Kerala High Court
Isac vs Annapoorni Jayakrishnan on 5 July, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 5TH DAY OF JULY 2023 / 14TH ASHADHA, 1945
OP (RC) NO. 97 OF 2023
(AGAISNT THE ORDER IN IA 3/2022 IN RCP 11/2022 OF THE THIRD
ADDITIONAL MUNSIFF & RENT CONTROLLER, ERNAKULAM
PETITIONER/RESPONDENT:
ISAC, AGED 54 YEARS
S/O JOHN, 27/224, KOLATH HOUSE,
K. P. VALLON ROAD,
KADAVANTHRA, KOCHI, PIN - 682020
BY ADV MANU ROY
RESPONDENT/PETITIONER:
N. JAYAKRISHNAN, AGED 63,
S/O NARAYANA SWAMY, 8H, NJK SIVAM,
8TH FLOOR, LAYAM ROAD,
KOCHI - 682011
BY ADVS.
A.BALAGOPALAN
M.S.IMTHIYAZ AHAMMED
M.N.MANMADAN
A.RAJAGOPALAN
P.SEENA
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON
05.07.2023, ALONG WITH OP (RC).98/2023, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
O.P(RC) Nos.97 & 98 of 2023 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 5TH DAY OF JULY 2023 / 14TH ASHADHA, 1945
OP (RC) NO. 98 OF 2023
(AGAISNT THE ORDER IN IA 3/2022 IN RCP 10/2022 OF THE THIRD
ADDITIONAL MUNSIFF & RENT CONTROLLER, ERNAKULAM
PETITIONER/RESPONDENT:
ISAC, AGED 54 YEARS
S/O JOHN, 27/224,
KOLATH HOUSE, K. P. VALLON ROAD,
KADAVANTHRA, KOCHI, PIN - 682020
BY ADV MANU ROY
RESPONDENT/PETITIONER:
ANNAPOORNI JAYAKRISHNAN,
AGED 53 YEARS
S/O N. JAYAKRISHNAN, 8H,
NJK SIVAM, 8TH FLOOR, LAYAM ROAD,
KOCHI, PIN - 682011
BY ADVS.
A.BALAGOPALAN
M.N.MANMADAN
M.S.IMTHIYAZ AHAMMED
P.SEENA
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON
05.07.2023, ALONG WITH OP (RC).97/2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
O.P(RC) Nos.97 & 98 of 2023 3
A.K.JAYASANKARAN NAMBIAR,
&
MOHAMMED NIAS C.P., JJ
..............................................................
O.P(RC) Nos.97 and 98 of 2023
.............................................................
Dated this the 5th day of July, 2023
JUDGMENT
Mohammed Nias C.P., J.
The above original petitions are preferred by the tenant in RCP
10/22 and RCP 11/22 on the files of the III Additional Munsiff and Rent
Controller, Ernakulam.
2. RCP No.10/2022 was filed by the landlord/respondent herein
under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control)
Act, 1965, (for short, 'Act') stating that the building in question was let out
to the tenant, as per an agreement dated 4.4.2018 fixing a monthly rent of
Rs.20,000/-. Alleging that the tenant had committed default from October
2019 onwards and that a total amount of Rs.6,31,674/- is due with interest
at the rate of 6% per annum, the application was filed for eviction.
3. RCP No.11/2022 was filed stating that the building was let out to
the tenant as per an agreement dated 20.11.2018 for a monthly rent of
Rs.50,000/- with a provision for renewal of the lease agreement with an
annual increase of 5% till 2023. Alleging that the rent is in default from
October 2019 and that a total amount of Rs.14, 15,399/- is due from the
tenant, the petition for eviction was filed under Section 11(2)(b). The
tenants had filed objections stating that they had spent more than Rs.21
lakhs for furnishing the shop rooms to suit the ISO certification standards
for starting a medical shop and that as per the order in W.P(C)
No.19238/2019, a stay was granted by this Court interdicting all
commercial activities in the scheduled building and it was suppressing all
these facts that the building was let out. It is also alleged that the
construction was unauthorised and therefore, the tenant was unable to get
the licence for running the medical shop. Since the tenant could not
occupy the scheduled building even for a day, it was contended that the
landlord was not entitled to collect any rent.
4. In the rent control proceedings, the landlord filed a petition as
I.A.No.3/2022 under Section 12 of the Act for a direction to the tenant to
pay the admitted arrears of rent. The tenant has filed a counter affidavit
opposing the prayer in IA. 3/2022 on almost identical lines as the counter
filed to the rent control petition. The tenant had also filed an application
as I.A.No.4/2022 seeking permission to cross-examine the landlord. The
landlord had filed a counter to the said application. The grievance of the
original petitioner is that without considering IA.4/2022 filed in IA.
