J. Ramkumar v. Ashok Jacob

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 19TH DAY OF JULY 2017/28TH ASHADHA, 1939** **RCRev..No. 141 of 2017 (B) --------------------------** **AGAINST THE JUDGMENT IN RCA 2/2016 of RENT CONTROL APPELLATE AUTHORITY, MAVELIKKARA, DATED 20-12-2016** **AGAINST THE ORDER IN IA 2111/2015 IN RCP 4/2015 of RENT CONTROL COURT,CHENGANNUR DATED 12-01-2016** ## **REVISION PETITIONER/RESPONDENT/RESPONDENT:** **--------------------------------------------** **J. RAMKUMAR, AGED 41 YEARS, S/O.K.JAYAPAL, PROPRIETOR, ARYAS HOTEL, CHENGANNUR, ALAPPUZHA, RESIDING AT ANJILIVILAYIL HOUSE, THONALLUR MURI, PANDALAM (P.O), ADOOR TALUK, PATHANAMTHITTA DISTRICT.** **BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.GOVIND PADMANAABHAN SRI.AJIT G.ANJARLEKAR** ## **RESPONDENT/APPELLANT/PETITIONER:** **-----------------------------------** **ASHOK JACOB, PADIPURACKAL HOUSE, THITTAMEL MURI, CHENGANNUR VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT.** **BY ADV. SRI.LIJU.V.STEPHEN BY ADV. SMT.INDU SUSAN JACOB** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 19-07-2017, ALONG WITH RCR 215/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## _**okb**_ K.HARILAL & P. SOMARAJAN, JJ. ------------------------R.C.R. Nos.141 of 2017 and 215 of 2017 ------------------------Dated this the 19[th] day of July, 2017 ## O R D E R ## **Somarajan, J.** These are the two Revisions filed by the tenant aggrieved by the common judgment rendered by the Rent Control Appellate Authority in RCA No.2/2016 dated 20/12/2016. 2. An application in I.A.No.2111/2015 in RCP No.4/2015 of the Rent Control Court, Chengannur, was filed by the landlord under Section 12 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short “the Act”) claiming arrears of rent payable under the tenancy with the respondent therein. Another application was filed in I.A.No.2371/2015 challenging the maintainability of the Rent Control Petition in view of the earlier agreement entered into by the parties. Both the applications were dismissed by the Rent Control Court against which two R.C.Revisions.141 & 215 of 2017 :2: appeals, R.C.A. Nos.2/2016 and 3/2016 respectively, were preferred by the landlord. The Appellate Authority, on reappraisal of the case advanced, allowed the application in I.A.No.2111/2015 reversing the findings of the Rent Control Court and upheld the dismissal of the application in I.A.No.2371/2015, against which these two revisions were filed by the tenant. 3. Insofar as I.A.No.2371/2015 is concerned, both the Rent Control Court and Appellate Authority had entered into a concurrent finding that the Rent Control Petition is perfectly maintainable. The non-obstante clause under Section 11 of the Act would be sufficient to throw away the agreement entered into between the parties curtailing the jurisdiction of Rent Control Court in the matter of eviction. Further, it is not permissible for the parties to circumvent the provisions of the Act, especially when it is a beneficial legislation by entering into an agreement. As such, we do not find any reason to interfere with the concurrent finding entered by the Rent Control Court and the Appellate R.C.Revisions.141 & 215 of 2017 :3: Authority in I.A.No.2371/2015 and hence the revision in RCA No.2/2016 fails. This revision is only to be dismissed and we do so. 4. Insofar as I.A.No.2111/2015 is concerned, the said application was filed under Section 12 of the Act claiming arrears of rent. In answer to the said application the tenant/respondent raised a contention stating that there is no arrears of rent in view of the advance amount already paid to the landlord, which, according to the tenant, comes to Rs.59 lakhs plus 10 lakhs. It was also submitted that though they had instituted a suit for recovery of the same, it was ended in dismissal for default. This has been taken into consideration by the Rent Control Court and found that there is no admitted arrears of rent and hence the application would not lie under Section 12 of the Act and the tenant is not entitled to an order under the said section. It was reversed by the first appellate authority on the ground that there is no scope for any adjudication with respect to the rival claim raised by both the tenant and the R.C.Revisions.141 & 215 of 2017 :4: landlord in respect of an earlier agreement alleged to have been entered into by them. It was also observed by the first appellate court that the adjustment pleaded by the tenant cannot be enquired into at that stage under Section 12 of the Act. 5. We are of the view that the first appellate authority went wrong in appreciating the factual matrix in its correct perspective, because of the reason that what has been looked into under Section 12 of the Act is the “admitted arrears of rent” which stands for the admission made by the tenant regarding arrears of rent. This Court had an occasion to consider the said question in a decision drawn in **Celine Sourunny v. Mary Paul Abrao [1979 KHC 289 = ILR 1979 (1) Kerala 73].