Mohammed Idries v. M.K. Noorudeen

R. C. Rev. No. 153/2022 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR. JUSTICE JOHNSON JOHN FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945 R.C REV. NO. 153 OF 2022 ORDER DATED 18.10.2021 IN RCP NO. 67/2020 OF THIRD ADDL. MUNSIFF & RENT CONTROLLER, ERANAKULAM JUDGMENT DATED 21.06.2022 IN RCA NO. 45 OF 2021 OF RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM REVISION PETITIONER/RESPONDENT IN RCA 45 OF 2021/PETITIONER IN RCP 67 OF 2020: MOHAMMED IDRIES AGED 42 YEARS, S/O. MOHAMMED RAFIQUE, RESIDING AT CC 42/2318 [NEW NO. 681234] K2 LINK HERITAGE, FLAT NO 10C, CHITTUR ROAD, ERNAKULAM, PIN – 682 018. BY ADV P.M.MOHAMMED SHIRAZ ## RESPONDENT/APPELLANT IN RCA 45 OF 2021/RESPONDENT IN RCP 67 OF 2020: M.K. NOORUDEEN AGED 51 YEARS S/O MUSTHAFA, CITY BAG HOUSE AND FOOTWEAR, CLOTH BAZAR ROAD, BROADWAY, ERNAKULAM., PIN – 682 031. BY ADVS. SRI. K.R.VINOD SMT. M.S.LETHA(K/139/1996) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14.11.2023, THE COURT 17.11.2023 DELIVERED THE FOLLOWING: R. C. Rev. No. 153/2022 : 2 : ## **P.B. SURESH KUMAR & JOHNSON JOHN, JJ.** --------------------------------------------------------- R.C. Rev. No. 153 of 2022 --------------------------------------------------------Dated this the 17[th] day of November, 2023. ## **ORDER** Johnson John, J **.** The revision petitioner is the landlord who filed a petition for eviction under Sections 11(2)(b) and (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 ('Act, 1965' for short) against the respondent tenant before the Rent Control Court, Ernakulam as RCP No. 67 of 2020. During the pendency of the petition, the landlord filed I.A. No. 3 of 2021 under Section 12 of the Act, 1965 seeking a direction to the respondent tenant to deposit the admitted arrears of rent and the Rent Control Court, as per order dated 14.07.2021, directed the respondent tenant to remit the rent arrears from January, 2019 at the rate of Rs.1,45,000/- per month within thirty days from the date of the order. 2. Thereafter, as per order dated 18.10.2021, the Rent Control Court, after recording a finding that the respondent tenant failed to show cause for the non compliance of the order dated 14.07.2021 directed the tenant to put the landlord in vacant possession of the petition schedule building under Section 12(3) of the Act by stopping R. C. Rev. No. 153/2022 : 3 : all further proceedings. 3. Against the order under Section 12(3) of the Act, 1965, the respondent tenant filed RCA No. 45 of 2021 before the Rent Control Appellate Authority, Ernakulam and the appellate authority, as per the impugned judgment dated 21.06.2022, modified the order dated 14.07.2021 in I.A. No. 3 of 2021 and directed the tenant to deposit the entire arrears of rent from January, 2019 till the date of the judgment of the appellate authority at the rate of Rs.5000/- per month within a period of 30 days from the date of the judgment and also to continue to deposit the monthly rent within the fifteenth day of the succeeding month. It was further ordered by the appellate authority that if the rent is not deposited as above, the trial court's order dated 18.10.2021 shall become operational without any further orders. 4. Heard Sri. P.M. Mohammad Shiraz, the learned counsel for the revision petitioner, and Sri. K.R. Vinod, the learned Public Prosecutor. 5. The learned counsel for the revision petitioner pointed out that the Rent Control Court relied on Exhibit A1 copy of the rent agreement to arrive at a conclusion regarding the rate of rent and the admitted arrears of rent and also cited the decision in _**Gopala Panicker Baiju v. Mallika**_ [2018 (5) KHC 95] to argue that the R. C. Rev. No. 153/2022 : 4 : arrears of rent can be inferred from the admission of the parties or from the documents produced like the rent agreement, rent receipt etc. and that for the determination of a petition under Section 12 of the Act, 1965, it is permissible to require production of rent deed by the landlord and the rent receipts or documents mentioned in Section 9(2) of the Act, 1965 by the tenant. 6. The learned counsel for the respondent tenant argued that there is no illegality, irregularity or impropriety in the impugned judgment of the appellate authority that Exhibit A1, copy of the rent deed relied on by the trial court, is an inadmissible document and that the trial court ought not to have accepted the same in evidence, especially when it is not in dispute that the original of Exhibit A1 is an insufficiently stamped document. 7. The learned counsel for the revision petitioner pointed out that Exhibit A1 copy of the lease agreement was produced by the tenant before the Sales Tax authorities and the petitioner landlord obtained the same under the Right to Information Act from the Sales Tax authority and the objections raised by the respondent tenant are only to wriggle out of the liability to pay the admitted arrears of rent. 8. During the pendency of the revision petition, the petitioner landlord produced the original of Exhibit A1 rent agreement and filed I.A. No. 1 of 2023 to receive the same as additional evidence in the R. C. Rev. No. 153/2022 : 5 : case on the ground that only after the filing of the revision, he could find out the missing lease deed and he could not produce the same earlier as it was misplaced and could not be found out in spite of exercise of due diligence. 