Naresh Kumar Agarwal v. Moulshree Singhal

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 19[TH] DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944** **R.C.REV. NO. 73 OF 2022** **AGAINST THE JUDGMENT DATED 24.03.2022 IN R.C.A.NO.37 OF 2021 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-VI), ERNAKULAM AND THE ORDER DATED 26.08.2021 IN R.C.P.NO.9 OF 2014 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF), KOCHI** ## **REVISION PETITIONER:** ## **NARESH KUMAR AGARWAL** **AGED 59 YEARS, S/O.DWARAKA PRASAD, PROPRIETOR OF M/S GUPTA TRADING COMPANY, C.C.NO.7/50 AND 7/52, CHAKKAMADOM, JEW TOWN, MATTANCHERRY P.O., KOCHI - 682 002.** **BY ADVS. S.ABHILASH K.SIJU ANJANA KANNATH T.S.SREEKUTTY RENUKA VENU FATHIMA MOHAN** ## **RESPONDENT:** ## **MOULSHREE SINGHAL** **AGED 44 YEARS, W/O.VIKASH KUMAR SINGHAL, RESIDING AT NAKIPURIA SADAN, CC NO.8/2012, GUJARATHI ROAD, MATTANCHERRY P.O., KOCHI - 682 002.** **BY ADVS. ASIF K.MOHAMED ALI ASHIK K.MOHAMED ALI** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 10.08.2022, THE COURT ON 19.09.2022 DELIVERED THE FOLLOWING:** **2** R.C.Rev.No.73 of 2022 ## **O R D E R** ## Ajithkumar, J. The tenant-respondent in R.C.P.No.9 of 2014 on the file of the Rent Control Court (Munsiff), Kochi, is the revision petitioner. The respondent-landlady has filed the Rent Control Petition seeking eviction under Sections 11(2)(b), 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court as per order dated 26.08.2021 ordered eviction under Sections 11(2)(b) and 11(3) of the Act. However, the plea for eviction under 11(4)(iii) of the Act was declined. The petitioner preferred an appeal under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge-VI), Ernakulam. The appeal was dismissed. Hence, the petitioner has filed this Revision, invoking the jurisdiction of this Court under Section 20 of the Act. 2. On 20.05.2022, notice was directed to be served on the respondent. The respondent entered appearance through her learned counsel. **3** R.C.Rev.No.73 of 2022 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. R.C.P.No.9 of 2014 was filed by the respondent seeking eviction under Sections 11(2)(b), 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. It was allowed ex parte on 24.05.2016. The petitioner filed an appeal under Section 18(1)(b) of the Act as R.C.A.No.56 of 2016 before the Rent Control Appellate Authority (Additional District Judge-VIII), Ernakulam. That appeal was allowed as per Ext.P1 judgment dated 16.12.2017. A condition was imposed on the petitioner for restoring R.C.P.No.9 of 2014 to file that he should deposit admitted arrears of rent. That order was passed taking into account also the fact that the respondent filed an application under Section 12 of the Act. Accordingly, the petitioner deposited Rs.6,15,000/- on 12.04.2017 and Rs.55,000/- on 16.03.2018. 5. R.C.P.No.9 of 2014 was accordingly restored and tried by the Rent Control Court. The Rent Control Court considered the plea of the petitioner disputing the landlord- **4** R.C.Rev.No.73 of 2022 tenant relationship in the wake of a direction by this Court in that regard. 6. The case of the petitioner was that he had paid Rs.9,25,000/- towards sale consideration to Sri.C.R.Ramesh, from whom the petitioner took the premises on rent. The petition schedule premises comprises room Nos.CC 7/50 and 7/51, along with the vacant land on the backyard. Sri.C.R.Ramesh had sold the said premises to the respondent, but the petitioner alleged that the said sale was not a valid or bona fide one, and therefore, the respondent has no right to claim eviction of the petitioner from the petition schedule premises. Another ground raised in that regard was that although the respondent claimed to have purchased the property as per Ext.A1 sale deed dated 28.12.2006, a correction deed dated 13.03.2013 was executed, copy of which is Ext.A2. Only after execution of Ext.A2 document the respondent could claim right and title to the property and therefore he is not entitled to claim any rent for the period prior to 13.03.2013. 7. As per the order dated 24.06.2019, Ext.P4, the Rent **5** R.C.Rev.No.73 of 2022 Control Court found the denial of the landlord-tenant relationship by the petitioner bona fide. In the appeal challenging the said order, R.C.A.No.62 of 2019, the Appellate Authority reversed the order of the Rent Control Court. Ext.P5 is the judgment. Although Ext.P5 was challenged before this Court by filing R.C.Rev.No.10 of 2020, the petitioner was not successful. 8. Thereafter R.C.P.No.9 of 2014 was tried by the Rent Control Court and an order of eviction under Sections 11(2)(b) and 11(3) of the Act was passed. The petitioner took up the matter before the Appellate Authority by filing R.C.A.No.37 of 2021, but that appeal was dismissed. The petitioner therefore filed R.C.Rev.No.73 of 2022, which is being disposed of by this Court along with this Original Petition. R.C.Rev.No.73 of 2022 is dismissed, whereby the order of eviction under Sections 11(2)(b) and 11(3) of the Act is confirmed. In the light of the said findings, the questions remain are whether any rent is due and if so, an order of eviction on that ground is liable to be granted. The further question to be decided is whether the plea for eviction on the **6** R.C.Rev.No.73 of 2022 ground of bona fide need is liable to be allowed. 9. The respondent contended that rent from January 2007 at the rate of Rs.12,500/- has been in arrears. The petitioner has no case that he had paid rent during the said period. He has now zeroed in the contention that respondent cannot claim that part of the arrears of rent, which has been time barred. There is also a contention regarding the rate of rent, but there is no evidence in order to deviate from the concurrent finding of the courts below that the rent agreed to between the parties is Rs.12,500/- per month. 10. The Rent Control Court accepted the contention of the petitioner that rent for a period of three years prior to the date of filing of the petition alone was liable to be paid by the petitioner. The said view was reversed by the Appellate Authority by holding that as far as the consideration for eviction under Section 11(2)(b) of the Act is concerned, the claim cannot be equated to the claim for realisation of arrears of rent by filing a suit. In this regard, this Court in **Francis v. Jacob [1983 KLT 669]** held that as the landlord is not suing **7** R.C.Rev.No.73 of 2022 the tenant for realising the arrears of rent, and the question whether part of arrears is time barred or not does not arise under Section 11(2)(b) of the Act. On that reasoning, this Court rejected the contention that the tenant need only to pay arrears of rent not barred by the law of limitation in a proceedings under Section 11(2)(b) of the Act. We find no reason to deviate from the said view. Hence, we hold that the decision taken by the Appellate Authority cannot be said to be incorrect. 11. In the above respect, the learned counsel appearing for the petitioner contended that the respondent did not challenge the finding of the Rent Control Court that the petitioner has obligation to pay arrears of rent for a period of three years only by filing a cross objection and therefore the Appellate Authority did not have jurisdiction to reverse that finding. A similar contention was considered by a Full Bench of this Court in **Smitha and another v. V.Krishnan [2017 (1) KHC 81]** . The question considered was whether a cross-objection is required to be filed by the respondent, if he **8** R.C.Rev.No.73 of 2022 has to challenge an adverse finding in the impugned order or judgment while supporting the ultimate order of eviction under a particular ground. The Full Bench has held that,- “If a finding in respect of a particular ground for eviction is against the respondent in an appeal/revision, he could support the ultimate order of the court below on that ground, by even challenging the finding against him in the order/judgment of the court below. xx xx We are of the view that a party in a Rent Control Petition is not entitled to challenge the order/judgment of the court below against him on a distinct and separate ground of eviction, in an appeal or revision filed by the opposite party challenging the order/judgment against him on another ground of eviction. In other words, though the respondent in an appeal/revision can support the ultimate conclusion on a distinct ground by even opposing the finding in respect of that ground, he cannot challenge an order on a distinct and different ground which was decided against him by the court below, while opposing the appeal/revision filed by the opposite party. Order XLI Rule 22 or the principles thereunder can be invoked by the respondent in an appeal/revision only to support the ultimate conclusion in his favour granted by the lower authority in respect of a ground of eviction which is the subject matter of the Appeal/Revision.” 