Mohamed Khani Rowther vs Thaivana Ammal and Another

Raman Nayar, J.—In my view the, "such other period as may be allowed by the Rent Control Court" of section 11 (2)(b) of the Kerala Buildings (Lease and Rent Control) Act XVI of 1959 is a period to be allowed by the order referred to immediately before those words (namely, the order of eviction), in lieu of the one month''s period allowed by the section itself, and I think there is here a "different intention" excluding the operation of section 13 of the Interpretation and General Clauses Act, 1125 (Section 14 of the General Clauses Act, 1897). The use of the expression, "other period" instead of, "further period" or words to that effect is significant, for, it contemplates a substitution of the time allowed by the section and not an enlargement or other modification. And, if the time allowed by the section is to be displaced, that must be done when the order for eviction is made; else the time allowed by the section comes into play. A reading of section 14 of the Act makes the position clear. An order u/s 11 shall be executed by the Munsiff after the expiry of the time allowed therein. If nothing is said in the order then the one month''s time allowed by section 11 (2)(b) automatically attaches to the order. If any other period is to be regarded as the time allowed by the order then the order itself must state the period-that cannot be done by a subsequent order. If the Rent Control Court were to prescribe a different period by a subsequent order that would not be a period allowed by the order made u/s 11; and, under the terms of section 14 the Munsiff would be bound to execute the order made u/s 11 on the expiry of the time allowed therein. There is no provision for the stay of execution pending an application for time for making a deposit u/s 11(2)(b), and, consequent to the deposit, for an order vacating the order of eviction. Therefore, as I have said, the Munsiff would be bound to execute the order for eviction and I do not think section 11(2)(b) contemplates relief against forfeiture and restitution after the order for eviction has actually been executed. Reading section 11(2)(b) and section 14 together, it seems to me that what the statute contemplates is that the order of eviction should itself allow a time for eviction, on the expiry of which alone the order can be executed. That would be the one month''s period allowed by section 11(2)(b) itself "or such other period as may be allowed by the Rent Control Court" under that section. It follows that "the such other period" must be prescribed by the order of eviction itself and not by any other order. If this were not so it would mean that long after an order for eviction has been made, even long after it has been executed, the Rent Control Court could give time for depositing the arrears of rent (not even perhaps up to date but only up to the date of the application for eviction) and, on such deposit would be bound to vacate the order of eviction. This would be most unreasonable and I should think that if section 11(2)(b) were really intended to empower the Rent Control Court to extend or enlarge (from time to time, as and when occasion arose) the one month''s period allowed therein, it would have been very differently worded (c. f. section 148 of the CPC and the proviso to section 8(3) of Kerala Act XXXI/58-with regard to the latter I might say that a Division Bench of this court has held in 1960 K. L. J. 213 that no extension can be granted after the expiry of the time allowed by the statute).

The order of eviction in this case was made on 21-12-1957 u/s 7(2) of Madras Act XXV of 1949, and, by reason of the combined operation of section 30 of Kerala Ordinance III of 1959 which repealed that Act and section 36 of Kerala Act XVI of 1959 which repealed the Ordinance, must be regarded as an order made by the Rent Control Court u/s 11(2) of Kerala Act XVI of 1959, although this would have been clearer had section 36(2) of Kerala Act XVI of 1959 included within the scope of its fiction not merely things done in exercise of the powers conferred by or under the Ordinance but also things deemed to have been so done since the fiction created by section 30 of the Ordinance died with it. The Madras Act contained no provision similar to section 11(2)(b) of Kerala Act XVI of,1959-there relief against forfeiture can be given as u/s 114 of the Transfer of property Act only before an order of eviction is made-and naturally the order of eviction allowed no time for the deposit of the arrears of rent for relief against forfeiture. The present order vacating the order of eviction was made by the Rent Control Court two years later on 23-12-1959, on an application made by the tenant on 10-7-1959, after the application had been repeatedly adjourned for the deposit of the arrears. The Rent Control Court purported to do so u/s 11(2)(b) of Kerala Act XVI of 1959 under which provision the application was professedly made. It follows from, what I have already said that its action is not authorized by the section and was without jurisdiction. The District Court was therefore right in setting aside the Order of the Rent Control Court in exercise of its powers of revision u/s 20 of Kerala Act XVI of 1959, and this petition under Articles 226 and, 227 of the Constitution against the order of the District Court must fail.

My attention has been drawn to section 23(1) of Kerala Act XVI of 1959 which has the effect of attracting section 148 of the CPC and it is said that this empowers the Rent Control Court to act as it did. But section 148, CPC applies only to acts prescribed or allowed by the Code whereas the deposit for which time was allowed by the Rent Control Court is an act prescribed or allowed not by the Code but by Kerala Act XVI of; 1959. To say that section 148 of the Code must be adapted by substituting the words "Kerala Act XVI of 1959" for the words "the Code" appearing in that section would be to rewrite section 23 of Kerala Act XVI of 1959.

Even if the construction placed by me on section 11(2)(b) and section 23(1) of Kerala Act XVI of 1959 be wrong I do not think that the Rent Control Court should have vacated the order of eviction on a deposit made two years after the order when the statute itself says that one month is the normal time. That the order of eviction was unsuccessfully taken in appeal and revision and that the revision petition was dismissed only on 12-6-1959 seems to me irrelevant since section 11(2)(b) expressly states that the deposit is to be made within one month of the date of the order of the Rent Control Court and gives no scope for the argument that the date of the dismissal of the revision petition is the material date. If a tenant pursues an appeal or a revision without seeking relief u/s 11(2)(b), he takes the risk of the appeal or revision being decided against him and cannot thereafter seek relief u/s 11(2)(b) after the time for that has elapsed.

In any view of the matter I do not think that the order of the District Court has caused such manifest injustice as to persuade me to interfere under Articles 226 or 227 of the Constitution. I dismiss the petition with costs.