K.M. Abdul Samad vs Muhammed Rafi Saithalavi
2022 Latest Caselaw 9207 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                &
         THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
                     R.C.REV.NO. 119 OF 2022
  AGAINST THE JUDGMENT DATED 26.03.2022 IN R.C.A.NO.166 OF
  2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL
DISTRICT JUDGE-IV), KOZHIKODE AND THE ORDER DATED 13.08.2019
 IN I.A.NO.2081 OF 2019 IN R.C.P.NO.186 OF 2018 OF THE RENT
       CONTROL COURT (PRINCIPAL MUNSIFF-I), KOZHIKODE
REVISION PETITIONER:

         K.M. ABDUL SAMAD
         AGED 64 YEARS, S/O. M. ALI KOYA,
         ROOM NO 8/16,R.C.ROAD, NEAR TAGORE CENTENARY HALL
         NAGARAM AMSOM & DESOM, KOZHIKODE, PIN - 673032.
         BY ADVS.
         K.M.FIROZ
         M.SHAJNA


RESPONDENT:

         MUHAMMED RAFI SAITHALAVI,
         AGED 52 YEARS, S/O. SAITHALAVI, THOTTUNGAL
         VALAPPIL, GRAND HOUSE, FRANCIS ROAD, NAGARAM
         AMSOM AND DESOM,
         KOZHIKODE TALUK, PIN - 673001.
         BY ADV G.SREEKUMAR (CHELUR)



     THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 29.07.2022, THE COURT ON 10.08.2022 DELIVERED THE
FOLLOWING:
                                 2
R.C.Rev.No.119 of 2022


                          ORDER

Ajithkumar, J.

The revision petitioner is the tenant. He was the

respondent in R.C.P.No.186 of 2018 on the file of the Rent

Control Court (Principal Munsiff-I), Kozhikode. The

respondent-landlord filed that R.C.P. seeking eviction under

Section 11(3) of the Kerala Buildings (Lease and Rent Control)

Act, 1965. The respondent filed I.A.No.2081 of 2019 in the

R.C.P. under Section 12 of the Act. That petition was allowed

on 26.11.2019 and on stopping further proceedings in the

R.C.P., the petitioner was directed to put the respondent in

vacant possession of the petition schedule building as

provided under Section 12(3) of the Act. An appeal as

R.C.A.No.166 of 2019 was filed by the petitioner before the

Appellate Authority (Additional District Judge-IV), Kozhikode

under Section 18(1)(b) of the Act. The appeal was dismissed.

Hence, the petitioner came in revision under Section 20 of the

Act.

R.C.Rev.No.119 of 2022

2. When this matter came up for admission on

12.07.2022, notice was ordered to be served on the

respondent. Interim order of stay against the execution of the

order of eviction was granted initially for a period of one

week. The order was later extended by three more weeks.

3. Heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the

respondent.

4. I.A.No.2081 of 2019 was filed by the respondent

contending that rent at the rate of Rs.1,325/- since

01.06.2013 has been in arrears. The petitioner did not dispute

the rate of rent. He, however, contended that the entire rent

has been paid. His case was that along with the reply sent to

the respondent's counsel, a cheque for the entire arrears of

rent was forwarded and the same was encashed by the

respondent. Further contention was that the rent for the

subsequent period was paid directly, but no receipt was issued

by the respondent. Thus, the petitioner took the stand that

there was no rent in arrears.

R.C.Rev.No.119 of 2022

5. After hearing both sides, the Rent Control Court as

per order dated 13.08.2019 directed the petitioner under

Section 12(1) of the Act to pay admitted arrears of rent. The

matter was posted on 23.09.2019 for making payment. Since

no payment was made and the petitioner sought time, the

matter was adjourned to 24.10.2019. Observing that no

payment as per the direction in the order dated 13.08.2019

was effected, the matter was adjourned to 26.11.2019,

thereby affording an opportunity to the petitioner to show

cause why proceedings should not be stopped. On the said

day, the Rent Control Court passed the following order:-

"Respondent was directed to pay admitted arrears of rent as per order dated 13.08.2019 in IA 2081/2019. Sufficient time as contemplated under law was granted and respondent failed to comply with the order. As per order dated 24.10.2019, the respondent was directed to show cause on the contrary why all further proceedings shall not be stopped and eviction be ordered. Respondent has not submitted any explanation in response to the same.

