Mohammed Kannu Abdul Rasheed v Nazarudeen, A.R. Shajeer and Subeenna Beevi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **WEDNESDAY, THE 30TH DAY OF MAY 2012/9TH JYAISHTA 1934** ## **OP (RC).No. 698 of 2012 (O)** **-------------------------------------OP.5/1976 of PRL. MUNSIFF COURT, NEDUMANGAD** **......................................................** ## **PETITIONER(S):** **-------------------------** **MOHAMMED KANNU ABDUL RASHEED, AGED 68 YEARS SHALIMAR VEEDU, TC NO.49/243, MANACAUD THIRUVANANTHAPURAM.** **BY ADVS.SRI.T.KRISHNAN UNNI (SR.)** **SRI.SAJU.S.A SRI.K.C.KIRAN SMT.P.A.SHEEJA** ## **RESPONDENT(S):** **--------------------------** **1. NAZARUDEEN** **S/O.MUHAMMED YOUSUF, SABEEN MANZIL, MANCHA THEKKUMKARA MURI, NEDUANGADU VILLAGE NEDUMANGAD TALUK-695 541.** **2. A.R.SHAJEER SHALIMAR VEEDU, T.C NO.49/243, MANACAUD THIRUVANANTHAPURAM-695 009.** ## **3. SUBEENA BEEVI** **D/O.MOHAMMED YOUSUF, RESIDING AT SHALIMAR VEEDU TC NO.49/243, MANACAUD, THIRUVANANTHAPURAM-695 009.** **BY ADV. SRI.V.SURESH BY ADV. SRI.G.SUDHEER** **THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 30-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **DCS** **OP (RC).No. 698 of 2012 (O)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :-** **EXHIBIT P1- THE COPY OF THE ORDER OF MUNSIFF COURT, NEDUMANGAD IN EP 127/06 IN BRC OP 5/1976 DATED 8.2.2011.** **EXHIBIT P2- THE COPY OF THE ORDER OF THE DISTRICT COURT, TRIVANDRUM DATED 22.12.2011 IN R.C.R.P NO.3/2011 IN EP NO.127/2006 IN BRC OP NO.5/1976 ON THE FILE OF THE COURT OF THE PRINCIPAL MUNSIFF, NEDUMANGADU.** **RESPONDENTS' EXHIBITS :- NIL** **/TRUE COPY/** **P.A. TO JUDGE** **DCS** **C.R** ## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ** --------------------------------------------- O.P.(R.C.) No.698 of 2012 --------------------------------------------Dated this the 30[th] day of May, 2012 ## **JUDGMENT** ## Ramakrishna Pillai, J In this petition the landlord challenges the order passed by the District Court in an R.C.R.P filed by the tenants against the order passed by the execution court in a rent control matter rejecting the tenant's prayer for re-induction to the reconstructed building. 2. The facts: - Claiming eviction of the tenanted premises, the petitioner moved the Rent Control Court, Thiruvananthapuram, under Sections 11(2)(b) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act') against respondents 1 and 3, who are the legal heirs of the deceased tenant. The Rent Control Court granted eviction under Section 11(2)(b) only. Appeals by the petitioner as well as respondents 1 and 3 were considered by the Rent Control Appellate Authority. The petitioner was successful in the RCA. The verdict ultimately came up for consideration before this Court in CRP O.P.(RC) No.698 of 2012 2 No.1927/1992. This Court ordered eviction under both grounds and granted one month time to respondents 1 and 3 to deposit the arrears of rent. After re-construction of the building, respondents 1 and 3 filed execution petition claiming that they are entitled to get allotment of the newly constructed building pursuant to the order passed under Section 11(4)(iv) of the Act. The petitioner opposed the application contending that as the arrears of rent was not deposited by respondents 1 and 3 within time and the order under Section 11(2)(b) has not been vacated, the tenant is not entitled to exercise the above option. Accepting the contentions of the petitioner, the executing court dismissed the execution petition. Respondents 1 and 3 challenged the order by filing RCRP before the District Court, Thiruvananthapuram, which was allowed accepting the contentions of respondents 1 and 3. The said order is under challenge in this original petition. 3. We have heard Mr. T. Krishnanunni, the learned senior counsel for the petitioner as well as Mr. V. Suresh, the learned counsel for respondents 1 and 3. We have also perused the impugned order as well as the order passed by the execution court. O.P.(RC) No.698 of 2012 3 4. The questions that arise for consideration in this petition are the following: - i) Whether the deposit of arrears by respondents 1 and 3 was in time ? - ii) Whether a specific order vacating the order of eviction under Section 11(2)(b) is necessary to entitle respondents 1 and 3 to exercise the option of allotment of the newly constructed building pursuant to the order passed under Section 11(4) (iv) of the Act? 5. The Rent Control Court, while granting the order of eviction under Section 11(2)(b) of the Act, made it clear that the said order would stand vacated upon deposit of arrears of rent and interest (emphasis added). The Rent Control Court fixed a time limit of one month to make the deposit. The Appellate Court granted a further period of two months from the date of its order. This Court granted another period of one month from 25.5.2001 which is the date of the judgment in CRP No.1927/1992. The period of thirty days granted by this Court expired on 24.6.2001. The calendar of the relevant year reveals that 24.6.2001 was a Sunday. Hence, as rightly held by the learned Additional District O.P.