Tenant to be evicted and not entitled to contest any eviction proceeding unless he pays or deposit all admitted arrears of rent. That is unless the tenant pays all arrears of rent that is admitted and continues to pay rent, he cannot contest the eviction petition, and he can be evicted if he fails to pay arrears within the time allotted by the court.
12. (1) 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.
(2) 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):
Provided that 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.
(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 landlord in possession of the building.
(4) When any deposit is made under sub-section (1), the Rent Control Court or the appellate authority, as the case may be, shall cause notice of the deposit to be served on the landlord in the prescribed manner and the amount deposited may, subject to such condition as may be prescribed, be withdrawn by the landlord on application made by him to the Rent Control Court or the appellate authority in that behalf.
1. Scope
A tenant cannot contest an eviction proceeding unless he deposits or pay all arrears of rent admitted to be paid upto the date of payment and continues to pay or deposit, as the case may be, until the termination of the proceedings in the Rent Control Court and the tenant cannot prefer an appeal before an appellate authority unless he pays or deposit the admitted rent.
The Special restriction for contest is applicable only to the Section 11 proceedings. The section 12 bars the defenses and other remedies of a tenant who fails to make payments of rent due from him to the prosecuting landlord for eviction on any of the grounds under Section 11. The mandate “shall not be entitled to contest” would clear the doubt, when it is read with the words “unless he has paid or pays to” that unless the tenant fulfills his primary duty, all his rights are extinguished.
The court should act with great caution before striking out the defense of a tenant under this provision. The provisions should not be given any wider operation than that could have been strictly intended by the legislature.
The stage of striking off the defence is before the hearing of the case is taken up and it cannot, therefore, be referable to the result in the case which remains unknown at that stage.
The disability of the tenant contemplated in section 12 follows the proceedings before a Civil Court under Section 11(1) second proviso. The presence of this Section does not bar the remedy available to the landlord to file a suit for arrears of rent in a Civil Court. Section 12 (3) of the Act is not discriminatory and violative of Article 14 of the Constitution of India. The tenant is bound to deposit the entire arrears of rent at the rate admitted by them. Any claim for setoff will invariably involves enquiry which is not warranted under section 12. When the relationship of landlord and tenant is disputed, the deposit of admitted arrears is not contemplated.
This section has application only during a petition for eviction under section 11. This section cannot be put into service in a petition for fixation of fair rent under section 5. Fair rent fixed by Rent Control Court, against which tenant filed appeal. Appellate Authority has no jurisdiction either to order eviction or deposit of rent under S.12 of the Act.
2. Tenant not entitled to contest
The tenant is not entitled to contest the original petition unless he deposit and continue to deposit the arrears of rent which is admitted by him. The legislature considered payment of rent to the landlord is considered as the primary duty of the tenant. Unless that obligation is fulfilled the tenant is not given right to contest the petition.
Under S.12, the petitioner is entitled to contest the petition only if he deposits the arrears of rent. If he fails to do that, he has no right to contest the petition: the result is that the petition will go uncontested and end in an order for eviction against the petitioner. Once the petition came to a close and passed an order for eviction, there was no further occasion or right for the petitioner to contest the petition for eviction on depositing the arrears of rent since there was no petition to contest. If at all he could reopen the petition, it could be only by way of review under O.47 R.1(1) of the Code of Civil Procedure read with S.23(k) of the Buildings (Lease and Rent Control) Act.
3. Arrears of rent admitted
The word ‘rent’ or ‘admitted arrears’ are not defined in the Act. Section 12 proceedings can be involved against the tenant only when the arrears of rent is admitted. The deposit contemplated under Section 12 is not the amount determined after adjudication, but is of the rent admitted by the tenant.
Since the Act 2 of 1965 does not define the word admitted or does not distinguish the same from the meaning given to the word “admission” of Section 17 of the Indian Evidence Act, the meaning put to it under the Indian Evidence Act has to be adopted here. Section 17 of the Indian Evidence Act reads as follows: –
The admission contemplated under Section 12(1) of the Act 2 of 1965 need not be an admission in the proceedings itself.
Admissions must be clear, and unambiguous if they are to be used against the person making them. They are substantive evidence by themselves in view of Sections 17-21 of the Evidence Act, though they are not conclusive proof of the matters admitted. So the arrears of rent admitted need not be actual amount to be paid as in respect of the building by the tenant. The admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether such party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. An admission is a strong piece of evidence, admissible and binding unless explained away. Section 17 of the Evidence Act does not make any distinction between an admission made by a party in a pleading and other documents. An admission by a party in plaint signed and verified by him may be used as evidence against him in other suits, though it cannot be regarded as conclusive. Admission of a claim is a positive act and it cannot be inferred from any negative or indifferent attitude of the person concerned.
Mere silence does not amount to admission. The statements made in affidavit filed in another case containing admissions may amount to be admissions.
Deposit contemplated under S.12(1) is the rent admitted by tenant. It is not of the amount which is found to be due from the tenant after an adjudication of the dispute between the landlord and the tenant as to the actual amount due as rent. The basis for determining what is the admitted rent is the written statement or objection filed by the tenant. Tenant has obligation to pay or deposit only arrears of rent which are legally recoverable from him. He is not liable to deposit or pay time barred rent under this section.
The liability of the tenant under section 11(2) c is only to pay or deposit the rent due at the time of notice and he need not deposit arrears of rent up to the date of petition and the rent which accrues due thereafter during the pendency of the proceedings. In a case where an order of eviction has been passed under S.11 (2) (b) of the Act, S.11 (2) (c) alone is attracted and S.12 is inapplicable. To invoke S.12 an independent order, under S.12, passed during the pendency of the proceeding is required.
4. Continues to Pay
A tenant is entitled to contest an application only if he pays or deposit all arrears of rent admitted and continues to pay or deposit any rent which may subsequently become due until the termination of the proceedings and the time fixed for the deposit of rent which subsequently become due shall not be less than 2 weeks from the date on which the rent become due.
Tenant is bound to deposit the admitted arrears already accrued and the arrears accruing during the pendency of proceeding. His failure to do so entitles the landlord to an order putting him in possession of the building. The tenant has to pay not only the arrears of rent admitted by him but also the rent which admittedly falls due in respect of the building subsequent to the commencement of the rent control proceedings. If such rent is not paid, Rent Control Court is bound to pass summary order of eviction of tenant.
Payment of admitted arrears and of the rent, which falls due subsequently, have already been passed by the Rent Control Court. The liability of the respondent to pay the rent, which has fallen due subsequent to the passage of such order is statutory and therefore it is not necessary to pass order under S.12(2) once again.
5. Minimum time for deposit: –
The subsection 12(2) of the Act lays down the conditions and time limit for the deposit to be made under Section 12(1). The proviso to Section 12(2) prescribes that the time should not be less than four weeks from the date of the order. But the time to be fixed for deposit of arrears subsequently accrues should not be less than 2 weeks.
Since the time fixed under this section is a time fixed by the Court, the provisions of Section 23(i) of the Act enables the Court to enlarge the time by invoking the provisions of Section 148 of the Code of Civil Procedure. So the Court can enlarge the time upto 30 days even if the time fixed has been already expired.
An opportunity be given to the tenant after the expiry of the time fixed for deposit of arrears of rent before passing the order under S.12 (3) of the Act. If the tenant does not pay the arrears of rent even after he had been given sufficient time, the landlord is entitled for an order of eviction under section 12(3).
There was no reason for the tenant as to why she could not file the schedule immediately after the passing of an order and instead waiting for the expiry of time and filing the schedule just the day prior to the last day and therefore the Rent Controller was justified in striking off the defense.
6. The sufficient cause for non deposit
The sufficient cause depends upon the facts and circumstances of each case. Sufficient cause should not be the financial disability of the tenant. But other reasonable circumstances, which prevented him from making deposit in time, can be a sufficient cause. The cause put forward by the tenant must be one which satisfies the judicial mind.
