Kerala High Court
Manikandan vs Saleena on 22 February, 2021
RSA 156/2021 1/5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Present:
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
Monday,the 22nd day of February 2021/3rd Phalguna, 1942
IA.NO.1/2021 IN RSA No.156/2021
AS No.109/2017 of the III ADDITIONAL DISTRICT COURT, PALAKKAD
For information purpose only
OS No.199/2016 of the PRINCIPAL MUNSIFF COURT, PALAKKAD
PETITIONER/APPELLANT:
MANIKANDAN,AGED 48,
S/O.LATE MANI, MECHERIPADAM, ELAPPULLY, PALAKKAD TALUK.
RESPONDENTS/RESPONDENTS:
1. SALEENA,
AGED 49 YEARS, W/O.LATE ALI, RESIDING AT AMBADATH HOUSE,
PALLIKUNNAM POST, PAYYANADAM, KUMARAMPUTHUR PANCHAYATH,
MANNARKKAD TALUK, PALAKKAD DISTRICT 678 583.
2. SUHAIBATH SINANA,
AGED 28 YEARS, D/O.LATE ALI, RESIDING AT AMBADATH HOUSE,
PALLIKUNNAM POST, PAYYANADAM, KUMARAMPUTHUR PANCHAYATH,
MANNARKKAD TALUK, PALAKKAD DISTRICT 678 583
3. NIHALA YASMIN,
AGED 16 YEARS, (MINOR), D/O.LATE ALI, RESIDING AT AMBADATH
HOUSE, PALLIKUNNAM POST, PAYYANADAM, KUMARAMPUTHUR
PANCHAYATH, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 583
REP.BY HER MOTHER NEXT FRIEND SALEENA W/O.LATE ALI,
RESIDING AT AMBADATH HOUSE, PALLIKUNNAM POST, PAYYANADAM,
KUMARAMPUTHUR PANCHAYATH, MANNARKKAD TALUK, PALAKKAD
DISTRICT 678 583
Application praying that in the circumstances stated in
the affidavit filed therewith the High Court be pleased
to stay the execution of the decree and judgment now under
challenge in this Regular Second Appeal.
This application coming on for orders upon perusing the
RSA 156/2021 2/5
application and the affidavit filed in support thereof, and
upon hearing the arguments of M/s.K.C.SANTHOSH KUMAR,
K.V.SABU, NIKHIL K. SABU, Advocates for the petitioners, the
court passed the following:
For information purpose only
RSA 156/2021 3/5
N.ANIL KUMAR, J.
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R.S.A.No.156 of 2021 & I.A.No.1 of 2021
For information purpose only
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Dated this the 22nd day of February, 2021
ORDER
Heard the learned counsel for the appellant.
2 This R.S.A. is admitted on the following substantial questions of law:-
(i) Whether a declaration or finding recorded by a
competent civil court can be ignored by a Tribunal or
its appellate authority while dealing with the very
same matter upon which the civil court had entered
into a finding?
(ii) Whether the two courts below are justified in ignoring
the findings recorded by a competent civil court on
specific issues solely for the reason that an appeal is
pending before the appellate court?
Issue notice.
I.A.No.1/2021
Heard the learned counsel for the petitioner.
2. The O.S.No.199/2016 on the file of the Principal Munsiff's Court, Palakkad
was filed by the predecessor-in-interest of the respondents claiming arrears of
rent. The suit was decreed by the trial court against which an appeal was
preferred. The appeal was dismissed confirming the judgment and decree passed
by the trial court.
3. According to the learned counsel for the appellant, O.S.No.428/2012 on
the file of the Principal Sub Court, Palakkad, was filed by the defendant for specific
performance of the contract for sale executed between the plaintiff and defendant.
The said suit was decreed against which the defendant in O.S.No.428/2012
preferred an appeal before the appellate court which is pending consideration. The
RSA 156/2021 4/5
predecessor-in-interest of the plaintiff also filed rent control petition before the
rent control court for eviction on the ground of arrears of rent. An order under
Section 12 of the Kerala Building (Lease and Rent Control) Act (hereinafter referred
to as 'the Act') was passed in the said case whereby the defendant was directed to
remit the admitted arrears of rent. The said matter was taken in appeal before the
Appellate Authority as R.C.A.No.12/2016. The Rent Control Appellate Authority by
For information purpose only
judgment dated 31.7.2017 allowed the appeal setting aside the order of the Rent
Control Court under Section 12 of the Act.
4. On the strength of the decree for specific performance and the judgment
of the Rent Control Appellate Authority, the learned counsel for the
appellant/defendant contended that the appellant/defendant is not obliged to pay
any rent to the plaintiff.
5. In O.S.No.428/2012 of the Principal Sub Court, Palakkad whereby a suit
for specific performance was decreed, it was categorically held in paragraph 11 of
the judgment that in Ext.B1 agreement between the parties it is stated that the
disputed building was let out to the defendant herein by the plaintiff herein on
payment of rent of Rs.5,000/- per month for a period of 11 months.
6. Taking into consideration the entire facts and circumstances, the trial
court held that suit for recovery of arrears of rent is maintainable. The trial court
further held that the petition under Section 12 of the Act is only in respect of
admitted arrears of rent and it has no nexus or connection with the rent control
eviction for arrears of rent. If rent is not admitted, the interim application filed in
the rent control petition under Section 12 of the Act is liable to be dismissed.
Hence merely because an application under Section 12 of the Act is dismissed,
according to the trial court, it cannot be said that suit for arrears of rent for three
years is not maintainable before a civil court. The trial court also took the view that
the decree for specific performance is enforceable in accordance with law and
unless and until the decree is enforced and the plaintiff takes delivery of
possession of the property in accordance with decree, it cannot be contended that
the defendant is not bound to pay the arrears of rent to the plaintiff. The trial court
RSA 156/2021 5/5
and the first appellate court concurrently found that the agreement, if any,
executed by the tenant during the pendency of the tenancy arrangement is not a
ground to avoid payment of rent to the landlord unless and until the agreement is
enforced in accordance with law. On a prima facie reading of the reasons rendered
by the two courts below, this Court is of the view that the defendant is legally
bound to deposit the arrears of rent in terms of the decree before the trial court.
For
7.
information purpose only
In the result, the execution of the decree and judgment in
A.S.No.109/2017 on the file of the third Additional District Court, Palakkad which
arises from the judgment in O.S.No.199/2016 on the file of the Principal Munsiff's
Court, Palakkad stands stayed for a period of two months on the
appellant/petitioner depositing the decree amount with interests and costs before
the trial court within a period of one month from today. In case the amount is
deposited as ordered hereinabove, the withdrawal of the said amount by the
respondents shall be subject to further orders from this Court.
R.S.A.No.156/2021
Considering the facts and circumstances involved, both parties are directed to
explore the chance of settlement through mediation and submit before this Court
on 29.3.2021.
Post on 29.3.2021.
N.ANIL KUMAR, JUDGE
skj
/true copy/
Sd/-
ASSISTANT REGISTRAR
