Kerala High Court
Madapurakkal Raseena vs Musthafa Maliyekkal Kakkot Rep By Pa ... on 11 April, 2024
Author: Anil K. Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
THURSDAY, THE 11TH DAY OF APRIL 2024 / 22ND CHAITHRA, 1946
O.P.(RC) NO.55 OF 2024
ORDER DATED 07.03.2024 IN I.A.NO.2 OF 2023 IN R.C.P.NO.88
OF 2023 OF THE MUNSIFF COURT, THALASSERY
PETITIONER/RESPONDENTS/RESPONDENTS:
1 MADAPURAKKAL RASEENA,
AGED 48 YEARS,
W/O. A.C. MUHAMMED HARIS, RESIDING AT H.M.
COMPLEX (MONARCH TAILORS), NEAR RAILWAY FLY OVER
BRIDGE, SANGAMAM JUNCTION, THALASSERY, ALSO
HAVING ADDRESS AT MADAPURAKKAL RASEENA, AGED 48
YEARS, W/O. A.C. MUHAMMED HARIS, RESIDING AT
"SAFEEGHAR' PANDAKKAL, MAHE, MAHE COMMUNE,
PUTHUSSERY STATE, KANNUR DISTRICT, PIN - 670101
2 A.C. MUHAMMED HARIS,
AGED 58 YEARS
H/O. MADAPURAKKAL RASEENA, H.M. COMPLEX (MONARCH
TAILORS), NEAR RAILWAY FLY OVER BRIDGE, SANGAMAM
JUNCTION, THALASSERY, ALSO HAVING ADDRESS AT ,
A.C. MUHAMMED HARIS, AGED 48 YEARS, H/O.
MADAPURAKKAL RASEENA RESIDING AT "SAFEEGHAR'
PANDAKKAL, MAHE, MAHE COMMUNE, PUTHUSSERY STATE,
KANNUR DISTRICT, PIN - 670101
BY ADVS.
CIBI THOMAS
G.KRISHNAKUMARI
RESPONDENT/PETITIONERS/PETITIONERS:
1 MUSTHAFA MALIYEKKAL KAKKOT REP BY PA HOLDER
MUHAMMED NABEEL
AGED 71 YEARS
S/O. BAVACHI, WORKING ABROAD, 'STAR VIEW HOUSE',
THIRUVANGAD AMSOM DESOM, CHIRAKKARA P.O.,
2
O.P.(RC)No.55 OF 2024
THALASSERY, KANNUR DISTRICT - 670104, REP. BY PA
HOLDER SON, MUHAMMED NABEEL, S/O. MUSTHAFA, AGED
28 YEARS, PASSPORT NO. L905762 RESIDING AT 'STAR
VIEW HOUSE', THIRUVANGAD AMSOM DESOM, CHIRAKKARA,
THALASSERY TALUK, KANNUR DISTRICT, PIN - 670104
2 ZEENATH CHERIYA KAYYATH,
AGED 61 YEARS
W/O. LATE. HARIS, AADHAR CARD NO. 431797761355
RESIDING AT 'AYSHAS', OPP. GULSAR, NEAR SAIDAR
MOSQUE, THIRUVANGAD AMSOM DESOM, TEMPLEGATE,
THALASSERY TALUK, KANNUR, PIN - 670102
3 MOHAMMED AZHAD,
AGED 40 YEARS
S/O. LATE HARIS, PASSPORT NO. S7694133, RESIDING
AT AYSHAS', OPP. GULSAR, NEAR SAIDAR MOSQUE,
THIRUVANGAD AMSOMDESOM, TEMPLEGATE, THALASSERY
TALUK, KANNUR - 670102. REPRESENTED BY PA HOLDER
SISTER NO.6 AYSHA NISHAD, D/O. LATE HARIS & W/O.
NISHAD, AGED 34 YEARS, AADHAR CARD
NO.226850118313, RESIDING AT AYSHAS', OPP.
GULSAR, NEAR SAIDAR MOSQUE, THIRUVANGAD
AMSOMDESOM, P.O.TEMPLEGATE, THALASSERY TALUK,
KANNUR, PIN - 670102
4 MOHAMMED ARSHAD,
AGED 38 YEARS
S/O. LATE HARIS, PASSPORT NO. S3874505, RESIDING
AT AYSHAS', OPP. GULSAR, NEAR SAIDAR MOSQUE,
THIRUVANGAD AMSOMDESOM, TEMPLEGATE, THALASSERY
TALUK, KANNUR - 670102. REPRESENTED BY PA HOLDER
SISTER NO.6 AYSHA NISHAD, D/O. LATE HARIS, & W/O.
NISHAD, AGED 34 YEARS, AADHAR CARD NO.
226850118313, RESIDING AT AYSHAS', OPP. GULSAR,
NEAR SAIDAR MOSQUE, THIRUVANGAD AMSOMDESOM,
P.O.TEMPLEGATE, THALASSERY TALUK, KANNUR, PIN -
670102
5 MOHAMMED ARFATH,
AGED 38 YEARS
S/O. LATE HARIS, PASSPORT NO. Z3349496, RESIDING
AT AYSHAS', OPP. GULSAR, NEAR SAIDAR MOSQUE,
THIRUVANGAD AMSOM DESOM, TEMPLEGATE, THALASSERY
TALUK, KANNUR - 670102. REPRESENTED BY PA HOLDER
SISTER NO.6 AYSHA NISHAD, D/O. LATE HARIS, & W/O.
NISHAD, AGED 34 YEARS, AADHAR CARD NO.
3
O.P.(RC)No.55 OF 2024
226850118313, RESIDING AT AYSHAS', OPP. GULSAR,
NEAR SAIDAR MOSQUE, THIRUVANGAD AMSOMDESOM,
P.O.TEMPLEGATE, THALASSERY TALUK, KANNUR, PIN -
670102
6 AYSHA NISHAD,
AGED 34 YEARS
D/O. LATE HARIS, AADHAR CARD NO. 226850118313,
RESIDING AT AYSHAS', OPP. GULSAR, SAIDARPALLI,
NEAR SAIDAR MOSQUE, THIRUVANGAD AMSOMDESOM,
TEMPLEGATE P.O., THALASSERY TALUK, KANNUR, PIN -
670102
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON
11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
4
O.P.(RC)No.55 OF 2024
JUDGMENT
Anil K. Narendran, J.
The petitioners are the tenants in R.C.P.No.88 of 2023, which
was one filed by the respondents-landlords invoking the provisions
under Sections 11(2)(b), 11(3), 11(4)(i), 11(4)(ii), 11(4)(iii) and
11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965,
seeking eviction of the tenants from the petition schedule building.
During the pendency of that R.C.P., the landlords filed I.A.No.2 of
2023, invoking the provisions under Section 12 of the Act, seeking
an order directing the tenants to deposit the admitted arrears of rent
and continue to pay rent for the subsequent period, during the
pendency of that proceedings. In that interlocutory application, the
Rent Control Court passed Ext.P4 order dated 07.03.2024, whereby
the tenants are directed to pay the entire arrears of rent at the rate
of Rs.31,855/- per month from July 2019 till the date of payment in
lump sum, within a period of four weeks from the date of that order.
The tenants are further directed to pay rent for the subsequent
period, within 15 days from the date on which it falls due. The
tenants have filed this original petition, invoking the supervisory
jurisdiction of this Court under Article 227 of the Constitution of India,
seeking an order to set aside Ext.P4 order dated 07.03.2024 or grant
12 months' time to make payment of arrears of rent, as directed in
O.P.(RC)No.55 OF 2024
that order dated 07.03.2024. They have also sought for an order
permitting the tenants to make payment of arrears in 20 equal
monthly installments.
2. Heard the learned counsel for the petitioners-tenants.
3. The issue that requires consideration in this original
petition is as to whether the petitioners can invoke the supervisory
jurisdiction of this Court under Article 227 of the Constitution of India,
seeking installment facility for payment of admitted arrears of rent
in terms of the order passed by the Rent Control Court in exercise of
its powers under Section 12 of the Act.
4. Section 12 of the Act deals with payment or deposit of
rent during the pendency of proceedings for eviction. As per Section
12(1), 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
O.P.(RC)No.55 OF 2024
termination of the proceedings before the Rent Control Court or the
Appellate Authority, as the case may be. As per Section 12(2), 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 Section 12(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.
As per Section 12(3) 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 Section 12(4), 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.
O.P.(RC)No.55 OF 2024
5. Section 12(1) of the Act enjoins a tenant, against whom
an application for eviction has been made by a landlord under Section
11, to pay to the landlord, or deposit with the Rent Control Court, 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 continue to pay
or deposit any rent which may subsequently become due in respect
of the building, until the termination of the proceedings before the
Rent Control Court, in order to contest that application for eviction
before the Rent Control Court. Similarly, Section 12(1) of the Act
enjoins a tenant, in order to prefer an appeal under Section 18 of the
Act against any order made by the Rent Control Court on an
application made by a landlord under Section 11, to pay the landlord,
or deposits with the Appellate Authority, 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 Appellate Authority.
6. The liability of a tenant under Section 12(1) of the Act,
against whom an application for eviction has been made by a
landlord under Section 11, or who prefer an appeal under Section 18
of the Act, against any order made by the Rent Control Court on an
application made by a landlord under Section 11, is limited to all
O.P.(RC)No.55 OF 2024
arrears of rent admitted by the tenant to be due in respect of the
building, up to the date of payment or deposit, and he shall continue
to pay or 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.
7. The object of the provisions of Section 12(1) of the Act is
to deny the defaulting tenant the right to contest the application for
eviction before the Rent Control Court, or to prefer an appeal under
Section 18 of the Act against any order made by the Rent Control
Court on an application made by a landlord under Section 11, unless
he 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 him 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.
8. In J. Ramkumar v. Ashok Jacob [2022 (1) KHC 495 :
ILR 2021 (4) Kerala 876] this Court held that, Section 12(2) of
the Act enjoins a tenant to deposit the admitted rent under sub-
section (1), within such time as the court may fix and in such manner
O.P.(RC)No.55 OF 2024
as may be prescribed. The time fixed by the court for the deposit of
the arrears of rent and the time fixed for the deposit of rent which
subsequently accrues due shall not be less than that specified in the
proviso to Section 12(2). As per the statutory mandate of Section
12(1), on an application filed by the landlord under Section 12, the
Rent Control Court or the Appellate Authority, as the case may be,
has to order payment or deposit of arrears of rent admitted by the
tenant to be due in respect of the petition schedule building, up to
the date of payment or deposit and the tenant shall also be directed
to continue to pay or 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,
regardless of the relief sought for in that application. As per Section
12(3) 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.
9. The contention raised by the learned counsel for the
petitioners is that the tenants had to spend more than Rs.50 lakhs
for completing the construction of the building, which has to be
adjusted towards the payment of admitted arrears of rent ordered to
O.P.(RC)No.55 OF 2024
be made by the impugned order dated 07.03.2024 of the Rent
Control Court in I.A.No.2 of 2023 in R.C.P.No.88 of 2023.
10. In Gopala Panicker Baiju and another v. Mallika
[2018 (5) KHC 95] the Division Bench of this Court had occasion
to deal with a case in which the tenants raised a contention that, no
amount was due from them as arrears of rent. That apart, they had
spent more than Rs.3,00,000/- for renovation of the building and the
landlady is liable to adjust the said amount towards rent. Thus,
according to the tenants, there is no admitted arrears of rent payable
under Section 12(1) of the Kerala Buildings (Lease and Rent Control)
Act. Unless the tenant himself admits in the objection to the petition
under Section 12 of the Act or in the counter statement filed in the
Rent Control Petition that any amount is due to the landlord, as
arrears of rent, there cannot be any admitted arrears of rent. In short,
the contention was that the simple denial of the tenant would absolve
him from the liability to deposit the admitted arrears under Section
12 of the Act.
11. In Gopala Panicker Baiju [2018 (5) KHC 95] the
Division Bench held that, the admitted arrears of rent contemplated
under Section 12(1) of the Act need not be an admission in the rent
control proceedings itself and it cannot be insisted that the
acceptance of the arrears or the quantum of admitted arrears of rent
O.P.(RC)No.55 OF 2024
should come by the express words from the tenant himself in his
counter statement in the Rent Control Petition or in the objection to
the application filed under Section 12 of the Act by the landlord. But,
it can be inferred from any document containing admission, as to the
rate of rent, and period of default made by the tenant. The relevant
factors, from which 'arrears of rent', can be inferred are the rate of
rent and period of default. Normally, the rent deed executed by the
tenant is a document which contains admission as to the rate of rent
made by the tenant. The periodical enhancement in the rate of rent
is evident from the rent receipts, in case the rent deed is not current.
Similarly, the rent receipts, postal receipts or bank records,
contemplated under Section 9(2) of the Act, produced by the tenant,
are the documents which would suggest the period for which rent is
paid. According to Section 9(1) of the Act, the tenant is entitled to
get receipt on payment of rent and in case of refusal, an alternative
remedy for payment of rent is also provided in Section 9(2) of the
Act. Therefore, a tenant cannot be heard to say that the landlord
refused to issue receipt, on payment of rent. The rent receipt is a
statutorily accepted substantive evidence from which the period of
default can be inferred indirectly. According to Taylor on evidence,
an admission may be direct or indirect, express or implied. Therefore,
rent receipts, money order receipts and other bank records provided
O.P.(RC)No.55 OF 2024
under Section 9 of the Act are documents containing admission which
would suggest an inference indirectly as to the period of default also.
The term 'admitted arrears of rent' has to be understood and
construed in conformity with statutorily recognised payment only.
Therefore, for the determination of a petition under Section 12 of the
Act, it is permissible to require production of rent deed by the
landlord and rent receipt or document mentioned in Section 9(2) of
the Act by the tenant. These materials would obviously show the
admitted arrears of rent, without conducting any enquiry or
adjudication.
12. In Gopala Panicker Baiju [2018 (5) KHC 95] the
Division Bench noticed that, any kind of set off or adjustment
towards arrears of rent cannot be accepted, while considering an
application under Section 12 of the Act, as such counter claims
require enquiry and adjudication. Neither Section 11(2)(b) nor
Section 12 of the Act recognises or permits any kind of set off,
adjustment or counter claim by the tenant towards arrears of rent or
admitted arrears. The enabling provision which permits set off
towards rent is Section 17(2) of the Act and the same is permissible,
where an order to that effect is passed by the Accommodation
Controller, on satisfaction of the failure on the landlord to attend to
maintenance and necessary repairs of the building.
O.P.(RC)No.55 OF 2024
13. In Gopala Panicker Baiju [2018 (5) KHC 95] the
Division Bench concluded that the admitted arrears is an amount that
can be quantified by the Rent Control Court from the rent deed
produced by the landlord and the receipts or documents specified
under Section 9 of the Act, evidencing payment of rent, produced by
the tenants, unless the rent deed contains anything to the contrary.
To sum up, the tenant cannot be allowed to wriggle out from the
statutory liability, under Section 12 of the Act, by a blank denial in
his counter statement or objection to the application filed under
Section 12 of the Act, where the rent deed and receipts would
quantify an amount, as admitted arrears of rent, from the admissions
therein; but otherwise, the determination empowered with the Rent
Control Court contemplated under Section 12(1) of the Act would
come to an end, on a bare denial of the tenant and thereby the
purpose of Section 12 of the Act itself would be defeated.
14. Article 227 of the Constitution of India deals with power
of superintendence over all courts by the High Court. Under clause
(1) of Article 227 of the Constitution, every High Court shall have
superintendence over all courts and tribunals throughout the
territories in relation to which it exercises jurisdiction.
15. In Shalini Shyam Shetty v. Rajendra Shankar Patil
[(2010) 8 SCC 329] the Apex Court, while analysing the scope and
O.P.(RC)No.55 OF 2024
ambit of the power of superintendence under Article 227 of the
Constitution, held that the object of superintendence, both
administrative and judicial, is to maintain efficiency, smooth and
orderly functioning of the entire machinery of justice in such a way
as it does not bring it into any disrepute. The power of interference
under Article 227 is to be kept to the minimum to ensure that the
wheel of justice does not come to a halt and the fountain of justice
remains pure and unpolluted in order to maintain public confidence
in the functioning of the tribunals and courts subordinate to the High
Court.
16. In Jai Singh v. Municipal Corporation of Delhi
[(2010) 9 SCC 385], while considering the nature and scope of the
powers under Article 227 of the Constitution of India, the Apex Court
held that, undoubtedly the High Court, under Article 227 of the
Constitution, has the jurisdiction to ensure that all subordinate courts,
as well as statutory or quasi-judicial tribunals exercise the powers
vested in them, within the bounds of their authority. The High Court
has the power and the jurisdiction to ensure that they act in
accordance with the well established principles of law. The exercise
of jurisdiction must be within the well recognised constraints. It
cannot be exercised like a 'bull in a china shop', to correct all errors
of the judgment of a court or tribunal, acting within the limits of its
O.P.(RC)No.55 OF 2024
jurisdiction. This correctional jurisdiction can be exercised in cases
where orders have been passed in grave dereliction of duty or in
flagrant abuse of fundamental principles of law or justice.
17. In K.V.S. Ram v. Bangalore Metropolitan Transport
Corporation [(2015) 12 SCC 39] the Apex Court held that, in
exercise of the power of superintendence under Article 227 of the
Constitution of India, the High Court can interfere with the order of
the court or tribunal only when there has been a patent perversity in
the orders of the tribunal and courts subordinate to it or where there
has been gross and manifest failure of justice or the basic principles
of natural justice have been flouted.
18. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1)
KHC 1] a Division Bench of this Court held that, the law is well
settled by a catena of decisions of the Apex Court that in proceedings
under Article 227 of the Constitution of India, this Court cannot sit in
appeal over the findings recorded by the lower court or tribunal and
the jurisdiction of this Court is only supervisory in nature and not
that of an appellate court. Therefore, no interference under Article
227 of the Constitution is called for, unless this Court finds that the
lower court or tribunal has committed manifest error, or the
reasoning is palpably perverse or patently unreasonable, or the
decision of the lower court or tribunal is in direct conflict with settled
O.P.(RC)No.55 OF 2024
principles of law.
19. In view of the law laid down in the decisions referred to
supra, the petitioners cannot invoke the supervisory jurisdiction of
this Court under Article 227 of the Constitution of India for seeking
12 months' time to make payment of admitted arrears of rent in
terms of the directions contained in Ext.P4 order dated 07.03.2024
of the Rent Control Court, which is one issued in exercise of its
powers under Sections 12(1) and (2) of the Act. In view of the law
laid down by this Court in Gopala Panicker Biju [2018 (5) KHC
95] and J. Ramkumar [2022 (1) KHC 495] the challenge made
in this original petition against Ext.P4 order dated 07.03.2024 of the
Rent Control Court in I.A.No.2 of 2023 in R.C.P.No.88 of 2023 cannot
be sustained in law. Any default committed by the petitioner in
remitting the admitted arrears of rent, in terms of the directions
contained in Ext.P4 order, within the time limit stipulated therein,
without sufficient cause, would attract the provisions under Section
12(3) of the Act.
In the result, this original petition fails and the same is
accordingly dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
HARISANKAR V. MENON, JUDGE
MIN
O.P.(RC)No.55 OF 2024
APPENDIX OF OP (RC) 55/2024
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE RENT CONTROL PETITION IN
RCP NO. 88/2023 ON THE FILE OF THE RENT
CONTROL COURT, THALASSERY
EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT DATED
01.11.2023 FILED IN SUPPORT OF IA. NO.
EXHIBIT P3 TRUE COPY OF THE COUNTER DATED 15.12.2023
IN IA. NO. 2/2023 IN RCP.NO. 88/2023
EXHIBIT P4 CERTIFIED COPY OF THE ORDER DATED
07.03.2024 IN IA. NO. 02/2023 IN
R.C.P.88/2023 ON THE FILE OF THE RENT
CONTROL COURT, THALASSERY
