Koshy Thomas v. Prabha Mani and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 15TH DAY OF JANUARY 2016/25TH POUSHA, 1937** ## **RCRev..No. 346 of 2015 ()** **-------------------------AGAINST THE JUDGMENT IN RCA 7/2015 of RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM DATED 16.10.2015** **AGAINST THE ORDER IN RCP 66/2013 of RENT CONTROL COURT, ERNAKULAM DATED 1.1.2015** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **-------------------------------------------** **KOSHY THOMAS, AGED 49 YEARS, S/O. THOMAS,THEEBALANGATTU HOUSE, VENNALA DESOM, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, COCHIN 682 028.** ## **BY ADV. SRI.BIJU ABRAHAM** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** **--------------------------------------** ## **1. PRABHA MANI** **W/O. SURESH BABU, KARINDHARICKAL PARAMBIL HOUSE, PALARIVATTOM KARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, COCHIN 682 025.** **2. BIBIN K BABU, AGED 27 YEARS, S/O. SURESH BABU, KARINDHARICKAL PARAMBIL HOUSE, PALARIVATTOM KARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, COCHIN 682 025.** **3. ABIN K BABU, AGED 20 YEARS, S/O. SURESH BABU, KARINDHARICKAL PARAMBIL HOUSE, PALARIVATTOM KARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, COCHIN 682 025.** **R1-R3 BY ADV. SRI.A.BALAGOPALAN R1-R3 BY ADV. SRI.A.RAJAGOPALAN R1-R3 BY ADV. SRI.M.N.MANMADAN R1-R3 BY ADV. SRI.M.S.IMTHIYAZ AHAMMED** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 15-01-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VPV** ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= ## **R.C.R.No.346 of 2015** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 15[th] day of January, 2016** ## **ORDER** ## _**P.N.Ravindran, J.**_ The petitioner herein is the respondent in R.C.P.No.66 of 2013 on the file of the Rent Control Court, Ernakulam, a petition filed by the respondents herein for an order of eviction under sections 11(2)(b), 11(3), 11(4)(ii) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as “the Act” for short. 2. Upon receipt of notice, the petitioner herein entered appearance and filed a counter statement dated 4.10.2013 resisting the petition for eviction. In paragraph 2 thereof he contended that the rent control court has no jurisdiction to entertain the petition for eviction because even according to the petitioners therein, the permission granted to him to occupy the premises is only a licence and it has been revoked, that this will be clear from the pleadings filed by the petitioners in the rent control petition in O.S.No.113 of 2012 and also from the notice of eviction and therefore, the preliminary issue regarding the question whether the agreement between the parties to the rent control petition is a lease is to be decided first, before going into the merits of the matter. ## **R.C.R.No.346 of 2015** ## **-:2:-** 3. Shortly thereafter, the respondents herein filed I.A.No.11 of 2013 under section 12 of the Act praying for an order directing the respondent in the rent control petition to pay the sum of Rs.4,72,650/-, stated to be the arrears of rent due as on 15.12.2013 and to continue to pay rent at the rate of Rs.20,000/- per mensem to them. They had also prayed that in the event of failure, the rent control court may be pleased to stop all further proceedings in R.C.P.No.66 of 2013 and to direct the respondent in R.C.P.No.66 of 2013 to put them in vacant possession of the petition schedule building. 4. The petitioner herein opposed the application by filing a counter affidavit dated 1.1.2014 wherein he reiterated the averments in paragraph 2 of the objections dated 4.10.2013 and contended that unless and until the landlord-tenant relationship between him and the petitioners in the rent control petition is established, the petitioners in the rent control petition cannot claim any rent from him. He did not however dispute the averment in I.A.No.11 of 2013 that he has kept the rent in arrears from 15.01.2012. He had however contended that the amount payable by him to the owners of the petition schedule building is only Rs.16,000/- per mensem. **R.C.R.No.346 of 2015** ## **-:3:-** 5. The rent control court, after considering the rival contentions, dismissed I.A.No.11 of 2013 by order passed on 18.01.2014 on the short ground that as the respondent in the application has denied the landlord's title, the relief prayed for therein cannot be granted. Challenging that order, the petitioners in R.C.P.No.66 of 2013 filed R.C.A.No.26 of 2014 on the file of the Rent Control Appellate Authority, Ernakulam. After considering the rival contentions, the rent control appellate authority allowed R.C.A.No.26 of 2014 by judgment delivered on 16.9.2015 and remanded I.A.No.11 of 2013 in R.C.P.No.66 of 2013 to the rent control court for fresh disposal within three months from 29.9.2014, the date fixed for appearance of the parties. By the order of remand, the rent control appellate authority had also directed that the rent control court shall first decide the question whether the denial of the landlord-tenant relationship is bonafide or not and thereafter proceed with I.A.No.11 of 2013. 6. The rent control court thereafter considered the rival contentions and found by order passed on 1.1.2015 that the denial of the landlord/tenant relationship is not bonafide. The rent control court accordingly held that R.C.P.No.66 of 2013 is maintainable. By a separate order passed on the same day, the rent control court allowed ## **R.C.R.No.346 of 2015** ## **-:4:-** I.A.No.11 of 2013 in R.C.P.No.66 of 2013 and directed the respondent therein to deposit or pay arrears of rent at the rate of Rs.16,000/- per mensem from 15.01.2012, within 30 days from the date of the order and to continue to pay the rent subsequently accruing, within two weeks from the date on which it becomes due or to show cause to the contrary. 7. Challenging that order, the respondent in I.A.No.11 of 2013 in R.C.P.No.66 of 2013 filed R.C.A.No.7 of 2015 on the file of the Rent Control Appellate Authority, Ernakulam. R.C.A.No.7 of 2015 was filed on 29.01.2015. Months later, to be exact on 19.6.2015, the respondent in R.C.P.No.66 of 2013 (the petitioner in this revision petition) filed R.C.A.No.37 of 2015 challenging the finding entered by the rent control court on 1.1.2015 to the effect that the denial of the landlord/tenant relationship is not bonafide, accompanied by I.A.No.3772 of 2015 to condone the delay of 138 days in filing the appeal. Notice was ordered on the said appeal as well as on the application to condone delay and the respondents therein entered appearance and filed objections to the application to condone delay. 8. While matters stood thus, the rent control appellate authority independently considered R.C.A.No.7 of 2015 and dismissed it by ## **R.C.R.No.346 of 2015** ## **-:5:-** judgment delivered on 16.10.2015. The rent control appellate authority also directed the appellant namely the petitioner herein to deposit or pay arrears of rent at the rate of Rs.16,000/- per mensem from 15.1.2012, within 30 days from 16.10.2015 and to continue to pay the rent subsequently accruing within two weeks from the date on which it becomes due. The appellate authority further directed that in the event of failure, all further proceedings in R.C.P.No.66 of 2013 shall be stopped and the appellant in R.C.A.No.7 of 2015 shall handover vacant possession of the petition schedule building to the respondents in R.C.A.No.7 of 2015. The said order is under challenge in this revision petition filed on 7.12.2015 under section 20 of the Act. Since the petitioner herein did not comply with the said order, the rent control court has passed an order on 30.11.2015 stopping all further proceedings under section 12(3) of the Act and directing the petitioner herein to surrender vacant possession of the petition schedule building to the petitioners in R.C.P.No.66 of 2013 forthwith. 9. The main ground raised in the instant revision petition challenging the order passed by the rent control appellate authority on 16.10.2015 in R.C.A.No.7 of 2015 is that the rent control appellate authority erred in disposing of R.C.A.No.7 of 2015 independently ## **R.C.R.No.346 of 2015** ## **-:6:-** without hearing and disposing of R.C.A.No.37 of 2015 as the issues arising in both the appeals are one and the same. Various other contentions are also raised in the instant revision petition. The main ground raised in R.C.A.No.37 of 2015 is that R.C.P.No.66 of 2013 was never posted for deciding the preliminary issue regarding its maintainability as directed by the rent control appellate authority in R.C.A.No.26 of 2014. It is contended that without deciding the maintainability of the rent control petition, on 01.01.2015 the rent control court passed orders on I.A.No.11 of 2013 in R.C.P.No.66 of 2013 and that as a result thereof, only on 09.06.2015, the parties to R.C.P.No.66 of 2013 came to know about the order passed by the rent control court on 01.01.2015 regarding its maintainability, that thereupon they applied for and obtained a copy of the order. The petitioner has also raised various contentions touching upon the merits of the finding entered by the rent control court that the relationship between the parties is that of the landlord and tenant. 10. During the course of arguments before us today, Sri.Biju Abraham, learned counsel appearing for the petitioner reiterated the contentions raised in R.C.A.No.37 of 2015 and contended that it was without deciding the maintainability of R.C.P.No.66 of 2013 that the ## **R.C.R.No.346 of 2015** ## **-:7:-** rent control court passed the impugned order at the instance of the revision petitioner, namely, the order passed on 01.01.2015 allowing I.A.No.11 of 2015 in R.C.P.No.66 of 2013. Learned counsel contended that unless the rent control court enters a finding to the effect that the jural relationship between the parties to R.C.P.No.66 of 2013 is that of landlord and tenant, the rent control court will not get jurisdiction to entertain a petition under section 12 of the Act. 11. Per contra, learned counsel appearing for the respondents contended that the tenant had no case either in the objections filed by him in R.C.P.No.66 of 2013 or in the counter affidavit filed in I.A.No.11 of 2013, that he is not a tenant of the petitioner in R.C.P.No.66 of 2013, that he has only relied on the contentions raised by the petitioner in R.C.P.No.66 of 2013 in a suit instituted by him in the Court of the Munsiff of Ernakulam as O.S.No.113 of 2012, to contend that he is not a tenant of the petitioner therein. The case set out by him in the objections filed in R.C.P.No.66 of 2013 is that from the pleadings in O.S.No.113 of 2013, it is evident that the stand of the petitioner in R.C.P.No.66 of 2013 is that the respondent in R.C.P.No.66 of 2013 is only a licensee, that the license has been revoked and therefore he is precluded from taking a contradictory stand before the ## **R.C.R.No.346 of 2015** ## **-:8:-** rent control court to the effect that the person occupying the premises belonging to him is his tenant. Learned counsel also invited our attention to the averments in that regard contained in paragraph 2 of the objections dated 04.10.2013 in R.C.P.No.66 of 2013, the counter affidavit dated 01.01.2015 filed in I.A.No.11 of 2013, to the plaint in O.S.No.113 of 2013 as also the written statement therein. 12. Learned counsel for the respondents submitted that the petitioner herein has stated in the plaint in O.S.No.113 of 2013 that he is a tenant of the defendants as per agreement dated 15.01.2012, that in the written statement filed by the defendants therein, it was contended that the said agreement is only a license agreement and that there is no dispute as regards the identity of the building or about the genuineness of the agreement dated 15.01.2012, that the only dispute is as regards the nature of the transaction namely, whether it is a lease or a license and that in the light of the specific admission made by the petitioner himself in the plaint in O.S.No.113 of 2013 that he is a tenant of the defendants therein, he cannot thereafter be heard to contend in the rent control petition instituted by the owner of the building, that he is not a tenant but only a licensee. Learned counsel also submitted that the defendant in O.S.No.113 of 2012 later filed ## **R.C.R.No.346 of 2015** ## **-:9:-** I.A.No.7246 of 2014 to receive an additional written statement contending that the defendants in O.S.No.113 of 2012 admit the fact that the plaintiff in the suit is their tenant, but on the ground that the defendants cannot take conflicting pleas, I.A.No.7246 of 2014 in O.S.No.113 of 2012 was dismissed and that these facts were placed before the rent control court. Learned counsel submitted that in such circumstances merely for the reason that R.C.A.No.37 of 2015 filed challenging the finding entered by the rent control court on 01.01.2015 that the relationship between the parties is that of the landlord and tenant is pending, this court may not interfere with the impugned judgment delivered by the rent control appellate authority. Learned counsel contended that the entire issue was thrashed out before the rent control appellate authority and it was after being satisfied that the relationship between the parties is that of landlord and tenant that the rent control appellate authority confirmed the order passed by the rent control court on I.A.No.11 of 2013. 13. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record including the records in R.C.A.No.37 of 2015 which we have called for. The records in ## **R.C.R.No.346 of 2015** ## **-:10:-** R.C.P.No.66 of 2013 disclose that pursuant to the order of remand passed by the rent control appellate authority on 16.09.2014 in R.C.A.No.26 of 2014, R.C.P.No.66 of 2013 stood posted before the rent control court on 27.09.2014. On that day it was adjourned to 15.10.2014 for hearing on the question as to whether the denial of landlord/tenant relationship is _bona fide_ . On 15.10.2014 it was adjourned to 31.10.2014 for that purpose and also for considering an application filed by the petitioner in R.C.P.No.66 of 2013. On 31.10.2014, the respondent in R.C.P.No.66 of 2013 filed I.A.No.8218 of 2014 for an order directing the petitioners in the rent control petition to produce the agreement dated 15.01.2012. R.C.P.No.66 of 2013 was thereupon adjourned to 07.11.2014. On 07.11.2014, on mention being made by learned counsel appearing for the petitioner in R.C.P.No.66 of 2013 that their counter affidavit in I.A.No.8212 of 2014 is being filed, R.C.P.No.66 of 2013 and I.A.No.8218 of 2014 were adjourned to 11.11.2014. On 11.11.2014 they were adjourned to 18.11.2014. On 18.11.2014 they were adjourned to 22.11.2014. On 22.11.2014 the rent control court allowed I.A.No.8218 of 2014 and directed the petitioner in R.C.P.No.66 of 2013 to produce the agreement dated 15.01.2012 within seven days. The rent control ## **R.C.R.No.346 of 2015** ## **-:11:-** petition was also adjourned to 01.02.2014. On 01.02.2014, in view of the fact that the petitioner in R.C.P.No.66 of 2013 had produced the agreement dated 15.01.2012, R.C.P.No.66 of 2013 was adjourned to 04.12.2014. On 04.12.2014 it was adjourned to 05.12.2014 and on 05.12.2014 to 07.01.2015. On that day both sides were heard. In view of the fact that the rent control appellate authority had, in the order of remand passed on 16.09.2014 in R.C.A.No.26 of 2004, directed the rent control court to dispose of I.A.No.11 of 2013 afresh within three months from the date of appearance of the parties, the rent control court _suo motu_ advanced the hearing on the maintainability of R.C.P.No.66 of 2013 to 19.12.2014 after notice to both sides. The 'B' diary, the 'A' diary and the proceedings paper disclose that in view of the aforesaid direction, the rent control court _suo motu_ took up the case on 16.12.2014 and advanced the hearing to 19.12.2014. The rent control court also directed notice or intimation to be given to the learned counsel appearing for the parties. 14. The Presiding Officer has in his report dated 06.01.2016 stated that this fact was omitted to be recorded in the 'A' diary by the Bench Clerk and that it was also not brought to the notice of the Presiding Officer by the learned counsel appearing for the parties. The ## **R.C.R.No.346 of 2015** ## **-:12:-** 'A' diary, the 'B' diary and the proceedings paper disclose that learned counsel on both sides were heard on 19.12.2014 on the question of maintainability by the rent control court. On that day Exts.A1 to A6 were marked on the side of the petitioner in R.C.P.No.66 of 2013 and Exts.D1 to D6 were marked on the side of the respondent. Thereupon, for further hearing, it was adjourned to 20.12.2014. On that day, learned counsel on both sides were again heard and the case was posted to 01.01.2015 for orders. On 01.01.2015, the rent control court passed two orders, one regarding the question whether the denial of title is bona fide and the other on I.A.No.11 of 2013 in R.C.P.No.66 of 2013. The rent control court has in the order passed by it on 01.02.2015 regarding the jural relationship between the parties, entered a finding that there is no _bona fides_ in the claim of the respondent in R.C.P.No.66 of 2013, that there is no landlord-tenant relationship between him and the petitioners therein. The rent control court accordingly held that the petition for eviction is maintainable. The said order is under challenge in R.C.A.No.37 of 2015, which is even today pending. The said order discloses that it was after Exts.A1 to A6 were produced and marked on the side of the petitioners in R.C.P.No.66 of 2013 and Exts.D1 to D6 were produced and marked on ## **R.C.R.No.346 of 2015** ## **-:13:-** the side of the respondents therein and after hearing learned counsel appearing on both sides that the rent control court had entered a finding that the rent control petition is maintainable. It was pursuant to the said order that the rent control court passed a separate order on 01.01.2015 allowing I.A.No.11 of 2013. It is relevant to note that the petitioner herein who is the respondent in R.C.P.No.66 of 2013 does not have a case that he has paid the rent/licence fee to the owner of the building after the date of the entrustment. The rent control appellate authority has in the order of remand passed on 16.09.2014 in R.C.A.No.26 of 2014 entered a finding to that effect. The said finding reads as follows: _“ It is very pertinent to note that the respondent has never disputed the specific case of the appellants that he had kept the rent in arrears. No where in the counter statement filed by him, he has disputed the contention of the appellants that there is arrears of rent. I think it is better to reproduce the relevant portion in the counter statement filed by the respondent before the Rent Control Court. It reads as follows:-_ “6. The claim of the petitioner or the arrears of rent is not tenable. Every month/ use to send the amount by cheque to the petitioners by registered post with acknowledgment due but the petitioners were reluctant to accept the same. The claim of the petitioner regarding the monthly amount against the real facts and trying to mislead this honourable court.” 15. The records disclose that the only dispute between the ## **R.C.R.No.346 of 2015** ## **-:14:-** parties is as regards the rate of rent/licence fee. According to the petitioners in R.C.P.No.66 of 2013, the rent payable is Rs.20,000/- per mensem, while the stand of the respondent therein is that the amount payable is only Rs.16,000/- per mensem. The date of entrustment is 15.01.2012. Four years computed from that date will expire today. As on date, even going by the rate of rent/license fee set out by the petitioner herein, the sum of Rs.16,000/- x 48 months = Rs.7,68,000/- is due to the owner of the building. Even assuming that the petitioner herein is a licencee, he is bound to pay the said amount to the owner of the building. He cannot in our opinion legitimately be heard to contend that in view of the fact there is a dispute regarding the jural relationship, he need not pay the rent or licence fee to the owner of the building. Such conduct in our opinion has to be deprecated. It is also relevant in this context to note that the rent control court and the appellate authority have considered the aforesaid circumstance as well while passing the impugned orders. 