A To Z Sanitary Wares (partnership firm) and E.S. Jose v. V.P. Joy

R.C.R No. 265/2023 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR. JUSTICE JOHNSON JOHN FRIDAY, THE 1[ST] DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945 RCREV. NO. 265 OF 2023 JUDGMENT DATED 30.10.2023 IN RCA NO.40 OF 2023 OF RENT CONTROL APPELLATE AUTHORITY, IRINJALAKUDA ORDER DATED 29.05.2023 IN RCP NO.10 OF 2022 OF RENT CONTROL COURT, CHALAKUDY ## REVISION PETITIONERS/APPELLANTS/RESPONDENTS: 1 A TO Z SANITARY WARES AGED 66 YEARS A PARTNERSHIP FIRM HAVING ITS OFFICE AT P.T USHA ROAD, MAHARAJAS COLLEGE P.O, ERNAKULAM, PIN REPRESENTED BY ITS MANAGING PARTNER E.S JOSE, EARASSERRIL HOUSE, KALOOR, KOCHI-, PIN – 682 011. - 2 E.S JOSE AGED 66 YEARS, EARASSERRIL HOUSE, KALOOR, KOCHI-17, THE MANAGING PARTNER OF A TO Z SANITARY WARES, HAVING ITS OFFICE AT P.T USHA ROAD, MAHARAJAS COLLEGE P.O, ERNAKULAM,, PIN – 682 011. BY ADVS. K.S.SREEREKHA T.K.RADHAKRISHNAN T.R.HARI KRISHNAN ## RESPONDENTS/RESPONDENT/PETITIONER: V.P JOY S/O. PAULOSE, VAZHAPPILLY HOUSE, KINFRA POST, CHALAKUDY,THRISSUR, PIN – 680 309. BY ADVS. AJAY KRISHNAN S. NINAN JOHN(K/346/1997) SANJANA SARA VARGHESE ANNIE(K/000582/2018) ARYA A.R.(K/1666/2018) ANJITHA JOBI(K/002568/2023) ROSEMARIA JOHNSON(K/003203/2023) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 01.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R No. 265/2023 : 2 : ## **P.B. SURESH KUMAR & JOHNSON JOHN, JJ.** --------------------------------------------------------- R.C. Rev. No. 265 of 2023 --------------------------------------------------------Dated this the 1[st] day of December, 2023. ## **ORDER** ## Johnson John, J **.** The revision petitioners are the tenants, who suffered an order of eviction under Section 12(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 ('Act' for short). Against the order under Section 12(3) of the Rent Control Court, the revision petitioners filed an appeal as R.C.A. No. 40 of 2023. But, the Rent Control Appellate Authority has dismissed the appeal. 2. Heard Smt. K. S. Sreerekha, the learned counsel for the revision petitioners and Sri. Ninan John, the learned counsel for the respondent. 3. The learned counsel for the revision petitioners argued that the landlord filed I.A. No. 2 of 2023 under Section 12 of the Act even before the tenants filed their objection to the Rent Control Petition and a perusal of Section 12 of the Act would show that contest in the Rent Control Petition is a pre requisite to entertain an application under Section 12 of the Act. R.C.R No. 265/2023 : 3 : 4. It is also argued that in the objection filed against the Section 12 petition, the respondent denied the landlord-tenant relationship and thereby, challenged the maintainability of the Section 12 petition as well as the main case. The Rent Control Court and the Rent Control Appellate Authority ignored the objections of the revision petitioners and rendered a finding that the revision petitioners are bound to pay rent arrears from 19.11.2019 till 28.10.2022 amounting to Rs.1,57,86,000/and therefore, the impugned judgment of the appellate authority as well as the order of the Rent Control Court are illegal and liable to be set aside. 5. The learned counsel for the respondent/landlord argued that the rent agreement between the parties and the fact that the tenants regularly paid monthly rent till November, 2019 are not in dispute. It is also argued that the tenants deliberately avoided filing objection to the Rent Control Petition and after raising a contention denying the landlordtenant relationship in the objection to Section 12 petition, they have not produced any document in support of the said contention and further, the court below has specifically rendered a finding that the denial of landlord-tenant relationship in the objection to Section 12 petition is not _bona fide_ and that there is no illegality or irregularity in the impugned judgment warranting interference of this Court in a revision. R.C.R No. 265/2023 : 4 : 6.. The learned counsel for the revision petitioners argued that the jurisdiction under Section 12 of the Act can be exercised only after the tenants filed their objection in the Rent Control Petition and also relied on the decision of this Court in _**Pochappan Narayanan v. Gopalan**_ [1990 (2) KLT 1] in support of the said contention. A perusal of the above decision would show that the question considered in that case was whether the tenant can file an appeal before the payment of the admitted arrears of rent and this Court held that the word 'prefer' has been used in sub-Section (1) of Section 12 not to convey the lodging of the appeal, but to convey that the appeal already lodged in accordance with Section 18 shall not be proceeded with or prosecuted further, if the conditions specified in Section 12(1) are not fulfilled. **7.