ORDER

S. Sankarasuban, J.

1. This Civil Revision Petition is filed against the judgment in R.C.A. No. 31 of 2001 on the file of the Rent Control Appellate Authority, Trivandarum. Landlords are the petitioners. Landlords filed R.C.P. NO.1 of 1994 for eviction of the tenant on the basis of arrears of rent under Section 11(2)(b) of the Kerala Building (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). The Rent Control Court found that there was default of arrears of rent and hence, ordered eviction. Against that order, tenant filed R.C.A. No. 77 of 1997 before the Rent Control Appellate Authority. The Rent Control Appellate Authority by its judgment dated 22.12.1998 found that the rent amounting to Rs. 12,46,000/-was in arrears in respect of the building. Accordingly, the appeal was dismissed in confirmation of the order of eviction. Against that judgment, C.R.P. No. 153 of 1999 was filed before this Court. It appears that before that the tenant filed R.C.P. No. 113 of 1988 before the Rent Control Court for fixation of fair rent. The Rent Control Court passed an order fixing the fair rent in respect of the building at Rs. 9,780/- per annum in the place of Rs. 10,000/-.

2. Against the order of the Rent Control Court, both the landlords and tenant filed appeals before the Appellate Authority. The Appellate Authority dismissed the appeal filed by the tenant and allowed the appeal filed by the landlords, in the light of a decision of this Court reported in Issac Ninan v. State of Kerala, 1995 (2) KLT 848. Against the dismissal of the appeal, tenant filed revisions, C.R.P. Nos. 1419 and 1422 of 1996. The two Civil Revision Petitions were heard together and by order dated 23.2.2000 the revision were dismissed. Thus, the order of eviction under Section 11(2)(b) of the Act was upheld by the Division Bench in the above Civil Revision Petitions.

3. Against the order in the above Civil Revision Petitions, the tenant preferred Special Leave Petitions before the Supreme Court as SLP (C) Nos. 4895-97 of 2000. Leave was granted and the appeal was numbered as Civil Appeal Nos. 779-781 of 2001.

The appeals were dismissed by order dated 16.1.2001. After the dismissal of the Special Leave Petitions, the tenant filed I.A. No. 1523 of 2001 before the Rent Control Court, under Section 11(2)(c) of the Act for vacating the order of eviction. In the affidavit filed along with the application, the tenant stated about the orders passed by the High Court and the Supreme Court. In paragraph 6, it is stated that the Rent Control Appellate Authority has calculated the rent due tot he landlords at paragraph 13 of its order dated 22.12.1998. The amount comes to Rs. 12,46,000/-. In paragraph 7, it is stated that pursuant to the directions in C.R.P. No. 153 of 1999, he had deposited an amount of Rs. 7 lakhs in the Principal Munsiff Court, Thiruvananthapuram, wherein the E.P. was pending. In paragraph 8, it is stated that pursuant to the orders of the Supreme Court dated 15.3.2000 and 3.4.2000, he has deposited an amount of Rs. 8,00,000/- in the Supreme Court. According to us, this has been appropriated towards arrears of rent. Further, it is stated that he had been paying rent to the landlords. According to him, along with the petition, he had filed a statement of account, according to which he claimed interest for the arrears of rent upto 25.9.1993. According to the tenant, the total amount payable was less than Rs. 15,00,000/- and he had already deposited Rs. 15,00,000/- and hence, he prayed for vacating the order of eviction.

4. To this application, an objection was filed by the landlords. Among various contentions taken by the landlords, they took the contention that the tenant cannot avail of the benefit of Section 11(2)(c) of the Act after the disposal of the matter by the Supreme Court. They contended that the right of appeal before the Supreme Court is not taken in by Section 11(2)(c) of the Act. They further contended that the interest calculated is not correct. They also contended that the amount ordered to be deposited by the Supreme Court also cannot be taken as the amount deposited towards arrears of rent.

5. To the above statement, a rejoinder affidavit was filed by the tenant. In the rejoinder affidavit, it was stated that an amount of Rs. 4,25,400/- was deposited on 15.2.2001. The Rent Control Court, after hearing both parties, dismissed the application. Before the Rent Control Court, it was argued that the petition was not maintainable. But this contention was negatived. The Rent Control Court took the view that the amount deposited as per the orders of the Supreme Court and High Court cannot be adjusted and the same cannot be taken into account for vacating the order under Section 11(2)(c) of the Act.

6. Against the rejection of the application, the tenant preferred appeal before the Appellate Authority. The Appellate Authority also held that the petition was maintainable. It then held that the amount that was payable was the rent, which was demanded in the petition for eviction and interest on that amount that was payable till date of deposit. According to him, by the deposit of Rs. 4,25,400/-, the entire amount payable as arrears of rent had been discharged. Thus, the appeal and the I.A. were allowed. It is against the above judgment that this Civil Revision Petition is filed.

7. Sri. Ramakumar, learned counsel for the petitioners submitted that the remedy under Article 136 of the Constitution is not a statutory remedy under the Rent Control Act. It is a constitutional remedy. The benefit under Section 11(2)(c) of the Act is available if there is remedy provided under the Rent Control Act. He elaborately contended by saying that the Act creates the Rent control Court and the Appellate Authority and also revisional Authority. When an order is passed by the Rent Control Authority subject to appeal and revision, a tenant can get the order under Section 11(2)(b) of the Act vacated, even after he approaches the High Court in revision under Section 20 of the Act. But so far as the appeal to the Supreme Court is concerned, learned counsel submitted that unless the order of the Supreme Court says that the order of eviction will be vacated in case arrears is deposited, the benefit under Section 11(2)(c) of the Act cannot be availed of. Learned counsel brought to out notice the decision of this Court reported in Kanakamma v. Sivasankaran Nair, 1976 KLT 911 and Kurein v. Saramma Chacko, 1964 KLT 1 and Abdul Khadir v. Ouseph Mathai, 2001 (1) KLT 1. In 2001 (1) KLT 1, a Division Bench of this Court held that the remedy under Section 11(2)(c) of the Act can be exercised even when the matters are submitted that this was because Art. 227 of the Constitution of India. Learned counsel submitted that this was because this Court has supervisory jurisdiction under Article 227 of the Constitution of India. He further submitted that the amount deposited in the Supreme Court was allowed to be withdrawn by the plaintiff by the Supreme Court itself. These amounts were not towards the arrears of rent demanded in the notice and hence, it cannot be taken into account for the purpose of deposit under Section 11(2)(c) of the Act. He further submitted that the Appellate Authority was not correct in holding that the entire amounts have been discharged.

8. Learned counsel for the respondent Sri. S.V.S. Iyer submitted that according to law, the order passed by this Court in revision has merged in the order passed by the Supreme Court in the Civil Appeals. When once there is a merger, final order that is to be executed is the order passed by the Supreme Court. Hence, according to me, the benefit under Section 11(2) of the Act can be availed of, even after the party approaches before the Supreme Court. He brought to our notice a decision reported in Kunhayammed and Ors. v. State of Kerala and Anr., 2000 AIR SCCW 2608. In the present case, leave was granted and the Special Leave Petition was converted into appeal. The Supreme Court, in the above decision has stated as follows:

"Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger, the order may be of reversal, modification or merely affirmation. On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by Sub-rule (1) of Rule 1 of Order 47 of the CPC."

It is clear form the above decision that once leave is granted and the Supreme Court disposed of the appeal, the order passed by the Appellate Court merges with the order of the Supreme Court. So far as the present case is concerned, the position is that the order passed by the High Court in the High Court in the C.R.P. has now merged with the order passed by the Supreme Court in the Civil Appeals. The question is whether the tenant can get the benefit under Section 11(2)(c) of the Act after the appeal is disposed of by the Supreme Court.

9. In Kurein v. Saramma Chacko, 1964 KLT 1, the question that arose was whether after the disposal of the revision petition by the District Court the remedy under Section 11(2)(c) of the Act can be availed of. In that case, what happened was that the Rent Control Court passed an order of evict ion on the basis of arrears of rent, which was confirmed by the Appellate Authority. The tenant filed a revision before the District Judge, which was dismissed. Pending revision, Kerala Building (Lease and Rent Control) Ordinance III of 1959 came into force and Ordinance was later on repealed by the Building (Lease and Rent Control) Act. The provisions of the Ordinance and the Act are the same and under Section 11 of the Act some new right were conferred on the tenants, one of the rights being the right to deposit arrear of rent within one month of the order of eviction. An application was filed before the Rent Control Court. That application was allowed by the Rent Control Court. But the Appellate Authority and the Revisional Authority dismissed the application on the ground that the remedy was available only if an order is passed by the Rent Control Court. An Original Petition was filed against that order, which was also dismissed. Against the dismissal of the Original Petition, a Writ Appeal was filed and the Writ Appeal was the being considered by a Full Bench. In dealing with this question, Raghavan, J. (as he then was) speaking for the Bench held as follows:

"It cannot be disputed that the intention of the legislature was to confer on tenants, whose only fault was to have kept rent in arrears, a right to deposit all arrears, cost, etc., and claim to vacate the order of eviction against them. There is no justification for thinking that the legislative intent was only to confer such rights on tenants against whom eviction orders were passed by the original Rent Control Court and not by the appellate or the revisional authorities. If that legislative intent of the statute is clear, there is no difficulty in not strictly adhering to the definition of the expression "the Rent Control Court", especially if the definition conflicts with the context. The expression "the Rent Control Court" does not necessarily mean only the original Rent Control Court in all the provisions where that expression occurs; and the expression will have that meaning only where the restricted meaning will not lead to any anomaly or absurdity. That expression in Section 11(2)(b) will include both the appellate and the revisional authorities as well. Consequently the deposit made by the appellate was proper and in time."

10. IN kanakamma v. Sivasankaram Nair, 1976 KLT 911, a similar question arose for consideration. There, the tenant approached the High Court under Section 115 of the Code of Civil Procedure against the order passed by the higher authorities. The High Court dismissed the revision petition and within one month of the dismissal of the revision, he filed a petition under Section 11(2)(c) of the Act. The question that arose was whether the tenant can get the benefit after the disposal of the case by the High Court, under Section 115 of the Code of Civil Procedure. Janaki Amma, J., dealing with the question, held as follows:

"The langauge of Sections 11(2)(c), 18 and 20 in the new Act is similar to that of the corresponding provisions in the Act of 1959. ....The Act does not specifically provide for a revision by the High Court of the order passed under Section 20. The revisional powers of the High Court are derived from the general law contained in Section.115 CPC. Even so it is upto the High Court in the exercise of its revisional powers either to pass an order of eviction or to vacate an order of eviction passed by the District Court in revision. Therefore, the major part of the reasoning adopted by the Full Bench would apply to the final order of the High Court."

The Court referred to the decision reported in Kurien v. Saramma Chacko, 1964 KLT 1. The learned Judge also relied on a decision of the Supreme Court reported in Commissioner of Income-tax, Bombay v. Amritlal Bhogilal & Co., AIR 1958 SC 868, wherein it was held thus:

"There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverse the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement".

In Collector of Customs v. East India Commercial Co., AIR 1963 SC 1124, it was held as follows:

"It is this principle, viz., that the appellate order is the operative order after the appeal is disposed of which is in our opinion the basis of the rule that the decree of the lower court merges in the decree of the appellate court, and on the same principle it would not be incorrect to say that the order of the original authority is merged in the order of the appellate authority whatsoever its decision-Whether or reversal or modification or mere confirmation".

11. We have already referred to the decision of the Supreme Court in Kynhayammed v. State of Kerala, 2000 AIR SCW 2608, wherein it was held that when a Special Leave Petition filed is converted into an appeal and the Supreme Court disposed of the appeal, then the order appealed against merges with the order of the Supreme Court. If the Supreme Court modifies or reverse the decision of the lower court, then it is the Supreme Court decision that is operative. If the argument of the petitoner is accepted, if a person approaches the Supreme Court against the order in C.R.P. and the Supreme Court disposes of the matter after granting leave, then the person cannot file a petition under Section 11(2)(c) of the Act. The Supreme Court exercised its appellate jurisdiction, when it granted Special Leave Petition. By the doctrine of merger, the order in the Civil Revision Petition does not exist and it is the order of the Supreme Court that is operative and has to be executed.

12. In the above view of the matter, we are of the view that the counsel for the petitoner was not right in saying that the tenant cannot get the benefit of Section 11(2)(c) of the Act after the disposal of the appeal by the Supreme Court. But position would have been different, if the matter has been disposed of at the SLP stage. But that is not the position here.

13. The next question is whether the Appellate Court was correct in holding that the tenant was complied with the order passed under Section 11(2)(c) of the Act. In this connection, it is pertinent to note that R.C.P. No.1 of 1994 was filed stating that the rent from 26.9.1996 was in arrears. The Rent Control Court found that the tenant had committed default in the payment of the rent from 25.9.1988 to 25.9.1993. The order of eviction was passed under Section 11(2)(b) of the Act. Against that order, the tenant filed R.C.A. No. 77 of 1996. The Appellate Court, after considering the argument held that the arrears of rent for the period from 26.9.1986 to 25.9.1993 was Rs. 12,46,000/- after adjusting the amount of Rs. 7,00,000/-. It is against that revision is filed.

14. It appears that during the pendency of the revision, an amount of Rs. 4,00,000/- was deposited on 21.1.1000, Rs. 2,00,000/- was deposited on 13.1.2000 and Rs. 1,00,000/- was deposited on 3.1.2000. Thus, total amount of Rs. 7,00,000/- was paid during the pendency of the matter before the High Court. The High Court disposed of the Civil Revision Petitions on 23.2.2000 upholding the order of eviction passed under Section 11(2)(b) of the Act. Thereafter, the tenant took up the matter before the Supreme Court. He filed Special Leave Petitions before the Supreme Court. On 15.3.2000, the Supreme Court passed an order to deposit Rs, 3,00,000/- on or before 18.3.2000. The Supreme Court in its order dated 18.3.2001 stated that subject to the petitioner depositing Rs. 3 lakhs in the Supreme Court on or before 18th March, 2000, there shall be stay of dispossession. The amount was deposited in the Supreme Court on 16.3.2000. Subsequently, in the Special Leave Petitions, by order dated 7.4.2000, the Supreme Court ordered as follows:

"Until further orders, the eviction of the tenant from the disputed premises shall remain stayed subject to his deposit of rupees of five lakhs within six weeks from today and continue to deposit rupees twenty thousand per month for the period April, 2000 onwards. The aforesaid amount and the amount already deposited may be withdrawn by the respondent"

Thus, Rs.5,00,000/- was deposited and the tenant used to deposit Rs. 20,000/- as ordered by the Supreme Court. Subsequently, the Supreme Court by its order dated 16.1.2001 dismissed the appeals. It further held that any amount deposited pursuant to the order of the Supreme Court may be withdrawn by the landlords respondents.

15. Thus, it can be seen that as per the order of the Supreme Court, the tenant deposited Rs. 3,00,000/- on 16.3.2000 and Rs. 5,00,000/- on 3.5.2000. Then he deposited Rs. 20,000/- per month for 10 months. Thus, Rs. 10 lakhs had been deposited before the Supreme Court. After the disposal of the matter by the Supreme Court, the tenant deposited Rs. 24,200/- on 13.2.2001 and Rs. 4,25,400/- on 15.2.2001 in the Rent Control Court. Learned counsel for the petitoner submitted that the deposit in the Supreme Court cannot be taken into account for the purpose of deposit under Section 11(2)(c) of the Act. It is seen that the tenant had not deposited any amount. The tenant has defaulted payment of rent, which became due when the matter was pending in the High Court as well as in the Supreme Court. It is certain that so far as the Amount of Rs. 2,00,000/-, which was deposited at the rate of Rs. 20,000/- per month, is concerned, that cannot be taken note of because the tenant himself in his rejoinder has stated that these amounts were deposited towards rent for the months of April, May June, July, August, September, October, November and December, 2000 and February 2001. Hence it cannot be taken into account as deposit. According to us, on a perusal of the order passed in the Special Leave Petitions, Rs. 3 lakhs and Rs. 5 lakhs were ordered to be deposited for the purpose of staying the dispossession taking into account the amount due from the tenant as on that day. That amount was not towards arrears, which was demanded. Hence, according to us, an amount of Rs. 8,00,000/- which was ordered to be deposited in the Supreme Court and withdrawn by the landlords cannot be taken into consideration as deposit. Further, we are of the view that in the original application filed by the tenant, he had included only interest upto 1993. The interest accrued subsequently has not been detailed. It is not clear from the rejoinder and from the order of the Appellate Authority as to what was the actual interest upto the date of filing the application under Section 11(2)(c) of the Act. We are of the view that the amount deposited in the Supreme Court cannot be taken into account for the purpose of calculating the amount under Section 11(2)(c) of the Act. If this amount is not taken into account, then the amount deposited is not correct.

16. In the above view of the matter, we set aside the order of the Appellate Authority and direct the Appellate Authority to reconsider the matter in the light of our observations.

17. Civil Revision Petition is disposed of as above.