K. K. Krishnaveni v. Shino Sonydeth and Sonydeh S.D.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **& THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 8[TH] DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943 OP (RC) NO. 34 OF 2021** **AGAINST THE ORDER DATED 15/01/2021 IN I.A.NO.2/20 IN RCA 5/2020 OF RENT CONTROL APPELLATE AUTHORITY, ALAPPUZHA** ## **PETITIONER:** **==> picture [65 x 124] intentionally omitted <==** **K.K.KRISHNAVENI, AGED 82 YEARS W/O. SADASA PANICKER, SADASA VILASAM, PERUMTHURUTHU MURI, ARYAD NORTH VILLAGE, AMBALAPPUZHA, ALAPPUZHA DISTRICT, PIN – 688 561 BY ADVS. B.PRAMOD SMT.NAMITHA JYOTHISH** ## **RESPONDENTS:** |**1**|**SHINO SONYDETH,AGED 42 YEARS, W/O.SONYDETH,**<br>**SANTHI NIVAS, CHARANGATTU, MARARIKKULAM NORTH,**<br>**PERUNNERMANGALAM MURI, MARARIKULAM NORTH**<br>**VILLAGE, ALAPPUZHA DISTRICT, PIN – 688 523**| |---|---| |**2**|**SONYDETH S.D, AGED 45 YEARS**<br>**S/O. DEVADETH, SANTHI NIVAS, VARANAM**<br>**CHARANGATTU, MARARIKKULAM NORTH,**<br>**PERUNNERMANGALAM MURI, MARARIKULAM NORTH**<br>**VILLAGE, ALAPPUZHA DISTRICT, PIN – 688 523.**| ||**BY ADV A.K.PREETHA**| **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- OP (RC) NO. 34 OF 2021 ## **JUDGMENT** ## K. Babu, J. This original petition filed under Article 227 of the Constitution of India, is against the order dated 15.01.2021 passed by the Rent Control Appellate Authority, Alappuzha in I.A.No.2 of 2020 in R.C.A.No.5 of 2020. The tenant in the Rent Control proceedings is the petitioner. 2. The respondents instituted Rent Control Petition No.29 of 2018 before the Rent Control Court, Alappuzha seeking eviction of the petitioner-tenant from the petition schedule shop room, under Sections 11(4)(ii) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The Rent Control Court, as per order dated 27.02.2020 allowed the petition and ordered eviction of the tenant under Sections 11(4)(ii) and 11(4)(v) of the Act. The petitioner-tenant challenged the said order of the Rent Control Court before the Rent Control Appellate Authority, Alappuzha. Before the Appellate Authority, the respondents filed I.A.No.2 of 2020 under Section 12 of the Act seeking an order directing the petitioner- -3- OP (RC) NO. 34 OF 2021 tenant to pay the admitted arrears of rent. The Rent Control Appellate Authority, after considering the rival contentions, allowed the application as per order dated 15.01.2021 and directed the petitioner-tenant to deposit before the Rent Control Court, or to pay to the landlord, the rent from January 2018 till December 2020, within four weeks from the date of that order. The Appellate Authority further directed that the petitioner-tenant shall continue to pay the monthly rent, which accrues after December, 2020, within three weeks from the date on which the rent becomes due. Being aggrieved by the said order, the petitioner has approached this Court invoking the jurisdiction of this Court under Article 227 of the Constitution of India. 3. Heard the learned counsel for the petitioner and also the learned counsel for the respondents. 4. The learned counsel for the petitioner mainly challenged the locus standi of the person who represented respondent No.2/landlady in I.A.No.2 of 2020 before the Rent Control Appellate Authority seeking arrears of rent. The learned counsel contended that Ext.P4 power of attorney -4- OP (RC) NO. 34 OF 2021 whereby respondent No.1 authorised the person who represented her in the proceedings was executed on 28.02.2015, whereas the landlady acquired right over the petition schedule shop room by way of gift deed dated 02.03.2017 and hence Ext.P4 authorisation executed anterior to the execution of the gift deed cannot be taken as valid. 5. The learned counsel for the respondents, per contra, contended that Ext.P4 authorises the power of attorney holder to deal with all matters in respect of all properties acquired by the 1[st] respondent at the time or that may be acquired after the execution of the said authorisation. The learned counsel, hence, submitted that the contention that the power of attorney holder has no locus standi to maintain an application seeking arrears of rent is not sustainable. 