(RC) No.698 of 2012 4 Judge, who heard the RCRP, Section 4 of the Limitation Act and Section 10 of the General Clauses Act would come to the rescue of the respondents and accordingly, the last day by which the deposit had to be made was 25.6.2001. The respondents filed chalan application on 25.6.2001 for remitting a sum of Rs.16,422/- as arrears of rent. The said application was allowed on 27.6.2001 and on that day itself, the amount was remitted in the treasury. The chalan receipts as well as the memo showing the remittance were produced before the court on 27.6.2001 itself. These are admitted facts. 6. The learned Additional District Judge, relying on a decision of the Apex Court in _**Ved Prakash Wadhwa**_ v _**Vishwa Mohan (AIR 1982 SC 816)**_ , concluded that the date of chalan application can be considered as the date of payment. This finding is seriously challenged by the petitioner. Inviting our attention to Rules 355 and 356 of the Civil Rules of Practice, Kerala, the learned Senior counsel for the petitioner would argue that the aforesaid decision was rendered in a case similar to one covered by Rule 356. 7. Mr. V. Suresh, the learned counsel appearing for the respondents, per contra, would submit that Rule 356 does not O.P.(RC) No.698 of 2012 5 contemplate an application for chalan at all. In order to appreciate the rival submissions, it is useful to have a look at Rule 355 and 356 of the Civil Rules of Practice, Kerala, which are extracted below: **355. Lodgment schedule.-** _(1) A person desirous of paying money into Court, hereinafter called the payer, shall file a lodgment schedule as in Form No.64. An order for lodgment and counterfoil receipts stating the date of issue, and bearing the serial number shall then be issued to the payer by the Court as in Form No.65._ _(2) The payer shall deliver the money and the order and counterfoil receipt to the Treasury Officer mentioned therein, who will retain the order and return the receipt duly signed and dated to the payer. The latter shall return the said receipt to the Court within a week of the remittance._ _(3) No lodgment shall be presented before the Treasury Officer after the expiry of 14 days from the date of issue._ **356. Cash payment for special reasons** _.- For special reasons the money may, with leave of the Judge, be paid to the chief ministerial officer of the Court and the payment shall forthwith be entered in the cash book. In such cases, the lodgment schedule shall be endorsed with a receipt to be signed by the Judge, and the amount shall, on the next day on which the treasury is open, be sent together with an order and counterfoil receipt by the chief ministerial officer of the Court to the Treasury Officer who will return the said receipt to the Court._ 8. In the decision referred to above, the Apex Court relied on two decisions rendered by the Allahabad High Court which laid down the law that when money is tendered before the court, the chalan is passed by the ministerial officer and thereupon, the O.P.(RC) No.698 of 2012 6 money is deposited in the treasury with the chalan, such deposit relates back to the date on which the tender was made or the chalan was presented. 9. Mr. Krishnanunni, the learned Senior counsel would argue that the learned District Judge erred in reading the said decision to hold that when chalan application is made that would satisfy the requirement of a valid tender of money before court. According to the learned Senior counsel, the aforesaid decision is applicable only to cases where money is tendered directly to the court as envisaged by Section 356 of Civil Rules of Practice, Kerala. The argument advanced by the learned counsel for respondents 1 and 3 that there is no question of applying for chalan at all in cases covered by Rule 356 appears to be more convincing. That being the case, the decision referred to above can be safely relied on to hold that date of application for chalan can be reckoned as the date of deposit. 10. According to us, the very filing of the application for chalan manifests the decision of the respondents to make the deposit in time. As already pointed out, the application for chalan was placed on 25.6.2001 itself. One has to bear in mind the time O.P.