High Court of KeralaDivision Bench2021-03-10Partially allowed; Extends an order staying fur...

Muthoot Finance Company Limited v. Ananthalakshmi (OP (RC) No.118 of 2020)

Case / Petition Number:OP (RC) No.118 of 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Hariprasad
Ziyad Rahman A.A.
Judgment Date: 2021-03-10
Court Decision / Holding: Direct the Rent Control Court not to disburse any amount to the second respondent henceforth, with the condition that the second respondent executes a bond before the Rent Control Court unconditionally undertaking to return Rs. 3,55,005, subject to the result of O.S No.26 of 2017. The observations do not affect the rights of the parties in O.S No.26 of 2017. The final decision modifies Ext.P12 order by restricting disbursement until the title/Will dispute is resolved, and preserves the ongoing partition suit.
Final Disposition: Partially allowed; Extends an order staying further disbursement of arrears with a bond to return Rs. 3,55,005 subject to the partition suit; Observations not to affect O.S 26/2017.

Parties to the Case

Appellants / Petitioners

Ananthalakshmi

Respondents

Muthoot Finance Company Limited
T.K. Mahadevan

Legal Representation & Advocates

Counsels for Petitioners

• G. Sreekumar (Chelur)

Counsels for Respondents

• Abdul Jaleel A
• M. A. Sulfia
• Dinny Thomas

Case Synopsis & Summary

This petition arises under the Kerala Buildings (Lease and Rent Control) Act challenging Ext.P12, an order passed by the Rent Control Court, Thodupuzha in I.A No.5 of 2020 in RCOP No.10 of 2019. The second respondent, claiming ownership, sought eviction of the tenant under Section 11(3) of the Act, and asserted title to the property through a Will dated 1998 executed by Harihara Iyyer. Ananthalakshmi, impleaded as the 2nd petitioner and 3rd party, contends the Will is not genuine and raises disputed ownership, while noting that an O.S. No.26 of 2017 filed by Harihara Iyyer’s heirs and partitions is pending in the Sub Court Thodupuzha. The Rent Control Court held that Sections 144 and 151 CPC do not apply, and thus concluded the landlord’s claim for rent/deposit was permissible to proceed. The petitioner contends that the court should have invoked Section 23(k) to review its own order in the interests of justice, not disburse the deposited arrears to the second respondent without addressing the Will/ownership dispute. The respondents submit that the original petition is not competent and should have been challenged under Section 18 of the Act, not by way of this petition. The High Court, after hearing, directs the Rent Control Court to refrain from disbursing further arrears to the second respondent, require a bond to return Rs.3,55,005 subject to the outcome of the partition suit, and clarifies that the observations will not affect O.S No.26 of 2017.

Provisions of Law Cited

Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965Sections 144 and 151 of the Civil Procedure CodeSection 23(k) of the Kerala Buildings (Lease and Rent Control) Act, 1965Section 18 of the Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that Ext.P12- Rent Control Court’s order disposes of arrears without adjudicating the underlying Will/ownership dispute and without considering the inapplicability of Sections 144 and 151 CPC to the proceedings. The order should be subject to review under Section 23(k) of the Act in the interests of justice, not disbursing arrears to the second respondent until title matters are resolved in O.S No.26 of 2017. The maintainability of the petition is urged against the contention that this is not an appealable order, and the petitioner asserts that a challenge under Section 18 of the Act would be inappropriate, but the remedy lies in proper adjudication of ownership/title issues rather than immediate disbursement of funds.