9. The respondent tenant filed objection to the application contending that the lease deed dated 01.03.2015 produced by the petitioner is a fabricated document and that the signature in the said document is not that of the tenant. It is also stated that the said document is insufficiently stamped and unless the deficit stamp duty with 20 times penalty has been paid by the revision petitioner, the newly produced document cannot be considered for the purpose of this case. ## 10. In _**Gouthaman v. Lohithakshan**_ [1992(1) KLT 32], this Court held as follows: “The nature of jurisdiction exercised by the revisional court under S. 20 of the Act of course is not the same jurisdiction of an appellate court. But the jurisdiction under Section 20 of the Act is to satisfy as to the legality, regularity or propriety of the order or proceedings of lower authorities. Therefore, though the jurisdiction exercised by the revisional authority is not identical with appellate jurisdiction, certainly it has got all powers which would be necessary for a meaningful and effective exercise of the jurisdiction to satisfy as to the legality, regularity or propriety of the order or judgment against which the revision is preferred.” ## 11. The decision of this Court in _**Narayanan v. Kuttikrishnan**_ R. C. Rev. No. 153/2022 : 6 : [1973 KLT 182] and the Hon'ble Supreme Court in _**M.L. Sethi v. R.P. Kapur**_ [AIR 1972 SC 2379] would show that if the evidence sought to be admitted is necessary to ascertain as to whether the impugned order is vitiated by any illegality, irregularity or impropriety, the said document can be received in evidence. 12. In this case, the main dispute is regarding the rate of rent and the admitted arrears and it cannot be disputed that in a petition under Section 12(1) of the Act, 1965, the court can consider the rent deed and other admitted documents such as rent receipts, money order receipts and other bank records provided under Section 9 of the Act, 1965 and therefore, we find that the original of Exhibit A1 document relied on by the trial court is very material for deciding the petition under Section 12(1) of the Act, 1965. 13. The decision of this Court in _**Ramachandran K.P. v. District Registrar (General) and others**_ [2019 (3) KHC 136] shows that in view of Sections 33, 34 and 37 of the Kerala Stamp Act, 1959, the court has power to impound an insufficiently stamped instrument, when the said document is produced before court and when an insufficiently stamped document is produced for admitting in evidence the party producing the document is liable to pay the deficit portion of the stamp duty with penalty. 14. The impugned judgment of the appellate authority dated R. C. Rev. No. 153/2022 : 7 : 21.06.2022 shows that after modifying the order dated 14.07.2021, the appellate authority has not passed an order under Section 12(3) of the Act, 1965 or directed the trial court to pass an order under Section 12(3) of the Act. But, instead of passing an order under Section 12(3) of the Act, 1965, the appellate authority held that if the rent is not deposited as per the modified order under Section 12(1) of the Act, 1965, the trial court's order under Section 12(3) of the Act, 1965 dated 18.10.2021, become operational without any further orders. 15. As per Section 12(3) of the Act, 1965, 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. Therefore, we find that the direction of the appellate authority in the impugned judgment dispensing the mandatory adjudication required under Section 12(3) of the Act, 1965 is illegal and improper. 16. In the above circumstances, the impugned judgment of the appellate authority and the order passed by the Rent Control Court under Section 12 of the Act are set aside and the matter is remanded back to the Rent Control Court for fresh disposal of the petition R. C. Rev. No. 153/2022 : 8 : seeking admitted arrears of rent after hearing both sides and giving an opportunity to the parties to produce the rent deed and the rent receipts or the documents mentioned in Section 9(2) of the Act within a period of one month from the date of receipt of a copy of this order. Accordingly, this petition is allowed. Registry shall return the original of Annexure A rent agreement to the petitioner so as to enable him to produce the same before the Rent Control Court. sd/- **P.B. SURESH KUMAR, JUDGE.** sd/- **JOHNSON JOHN, JUDGE.** Rv R. C. Rev. No. 153/2022 : 9 : ## APPENDIX OF R.C. REV. NO. 153/2022 ## PETITIONER'S ANNEXURES: ANNEXURE A ORIGINAL LEASE DEED DATED 01/03/2015 EXECUTED BY THE PETITIONER AND THE RESPONDENT ## RESPONDENT'S ANNEXURES: ANNEXURE R1 THE COPY OF THE COMPLAINT FILED BY THE REVISION PETITIONER HEREIN BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE, ERNAKULAM IN CC NO.1427 /2020 ANNEXURE R2 THE COPY OF THE DEPOSITION OF THE REVISION PETITIONER HEREIN IN CC NO.1427/2020. /True Copy/ Rv PS To Judge.