Kerala High Court
Beena Karayi vs Shubha K.V on 15 February, 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 G. GIRISH
THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
RCREV. NO. 297 OF 2023
ORDER DATED 29.09.2022 IN RCP 242/2018 AND ORDER DATED
22.05.2023 IN RCA 29/2023
REVISION PETITIONERS/PETITIONER IN EA OF EP IN RCP:
1 BEENA KARAYI AGED 51 YEARS W/O MURALIDHARAN,
VINAYAK, NEAR RAILWAY GATE, THAZHE CHOVVA, KANNUR,,
ALSO AT BRUTS BEAUTY STUDIO (HAIR AND SKIN) PRIVATE
LTD., KANNUR MALL, SN PARK ROAD, KANNUR, PIN -
670018
2 K.N.DINOOP AGED 41 YEARS S/O M.P.KUNHIKANNAN,
MELVINA, POLICE NAGAR, KIZHUTHALLI, THAZHE CHOVVA,
ALSO AT BRUTS BEAUTY STUDIO (HAIR AND SKIN) PRIVATE
LTD., KANNUR MALL, SN PARK ROAD, KANNUR, PIN -
670018
BY SMT SUMATHI DANDAPANI (SR )
ADVS. MEERA RAMESH
E.ADITHYAN
MILLU DANDAPANI
MRUDULA MOHAN
NESAMUDHEEN
RESPONDENTS/1ST RESPONDENT IN EA OF EP IN RCP:
1 SHUBHA K.V AGED 70 YEARS W/O LATE C.P.SIVARAJ,
SIVASAKTHI, PUZHATHI AMSOM DESOM, KAKKAD P.O,
KANNUR, PIN - 670005
2 DINOOP SIVARAJ AGED 39 YEARS PUZHATHI AMSOM DESOM,
KAKKAD P.O, KANNUR, PIN - 670005
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R.C.R.No.297 of 2023
3 SHABANA SIVARAJ AGED 44 YEARS D/O LATE C.P.SIVARAJ,
SIVASAKTHI, PUZHATHI AMSOM DESOM, KAKKAD P.O,
KANNUR, PIN - 670005
BY ADVS. M.K.SUMOD
VIDYA M.K.(K/910/1990)
RAJ CAROLIN V.(K/001117/2018)
THUSHARA.K(K/1443/2020)
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON 22.01.2024, THE COURT ON 15.02.2024 DELIVERED THE FOLLOWING:
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R.C.R.No.297 of 2023
ORDER
G. Girish, J.
Aggrieved by the dismissal of R.C.A No.29 of 2023 on the files
of the Rent Control Appellate Authority (Additional District
Judge-IV), Thalassery, the appellants therein, who are the tenants
and respondents in R.C.P No.242 of 2018 of Rent Control Court,
Kannur, have preferred this revision before this Court.
2. The Rent Control Court, after evaluating the pleadings
and evidence in the abovesaid R.C.P, ordered eviction of the revision
petitioners from the petition scheduled building on the ground of
arrears of rent, as envisaged under Section 11(2)(b) of the Kerala
Buildings (Lease & Rent Control) Act, 1965 (for short 'the Act'). The
revision petitioners challenged the above order before the Rent
Control Appellate Authority, (Additional District Judge-IV)
Thalassery, by preferring R.C.A No.29 of 2023. The contention of the
revision petitioners is that, upon the compulsion of the respondents-
landlords, they had invested an amount of Rs.2 Crores for the
commencement of a beauty parlour with five star facilities in the
leasehold building, but thereafter, the respondents-landlords caused
hindrance for the conduct of the above establishment, by refusing to
issue consent letter for getting electricity connection, and also by
cutting off the water supply, lift facility, etc. to the said building. The
revision petitioners also contended that they had paid an amount of
Rs.75,00,000/- as security deposit to the respondents. Thus, the
eviction of the revision petitioners, on the ground of arrears of rent,
was resisted by them before the Rent Control Court as well as the
Appellate Authority, by contending that no such order under Section
11(2)(b) of the Act could be passed since the landlords were
indebted to pay back the amount of Rs.2 Crores invested by them,
for the commencement of a five star beauty parlour at the insistence
of the landlords, and the amount of Rs.75,00,000/- paid as security
deposit. However, the Rent Control Court as well as the Appellate
Authority refused to accept the contentions of the revision
petitioners in the above regard, and directed the revision petitioners
to hand over vacant possession of the petition scheduled building to
the respondents-landlords. Challenging the above order of the Rent
Control Court dated 29.09.2022 in R.C.P No.242 of 2018, which was
upheld by the Appellate Authority in the judgment dated 22.05.2023
in R.C.A No.29 of 2023, the revision petitioners are now before this
Court.
3. Notice of this revision petition was duly served to the
respondents. The respondents appeared through their counsel.
4. Heard the learned Senior Counsel for the revision
petitioners and the learned counsel for the respondents.
5. The point to be decided in this revision petition is whether
the concurrent findings of the Rent Control Court, Kannur and the
Rent Control Appellate Authority, Thalassery in the matter of eviction
of the revision petitioners from the petition schedule building under
Section 11(2)(b) of the Act, are liable to be interfered with.
6. As found by the Rent Control Court and the Appellate
Authority, there is absolutely no dispute as to the landlord-tenant
relationship between the respondents and revision petitioners. Nor
had the revision petitioners raised any serious challenge as to the
rate of rent liable to be paid to the respondents. It is also seen from
the case records that the default committed by the revision
petitioners in making payment of rent to the respondents, is more
or less an admitted fact. The revision petitioners have not disputed
the compliance of statutory requirements of the notice issued by the
respondents demanding payment of the defaulted rent. The one and
only challenge raised by the revision petitioners against the claim of
eviction put forward by the respondents is that the amount of
Rs.75,00,000/- which the revision petitioners claimed to have paid
as security deposit, and the amount of Rs.2 Crores which they are
said to have invested for the commencement of a beauty parlour
with five star facilities, under the compulsion of the respondents, are
liable to be paid back by the respondents, and hence the arrears of
rent due to be paid to the respondents are liable to be adjusted with
the said amounts. According to the revision petitioners, it is not
possible to say that rent is in arrears since the respondents are
indebted to pay a higher amount back to the revision petitioners
under the heads of accounts mentioned above.
7. The above challenge of the revision petitioners has been
repelled by the Rent Control Court as well as the Appellate Authority
for the reason that an adjudication as to the claims set forth by the
revision petitioners for the refund of the amounts under the above
heads of accounts, is beyond the scope of jurisdictional authority of
the Rent Control Court and Appellate Authority while dealing with a
petition under Section 11(2)(b) of the Act. It has been rightly
observed by the Rent Control Court as well as the Appellate Authority
that the revision petitioners have to work out their remedy in respect
of the above grievance by approaching the competent Civil Court.
8. The learned Senior Counsel for the revision petitioners
has adverted to the decision of the Apex Court in G.Reghunathan
v. K.V.Varghese [(2005)7 SCC 317] in support of the point that
the amount received as advance by the landlord is liable to be
refunded to the tenant, and thus the arrears of rent, if any, are liable
to be adjusted with such advance amount held by the landlord.
9. In Abdul Gafoor M.C. v. K. Abdurahiman and
another [2015 (3) KHC 775] the Division Bench of this Court was
dealing with a case in which the learned counsel for the tenant raised
an alternative contention that the tenant has already paid an
advance of Rs.7,50,000/- and that, in the light of the principles laid
down by the Apex Court in Modern Hotel, Gudur v. K.
Radhakrishnaiah [(1989) 2 SCC 686] and Reghunathan v.
Varghese [(2005) 7 SCC 317] the landlord cannot retain such
huge amount and that this amount being repayable to the tenant is
liable to be adjusted towards rent arrears, if any.
