K.T. Sankaran, J.

1. An ex parte order of eviction was passed by the Rent Control Court against the revision petitioner under S. 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). The petitioner/tenant filed an application to set aside the ex parte order with an application to condone the delay in filing the application to set aside the ex parte order. Those applications were dismissed by the Rent Control Court. The tenant filed an appeal before the Appellate Authority against the order passed by the Rent Control Court in the application to set aside the ex parte order. In that appeal, the landlord filed an application under S. 12 of the Act to direct the tenant to deposit the admitted arrears of rent. Meanwhile, during the pendency of the appeal, the landlord took delivery of the building in execution of the order of eviction, since no stay was granted by the Appellate Authority in favour of the tenant. It is to be noted that the application was filed by the landlord under Section 12 of the Act before the Appellate Authority in 2014, much after the delivery of the building was taken by the landlord. The Appellate Authority directed the tenant to deposit the admitted arrears of rent till the date of delivery, which comes to Rs. 2,03,000/-. The tenant raised a contention that Rs. 3,00,000/- paid as advance is remaining with the landlord. The Appellate Authority held that only if the tenant makes an endorsement on the Memorandum of Appeal that he does not intend to proceed with the appeal, the tenant would be entitled to adjust the arrears of rent as against the advance amount of Rs. 3,00,000/-. The order passed by the Appellate Authority is under challenge in this O.P.(RC) filed by the tenant. The question which arises for consideration in this Original Petition is whether an application under S. 12 of the Act is maintainable before the Appellate Authority in an appeal filed by the tenant against an order dismissing his application to set aside the ex parte order of eviction. Another incidental question also arises for consideration, namely, even if an application under S. 12 is maintainable in such a case, whether it is maintainable at a stage after effecting delivery.

2. The learned counsel for the petitioner relied on the decision of the Division Bench in Sulaiman Sahib v. Mohammed Moosa (2003(2) KLT 1058).

3. To resolve the question involved in the O.P. (RC), it is apposite to extract S. 12 of the Act. S. 12 reads thus:--

"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 Section 11, shall be entitled to contest the application before the Rent Control Court under that section, or to prefer an appeal under section 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 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.

(2) 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):

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