(RC) No.698 of 2012 7 taken by the office to process the application for chalan. The remitter cannot be blamed for such delays. The argument that the respondents should have anticipated such delay occurring on account of procedural formalities appears to be hyper technical. We endorse the view expressed by the learned Additional District Judge that deposit was made by the respondents within one month from the date of the order of this Court as directed in the order in CRP No.1927/1992. 11. Now, we will come to the second question as to whether a formal order is required vacating the order of eviction under Section 11(2)(b). In _**Ramachandran Nair**_ v _**Lebba Kunju (2009 (2) KLT 393)**_ , a Division Bench of this Court to which one among us (PCK(J)) was party, held that a formal written application specifically invoking the power under Section 11(2)(c) is not mandatory though it is necessary that deposit of the arrears of rent by the tenant in court or payment of arrears of rent by him directly should be brought to the notice of the Court by filing atleast a memo or a statement and the Rent Control Court shall pass orders under Section 11(2)(c) only after issuing notice to the landlord. However, it was observed that it would be ideal to prefer a formal O.P.(RC) No.698 of 2012 8 application under Section 11(2)(c). Though not expressly stated, what is implied is that a formal order by the Rent Control Court is required under Section 11(2)(c) in such cases. 12. Now, we will examine whether such an order has been passed by the Rent Control Court in this case. As stated earlier, the respondents deposited the arrears of rent before Court on 25.6.2001. It is true that no written application under Section 11 (2)(c) was filed. However, a memo has been filed by the respondents before the court below with a copy of the chalan receipt on 27.6.2001. Though no formal application to invoke the powers under Section 11(2)(c) has been filed, the filing of the memo along with the chalan receipt satisfies the requirements of the steps to be taken by the tenants, as laid down by this Court in the decision referred to above. 13. It is relevant to note that the order passed by the Rent Control Court under Section 11(2)(b) of the Act was that the said order would stand vacated upon deposit of the arrears of rent and interest. A time limit was also fixed which was enlarged by the Appellate Court as well as this Court. The deposit of the amount within one month from the date of judgment would result in the O.P.(RC) No.698 of 2012 9 vacation of the order of eviction under section 11(2)(b) because of the specific order of the rent control court that the order would stand vacated upon deposit of arrears of rent and interest. In other words, the deposit of arrears within the time limit would relate back to the original order vacating the order of eviction under Section 11(2)(b) and no formal order vacating the order of eviction was necessary after the deposit was made. 14. The sequence of events that followed are also relevant to justify the aforesaid conclusion. The petitioner got the arrears of rent and interest disbursed by filing an affidavit and cheque application on 9.4.2003. The delivery was effected by the executing court after the entire deposit made by the respondents was disbursed to the petitioner. In the delivery order passed on 19.5.2004, the respondents were directed to surrender vacant possession on or before 28.5.2004 and the petitioner was directed to construct the building within six months from the date on which he got possession. It was further made clear that the respondents are entitled to get the first option of getting the reconstructed building alloted. This also would indicate that the order passed under Section 11(2)(b) stood vacated on deposit of arrears of rent O.P.(RC) No.698 of 2012 10 by the respondents as directed. As the said order has not been challenged by the petitioner, his present resistance to allot the newly constructed building to the respondents, is untenable. 15. We also remind ourselves of the contours of the visitorial jurisdiction of this Court under Article 227 of the Constitution of India by the exercise of which this Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the Tribunal or court subordinate to it, is a possible view. 16. As we do not see any justifiable reason for interference with the impugned order, we decline jurisdiction under Article 227. Accordingly, we dismiss the petition. No order as to costs. ## **Sd/- PIUS C.KURIAKOSE, JUDGE** **sd/- A.V.RAMAKRISHNA PILLAI, JUDGE** ## **css/ true copy** **P.S.TO JUDGE**