** It is seen mentioned in the revision petition that the Rent Control Petition was posted for return of summons on 07.12.2022 and that subsequently on 24.01.2023, the revision petitioners appeared before the court below. It is not in dispute that the revision petitioners were granted opportunity to file their objection and only thereafter, the Rent Control Court passed the order under Section 12(1) on 29.05.2023. The said order would clearly show that on the first posting itself, the court below has posted the Rent Control Petition for the objection of the tenants and that the tenants have not filed any objection to the Rent Control Petition till the date of disposal of the Section 12 petition. R.C.R No. 265/2023 : 5 : 8. As per Section 12(1) of the Act, 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 termination of the proceedings before the Rent Control Court or the appellate authority, as the case may be. 9. As per Section 12 of the Act, the tenant is entitled to contest the petition, only if he deposits the arrears of rent and if he fails to do so, he has no right to contest the petition. There is nothing in Section 12(1) of the Act to show that filing of objection or counter statement by the tenant is a prerequisite to entertain an application under Section 12 of the Act as contended by the learned counsel for the revision petitioners. Further, if such an argument is accepted, that will defeat the time frame provided in Section 24 of the Act, which mandates the Rent Control Court to dispose of a petition as far as practicable within four months from the date of appearance of the parties thereto. R.C.R No. 265/2023 : 6 : Therefore, the contention of the learned counsel for the revision petitioners in this regard is not sustainable. 10. Another argument of the learned counsel for the revision petitioners is that in their objection to Section 12(1) petition, there is specific denial of landlord-tenant relationship and therefore, the court below ought to have considered the maintainability of the Rent Control Petition as a preliminary point before considering the petition under Section 12 on merit. The revision petitioners have a case that when the landlord received a legal notice from Indian Bank regarding initiation of SARFAESI proceedings in connection with his financial liability with the Bank, he made a request to include him in the business conducted in the petition schedule building by the tenants and they agreed for the same and accordingly for the past two years, the business which is being carried out in the tenanted premises is a joint venture arrangement and therefore, the landlord-tenant relationship ceased to exist even before the filing of the Rent Control Petition. It can be seen that the Rent Control Court and the Rent Control Appellate Authority considered the question of denial of title and arrived at a finding that the tenant failed to produce any document to substantiate the said contention and therefore, the denial of landlord-tenant relationship in the objection to Section 12 petition is not _bona fide_ . R.C.R No. 265/2023 : 7 : 11. It is pertinent to note that even though such a contention is raised in the objection to Section 12 petition, the tenants have not filed any counter statement to the Rent Control Petition to deny the landlordtenant relationship and it was in that circumstance, the court below examined the _bona fides_ of the said contention in the impugned order and therefore, we find no irregularity or illegality in the said procedure adopted by the court below. 12. In _**Gopala Panicker Baiju and another v. Mallika**_ [2018 (5) KHC 95], it was held by this court 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 requires enquiry and adjudication. It was also held that 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. 13. In the case at hand, there is no dispute regarding the rate of rent or the terms of the rent agreement between the parties. It is well settled that mere denial of landlord-tenant relationship in all circumstances would not oust jurisdiction of Rent Control Court and in order to oust the Rent Control Petition from the jurisdiction of the Rent Control Court, the denial of landlord-tenant relationship must arise out of denial of title or claim of permanent tenancy and the court below, R.C.R No. 265/2023 : 8 : after considering the available materials, arrived at a finding that there is no _prima facie_ material to show that there existed a joint venture arrangement between the parties as claimed by the tenants and we find no reason to interfere with the said findings of the court below. In the above circumstances we find no reason to interfere with the findings of the Rent Control Court or the appellate authority and in the absence of any illegality or irregularity in the impugned orders, this revision petition fails and therefore, the same is dismissed. sd/- **P.B. SURESH KUMAR, JUDGE.** sd/- **JOHNSON JOHN, JUDGE.** Rv