In the result, all further proceedings in the matter are stopped invoking provisions under Section 12(3) of the

R.C.Rev.No.119 of 2022

Kerala Buildings (Lease and Rent Control) Act. Respondent is directed to put the petitioner in possession of the building."

6. In the appeal, the petitioner took up the contention

that the order dated 13.08.2019 is incorrect insofar as there

has not been any quantification of rent in arrears. Since the

direction was only to pay admitted arrears of rent, without

stating the quantum, it was not possible for the petitioner to

make payment and therefore the petitioner could not have

been found at fault for non-payment. The Appellate Authority

took the stand that even if the amount was not quantified in

the order dated 13.08.2019, the petitioner did not dispute the

fact that the rent from January 2019 remained unpaid. It is

post litigation period. Holding that the petitioner failed to

make payment of rent since January 2019, the Appellate

Authority justified the order passed by the Rent Control Court

on 13.08.2019 under Section 12(3) of the Act.

7. The learned counsel appearing for the petitioner

would contend that when the Appellate Authority found that

the rent admitted to be in arrears was from January 2019 in

R.C.Rev.No.119 of 2022

modification of the order of the Rent Control Court dated

13.08.2019, the Appellate Authority ought to have given an

opportunity to the petitioner to make payment of the rent

found to be in arrears. It is contended that in that view of

the matter, the judgment dated 26.03.2022 confirming the

order under Section 12(3) of the Act, is unsustainable in

law.

8. It is a fact that the order dated 13.08.2019 did not

quantify the amount, which was in arrears. What was ordered

is only to make payment of the admitted arrears of rent within

four weeks. Going by the findings of the Appellate Authority

the rent in arrears is from January 2019 onwards. Before

passing the order under Section 12(3) of the Act, it is obvious

that the petitioner did not get a definite direction as to what

shall be the amount due to be paid. Since the rival

contentions regarding the arrears of rent were not convergent

and a definite finding was not rendered by the Rent Control

Court, it cannot be said that the order dated 13.08.2019 is in

terms of Section 12(1) of the Act.

R.C.Rev.No.119 of 2022

9. The petitioner also claimed that he made payment

of the rent for the subsequent period as well. The claim was

that he made payments directly to the respondent. But that

claim is unsupported by any evidence.

10. In Nandanam Tiles and Sanitaries (P) Ltd. v.

Abdul Gafoor (2022 (4) KHC 201], a Division Bench of this

Coiurt, after referring to the decisions in Bhaskaran Assan

v. Ammukutty Amma [1992 (2) KLT 565] and

Sukumaran v. Hamsa Haji [2014 (3) KLHC 667] has held

that Section 9 of the Act provides that a tenant is entitled to

demand and obtain a receipt for the payment of rent made by

him to the landlord. It also provides that in a case where the

landlord refuses to issue a receipt, it is open to the tenant to

send the rent by way of money order after deducting the

money order commission or issue a notice to the landlord

requiring the landlord to specify a bank into which the tenant

could remit the rent due. This statutory provision is a

protection to the tenant and it is for the tenant to make use of

such protection in a case where the landlord refuses to issue

R.C.Rev.No.119 of 2022

receipt to the tenant. Any prudent tenant would and should

resort to Section 9 of the Act in cases where the landlord

refuses to issue receipt to him on his paying the rent due. If

he is not prudent enough to resort to that course it will

require very strong evidence on his side to substantiate a plea

that he has paid the rent without obtaining receipts for the

same.

11. In view of the said principle of law, the contention

of the petitioner that he had paid rent during the period after

January 2019 cannot be countenanced. However, inasmuch as

the order directing payment of the rent admitted to be in

arrears was not definite, there is non-compliance with Section

12(1) of the Act, and therefore, the order dated 13.08.2019

under Section 12(1) and the order dated 26.11.2019 under

Section 12(3) of the Act could not stand scrutiny of law.

12. In the said circumstances, the said orders are liable

to be set aside. Accordingly, we allow this revision petition.

Judgment dated 26.3.2022 in R.C.A No.166 of 2019 of the

Appellate Authority (Additional District Judge-IV), Kozhikode

R.C.Rev.No.119 of 2022

and orders dated 13.8.2019 and 26.11.2019 in I.A.No.2081 of

2019 in R.C.P.No.186 of 2018 passed by the Rent Control

Court, Kozhikode are set aside. The Rent Control Court is

directed to consider I.A.No.2081 of 2019 afresh, in

accordance with law.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr