The provisions in S.12 of the Act will apply only when the tenant contests the application before the Rent Controller under S.11 of the Act or while the tenant prefers an appeal and prosecutes the same before the Appellate Authority.

T.V. Ramakrishnan, J.

1. The question referred to us in this case is 'whether the proceedings by way of appeal by the landlords before the Appellate Authority should be taken to be a proceeding for eviction of the tenant for the purpose of S.12 of the Kerala Buildings (Lease and Rent Control) Act (for short 'the Act') and in such proceedings, whether the tenant is entitled to contest unless he pays all arrears of rent admitted by him'.

2. G. Viswanatha Iyer, J. has in a brief judgment categorically held in V.K. Ramaswamy Chettiar v. B. Krishna Arjunan (1979 KLT SN Page71) that the tenant can contest the appeal filed by the landlord before the Appellate Authority without making any deposit of arrears of rent Learned Judge has taken the above view holding that the point has been covered by the decision of the Supreme Court reported in Abdul Hameed Yousuff Sait v. Smt. Kalavathi (1968) II SCWR 618). While referring the matter, Sreedharan, J. (as he then was) doubted the correctness of the decisions of Viswanatha Iyer, J.

3. Brief facts necessary to be noted are thus: Petitioners-landlords of a building let out to the second respondent tenant sought recovery of the building on the grounds of arrears of rent and sublease. The Rent Control Court dismissed the petition finding against the petitioners on both the grounds. Petitioners preferred an appeal before the Appellate Authority under S.18 of the Act. In the appeal they moved I. A. No. 1964 of 1994 purporting to be one under S.12(3) of the Act praying for a direction to pay or deposit the admitted arrears of rent. The Appellate Authority ordered the tenants to pay the entire arrears till 1.8.1987 by its order dt 14.8.1987. The amount was not deposited by the tenants. Consequently, the Appellate Authority passed Ext. P4 order directing respondents 2 and 3 (the tenants and the alleged subtenant) to put the petitioners in vacant possession of the scheduled rooms on account of non compliance with the order passed under S.12(3) of the Act. Second respondent took up the matter in revision. The Revisional Court interfered with the order of the Appellate Authority holding that in an appeal preferred by the landlords against the order of the Rent Control Court the tenant cannot be compelled to pay arrears of rent invoking the provisions contained in S.12(3) of the Act relying upon B. Krishna Arjunan's case (supra) and passed Ext. P5 order. Petitioners have challenged the sustainability of Ext. P5 order and have prayed for quashing the same as illegal.

4. In Abdul Hameed Yousuff Sait's case (supra), the Supreme Court was considering a similar contention raised with reference to S.29 of the Mysore Rent Control Act (for short 'the Mysore Act') which is similar to S.12 of the Act. That was a case where the suit filed for eviction of a tenant was dismissed by the Trial Court and the appellate court and the landlord has taken up the matter in revision to the High Court of Mysore. The order challenged by the tenant before the Supreme Court was one passed by the High Court to put the landlord in possession of the building on the ground that the appellant had failed to pay the respondent or deposit in court the rent that became due during the pendency of the revision petition. The contention raised by the tenant was that the provision which empowers the High Court to stay all further proceedings and to make an order directing the tenant to put the landlord in possession of the premises will be attracted only in a case where the tenant fails to comply with S.29(1) of the Mysore Act. S.29(1) of the Mysore Act would apply only when a tenant contest the application filed by the landlord under S.21 of that Act before the Court as defined in S.3(d) of the Mysore Act or when he prefers or prosecutes an appeal or revision under S.48 or S.50 of that Act. As there is no case that the tenant had failed to comply with the requirements of S.29 when the matter was pending before the Munsiff's Court and si