An application under Section 12 of the Kerala Buildings Act is not maintainable in appeals concerning orders passed under Section 12(3), confined solely to eviction under Section 11.

O R D E R

Abdul Rehim, J:

A Division Bench of this court, through its order dated

20-03-2018, referred the above case to be heard by a Full Bench, on the question regarding maintainability of an application filed under Section 12 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for short) in an appeal filed against an order passed under (3)

of the Act.

2. Brief facts of the case are that, the landlord instituted a Rent Control Petition seeking eviction of the tenant, on the grounds enumerated under Sections 11 (2) (b), 11 (3) and 11 (4) (v) of the Act. Tenant resisted the petition by filing objections. During pendency of the Rent Control Petition, the landlord filed an interim application under Section 12 of the Act, seeking direction against the tenant to deposit the admitted arrears of rent. The Rent Control Court passed an order under (1) directing the tenant to pay the admitted arrears, within the date stipulated thereunder. The tenant failed to make deposit / payment of the admitted arrears. The landlord thereupon filed another application seeking orders under sub-section (3) of of the Act. The said application was allowed and the Rent Control Court stopped all further proceedings before it directed the tenant to put the landlord in possession of the building. The tenant challenged the said order in appeal before the Rent Control Appellate Authority. In the appeal, the landlord filed an interim application seeking order directing the appellant / tenant to deposit the admitted arrears of rent. The Appellate Authority allowed the said application and the tenant was directed to deposit the admitted arrears, within one month. Since the tenant failed to comply with the direction, the Appellate Authority disposed of the appeal passing an order as follows;

“Appellant directed to put respondent in possession of the petition schedule building within one month as the direction in the order dated 09-03-2017 in IA No.5136/2016 is not complied.”

The said order is under challenge in the above Rent Control Revision Petition, filed under Section 20 of the Act.

3. The Revision Petitioner / tenant contended that the application filed by the landlord before the Appellate Authority under Section 12 of the Act was not maintainable since the appeal was filed against an order passed by the Rent Control Court under (3) of the Act. In support of the said contention, reliance was placed on the Division Bench decisions of this Court inSulaiman Sahib V. Mohemmed Moosa ( 2003 (2) KLT 1058 ) and in Mohammed Shameer V. Ashokan ( 2015 (1) KLT 396 ). It was contended that the wordings in (1), “an appeal under Section 18 against any order made by the rent control court on the application …....” (emphasis supplied) refers only to an application for eviction filed under Section 11 of the Act, and therefore (1) would not apply to an appeal arising from any other order passed by the Rent Control Court, including an order passed under (3) of the Act. Therefore it is argued that, in the case at hand, the application filed by the landlord before the Appellate Authority under of the Act, was not maintainable.

4. Per contra, learned counsel appearing for the respondent / landlord contended that, the question as to whether an application under Section 12 is maintainable in an appeal filed from an order passed under (3) of the Act, did not directly arise for consideration in the decisions cited above. In both the decisions cited above the appeals were filed from ex- parte orders of eviction passed under Section 11 of the Act and not from any order passed under (3). It was argued that, the object behind the enactment of is to require the tenant to deposit, during pendency of the proceedings, the admitted arrears of rent and to continue to pay the rent which may subsequently fall due in respect of the demised premises, until the proceedings before the Rent Control Court or the Appellate Authority is