Kerala High Court
Baburaj vs Karimbil Abdulkhadar Haji on 6 June, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
OP (RC) NO. 17 OF 2024
AGAINST THE JUDGMENT DATED 16.01.2024 IN RCA NO.43 OF 2023 OF
ADDITIONAL DISTRICT COURT KOZHIKODE-III / II ADDITIONAL MACT,
KOZHIKODE
PETITIONER(S)/RESPONDENT/APPELLANT -TENANT:
BABURAJ
AGED 64 YEARS
S/O LATE GOPALA KURUP, MANGALATH HOUSE, MARUTHOMKARA
VILLAGE, KAVILUMPARA, VATAKARA TALUK KOZHIKODE
DSITRICT, PIN - 673513
BY ADVS.
S.VINOD BHAT
ANAGHA LAKSHMY RAMAN
GREESHMA CHANDRIKA.R
V.NAMITHA
RESPONDENT(S)/PETITIONERS/RESPONDENTS-LANDLORD:
1 KARIMBIL ABDULKHADAR HAJI
AGED 71 YEARS
S/O MOIDU, RESIDING AT VAYALIL KUNLYIL HOUSE, KUTTIADI
AMSOM, THONDIPOYIL DESOM, VATAKARA TALUK, KOZHIKODE
DSITRICT, PIN - 673508
2 ZUHAIL
S/O ABDULKHADAR HAJI, KARIMBIL HOUSE, KUTTIADI AMSOM,
THONDIPOYIL DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT,
PIN - 673508
BY ADVS.
K.K.ANILRAJ
REMYA MURALI(K/154/2013)
THIS OP (RENT CONTROL) HAVING COME UP FOR HEARING ON
06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (RC) NO. 17 OF 2024
2
JUDGMENT
Amit Rawal, J.
Present OP is directed against the order dated 16.1.2024 passed in
I.A No.2 of 2023 in the pending RCA No.43 of 2023 filed by the
respondent-landlord whereby the petitioner-tenant has been called upon
to pay the arrears of rent @ Rs. 6000/- with effect from 1.1.2021 on or
before 19.2.2024 with 6% interest towards the arrears of rent.
2. The facts in brief are that the respondent-landlord sought the
eviction of the petitioner-tenant by instituting RCP No.7 of 2021 on the
ground of bonafide necessity as provided under Section 11(3) of the
Kerala Building (Lease and Rent Control) Act. In the rent petition, it was
alleged that rent payable per month was @ Rs.6000/-. The petitioner-
tenant in response to the aforementioned rent petition denied the rate of
rent and alleged that the rate of rent was Rs.3000/- in the absence of any
written lease deed. In other words, the tenancy was oral. Though there
was a dispute with rate of rent, the parties went on trial only on the
ground of personal necessity as reflected from the issues framed by the
rent controller and ultimately, led to an eviction order vide judgment
dated 24.2.2023. Against the aforementioned order, preferred an RCA
no.43 of 2023. Due to pendency of appeal, the respondent landlord
instituted I.A No.2 of 2023 calling upon the petitioner-tenant to pay the
arrears of rent with effect from 1.1.2021 @ Rs.6000/-. The
aforementioned application was seriously disputed by filing objection
whereby against the same plea taken before the Rent controller, was
OP (RC) NO. 17 OF 2024
taken regarding the rate of rent and arrears of rent. On an analysis of
the application and objection, learned Appellate Authority vide impugned
order 16.1.2024 determined the arrears of rent as noticed above @
Rs.2,16,000/- calling upon the petitioner-tenant to pay the arrears with
effect from January 2021 along with 6% interest.
3. Learned counsel for the petitioner submitted that the appellate
authority has abdicated in determining the rent @ Rs.6000 as it was not
an admitted rate of rent. The provisions of Section 12 deals with the
admitted rate of rent. There was a dispute with regard to the rate of
rent. Landlord was required to get the adjudication on such question
either by submitting a separate application during the pendency of the
Rent petition under Section 12 of the Act or amendment of the rent
petition by incorporating the plea under Section 11(2)(b) of the Act -
arrears of rent. No such exercise was done. Our attention has been
drawn to the cross examination of PW1 in RCP No.7 of 2021 whereby to a
specific question in the cross examination, the witness of the landlord
candidly admitted that there is no proof of the rate of rent nor he has the
proof with regard to the arrears of rent. It was totally a mystery with
regard to rate of rent, thus the order of the appellate authority is liable to
be set aside.