6. Exhibit P4 authorises the power of attorney holder to deal with all the assets and properties of the 1[st] respondent and to initiate litigations in respect of the same. 7. It is settled law that when construing a document, the purpose for which it was executed has to be considered -5- OP (RC) NO. 34 OF 2021 along with the terms of the document. What a power of attorney authorises depends on its terms and purpose for which it was executed {See: **Syed Abdul Khader v. Ramy Reddy and others [(1979) 2 SCC 601]** }. 8. In **Timblo Irmaos Ltd. Margo v. Jorge Anibal Matos Sequeira and another [(1977) 3 SCC 474]** the Apex Court declared the rules of interpretation of a power of attorney as extracted below: _“13. …. firstly, that, a word used in a document has to be interpreted as a part of or in the context of the whole; secondly, that, the purpose of the powers conferred by the power of attorney have to be ascertained having regard to the need which gave rise to the execution of the document, the practice of the parties, and the manner in which the parties themselves understood the purpose of the document; and thirdly, that, powers which are absolutely necessary and incidental to the execution of the ascertained objects of the general powers given must be necessarily implied.”_ 9. In the instant case, prosecution of the eviction proceedings is necessary and incidental to the execution of the objects of the general powers given by way of Exhibit P4 power of attorney. 10. Going by the definition of “landlord” contained in sub-section (3) of Section 2 of the Act, the landlord includes the person who is receiving or is entitled to receive the rent of -6- OP (RC) NO. 34 OF 2021 a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant. 11. Construing Ext.P4 in the backdrop of the principle declared by the Apex Court and in the light of the definition of the term “landlord” as provided in sub-section (3) of the Section 2 of the Act we find no merit in the contention of the petitioner that the person authorised by the landlady has no locus standi to institute the application under Section 12 of the Act. 12. Another contention raised by the learned counsel for the petitioner is that, as the petitioner-tenant had given a sum of Rs.3,00,000/- as security, the landlady is not entitled to recover the arrears of rent as claimed by her in the court below. The terminology “arrears of rent” contained in Section 12 of the Act has to be construed in strict conformity with the statutorily recognised rights and liabilities. The mandate of Section 12 of the Act is that the tenant is bound to deposit the -7- OP (RC) NO. 34 OF 2021 entire arrears of rent at the rate admitted by him from the date on which it becomes due. In **Kuruvila v. Sainabha Saleh [2006 (4) KLT 138]** this Court held that at the stage of Section 12 the tenant will not be entitled to make deductions or adjustments from the arrears of rent any amount which is not statutorily recognised or expressly agreed to be adjusted by the landlord. 13. The learned counsel for the petitioner-tenant has also contended that the respondents have no right to seek payment of arrears of rent as they have disrupted the electric connection to the building in question. We are of the view that the tenant cannot raise such a contention, while resisting a claim under Section 12 of the Act, as the tenant is having the statutory remedy as provided in Section 17(2) of the Act for redressing such grievances before the Accommodation Controller. 14. Section 12 of the Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per sub-section (1) of Section 12, no tenant against whom an application for eviction has been made by a landlord under -8- OP (RC) NO. 34 OF 2021 Section 11, shall be entitled to contest the application before the Rent Control Court under that Section, or to prefer an appeal under Section 18 against any order made by the Rent Control Court on the application, unless he has paid or pays to the landlord, or deposits with the Rent Control Court or the Appellate Authority, as the case may be, all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. As per sub-section (2) of Section 12, the deposit under sub-section (1) shall be made within such time as the court may fix and in such manner as may be prescribed and shall be accompanied by the fee prescribed for the service of notice referred to in sub-section (4). As per the proviso to sub-section (2), the time fixed by the court for the deposit of the arrears of rent shall not be less than four weeks from the date of the order and the time fixed for the deposit of rent which subsequently accrues due -9- OP (RC) NO. 34 OF 2021 ## shall not be less than two weeks from the date on which the rent becomes due. 15. As per sub-section (3) of Section 12 of the Act, if any tenant fails to pay or to deposit the rent as aforesaid, the Rent Control Court or the Appellate Authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. As per sub-section (4) of Section 12, when any deposit is made under sub-section (1), the Rent Control Court or the Appellate Authority, as the case may be, shall cause notice of the deposit to be served on the landlord in the prescribed manner, and the amount deposited may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him to the Rent Control Court or the Appellate Authority in that behalf. 16. In view of the statutory mandate of sub-section (1) of Section 12 of the Act, in an application filed by the landlord under Section 12 of the Act, the Rent Control Court or the appellate authority, as the case may be, has to order -10- OP (RC) NO. 34 OF 2021 payment of arrears of rent admitted by the tenant to be due in respect of the petition schedule building, up to the date of payment or deposit and the tenant shall also be ordered to continue to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. 17. There is no challenge to the rate of rent pleaded. Therefore, the direction contained in Ext.P7 order of the Rent Control Appellate Authority in I.A.No.2 of 2020 in R.C.A.No.5 of 2020 has to be construed as one directing the tenant to pay arrears of rent from 1/2018 up to 12/2020, either directly or through court. As per the mandate of sub-section (1) of Section 12, the tenant shall continue to pay or deposit any rent which may subsequently become due in respect of the building, until termination of the proceedings in R.C.A.No.5 of 2020. 18. Therefore, as per Section 12 of the Act, the petitioner-tenant is liable to clear the arrears of rent to prosecute an appeal before the Appellate Authority. The -11- OP (RC) NO. 34 OF 2021 learned Appellate Authority has rightly considered the contentions of the parties and recorded the finding that the tenant is liable to make deposit as directed in the order impugned. 19. We find no reason to interfere with the findings of the learned Appellate Authority, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. In the result, this original petition lacks merits and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **K. BABU, JUDGE** AV/8/9 -12- OP (RC) NO. 34 OF 2021 ## **APPENDIX** |**APPENDIX**|**APPENDIX**| |---|---| |**PETITIONER EXHIBITS**|| |**EXHIBIT P1**|**TRUE COPY OF THE ORDER DATED 27-02-**<br>**2020 PASSED BY RENT CONTROL COURT,**<br>**CHERTHALA IN RCP NO. 29/2018**| |**EXHIBIT P2**|**TRUE COPY OF THE MEMORANDUM OF R.C.A**<br>**NO. 5/2020 ON THE FILE OF THE RENT**<br>**CONTROL APPELLATE AUTHORITY**| |**EXHIBIT P3**|**TRUE COPY OF THE IA NO. 2/2020 IN**<br>**R.C.A NO.5/2020 ON THE FILE OF THE**<br>**RENT CONTROL APPELLATE AUTHORITY**| |**EXHIBIT P4**|**TRUE COPY OF THE AUTHORIZATION DATED**<br>**28-02-2015 EXECUTED BY THE 1ST**<br>**RESPONDENT**| |**EXHIBIT P5**|**TRUE COPY OF GIFT DEED DATED 02-03-**<br>**2017 EXECUTED BY THE 2ND RESPONDENT**| |**EXHIBIT P6**|**TRUE COPY OF THE OBJECTION FIELD BY**<br>**PETITIONER TO THE EXT P3 IA**| |**EXHIBIT P7**|**TRUE COPY OF ORDER DATED 15-01-2021**<br>**PASSED IN IA NO. 2/2020 IN R.C.A NO.**<br>**5/2020 ON THE FILE OF THE RENT CONTROL**<br>**APPELLATE AUTHORITY**|