I.T. Joy v. Sreelekha T.S.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 20[TH] DAY OF SEPTEMBER 2021 / 29TH BHADRA, 1943 OP (RC) NO. 72 OF 2021 RCP 111/2016 OF III ADDITIONAL MUNSIFF AND RENT CONTROL COURT,** ## **ERNAKULAM,** ## **ORIGINAL PETITIONER/RESPONDENT/RESPONDENT** I.T.JOY, AGED 46 YEARS SINCERE FOOTWEARS, BUILDING NO. TMC 6/279B, MATHOOR JUNCTION, EROOR (N), TRIPUNITHURA, NADAMA VILLAGE, KANAYANNOOR TALUK. BY ADVS. K.G.CLEETUS PETERLAL ## **RESPONDENT/PETITIONER/PETITIONER** SREELEKHA T.S., W/O. AIKKARA PARAMBIL RAMACHANDRAN, EROOR (S) P.O. TRIPUNITHURA, NADAMA VILLAGE, KANAYANNOOR TALUK, PIN682306. BY ADVS. T.B.THANKAPPAN T.T.HARIKUMAR DIPIN DILEEP THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 9.8.2021, THE COURT ON 20.09.2021 DELIVERED THE FOLLOWING: OP(RC).No.72 of 2021 2 ## **JUDGMENT** ## **M.R.Anitha, J.** This Rent Control Original Petition has been directed against the order passed under Section 12(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965 in R.C.P.No.111 of 2016 of the Rent Control Court (III Additional Munsiff), Ernakulam. 2. Petitioner is the tenant under the respondent/landlord. R.C.P.No.111 of 2016 has been filed under Sections 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (in short the Act). Ext.P13 is the copy of I.A.1/2020 filed under Section 12 of the Act. The monthly rent of the building is Rs.6,000/-. It is alleged that, petitioner kept rent in arrears from September 2019 and the rent due till the date of filing of the Interlocutory Application is Rs.90,000/-. Hence the petition Section 12 of the Act has been filed. 3. Tenant filed counter affidavit denying the tenancy arrangement with respect to room No.6/279C. Ext.P14 is the copy of counter affidavit filed by the tenant to Ext.P13 petition. OP(RC).No.72 of 2021 3 According to him that room was being occupied by him on an arrangement to pay Rs.6,000/ towards use and occupation till the repayment of the security deposit of Rs.3,50,000/- by the landlord. He paid use and occupation charge at the rate of Rs.6,000/- per month till 31[st] December 2019 through money orders and cheque. The charges for the months of January and February, 2020 could not be paid. Meanwhile, he closed the shop room from March, 2021 due to lock down and the shop room was remaining closed till 31[st] July due to COVID-19 pandemic. Further he sought sufficient time for payment of charge for the months of January, February, March, August, September, October, November and December and that according to him, is Rs.48,000/-. In short, according to the tenant, there is no landlord - tenant relationship between the parties with respect to building No.6/279C. 4. The Rent Control Court passed an order under Section 12(1) directing the petitioner/tenant to remit the rent arrears of Rs.90,000/- within 30 days and continue to remit rent which may subsequently fall due, within 15 days from the due date, till culmination of the proceedings. Ext.P15 is the 4 OP(RC).No.72 of 2021 copy of the order. 5. Aggrieved by that order the petitioner/tenant approached this Court on various grounds. Notice was issued to the respondent and respondent appeared through counsel. Heard both sides. 6. According to the petitioner/tenant originally, as per Ext.P1 rent deed, building No.6/279 was taken on lease on payment of Rs.50,000/- as security deposit. Subsequently, as per Ext.P2, room No.6/279 B was taken on rent on monthly rent of Rs.3,000/- and also on payment of Rs.3,00,000/towards interest free security deposit. Thereafter Ext.P4 rent control petition was filed seeking eviction under Sections 11(3) and 11(4)(ii), for which tenant filed Ext.P5 counter statement. Subsequently, the respondent/landlord filed Ext.P7 amendment application to amend the building numbers as 5/279B and 5/279C, instead of 5/279A and B. The area shown also was sought to be corrected as 650 square feet, instead of 300 square feet. Though he strongly objected the proposed amendment, the Rent Control Court allowed the amendment application. Thereafter, he filed Ext.P8 application for directing 5 OP(RC).No.72 of 2021 the landlord to produce the rent agreement executed between him and the landlord with respect to room No.5/279C, for which Ext.P9 counter affidavit was filed by the landlord, admitting that there is no rent deed with respect to the letting of building No.5/279C. The Rent Control Court passed Ext.P10 order closing Ext.P8 petition in view of the counter affidavit filed by the landlord that no rent deed has been executed with respect to building No.5/279C. Thereafter, Ext.P11 application was filed by the petitioner to correct the ward number of the building as '6' instead of '5'. That also was allowed. Subsequent to that, the present petition under Section 12 of the Act has been filed by the respondent/landlord. 7. The main contention of the learned counsel for the petitioner/tenant is that the tenant has not taken building No.279C on rental arrangement from the respondent/landlord. Building No.6/279C has been occupied by him at the request of the landlord when the two other rooms, i.e., 6/279A and 6/279B were acquired by the Municipality, on condition to pay Rs.6,000/- towards charges for use and occupation. Hence, there is no landlord-tenant relationship between him and the 6 OP(RC).No.72 of 2021 respondent with respect to room No.6/279C. In other words, the status of landlord - tenant is denied by him with respect to room No.279C. So the order passed by the Rent Control Court under Section 12(1) of the Act is illegal and without jurisdiction. 8. The learned counsel for the respondent/landlord, on the other hand, would contend that the first prayer sought in the Original Petition itself is not maintainable since the impugned order is an appealable order as per Section 18 of the Act. Secondly, he would contend that the petitioner/tenant admitted the tenancy arrangement or rather not disputed the landlord-tenant relationship in the additional counter statement filed him him and there is no denial of title of the landlord and hence the impugned order passed by the Rent Control Court is perfectly legal and proper and no interference is called for. 9. The points that arise for consideration are: - (i) Whether original petition is not maintainable? - (ii) Whether there is any tenancy arrangement with - respect to building No.6/279C in between the parties? Point:No.1- 10. Though originally Rent Control Petition has been filed 7 OP(RC).No.72 of 2021 seeking eviction of building Nos.5/279A and 5/279B (subsequently amended as 6/279A and 6/279B), admittedly those two shop rooms were earmarked by PWD authorities for demolition to widen the PWD road. The specific case of the tenant is that, at that time when he demanded security deposit of Rs.3,50,000/- advanced by him to find out another suitable room, the petitioner requested him to occupy room No.6/279 C lying nearby the other rooms. In pursuance of the same he occupied that room and is running the business. 11. Ext.P12 is the first reply of the tenant after amendment of the petition schedule, including room No.279C. Though there is a vague allegation in the additional counter statement that at the request of the respondent/landlord he occupied and used room No.6/279C, there is no specific contention that it was not a tenancy arrangement. So also the title of the landlord with respect to room No.6/279C is also not denied in the additional counter statement. All the other contentions are to meet the ingredients under the 2[nd] proviso to Section 11(3) of the Act, that the income from the shop room is the only source of his livelihood to maintain the family and 8 OP(RC).No.72 of 2021 the landlord can occupy a room where M/s.Hari Agencies is housed with a plinth area of 1140 on the immediate eastern side of petition schedule room, if at all the bona fide need urged is genuine etc., are further raised. It is also contended that the intention of the respondent/landlord is only to evict him due to the personal grudge of her husband in view of the objections raised against him regarding his conduct in the Merchant Association. It is further contended that if at all it is found that the landlord is entitled for vacant possession, he is entitled for refund of the security deposit of Rs.3,50,000/-. So there is no specific contention in the additional counter statement denying the landlord-tenant relationship. Only when the petition, Ext.P13, under Section 12 of the Act has been filed, tenant filed counter affidavit, copy of which is marked as Ext.P14, raising a contention of payment of monthly charges for use and occupation. However, the rate as Rs.6000/- is not seen disputed. 12. The learned counsel for the landlord challenges the maintainability of this Original Petition on the ground that an appeal is provided under Section 18 of the Act against the OP(RC).No.72 of 2021 9 impugned order passed under Section 12(1). But it is against the settled principles of law because an order passed under Section 12(1) of the Act is only an intermediary order and it will not determine the rights of the parties finally. Only when an order under Section 12(3) is passed by the Rent Control Court the proceedings will come to a finality. See **Thomas John v. Kochammini Amma [1991 (1) KLT 99 : ILR 1991 (2)** **Ker.79]** . In that decision, the question whether an appeal will lie under Section 18 when an application to set aside the commission report is dismissed arose for consideration. It has been held therein that Section 18 of the Act enables an appeal to be filed before the Appellate Authority against any order passed by the Rent Controller provided the order is not an interlocutory order, which is merely procedural in nature and does not affect some right or liability of any party. 