K.M. Abdul Samad v. Muhammed Rafi Saithalavi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 10[TH] DAY OF AUGUST 2022 / 19TH SRAVANA, 1944 R.C.REV.NO. 119 OF 2022** **AGAINST THE JUDGMENT DATED 26.03.2022 IN R.C.A.NO.166 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-IV), KOZHIKODE AND THE ORDER DATED 13.08.2019 IN I.A.NO.2081 OF 2019 IN R.C.P.NO.186 OF 2018 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF-I), KOZHIKODE REVISION PETITIONER:** **K.M. ABDUL SAMAD AGED 64 YEARS, S/O. M. ALI KOYA, ROOM NO 8/16,R.C.ROAD, NEAR TAGORE CENTENARY HALL NAGARAM AMSOM & DESOM, KOZHIKODE, PIN – 673032.** **BY ADVS. K.M.FIROZ M.SHAJNA** ## **RESPONDENT:** **MUHAMMED RAFI SAITHALAVI, AGED 52 YEARS, S/O. SAITHALAVI, THOTTUNGAL VALAPPIL, GRAND HOUSE, FRANCIS ROAD, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK, PIN – 673001.** **BY ADV G.SREEKUMAR (CHELUR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 29.07.2022, THE COURT ON 10.08.2022 DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.119 of 2022 ## **O R D E R** ## Ajithkumar, J. The revision petitioner is the tenant. He was the respondent in R.C.P.No.186 of 2018 on the file of the Rent Control Court (Principal Munsiff-I), Kozhikode. The respondent-landlord filed that R.C.P. seeking eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The respondent filed I.A.No.2081 of 2019 in the R.C.P. under Section 12 of the Act. That petition was allowed on 26.11.2019 and on stopping further proceedings in the R.C.P., the petitioner was directed to put the respondent in vacant possession of the petition schedule building as provided under Section 12(3) of the Act. An appeal as R.C.A.No.166 of 2019 was filed by the petitioner before the Appellate Authority (Additional District Judge-IV), Kozhikode under Section 18(1)(b) of the Act. The appeal was dismissed. Hence, the petitioner came in revision under Section 20 of the Act. 3 R.C.Rev.No.119 of 2022 2. When this matter came up for admission on 12.07.2022, notice was ordered to be served on the respondent. Interim order of stay against the execution of the order of eviction was granted initially for a period of one week. The order was later extended by three more weeks. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. I.A.No.2081 of 2019 was filed by the respondent contending that rent at the rate of Rs.1,325/- since 01.06.2013 has been in arrears. The petitioner did not dispute the rate of rent. He, however, contended that the entire rent has been paid. His case was that along with the reply sent to the respondent's counsel, a cheque for the entire arrears of rent was forwarded and the same was encashed by the respondent. Further contention was that the rent for the subsequent period was paid directly, but no receipt was issued by the respondent. Thus, the petitioner took the stand that there was no rent in arrears. 4 R.C.Rev.No.119 of 2022 5. After hearing both sides, the Rent Control Court as per order dated 13.08.2019 directed the petitioner under Section 12(1) of the Act to pay admitted arrears of rent. The matter was posted on 23.09.2019 for making payment. Since no payment was made and the petitioner sought time, the matter was adjourned to 24.10.2019. Observing that no payment as per the direction in the order dated 13.08.2019 was effected, the matter was adjourned to 26.11.2019, thereby affording an opportunity to the petitioner to show cause why proceedings should not be stopped. On the said day, the Rent Control Court passed the following order:- “Respondent was directed to pay admitted arrears of rent as per order dated 13.08.2019 in IA 2081/2019. Sufficient time as contemplated under law was granted and respondent failed to comply with the order. As per order dated 24.10.2019, the respondent was directed to show cause on the contrary why all further proceedings shall not be stopped and eviction be ordered. Respondent has not submitted any explanation in response to the same. In the result, all further proceedings in the matter are stopped invoking provisions under Section 12(3) of the 5 ## R.C.Rev.No.119 of 2022 Kerala Buildings (Lease and Rent Control) Act. Respondent is directed to put the petitioner in possession of the building.” 6. In the appeal, the petitioner took up the contention that the order dated 13.08.2019 is incorrect insofar as there has not been any quantification of rent in arrears. Since the direction was only to pay admitted arrears of rent, without stating the quantum, it was not possible for the petitioner to make payment and therefore the petitioner could not have been found at fault for non-payment. The Appellate Authority took the stand that even if the amount was not quantified in the order dated 13.08.2019, the petitioner did not dispute the fact that the rent from January 2019 remained unpaid. It is post litigation period. Holding that the petitioner failed to make payment of rent since January 2019, the Appellate Authority justified the order passed by the Rent Control Court on 13.08.2019 under Section 12(3) of the Act. 7. The learned counsel appearing for the petitioner would contend that when the Appellate Authority found that the rent admitted to be in arrears was from January 2019 in 6 R.C.Rev.No.119 of 2022 modification of the order of the Rent Control Court dated 13.08.2019, the Appellate Authority ought to have given an opportunity to the petitioner to make payment of the rent found to be in arrears. It is contended that in that view of the matter, the judgment dated 26.03.2022 confirming the order under Section 12(3) of the Act, is unsustainable in law. 8. It is a fact that the order dated 13.08.2019 did not quantify the amount, which was in arrears. What was ordered is only to make payment of the admitted arrears of rent within four weeks. Going by the findings of the Appellate Authority the rent in arrears is from January 2019 onwards. Before passing the order under Section 12(3) of the Act, it is obvious that the petitioner did not get a definite direction as to what shall be the amount due to be paid. Since the rival contentions regarding the arrears of rent were not convergent and a definite finding was not rendered by the Rent Control Court, it cannot be said that the order dated 13.08.2019 is in terms of Section 12(1) of the Act. 7 R.C.Rev.No.119 of 2022 9. The petitioner also claimed that he made payment of the rent for the subsequent period as well. The claim was that he made payments directly to the respondent. But that claim is unsupported by any evidence. 10. In **Nandanam Tiles and Sanitaries (P) Ltd. v. Abdul Gafoor (2022 (4) KHC 201]** , a Division Bench of this Coiurt, after referring to the decisions in **Bhaskaran Assan v. Ammukutty Amma [1992 (2) KLT 565]** and **Sukumaran v. Hamsa Haji [2014 (3) KLHC 667]** has held that Section 9 of the Act provides that a tenant is entitled to demand and obtain a receipt for the payment of rent made by him to the landlord. It also provides that in a case where the landlord refuses to issue a receipt, it is open to the tenant to send the rent by way of money order after deducting the money order commission or issue a notice to the landlord requiring the landlord to specify a bank into which the tenant could remit the rent due. This statutory provision is a protection to the tenant and it is for the tenant to make use of such protection in a case where the landlord refuses to issue 8 R.C.Rev.No.119 of 2022 receipt to the tenant. Any prudent tenant would and should resort to Section 9 of the Act in cases where the landlord refuses to issue receipt to him on his paying the rent due. If he is not prudent enough to resort to that course it will require very strong evidence on his side to substantiate a plea that he has paid the rent without obtaining receipts for the same. 11. In view of the said principle of law, the contention of the petitioner that he had paid rent during the period after January 2019 cannot be countenanced. However, inasmuch as the order directing payment of the rent admitted to be in arrears was not definite, there is non-compliance with Section 12(1) of the Act, and therefore, the order dated 13.08.2019 under Section 12(1) and the order dated 26.11.2019 under Section 12(3) of the Act could not stand scrutiny of law. 12. In the said circumstances, the said orders are liable to be set aside. Accordingly, we allow this revision petition. Judgment dated 26.3.2022 in R.C.A No.166 of 2019 of the Appellate Authority (Additional District Judge-IV), Kozhikode 9 R.C.Rev.No.119 of 2022 and orders dated 13.8.2019 and 26.11.2019 in I.A.No.2081 of 2019 in R.C.P.No.186 of 2018 passed by the Rent Control Court, Kozhikode are set aside. The Rent Control Court is directed to consider I.A.No.2081 of 2019 afresh, in accordance with law. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr