The Supreme Court has held that a fresh application under Section 12(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965, is not mandatory in an appeal challenging an eviction order.

The Apex Court made such an observation while directing the tenant to hand over vacant physical possession of the shops in question to the appellants-landlords.

The Division Bench of Justice Rajesh Bindal and Justice Manmohan held, “The Respondent-tenant’s submission that in an Appeal challenging an eviction order under Section 12(3) of the Act, 1965 a fresh application under Section 12(1) of the Act, 1965 is mandatory, is contrary to the explicit language of Sections 12 and 18 of the Act, 1965. This Court is of the view that Sections 12(1) and 12(3) procedure is to be primarily followed by the Rent Controller.”

“In an appeal a fresh application under Section 12(1) of the Act, 1965 is not mandatory”, the order read.

Senior Advocate V. Chitambaresh represented the Appellant, while Senior Advocate P.B. Krishnan represented the Respondent.

Factual Background

Two shops located in Kochi were taken on a monthly rent basis by the Respondent-tenant from the Appellants-landlords. It was the case of the Appellants-landlords that the Respondent-tenant had not paid rent for the buildings. In the year 2020, the landlords filed two eviction petitions before the Rent Control Court, alleging that the tenant was in arrears of rent. A recovery suit was also filed by the landlords seeking recovery of the arrears of rent. The said suit was decreed for a cost totalling Rs 26,44,614. The said money decree was challenged by the Respondent-tenant by way of an appeal before the Kerala High Court, wherein initially a conditional stay order was granted for three months but as the condition to furnish security for the decretal amount was not complied with, the stay order was not extended.

Relying on the said money decree, the landlords filed an application for eviction of the Respondent-tenant on the ground of non-payment of arrears of rent under Section 12 (1). The Rent Controller passed an order under Section 12(1) of directing the Respondent-tenant to pay outstanding as well as future rent. Since the Respondent-tenant did not pay/deposit any amount in pursuance of the aforesaid orders, the Rent Controller directed that the Appellant landlord be put in possession of both the shops. The Respondent-tenant filed appeals and revision petitions. The Appellate Authority was directed to dispose of the appeal within four weeks. The appellants -landlords thus filed the Special Leave Petitions before the Apex Court.

Reasoning

The Bench explained that Section 12(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965, specifically stipulates that no tenant shall be entitled to contest either an eviction petition before the Rent Control Court or an Appeal before the Rent Control Appellate Authority unless he has paid or deposited with the Court, as the case may be, all arrears of rent admitted by the tenant to be due and continues to pay the rent which may subsequently become due. In the event of non-deposit/non-payment of rent without any sufficient cause, Section 12(3) empowers the Courts to stop all proceedings and make an order directing the tenant to put the landlord in possession of the building. Since the power to evict under Section 12(3) is by operation of law, not even an application for eviction is required to be filed by the landlord, the Bench clarified.

“This Court is further of the view that as the Rent Control Appellate Authority is not the Court of first instance, it only tests the exercise of jurisdiction and power by the Rent Control Court. The Appellate Authority is not required to re-determine the issue of default or the outstanding amount of rent. It has only to examine as to whether the Rent Control Court has erred in law or in facts and/or has exercised its jurisdiction in accordance with law”, it added.

The Bench further noted, “Though the power of the Appellate Authority cannot be put in a straitjacket, yet normally speaking, a tenant must be directed to pay/deposit the amount determined by the Rent Controller before an Appeal is heard by the Appellate Authority and that too when a money decree has been passed by a Civil Court which has not been stayed by the Appellate Court. No doubt, a money decree can be stayed in exceptional cases like where the decree is egregiously perverse or riddled with patent illegalities or facially untenable and/or such other exceptional causes similar in nature.”

It was noticed that in the case at hand, no exceptional case was found by the Appellate Court. The Bench was of the view that if the High Court’s reasoning in the impugned order (that the Section 12 procedure has to be repeated before the Rent Control Appellate Authority) was accepted, it would not only be contrary to the spirit of the statute in question. The Bench explained that in Manik Lal Majumdar & Ors. vs. Gouranga Chandra Dey & Ors., (2005) it is only stated that the Rent Control Appellate Authority while hearing the Appeal has the discretion either not to proceed with the hearing till the amount directed by the Rent Controller is deposited or to pass any interim order in favour of the Respondent-tenant, including dispensation of payment of arrears of rent. “Upon careful reading of the three Judges’ judgment in Manik Lal Majumdar & Ors. (supra), this Court is of the opinion that the said judgment cannot be a basis for the proposition that the entire procedure under Section 12 has to be repeated before the Rent Control Appellate Authority”, it added.

Reference was also made to Zeenath Ibrahim v. Joy Daniel (2024) where the Full Bench of the Kerala High Court has clarified that an application under Section 12(1) of the Act, 1965 is maintainable in an Appeal filed unders Section 18 of the Act, 1965 challenging any type of order passed by the Rent Control Court during the course of the proceedings under Section 11 of the Act, 1965.

Coming to the facts of the case, the Bench noted the admitted position that the Respondent-tenant was occupying two premier shops in the heart of Kochi, Kerala, without paying a farthing over the last five years and that too despite a money decree being passed without any stay in appeal. As per the Apex Court, the Division Bench of the High Court, by way of the impugned order, had arbitrarily and contrary to the intent and object of the 1965 Act set aside the order of the Appellate Authority.

The Bench thus directed the Respondent-tenant to hand over vacant physical possession of the shops in question to the Appellants-landlords on or before December 31, 2025 provided he filed an undertaking within two weeks to pay the outstanding arrears and hand over peaceful physical possession by the aforesaid date.

Cause Title: P.U. Sidhique v. Zakariya (Neutral Citation: 2025 INSC 1340)

Appearance

Appellant: Senior Advocate V. Chitambaresh, AOR Karthik S.D., Advocates Tom Joseph, C. Govind Venugopal

Respondent: Senior Advocate P.B Krishnan, AOR Sarath S Janardanan, Advocate Anila Tharakan Thomas

Click here to read/download Judgment




Justice Rajesh BindalJustice Manmohan

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.