C.P. Rasheed v. K.T. Chandukutty and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN THURSDAY, THE 7TH DAY OF APRIL 2016/18TH CHAITHRA, 1938 RCRev..No. 106 of 2016 () -------------------------- AGAINST THE ORDER/JUDGMENT IN RCA 190/2012 of RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE DATED 21-01-2015 AGAINST THE ORDER/JUDGMENT IN RCP 73/2008 of RENT CONTROL COURT, KOZHIKODE DATED 10.4.2012 REVISION PETITIONER(S)/APPELLANT/1ST RESPONDENT.: ------------------------------------------------ C.P.RASHEED S/O.MAMMAD HAJI, AGED 50 YEARS, CENTURY FANCY AND FOOT WEAR, ROOM NO.39/2473 F, BAPPAYIL PALACE BUILDING, PUTHIYANGADI AMSOM AND DESOM, KOZHIKODE TALUK. BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA SRI.S.KANNAN SMT.UMMUL FIDA RESPONDENT(S)/RESPONDENTS/PETITIONER AND RESPONDENTS 2 TO 4: ------------------------------------------------------------ 1. K.T.CHANDUKUTTY, AGED 82 YEARS, S/O.CHATHU, SHEEJA NIVAS, ELATHUR AMSOM PUTHUR DESOM, KOZHIKODE TALUK-673 004. 2. P.THANKAM, AGED 78 YEARS, HOUSEWIFE, W/O.P.SHEKHARAN, PUZHAVAKKATH HOUSE, ERANHIKKAL PO, ELATHUR AMSOM, KARANNUR DESOM, KOZHIKODE TALUK-673 004. 3. P.RAMPRASAD, AGED 59 YEARS, AYURVEDIC DOCTOR, S/O.SEKHARAN, PUZHAVAKKATH HOUSE, ERANHIKKAL PO, ELATHUR AMSOM, KARANNUR DESOM, KOZHIKODE TALUK-673 004. 4. P.PRADEEP KUMAR, AGED 57 YEARS, S/O.SEKHARAN, PUZHAVAKKATH HOUSE, ERANHIKKAL PO, ELATHUR AMSOM KARANNUR DESOM, KOZHIKODE TALUK-673 004. 5. P.PRABODH KUMAR, AGED 55 YEARS, S/O.SEKHARAN, PUZHAVAKKATH HOUSE, ERANHIKKAL PO, ELATHUR AMSOM KARANNUR DESOM, KOZHIKODE TALUK-673 004. 6. P.PRASIJA KUMARI, AGED 53 YEARS, D/O.SEKHARAN, PUZHAVAKKATH HOUSE, ERANHIKKAL PO, ELATHUR AMSOM KARANNUR DESOM, KOZHIKODE TALUK-673 004. 7. P.PRABIJA KUMARI, AGED 48 YEARS, D/O.SEKHARAN, PUZHAVAKKATH HOUSE, ERANHIKKAL PO, ELATHUR AMSOM KARANNUR DESOM, KOZHIKODE TALUK-673 004. 8. THAZHEPEEDIKAYIL IMBICHI MAMMU HAJI, AGED 74 YEARS, S/O.P.ALI HAJI, MARIYA MAHAL, RESIDING AT PUTHIYANGADI AMSOM DESOM, KOZHIKODE TALUK-673 004. 9. N.MUHAMMAD SHAFI, AGED 48 YEARS, S/O.AHAMMAD KOYA, NADUVILAKAM HOUSE, RESIDING AT PUTHIYANGADI AMSOM DESOM, KOZHIKODE TALUK-673 004. 10. P.K.RAFEEQUE, AGED 41 YEARS, S/O.AHAMMED ALI, PALLIYARAKANY HOUSE, RESIDING AT PUTHIYANGADI AMSOM DESOM, KOZHIKODE TALUK-673 004. R1-R7 BY ADV. SRI.K.SANEESH KUMAR R1-R7 BY ADV. SMT.V.B.SANTHINI THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07-04-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **P.N. Ravindran & K. Ramakrishnan, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - R.C.R.No.106 of 2016 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] April, 2016** ## **O R D E R** ## **P.N. Ravindran, J.** The petitioner is the first respondent in R.C.P.No.73 of 2008 on the file of the Rent Control Court, Kozhikode. The first respondent herein along with one P. Sekharan instituted R.C.P.No.73 of 2008 praying for an order of eviction under sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as 'the Act' for short. After the rent control petition was instituted, P. Sekharan passed away and thereupon his wife and children were impleaded as supplemental petitioners 3 to 8 as per order passed on I.A.No.2221 of 2010 in R.C.P.No.73 of 2008. The petitioners had in the rent control petition averred that they purchased the petition schedule building in an auction conducted by the Kerala Financial Corporation in exercise of the powers conferred on it under section 29 of the State Financial Corporations Act, 1951. It was stated that the sale in their favour was confirmed and they were put in possession of the petition schedule building on 7.4.2006. The property was also registered in their names on 23.1.2007 as per document No.1192 of 2007 of Sub Registry Office, West Hill. The petitioners in RCR No.106/2016 2 the rent control petition had further averred that rent at the rate of Rs.3,000/- per mensem is due from the tenant from 1.4.2006 onwards. They also contended that they bonafide need the petition schedule building for establishing a super market for their children. 