K.M. Devassy v. Augustine

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 RCREV. NO. 186 OF 2020 ``` ``` THE JUDGMENT IN RCA 72/2014 ON THE FILE OF THE III RENT CONTROL APPELLATE AUTHORITY, THRISSUR, DATED 24[TH] AUGUST, 2020, AGAINST THE ORDER IN RCP 13/2012 ON THE FILE OF RENT CONTROLLER, THRISSUR, DATED 17-01-2014 ``` ## **`REVISION PETITIONER/RESPONDENT/RESPONDENT:`** ``` K.M.DEVASSY, AGED 60 YEARS, S/O KALAPPURAKKAL MATHEW, KOLAZHYPANCHAYATH VIII/267(A), SELECTION FOOTWEAR, KOLAZHY, THRISSUR-680010. ``` ``` BY ADV V.C.MADHAVANKUTTY ``` ``` RESPONDENT/APPELLANT/PETITIONER: ``` ``` AUGUSTINE, AGED 74 YEARS, S/O CHEERAN LATE RAPPAI, THIRURDESOM, KOLAZHI VILLAGE, THRISSUR, TALUK-680581. ``` ``` BY ADVS. SRI.M.P.ASHOK KUMAR ``` ``` SMT.BINDU SREEDHAR SHRI.ASIF N ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.C.R.No.186 of 2020 ## **O R D E R** ## G. Girish, J. The revision petitioner is the tenant/respondent in R.C.P.No.23 of 2012 of the Rent Control Court, Thrissur who successfully resisted the petition filed by the petitioner/landlord for eviction under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short ‘the Act’) before the said court. However, Rent Control Appellate Authority, Thrissur reversed the order of the Rent Control Court in R.C.A.No.72 of 2014 and directed the revision petitioner to hand over vacant possession of the petition schedule building to the landlord on the ground of arrears of rent envisaged under Section 11(2) (b) of the said Act. 2. The landlord-tenant relationship between the revision petitioner and the respondent was not in dispute. However, the revision petitioner had contested the rate of rent which the landlord claimed as Rs.3,294/- per month from 04.07.2008 onwards, and stated that it was actually Rs.1,594/- per month from 06.10.2006 onwards. The fact that the revision petitioner did not pay rent to the respondent from the year 2010 onwards is admitted by him. However, it was contended by the revision petitioner that the respondent had availed a loan of Rs.75,000/- from him on 29.01.2011, and that there was an understanding between them 3 R.C.R.No.186 of 2020 that interest will be paid for the excess amount after calculating and adjusting the arrears of rent due to the respondent from the revision petitioner. With the above rival contentions, the parties had undergone the trial before the Rent Control Court, in which the respondent/landlord was examined as PW1 and four documents were marked as Exts.A1 to A4. The revision petitioner tendered oral evidence as RW1 and brought on record four documents which were marked as Exts.B1 to B4. The Rent Control Court, after evaluating the evidence in the above regard and hearing both sides, held that there was no arrears of rent due from the revision petitioner in view of the payment of Rs.75,000/made by him to the respondent/landlord as evidenced by Ext.B2 receipt. Accordingly, the prayer for eviction was disallowed. 3. In the appeal preferred by the respondent/landlord as R.C.A.No.72 of 2014, the Rent Control Appellate Authority, as per the judgment dated 24.08.2020 held that the contention of the revision petitioner about the payment of a huge amount of Rs.75,000/- to the respondent/landlord was not at all believable and probable, and accordingly reversed the order of the Rent Control Court. It is aggrieved by the above verdict of the Rent Control Appellate Authority, that the petitioner is here with this revision. 4. Heard the learned counsel for the revision petitioner. 4 R.C.R.No.186 of 2020 5. The point to be decided is whether there is any scope of interference with the impugned judgment of the Rent Control Appellate Authority, Thrissur directing the revision petitioner to hand over vacant possession of the petition schedule building to the respondent/landlord on the ground of arrears of rent. 6. The respondent/landlord has strongly disputed the case of the revision petitioner/tenant about the payment of Rs.75,000/to him. Notwithstanding the question regarding the availability of evidence regarding such payment, the core issue to be resolved in this revision is whether the contention of the tenant about his entitlement to have the bulk payment made to the landlord adjusted with the arrears of rent due to the landlord, is legally sustainable or not. 7. After the landmark decisions in **Issac Ninan v. State of Kerala [1995 (2) KLT 848]** and **Edger Ferus v. Abraham Ittycheria [2004 (1) KLT 767]** Section 8(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965, is not in the statute book, as it was declared _ultra vires_ . The inevitable consequence which emerged is that the retention of advance in excess of one month’s rent or security deposit by the landlord, could not be challenged by the tenant. Therefore, the contention of the tenantrevision petitioner that the amount of Rs.75,000/-, which he claims 5 R.C.R.No.186 of 2020 to have advanced as loan to the respondent-landlord, has to be adjusted with the arrears of rent due from him, falls to the ground. 8. The proposition of law in the above regard has been laid down by a Division Bench of this Court in **Abdul Razak.P.M. v.** **K.C.Thomas & Others [2022 (4) KHC 260]** , in which one among us [Anil K. Narendran, J.] was a party. It has been observed by this Court in paragraph No.12 of that judgment as follows: “12. Section 8 of the Act has already been declared ultra vires by the Division Bench of this Court in _**Issac Ninan v. State of Kerala**_ **[1995 (2) KLT 848]** . When Section 8(1) of the Act is not in Statute book, as it was declared ultra vires, a tenant is not entitled to contend that the landlord is not entitled to retain the advance in excess of one month's rent. Therefore, the contention of the tenant that, the security deposit made by him, in terms of the lease deed dated 01.11.2017, which is still with the landlord, has to be adjusted against the admitted arrears of rent, before the Rent Control Court passing an order in R.C.P.No.211 of 2019, under Section 12(3) of the Act, can only be rejected as untenable, and we do so.” 9. Thus, it is apparent from the discussions aforesaid that, the finding of the Rent Control Court in the order dated 17.01.2014 in R.C.P No.13 of 2012, that it cannot be said that the revision petitioner-tenant has kept any rent as arrears, in view of the payment of Rs.75,000/-, which he claimed to have made to the 6 R.C.R.No.186 of 2020 respondent-landlord as loan on 29.01.2011, is totally misplaced and against the settled principles of law in this regard. Needless to say, the order declining eviction of the revision petitioner/tenant, has been rightly reversed by the Rent Control Appellate Authority, though the reasoning in the judgment in R.C.A No.72 of 2014 is mainly thrust on the absence of any convincing evidence to establish the payment of Rs.75,000/-, which the revision petitioner/tenant claimed to have paid to the respondent/landlord. The aspect whether the payment of Rs.75,000/- said to have been made by the revision petitioner-tenant to the respondent/landlord, was supported by convincing evidence or not, and whether the actual rate of rent, as per the rental agreement between the Revision petitioner and the respondent was Rs.3,294/- per month, as claimed by the respondent, or Rs.1,594/- per month, as claimed by the revision petitioner, need not be adjudicated in this revision proceedings, since being irrelevant in deciding the point involved. 10. As a conclusion to the aforesaid discussion, we find no reason to interfere with the impugned judgment of the Rent Control Appellate Authority, Thrissur, since it is neither perverse nor patently illegal. In the result, the petition stands dismissed. However, the Revision petitioner/tenant will be granted three months’ time to 7 R.C.R.No.186 of 2020 vacate the leasehold premises, if he is ready to abide by the following conditions: (i) The petitioner-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that he will surrender vacant possession of the petition schedule shop room to the respondent-landlord within three months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room and further he shall conduct any business in the petition schedule shop room only on the strength of a valid licence/permission/consent issued by the local authority/statutory authorities; (ii) The petitioner-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, and shall 8 R.C.R.No.186 of 2020 continue to pay rent for every succeeding months, without any default; (iii) Needless to say, in the event of the petitionertenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule shop rooms will stand cancelled automatically and the respondent-landlord will be at liberty to proceed with the execution of the order of eviction. **G. GIRISH, JUDGE** jsr/vgd