N.P. Champakavalli @ Susila v. S. Suraj and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **& THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 1ST DAY OF OCTOBER 2013/9TH ASWINA, 1935** **RCRev..No. 195 of 2010 (E )** **----------------------------------------** **AGAINST THE ORDER/JUDGMENT IN RCA 16/2009 of D.C. & SESSIONS COURT,KOLLAM DATED 12-01-2010** **AGAINST THE ORDER/JUDGMENT IN OP 1/2009 of MUNSIFF COURT, PUNALUR DATED 02-02-2009** ## **REVISION PETITIONER(S)//RESPONDENT/PLAINTIFF:** **------------------------------------------------------------------------------** **1. N.P.CHAMPAKAVALLI @ SUSILA,** - **CHITTRALAYAM, KACHERI ROAD, PUNALUR.** - **CHITTRALAYAM, KACHERI ROAD, PUNALUR.** **BY ADVS.SRI.PRAVEEN K. JOY SMT.PRIYA R.KUMAR** ## **RESPONDENT(S)/APPELLANT IN RCA/PETITIONER/DEFENDANT:** **------------------------------------------------------------------------------------------** **S.SURAJ,NISHANTHA,THAZHAMEL MURI, ANCHAL VILLAGE, PATHANAMTHITTA, ANCHAL P.O.-691306.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 01-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** # **T.R. RAMACHANDRAN NAIR & B. KEMAL PASHA, JJ.** **--------------------------------------------------------** R.C.R. No.195 of 2010 **--------------------------------------------------------** Dated this the 1[st] day of October, 2013 ## **O R D E R** ## **Ramachandran Nair, J.** The landladies are the revision petitioners who are aggrieved by the judgment rendered by the Appellate Authority whereby an order passed under Section 12 of the B.R.C. Act was set aside. 2. Even though notice has been ordered and service is complete, there is no appearance for the respondent. 3. We have heard Advocate Sri. Praveen K. Joy, the learned counsel for the revision petitioner. At the out set the learned counsel submitted that the appeal itself was not maintainable since what was taken up RCR 195 of 2010 -:2:- before the Appellate Authority is the order passed in I.A.No.1736/08 refusing to review the order passed under Section 12 of the Act. It is further submitted that as far as the initial order passed under Section 12 of the Act is concerned, the only contention raised by the tenant was that he was entitled to adjust security deposit towards arrears of rent which cannot be allowed and therefore there was no irregularity in the order passed by the Rent Control Court. 4. In the order passed by the Rent Control Court refusing to review the initial order it was noticed that there were no grounds for review of the order in I.A.643/08. 5. In the petition filed by the landladies under Section 12 of the Act, rent is claimed from September, 2003 onwards and the monthly rate of rent is 1,000/-.₹ Mainly two contentions were raised by the tenant; first RCR 195 of 2010 -:3:- is that he had deposited rent up to February, 2005 in the earlier case namely RCP 3/04. It was also stated that the said amount was lying in court deposit. The second contention was that as the security amount of ₹80,000/- was lying with the landlord, it can be utilized towards discharge of future arrears. 6. The Rent Control Court while considering the matter concluded that as far as the deposit of rent up to September, 2005 is concerned, no evidence has been produced. It was also held that the adjustment sought for towards the security deposit cannot be entertained, without terminating the tenancy and the surrender of the premises. In that view of the matter the court directed that the tenant is obliged to deposit arrears of rent at the rate of 1000/- per month from₹ September, 2003. 7. While considering the above matter the RCR 195 of 2010 -:4:- Appellate Authority mainly relied on the plea raised by the tenant that he is entitled to adjust arrears of rent towards the security deposit. A reference to paragraph 11 of the judgment of the Appellate Authority shows that the Appellate Authority found fault with the Rent Control Court in conducting an enquiry as to whether the contention of the tenant is true or not and finally referring to the objection of the tenant that arrears of rent if any, should be adjusted from the security deposit, it is found that as the tenant is not admitting the arrears of rent in the petition under Section 12, an order should not have been passed. The matter is sent back for passing a fresh order. 8. As far as the issue of arrears of rent is concerned, it appears that there is no dispute by the tenant with regard to the rate of rent claimed. Claim is from September 2003. But, it was contended that RCR 195 of 2010 -:5:- rent was paid upto September, 2005 in the earlier RCP 3/2004 for which no supporting documents were produced. Details of such deposit are not forthcoming from the judgment of the Appellate Authority also. Therefore the finding regarding the said aspect by the Rent Control Court cannot be assailed. 9. With regard to the adjustment of security deposit also the learned counsel for the petitioner referred to the decision of this Court in **K.P.Kuruvila and Anr. v. Sainabha Saleh & others[2006 RCR 590 of 2005]** and submitted that this Court has taken the view that as far as proceedings under Section 12 is concerned, the question of adjustment may not be there, and hence the view taken by the Appellate Authority cannot be justifiable. In paragraph 13 of the above judgment this Court has held as follows: “There is yet another aspect of the matter. The petitioners had not produced RCR 195 of 2010 -:6:- the rent deed executed between them and the landlord. In the absence of any material on record to show that the tenants were entitled to adjust any amount from the rent payable to the landlord, they are not entitled to make such a claim. Of course, it will be open to the petitioners to raise their claim for adjustment at the time when the prayer for eviction under Section 11(2)(b) is being finally adjudicated by the Rent Control Court. In our view, the arrears of rent admitted by the tenants as envisaged in Section 12 will be the rent with interest for the entire period of default, provided there is no dispute with regard to the rate of rent and the period of dealt. Similarly, the tenants will not be entitled to make any deductions or adjustments from the arrears of rent at the stage when Section 12 is brought into play, particularly in the absence of any specific covenant in the lease agreement or if the landlord has not RCR 195 of 2010 -:7:- given written consent for such adjustment. This is because no enquiry is contemplated at this stage. Any claim for set off or will adjustment invariably involve disputed questions of fact. Such issues can be decided only when evidence is adduced by the parties.” We respectfully agree with the above view. Therefore, the orders passed by the Rent Control Court are perfectly justifiable, which are wrongly interfered with by the Appellate Authority. Hence, we set aside the judgment of the Appellate Authority and allow this rent control revision restoring the order passed by the Rent Control Court in I.A.643 of 2008. ## **Sd/- T.R. RAMACHANDRAN NAIR, JUDGE** ## **Sd/- B. KEMAL PASHA, JUDGE** ul/- [True copy] _P.S. to Judge_