Karthik Job v. Dale P. Kurian

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 29[TH] DAY OF AUGUST 2022 / 7TH BHADRA, 1944** **O.P.(RC) NO. 163 OF 2022** **AGAINST THE PROCEEDINGS IN R.C.P.NO.192 OF 2020 OF THE RENT CONTROL COURT (III ADDITIONAL MUNSIFF), ERNAKULAM** **PETITIONER:** **KARTHIK JOB, AGED 43 YEARS, S/O. P.N.JOB, RESIDING AT KALPANA VIHAR, NADAMA, THRIPUNITHURA, PIN – 682301.** **BY ADVS.** **C.S.AJITH PRAKASH T.K.DEVARAJAN BABU M. NIDHIN RAJ VETTIKKADAN HAARIS MOOSA ANCY THANKACHAN GOURI KAILASH** ## **RESPONDENT:** **DALE P KURIAN, S/O. LATE P.K.BABU, PULIYELI THARAVADU, MULANTHURUTHY, ERNAKUKAM, PIN-682 314, NOW RESIDING AT FLAT NO.406, B4 (4TH FLOOR) MARINA MAJESTIC APARTMENT, PLOT NO.3, MARINE DRIVE, ERNAKULAM, PIN – 682018.** **SRI BALAGOPALAN** **==> picture [8 x 9] intentionally omitted <==** O.P.(RC) No.163 of 2022 **THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 29.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(RC) No.163 of 2022 ## **JUDGMENT** ## Ajithkumar, J. The petitioner is the landlord. He filed R.C.P.No.192 of 2020 before the Rent Control Court (III Additional Munsiff), Ernakulam, seeking eviction of the respondent-tenant under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petitioner also filed I.A.No.1 of 2021 under Section 12 of the Act. The Rent Control Court instead of considering the I.A., directed the respondent to file a petition regarding maintainability. Aggrieved of the said direction, the petitioner has filed this Original Petition under Article 227 of the Constitution of India for a direction to the Rent Control Court to take up I.A.No.1 of 2021 and dispose of the same within a time frame fixed by this Court. 2. On 24.08.2022, notice was directed to be served on the respondent, through his counsel appearing before the Rent Control Court, Ernakulam, where R.C.P.No.192 of 2020 is pending. The respondent entered appearance through his learned counsel. 4 O.P.(RC) No.163 of 2022 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. Exts.P1 and P2 are copies of licence agreements entered into between the petitioner and the respondent. The petitioner would contend that contractual rent since July 2016 has been Rs.27,500/- per month and as the respondent defaulted payment of rent, the petitioner was constrained to file I.A.No.1 of 2021 under Section 12 of the Act. The grievance of the petitioner is that when I.A.No.1 of 2021, a copy of which is Ext.P4 has come up for hearing on 30.06.2022, the Rent Control Court, instead of passing orders on it, had directed the respondent to file a petition regarding maintainability of the R.C.P. It is his contention that more than Rs.7,70,000/- is due as arrears of rent and when the respondent did not make any tenable contention in Ext.P5, the objection filed by him in the R.C.P. regarding rent due from him, it was improper for postponing consideration of Ext.P4. 5 O.P.(RC) No.163 of 2022 5. The learned counsel appearing for the respondent would submit that in Ext.P5 the respondent has taken up a specific contention that the Rent Control Court has no jurisdiction to entertain the matter since the transaction is one of licence and it was only just and appropriate for the Rent Control Court to consider that question first. The learned counsel submitted that he, however, has no objection in directing the Rent Control Court to consider Ext.P4 petition and the respondent’s contention regarding maintainability of the R.C.P. together. 6. In **Abdul Razak P.M. v. K.C.Thomas and others [2022 (4) KHC 260]** this Court issued a direction insisting on timely disposal of petitions filed under Section 12 of the Act. It was held, “32. As already noticed hereinbefore, the object of the provisions of Section 12(1) of the Act is to deny the defaulting tenant the right to contest the application for eviction before the Rent Control Court, or to prefer an appeal under Section 18 of the Act against any order made by the Rent Control Court on an application made by a landlord under Section 11. In 6 O.P.