Anu Jose vs Manu Mithran
2022 Latest Caselaw 10618 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                              &
     THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 21ST DAY OF OCTOBER 2022 / 29TH ASWINA, 1944
                  RCREV. NO. 31 OF 2018
[AGAINST THE ORDER DATED 07.12.2017 IN RCA NO.84 OF 2015
OF II ADDITIONAL DISTRICT COURT,ERNAKULAM & RENT CONTROL
APPELLATE   AUTHORITY,ERNAKULAM   AND    THE   ORDER   IN
I.A.NO.5794 OF 2015 IN RCP NO.20 OF 2015 DATED 08.10.2015
OF THE III ADDITIONAL MUNSIFF & RENT CONTROL COURT,
ERNAKULAM]
REVISION PETITIONER/APPELLANT /RESPONDENT IN RCP:

           ANU JOSE,
           AGED 52 YEARS, W/O. JOSE, ALPHONSA LADIES
           HOSTEL, MINERVA BUILDING, DOOR NO. IX/376,C1,
           C2, C3 AND C OF THRIKKAKARA MUNICIPALITY,NEAR
           INFOPARK, KAKKANAD, KUSUMAGIRI
           P.O.,KUZHIKATTUMOOLA, ARAIDATHU ROAD, KAKKANAD
           VILLAGE, KANAYANNUR TALUKM, ERNAKULAM DISTRICT
           (PERMANENT ADDRESS - ILLICKAL
           VEETTIL,CHARAYATHCHAL, CHEMBANTHODI P.O.,
           KANNUR DISTRICT)
           BY SMT.ANU JOSE(Party-In-Person)

RESPONDENTS/RESPONDENTS/PETITIONER IN R.C.P.:

    1      MANU MITHRAN,
           AGED 32 YEARS, S/O. P.P. MITHRAN,PAINAKKAL
           HOUSE, INFOPARK ROAD,KUSUMAGIRI P.O., KAKKANAD
           VILLAGE,ERNAKULAM -682030.
    2      MANOJKUMAR,
           AGED 46 YEARS, S/O. VASU,ARIVALKUDI, CHOWARA
           DESOM,SREEMOLANAGARAM P.O., ALUVA
 R.C.Rev.Nos.31 & 32 of 2018


                               :-2-:

             TALUK,ERNAKULAM DISTRICT.
             BY ADVS.
             SRI.N.ASHOK KUMAR
             SRI.M.P.MATHEWS



      THIS    RENT   CONTROL    REVISION   HAVING   COME   UP   FOR
ADMISSION     ON    27.09.2022,    ALONG   WITH   R.C.R.NO.32    OF
2018,         THE    COURT    ON   21.10.2022     DELIVERED     THE
FOLLOWING:
 R.C.Rev.Nos.31 & 32 of 2018


                              :-3-:


          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                 &
      THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 21ST DAY OF OCTOBER 2022 / 29TH ASWINA, 1944
                  RCREV. NO. 32 OF 2018
[AGAINST THE ORDER DATED 07.12.2017 IN RCA NO.9 OF 2016
OF II ADDITIONAL DISTRICT COURT & RENT CONTROL APPELLATE
AUTHORITY,ERNAKULAM AND ORDER IN RCP NO.20 OF 2015 DATED
07.12.2015 OF III ADDITIONAL MUNSIFF & RENT CONTROL
COURT,ERNAKULAM]
REVISION PETITIONER/APPELLANT/RESPONDENT IN R.C.P.:

           ANU JOSE,
           AGED 52 YEARS,
           W/O.JOSE,ALPHONSA LADIES HOSTEL, MINERVA
           BUILDING, DOOR NO.IX/376, C1, C2, C3 & C OF
           THRIKKAKARA MUNICIPALITY,NEAR INFOPARK,
           KAKKANAD, KUSUMAGIRI P.O.,
           KUZHIKATTUMOOLA,ARAIDATHU ROAD, KAKKAND
           VILLAGE, KANAYANNUR TALUK,ERNAKULAM DISTRICT
           (PERMANENT ADDRESS - ILLICKAL
           VEETTIL,CHARAYATHCHAL, CHEMBANTHODI P.O.,
           KANNUR DISTRICT)
           BY SMT.ANU JOSE(Party-In-Person)


RESPONDENTS/RESPONDENTS/PETITIONER IN R.C.P.:

    1      MANU MITHRAN,
           AGED 32 YEARS, S/O.P.P.MITHRAN PAINAKKAL HOUSE,
           INFOPARK ROAD, KUSUMAGIRI P.O.,KAKKANAD
           VILLAGE, ERNAKULAM 692 030.
 R.C.Rev.Nos.31 & 32 of 2018


                                  :-4-:

