K.T.Sankaran, J.
The question involved in this Rent Control Revision is whether the Rent Control Court can strike off the defence of the tenant for non payment of admitted arrears of rent, instead of taking recourse to Section 12 of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act').
2. The respondent/landlady filed a Rent Control Petition against the petitioner/tenant under Sections 11(3) and 11(4)(ii) of the Act. The lease of the building was on 3.5.2005 fixing a monthly rent of ₹7,000/-. ₹50,000/- was paid as security deposit by the tenant. It was alleged by the landlady, a widow, that she wanted to settle at Thiruvananthapuram and to set up residence in the petition schedule building. The landlady also alleged that the tenant made alterations to the building, so as to reduce the value and utility of the building materially and permanently.
3. The tenant denied the bonafide need. He also denied the ground raised under Section 11(4)(ii) of the Act. The tenant runs tuition classes in English in the petition schedule building and also resides in that building. On 3.2.2010, the Rent Control Court passed an order directing the tenant to deposit the admitted arrears of rent and also to deposit the rent which subsequently fell due. No application was filed by the landlady under Section 12(1) of the Act. The Rent Control Petition was listed for trial on 1.4.2013. On that date, the Rent Control Court struck off the defence of the tenant on the ground that the tenant failed to deposit the admitted arrears of rent as ordered to be paid. Thereafter, the Rent Control Court allowed the Rent Control Petition on the merits. In the order of the Rent Control Court, the only discussion on the merits of the case is the following:
“7. On the basis of the above documents this court is of the view that the claim canvassed in the petition can be entertained. It is found that the petitioner is entitled to eviction under sub-sections 11(3) and 11(4) (ii) of the Kerala Buildings (Lease and Rent Control) Act.”
4. The order passed by the Rent Control Court has the characteristics of an ex-parte order.
5. The tenant challenged the order of the Rent Control Court in appeal before the Appellate Authority. The Appellate Authority directed the tenant to deposit the admitted arrears of rent. The arrears were not fully deposited. Therefore, the Appellate Authority passed an order under Section 12(3) of the Act. That order as well the judgment of the Appellate Authority were challenged by the tenant in R.C.R.Nos.124 and 125 of 2014. A Division Bench of this Court allowed the revisions as per the judgment dated 16.6.2014 and set aside the judgment passed by the Appellate Authority. The Rent Control Appeal was restored to file on condition that the tenant should deposit before the Rent Control Court the rent payable up to and inclusive of 31.12.2014. In compliance with the order in R.C.R.Nos.124 of 2014 and 125 of 2014, the tenant deposited the rent up to 31.12.2014 which includes the advance rent for a period of six months.
6. Thereafter, the Appellate Authority dismissed the Rent Control Appeal only on the ground that the tenant failed to deposit the admitted arrears of rent. The oral evidence of the landlady was also taken note of by the Appellate Authority, in spite of the fact that she was not cross examined on account of striking off the defence. The Appellate Authority did not consider the question whether the Rent Control Court was justified in striking off the defence of the tenant. The judgment passed by the Appellate Authority is challenged by the tenant in this revision.
7. Section 12(1) of the Act provides that 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. Such deposit should be made till the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. The consequence of non deposit of the admitted arrears of rent and the rent accruing thereafter is provided under sub-section (3) of Section 12, which reads as follows :
“(3) 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.”
8. In C.V.Xavier and others v. Francis Leonard Pappali (1975 KLT 542), a Division Bench of this Court considered the scope and ambit of Section 12(3) of the Act and held as follows :
“5. The provision in Section 12(3) precluding a tenant from prosecuting his defence to the petition for eviction precludes him from seeking an opportunity to be heard. It is in the nature of a penal provision which visits very serious consequences on the tenant. Normally any litigant whose rights would be affected by proceedings in court has, as a matter of course, a right to be heard in defence of his stand and the court is obliged to consider his case before any adjudication of the rights of parties is made by the court. Evidently a case where Section 12(3) operates is an exception to this rule, for, when circumstances justifying the application of that provision arises the consequences would be that irrespective of any defence that may have been urged by the tenant and irrespective of the availability of materials in proof of such defence the court has to pass an order for eviction. The proceedings ought not to be disposed of on the merits. It may appear that this is quite a drastic provision but evidently the purpose is to compel the tenant to deposit the rent in arrears as well as the recurring rent to the extent the tenant admits liability. Even so, safeguards may be necessary for, the inability to make a deposit of the arrears of rent and the recurring rent even to the extent admitted may be genuine and one which should not invite such drastic consequences. It is only fair that in that event the default may have to be excused. That power is given to the court under Section 12(3) by enabling the tenant to show sufficient cause to the contrary. Even in the proviso to Section 12(2) a safeguard is provided and that is that the order which the court may pass directing the tenant to deposit the arrears shall provide for a period of not less than four weeks for such deposit and in the case of arrears accruing due from time to time the period shall not be less than two weeks. Thus when Section 12(3) is sought to be applied a tenant is entitled to claim that he must have the benefit of the safeguards secured to him under the very provision namely, that he should be given an opportunity to show sufficient cause to the contrary. The opportunity must be reasonable and real. The requirement, the circumstances would amply bear out, is not an empty formality to be observed by the court. If the tenant is not given such an opportunity to show sufficient cause to the contrary an order passed under Section 12(3) would be unsustainable.
