Kerala High Court
Nijo A.S vs Sreekala on 23 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942
OP (RC).No.5 OF 2021
AGAINST THE ORDER IN I.A NO.3516 OF 2019 DATED 02-07-2019
IN RCP 41/2017 OF III ADDITIONAL MUNSIFF & RENT CONTROL
COURT, ERNAKULAM.
PETITIONER/PETITIONER/PETITIONER :
NIJO A.S, AGED 36 YEARS,
S/O. A.J. SUNNY, ARMAL VEETIL,
MANAKKAPARAMBIL LANE,
AZAD ROAD KALOOR, KOCHI - 682 017.
BY ADVS.
SRI.KARTHIK BHAVADASAN
SRI.B.DEEPAK.
RESPONDENT/RESPONDENT/RESPONDENT :
SREEKALA, AGED 49 YEARS,
W/O. RAMESH, DOING BUSINESS
IN THE NAME AND STYLE BLACK LADY,
DOOR NO. 36/2675, AZAD ROAD,
KALOOR, KOCHI - 682 017.
THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON
23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(R.C) No.5 of 2021 2
A.HARIPRASAD & P.V.KUNHIKRISHNAN, J J.
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O.P.(R.C) No.5 of 2021
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Dated this the 23rd day of February, 2021
JUDGMENT
A.Hariprasad, J
Heard the learned counsel for the petitioner. Despite service of
notice on the respondent she did not enter appearance.
2. Petitioner is the landlord in respect of a building occupied by
the respondent. He filed R.C.P No.41 of 2017 before the Rent Control Court,
Ernakulam. In that matter, he filed Ext.P1 application under Section 12 of
Kerala Buildings (Lease and Rent Control) Act, 1965 (in short 'the Act')
requesting the court to stop all the proceedings and direct the tenant to put
the petitioner in possession of the building since she allegedly defaulted
payment of the admitted arrears. In that matter, the tenant filed Ext.P2
counter affidavit. According to her, rent from the month of September,
2016 to February, 2018 was paid in cash to the petitioner. This is a
disputed fact, according to the learned counsel for the petitioner. In that
matter, Ext.P3 order was passed by the Rent Control Court, wherein it is
observed thus :
" 5. Points No.1 & 2 : Heard both counsel, perused
entire materials placed before court. On close perusal
of rival contentions it is brought out that respondent
admitted arrears of rent for the period from March
2018 till December 2018. He did not produce any
materials to probalise (sic) remittance of rent from
September 2016 to February 2017. Counsel for
petitioner fairly conceded that respondent can be
directed to remit admitted rent arrears. Hence
respondent is directed to remit/deposit rent arrears
from March 2018 till December 2018 within 30 days
from date of order. Respondent shall remit/deposit rent
falls due thereafter within 15 days from date of due.
Ordered accordingly."
3. Aggrieved by the observation in the above order, the petitioner
preferred Ext.P4 application for review. In that matter, Ext.P5 objection was
filed by the respondent. Therein Ext.P6 order is passed dismissing the
review petition. Hence the petitioner is before this Court.
4. After hearing the learned counsel for the petitioner and on
perusal of the records, we find that the tenant's liability, as rightly observed
by the Rent Control Court, is only to deposit admitted arrears of rent. But
apprehension raised by the petitioner is that his claim in respect of arrears
of rent from September, 2016 to February, 2018 has not been properly
considered by the court below in a proceeding under Section 12 of the Act.
Therefore, we clarify that the observations in Ext.P3 order passed by the
Rent Control Court under Section 12 of the Act shall not in any manner
stand in the way of the petitioner for raising his contention regarding
arrears of rent at the time of trial and also it shall not deter the court from
entering a correct finding regarding the arrears of rent. It is brought to our
notice that Ext.P7 petition filed by the petitioner/landlord against the
respondent under Section 12(3) of the Act is still pending. The court below
shall dispose of that application on an early date at any rate within a period
of two weeks from the date of receipt of a copy of this judgment.
With this observation, the original petition is disposed of.
A. HARIPRASAD,
JUDGE.
P.V.KUNHIKRISHNAN,
JUDGE
amk
APPENDIX
PETITIONER'S EXHIBITS :
EXHIBIT P1 TRUE COPY OF I.A. NO. 8512 OF 2017 IN
RCP NO. 41 OF 2017 FILED BEFORE THE
COURT BELOW.
EXHIBIT P1 (A) A COPY OF THE STATEMENT ON ARREARS OF
RENT DUE FILED BY THE PETITIONER ALONG
WITH EXHIBIT P1 PETITION.
EXHIBIT P2 TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE RESPONDENT IN I.A. 8512 OF
2017 BEFORE THE COURT BELOW.
EXHIBIT P3 A TRUE COPY OF THE ORDER DATED
06.03.2019 PASSED BY THE COURT BELOW IN
I.A. NO. 8512 OF 2017 IN RCP NO. 41 OF
2017.
EXHIBIT P4 A TRUE COPY OF I.A.3516 OF 2019 IN RCP
NO. 41 OF 2017 FILED BEFORE THE COURT
BELOW.
EXHIBIT P5 A TRUE COPY OF THE OBJECTION IN I.A.
NO. 3516 OF 2019.
EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 2.7.2019
PASSED IN I.A. 3516 OF 2019 IN RCP NO.
41 OF 2017 BY THE RENT CONTROL COURT
ERNAKULAM.
EXHIBIT P7 A TRUE COPY OF THE PETITION FILED UNDER
SECTION 12 (3) OF ACT 2 OF 1965 FILED
BEFORE THE COURT BELOW.
RESPONDENT'S EXHIBITS : NIL.