Contentions of Respondents

Respondents contend that the original petition is not maintainable, invoking Thomas John v. Kochammini Amma to argue non-maintainability under Section 18 of the Act and that the remedy lies in an appeal. They contend the Will’s genuineness and title issues are for separate adjudication in a suit (O.S No.26 of 2017) and not for the Rent Control Court’s eviction proceedings. They argue that Ext.P12 is not appealable and the order does not bear upon the eviction petition directly. They urge that the High Court should uphold the Rent Control Court’s order and deny any relief restricting disbursement of the arrears pending the partition suit.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Thomas John v. Kochammini Amma	(1991 (1) KLT 99)	Mentioned Only	Cited by respondents to argue non-maintainability and appeal route; the judgment does not adopt it as binding over-ruling principle.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942** **OP (RC).No.118 OF 2020** **AGAINST THE ORDER PASSED IN I.A NO.5 OF 2020 IN RCOP 10/2019 OF RENT CONTROL COURT, THODUPUZHA.** **PETITIONER/2ND PETITIONER/3RD PARTY WHO GOT IMPLEADED IN THE ORIGINAL PROCEEDINGS :** **ANANTHALAKSHMI, AGED 75, W/O.LATE HARIHARA IYYER, SREEKRISHNA NIVAS, THAZHATHUPARAKATTU MADOM, THODUPUZHA VILLAGE DESOM, THODUPUZHA P O, IDUKKI DISTRICT-685 584. BY ADV. SRI.G.SREEKUMAR (CHELUR).** **RESPONDENTS/IST PETITIONER AND RESPONDENT/ ORIGINAL RESPONDENT AND ORIGINAL PETITIONER :** **1 MUTHOOT FINANCE COMPANY LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR GEORGE ALAXANDER, S/O.M.GEORGE MUTHOOT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER A M I C MUTHOOT FINANCE LIMITED, PAREKATTU BUILDING, THODUPUZHA P O, IDUKKI DISTRICT - 685 584. 2 T.K.MAHADEVAN, AGED 76, S/O.KRISHNA IYYER, PAREKATTU MADATHIL HOUSE, THODUPUZHA VILLAGE DESOM, THODUPUZHA P O, IDUKKI DISTRICT - 685 584. R1 BY ADV. SRI.ABDUL JALEEL.A R1 BY ADV. SMT.M.A.SULFIA R2 BY ADV. SRI.DINNY THOMAS THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P (R.C) No.118 of 2020 2 ## A.HARIPRASAD & ZIYAD RAHMAN A.A., JJ. ------------------------------------- O.P (R.C) No.118 of 2020 ------------------------------------- Dated this the 10th day of March, 2021 J U D G M E N T ## A.Hariprasad, J, Heard the learned counsel for the petitioner and respondents 1 and 2. 2. Order impugned in this proceedings is Ext.P12 passed by the Rent Control Court, Thodupuzha on I.A No.5 of 2020 in RCOP No.10 of 2019. The second respondent filed a petition for eviction of the first respondent alleging Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 ( in short 'the Act'). In that proceedings, it is asserted by the second respondent that he is the owner of the building and he is therefore entitled to receive rent from the first respondent. According to the second respondent's case, the property originally belonged to his brother O.P (R.C) No.118 of 2020 3 T.K.Harihara Iyyer and by virtue of a registered Will executed by him in the year 1998, the petition schedule building and the land was gifted to him. It is his contention that he is the landlord in so far as the first respondent is concerned. In the proceedings, the petitioner, who is the second wife of deceased Harihara Iyyer, got herself impleaded contending that she is the owner of the building in dispute and the land upper tenant thereto. It is pointed out by the learned counsel on both sides that O.S No.26 of 2017 is pending before the Sub Court, Thodupuzha, in which the parties herein and the daughter of deceased Harihara Iyyer, are contesting. That suit is filed by the daughter of deceased Harihara Iyyer for partition of the assets left behind by him. In that suit, the petitioner alone was originally made a party. Thereafter, the second respondent got himself impleaded in the suit and set up a Will in his favour. That document is a disputed one. It is pointed out by the learned counsel for the petitioner that under the provisions of the Hindu Succession Act, which governs the parties herein, the second respondent O.P (R.C) No.118 of 2020 4 will not be a legal heir of deceased Harihara Iyyer. However, the second respondent's claim to the title of the property and building has to be established in that suit by proving that the Will allegedly executed by Harihara Iyyer in the year 1998 is a genuine document and he was having a sound state of mind at the time of its execution. Learned counsel for the second respondent pointed out that Harihara Iyyer survived nearly 19 years after execution of the Will and the disputed Will is a registered one. All these aspects will have to be considered in the suit to arrive at a correct conclusion regarding the genuineness of the Will. However, the Rent Control Court is not competent to decide that issue. 