlord on 1-8-1972. Alleging that the rent from 1-6-1975 is in arrears, the landlord sent a notice on 22-6-1977 terminating the tenancy and demanding surrender of the building. Subsequently, the landlord filed R.C.P. (O.P.) No.141/77 seeking eviction of the tenant under Ss.11(2) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the Rs. Act'). The grounds urged for eviction of the tenant are, default in payment of rent (S.11(2)) and bona fide requirement of the building for the landlord's own occupation [S.11(3)]. The plea of bona fide requirement for landlord's own occupation was found against. However, the Rent Control Court ordered eviction under S.11(2)(b) of the Act on the ground of default in payment of rent. The Court ordered that in case the tenant deposits a sum of Rs.820/- as arrears as on 1-11-1978 within one month from the date of order, i.e. 30-11-1978, the tenant could move an application for vacating the order of eviction. The tenant filed an appeal - R.C.A. No.8/79 before the appellate authority. The appellate authority, by order dated 26-7-1979, set aside the order passed by the Rent Controller and ordered a remit, directing the Rent Controller to consider the maintainability of the petition. After remit, the Rent Controller passed an order on 22-2-1980 under S.11(2)(b) of the Act in the following terms:- "In the result, I find that the petitioner's claim for recovery of possession under S.11(3) is unsustainable. But the petitioner is entitled to get recovery of possession since the respondent has defaulted payment of rent. So the respondent is ordered to surrender vacant possession of the petition schedule building under S.11(2) within 30 days from today. In case the respondent deposits the sum of Rs.540/- which is the arrears of rent due as on 1-2-1980 she will be entitled to apply for getting the order vacated under S.11(2)(c) of the Act 2/1965. The respondent is ordered to pay costs of the petitioner including advocate's fee which is fixed as Rs.25/-. The respondent is further ordered to pay interest at 6% per annum on the arrears of Rs.540/- from today". (Emphasis supplied) The appeal, R.C.A.No.40/1980, filed by the tenant before the appellate authority was dismissed on 21-7-1981. Thereafter, the tenant moved the Revisional Authority, District Court, Palghat in R.C.R.P. No.53 of 1981 and the learned District Judge passed the following order on 24-3-1981:- "The tenant shall be free to get the order vacated by making the necessary deposit and application as contemplated in Sec.11(2)(c) of Act 2 of 1965 before the Rent Control Court on or before 24-5-1982". It is nobody's case that either the Rent Control Court or the appellate Court or the Revisional Court passed any order under Section 12 of the Act regarding the payment of subsequent arrears (or future rent till the termination of proceedings) admitted by the tenant, when the proceedings were pending for eviction and before the order was passed under Section 11(2)(b) of the Act. Before expiry of the time fixed in the aforesaid order of the District Judge, the tenant filed I.A.No.764/82 before the Rent Controller on 6-4-1982, along with a remittance of a sum of Rs.750/- and prayed for setting aside the order of eviction dated 22-2-1980. The Rent Controller, by Ext.P-1, order dated 4-8-1983, held that the tenant has failed to remit the amount, which is due, within the time specified and dismissed the petition. The appeal filed by the tenant was dismissed by the appellate authority by Ext.P-2, order dated 14-12-1984. The learned District Judge, in R.C.R.P. No.6 of 1985, by Ext.P-3, order dated 31-7-1986, set aside the order passed by the Rent Controller dated 4-8-1983 and of the appellate authority dated 14-12-1984 and also set aside the order of eviction passed in R.C.,P.(O.P.) No.141/77. The learned District Judge took the view that it was not disputed by the landlord that the amount of Rs.750/- deposited on 6-4-1982 will cover the entire amount specifically quantified by the Rent Control Court in its order dated 22-2-1980 as affirmed by the Revisional Court in R.C.P. No.53/81 dated 24-3-1982. In other words, the amount remitted by the tenant included the arrears of rent Rs.540/- with interest at the rate 6% per annum from the date of the order, Rs.25 towards cost and also the rent for subsequent four months. The District Judge in Ext.P-3, order dated 31-7-1986, held that the Rent Controller has only to see whether the order for deposit (order dated 22-2-1980) as affirmed by the Revisional Court (order dated 24-3-1982) has been complied with or not. In this case, it was admittedly complied with. No further question arose for consideration to set aside the order of eviction, under Section 11(2)(c) of the Act. It was further held that it was beyond the powers of the Rent Controller in an application under Section 11(2)(c) of the Act to consider the claim of arrears of rent that has become due after the passing of the order under Section 11(2)(b). In other words, the order of eviction passed in R.C.P. (O.P.) No.141 of 1977 on 22-2-1980 clearly determined the amount payable by the tenant and that was the only amount required to be paid by the tenant to get the order vacated under Section 11(2)(c) of the Act. It was admittedly paid. Since the eviction has been allowed only on the ground of non-payment of rent till then, it is not for the Rent Controller or appellate authority to see whether any rent has been kept in arrears by the tenant subsequent thereto. It was held that it is beyond the powers of the Rent Controller in an application under Section 11(2)(c) of the Act to consider the claim for arrears of rent that has become due after the passing of an order under Section 11(2)(b) of the Act. It is, in this view, the learned District Judge in Ext.P-3 order dated 31-7-1986 set aside the order of the lower authorities (Exts.P-1 and P-2).
(3.) The landlord filed Original Petition No.10288/88 in the High Court of Kerala and assailed the aforesaid order passed by the District Judge in R.C.R.P. No.6/85 dated 31-7-1986 (Ext.P-3). The learned single Judge of the Kerala High Court, after referring to the prior history of the case and The earlier orders passed in the various proceedings, posed the question thus:- "Whether the revisional Court was right in holding that the respondent was not required to pay or deposit more than the amount which was quantified by the Rent Controller, the same being confirmed by the Appellate Authority and the Revisional Authority or whether the respondent/tenant should have deposited the entire arrears of rent that fell due by 6-4-1982 instead of Rs.750/- in terms of the directions of the revisional Court in R.C.R.P. No.53 of 1991". (It was on 6-4-1982, the tenant filed the application under Section 11(2)(c) of the Act and made the deposit). After referring to Section 11(2)(a) and (c) and Section 12(1) and (2) of the Act the learned single Judge held thus:- "The expression "arrears of rent" in Sec.11(2)(c) of the Act (was held to mean) will be the "entire arrears of rent due" as on the date of deposit under that sub-clause in the context of Section 12 of the Act". (Emphasis supplied) In taking the said view the learned single Judge followed a Bench decision in Chellamma Varghese v. Cicey (1994)(2) Ker LT 106) and held that it is not the arrears specified in the order of eviction passed by the Rent Controller dated 22-2-1980 but the deposit of all arrears of rent that accrued even subsequent thereto till the date of filing of the application under Section 11(2)(c) of the Act that should be made. The learned single Judge set aside the order passed in revision by the District Judge in R.C.R.P. No.6 of 1985 dated 31-7-1986 (Ext.P.3).;