13. In **Sumathi v. Devasan [1991 KHC 136 : 1991 (1) KLT 453],** paragraph No.12, while discussing about appealable order under Section 18(1)(b), there is reference with regard to Section 12 orders stopping the proceedings. But Section 12(1) order is a procedural order directing the tenant to 10 OP(RC).No.72 of 2021 pay the arrears of rent or show cause why an order under Section 12(3) should not be passed directing the tenant to put the landlord in possession. Obviously it is not a final order nor does an order affecting any right or liability of any party. After Section 12(1) order tenant can very well show cause as to why order should not be passed under Section 12(3) directing him to put the landlord in possession of the building. Only when an order under Section 12(3) is passed directing tenant to put landlord in possession of the building there will be an order affecting the rights or liabilities of the parties. 14. In **Central Bank Of India vs Shri Gokal Chand [AIR 1967 SC 799]** while dealing with a case under Section 38(1) of Delhi Rent Control Act, 1958 the question arose about the provision of appeal from the order of rent control Court. In that case, an application for issue of commission by the tenant was rejected by the Rent Control Court. Against which an appeal was filed and the Appellate Tribunal held that no appeal would lie from the aforesaid order of the Rent Controller under Section 38(1) of the Delhi Control Act, 1958 and the appeal was dismissed. The High Court agreed with the decision of the OP(RC).No.72 of 2021 11 ## Appellate Tribunal. The tenant approached the Apex Court and in paragraph 4, it has been held thus : “The object of Section 38(1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of Section 38(1) the words “every order of the Controller made under this Act” though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. In a pending proceeding, the Controller may pass many interlocutory orders under Sections 36 and 37, such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties. The legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. It is open to any party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceeding. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the Controller under the Act. Even an interlocutory order passed under Section 12 OP(RC).No.72 of 2021 37(2) is an order passed under the Act and is subject to appeal under Section 38(1) provided it affects some right or liability of any party. Thus, an order of the Rent Controller refusing to set aside an ex parte order is subject to appeal to the Rent Control Tribunal.” 15. In the present case, by the impugned order the Rent Control Court directed the respondent to remit the rent arrears of Rs.90,000/- within 30 days from the date of the order and further directed the respondent to continue to remit the rent which may subsequently due within 15 days from the date of order till the culmination of proceedings. If the petitioner/tenant fails to pay or deposit the rent as directed and the Rent Control Court proceed under Section 12(3), which provides that on failure to pay or deposit the rent as directed under Section 12(1), the Rent Control Court or the Appellate Authority shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put landlord in possession of the building, under Section 12(3), there would be an order affecting the right or liability of the petitioner/tenant. Such an order alone enable the tenant to file an appeal under Section 18 of the Act. So the contention that 13 OP(RC).No.72 of 2021 the Original Petition is not maintainable since the petitioner has got a remedy of appeal is not at all sustainable in law. Point: No.2 16. The next argument is with regard to the finding of landlord-tenant relationship by the Rent Control Court in spite of the specific contention that building No.6/279C has been occupied by him at the request of the landlord on payment of charge for use and occupation since the landlord could not repay the security amount of Rs.3,50,000/- demanded by him. But there is no specific denial of landlord-tenant relationship while the additional counter statement was filed to the Rent Control Petition after the amendment of the Rent Control Petition incorporating the building numbers as 279B and 279C, in the place of 279A and 279B. Only at the time when Section 12 petition was filed by the petitioner, the contention regarding the denial of landlord-tenant relationship raised. 17. As per the second Proviso to Section 11(1) where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that OP(RC).No.72 of 2021 14 effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in that section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. 18. In order to claim benefit under the second proviso to Section 11(1) there should be a finding of Rent Control Court that the denial of title of the landlord or the claim of right of permanent tenancy is _bona fide_ . In this case the respondent did not deny the title of the landlord and his contention is that his status as the tenant under the petitioner is denied and he is only occupying room No.6/279C on a condition to pay charges for use and occupation and there is no landlord-tenant relationship between them with respect to that room. 19. The learned counsel for the petitioner relied on the decision in **Parthakumar v. Ajith Viswanathan [2006 (2) KLT 250]** to substantiate his contention, wherein a Full Bench of this Court has held that existence of landlord - tenant relationship is inevitable for the Special Tribunal to exercise its jurisdiction and the Tribunal following summary procedure 15 OP(RC).No.72 of 2021 cannot usurp the powers and jurisdiction of the civil Courts to decide such disputes regarding title. That is the zone of area where the civil court must entertain jurisdiction. Paragraphs of the aforesaid decision which are relevant in this context, read as follows; “19. What could be those disputes relating to title of the landlord? What can be said to be denial of title for the purpose of the second proviso to Section 11(1)? These are the questions that now crop up. 20. We do not intend to be exhaustive. But it can safely be pointed out that there could be several types of disputes which can be raised by a person who is proceeded against. He may contend that he is the paramount title holder himself. He may contend that petitioner – landlord has no title at all. He may claim that not the petitioner but some other person is the title holder. He may admit the paramount title of the landlord; but contend that, the landlord has no title to claim eviction as landlord. He may contend that he is a trespasser and not a tenant amenable to the jurisdiction of the Special Tribunals constituted under the Act. He may contend that he is a licensee and not a tenant. He may contend that he is a mortgagee and not a tenant. Without intending to be exhaustive, it can be pointed out that the title of the landlord to claim eviction under S.11 can be dispute on many grounds like the ones enumerated above.” 16 OP(RC).No.72 of 2021 20. The contention of the respondent that he is not a tenant but a person occupying the room on condition to pay charges for use and occupation in spite of his admission that the petitioner is the owner also will definitely come within the scope of dispute under Section 11(1). That may be the reason why the learned counsel contends that though he has no dispute that the petitioner is the owner of the building, he challenges his status as the tenant. So his contention that he is not a tenant, but is only an occupier on payment of charges for use and occupation, definitely would come within the scope of second proviso to Section 11(1), if at all he succeeds to establish his _bona fide_ denial of the status of tenant with respect to the building. For resolving that issue, the basis would be the written statement or the objection filed by the tenant, as has been held in **Celine Sourunny v. Mary Paul Abrao [ILR 1979 (1) Ker. 73]** relied on by the Rent Control Court. 21. After amending room No.6/279C in the petition schedule, the first reply as stated earlier from the tenant is the additional counter statement filed by him. The specific contention raised by the tenant in that context is that when OP(RC).No.72 of 2021 17 building No.279A and 279B have been marked by the PWD Authorities for acquisition to widen the PWD road, he demanded security deposit from the landlord to find out another suitable room. But the landlord was not in a position to refund the security deposit due to paucity of funds with her. Then the landlord requested him to occupy and use vacant room No.6/279C and in pursuance of the same, he occupied that room and is running the business since then. There is no express or specific denial of his status as tenant in the additional counter statement. So also he has specifically raised