Nandakumar T.P vs Rajesh George

P.G. Ajithkumar, J.

The respondent-tenant in R.C.P.No.203 of 2019 on the file of the Rent Control Court (Additional Munsiff), Ernakulam, has filed this Original Petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. He challenges the order of the Rent Control Court in I.A.No.1 of 2020 in R.C.P.No.203 of 2019, whereby the petitioner was directed to remit arrears of rent admitted to be due amounting Rs.8,30,000/- along with interest at the rate of 6% interest within 30 days from the date of that order.

When this matter came up for admission, on 19.07.2022, notice was ordered to be served on the respondent. The respondent entered appearance through his learned counsel.

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

I.A.No.1 of 2020 in R.C.P.No.203 of 2019 was filed by the respondent-landlord invoking the provisions under Section 12 of the Kerala Buildings (Lease and Rent Control) Act, 1965, alleging that the petitioner defaulted payment of rent since 01.11.2017. The rent was said to be at the rate of Rs.11,500/- and service charge of Rs.900/-.

The petitioner filed counter statement disputing maintainability of the said petition. He contended that although he had liability to pay the rent as claimed by the respondent, having made payment of Rs.26 lakhs to the respondent through bank transfer during the period from 09.05.2018 to 07.07.2018 and also another sum of Rs.8 lakhs on 30.06.2019, he did not have the obligation to pay rent. He contended that the said amounts were paid as advance sale consideration on the understanding that the petition schedule building and the land appurtenant thereto would be sold to the petitioner for Rs.75 lakhs but, on account of the delay in the performance of the contract for sale, parties mutually agreed that the amounts paid would be treated as panayam and its interest would be appropriated towards rent. Thus, the petitioner denied the default in payment of rent.

The Rent Control Court after hearing both sides found that there was no specific denial of the liability to pay rent by the petitioner, and therefore, the petitioner was liable to pay arrears of rent admitted to be due. Accordingly, the impugned order was passed on 22.12.2020.

The learned counsel appearing for the petitioner would contend that the liability to pay rent after making payment of Rs.34 lakhs to the respondent was subsumed by the interest that would accrue on such payment. Receipt of Rs.26 lakhs and also Rs.8 lakhs on 30.06.2019 is an admitted fact, and therefore, it is contended that the Rent Control Court should not have held that there was admission of arrears of rent. In view of that matter, the learned counsel would contend that the order dated 22.12.2020 is liable to be set aside. It is also contended that the Rent Control Court after holding a roving enquiry had passed the said order, which is not contemplated under Section 12(1) of the Act. For that reason also the order is said to be vitiated.

The learned counsel appearing for the respondent, on the other hand, would contend that the petitioner filed this Original Petition without disclosing the true facts and for that reason itself, it is liable to be dismissed in limine. It is pointed out that the petitioner filed R.C.A.No.2 of 2021 challenging the impugned order before the Rent Control Appellate Authority (I Additional District Judge), Ernakulam, and when that appeal was dismissed as not maintainable, he filed R.C.Rev.No.174 of 2021 before this Court, which was also dismissed as not maintainable. Thereafter, an order under Section 12(3) of the Act was passed by the Rent Control Court on 27.03.2021, but without challenging that order, the petitioner has now filed this Original Petition, which is impermissible. It is contended that the remedy of the petitioner is to file an appeal challenging the order under Section 12(3) in which correctness of order under Section 12(1) of the Act can also be questioned. Without resorting to the statutory remedy, the petitioner has come up with the present petition, invoking the supervisory jurisdiction of this Court, which is not liable to be entertained.

It is not in dispute that the petitioner is a tenant in the petition schedule building. Payment of Rs.34 lakhs by the petitioner to the respondent is also undisputed. The petitioner raised the contention that such a payment was made towards part of the sale consideration, and since there occurred delay in completion of the process of sale, the amount was agreed to be treated as security (panayam) and its interest to be subsumed towards the rent. Therefore there is no arrears of rent. Under Section 12 of the Act, the obligation of the tenant is only to make payment of the arrears of rent admitted to be due. It is accordingly contended that since there is no arrears of rent, Section 12 does not have application.

In the order of this Court dated 02.12.2021 in R.C.Rev.No.174 of 2021 filed by the petitioner earlier, the objective of Section 12 of the Act was mentioned in the following words,

“9. Section 12 of the Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per subsection (1) of Section 12, 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 the Rent Control Court under that Section, or to prefer an appeal under Section 18 against any order made by the Rent Control Court on the application, unless he has paid or pays to the landlord, or deposits with the Rent Control Court or the Appellate Authority, as the case may be, all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. As per sub-section (2) of Section 12, the deposit under sub-section (1) shall be made within such time as the court may fix and in such manner as may be prescribed and shall be accompanied by the fee prescribed for the service of notice referred to in sub-section (4). As per the proviso to sub-section (2), the time fixed by the court for the deposit of the arrears of rent shall not be less than four weeks from the date of the order and the time fixed for the deposit of rent which subsequently accrues due shall not be less than two weeks from the date on which the rent becomes due.

As per sub-section (3) of Section 12 of the Act, if any tenant fails to pay or to deposit the rent as aforesaid, the Rent Control Court or the Appellate Authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building.

After considering the purport of the provisions aforesaid and the principle laid down by this court in Sidharthan v. Hassankutty Haji [1994 (2) KLT 419], it was held in the order dated 02.12.2021 in R.C.Rev.No.174 of 2021 that,-

“The appeal was directed against a procedural order, which only directed the tenant to pay the arrears of rent or to show cause why an order under Section 12(3) should not be passed directing the tenant to put the landlord in possession. It is not a final order nor does the order affect any right or liability of any party. The Division Bench held that the dismissal of the appeal by the Rent Control Appellate Authority was therefore proper and accordingly, the Division Bench sustained the same, though for different reasons.”

Accordingly, the finding of the Appellate Authority that the appeal was not maintainable was confirmed. R.C.Rev.No.174 of 2021 was also therefore dismissed. The petitioner then requested to reserve his right to challenge the order dated 22.12.2020 in I.A.No.1 of 2020 in R.C.P.No.203 of 2019 by filing an Original Petition under Article 227 of the Constitution of India. It was observed that dismissal of R.C.Rev.No.174 of 2021 would not stand in the way of the petitioner filing an original petition under Article 227 of the Constitution of India in the matter.

Now, the question is can, in the light of the said observations of this Court, this petition be entertained without considering the subsequent developments. The petitioner did not immediately file any petition to challenge the order dated 22.12.2020. Instead, I.A.No.1 of 2020 was allowed to reach its logical conclusion. Accordingly, on taking into account the fact that the petitioner did not make payment of the arrears of rent, the Rent Control Court on 27.03.2021 ordered to stop the proceedings in the R.C.P and directed the petitioner to surrender vacant possession of the petition schedule building within 30 days as provided under Section 12(3) of the Act.

Once such an order is passed, the remedy available for the petitioner is to file an appeal under Section 18(1)(b) of the Act. He, without doing so, has filed this Original Petition. Of course, the jurisdiction of this Court under Article 227 of the Constitution of India is wide enough to consider the correctness and legality of the impugned order, which is one passed under Section 12(1) of the Act. But when an order under under Section 12(3) of the Act is already passed, it is undesirable to entertain an original petition under Article 227 of the Constitution of India, unless the facts and circumstances are such that there would occur total injustice to the parties on account of the wrong exercise of jurisdiction and perversity of the order in question.

It is not as if the petitioner has no other remedy now to challenge the impugned order which is one under Section 12(1) of the Act. In Koyakkanari Sivadasan v. K.K.Nirmala [2022 (3) KHC 375] this Court held that in an appeal filed under Section 18(1)(b) of the Act challenging an order under Section 12(3), the legality and correctness of the order passed under Section 12(1) of the Act can also be called in question.

When such statutory remedy is available to the petitioner, he ought to have resorted to that remedy of filing an appeal to challenge the order dated 27.03.2021 passed by the Rent Control Court under Section 12(3) of the Act and in the appeal to question the correctness of the impugned order. Without doing so, he has filed this Original Petition after a long delay from the date of dismissal of R.C.Rev.No.174 of 2021 on 02.12.2021. Such a long delay in approaching this Court also tells upon the bona fides of the petitioner. Not only that, the petitioner did not disclose in the Original Petition the details of earlier proceedings before this Court and also regarding the order passed under Section 12(3) of the Act. That amounted to suppression of material facts.

This Court in Radhakrishnan C. v. Sundaran [2017 (4) KLJ 440] considered the consequence of suppression of material facts by a party to a proceedings. It was held,-

“13. The petitioner/defendant, who had approached the Sub Court with unclean hands, suppressing material facts from the notice of the said court, when the proceedings in E.P.No.218/2013 are about to reach its finality, does not deserve any sympathy or indulgence of the court. Any leniency shown to such persons would result in giving premium to persons, who committed fraud on the court, since suppression of a material facts from the notice of the court would amount to fraud on the court.”

The above reasons dis-entitle the petitioner from invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

The learned counsel for the petitioner drew our attention to clause 4(c) in the agreement entered into between the petitioner and the respondent dated 07.04.2019, a copy of which is made available to our perusal. Clause 4(c) enables the respondent-landlord to deduct the monthly rent due from the petitioner-tenant from the amount of Rs.26 lakhs that was already paid by the petitioner to the respondent. That is, however, a matter to be considered by the Appellate Authority if an appeal is duly instituted against the order under Section 12(3) of the Act, in which the legality of an order under Section 12(1) can also be questioned. Since this Original Petition is found not maintainable, we are unable to consider that contention.

The learned counsel appearing for the petitioner further contended that an order under Section 12(1) of the Act is an order deciding right of the parties, and therefore, it is appealable under Section 18(1)(b) of the Act. In Ernakulam Wholesale District Co-operative Store E.122 v. Subramanyan [2014 (3) KLT 478], this Court held that,-

“14. xx xx An order passed by the Rent Control Court can be challenged before the Appellate Authority, if the order affects the rights or liabilities of the parties or puts an end to the proceedings or affects the defence of the parties or forbids a party from raising a contention in any other proceedings or forecloses at least some of the issues arising in the case. On the other hand, if the order passed by the Rent Control Court does not have such an effect but, it is only procedural in nature, the Courts have taken the view that such orders would not be appealable under Section 18(1)(b) of the Act.”

This court again in Sathyaseelan and others v. Chengot Abdul Samad and others [2021 (1) KLT 795] held that the phraseology employed in Section 18 of the Act that any person aggrieved by an order passed by the Rent Control Court may file an appeal will have to be understood as orders which substantially affect the rights of the parties. When considered in the light of the said observations, it can only be said that an order under Section 12(1) of the Act is not appealable. An order under Section 12(1) of the Act is a provisional one and it does not decide rights of the parties. Hence the said contention of the Learned Counsel for the Petitioner can only fail.

Taking all such aspects into account, we are of the view that this petition is devoid of any merit and the same is liable to be dismissed. Hence, this Original Petition is dismissed.