Anu Jose v Manu Mithran and Manoj Kumar, R.C.Rev Nos. 31 & 32 of 2018, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944** **RCREV. NO. 31 OF 2018** **[AGAINST THE ORDER DATED 07.12.2017 IN RCA NO.84 OF 2015 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM & RENT CONTROL APPELLATE AUTHORITY,ERNAKULAM AND THE ORDER IN I.A.NO.5794 OF 2015 IN RCP NO.20 OF 2015 DATED 08.10.2015 OF THE III ADDITIONAL MUNSIFF & RENT CONTROL COURT, ERNAKULAM]** ## **REVISION PETITIONER/APPELLANT /RESPONDENT IN RCP:** ANU JOSE, AGED 52 YEARS, W/O. JOSE, ALPHONSA LADIES HOSTEL, MINERVA BUILDING, DOOR NO. IX/376,C1, C2, C3 AND C OF THRIKKAKARA MUNICIPALITY,NEAR INFOPARK, KAKKANAD, KUSUMAGIRI P.O.,KUZHIKATTUMOOLA, ARAIDATHU ROAD, KAKKANAD VILLAGE, KANAYANNUR TALUKM, ERNAKULAM DISTRICT (PERMANENT ADDRESS - ILLICKAL VEETTIL,CHARAYATHCHAL, CHEMBANTHODI P.O., KANNUR DISTRICT) BY SMT.ANU JOSE(Party-In-Person) ## **RESPONDENTS/RESPONDENTS/PETITIONER IN R.C.P.:** 1 MANU MITHRAN, AGED 32 YEARS, S/O. P.P. MITHRAN,PAINAKKAL HOUSE, INFOPARK ROAD,KUSUMAGIRI P.O., KAKKANAD VILLAGE,ERNAKULAM -682030. 2 MANOJKUMAR, AGED 46 YEARS, S/O. VASU,ARIVALKUDI, CHOWARA DESOM,SREEMOLANAGARAM P.O., ALUVA ## R.C.Rev.Nos.31 & 32 of 2018 :-2-: TALUK,ERNAKULAM DISTRICT. BY ADVS. SRI.N.ASHOK KUMAR SRI.M.P.MATHEWS **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27.09.2022, ALONG WITH R.C.R.NO.32 OF 2018, THE COURT ON 21.10.2022 DELIVERED THE FOLLOWING:** R.C.Rev.Nos.31 & 32 of 2018 :-3-: **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944** **RCREV. NO. 32 OF 2018** **[AGAINST THE ORDER DATED 07.12.2017 IN RCA NO.9 OF 2016 OF II ADDITIONAL DISTRICT COURT & RENT CONTROL APPELLATE AUTHORITY,ERNAKULAM AND ORDER IN RCP NO.20 OF 2015 DATED 07.12.2015 OF III ADDITIONAL MUNSIFF & RENT CONTROL COURT,ERNAKULAM]** ## **REVISION PETITIONER/APPELLANT/RESPONDENT IN R.C.P.:** ANU JOSE, AGED 52 YEARS, W/O.JOSE,ALPHONSA LADIES HOSTEL, MINERVA BUILDING, DOOR NO.IX/376, C1, C2, C3 & C OF THRIKKAKARA MUNICIPALITY,NEAR INFOPARK, KAKKANAD, KUSUMAGIRI P.O., KUZHIKATTUMOOLA,ARAIDATHU ROAD, KAKKAND VILLAGE, KANAYANNUR TALUK,ERNAKULAM DISTRICT (PERMANENT ADDRESS - ILLICKAL VEETTIL,CHARAYATHCHAL, CHEMBANTHODI P.O., KANNUR DISTRICT) BY SMT.ANU JOSE(Party-In-Person) ## **RESPONDENTS/RESPONDENTS/PETITIONER IN R.C.P.:** 1 MANU MITHRAN, AGED 32 YEARS, S/O.P.P.MITHRAN PAINAKKAL HOUSE, INFOPARK ROAD, KUSUMAGIRI P.O.,KAKKANAD VILLAGE, ERNAKULAM 692 030. R.C.Rev.Nos.31 & 32 of 2018 :-4-: 2 MANOJ KUMAR, AGED 46 YEARS S/O.VASU, ARIVALKUDI CHOWARA DESOM,SREEMOOLANAGARAM P.O., ALUVA TALUK, ERNAKULAM DISTRICT, PIN: 683 580. BY ADVS. SRI.N.ASHOK KUMAR(CAVEATOR) SRI.M.P.MATHEWS **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27.09.2022,ALONG WITH R.C.R.NO.31 OF 2018, THE COURT ON 21.10.2022 PASSED THE FOLLOWING:** R.C.Rev.Nos.31 & 32 of 2018 :-5-: ## **O R D E R** ## SHOBA ANNAMMA EAPEN J The tenants are the revision petitioners. They filed the Revision Petitions under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, challenging the Common Order dated 07.12.2017 of the Rent Control Appellate Authority (Additional District Judge-II), Ernakulam in R.C.A.Nos.84 of 2015 & 9 of 2016. Both the RCAs. are from the same RCP No.20 of 2015 filed under S.11(2)(b) & 11(3) of the Act. Since common issues are involved in these cases, both the cases are being disposed of by this common order. 2. RCR No.31 of 2018 is filed against the judgment in RCA No.84 of 2015, which is filed against the Order in I.A No.5794/15 in RCP No.20/15 filed under S.12 of the Act and RCR No.32 of 2018 is filed against the judgment in RCA No.9/2016, which is filed against S.12(3) final order dated 07.12.15 in R.C.P.No.20/2015 stopping the proceedings and directing handing over of the vacant possession of the building to the landlord. ## R.C.Rev.Nos.31 & 32 of 2018 :-6-: 3. The landlord filed I.A.No.5794 of 2015 under S.12 of the Act contending that the tenant had defaulted rent. On 08.10.2015, an order was passed by the Rent Control Court to pay the arrears of rent within 30 days of that order. The tenant failed to deposit the arrears, in terms of the order dated 08.10.2015 under Section 12(1) of the Act and since the reasons put forth by the tenant were not satisfactory, the Rent Control Court on 07.12.2015 passed an order under Section 12(3) of the Act. Further proceedings in the rent control petition were stopped and the tenant was directed to give vacant possession of the petition schedule building to the landlord forthwith. 