Kerala High Court
Beerankutty vs Thesneena on 10 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
OP (RC) NO. 56 OF 2021
AGAINST THE ORDER/JUDGMENT IN RCA 4/2020 OF ADDITIONAL
DISTRICT COURT, TIRUR, MALAPPURAM
PETITIONER:
BEERANKUTTY
AGED 55 YEARS
PALATTT THARAYIL (H), ESWARAMANGALAM AMSOM,
PUZHAMBRAMDESOM, PONNANI TALUK, MALAPPURAM
DISTRICT.
BY ADVS.
JAMSHEED HAFIZ
SMT.K.K.NESNA
RESPONDENT:
THESNEENA
AGED 33 YEARS
D/O. MUJEEB RAHMAN, THEKKUTH (H), PALLAPRAM,
PONNANI NAGARAM PO, PONNANI TALUK, MALAPPURAM
DISTRICT-679583.
BY ADVS.
K.P.SUDHEER
J.RAMKUMAR
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON
10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(RC)No.56 OF 2021 2
JUDGMENT
The petitioner is the tenant in R.C.P. No.18 of 2018 on the file
of the Rent Control Court (Munsiff), Ponnani, a petition filed by the
respondent herein under Section 11(3) and 11(4)(v) of the Kerala
Buildings (Lease and Rent Control) Act, 1965, seeking eviction of
the petition schedule shop room and the appellant in R.C.A.No.4 of
2020 on the file of the Rent Control Appellate Authority (Addl.
District Judge), Tirur, an appeal filed under Section 18(1)(b) of the
Act against the order of eviction granted by the Rent Control Court
in R.C.P.No.18 of 2018. The petitioner has filed this original petition
under Article 227 of the Constitution of India, seeking an order to
set aside Ext.P4 order dated 24.03.2021 of the Rent Control
Appellate Authority in I.A.No.3 of 2021 in R.C.A.No.4 of 2020.
2. On 07.04.2021, when this original petition came up for
admission, this Court admitted that matter on file. Urgent notice by
speed post was ordered to the respondent. This Court passed an
interim order staying all further proceedings pursuant to Ext.P1
judgment, for a period of three months. The said interim order,
which was extended from time to time, is still in force.
3. Heard the learned counsel for the petitioner-tenant and
also the learned counsel for the respondent-landlord.
4. The issue that arises for consideration in this original
petition is as to whether any interference is warranted on Ext.P4
order of the Rent Control Appellate Authority in I.A.No.3 of 2021
in R.C.A.No.4 of 2020, invoking the supervisory jurisdiction of this
Court under Article 227 of the Constitution of India.
5. R.C.P.No.18 of 2018 is one filed before the Rent Control
Court, seeking eviction of the tenant from the petition schedule
shop room, under Section 11(3) and 11(4)(v) of the Act. After
considering the pleadings and evidence on record, the Rent
Control Court ordered eviction under Section 11(3) and 11(4)(v)
of the Act and the tenant was directed to handover vacant
possession of the petition schedule building to the landlord,
within a period of two months from the date of that order, failing
which the landlord can execute the order through court.
Challenging the order of eviction, the tenant filed R.C.A.No.4 of
2020. In that R.C.A., the Appellate Authority granted an order of
stay, on 15.12.2020, on condition of depositing the admitted
arrears.
6. Despite the conditional order of stay granted on
15.12.2020, the tenant has not chosen to deposit the arrears of
rent instead he filed I.A.No.3 of 2021 in R.C.A.No.4 of 2020, an
application filed under Order XLI Rule 5 and Section 151 of the
Code of Civil Procedure, 1908, seeking an order to extent the
interim order granted on 15.12.2020, till the disposal of that
appeal. Therefore, by filing I.A.No.3 of 2021, the tenant sought
for review or modification of the order dated 15.12.2020, by
deleting the conditions stipulated therein. In that interlocutory
application, the Appellate Authority passed Ext.P4 order dated
24.03.2021, whereby that application stands rejected for the
reasons stated therein.
7. During the course of arguments, the submission made
by the learned counsel for the petitioner-tenant is that, when the
directions contained in the order of the Appellate Authority dated
15.12.2020 is to pay admitted arrears and when the tenant had
raised a contention in the additional counter, disputing the
landlord-tenant relationship, he is not expected to make any
payment towards arrears of rent, during the pendency of R.C.A.
8. Per contra, the learned counsel for the respondent-
landlord would point out the nature of contentions in the
additional counter filed by the tenant, which is extracted in para
5 of Ext.P1 order dated 03.12.2019 of the Rent Control Court,
and also the findings of the Rent Control Court on that
contention. The contention raised in the additional counter reads
thus;
"The petition is not maintainable. The claim of the
petitioner that she is the owner of the petition schedule
building has to be proved. The allegations in the petition
that the rent of the shop room is in arrears from the year
2017, no business is run in the shop rooms for one year,
no advance amount paid, the shutters of the rooms are
rusted and the shop rooms are covered with dust, etc., are
specifically denied. The claim of the petitioner that vacant
possession of the shop rooms are required for starting a
new business in paint and sanitaries along with his father,
who is a dependent of the petitioner, is also denied. There
is no bonafides in the petition. The petitioner has filed this
case at the instigation of his father."
