Dr. Louise George v. Kanakam Thambi

**RCRev..No.400 OF 2018 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 04TH DAY OF FEBRUARY 2020 / 15TH MAGHA, 1941** ## **RCRev..No.400 OF 2018** **AGAINST THE JUDGMENT IN RCA 51/2014 DATED 02-06-2015 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM** **AGAINST THE ORDER IN RCP 30/2012 DATED 11-04-2014 OF ADDITIONAL MUNSIFF COURT,KOCHI** ## **REVISION PETITIONER:** **DR. LOUISE GEORGE AGED 70 YEARS S/O. LATE LOUISE VILLUKEERI VALIYA VEETTIL HOUSE, OUR LADY'S COMPOUND, KACHERIPADY, EDAKOCHI VILLAGE, KOCHI-682 006** **BY ADV. SRI.K.P.UNNI** ## **RESPONDENT:** ## **KANAKAM THAMBI** **W/O. THAMBI, ANCHUPARA NIKARTHIL HOUSE, PALLICHAL ROAD, KOCHI-682 005, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, K. MADHU, AGED ABOUT 40 YEARS, S/O. KARUNAKARAN, PONNIYATHU HOUSE, PUTHUNAGARAM STREET, VELI POST, KOCHI-682 001** **R1 BY ADV. SRI.A.BALAGOPALAN R1 BY ADV. SRI.A.RAJAGOPALAN R1 BY ADV. SRI.M.N.MANMADAN R1 BY ADV. SRI.M.S.IMTHIYAZ AHAMMED R1 BY ADV. SMT.P.SEENA R1 BY ADV. SHRI.ASHWIN K.U.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ORDER** ## **Dated this the 4th day of February 2020** ## **K.Harilal, J.** The petitioner herein is the tenant against whom a summary holder of eviction has been passed under Section 12 of the Kerala Buildings(Lease and Rent Control) Act in RCP No.30 of 2012 of the Additional Rent Control Court, Kochi. The respondent/landlord filed the aforesaid RCP seeking an order of eviction under Section 11(2)(b) of the Kerala Buildings(Lease and Rent Control) Act. During the pendency of the said application he had preferred I.A.No.2317 of 2013 under Section 12 of the Kerala Buildings(Lease and Rent Control) Act seeking a direction to the petitioner herein to deposit admitted arrears of rent. According to the respondent, the rate of rent was Rs.12,500/- per month and the petitioner herein paid rent till February, 2012 only and an amount of Rs.2,75,000/- is due from the petitioner herein towards arrears of rent as admitted arrears. ## 2. The petitioner herein filed objection admitting the rent deed, rate of rent and defaulted period of rent. But he further ## **RCRev..No.400 OF 2018 3** contended that the respondent had obtained huge amount from him on an assurance that the property will be sold to him on receipt of balance consideration. But the respondent has not executed the sale deed as assured by him and thereby huge amount is due from the respondent. According to the petitioner, the respondent dishonestly induced him to pay the amounts to them agreeing to sell the building in his favour. Aggrieved by the fraud committed by him, he had preferred a criminal complaint against the respondent and the same is pending before the Magistrate court. 3. After considering the aforesaid rival pleas, the Rent Control Court passed an order under Section 12(2) of the Kerala Buildings (Lease and Rent Control) Act directing the petitioner herein to deposit Rs.2,75,000/- towards the admitted arrears of rent and report on or before 4.3.2014. But the petitioner herein has not deposited the admitted arrears of rent as directed by the Rent Control Court. On 4.3.2014 the court ordered to issue notice to the respondent to show-cause why further proceedings should not be stopped and the respondent be put in possession of the petition schedule building and posted the RCP to 26.3.2014. There was no deposit till 26.3.2014 also. Then the case was ## **RCRev..No.400 OF 2018 4** posted to 28.3.2014 and 9.4.2014. But there was no deposit in compliance with the order passed by the Rent Control Court. Consequently, the Rent Control Court passed summary order of eviction against the petitioner and the said order was challenged in RCA No.52 of 2014 before the Rent Control Appellate Authority. The Rent Control Appellate Authority after re-appreciating the evidence on record confirmed the summary order of eviction passed by the Rent Control Court and dismissed the appeal. The legality and correctness of the finding whereby the courts below have passed summary order of eviction against the petitioner are challenged in this revision petition. 4. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 5. The short question that arises for consideration in this revision petition is whether there is any illegality or impropriety in the concurrent findings of the courts below whereby the courts below have passed a summary order of eviction under Section 12(3) of the Kerala Buildings(Lease and Rent Control) Act. The landlord-tenant relationship stands admitted. Similarly, the petitioner has admitted the execution of rent deed and the rate of rent as Rs.12,500/- ## **RCRev..No.400 OF 2018 5** per month. It is also admitted that he has paid rent till February, 2012 only and he has not paid any amount thereafter. But his further contention is that the respondent has obtained huge amount from him after making him to believe that the property including the scheduled building will be sold to him. But he has not executed the sale deed and no amount has been returned so far. Therefore, according to the petitioner, he is not liable to pay any amount towards rent as huge amount is pending due from the respondent to him. Even though he has raised such a contention, no evidence has been adduced to prove the receipt of such a huge amount from the petitioner by the respondent. We are of the view that even if such a huge amount is pending due from the landlord to the tenant the same cannot be imported to an application under Section 12 of the Kerala Buildings(Lease and Rent Control) Act while determining the admitted arrears of rent due from the tenant to the landlord. The matters to be considered in an application under Section 12 of the Act for determining the arrears of rent are the rate of admitted rent in the lease deed and the defaulted period admitted by the tenant. The question whether the mere bare denial of admitted arrears of rent would absolve the tenant ## **RCRev..No.400 OF 2018 6** from