4. The tenant filed R.C.A.No.84/2015 challenging S.12(1) order and R.C.A.No.9/2016 challenging S.12(3) order. Since common questions of law and facts were involved in these cases, both the appeals were tried jointly by the Appellate Authority and the Appellate Authority dismissed both the appeals by common order dated 07.12.2017 by upholding the findings of the rent control court. ## R.C.Rev.Nos.31 & 32 of 2018 :-7-: 5. Assailing the common order, this revision under Section 20 of the Act has been filed by the petitioner. 6. The respondents for whom a caveat was filed entered appearance through their counsel. 7. Heard the petitioner, who appeared in person and the learned counsel for the respondents. 8. The Rent Control Petition was filed by the landlord for eviction on the ground of arrears of rent and _bona fide_ need. The landlord filed I.A.No.5794 of 2015 under Section 12 of the Act for eviction under arrears of rent. Provisions of Section 12(1) of the Act permit to act upon the admitted rate of rent. 9. As per Section 12(1) of the Act, the court has jurisdiction to direct the tenant to deposit the arrears of rent admitted to be due. Thus, in I.A.No.5794 of 2015 filed by the landlord claiming arrears of rent, the court below, on 08.10.2015 passed an order directing the tenant to deposit the admitted arrears of rent within one month. 10. The tenant did not comply with the order. Instead ## R.C.Rev.Nos.31 & 32 of 2018 :-8-: of complying with the order, the petitioner filed RCA No.84 of 2015 before the Appellate Authority. The court below directed to produce stay order but the stay order was not produced nor the arrears of rent was paid. Since no satisfactory reasons were put forth, the Rent Control Court passed the order dated 07.12.2015 and the tenant filed R.C.A.No.9 of 2016 before the Appellate Authority and the both the appeals were tried jointly and were dismissed by common order dated 07.12.2017. The said common order of the appellate authority is challenged before this court by filing separate revision petitions. 11. The petitioner submits that she paid Rs.10,00,000/- as advance at the time of agreement and is depending for her livelihood by running a hostel. It is further case of the petitioner that the respondents have never permitted the petitioner to conduct her business peacefully. The petitioner submits that during the pendency of the appeal, she deposited Rs.7,39,000 on 30.03.2016 and Rs.15,52,000/- on 02.04.2016 as per the direction of the ## R.C.Rev.Nos.31 & 32 of 2018 :-9-: appellate court in I.A.No.793 of 2016. The respondent filed I.A.No.3425 of 2016 for withdrawing the amount deposited by the petitioner- appellant. The matter was thereafter referred to mediation. During the pendency of the mediation process, cheque application was filed and it was allowed and the amount was withdrawn. The petitioner alleges that the respondents played fraud and withdrew the amount deposited. Subsequently, I.A.No.6200 of 2016 was filed for a direction to deposit back the amount of Rs.22,91,000/withdrawn by the respondent without the permission of the court. I.A.Nos.3425/2016 and 6200/2016 were closed making it clear that the propriety of receiving the amount from the executing court and the liability to deposit back the said amount should be determined along with the appeal. 12. The counsel for the respondents submits that the tenant had admitted in the reply notice that an amount of Rs.4,80,000/- is due calculating on the basis of the monthly rent at the rate of Rs.1,50,000/- The court below assessed the total rent arrears on the basis of the admission in the ## R.C.Rev.Nos.31 & 32 of 2018 :-10-: reply notice. The rent arrears till May 2014 is Rs.4,80,000/and rent arrears from June 2014 to October 2015 is Rs.25,50,000/-. After deducting the amount of Rs.7,39,000/-, being the rent already paid by the petitioner for the period from June 2014 to January 2015, (Rs.4,80,000+Rs.25,50,000=Rs.30,30,000 - Rs.7,39,000/- is Rs. 22,91,000/-) and thus the court below found that there is a balance amount of Rs.22,91,000/- being the admitted arrears of rent and the respondent is entitled to get the amount deposited. The arrears of rent deposited by the tenant was withdrawn by filing cheque application before the court. 13. In order to ascertain the arrears admitted by the tenant to be due, the court can have an enquiry in a limited sense. The enquiry allowed is scrutiny of the petitions under Sections 11 and 12 of the Act, the objections thereto and the other materials brought on record by either parties for the purpose of ascertaining admission regarding the rate of monthly rent and the quantum of arrears of rent payable. If the materials on record disclose or infer such admission, the ## R.C.Rev.Nos.31 & 32 of 2018 :-11-: Court shall direct the tenant to pay or deposit the arrears of rent due as on the date of application under Section 12 of the Act and continue to pay subsequent rent which falls due during the pendency of the litigation. The appellate authority after proper appreciation of the facts and on verification of the documents on record found that the rent agreed upon as per the lease agreement was Rs.1,50,000/- and the admitted rate of rent per month is Rs.1,50,000/-. 14. The contention of the petitioner that prior to the lease agreement, there was an oral agreement and the rent agreed upon was Rs.1,00,000/-, was found against the petitioner after proper appreciation of facts. The further contention of the petitioner is that she had paid an advance amount of Rs.10,00,000/- to the landlord and the said amount ought to have been adjusted towards the rent arrears and further that certain amounts have been incurred by the petitioner for maintenance of the building was not allowed by the appellate authority finding that the rent arrears cannot be adjusted towards the advance amount paid since time has ## R.C.Rev.Nos.31 & 32 of 2018 :-12-: elapsed and the rent arrears are more than the advance amount paid. 15. As per clause 1 in the order dated 08.10.2015 the petitioner ought to have paid arrears of rent of Rs.4,80,000 and thereafter rent @ Rs.1,50,000 per month till 08.10.2015. In order to avoid stoppage of proceedings under Section 12(3) of the Act, she should have made deposits within the time stipulated. No satisfactory explanation was offered. In the circumstances, the order dated 07.12.2015 passed by the Rent Control Court cannot be found fault with. 16. It is true that the petitioner deposited entire arrears of rent during the pendency of the appeal. This Court in **Ramkumar J. v. Ashok Jacob [ILR 2021 (4) Ker. 876]** held that the consequence enjoined by an order under Section 12(3) of the Act for failure to deposit the admitted arrears in time cannot be vacated or obliterated by payment at any subsequent stages or periods. The order dated 07.12.2015 passed by the Rent Control Court therefore cannot be obliterated by the deposit of rent made by the petitioner on ## R.C.Rev.Nos.31 & 32 of 2018 :-13-: 30.03.2016 and 02.04.2016. During the course of hearing, the counsel for the respondent submitted that the respondent got vacant possession of the tenanted premises and the petitioner admitted the same. 17. The appellate authority, after considering all the aspects, has passed the common order dated 07.12.2017 by dismissing the appeals. The finding of the appellate authority was on proper appreciation of facts. We, therefore, find no reason to interfere with the impugned common order passed by the appellate authority and the orders passed by the court below, in the exercise of the powers of this Court under Section 20 of the Act. The revision petitions therefore fail and we dismiss the same. Sd/- **A.MUHAMED MUSTAQUE JUDGE** sd/- **SHOBA ANNAMMA EAPEN** MBS/ **JUDGE**