Point of Law : Only thing is that the opportunity to be afforded to the tenant to show sufficient cause with respect to the failure to pay or deposit rent, as directed in Section 12(1) and (2), within the date stipulated, is not an empty formality.

ORDER :

Ajithkumar, J.

The respondent filed R.C.P.No.14 of 2019 before the Rent Control Court (Principal Munsiff-I), Kozhikode, seeking eviction of the petitioner-tenant under Section 11(2)(b), 11(3), 11(4)(ii) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. On 30.09.2019 that petition was allowed ex-parte and eviction was ordered. The petitioner filed an appeal under Section 18(1)(b) of the Act challenging the said order before the Rent Control Appellate Authority (Additional District Judge-I), Kozhikode. In that appeal, R.C.A.No.163 of 2019, the respondent filed I.A.No.1 of 2020 under Section 12 of the Act. Rent since January 2018 has been said to be in arrears. An order under Section 12(1) of the Act was passed on 22.12.2020 directing the petitioner to pay within 5 weeks the entire admitted arrears of rent and to continue to pay the rent for the subsequent months within 3 weeks from the date on which it becomes due. Arrears of rent was not paid and eventually an order under Section 12(3) of the Act was passed on 30.01.2021. That order is under challenge in this revision petition filed under Section 20 of the Act.

2. On 22.03.2021, this revision petition was admitted and notice was issued to the respondent. Execution of the order of eviction was stayed for a period of three months.

3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.

4. I.A.No.1 of 2020 in R.C.A.No.163 of 2019 was filed contending that the petitioner has defaulted payment of rent since January 2018 and that fact was admitted by her in the plaint she filed in O.S.No.156 of 2018 before the Principal Munisiff-I, Kozhikode. The rate of rent has also been admitted as Rs. 25,000/-per month. As on March 2020, in which month I.A.No.1 of 2020 was filed, the amount of arrears of rent was Rs. 6,25,000/-. Accordingly, the respondent sought to initiate action under Section 12 of the Act.

5. The petitioner filed a counter-affidavit contending as follows: The petition was filed by the husband of the respondent-landlady without her consent. The petitioner paid the rent to the respondent upto November, 2019 in the presence of her employee, Sri. Santhosh Kumar. Even earlier, she did not use to issue receipts. Since, entire rent was thus paid, the petition was not tenable.

6. The Appellate Authority considered the averments in the plaint in O.S.No.156 of 2018, a copy of which was produced along with I.A.No.1 of 2020 in the light of the rival contentions and concluded that rent from January, 2018 had been in arrears. The appellate authority for the purpose of deciding what would amount to ‘arrears admitted by the tenant to be due’ placed reliance on the decision in Sadique v. Mohammed Umair and others [2017 (3) KLT 759].

The observation of this Court in the decision was that expression admitted arrears applies only to the pre-litigation stage and, not to post-litigation stage. Following that, the Appellate Authority held that there is admitted arrears of rent. Also, the claim of the petitioner regarding payment of rent for the period after filing of the rent control petition has been regarded as a fib, in the absence of any receipt or other documents as envisaged in Section 9 of the Act.

7. The learned counsel appearing for the petitioner would contend that the order directing payment of arrears of rent to a tune of Rs.6,25,000/-passed in I.A.No.1 of 2020 was without considering the law on the point in its proper perspective and also without affording a further opportunity of offering her explanation. In the absence of admission by the petitioner in her objection, such an order should not have been passed. The order under Section 12(1) of the Act and also the order under Section 12(3) pronounced in quick succession were, therefore in total negation of the provisions in Section 12 of the Act. The learned counsel would submit that passing of the order of eviction without giving a reasonable opportunity h