contentions which enables a tenant to get the protection under the provisos to Section 11(3) and it is also alternatively contended that if it is found ultimately, that the landlord is entitled to vacant possession of the shop room, then the landlord is liable to refund the security deposit. So absolutely no whisper regarding the denial of landlord - tenant relationship find a place in the additional counter statement filed by him. Only when Section 12 petition, Ext.P13, has been filed by the landlord the contention regarding the denial of the status of tenant comes up. That itself would show the lack of _bona fides_ OP(RC).No.72 of 2021 18 in the denial of status of tenant. So also the tenant has no case that on permitting him to occupy room No.6/279C, the petitioner demanded any additional security. Admittedly the security amount advanced by him with respect to other two rooms is already with the landlord. So the specific arrangement permitting the petitioner to occupy room No.6/279C on the previous security deposit paid by him with respect to two other rooms would only indicate that the tenant was permitted to occupy building No.6/279C on the same arrangement with respect to the other rooms against which acquisition proceedings have been initiated. Admittedly by the tenant, he is paying Rs.6,000/- with respect to room No.6/279C. It is to be remembered that with respect to building No.279A and 279B, he had been paying Rs.3,000/- each. So the allotment of building No.6/279 C to the tenant can only be inferred as an alternate arrangement in between the landlord and the tenant to continue the tenancy arrangement. The tenant also could not bring in any document or other material to support his contention probabilising the existence of any such arrangement to pay charges for use and occupation as Rs.6,000/-. No 19 OP(RC).No.72 of 2021 argument disputing the quantum fixed by the Rent Control Court is advanced before us. So we do not find any illegality or error of jurisdiction on the part of the Rent Control Court in passing the impugned order, warranting any interference under Article 227 of the Constitution of India. 22. The learned counsel for the tenant seeks for a reasonable time for deposit of amount in view of the Covid-19 Pandemic crisis. Having regard to the facts and circumstances, we are inclined to grant three weeks' time from the date of this order to deposit the arrears of rent as ordered in the impugned order before the Rent Control Court. In the result, the Original Petition fails and the same is accordingly dismissed. **Sd/-** ## **Anil K.Narendran, Judge** **Sd/-** ## **M.R.Anitha, Judge** Mrcs/12.8. OP(RC).No.72 of 2021 20 ## **APPENDIX OF OP (RC) 72/2021** EXHIBITS Exhibit P1 TRUE COPY OF THE RENT AGREEMENT DATED 28/10/2005 EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENT. Exhibit P2 TRUE COPY OF THE RENT DEED DATED 20/07/2015 EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENT. - Exhibit P3 TRUE COPY OF THE LEGAL NOTICE DATED 13/06/2016 SENT BY HER ADVOCATE. - Exhibit P4 TRUE COPY OF THE RENT CONTROL PETITION RCP NO.111/2016 DATED 12/07/2016. - Exhibit P5 TRUE COPY OF THE COUNTER STATEMENT DATED 01/12/2016 IN RCP NO.111/2016 ON THE FILE OF RENT CONTROLLER, ERNAKULAM. - Exhibit P6 TRUE COPY OF THE COMMISSION REPORT DATED 10/11/2018 IN IA NO.2588/2018 IN RCP NO.111/2016 ON THE FILE OF IIIRD ADDITIONAL MUNSIFF AND RENT CONTROLLER, ERNAKULAM. - Exhibit P7 TRUE COPY OF THE IA NO.5417/2019 IN RCP NO.111/2016 DATED 22/07/2019 ON THE FILE OF RENT CONTROL COURT, ERNAKULAM. Exhibit P8 TRUE COPY OF THE IA NO.6424/2019 IN RCP NO.111/2016 ON THE FILE OF RENT CONTROL COURT, ERNAKULAM DATED 02/09/2019. Exhibit P9 Exhibit P10 Exhibit P11 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 19/09/2019 IN IA NO.6424/2019 IN RCP NO.111/2016 ON THE FILE OF RENT CONTROL COURT, ERNAKULAM. - TRUE COPY OF THE ORDER DATED 15/10/2019 IN IA NO.6424/2019 IN RCP NO.111/2016 OF THE IIIRD ADDITIONAL MUNSIFF AND RENT CONTROLLER, ERNAKULAM. TRUE COPY OF THE IA NO. RCP NO.111/2016 DATED 23/09/2019 ON THE FILE OF RENT CONTROL COURT, ERNAKULAM. OP(RC).No.72 of 2021 21 Exhibit P12 TRUE COPY OF THE ADDITIONAL COUNTER STATEMENT DATED 15/11/2019 IN RCP NO.111/2016 ON THE FILE OF RENT CONTROLLER, ERNAKULAM. Exhibit P13 TRUE COPY OF THE IA NO.1/2020 IN RCP NO.111/2016 ON THE FILE OF RENT CONTROL COURT, ERNAKULAM DATED 09/11/2020. Exhibit P14 TRUE COPY OF THE COUNTER AFFIDAVIT IN IA NO.1/2020 IN RCP NO.111/2016 ON THE FILE OF RENT CONTROLLER, ENRNAKULAM DATED 04/01/2021. Exhibit P15 TRUE COPY OF THE ORDER DATED 17/03/2021 IN IA NO.1/2021 IN RCP NO.111/2016 OF THE IIIRD ADDITIONAL MUNSIFF AND RENT CONTROLLER, ERNAKULAM.