12. In the light of the said proposition of law, the **9** R.C.Rev.No.73 of 2022 respondent has every right to challenge the finding that the portion of the rent, which was barred by the law of limitation, is also liable to be paid by the tenant, if he has to avoid an order of eviction under Section 11(2)(b) of the Act, since the ultimate order is one of eviction on the ground of arrears of rent. In the facts and circumstances of this case, we are of the view that there is no reason to interfere with the concurrent view of the courts below to order eviction on the ground that the petitioner defaulted payment of rent. ## 13. The Appellate Authority observed in paragraph No.15 as follows:- “15. Total rent alone for the period from January 2007 to August 2021 at Rs.12500/- will come to Rs.22,00,000/- (12,500x176 months). Admittedly the respondent has deposited only Rs.6,15,000/- towards rent for the whole period, keeping the entire balance rent in arrears. Therefore, the balance arrears of rent upto August 2021 alone will come to Rs.15,85,000/(22,00,000-6,15,000) alone with the same interest @6% per annum and notice expense also is to be added. In the above circumstance the order of eviction passed u/s.11(2)(b) is also perfectly valid and it is liable to be sustained. Points 1 and 2 answered accordingly.” **10** R.C.Rev.No.73 of 2022 14. It may be noted that the obligation of a tenant to avoid eviction under Section 11(2)(b) of the Act is to pay the arrears of rent claimed in the notice along with interest and cost. Section 11(2)(c) of the Act clothes the tenant with the right to apply the Rent Control Court to vacate an order of eviction on deposit of arrears of rent within a period of one month or as the case may be such further period to vacate the order of eviction by depositing the arrears of rent demanded in the notice together with its interest and costs of the proceedings. Since the liability of the tenant under Section 11(2)(c) of the Act is to pay the arrears of rent demanded in the notice, a copy of which is Ext.A11, the aforesaid observations of the Appellate Authority is incorrect. No further discussion in the matter is required since the arrears of rent claimed in Ext.A11 is clear and further calculation in the matter is unwarranted. The order of eviction under Section 11(2)(b) stands confirmed, however with the modification regarding the arrears of rent for the purpose of Section 11(2) (c) of the Act as above. **11** R.C.Rev.No.73 of 2022 15. The respondent is claimed to be the Director of M/s Sunbeam Mercantile Ventures Pvt.Ltd. The said concern is engaged in the business of importing and selling food articles and beverages. The respondent claimed eviction of the petitioner from the petition schedule premises, which comprises two shop rooms along with the drying yard on the hindside, for it to be used as a storing and preservation space of such imported food articles and beverages. The respondent contended that she or her company has no other building, which can be used for that purpose. The respondent as PW1 deposed in court in detail regarding the need she had urged. The petitioner did not choose to deny even the need urged by the respondent. The petitioner did not advance any plea claiming the benefit of the first proviso or second proviso to Section 11(3) of the Act. In such circumstances, the oral testimony of PW1, which narrates in detail regarding the need for which eviction is sought, can well be believed. It necessarily follows that the respondent establishes that the need she had projected is bona fide. In the absence of any **12** R.C.Rev.No.73 of 2022 plea or proof, we find that the petitioner is not entitled to the benefit of either the first or second proviso to Section 11(3) of the Act. Therefore the petitioner is liable to be evicted from the premises under Section 11(3) of the Act and we find no reason to interfere with the finding of the Appellate Authority in this regard. The Rent Control Revision is bound to fail and accordingly we dismiss it. 16. At the time of pronouncement of this order, the learned counsel for the petitioner has made a request to afford three month's time for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting business. The learned counsel for the respondent is agreeable to grant the same. 17. Having considered all the aspects, we deem it appropriate to grant three months’ time to surrender vacant possession of the petition schedule premises, subject to the following conditions: - (i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court or the **13** R.C.Rev.No.73 of 2022 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 premises to the petitioner-landlord within three months from the date of this order and that, he shall not induct third parties into possession of the petition schedule premises and further he shall conduct any business in the petition schedule building only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; - (ii) The respondent-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 four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default; **14** ## R.C.Rev.No.73 of 2022 (iii) Needless to say, in the event of the respondent-tenant 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 building will stand cancelled automatically and the petitioner-landlord will be at liberty to proceed with the execution of the order of eviction. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr