**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN**
**THURSDAY, THE 19TH DAY OF OCTOBER 2017/27TH ASWINA, 1939**
**OP (RC).No. 129 of 2017 (O)**
**----------------------------**
**AGAINST THE ORDER IN RCRP 1/2014 of PRINCIPAL DISTRICT COURT, KOTTAYAM DATED 08-08-2017**
**PETITIONER:**
- **-------------**
**K.C. BABU AGED 67, SON OF CHAKRAPANI, KOLLAMPARAMBIL HOUSE, CHAMPAKULAM VILLAGE, KUTTANADU TALUK**
## **BY ADV. SRI.RAJEEV V.KURUP**
**RESPONDENTS:**
**--------------**
## **1. SOPHIYAMMA CHERIAN**
- **AGED 70, WIFE OF C.C CHERIAN, CHIRAMUKHATHU HOUSE, PERUNNA P.O, CHANGANACHERRY NOW RESIDING AT CHIRAMUKHATHU HOUSE, NEAR SREECHITHRA QUARTERS ROAD, KUMARAPURAM, THIRUVANANTHAPURAM 695 011**
## **2. RONNEY CHERIAN**
- **AGED 48,S/O. C.C. CHERIAN,CHIRAMUKHATHU HOUSE, PERUNNA P.O, CHANGANACHERRY NOW RESIDING AT CHIRAMUKHATHU HOUSE, NEAR SREECHITHRA QUARTERS ROAD, KUMARAPURAM,THIRUVANANTHAPURAM REPRESENTED BY HIS POWER OF ATTORNEY THESIS RONNEY AGED 46 YEARS, PRESENTLY AT CHIRAMUKHATHU HOUSE, T.C NO 14/256-3 SCT QUARTER'S LANE, POONTHI ROAD, KUMARAPURAM, MEDICAL COLLEGE POST, THIRUVANANTHAPURAM 695 011**
## **3. REKHA**
- **AGED 45,D/O. C.C CHERIAN,CHIRAMUKHATHU HOUSE, PERUNNA P.O, CHANGANACHERRY NOW RESIDING AT CHIRAMUKHATHU HOUSE, NEAR SREECHITHRA QUARTERS ROAD, KUMARAPURAM, THIRUVANANTHAPURAM 695 011**
## **4. ROOPA**
- **AGED 40, D/O. C.C CHERIAN, CHIRAMUKHATHU HOUSE, PERUNNA P.O, CHANGANACHERRY NOW RESIDING AT CHIRAMUKHATHU HOUSE, NEAR SREECHITHRA QUARTERS ROAD, KUMARAPURAM, THIRUVANANTHAPURAM 695 011**
**R1-4 BY ADV. SRI.B.PREMNATH (E)**
**THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 19-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**OP (RC).No. 129 of 2017 (O) ----------------------------**
## **APPENDIX**
## **PETITIONER(S)' EXHIBITS**
**----------------------EXHIBIT P1 COPY OF THE IA 265/2011 IN RCP 11/2009 OF THE RENT CONTROL CHANGANACHERRY**
**EXHIBIT P2 COPY ORDER DATED 22-2-2011 IN IA 265/2011 IN RCP 11/2009 OF THE RENT CONTROL CHANGANACHERRY**
**EXHIBIT P3 COPY OF THE ORDER DATED 23-07-2014 IN EP 65/2013 IN RCP NO 11/2009 OF THE RENT CONTROLLER COURT, CHANGANACHERRY**
**EXHIBIT P4 COPY OF THE ORDER DATED 8-8-2017 IN RC(RP) 1/2014 OF THE PRL. DISTRICT JUDGE, KOTTAYAM**
## **RESPONDENT(S)' EXHIBITS: NIL**
**-----------------------**
## **//TRUE COPY//**
## **PA TO JUDGE**
**sab**
**K. HARILAL, & ANU SIVARAMAN, JJ. -------------------------------------------------O.P.(RC) NO.129 OF 2017 --------------------------------------Dated this the 19[th] day of October, 2017 J U D G M E N T**
## **ANU SIVARAMAN.J.**
This original petition is preferred against Ext.P3 order passed by the Court of the Rent Controller in E.P No.65/2013 in R.C.P No.11/2009 as well as Ext.P4 order in RC(RP) No.1/2014 of the Court of the Principal District Judge, Kottayam dated 8.8.2017. The petitioner herein was the respondent in R.C.P No.11/2009 before the Court of the Rent Controller, Changanacherry filed for eviction under Section 11(8) and Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, 'the Act'). It is submitted that the Rent Control Court had found that the landlord was not entitled to an order of eviction under Section 11(8). However, eviction was ordered on the ground of arrears of rent under Section 11(2). It is submitted that the order of the Rent Controller was dated 30.10.2010. Thereafter, the petitioner in the original
O.P.(RC) NO.129 OF 2017 2
petition filed I.A No.1721 of 2010 to deposit the arrears of rent on 28.11.2010. It is stated that an amount of Rs.62,060/with interest had been deposited as arrears of rent from April 2007 to August 2009 and the balance of the arrears of Rs.23,580/- covering the rent till August 2010 was also paid.
It is submitted that an aggregate amount of Rs.90,300/- was therefore paid on 2.12.2010 as per order dated 28.11.2010 in I.A No.1721 of 2010. It is stated that the amount so deposited
was received on 1.4.2011 by the landlord from the Rent Control Court. It is submitted by learned counsel for the petitioner that I.A No.265 of 2011 for passing a formal order under Section 11(2)(c) of the Kerala Buildings (Lease and Rent Control) Act, 1965 was preferred on 29.1.2009. Ext.P1 is the copy of the I.A. Since the landlord had filed an appeal against the order refusing eviction under Section 11(8), the Rent Controller had dismissed Ext.P1 I.A by Ext.P2 order dated 22.2.2011. It was stated in Ext.P2 that the petition was opposed by the counter petitioner/landlord and since records of the case had been sent to the Appellate Court, the Rent Control Court is unable to consider the petition. This order has become final.
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2. Thereafter, the landlord filed E.P No.65/2013 before the Execution Court. The tenant filed E.A contending that the arrears had already been deposited and that the E.P is not maintainable. By Ext.P3 order, the Execution Court dismissed the E.A No.59/2014 filed on the ground that there was no order vacating the order in RCP within the time period. Though the E.P had been filed by the landlord seeking arrears of rent for later periods as well, the Execution Court had only directed the handing over of vacant possession of the property to decree holder. The case was posted for report on 30.7.2014. The petitioner took up the matter by filing RC(RP) No.1/2014 before the Court of the Principal District Judge, Kottayam. Relying on the arguments raised and the decisions of this Court, the District Court held that though an amount of Rs.90,300/- was remitted by the petitioner, a statement was filed by the counter petitioner/landlord on 19.7.2014 stating that an amount of Rs.7,242/- is still due towards arrears of rent. It is stated that the petitioner had, pursuant to an order dated 23.7.2014, sought time for removing his belongings from the petition schedule building. The District Court held that since Section 14 of the Act only enables the Munsiff's
O.P.(RC) NO.129 OF 2017 4
Court to execute the order of eviction, and since it is not in dispute that the formal order vacating the order under Section 11(2)(b) had not been passed by the Rent Control Court under Section 11(2)(c) of the Act, the Execution Court had no option but to reject the claim raised by the petitioner and to order delivery of the property.
3. We have heard the learned counsel appearing for the petitioner and the learned counsel for the respondents.
4. It is submitted by learned counsel for the petitioner that the order dated 30.10.2010 did not specify the amount of arrears of rent to be paid by the petitioner. In the above circumstances, it is submitted that the petitioner had calculated the arrears as discernible from the notice and the petition filed before the Rent Controller by the landlord and had made deposit of the amounts within time. It is stated that this was on the basis of an order dated 28.11.2010 on I.A No.1721/2010. In the above circumstances, it is contended that in view of the fact that the amount had been deposited in time, the Rent Control Court ought to have vacated the order under Section 11(2)(b) in terms of Section 11(2)(c). It is submitted that the non issuance of such an order cannot be a
O.P.(RC) NO.129 OF 2017
5
ground for rejecting the claim raised by the petitioner, since the factum of deposit of arrears of rent was not disputed by the landlord and the landlord had also withdrawn the amounts so deposited.
5. Learned counsel appearing for the respondent, on the other hand, contends that the Execution Court, on being confronted with the position that there is no order under Section 11(2)(c) vacating the order passed under Section 11(2)(b), had no option but to order delivery of the property. Relying on a decision of a Division Bench of this Court in Ramachandran Nair v. Lebba Kunju (2009 (2) KLT 393), it is contended that an order under Section 11(2)(c) is required to be passed by the Rent Control Court. It is contended that before the Execution Court, a specific case had been raised by the landlord that the arrears of rent had not been deposited in full and more amounts were due in terms of the order of eviction dated 30.10.2010. In the above view of the matter, in the absence of an order under Section 11(2)(c), the orders now passed by the Execution Court as well as the revisional court are perfectly in order.
5. We have considered the contentions advanced. It is
O.P.(RC) NO.129 OF 2017 6
submitted by learned counsel for the petitioner that Ext.P3 order passed by the Court of the Rent Controller in its capacity as the Rent Control Court is incompetent and that this aspect having been brought to the notice of the Revisional Court, had not been considered in its proper prospective. Since the petitioner does not dispute that the Rent Control Court, Changanacherry was also the Execution Court in respect of the order dated 30.10.2010, we are not inclined to interfere with Exts.P3 and P4 orders on that account. Further, since it is not in dispute before us that Ext.P2 order had become final and had not been taken up in appeal or revision, we are of the opinion that there is no formal order under Section 11(2)(c), vacating the order under Section 11(2) (b) on the deposit of the arrears of rent with interest and costs of proceedings as provided under the said sub section. A reading of the provisions of Section 11(2)(b) and 11(2)(c) of the Act will make it clear that where an order of eviction is passed under Section 11(2)(b), the mere exercise of remitting of the arrear as calculated by the tenant will not suffice and the tenant will have to obtain an order under Section 11(1)(c) vacating the order of eviction.
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6. In view of the fact that, there was no such order vacating the order of eviction, we are of the opinion that the stand taken by the Execution Court in Ext.P3, as confirmed in revision cannot be found fault with. We find no reason to interfere with Exts.P3 and P4 orders.
The original petition fails and is accordingly dismissed.
sd/-
**K. HARILAL, JUDGE**
sd/- **ANU SIVARAMAN, JUDGE**
sab