Rent Control Court or Appellate Authority where admitted rent has not been deposited by the tenant is not required to issue a separate notice to show sufficient cause for default but has to direct the tenant to put the landlord in possession of the building. Order of eviction passed on ground of non-deposit of rent, under this section, No application is filed by the tenant before Rent Controller for condoning default. On the contrary Tenant denied landlord tenant relationship. Plea taken by him before Supreme Court that he was under mistaken belief hence did not deposit arrears and therefore default may be condoned. Such a plea cannot be considered as ‘sufficient cause’ for condoning default. The Rent Control Court directed the tenant to pay the arrears of rent or to show cause why further proceedings should not be stopped and the landlord put in possession. It is upto the tenant to pay arrears or to show why an order directing the tenant to put the landlord in possession should not be passed. The tenant cannot rush to the Appellate Authority. S. 18 does not permit him to challenge such an order in appeal.
The tenant has to be called upon to make good the shortfall before invoking the power under sub-s.(3) of S.12. In the absence of any such adjudication, it cannot be said that reasonable and real opportunity was given to the tenant to deposit the admitted arrears or to show cause against the default.
7. Appeal by landlord
The prohibition under section 12 applies for contesting the application before the Rent Control Court and when the tenant prefers appeal under section 18. When the landlord prefers appeal this section has got no application. Even during that period the tenant may be liable to pay rent, but landlord cannot seek remedy under section 12. The landlord may file a fresh petition for arrears of rent if the tenant is not paying rent during the appeal period.
In an appeal filed by the landlord the tenant is not bound to make the deposit. Landlord who filed appeal cannot file petition under section 12.
8. Consequence of non-payment
The section 12(3) deals with the consequence of non-deposit of arrears of rent as contemplated in section 12(2). The Section 12(1) also stipulates the deposit by admitted arrears of rent as a condition precedent for contest in the application. The subsection 3 regulates the procedure of the mandate laid down in Section 12(1) as to pass an order directing the tenant to put the landlord in possession of the building after giving him due chance for showing sufficient cause.
Once the Rent Control Court passed an order for eviction under section 12, there is no further occasion or right for the tenant/petitioner to contest the petition for eviction on depositing the admitted arrears of rent since there is no petition to contest.
9. Subsequent Payment
Once the Rent Controller passed an order for eviction there is no further occasion for the tenant to deposit the arrears and contest the matter. Subsequent deposit cannot be a ground for a review of the order. An order passed under Section 12 (3) for failure to deposit the admitted arrears within the time specified cannot be set aside on subsequent payment. Tenant depositing the rent after the due date and landlord withdrawing the amount- then the landlord has waived his right to apply for striking off the defense of tenant.
Order passed under section 12 (3) cannot be vacated by the court under section 11(2) (c) on payment of arrears of rent subsequently, Section 11 & 12 are not dependent on each other.
10. Execution of orders under section 12
The authority mentioned in Section 14 shall execute the order passed under section 12. There was no specific provision in the Act 2 of 1965 for executing the orders passed under this section till 1966. Vide Act 7 of 1966 section 12 also was put in the purview of section 14 of the Act, but vide Act 8 of 1968 the said Amendment Act 7 of 1966 was repealed. While considering this issue our High Court held that, even in the absence of mention of Section 12 in Section 14, such an order is executable. (Section 14 has been amended subsequently and incorporated section 12.)
This provision is applicable to execution proceedings also. To invoke S.12 an independent order under S. 12, passed during the pendency of the proceeding is required.
11. Rent deposited U/s 12 of the Act.
What is imposed by S.12 (1) is the obligation to deposit arrears of rent admitted by the tenant to be due, whereas what is envisaged in S.11 (2) (c) is to deposit the actual arrears of rent. Under section 11 (2), the court can legitimately exercise adjudicatory process in order to determine the actual rent payable under law. Benefit of S.11 (2) (c) can be availed of by a tenant only by depositing the actual arrears of rent, while for discharging the obligation of the tenant under S.12 (1), he need not necessarily deposit the actual arrears of rent.
Section 12 of the Act has no application to a case wherein an order of eviction has been passed by the court under S.11 (2) (b) of the Act. To invoke S.12 an independent order, under S.12, passed during the pendency of the proceeding is required.
Rented Building Owners Association Kerala 
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