(RC) No.163 of 2022 an appeal filed under Section 18(1)(b) of the Act, against the order passed by the Rent Control Court under Section 12(3) of the Act, the legality of the said order alone is under challenge, unlike other appeals in which the order of eviction granted under Section 11 of the Act is under challenge, which requires reappreciation of evidence on record. xxxx 35. Considering the object of the provisions of Section 12 of the Act, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India, we direct all Rent Control Appellate Authorities in the State to ensure time bound disposal of the appeals filed under Section 18(1)(b) of the Act, against an order passed by the Rent Control Court under Section 12(3) of the Act. Similarly, we direct all Rent Control Courts / Appellate Authorities in the State to ensure time bound disposal of the applications filed under Section 12 of the Act, in pending Rent Control Petitions / Rent Control Appeals.” 7. In the light of the law laid down in the aforesaid decision, it is incumbent upon the Rent Control Court to dispose of Ext.P4 petition without delay. Of course, since the respondent raised a contention regarding maintainability of the R.C.P., the question, whether or not there is an admission 7 O.P.(RC) No.163 of 2022 by the respondent regarding arrears of rent has to be decided after necessary enquiry. ## 8. This Court in **Koyakkanari Sivadasan v.** ## **K.K.Nirmala [2022 (3) KHC 375]** , held “in order to ascertain the 'arrears admitted by the tenant to be due' the court can have an enquiry in a limited sense. The enquiry allowed is scrutiny of the petitions under Sections 11 and 12 of the Act, the objections thereto and the other materials brought on record by either parties for purpose only of ascertaining admission regarding landlord-tenant relationship, the rate of monthly rent and the quantum of arrears of rent payable. If the materials on record disclose or infer such admission, the Court shall direct the tenant to pay or deposit the arrears of rent due as on the date of application under Section 12 of the Act and continue to pay subsequent rent which falls due during the pendency of the litigation”. 9. Since there is a contention in Ext.P5 objection regarding maintainability of the Rent Control Petition, the Rent Control Court shall decide that question first and depending upon the finding thereon the Rent Control Court shall proceed to consider Ext.P4 petition, which is one under Section 12 of the Act. 8 O.P.(RC) No.163 of 2022 10. Taking into account the facts and circumstances of the case and the submission of the counsel of both sides, we are of the view that there shall be a direction to the Rent Control Court to dispose of I.A.No.1 of 2021, Ext. P4 within a period of two months from the date of production of a certified copy of this judgment. The Original Petition is disposed of accordingly. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** dkr 9 O.P.(RC) No.163 of 2022 ## **APPENDIX OF OP (RC) 163/2022** ## **PETITIONER EXHIBITS** - **Exhibit P1 TRUE COPY OF LEAVE AND LICENSE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENT DATED 21.11.2011** - **Exhibit P2 TRUE COPY OF LEAVE AND LICENSE AGREEMENT BETWEEN THE PETITIONER AND THE RESPONDENT DATED 21.06.2016** - **Exhibit P3 THE COPY OF RENT CONTROL PETITION NO.192/2020 FILED BY THE PETITIONER FOR EVICTION OF THE RESPONDENT/TENANT UNDER SECTION 11(2) (B) AND 11(3) OF THE KERALA BUILDINGS (LEASE AND RENT CONTROL) ACT, 1965 BEFORE THE RENT CONTROL COURT, ERNAKULAM** - **Exhibit P4 COPY OF I.A.1/21 IN RENT CONTROL PETITION NO.192/2020 FILED BY THE PETITIONER FOR EVICTION OF THE RESPONDENT/TENANT UNDER SECTION 12 (1) OF THE KERALA BUILDINGS (LEASE AND RENT CONTROL) ACT, 1965 BEFORE THE RENT CONTROL COURT** - **Exhibit P5 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO I.A 01/2021** - **Exhibit P6 A TRUE COPY OF THE B DIARY PROCEEDINGS OF THE HON'BLE 3RD ADDITIONAL MUNSIFF COURT AND RENT CONTROL COURT IN RCP 192/2020 CONTAINING THE PROCEEDINGS DATED 25.06.2022 AND 30.06.2022** - **Exhibit P7 A TRUE COPY OF THE LOAN ACCOUNT STATEMENT FOR THE PERIOD FROM 01.04.2018 TO 31.03.2020 OF LOAN ACCOUNT NO: 634097846 OF HDFC BANK DATED 28/09/2021** 10 O.P.(RC) No.163 of 2022 **Exhibit P8** **A TRUE COPY OF THE LOAN ACCOUNT STATEMENT FOR THE PERIOD FROM 01.04.2018 TO 01.10.2021, DATED 01.10.2021 ISSUED BY THE HDFC BANK WITH LOAN ACCOUNT NO. 634097891 TO THE PETITIONER** - **Exhibit P9 A TRUE COPY OF THE LEDGER ACCOUNT MAINTAINED BY THE PETITIONER WITH RESPECT TO THE BUILDING IN QUESTION FOR THE PERIOD FROM 01.01.2020 TO 31.03.2021** - **Exhibit P10 TRUE COPY OF THE RELEVANT PAGES OF THE MEMBERS DIRECTORY OF KERALA HIGH COURT BAR ASSOCIATION FOR THE YEAR OF 2016** - **Exhibit P11 TRUE COPY OF THE RELEVANT PAGES OF THE MEMBERS DIRECTORY OF KERALA HIGH COURT BAR ASSOCIATION FOR THE YEAR OF 2018**