James Punnapuzha v. Sabitha Rahim and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 RCRev..No. 149 of 2011() -----------------------RCA.31/2008 OF RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM RCP.177/2006 OF RENT CONTROL COURT, ERNAKULAM .................... ## REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------------ JAMES PUNNAPUZHA, S/O.P.C.CHACKO, ROYAL TOUCH, 2ND FLOOR, VETTATHU BUILDING, DURBAR HALL ROAD, ERNAKULAM. BY ADV. SRI.S.SHYAM SRI.BOBBYMATHEW KOOTHATTUKULAM RESPONDENT(S)/RESPONDENTS/PETITIONERS --------------- 1. SABITHA RAHIM, W/O. H.A.RAHIM, BABU MANZIL, ALAPUZHA. 2. SAJITH JALEEL, W/O. E.A.JALEEL, VELIYAVEETIL, SRM ROAD, ERNAKULAM DISTRICT. 3. SANOOJA NOUSHAD, W/O. NOUSHAD ALI, ALKA MOTHER NAGAR, POST COCHIN UNIVERSITY, ERNAKULAM, KOCHI. 4. SAHITHA SAIJU, W/O. SAIJU MUHAMMED, NORTH AVENUE APARTMENTS LISSIE JUNCTION,KOCHI. ADV. SRI.R.SUDHISH FOR R1 TO 4 SMT.M.MANJU FOR R1 TO 4 SRI.K.R.RANJITH FOR R1 TO 4 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 02/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ.** ----------------------------------------------- RCR. No. 149 of 2011 ----------------------------------------------Dated this the 2nd day of June, 2011 ## **O R D E R** ## **Pius C.Kuriakose, J.** A question of some importance arises in this revision filed by the tenant challenging the judgment of the Rent Control Appellate Authority confirming a summary order of eviction passed under Section 12(3) of Act 2 of 1965 by the Rent Control Court. 2. We are adverting to the facts only to the extent necessary for deciding this revision. The revision petitioner tenant was sought to be evicted on the grounds of arrears of rent and the ground of bona fide need for own occupation (Section 11(2) and Section 11(3). As it was noticed that the tenant had not paid the arrears of rent which had fallen due subsequent to the filing of the RCP and the rate of rent which was beyond dispute, the landlord filed IA No. 8594 of 2007 under Section 12 seeking a direction for deposit of the RCR.149/11 -2- admitted arrears and for consequential orders including summary order of eviction under Section 12(3). To that IA, the revision petitioner tenant filed counter contending that the contract rent is not Rs.2292/- per mensem as alleged by the landlord and that the same is only Rs.1311/- per mensem. It was also contended that a substantial amount had been deposited by the tenant with the landlord at the time of the entrustment and the tenant is entitled to adjust the rent in arrears against those amounts under deposit. The Rent Control Court on 5-11-2007 after hearing both sides noticed that some rent was admittedly in arrears and that the rent at the admitted rate which fell due subsequent to the filing of the RCR had not been paid. Accordingly, the court passed an order on 5-11-2007 directing the tenant to pay the admitted arrears by 11-2-2007. The above order was obviously passed by the Rent Control Court under Section 12(1). The tenant did not pay any amount towards RCR.149/11 -3- arrears of rent or towards the rent which fell due subsequent to the filing of the RCP by 11-12-2007. The case was accordingly adjourned to 12-12-2007 affording opportunity to the tenant to show cause against the passage of a summary order of eviction. On 12-12-2007 the tenant filed an affidavit purporting to show cause against the proposed summary order of eviction. In paragraph (2) of that affidavit this is what the tenant has stated: “As I have already stated in my counter affidavit in the above I.A. there was no willful default or negligence on my part in not paying rent to the petitioners after the year 2000 and I am entitled to get reimbursement of the substantial amount from their predecessors, which the petitioners are bound to give.” Paragraph (3) is perhaps the more important paragraph of that affidavit and the same is extracted below. “This Hon'ble Court had by order dated 5-11-2007 directed me to pay the arrears of rent within one month. But I have been in acute financial difficulties for the last few months and so I could not raise the amount necessary to discharge the arrears or even a substantial portion thereof. The failure on my part in complying with the direction to pay the arrears of rent RCR.149/11 -4- was only on account of my helplessness and there was no willful default or negligence in that regard. I require at least two months time more for raising the required amount.” 3. The Rent Control Court did not accept the cause shown by the tenant and passed a summary order of eviction under Section 12(3). According to the Rent Control Court, financial difficulty of the tenant in paying the rent cannot be sufficient cause within the contemplation of Section 12(3). The tenant preferred an appeal to the Rent Control Appellate Authority. 4. In fact, the landlord filed a fresh petition under Section 12 before the Appellate Authority seeking direction to the tenant to pay the rent in arrears. In spite of that petition, the tenant did not feel like paying the rent admittedly in arrears. The Appellate Authority dismissed the appeal confirming the order of the Rent Control Court. 