9. In paragraph 15 of Ext.P1 order, the Rent Control
Court has noticed that the landlord has specifically averred that
she was receiving rent from the tenant through her account
maintained at Ponnani Co-operative Urgban bank Limited,
Ponnani Branch, till December, 2016. There is no denial of the
said fact in the counter or additional counter filed by the tenant.
In addition to that, it is specifically pleaded by the tenant that he
had obtained the permission of the landlord and her husband for
changing the business run in the petition schedule shop room.
Even otherwise, the landlord had filed I.A.No.988 of 2019, under
Section 12 of the Act, for realising rent arrears pending Rent
Control Petition, in which an order was passed for paying the
subsequent rent arrears amounting to Rs.88,000/-. The tenant
did not challenge the said order and he has complied with that
order of the Rent Control Court.
10. Admittedly, R.C.A.No.4 of 2020 is one filed by the
tenant under Section 18(1)(b) of the Act, challenging the order of
eviction granted under Section 11(3) and 11(4)(v) of the Act.
Section 12 of the Kerala Buildings (Lease and Rent Control) Act
deals with payment or deposit of rent during the pendency of
proceedings for eviction. As per sub-section (1) of Section 12, 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. As per sub-
section (2) of Section 12, 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). As per the
proviso to sub-section (2), 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.
11. As per sub-section (3) of Section 12 of the Act, 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. As per sub-section (4) of
Section 12, 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.
12. In paragraph 6 of Ext.P1 order in R.C.P.No.18 of 2018,
the Rent Control Court noticed that, though the landlord-tenant
relationship between the petitioner and the respondent in that
R.C.P. was denied, the tenant had admitted that he obtained
possession of the building for a period of 11 years from the
petitioner's mother, Aminakutty, on a monthly rent of Rs.6,000/-,
for running furniture and sanitary business. Though, according to
the landlord, the monthly rent of the petition schedule building is
Rs.8,000/-, for the purpose of payment of admitted rent under
Section 12 of the Act, the monthly rent of the petition schedule
building can be taken as Rs.6,000/-. Before the Rent Control
Appellate Authority, the tenant has no case that, during the
pendency of R.C.A., he had made any payment to the mother of the
landlord towards monthly rent of the petition schedule building.
Though, during the pendency of R.C.P., on an application filed
under Section 12 of the Act, the tenant paid admitted arrears, he
has not chosen to make such payment during the pendency of
R.C.A.
13. In the above circumstances, taking note of the
mandatory requirement of Section 12 of the Act, we find no reason
to interfere with Ext.P4 order dated 24.03.2021 of the Rent Control
Appellate Authority in I.A.No.3 of 2021 in R.C.A.No.4 of 2020,
especially when the petitioner has not chosen to challenge the
conditional order of stay granted by the Rent Control Appellate
Authority dated 15.12.2020.
14. In the result, this original petition fails and the same is
accordingly dismissed.
15. The learned counsel for the petitioner-tenant would
submit that the tenant shall pay the entire arrears of rent, as on
date, before the Rent Control Appellate Authority, within three
weeks from the date of receipt of a copy of this order and that, the
tenant shall continue to pay the monthly rent for the subsequent
period, without any default, pending appeal.
16. In such circumstances, we grant three weeks' time to
the petitioner-tenant, from the date of receipt of a copy of this
order, to pay arrears of rent, as on date, at the rate of Rs.6,000/-
per month.
Any coercive steps taken in execution of the order of eviction
in Ext.P1 order of the Rent Control Court in R.C.P.No.18 of 2018
shall be deferred for a period of one month, so as to enable the
tenant to make such payment and obtain further orders from the
Rent Control Appellate Authority.
Sd/-
ANIL K. NARENDRAN
JUDGE
Sd/-
K. BABU
JUDGE
yd
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE JUDGMENT IN R.C.P
18/2018 BEFORE THE RENT CONTROL COURT
PONNANI DATED 3.12.2019.
EXHIBIT P2 A TRUE COPY OF THE APPEAL MEMORANDUM IN
R.C. 4/2021 BEFORE THE RENT CONTROL
APPELLATE AUTHORITY, DISTRICT JUDGE
TIRUR DATED 14.1.2020.
EXHIBIT P3 A TRUE COPY OF THE APPLICATION
I.A.3/2021 IN R.C.A 4/2020 BEFORE THE
RENT CONTROL APPELLATE AUTHORITY,
DISTRICT JUDGE TIRUR DATED 18.3.2021.
EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 24.3.2021
IN IA 3/2021 IN R.C.A. 4/2020 BEFORE THE
RENT CONTROL APPELLATE AUTHORITY,
DISTRICT JUDGE TIRUR.
RESPONDENT'S EXHIBITS:NIL
TRUE COPY
P.A. TO JUDGE
