Akhilesh vs Mr. Abdul Kader

Kerala High Court

Akhilesh vs Mr. Abdul Kader on 27 May, 2024

Author: Amit Rawal

Bench: Amit Rawal

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                 THE HONOURABLE MR. JUSTICE AMIT RAWAL
                                       &
                 THE HONOURABLE MR. JUSTICE EASWARAN S.
        MONDAY, THE 27TH DAY OF MAY 2024 / 6TH JYAISHTA, 1946
                           RCREV. NO. 109 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 04.04.2024 IN RCA NO.5 OF 2023 OF
ADDITIONAL      DISTRICT      COURT,   TIRUR,       ARISING   OUT    OF    THE
ORDER/JUDGMENT     IN   RCP    NO.30   OF    2020   OF   MUNSIFF    MAGISTRATE
COURT,PONNANI
REVISION PETITIONER(S)/APPELLANT/RESPONDENT:

             AKHILESH
             AGED 47 YEARS
             S/O. KRISHNAN NAIR, PROPRIETOR, GOLDEN MOTORS,
             KOZHIKODE ROAD,EDAPPAL, RESIDING AT PUNCHATH HOUSE,
             KUTTIPPURAM AMSOM, PERASSANNOOR DESOM, TIRUR TALUK,
             MALAPPURAM DISTRICT, PIN - 679571

             BY ADVS.
             C.M.MOHAMMED IQUABAL
             ISTINAF ABDULLAH
             ANGEL MARY GEORGE
             MUHAMMED AMEEN
             P.ABDUL NISHAD
             T.H.RAIHANATH
             RENEESH U.R.


RESPONDENT(S)/PETITIONERS/RESPONDENTS:

    1        MR. ABDUL KADER
             AGED 57 YEARS, S/O. VALIYAPEEDIYEKKAL AALIKUTTY HAJI,
             VATTAMKULAM AMSOM, THEVALASSERY DESOM, PONNANI TALUK,
             MALAPPURAM DISTRICT, PIN - 679578

    2        MR. ABDULLAKUTTY
             AGED 50 YEARS, S/O. VALIYAPEEDIYEKKAL AALIKUTTY HAJI,
             VATTAMKULAM AMSOM, THEVALASSERY DESOM, PONNANI TALUK,
             MALAPPURAM DISTRICT, PIN - 679578


     THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
27.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RCREV. NO. 109 OF 2024
                                2



                             ORDER

Amit Rawal, J.

1. Respondent-landlord instituted a rent control petition against the petitioner-tenant for seeking eviction on the ground under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The matter was contested on the ground that the tenant had been in arrears of rent since January, 2020; had paid only Rs.7,78,900/- (Rupees seven lakhs seventy eight thousand nine hundred only) and till June, 2023, balance was Rs.8,56,790/- (Rupees eight lakhs fifty six thousand seven hundred ninety only). Rent Controller passed the order under sub-section 3 of Section 11 directing the petitioner-tenant to put the landlord into possession and also for payment of arrears of rent along with 6% interest within a period of one month. Against the aforementioned order, the petitioner preferred an appeal bearing No.5/2023. In the aforementioned pending appeal, Interlocutory Application No.3/2023 was filed which was decided by the Appellate Authority vide order dated 16.10.2023 directing the tenant to RCREV. NO. 109 OF 2024 3 pay the amount of admitted arrears of rent within four weeks from the date of passing of the order of the Appellate Authority. The aforementioned order was set aside by this Court in RC. Rev.No.5/2024 on 02.02.2024. Operative part of the order reads as under:

"In the result, this Rent Control Revision is allowed by setting aside the order dated 19.12.2023 of the Rent Control Appellate Authority in I.A.No.3 of 2023 in R.C.A.No.5 of 2023 and by directing the Appellate Authority to pass fresh orders under Section 12(3) of the Act, taking note of the law laid down in the decisions referred to supra, as expeditiously as possible, at any rate, within a period of one month from the date of production of a certified copy of this order."