    2          MANOJ KUMAR,
               AGED 46 YEARS
               S/O.VASU, ARIVALKUDI CHOWARA
               DESOM,SREEMOOLANAGARAM P.O., ALUVA TALUK,
               ERNAKULAM DISTRICT, PIN: 683 580.
               BY ADVS.
               SRI.N.ASHOK KUMAR(CAVEATOR)
               SRI.M.P.MATHEWS



        THIS    RENT    CONTROL    REVISION    HAVING   COME   UP   FOR
ADMISSION        ON    27.09.2022,ALONG       WITH   R.C.R.NO.31    OF
2018, THE COURT ON 21.10.2022 PASSED THE FOLLOWING:
 R.C.Rev.Nos.31 & 32 of 2018


                                :-5-:

                               ORDER

SHOBA ANNAMMA EAPEN J

The tenants are the revision petitioners. They filed the

Revision Petitions under Section 20 of the Kerala Buildings

(Lease and Rent Control) Act, 1965, challenging the Common

Order dated 07.12.2017 of the Rent Control Appellate

Authority (Additional District Judge-II), Ernakulam in

R.C.A.Nos.84 of 2015 & 9 of 2016. Both the RCAs. are from

the same RCP No.20 of 2015 filed under S.11(2)(b) & 11(3) of

the Act. Since common issues are involved in these cases,

both the cases are being disposed of by this common order.

2. RCR No.31 of 2018 is filed against the judgment in

RCA No.84 of 2015, which is filed against the Order in I.A

No.5794/15 in RCP No.20/15 filed under S.12 of the Act and

RCR No.32 of 2018 is filed against the judgment in RCA

No.9/2016, which is filed against S.12(3) final order dated

07.12.15 in R.C.P.No.20/2015 stopping the proceedings and

directing handing over of the vacant possession of the building

to the landlord.

R.C.Rev.Nos.31 & 32 of 2018

:-6-:

3. The landlord filed I.A.No.5794 of 2015 under S.12

of the Act contending that the tenant had defaulted rent. On

08.10.2015, an order was passed by the Rent Control Court

to pay the arrears of rent within 30 days of that order. The

tenant failed to deposit the arrears, in terms of the order dated

08.10.2015 under Section 12(1) of the Act and since the

reasons put forth by the tenant were not satisfactory, the Rent

Control Court on 07.12.2015 passed an order under Section

12(3) of the Act. Further proceedings in the rent control petition

were stopped and the tenant was directed to give vacant

possession of the petition schedule building to the landlord

forthwith.

4. The tenant filed R.C.A.No.84/2015 challenging

S.12(1) order and R.C.A.No.9/2016 challenging S.12(3) order.

Since common questions of law and facts were involved in these

cases, both the appeals were tried jointly by the Appellate

Authority and the Appellate Authority dismissed both the

appeals by common order dated 07.12.2017 by upholding the

findings of the rent control court.

R.C.Rev.Nos.31 & 32 of 2018

:-7-:

5. Assailing the common order, this revision under

Section 20 of the Act has been filed by the petitioner.

6. The respondents for whom a caveat was filed

entered appearance through their counsel.

7. Heard the petitioner, who appeared in person and

the learned counsel for the respondents.

8. The Rent Control Petition was filed by the landlord

for eviction on the ground of arrears of rent and bona fide

need. The landlord filed I.A.No.5794 of 2015 under Section

12 of the Act for eviction under arrears of rent. Provisions of

Section 12(1) of the Act permit to act upon the admitted rate

of rent.

9. As per Section 12(1) of the Act, the court has

jurisdiction to direct the tenant to deposit the arrears of rent

admitted to be due. Thus, in I.A.No.5794 of 2015 filed by the

landlord claiming arrears of rent, the court below, on

08.10.2015 passed an order directing the tenant to deposit the

admitted arrears of rent within one month.

10. The tenant did not comply with the order. Instead R.C.Rev.Nos.31 & 32 of 2018

:-8-:

of complying with the order, the petitioner filed RCA No.84 of

2015 before the Appellate Authority. The court below directed

to produce stay order but the stay order was not produced nor

the arrears of rent was paid. Since no satisfactory reasons

were put forth, the Rent Control Court passed the order dated

07.12.2015 and the tenant filed R.C.A.No.9 of 2016 before

the Appellate Authority and the both the appeals were tried

jointly and were dismissed by common order dated

07.12.2017. The said common order of the appellate authority

is challenged before this court by filing separate revision

petitions.

11. The petitioner submits that she paid

Rs.10,00,000/- as advance at the time of agreement and is

depending for her livelihood by running a hostel. It is further

case of the petitioner that the respondents have never

permitted the petitioner to conduct her business peacefully.

