[Kerala Rent Control Act] Payment Of Arrears During Pendency Of Appeal No Ground For Setting Aside Eviction Order U/S 12(3): High Court

The Kerala High Court on Tuesday held that payment of the admitted arrears of rent during the pendency of an appeal against an order of eviction under Section 12(3) of the Kerala (Buildings Lease and Rent Control) Act (hereinafter, 'the Act'), would not be a ground to set aside such an order or to grant an opportunity to the tenant to contest the Rent Control Petition.

Section 12(3) provides that upon the failure of a tenant to pay or deposit the rent or arrears of rent as declared to be paid by the Rent Control Court within a prescribed time period, the 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.

The Division Bench comprising Justice P.B. Suresh Kumar and Justice P.G. Ajith Kumar explained the scope of Section 12 of the Act as follows:

"The object of the provisions of Section 12(1) of the Act ('Payment or deposit of rent during the pendency of proceedings for eviction') is to deny the defaulting tenant the right to contest the application for eviction before the Rent Control Court or to prefer an appeal under Section 18 of the Act against any order made by the Rent Control Court on an application made by a landlord under Section 11, unless he 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 to be due in respect of the building, up to 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. The obligation is not merely dependent on an order under Section 12(1) of the Act, but it is statutory". 

The Court further noted that Section 12(2) of the Act enjoins a tenant to deposit the admitted rent within such time as may be fixed by it, and in such manner as may be prescribed, and if the tenant fails to make the payment as per such direction or to show cause, an Order under Section 12(3) of the Act for eviction may be issued. 

Factual Background

The respondent in this case had filed a petition before the Rent Control Court seeking eviction of the petitioner-tenant on the ground that rent from January 2016 at the rate of Rs. 6000/- was due. The Rent Control Court accordingly passed an order under Section 12(1) of the Act. When the petitioner assailed the Order before the Appellate Authority, the latter modified the same and directed the petitioner to pay admitted arrears of rent from January 2016 at the rate of Rs.3,000/- per month. The petitioner was however granted two more weeks' time to deposit the arrears of rent. 

It is noted that although the petitioner was bound to pay the arrears of rent before March 21, 2020, the same was ot found to be done, as an amount of Rs. 21,000/- was still due. The Rent Control Court thus passed an Order under Section 12(3) of the Act. 

The petitioner contended before the Appellate Authority that there was sufficient reason not to pay the balance amount within the allotted time, and sought another weeks' time to make payment for a justifiable reason. However, the Appellate Authority directed the petitioner to pay admitted arrears of rent from January 2016 at the rate of Rs.3,000/- per month. During this time, the petitioner filed a plea before the High Court. The petitioner contended that the Appellate Authority issued the order under Section 12(3) of the Act without considering his request seeking a week's time to make the payment. He thus claimed the order to be illegal on the ground of denial of opportunity. 

The counsel for the petitioner argued that even if the petitioner's request was dismissed, another opportunity ought to have been granted to him before passing an order under Section 12(3) of the Act. The counsel added that during the pendency of the appeal, entire arrears of rent, including the rent due during the pendency of the appeal, was also paid and the appeal ought to have been allowed. 

Findings of the Court

The Court at the outset perused the object and scope of Section 12 of the Act and observed that if the tenant fails to make the payment as per the direction of the Court or to show cause, the obvious consequence would be an order under Section 12(3) of the Act.

The Court observed that the entire arrears of rent admitted to be due was not paid before the due date. It noted that the petitioner make payment of the amount even after a week, or furnish any explanation for not making the payment. The Court was thus of the view that the petitioner could not have a valid contention that he was denied an opportunity to offer his explanation for the nonpayment of the arrears of rent.

As regards the subsequent payment of arrears, the Court observed that in K.S. Binuraj [2009 KER 47650], it was laid down that subsequent payment of the admitted arrears of rent does not make the order under Section 12(3) of the Act obliterated or wrong.

The Court was of the considered view that the payment of the admitted arrears of rent during the pendency of the appeal is not a reason to set aside the order of the Rent Control Court under Section 12(3) of the Act or to grant an opportunity to the petitioner to contest the petition. 

It thus dismissed the petition. However, on taking into account that the petitioner was running a workshop in the building and some time would be required to remove the fixtures, the Execution Court was directed to effect delivery after a period of fifteen days from the date of the order. 

The revision petitioner was represented by Advocates R. Lakshmi Narayan, and R. Ranjanie. 

Citation: 2023 LiveLaw (Ker) 474

Case Title: Subeesh v. Vichathran 

Case Number: R.C.REV. NO. 188 OF 2023

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