16. The main issue that arises for consideration is whether the impugned orders suffer from any illegality or impropriety. It is mainly relying on the pendency of R.C.A.No.37 of 2015 that the petitioner herein challenges the order passed by the rent control court under ## **R.C.R.No.346 of 2015** ## **-:15:-** section 12 of the Act and the judgment of the appellate authority upholding it. According to him, unless and until the rent control appellate authority decides in R.C.A.No.37 of 2015 as to whether the jural relationship between the parties is that of a lesser and lessee, the rent control appellate authority could not have disposed of R.C.A.No.7 of 2015, from which this revision arises. As stated earlier, the rent control appellate authority which was alerted about the pendency of R.C.A.No.37 of 2015 has held that in R.C.A.No.37 of 2015 was filed only on 19.06.2015 with I.A.No.3772 of 2015 to condone the delay of 138 days in filing the appeal, there is no appeal in the eye of law and therefore, it need not await the disposal of R.C.A.No.37 of 2015 to dispose of R.C.A.No.7 of 2015. 17. From the materials on record we are satisfied that the contention of the petitioner that it was without considering the issue regarding the maintainability in R.C.P.No.66 of 2013 that the rent control court passed orders on the application under section 12 of the Act is without any merit. The 'B' diary and the proceedings paper disclose that the issue regarding the maintainability namely, the question whether the denial of the jural relationship between the parties is _bona fide_ or not, was considered and decided by the rent ## **R.C.R.No.346 of 2015** ## **-:16:-** control court, by a separate order passed on 01.01.2015. The rent control court has analyzed the pleadings and the evidence of both sides and come to the conclusion that the denial of title is not _bona fide_ . In R.C.A.No.7 of 2015 also the rent control appellate authority has gone into the said question and held that on an examination of the documents, it can be clearly concluded that the appellant in R.C.A.No.7 of 2015 (the petitioner in the instant revision petition) has admitted that he is a tenant of the opposite side. It was further held that the attempt of the appellant in R.C.A.No.7 of 2015 is only to deprive the rent payable to the landlord. It is relying on the stand taken by the owner of the building in a suit instituted by the present petitioner that it is contended that the relationship between the parties is that of licensor and licencee. We shall therefore proceed to consider whether there is any merit or force in the said contention. 18. The plaint in O.S.No.113 of 2012, a certified copy of which was produced and marked as Ext.A1, contains the following averments: _“The plaintiff is the tenant of the defendants as per agreement dated 15.01.2012 by the said agreement, he had taken rent of two rooms belong to the defendants. Thus room No.32/1373 A in the ground floor of the building belongs to the defendants having about 450 square Feet with two shutters and_ ## **R.C.R.No.346 of 2015** ## **-:17:-** _open space in the front portion with a varanda [the particulars of the said room is more specifically described in Item No.1 of the schedule of properties here in below] and room No.32/1373 B having about 450 square Feet with two doors and a small varanda on the 1[st] floor of the building [the particulars of the said room is more specifically described in Item No.2 of the schedule of properties here in below]. The defendants being the successor in interest of the scheduled premises executed the agreement and handed over the premised by 1[st] January for effecting necessary repair and modifications to the premises suiting to the proposed business in the premises. The 2[nd] floor of the building is retained by the defendant and the same is not let out to anyone to the knowledge of this defendant.”_ 19. In paragraph 5 of the said plaint, it is stated that the rent for the ground floor of the building is Rs.16,000/- per mensem and for the first floor Rs.14,000/- per mensem. According to the plaintiff in O.S.No.113 of 2012, after the entrustment in his favour, the landlords who were joined as defendants in this suit, forcefully occupied the first floor of the building. The relief sought for in O.S.No.113 of 2012 is a permanent prohibitory injunction restraining the defendants from obstructing the peaceful conduct of business in the plaint schedule building and from forcefully evicting the plaintiff therefrom. Other reliefs have also been prayed for. 20. The records in R.C.A.No.37 of 2015 disclose that prior to the institution of R.C.P.No.66 of 2013, the owner of the building had caused a lawyer notice dated 25.02.2013 to be issued (marked as ## **R.C.R.No.346 of 2015** ## **-:18:-** Ext.A4 before the rent control court at the stage of considering the question of maintainability). In that notice, the landlord had described the agreement dated 15.01.2012 as a licence agreement. By that notice, the licence agreement was terminated and the petitioner herein was called upon to remove himself from the premises within 30 days. Upon receipt of the said notice, the petitioner herein caused a reply dated 09.03.2013 to be issued (marked as Ext.A6 before the Rent Control Court at the stage of considering the question of maintainability), wherein it was stated as follows: _“My client apprehends that your client has not appraised you the correct details and facts while issuing such an illadvised notice with factual errors and unsustainable claim and contentions. My client had entered in to a rent agreement dated 15.01.2012 agreed to take two rooms belongs to your client one on the ground floor and another room on the first floor of your clients building. The 2[nd] floor of the building is retained by your clients. The total rent fixed is Rs.30,000/- of which Rs.16,000/- for the ground floor and Rs.14,000/- for the 1[st] floor. On 19.01.2012 though your client had handed over the building tax receipts agreeing to give the consent letter to the corporation enabling my client to obtain license. But on the next day your clients had forcibly taken possession of the 1[st] floor and also tried to obstruct the work of the ground floor. Thereby my client was forced to lodge a complaint before the Sub Inspector of Police, Palarivattom against your client for your high handed act. My client had expended more than Rs.3,00,000/- for the renovation of the building making it capable of using for his business purpose.”_ 21. The owner of the building thereafter instituted R.C.P.No.66 ## **R.C.R.No.346 of 2015** ## **-:19:-** of 2013, accepting the case set out by the petitioner herein in O.S.No.113 of 2012 that he is a tenant of the petition schedule premises. The owner of the building had in the written statement dated 27.03.2012 filed by him in O.S.No.113 of 2012, taken a stand similar to the one taken by him in Ext.A4 lawyer notice dated 25.02.2013 that the agreement entered into between the parties on 15.01.2012 is a license agreement and not a rent agreement. Though he later made an attempt to file an additional written statement (Ext.A3) dated 17.09.2014 admitting the fact that the plaintiff in the suit is a tenant of plaint schedule item No.1, I.A.No.7246 of 2014 filed by him to receive the additional written statement was dismissed for the reason that the defendant in a suit cannot raise inconsistent pleas. Pursuant to the order passed by the rent control court on I.A.No.8218 of 2014, the agreement dated 15.01.2012 entered into between the parties was produced on 05.12.2014. The owner of the building had in the counter affidavit filed by him in I.A.No.8218 of 2014 taken the stand that the agreement dated 15.01.2012 was executed in duplicate, that one copy executed on stamp paper worth Rs.100/-, is with him and that the plaintiff is in custody of the duplicate. He had also stated that the plaintiff may be directed to produce the same before the ## **R.C.R.No.346 of 2015** ## **-:20:-** court. He had in paragraph - 5 of the counter affidavit dated 06.11.2014 in I.A.No.8218 of 2014, further averred that they have no means to pay penalty for the insufficiently stamped document and if the tenant is willing to pay penalty for the insufficiently stamped document, they are prepared to produce it. The petitioner in R.C.P.No.66 of 2013 had in the affidavit filed by him in support of I.A.No.8218 of 2014 averred that the original agreement between the parties will reflect the actual nature of relationship between them, that the original of the agreement is in the custody of the petitioners in R.C.P.No.66 of 2013 and therefore, they may be directed to produce the same. The rent control court allowed I.A.No.8218 of 2014 on 22.11.2014 by the following order: _“It goes without saying that even without any motion from the side of the parties in a lis, if the court is of the opinion that a particular document which is admittedly in existence will if produced would settle the questions involved, the court can in its own motion direct the production of the same. In the case at hand, neither party disputes the fact that the very nature of their relationship has to be decided first so as to decide the tenability of the very Rent Control Petition. Admittedly the original is in the possession of the respondent. Moreover the parties have divergent versions before two different forums with regard to the nature of their relationship. Hence, I am of the view that the document must be ordered to be produced before the court. As to who shall pay the insufficient stamp duty penalty and can be decided once the document is produced before the court._ _In the result, the petition is allowed and the respondent_ ## **R.C.R.No.346 of 2015** ## **-:21:-** _is directed to produce the agreement dated 15.01.2012 before this court within seven days of this order.”_ 22. Though the agreement was later produced, it was not marked in evidence, evidently for the reason that it was insufficiently stamped and therefore, we do not propose to go into the contents of the said document. Such being the situation, the parties cannot rely on the said document to support their rival contentions. They will have necessarily to go by the pleadings in the rent control petition and in the plaint in O.S.No.113 of 2012 instituted earlier in point of time, namely on 30.01.2012 within 15 days from the date of the entrustment, to decide whether the entrustment was by way of a lease or a license. The plaintiff in the suit is the petitioner herein. He has in categorical terms stated in the plaint that he is a tenant of the defendants who are the respondents in the instant revision petition. In Ext.A6 lawyer notice dated 09.03.2013 caused to be issued by him upon receipt of Ext.A4 notice dated 25.02.2013 issued on the instructions of the owner of the building, the same contention was put forward. In other words, it is the consistent case of the petitioner herein that he is a tenant of the defendants in the suit. According to him, the rent agreed upon is Rs.16,000/- for the ground floor and ## **R.C.R.No.346 of 2015** ## **-:22:-** Rs.14,000/- for the first floor. The case set out in the plaint is that after the entrustment, the defendants trespassed into the first floor and reduced it to their possession. It is evident from the averments in the plaint in O.S.No.113 of 2012, which was filed earlier in point of time, that the stand of the petitioner herein is that he is a tenant of the building. The owner of the building had initially filed a written statement in that suit, reiterating his contention in Ext.A4 lawyer notice that the agreement between the parties is a license agreement. It is the very same agreement dated 15.01.2014, which was pressed into service. He later filed an additional written statement admitting the averment in the plaint that the plaintiff is his tenant. But the written statement was not received on the ground that inconsistent pleas cannot be taken. Though the rent deed was also produced before the rent control court, pursuant to the order passed by the rent control court, it was not admitted in evidence for the reason that it is insufficiently stamped. The plaintiff in O.S.No.113 of 2012 had filed a proof affidavit dated 22.11.2013 reiterating his case that he is the petitioner's tenant. It is evident from the materials on record, more particularly the vital admissions made by the petitioner herein as plaintiff in the suit, that his status vis-a-vis the respondents is that of a **R.C.R.No.346 of 2015** ## **-:23:-** tenant and that the respondents are the landlords of the building in his possession. 23. It is evident from the averments in O.S.No.113 of 2012 and also the proof affidavit filed by the plaintiff therein that the arrangement between the parties is a rental arrangement and not a license arrangement. The petitioner who had admitted that he is a tenant of the premises cannot in our opinion be heard to contend in the petition for eviction filed by the owner of the building under the Kerala Buildings (Lease & Rent Control) Act, 1965 that he is not a tenant of the building, but only a licensee. Though in paragraph 2 of the objections submitted on 04.10.2013 in R.C.P.No.66 of 2013, the petitioner herein had contended that the preliminary issue regarding the question whether the agreement between the parties is a lease agreement is to be decided first, he had in paragraph 7 thereof stated as follows: “ _The bona fide requirement projected by the petitioners is only to evict me from the premises when their attempt for forceful eviction was failed. At the time of the rent agreement there was an understanding between me and the petitioner to allow me to continue in the petition schedule room at least for the next ten years. Expecting a ten year business I invested such huge amount. The petitioners, from the very beginning of my possession creating obstruction and inconvenience to my business. Even my name board of the shop is destroyed by the petitioners. Against the forceful eviction I filed a suit before the_ ## **R.C.R.No.346 of 2015** ## **-:24:-** _Hon'ble 2[nd] Addl. Munsiff's Court as O.S.113 of 2012 and obtained injunction order against the petitioners. In the above suit four times commissioner inspected the property, one with the police protection as per the direction of that court. My claim for damages is also pending before that honorable court.” (emphasis supplied)_ 24. It is thus evident that the real transaction between the parties is a rental arrangement and not a license arrangement. In such circumstances, as the overwhelming documentary evidence in the case on hand establishes the fact that the petitioner herein is a tenant and not a licensee, we are of the opinion that merely for the reason that the landlords had, at an earlier point of time, in answer to the averments in the plaint in a suit instituted by the petitioner herein, described the agreement entered into between the parties as a licence agreement, which averment they had later withdrawn by attempting to file an additional written statement, it cannot be said that the agreement between the parties is a license agreement and not a rental arrangement. In the light of the overwhelming documentary evidence on record, we are of the opinion that no purpose will be served by setting aside the impugned order and relegating the parties to agitate the matter once again along with R.C.A.No.37 of 2015. 25. There is also yet another reason why we are not persuaded **R.C.R.No.346 of 2015** ## **-:25:-** to set aside the impugned order and to remand R.C.A.No.7 of 2015 for hearing and disposal along with R.C.A.No.37 of 2015. R.C.A.No.37 of 2015 was filed with a delay of 138 days on 19.06.2015. In the light of the recent decision of the Hon’ble the Supreme Court in _**M.P. Steel**_ ## _**Corporation v. Commissioner of Central Excise (Rohinton Fali**_ _**Nariman,J)**_ [2015 (2) KLT 996 (SC)], it is doubtful whether the rent control appellate authority is empowered to condone the delay in filing the appeal. It was held that the decision of the Apex Court in _**Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker**_ [(1995) 5 Supreme Court Cases 5] = [1995 (2)KLT 205 (SC)] is in conflict with the decision of a three judges bench of the Apex Court in _**Consolidated Engineering Enterprises v. Principal Secretary Irrigation Department and Others**_ [(2008) 7 SCC 169)] and is no longer good law. But for the decision of the Apex Court in _**Mukri Gopalan v. Aboobacker**_ (supra), which has been held to be no longer good law, it is doubtful whether the rent control appellate authority can condone the delay in filing the appeal. We do not however propose to render a final decision regarding that aspect of the matter. 26. It is also relevant in this context to note that pursuant to the impugned judgment delivered by the rent control appellate authority ## **R.C.R.No.346 of 2015** ## **-:26:-** ## on 16.10.2015, the rent control court has by order passed on 30.11.2015, directed as follows: _“As per judgment in R.C.A.No.7 of 2015, the appellate authority dismissed the appeal. It was further directed by the appellate authority that the appellant/respondent should pay rent @ Rs.16,000/- per month from 15.01.2012 in respect of the Petitioner Schedule Building within 30 days. It is submitted that the rent is not paid to the petitioner as directed. The order is dated 16.10.2015. In the result, all further proceedings in the RCP is ordered to be stopped under section 12(3) of the Act and the respondent is directed to hand over the Petitioner Schedule Building to the petitioner forthwith.”_ ## 27. As stated earlier, the petitioner has no case that he has paid rent at the rate of Rs.16,000/- per mensem to the respondents ever since the date of entrustment. The date of entrustment is 15.01.2012. Four years (48 months) have passed thereafter. As on date, calculated at the rate of Rs.16,000/- per mensem, the sum of Rs.7,68,000/- is due to the respondents. The petitioner is also running a business in the ground floor of the building in his possession. If pursuant to the order passed by the rent control court on 30.11.2015, stopping all further proceedings and directing the petitioner herein to handover possession of the petition schedule building to the respondents herein, he is evicted and vacant possession of the building is restored to the owners, the owners will be deprived of the rent that has accrued till ## **R.C.R.No.346 of 2015** ## **-:27:-** date. They will also be driven to the necessity of filing a suit after paying court fee to realise that amount. It is also brought to our notice that the owners of the building have as a matter of fact instituted the suit, to realise the arrears of rent for a period of three years commencing from 15.01.2012, but the suit has not yet been numbered. In such circumstances and also for the purpose of enabling the petitioner herein to have the rent control petition heard and decided on the merits, we deem it appropriate to grant him an opportunity in that regard subject to the condition that he shall deposit for payment to the landlords the sum of Rs.7,68,000/- towards arrears of rent till 15.1.2012 and subject to the further condition that he shall deposit the rent accruing from 15.01.2016 onwards as well at the rate of Rs.16,000/- per mensem for such payment, subject to the decision of the rent control court regarding the rate of rent payable for the petition schedule building. We accordingly direct that in the event of the petitioner depositing in the rent control court the sum of Rs.7,68,000/- for payment to the respondents within one month from the date of receipt of a certified copy of this order, the order passed by the rent control court on 30.11.2015, stopping all further proceedings in R.C.P.No.66 ## **R.C.R.No.346 of 2015** ## **-:28:-** of 2013 shall stand set aside and the rent control court shall try and dispose of R.C.P.No.66 of 2013 on the merits expeditiously and in any event within an outer limit of six months from the date of deposit of the sum of Rs.7,68,000/-. Needless to say, the petitioner shall also continue to pay to the respondents herein the rent for the period commencing from 15.01.2016 onwards at the rate of Rs.16,000/- per mensem, subject to the aforesaid observations. In the view that we have taken, we also deem it appropriate to direct the Rent Control Appellate Authority, Ernakulam, where R.C.A.No.37 of 2015 is pending, to pass a formal order, closing the said appeal as infructuous. Sd/- **P.N.RAVINDRAN (JUDGE)** Sd/- **K.RAMAKRISHNAN (JUDGE)** **vpv/ss**