Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Ker) 225

IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANIL K.NARENDRAN, P.G. AJITHKUMAR, JJ.
K.V.Shiraz – Appellant
Versus
Binny Emmatty, S/o Emmatty Joseph – Respondent
O.P.(RC) No.72 of 2022
Decided on : 01-04-2022

Advocates:
Advocate Appeared:
For the Appellant : REJI GEORGE, NASEER MOIDU, BINOY DAVIS, SAISANKAR.S
For the Respondent: P.G.JAYASHANKAR, P.K.RESHMA, REVATHY P. MANOHARAN, S.RAJEEV, SAJANA V.H.

Point of Law: Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court.

Headnote:
Constitution of India, 1950 - Article 227 - Kerala Buildings (Lease and Rent Control) Act, 1965 - Section 11, 11(2)(b), 12, 12(1), 12(3), 12(4), 18 - Payment or deposit of rent during pendency of proceedings for eviction - Seeking eviction of tenant from petition schedule building on ground of arrears of rent - whether any interference is warranted on order of Rent Control Court in I.A. in R.C.P, which is one issued by Rent Control Court invoking provisions under Section 12(1) of Act – No interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law – Para 15.
Finding of the Court:
Petitioner-tenant has not chosen to contest Rent Control Petition by filing counter - Tenant has not even filed an application to set aside order, whereby he was set exparte - Rent Control Court recalled order, since same happened to be passed in absence of tenant. However, order, whereby tenant was set exparte, is not yet recalled. When tenant has not chosen to contest R.C.P. and continues to be exparte, Rent Control Court committed a manifest error in passing an order in I.A., invoking provisions under Section 12(1) of Act.
Result: Original petition is allowed

Judgement Key Points

Key Points: - A tenant who does not contest the Rent Control Petition or file to set aside an ex parte order cannot contest the eviction application under Section 11 or appeal under Section 18 unless rent and arrears are paid or deposited as required by Section 12(1) (!) (!) (!) (!) . - The Rent Control Court may pass an order under Section 12(1) during pendency of eviction proceedings only if the tenant has paid or deposited all admitted arrears and continues to pay future rent as stipulated (!) (!) (!) (!) . - Interference under Article 227 is not warranted unless the lower court or tribunal commits a manifest error, or the reasoning is palpably perverse or unreasonable, or the decision conflicts with settled principles of law (!) (!) (!) .

What is the right of a tenant regarding eviction when they have not contested the Rent Control Petition or set aside the ex parte order?

What is the condition for the Rent Control Court to pass an order under Section 12(1) of the Act during pendency of eviction proceedings?

What error by the Rent Control Court would warrant interference under Article 227 of the Constitution?

JUDGMENT :

Anil K. Narendran, J.

The petitioner is the respondent-tenant in R.C.P.No.97 of 2020 on the file of the Rent Control Court (Munsiff), Thrissur, a petition filed by the respondent herein-landlord under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule building on the ground of arrears of rent. In that Rent Control Petition, the landlord filed I.A.No.2 of 2021, an application under Section 12 of the Act, seeking an order directing the tenant to remit admitted arrears of rent and continue to pay rent for the subsequent period, during the pendency of that eviction proceedings. Despite receipt of notice, the tenant did not appear before the Rent Control Court. On 12.11.2021, the tenant was set exparte. Thereafter, on 20.11.2021, the Rent Control Court allowed I.A.No.2 of 2021, by directing the tenant to pay the admitted arrears of rent within a period of four weeks from that order, which is one passed under Section 12(1) of the Act. On 14.12.2021, the Rent Control Court recalled that order on noticing that the order dated 20.11.2021 in I.A.No.2 of 2021 was one passed in the absence of the respondent.

2. As borne out from the pleadings in this original petition, on coming to know about the order dated 20.11.2021 of the Rent Control Court in I.A.No.2 of 2021, the tenant filed a copy application for obtaining certified copy of that order. That application was not considered, since none has filed vakkalath for the respondent-tenant in R.C.P.No.97 of 2020. Therefore, a counsel filed vakkalath for the respondent-tenant. On 14.12.2021 the Rent Control Court recalled the order dated 20.11.2021 in I.A.No.2 of 2021, since the same happened to be passed in the absence of the tenant and listed the matter to 21.12.2021, for counter. On 21.12.2021 and thereafter on 03.01.2021 there was no representation for the tenant. On 05.01.2022, the Rent Control Court passed Ext.P4 order, whereby I.A.No.2 of 2021 stands allowed under Section 12(1) of the Act, by directing the tenant to deposit admitted arrears of rent for the period from July, 2019, with 6% interest per annum from the date of default till the date of petition, within a period of four weeks from the date of that order. Though the name of the counsel who filed vakkalath for the tenant is shown in the headnote of Ext.P4 order, a reading of the said order would make it explicitly clear that, on 05.01.2022 the tenant was not represented by counsel and the Rent Control Court passed that order after hearing the counsel for the landlord.

3. Challenging the order dated 05.01.2022 of the Rent Control Court in I.A.No.2 of 2021 in R.C.P.No.97 of 2020, the petitioner-tenant is before this Court in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India.

4. On 23.03.2022, when this original petition came up for admission, this Court issued notice on admission to the respondent. The petitioner was also permitted to take out notice to the respondent through his counsel before the Rent Control Court, Thrissur, where R.C.P.No.97 of 2020 is pending consideration.

5. The respondent has filed a counter affidavit opposing the reliefs sought for in this original petition.

6. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlord.

7. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P4 order dated 05.01.2022 of the Rent Control Court in I.A.No.2 of 2021 in R.C.P. No.97 of 2020, which is one issued by the Rent Control Court invoking the provisions under Section 12(1) of the Act.

8. Section 12 of the Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per Section 12(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

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