3. The impugned order happened to be passed in the context of the claim raised by the petitioner that the second respondent shall not be allowed to take away the rent deposited by the first respondent in the rent control proceedings. Ext.P12 order shows that the provisions under Sections O.P (R.C) No.118 of 2020 5 144 and 151 of C.P.C are not applicable to the proceedings and therefore the claim of the petitioner was denied. 4. Learned counsel for the petitioner submits that the court should not disburse the amount deposited by the first respondent as arrears of rent to the second respondent until it is established that the second respondent has any right over the property. Section 23 (k) of the Act confers a power to review its own order on the rent control court. According to the learned counsel, the Rent Control Court should have exercised that power in this case in the interest of justice. 5. Per contra, learned counsel for the second respondent relying on Thomas John v. Kochammini Amma (1991 (1) KLT 99) contended that the original petition is not competent and the petitioner should have filed an appeal under Section 18 of the Act challenging Ext.P12 order. In answer to this contention, learned counsel for the petitioner submitted that this is not an appealable order because the order impugned has no direct bearing on O.P (R.C) No.118 of 2020 6 the claim of eviction raised in the petition. Moreover, Section 18 of the Act normally applies to parties to the proceedings and the petitioner has no interest in the ultimate result of the proceedings. 6. Having regard to the facts and circumstances, we are of the view that the challenge raised against maintainability of the original petition is not prima facie sustainable. 7. Learned counsel for the second respondent submitted that hitherto the second respondent has received Rs.3,55,005/- deposited before the Rent Control Court by the first respondent as arrears of rent. It is also pointed out by the learned counsel for the second respondent that he has undergone a cardiac surgery and huge amounts had to be spent by him. 8. Having regard to the facts and circumstances brought out before us, we are satisfied that the second respondent may not be compelled to re-deposit the amounts already received by him. However, the Rent Control Court while passing Ext.P12 order did not consider the scope of the O.P (R.C) No.118 of 2020 7 dispute put up by the parties in respect of the Will propounded by the second respondent. Therefore, we hereby direct the Rent Control Court not to disburse any amount to the second respondent hereafter, which is deposited by the first respondent as arrears of rent. The second respondent shall execute a bond before the Rent Control Control unconditionally undertaking to return Rs.3,55,005/- subject to the result of the suit. We make it clear that none of the observations made herein will affect the contention of the parties in O.S No.26 of 2017 pending before the Sub Court, Thodupuzha. A.HARIPRASAD, JUDGE ZIYAD RAHMAN A.A., JUDGE amk O.P (R.C) No.118 of 2020 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXHIBIT P1** **A TRUE COPY OF THE RENT CONTROL PETITION FILED AS R C OP NO. 10 OF 19 BEFORE THE RENT CONTROL COURT, THODUPUZHA, DATED 14.1.19.** **EXHIBIT P2** **A TRUE COPY OF THE OBJECTION FILED BY THE TENANT, FIRST RESPONDENT HEREIN IN EXT P1 DATED 30.9.19** **EXHIBIT P3** **A TRUE COPY OF THE PLAINT IN O S NO.26 OF 17 ON THE FILE OF THE SUB COURT, THODUPUZHA DATED 20.8.17** **EXHIBIT P4 A TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE PETITIONER IN O S NO.26 OF 17 DATED 15.12.18.** **EXHIBIT P5 A TRUE COPY OF THE I A NO.7 OF 20 IN R C OP NO. 10 OF 19 FILED DATED 18.5.20** **EXHIBIT P6** **A TRUE COPY OF THE OBJECTION FILED TO EXT P5 BY THE SECOND RESPONDENT DATED 22.8.20** **EXHIBIT P7** **A TRUE COPY OF THE IA NO.1528 OF 19 IN R C OP NO.10 OF 19 FILED DATED 20.11.19.** **EXHIBIT P8 A TRUE COPY OF THE I A NO.5 OF 20 IN I A NO.1528 OF 19 IN R C OP NO.10 OF 19 FILED DATED 13.3.20** **EXHIBIT P9 A TRUE COPY OF THE OBJECTION FILED TO EXT P9 BY THE SECOND RESPONDENT HEREIN DATED 14.8.20** O.P (R.C) No.118 of 2020 9 **EXHIBIT P10 A TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR, IDUKKI DATED 24.12.19** **EXHIBIT P11 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE TENANT IN I A NO. 1528 OF 19 IN R C OP NO.10 OF 19 DATED 29.11.19.** **EXHIBIT P12 A TRUE COPY OF THE ORDER PASSED IN I A NO.5 OF 20 IN R C OP NO. 10 OF 19 FILED DATED 9.9.20 ON THE FILE OF THE RENT CONTROL COURT, THODUPUZHA** **RESPONDENTS' EXHIBITS : NIL.**