4. On the other hand, learned counsel for the respondent- landlord
submitted that the onus is upon the tenant to prove the arrears of rent,
for, there has been a categoric assertion on behalf of them. The tenant
OP (RC) NO. 17 OF 2024
did not place on record any proof with regard to arrears of rent much
less no proof has been placed on record with regard to the payment of
the admitted rate of rent. Our attention has been drawn to the objection
petition whereby there is a candid admission of the tenant that arrears
of rent were to the tune of Rs.72,000. The tenant had not bonafidly
approached this Court, for, had the rent of Rs.72,000 been paid, the
matter could have been decided afresh.
5. We have heard the learned counsel for the parties and appraised
the paper book. On an analysis of the aforementioned contentions and
the facts drawn from the pleadings reflected in the order of the Rent
Controller as well as the impugned order, we are of the view that in the
absence of proof of the admission of the rate of rent whether Rs.3000/- as
alleged by the tenant or Rs.6000/- on behalf of the landlord, an
exercise/effort ought to have been done, particularly on behalf of the
landlord for determination during the pendency of the rent petition either
through amendment or through under Section 12 of the Act, for, the
eviction petition was filed only on the ground of bonafide necessity. No
doubt, the landlord has a remedy to seek ejectment on the ground of non
payment of the admitted rate of rent but that cannot be a ground for the
appellate authority to determine the rent in the absence of any
determination or admission by the tenant. We are thus of the view that
the petitioner at this stage can be only called upon to pay the only
admitted arrears of rent from the same date ie., 1.1.2021 @
Rs. 3,000/- and shall pay within a period of fifteen (15) days from the date
OP (RC) NO. 17 OF 2024
of receipt of a certified copy of this judgment. We relegate the matter to
the appellate authority to adjudicate the application under Section 12 of
the Act, in terms of the observations recorded above. In case the
petitioner, tenant does not comply with the directions, the provisions
under Section 12(3) shall automatically follow.
SD/-
AMIT RAWAL
JUDGE
SD/-
sab EASWARAN S.
JUDGE
OP (RC) NO. 17 OF 2024
APPENDIX OF OP (RC) 17/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PETITION IN R.C.P.
27/2021 (DATED 05-08-2021) OF RENT CONTROL
COURT, NADAPURAM
Exhibit P2 TRUE COPY OF COUNTER AFFIDAVIT IN RCP
7/2021 (DATED 16-05-2022) OF GRAMA
NAYALAYA, KUNNUMMAL BLOCK, KUTTIADY
Exhibit P3 TRUE COPY OF THE ORDER DATED 24-02-2023 IN
RCP 7/2021 OF GRAMA NAYALAYA KUNNUMMAL
BLOCK, KUTTIADY
Exhibit P4 TRUE COPY OF THE MEMORANDUM OF APPEAL -
RCA 43/2023 DATED 13-03-2023 ON THE FILE
OF RENT CONTROL APPELLATE AUTHORITY,
KOZHIKODE
Exhibit P5 TRUE COPY OF THE PETITION I.A.2/2023 IN
RCA 43/2023 OF RENT CONTROL APPELLATE
AUTHORITY, KOZHIKODE
Exhibit P6 TRUE COPY OF COUNTER AFFIDAVIT IN
I.A.2/2023 IN RCA 43/2023 OF RENT CONTROL
APPELLATE AUTHORITY, KOZHIKODE
Exhibit P7 THE TRUE COPY OF THE DEPOSITION (CROSS
EXAMINATION) OF PW.1 IN R.C.P.7/2021 OF
GRAMA NYAYALAYA, KUNNUMMAL BLOCK,
KUTTIYADI
Exhibit P8 TRUE COPY OF THE ORDER DATED 16-01-2024 IN
I.A.2/2023 IN RCA 43/2023 OF RENT CONTROL
APPELLATE AUTHORITY (3RD ADDITIONAL
DISTRICT COURT) , KOZHIKODE