** Again, this Court very recently had the occasion to consider the same question in **Jose v. Xavier [2017 (3) KLT 222 (O.P(RC) No.169/2016)]** and it was observed that it has got two limbs; the first limb stands for the pre-litigation arrears of rent and the second limb stands for the arrears which may R.C.Revisions.141 & 215 of 2017 :5: accrue during the pendency of Rent Control Petition or the Rent Control Appeal, as the case may be. It was further held by this Court in that decision that insofar as the first limb is concerned, what is relevant is the admitted arrears of rent. The said expression is conspicuously absent in the second limb as it stands for the rent which may accrue during the pendency of the Rent Control Petition or the Rent Control Appeal. Insofar as the pre-litigation arrears of rent, the parties are governed by admitted arrears as engrafted under the first limb of Section 12 of the Act. Needless to say that admission is the domain of the party concerned, namely the tenant herein. What is admitted by the tenant alone is bound to consider under the first limb of Section 12 of the Act. When the tenant opted to deny the arrears of rent either on the ground that he/she has tendered rent in full to the landlord or any other ground of adjustment, it is not at all within the purview of the Rent Control Court or the Rent Control Appellate Authority to conduct a roving enquiry in the said question. The R.C.Revisions.141 & 215 of 2017 :6: jurisdiction is confined only to look into the admission made by the tenant, whether the tenant admits that any amount is due to the landlord by way of arrears. 6. It shall not be misunderstood with the jurisdiction of either the Rent Control Court or the Appellate Authority, as the case may be, to look into the admission either made by the document or by way of pleadings. A Three Judges' Bench of the Supreme Court in **Manik Lal Majumdar v. Gouranga Chandra Dey [(2005) 2 SCC 400]),** considered the expression “admitted” incorporated in the Tripura Buildings (Lease and Rent Control) Act, 1975, and held that: “The reasonable meaning of the words “admitted by the tenant to be due” is the inference of admission from the material on record- If material on record, prima facie discloses the admission of relationship of landlord and tenant and the rate of monthly rent payable, tenant would be required to pay or deposit arrears of rent and continue payment of current rent during pendency of the litigation, as enjoined under S.13.” R.C.Revisions.141 & 215 of 2017 :7: 7. If there is no such admission, either by documents or by pleading, the Rent Control Court or the Appellate Authority, as the case may be, cannot go for a roving enquiry or any enquiry to find out whether there is any arrears. If such an enquiry is conducted, it would bring the matter within the scope of an adjudication rendered under Section 11(2)(b) of the Act. As such, the view taken by the Rent Control Appellate Authority cannot be accepted as it is improper, irregular and against the law in force and hence the same is liable to be set aside. Since huge amount is alleged to have been due to the landlord, we are of the opinion that a direction for an early disposal of the Rent Control Petition is necessary in the matter and we do so by allowing this Revision, setting aside the judgment of the Appellate Authority and restoring the order passed by the Rent Control Court. 8. In the result, R.C.R. No.141/2017 is hereby allowed. The judgment of the Rent Control Appellate Authority in R.C.A. No.2/2016 is hereby set aside and the order of the R.C.Revisions.141 & 215 of 2017 :8: Rent Control Court in I.A.No.2111/2015 is hereby restored. R.C.R. No.215/2017 is hereby dismissed. The lower court is hereby directed to expedite the disposal of the Rent Control Petition within a time schedule of three months from today. No order as to costs. K.HARILAL, Judge. P.SOMARAJAN, Judge. okb.