The petitioner submits that during the pendency of the

appeal, she deposited Rs.7,39,000 on 30.03.2016 and

Rs.15,52,000/- on 02.04.2016 as per the direction of the R.C.Rev.Nos.31 & 32 of 2018

:-9-:

appellate court in I.A.No.793 of 2016. The respondent filed

I.A.No.3425 of 2016 for withdrawing the amount deposited by

the petitioner- appellant. The matter was thereafter referred

to mediation. During the pendency of the mediation process,

cheque application was filed and it was allowed and the

amount was withdrawn. The petitioner alleges that the

respondents played fraud and withdrew the amount

deposited. Subsequently, I.A.No.6200 of 2016 was filed for a

direction to deposit back the amount of Rs.22,91,000/-

withdrawn by the respondent without the permission of the

court. I.A.Nos.3425/2016 and 6200/2016 were closed making

it clear that the propriety of receiving the amount from the

executing court and the liability to deposit back the said

amount should be determined along with the appeal.

12. The counsel for the respondents submits that the

tenant had admitted in the reply notice that an amount of

Rs.4,80,000/- is due calculating on the basis of the monthly

rent at the rate of Rs.1,50,000/- The court below assessed

the total rent arrears on the basis of the admission in the R.C.Rev.Nos.31 & 32 of 2018

:-10-:

reply notice. The rent arrears till May 2014 is Rs.4,80,000/-

and rent arrears from June 2014 to October 2015 is

Rs.25,50,000/-. After deducting the amount of Rs.7,39,000/-,

being the rent already paid by the petitioner for the period

from June 2014 to January 2015,

(Rs.4,80,000+Rs.25,50,000=Rs.30,30,000 - Rs.7,39,000/- is Rs.

22,91,000/-) and thus the court below found that there is a

balance amount of Rs.22,91,000/- being the admitted arrears

of rent and the respondent is entitled to get the amount

deposited. The arrears of rent deposited by the tenant was

withdrawn by filing cheque application before the court.

13. In order to ascertain the arrears admitted by the

tenant to be due, the court can have an enquiry in a limited

sense. The enquiry allowed is scrutiny of the petitions under

Sections 11 and 12 of the Act, the objections thereto and the

other materials brought on record by either parties for the

purpose of ascertaining admission regarding the rate of

monthly rent and the quantum of arrears of rent payable. If

the materials on record disclose or infer such admission, the R.C.Rev.Nos.31 & 32 of 2018

:-11-:

Court shall direct the tenant to pay or deposit the arrears of

rent due as on the date of application under Section 12 of the

Act and continue to pay subsequent rent which falls due

during the pendency of the litigation. The appellate authority

after proper appreciation of the facts and on verification of the

documents on record found that the rent agreed upon as per

the lease agreement was Rs.1,50,000/- and the admitted rate

of rent per month is Rs.1,50,000/-.

14. The contention of the petitioner that prior to

the lease agreement, there was an oral agreement and the

rent agreed upon was Rs.1,00,000/-, was found against the

petitioner after proper appreciation of facts. The further

contention of the petitioner is that she had paid an advance

amount of Rs.10,00,000/- to the landlord and the said

amount ought to have been adjusted towards the rent arrears

and further that certain amounts have been incurred by the

petitioner for maintenance of the building was not allowed by

the appellate authority finding that the rent arrears cannot be

adjusted towards the advance amount paid since time has R.C.Rev.Nos.31 & 32 of 2018

:-12-:

elapsed and the rent arrears are more than the advance

amount paid.

15. As per clause 1 in the order dated 08.10.2015 the

petitioner ought to have paid arrears of rent of Rs.4,80,000

and thereafter rent @ Rs.1,50,000 per month till 08.10.2015.

In order to avoid stoppage of proceedings under Section 12(3)

of the Act, she should have made deposits within the time

stipulated. No satisfactory explanation was offered. In the

circumstances, the order dated 07.12.2015 passed by the

Rent Control Court cannot be found fault with.

16. It is true that the petitioner deposited entire arrears

of rent during the pendency of the appeal. This Court in

Ramkumar J. v. Ashok Jacob [ILR 2021 (4) Ker. 876]

held that the consequence enjoined by an order under Section

12(3) of the Act for failure to deposit the admitted arrears in

time cannot be vacated or obliterated by payment at any

subsequent stages or periods. The order dated 07.12.2015

passed by the Rent Control Court therefore cannot be

obliterated by the deposit of rent made by the petitioner on R.C.Rev.Nos.31 & 32 of 2018

:-13-:

30.03.2016 and 02.04.2016. During the course of hearing,

the counsel for the respondent submitted that the respondent

got vacant possession of the tenanted premises and the

petitioner admitted the same.

17. The appellate authority, after considering all the

aspects, has passed the common order dated 07.12.2017 by

dismissing the appeals. The finding of the appellate authority

was on proper appreciation of facts. We, therefore, find no

reason to interfere with the impugned common order passed

by the appellate authority and the orders passed by the court

below, in the exercise of the powers of this Court under

Section 20 of the Act.

The revision petitions therefore fail and we dismiss the

same.

Sd/-

A.MUHAMED MUSTAQUE JUDGE sd/-

                                       SHOBA ANNAMMA EAPEN
MBS/                                          JUDGE