6. When a date has been fixed by a court for deposit of arrears of rent in terms of Section 12(2) of the Act, until the expiry of such date the tenant cannot be said to be in default. If he is not in default he cannot be expected to show sufficient cause to the contrary since that would arise only when he is in default and that would only be on the expiry of the period fixed for making the deposit by an order under Section 12(2) of the Act. The tenant is to show sufficient cause not when an order for eviction under Section 12(3) is passed but prior to that order. Therefore, the opportunity is to be given after the expiry of the time fixed for deposit of the arrears of rent but before the passing of the order under Section 12(3). There must be a reasonable interval sufficient for the tenant to show cause to the contrary. What would be reasonable opportunity is not possible of any precise definition and must be left to be decided on the facts and circumstances of each case. It goes without saying that on the language of Section 12(3) we have to read a duty on the part of the Rent Control Court which passes an order under Section 12(3) for eviction to consider whether there is sufficient cause to the contrary. If the court on considering this question finds that the tenant has not chosen to show sufficient cause to the contrary that may be sufficient consideration but where the circumstances indicate that the mind of the court had not adverted to this fact at all the order may not be justified with reference to Section 12(3) of the Kerala Buildings (Lease and Rent Control) Act.”
9. In the present case, the Rent Control Court did not provide an opportunity to the tenant to show sufficient cause as to why he did not make the payment within time. However, the defence was struck off by the Rent Control Court. A specific provision is available in the Rent Control Act to deal with the situation where the tenant fails to deposit the admitted arrears of rent. Without recourse to that procedure, the Rent Control Court cannot normally find out another procedure, however ideal it might be, and deal with the Rent Control Case without reference to the procedure provided in the Act. It is well settled that when a specific provision is made in the Code of Civil Procedure, the court cannot exercise its inherent power under Section 151 of the Code of Civil Procedure (see M/s.Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhayalal Bharghava and others (AIR 1966 Supreme Court 1899) and Cotton Corporation of India Ltd. v. United Industrial Bank Ltd. and others (AIR 1983 Supreme Court 1272). It is also well settled that while exercising the inherent power, the court should not overlook the statutory provision which makes specific provision for dealing with a particular situation. The exercise of inherent power should not nullify the specific provisions.
10. Section 23 of the Kerala Buildings (Lease and Rent Control) Act confers power on the Rent Control Court which are vested in a court under the Code of Civil Procedure, in respect of matters mentioned in clauses (a) to (k) therein. There is no provision in the Rent Control Act similar to Section 151 of the Code of Civil Procedure. Still for the purpose of dealing with the matters before it, the Rent Control Court may also exercise powers to secure the ends of justice or to prevent abuse of the process of the court and to effectively deal with the case, in the absence of any specific provision in that regard. In so far as non-payment of admitted arrears of rent is concerned, there is a specific provision, namely, Section 12. Drastic consequences are provided for non-payment of admitted arrears of rent without any sufficient reason. Without taking recourse to that procedure, the Rent Control Court was not justified in striking off the defence, particularly when no such power is specifically conferred on the Rent Control Court. It is true that Section 151 of C.P.C. can be invoked by the civil court to strike off the defence in certain circumstances. In Parukutty Amma vs. Thankamma Amma (1988(1) KLT 883), it was held that the inherent power under Section 151 can be invoked to strike off the defence, if the court feels that to meet the ends of justice, such a course is necessary, in the absence of any specific provision in the circumstances in which the inherent power is sought to be invoked. It was held that such a power inheres with the court from its very constitution as a court and that power is absolutely necessary in certain circumstances to meet the ends of justice.
11. In the case on hand, the Rent Control Court did not properly consider the merits of the case. The fact that the defence of the tenant was struck off does not mean that the Rent Control Court should not dispose of the application on the merits. It is well settled that even if the defendant in a suit is ex-parte, that does not mean that the suit should be decreed. The court can still find that the suit is not maintainable on the admitted or on the proved facts and dismiss the suit. In Haridas v. Madhavi Amma (1987(2) KLT 701), it was held thus :
“5...............As held in Chari Vijayan v. Achuthan Vasu (1973 KLT 849) the courts owe a duty to weigh the merits of the case and consider whether there is a case for granting a decree even when there is no contest by non appearance of the defendants. Attention to pleadings and evidence even in cases where the defendants do not appear is not only a healthy trend but also a duty cast on the court to decide whether the plaintiff has a good case to be decreed. Even in cases where the defendant remains ex-parte, decreeing the suit merely on that ground without looking into the pleadings and evidence may not be conducive to justice. Whether the claim is contested or not is not the real question. The question is whether the plaintiff presented a case entitling him to get a decree. For that purpose even in cases where the defendants remain ex-parte the court should insist at least on formal proof from the plaintiff as held in Kochuvelu v. Varkey (1968 KLT 462) and the judge is bound to look into pleadings and evidence.”
12. We are of the view that to secure the ends of justice, it is necessary to direct the Rent Control Court to dispose of the Rent Control Petition on the merits. At the same time, such a direction should not be issued without conditions. We are of the view that the tenant should be directed to deposit the rent payable till 30.6.2015 to enable him to get an opportunity to contest the case on the merits.
Accordingly, the order passed by the Rent Control Court and the judgment of the Appellate Authority are set aside and the Rent Control Court is directed to dispose of the Rent Control Petition on the merits as expeditiously as possible and at any rate before 30.6.2015. The tenant shall deposit the rent payable till 30.6.2015 in advance, on or before 13.2.2015. It is also made clear that the Rent Control Court shall not allow the parties to protract the case. If the tenant fails to deposit the rent up to and inclusive of 30th June, 2015 within the time stipulated above, the order passed by the Rent Control Court and the judgment passed by the Appellate Authority shall stand revived and the Rent Control Revision shall be treated as dismissed. The parties shall appear before the Rent Control Court on 10.2.2015.
K.T.SANKARAN JUDGE
csl
P.D.RAJAN JUDGE