10. In Abdul Gafoor M.C. [2015 (3) KHC 775] the Division
Bench noticed that, Modern Hotel [(1989) 2 SCC 686] was a case
arising under the Andhra Pradesh Buildings (Lease, Rent and
Eviction) Control Act, 1960. Section 7(2) of the said Act provided
that where the fair rent of a building has not been fixed, the landlord
shall not, after the commencement of the Act, claim, receive or
stipulate for the payment of any premium or other like sum in
addition to the agreed rent. However, as per the proviso to this
section, the landlord could receive or stipulate for the payment of an
amount not exceeding one month's rent by way of advance. It was
taking note of this statutory provision that the Apex Court took the
view that money received as advance by the landlord from the
tenant, in excess of what was provided under Section 7(2), becomes
payable to the tenant immediately and that amount of arrears of
rent being smaller than the advance amount held by the landlord on
account of the tenant, there was no default in payment of rent and
eviction order is not justified. It is this judgment which is followed in
Reghunathan [(2005) 7 SCC 317].
11. In Abdul Gafoor M.C. [2015 (3) KHC 775] the Division
Bench held that, insofar as Kerala Buildings (Lease and Rent Control)
Act is concerned, a similar provision is contained in Section 8 of the
Act and in the light of the judgment of this Court in Isac Ninan v.
State of Kerala [1995 (2) KLT 848] that section no longer
survives in the Statute. This, therefore, means that the Kerala Act
does not contain any provision similar to Section 7 of the Andhra
Pradesh Act, in the context of which judgment in Modern Hotel
[(1989) 2 SCC 686] was rendered by the Apex Court. That being
so, the argument advanced by the learned Senior Counsel for the
revision petitioners as regards the applicability of the dictum in
Reghunathan supra, cannot be accepted.
12. The proposition of law in the above regard has been
reiterated in the decision of a Division Bench of this Court in Abdul
Razak P. M. v. K. C. Thomas and Others [2022 (4) KHC 260]
in which one among us, (Anil K. Narendran, J.) was a party, wherein
it has been held that when Section 8(1) of the Act is not in Statute
book, as it was declared ultra vires by the Division Bench of this
Court in Issac Ninan v. State of Kerala [1995 (2) KLT 848], a
tenant is not entitled to contend that the landlord is not entitled to
retain the advance in excess of one month's rent. Therefore, the
contention of the tenant that, the security deposit made by him, in
terms of the lease deed dated 01.11.2017, which is still with the
landlord, has to be adjusted against the admitted arrears of rent,
before the Rent Control Court passing an order under Section 12(3)
of the Act, can only be rejected as untenable.
13. Thus the only conclusion which could be drawn from the
discussions aforesaid is that the contention put forward by the
revision petitioners that they are not liable to be evicted under
Section 11(2)(b) of the Act in view of the amount allegedly held by
the respondents as security deposit, is totally unsustainable. It is
also pertinent to note, in this context, that there is absolutely no
evidence adduced by the revision petitioners, other than the
interested testimony of RW1, before the Rent Control Court to
substantiate their claim of remittance of an amount of
Rs.75,00,000/- as security deposit and an investment of Rs.2 Crores
at the request of the landlord for the commencement of a beauty
parlour with five star facilities. Thus the resistance offered by the
revision petitioners against their eviction on the ground of arrears of
rent is liable to fail for that reason also.
14. As a conclusion to the discussions aforesaid, we hold that
the impugned judgment of the Rent Control Appellate Authority is
neither perverse nor patently illegal warranting interference in this
revision proceedings. Therefore, the revision petitioners
(respondents-tenants in the R.C.P) are liable to be evicted from the
petition schedule building on the ground of arrears of rent as
envisaged under Section 11(2)(b) of the Act.
15. In the result, this Rent Control Revision is dismissed
declining interference on the impugned judgment of the Rent Control
Appellate Authority and also the order of the Rent Control Court.
(sd/-)
ANIL K. NARENDRAN, JUDGE
(sd/-)
G. GIRISH, JUDGE
jsr/vgd