5. In this revision under Section 20 various grounds are raised assailing the judgment of the Appellate Authority. RCR.149/11 -5- When stay of execution was sought for, stay was granted only subject to the condition that the entire arrears of rent which we quantified at Rs.1,70,430/- should be paid by the tenant either directly to the landlord or through the landlord's Advocate in the court below or should be deposited before the court below on or before 25-5-2011. It is not disputed that in compliance with the above condition the above sum of Rs.1,70,430/- was deposited by the tenant on time. 6. We have heard Sri. Bobby Mathew, learned counsel for the revision petitioner and Sri.R.Sudheesh, learned counsel for the respondent extensively. It was submitted by Sri.Bobby Mathew that the view concurrently taken by the Rent Control Court and the Appellate Authority that financial difficulty of the tenant cannot be a sufficient cause at all for avoiding a summary order of eviction under Section 12(3) is erroneous. The learned counsel would place reliance on the RCR.149/11 -6- judgment of the Supreme Court in Sankara Pillai v. V.P.Venguduswami and others, JT 1999 (5) SC 385 to argue that the expression “sufficient cause” has to be liberally construed for doing substantial justice between the parties. If the non-deposit of rent is due to a reason which beyond the control of the tenant such reason has to be treated as a sufficient reason. So argued Mr. Bobby Mathew. Sri. Sutheesh per contra would oppose all the submissions of Mr. Bobby Mathew. According to Mr. Sutheesh, the ratio of the judgment in Sankara Pillai's case cannot come to the rescue of the tenant in this case as there was gross negligence and lack of bonafides on the part of the tenant in not depositing the rent within the time granted by the Rent Control Court. If there was any bonafides, the tenant could have offered the rent atleast when the landlord alerted him. 7. We have very anxiously considered the submissions RCR.149/11 -7- addressed at the Bar. We have appreciated the ratio emerging from the decisions cited. The legal question which arises is whether financial difficulty of a tenant can be a sufficient cause for averting a summary order of eviction under sub-section (3) of Section 12. The answer to the question depends on whether the above financial difficulty has arisen on account of any event which was not in contemplation of the tenant at the time when the RCP was filed and rent was demanded, such as, hospitalisation of a family member demanding immediate diversion of funds for saving the life of the above family member, the compulsion to utilise the funds for any other immediate pressing necessity, which having regard to normal ways of human conduct, will be deemed to be more important than saving the building. Our view therefore is that in extreme situations like the ones indicated, even financial constraints can be accepted by the Rent Control Court and the Appellate RCR.149/11 -8- Authority on considerations of equity, justice and good conscience, as sufficient cause offered by a defaulting tenant for avoiding summary order of eviction under subsection (3) of Section 12. 8. We must say that the affidavit filed by the petitioner offering cause for avoidance of summary order under Section 12(3) does not give details of the “acute financial difficulties for the last few months” which disabled the tenant to raise the funds necessary and also as to the “helplessness” of the tenant. Nevertheless, we feel that this is a case where indulgence can be shown towards the revision petitioner, as he did comply with the condition imposed by this court for granting interim stay of execution proceedings. The condition imposed by us was that a sum of Rs.1,70,430/- should be paid on or before 25-5-2011. Thus in compliance with the above condition he has discharged the entire arrears of rent due as on 7-4-2011 RCR.149/11 -9- completely. We also notice that the merits of the substantial ground under sub-section (3) of Section 11 invoked by the landlord remains unadjudicated till date. These two circumstances persuade us to grant relief to the petitioner. However, we are inclined to grant such relief only on harsh conditions. 9. The result of the above discussion is therefore as follows: The order of the Rent Control Court and the judgment of the Appellate Authority under challenge will stand set aside and the rent control petition will stand posted for trial by the Rent Control Court subject to the following conditions: The petitioner shall pay a sum of Rs.10,000/- as cost to the respondent or to the respondent's counsel in this court within one month from today and produce receipt. The respondent will be entitled to withdraw all the amounts RCR.149/11 **==> picture [21 x 9] intentionally omitted <==** presently under deposit towards arrears of rent. The Rent Control Court on noticing the receipt against payment of the cost ordered by us will post the RCP for trial and ensure that the rent control petition is disposed of at the earliest and at any rate, within three months of receiving copy of this order. ## **(PIUS C.KURIAKOSE, JUDGE)** **(N.K. BALAKRISHNAN, JUDGE)** ksv/-