2. Upon receipt of notice, the petitioner herein/first respondent in the rent control petition, entered appearance and filed a counter statement wherein he contended that rent upto June 2008 has been paid to M/s. Kiran Babu and Mani and receipts have been obtained. He further contended that he had paid the sum of Rs.3,00,000/- as advance to M/s. Kiran Babu and Mani and that the petition schedule premises was taken on lease by him along with Imbichi Mammu, Basheer and Rafeeque. He contended that they are necessary parties to the rent control petition. He further contended that he had paid the sum of Rs.3,250/- on 26.3.2007 and Rs.6,750/- on 29.3.2008 at Puthiyangadi Village Office towards repayment of the debt due to Kerala Financial Corporation. He had further averred that he stopped paying rent from July, 2008 onwards on coming to know about the sale in favour of the petitioners in the rent control petition. In view of the contentions raised by the tenant in the rent control petition that the property was taken on lease by him along with Imbichi Mammu, Basheer and Rafeeque, Imbichi Mamu was impleaded as the supplemental second respondent, P.K. Rafeeque as the supplemental RCR No.106/2016 3 fourth respondent and one N. Muhammed Shafi as the supplemental third respondent. After considering the rival contentions and the evidence oral and documentary on record, the rent control court held that the tenant had kept rent in arrears at the rate of Rs.3,000/- per mensem from June, 2006 onwards. The contention of the tenant that they had paid the sum of Rs.3,00,000/- as advance to M/s. Kiran Babu and Mani was not accepted in the absence of evidence in that regard. In view of the fact that the landlords did not press the prayer for eviction under section 11(3) of the Act, in the light of the findings entered as regards arrears of rent, an order of eviction under section 11(2)(b) of the Act was passed on 10.4.2012. 3. Challenging the order of eviction, the first respondent in the rent control petition (petitioner herein) filed R.C.A.No.190 of 2012 on the file of the Rent Control Appellate Authority, Kozhikode. In the appeal, the landlords filed I.A.No.1894 of 2014 under section 12 of the Act praying for an order directing the appellant/tenant to deposit the admitted arrears of rent. When the said application came up for counter and hearing on 12.12.2014, learned counsel for the appellant submitted that the appellant is prepared to pay the admitted arrears of rent. The said submission was recorded and the application was adjourned for payment, to 20.1.2015. On that day as there was no representation it was adjourned to 21.1.2015. On 21.1.2015 also, RCR No.106/2016 4 learned counsel for the appellant was not present. There was also no representation on his behalf. The deposit of admitted arrears had also not been made. The appellant did not also show cause as to why an order under section 12(3) of the Act should not be passed against him. In such circumstances, the rent control appellate authority allowed I.A.No.1894 of 2014 by order passed on 21.1.2015, stopped all further proceedings in R.C.A.No.190 of 2012 and directed the tenant to put the landlords in possession of the petition schedule building within one month from that date. The appellant in R.C.A.No.190 of 2012, who is the first respondent in R.C.P.No.73 of 2008 referred to above, has aggrieved thereby, filed this revision petition. 4. We heard Shri S. Kannan, learned counsel appearing for the revision petitioner and Shri Saneesh Kumar, learned counsel appearing for respondents 1 to 7. Though respondents 8, 9 and 10 who are respondents 2, 3 and 4 in R.C.P.No.73 of 2008 have been served, they have not entered appearance. We have also gone through the pleadings and the materials on record. The revision petitioner/tenant did not dispute the rate of rent. The landlords had in the petition for eviction averred that the tenant had kept rent at the rate of Rs.3,000/per mensem in arrears with effect from 1.4.2006. That plea was met by the tenant on the averment that he had paid rent upto June, 2008 to the previous owners of the petition schedule building, viz. M/s. Kiran RCR No.106/2016 5 Babu and Mani. He had also raised a further contention that he had deposited Rs.3,00,000/- as advance with them and also paid Rs.10,000/- on their behalf to the Village Officer towards repayment of the loan availed by the former landlords from the Kerala Financial Corporation. After considering the rival contentions, the rent control court held that the tenant has not been able to prove the deposit of the sum of Rs.3,00,000/-. The contention of the tenants that they had paid rent at the rate of Rs.3,000/- per mensem for the period ending with June, 2008 to M/s. Kiran Babu and Mani, was not accepted for the reason that no receipt evidencing such payment was produced. It is relevant in this context to note that the tenants had in the counter statement filed by them in the rent control petition averred that they had paid rent upto June, 2008 and obtained receipts. The relevant averment in paragraph 7 of the counter statement reads as follows: “The respondent had paid rent upto June 2008 to Kiran Babu and Mani, who are the landlords of the property, and obtained the receipts of the same.” It was having regard to the fact that no such receipt was produced and deposit of the sum of Rs.3,00,000/- was also not proved, the rent control court held that the tenants had kept the rent in arrears. It was challenging the order of eviction passed in view of the aforesaid findings, that the first respondent in the rent control petition filed RCR No.106/2016 6 R.C.A.No.190 of 2012. 5. The question whether the tenants have succeeded in proving their plea that they had paid the sum of Rs.3,00,000/- as advance with the former landlords, is a matter to be gone into by the appellate authority. Even assuming that the tenants had paid the sum of Rs.3,00,000/- to the former landlords, the said payment is only towards security for payment of rent and cannot be adjusted towards the amount payable to the landlords in the instant case. Nor is the said amount liable to be reckoned for the purpose of considering an application under section 12 of the Act ( **See Rajendra Nair and another v. G. Sadasivan Nair** - 2016 (1) KLT 199). 6. Then, the only other question is whether the tenants were bound to deposit rent at the rate of Rs.3,000/- per mensem from 1.4.2006 onwards. Apart from contending that rent at the rate of Rs.3,000/- per mensem has been paid to the former landlords, the tenants had not, as stated earlier, produced any documentary evidence in that regard notwithstanding the specific plea raised by them in paragraph 7 of the counter statement that upon such payments receipts have been obtained. We are therefore of the considered opinion that the said dispute is also a matter which has to be gone into by the appellate authority. The fact however remains that towards rent for the period commencing from 1.4.2006 and ending RCR No.106/2016 7 with 31.3.2016, the tenants have admittedly deposited the sum of Rs.1,86,000/- on various occasions during the pendency of the proceedings before the rent control court/appellate authority and had deposited after the impugned order was passed, the sum of Rs.81,000/- on 7.1.2016. Pursuant to the interim orders passed by this court on 30.3.2016, the sum of Rs.75,000/- was deposited on 31.3.2016. The tenants have thus deposited the total sum of Rs.3,42,000/-. The rent payable for the petition schedule building at the rate of Rs.3,000/- per mensem for the period commencing from 1.4.2006 till 31.3.2016 will be Rs.3,69,000/-. In such circumstances, as substantial payments have been effected and the deficit in payment is only Rs.27,000/-, we are of the opinion that the revision petitioner should be afforded an opportunity to have the appeal heard and decided on the merits instead of being non suited in a proceeding under section 12 of the Act, subject to the condition that he should deposit the said amount of Rs.27,000/- also before the appellate authority for payment to the landlords subject to further orders to be passed by the rent control court in proceedings under section 11(2)(c) of the Act. We accordingly allow this revision petition, set aside the impugned order, restore R.C.A.No.190 of 2012 to the file of the Rent Control Appellate Authority, Kozhikode and direct the appellate RCR No.106/2016 8 authority to dispose of the appeal on the merits expeditiously and in any event, before 31.7.2016, in the event of the petitioner depositing in the rent control appellate authority for payment to the landlords the sum of Rs.27,000/- on or before 31.5.2016 and continuing to pay to the landlords rent at the rate of Rs.3,000/- per mensem for the period commencing from 1.4.2016 on the due date which we fix as 5[th] of every succeeding month or deposits for payment to the landlord in the rent control court within that time. Needless to say, it will be open to the landlords to withdraw the amount deposited by the tenant till date including the sum of Rs.75,000/- deposited pursuant to the interim orders of this court. The revision petition is disposed of with the above observations and directions. No costs. ## ## **(K. Ramakrishnan, Judge)** ## **kav/**