the liability to deposit admitted arrears of rent, where there are other materials evidencing admissions. Otherwise, was considered elaborately by this court in **Gopala Panicker Baiju and another v Mallika(2018(5) KHC 95)** . In the aforesaid decision this court held as follows: The word "admitted arrears" is not defined in the Act, but proceedings under S.12 can be invoked against the tenant only, when arrears of rent is admitted. The dictionary meaning of 'admit' is 'to accept or to agree that something is true'. So, 'admitted arrears' mean and intend 'agreed amount as arrears'. How can the 'agreed amount as arrears' be determined? The Act does not distinguish the word 'admitted' from the meaning given to the word 'admission', envisaged under S.17 of the Indian Evidence Act. Therefore, we are of the opinion that the meaning given to the word "admission" in the Evidence Act can be adopted to find out the admitted arrears of rent also. According to S.17 of the Indian Evidence Act, an admission is a statement, (oral or documentary, contained in electronic form), which suggests any inference as to any fact in issue or relevant fact which is made by any persons, under the circumstances mentioned in S. 18 to 20 of the Act. As per S.18 of the Act, the statement made by the parties to the proceedings or by an authorised agent are admissions. In Bhogilal Chunilal Pandya v. State of Bombay, 1959 KHC 489 : AIR 1959 SC 356 : 1959 Supp (1) SCR 310 : 1959 CriLJ 389 the Supreme Court held that, statement only means "what is stated". According to Taylor on evidence S. 804, the recitals in a document are also admission of the maker. Therefore, the admitted arrears of rent, contemplated under S.12(1) of the Act, need not be an admission in the rent control proceedings itself and it cannot be insisted that the acceptance of the arrears or the quantum of admitted arrears of rent should come by the express words from the tenant himself in his counter statement in the RCP or in the objection to the application, filed under S.12 of the Act by the landlord. But, it can be inferred from any document containing admission, as to the rate of rent, and period of default, made by the tenant. **RCRev..No.400 OF 2018 7** The relevant factors, from which "arrears of rent", can be inferred are the rate of rent and period of default. Normally, the rent deed executed by the tenant is a document which contains admission as to the rate of rent made by the tenant. The periodical enhancement in the rate of rent is evident from the rent receipts, in case the rent deed is not current. Similarly, the rent receipts, postal receipts or bank records, contemplated under S.9(2) of the Act, produced by the tenant, are the documents which would suggest the period for which rent is paid. According to S.9(1) of the Act, the tenant is entitled to get receipt, on payment of rent and in case of refusal, an alternative remedy for payment of rent is also provided in sub section (2) of S.9 of the Act. Therefore, a tenant cannot be heard to say that landlord refused to issue receipt, on payment of rent. The rent receipt is a statutorily accepted substantive evidence from which the period of default can be inferred indirectly. According to Taylor on evidence, S.800 an admission may be direct or indirect, express or implied. Therefore, the rent receipts, money order receipts and other bank records, provided under S.9 of the Act, are documents containing admission which would suggest an inference indirectly, as to the period of default also. 'Admitted arrears of rent' has to be understood and construed in conformity with statutorily recognized payment only. Therefore, for the determination of a petition under S.12 of the Act, it is permissible to require production of rent deed by the landlord and the rent receipt or document mentioned in S.9(2) of the Act by the tenant. These materials would obviously show the admitted arrears of rent, without conducting any enquiry or adjudication. ## 6. When we apply the aforesaid legal proposition to the instant case, we find that the petitioner has admitted the rent at the rate of Rs.12,500/- per month. Further, he admitted that rent is due from him from February, 2012 onwards and he has not paid any amount thereafter. Therefore, it is very ## **RCRev..No.400 OF 2018 8** easy to calculate the admitted arrears of rent, without conducting any enquiry. The courts below are justified in directing the petitioner to deposit admitted arrears of rent as claimed by the respondent. 7. Is there any procedural irregularity in passing the order? Going by the proceedings, we further find that on 4.2.2014 the Rent Control Court passed an order under Section 12(2) of the Act directing the petitioner to deposit Rs.2,75,000/- towards admitted arrears of rent on or before 4.3.2014 and thereby provided one month time to deposit the admitted arrears as stipulated under Section 12(2) of the Kerala Buildings(Lease and Rent Control) Act. Further, on 4.3.2014 the Rent Control Court found that no amount was paid by him. Therefore, the Rent Control Court again passed an order to issue notice to the petitioner to show-cause why further proceedings should not be stopped and the respondent be put in possession and the petition was posted to 26.3.2014. But no explanation, to the show-cause notice, was given by the petitioner herein before 26.3.2014. Then the case was posted to 28.3.2014 and finally on 9.4.2014. But the petitioner herein has not deposited the admitted arrears of rent. Thus, we find that the petitioner has got a ## **RCRev..No.400 OF 2018 9** total period of more than two months' to pay the admitted arrears of rent. But he has not paid the rent. We do not find any kind of illegality or impropriety in the impugned order, whereby the courts below concurrently passed the summary order of eviction under Section 12 of the Kerala Buildings(Lease and Rent Control) Act. This RCR fails and dismissed accordingly. **K.HARILAL, JUDGE** **C.S.DIAS, JUDGE** cms