3/2022, by Ext.P7 order, Section 12 applications in both cases were
allowed by the Rent Controller. It is challenging the said orders these
original petitions are filed.
5. We have heard Sri. Manu Roy, the learned counsel for the original
petitioner/tenant, and Sri.A. Balagopalan, the learned counsel for the
respondent/landlord.
6. Having heard the learned counsel for the parties and perusing the
impugned orders along with the available records, we do not find any
reason to interfere with the impugned orders. Though the tenant had filed
RCA No.3/2023 against the order in RCP No.10/2022 and RCA No.6/2023
against the order in RCP No.11/2022, both of them were dismissed,
stating that the order passed under Section 12(1) of the Act is only a
temporary order and that no appeal will lie against the said order, as the
tenant can challenge the legality of the order under Section 12(1) in case
he is challenging the order to be passed under Section 12(3). The Rent
Controller found that the first limb of Section 12 stands for pre-litigation
arrears of rent. But, the second limb, the expression "admitted arrears,"
is absent as the second part deals with the payment of subsequent
monthly rent, which may become due after the filing of the rent control
petition. The tenant in the instant case had stated that he had paid rent
up to September 2019, and as it was on the rent fixed in the document,
the Rent Controller found that the said amount was treated as the
admitted amount.
7. We do not find anything illegal in the trial court taking such a
view, more so in the light of the judgment of this Court in Gopala Panicker
Baiju v. Mallika [2018 (5) KHC 95]. The argument of the tenant/petitioner
is that he had spent more than Rs.21 lakhs for furnishing the building,
which the landlord knew was an illegal construction. Further, he was
interdicted from carrying on any commercial activity on account of the
stay granted by this Court. According to the learned counsel, in such
circumstances, the landlord cannot demand the rent, and there is no
liability on the part of the tenant to pay the same. We cannot accept this
contention. It is not disputed that an agreement was entered into with
fixing a monthly rent, and that has to be taken as the admitted rent within
the meaning of Section 12 of the Act. There is no case for the tenant that
the rent as fixed has been paid. In such circumstances, the order passed
by the Rent Controller under Section 12 calls for no interference.
8. Regarding the second contention that his application for
permission to examine the landlord was not considered before passing
orders under Section 12(1), we hold that the same was not warranted at
the stage of Section 12. We find no fault in the Rent Controller not
allowing the said application before passing orders under Section 12(1) of
the Act. As soon as the tenant occupies the premises, he is liable to pay
the fixed monthly rent. If it is his case that he had spent the amount and
had suffered a loss, it is open to him to institute appropriate proceedings
to recover the same. But the same cannot be a defence for not paying the
rent due to the landlord as long as he is occupying the premises.
We find nothing wrong in Ext.P7 order passed in both cases. The
original petitions fail and are accordingly dismissed.
Sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
MOHAMMED NIAS C.P.,
JUDGE
okb/
APPENDIX OF OP (RC) 98/2023
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF PETITION FILED AS R.C.P NO: 10/22
Exhibit P2 TRUE COPY OF THE OBJECTION IN R.C.010/2022
Exhibit P3 TRUE COPY OF THE PETITION FILED AS I.A NO: 3/22
Exhibit P4 TRUE COPY OF COUNTER AFFIDAVIT FILED IN I.A. NO:
Exhibit P5 TRUE COPY THE PETITION FILED AS I.A NO: 4/2022
Exhibit P6 TRUE COPY OF COUNTER AFFIDAVIT FILED IN I.A NO:
Exhibit P7 TRUE COPY OF ORDER IN I.A 3/2022 DATED 23-12-22
Exhibit P8 TRUE COPY OF ORDER IN R.C.A NO. 3/2023 DATED
10/04/2023
APPENDIX OF OP (RC) 97/2023
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF PETITION FILED AS R.C.P NO: 11/22
DATED 13.01.2022
Exhibit P2 TRUE COPY OF THE OBJECTION IN R.C.P 11/2022 DATED
11.08.2021
Exhibit P3 TRUE COPY OF THE PETITION FILED AS I.A NO: 3/22
DATED 16.08.2022
Exhibit P4 TRUE COPY OF COUNTER AFFIDAVIT FILED IN I.A. NO:
3/22 DATED 24.08.2022
Exhibit P5 TRUE COPY THE PETITION FILED AS I.A NO: 4/2022
DATED 28.11.2022
Exhibit P6 TRUE COPY OF COUNTER AFFIDAVIT FILED IN I.A NO:
4/22 DATED 21.12.2022
Exhibit P7 TRUE COPY OF ORDER IN I.A3/2022 DATED 23-12-22
Exhibit P8 TRUE COPY OF ORDER IN R.C.A NO. 6/2023 DATED
10.04.2023