On remand before the Appellate Authority as noticed from the order, petitioner/appellant did not tender the rent which resulted into dismissal of the appeal.

2. Learned counsel appearing on behalf of the petitioner/appellant submitted that there has not been a strict compliance of the judgment of the High Court recorded in the penultimate paragraph 23 and therefore, the eviction order could not have been passed on the ground that the appeal could RCREV. NO. 109 OF 2024 4 not be entertained for non-payment of admitted arrears of rent.

3. On the other hand, learned counsel appearing on behalf of the respondent submitted that copy of the RC. Revision has not been given, but submitted that there is no illegality and perversity in the order of the Appellate Authority for, tenant has failed to comply with the ingredients of Section 12 of the Act.

4. We have heard the learned counsel for the parties and appraised the paper book.

5. Paragraph Nos.9 and 23 of the judgment reads as under:

"9. We do not propose to consider the above aspect in this proceedings, in view of the order of this Court dated 11.12.2023 in R.C.Rev.No.256 of 2023. It is for both sides to raise their contentions on the above aspect, at an appropriate stage, before the appropriate authority.

23. Viewed in the light of the law laid down in the decisions referred to supra, we find no reason to sustain the order dated 19.12.2023 of the Appellate Authority in I.A.No.3 of 2023 in R.C.A.No.5 of 2023, which is one issued in exercise of its powers under Section 12(3) of the Act."

RCREV. NO. 109 OF 2024 5

6. Operative part of the order of the Appellate Authority reads as under:

"Order of High court was produced before this court on 13.03.24. since trial court records was send back, intimation was given for getting back the records. Notice was ordered to both parties as well. The petition was posted to 22.03.24. On 22.03.24 advocate for appellant/ tenant was not in station. The petition was then posted to 25.03.24. Since there was no sitting, the petition was posted to 26.03.24. On 26.03.24 an order was passed directing to tenant to pay the amount already quantified and posted to 30.03.24. On 30.03.24 tenant neither paid the amount not offered any explanation for not making payment.

The advocate for tenant has disputed the amount quantified. According to him there is error in the order as regard to total amount paid by the tenant But that contention need not be entertained in this proceedings in view of High court order(See para 9 of the order). The next contention of the counsel is as regard to failure to give sufficient time to shaw cause for not depositing the amount. But this contention also has no force. Admittedly the court need not issue any separate notice to tenant to enable him to shawcause for not paying the amount. On the other hand what is required is to adjourn the hearing of the case to a date beyond the date fixed for payment of amount ordered u/s 12(1) of the Act; allowing reasonable time to tenant to shaw sufficient cause for not paying the rent. In this case after the expiry of 4 weeks fixed for depositing rent, around one months more time was granted for making payment. After the order of High court further time was given to tenant RCREV. NO. 109 OF 2024 6 for depositing the amount. As stated above tenant neither deposited the amount nor offered any explanation for not depositing the amount during the extended period as well. Under the above circumstances further proceedings in the appeal is stopped and respondent/ tenant is directed to put the petitioner/landloard in possession of petition schedule building."

7. The contention, that the petitioner was not granted sufficient time cannot be appreciated because on 26.03.2024 tenant was directed to pay the amount already quantified and posted the matter on 30.03.2024. On that date the tenant did not pay the amount but rather challenged the quantification. Section 12 of the Act reads as under:

"12. Payment or deposit oj rent during the pendency of proceedings for eviction.-(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 RCREV. NO. 109 OF 2024 7 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 subsection (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 *ime 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 the 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 conditions 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."

8. For entertaining the appeal one has to comply with the aforementioned provisions of the Act. In the absence of the RCREV. NO. 109 OF 2024 8 same, consequential order of eviction is inevitable, this is precisely what has been done. We do not find any illegality and perversity in the order or extend the time as the right of eviction has already accrued in favour of the landlord for non- compliance of the direction in view of the provisions referred to above. Petition sans merit accordingly dismissed.

Sd/-

AMIT RAWAL JUDGE Sd/-

EASWARAN S. JUDGE nak