OP (RC) No.114 of 2021 (Akbar Ali v. Dr. Shahida Madathil and Dr. Nadheer Pallimooppan)

## **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 31[ST] DAY OF JANUARY 2022 / 11TH MAGHA, 1943** ## **OP (RC) NO. 114 OF 2021** **AGAINST THE ORDER DATED 13.10.2021 IN E.P.NO.322 OF 2019 IN R.C.P.NO.13 OF 2018 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), KANNUR** ## **PETITIONER:** ## **AKBAR ALI** **AGED 62 YEARS, S/O. HASSAN KUNHI, UPPALA VALAPP, AYIKKARA, DISTRICT HOSPITAL P.O., KANNUR-670 017.** **BY ADVS. K.R.AVINASH (KUNNATH) RAJ CAROLIN V. R.MAHESH VARMA PRAJIT RATNAKARAN** ## **RESPONDENTS:** **1 DR.SHAHIDA MADATHIL AGED 36 YEARS, DENTAL SURGEON, D/O. K.L.KHALID, W/O. DR. NADEER PALLIMOOPPAN, DARUL ABRAR, THAYATHERU P.O., CIVIL STATION, KANNUR-670 002.** **2 DR.NADEER PALLIMOOPPAN, AGED 43 YEARS, MEDICAL PRACTITIONER, S/O. K.P.UMMERKUTTY, NAHEERA VILLA, THAYATHERU, CIVIL STATION P.O., KANNUR-670 001.** **RESPONDENTS 1 & 2 ARE REPRESENTED THROUGH POWER OF ATTORNEY HOLDER, K.P.UMMERKUTTY, AGED 73 YEARS, S/O. KADIRI, RESIDING AT NAHEERA VILLA, THAYATHERU, CIVIL STATION P.O., KANNUR-670 002. BY ADV T.P.SAJID** **THIS O.P.(RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 20.01.2022, THE COURT ON 31.01.2022 DELIVERED THE FOLLOWING:** 2 O.P.(RC) No.114 of 2021 ## **JUDGMENT** Ajithkumar, J. Rent Control Petition No.13 of 2018 was filed by the respondents before the Rent Control Court (Principal Munsiff), Kannur, for eviction of the petitioner under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. It was settled in mediation as per Ext.P1 agreement. On the basis of that agreement, Ext.P2 order was passed by the Rent Control Court on the following terms: - '1. The respondent is directed to pay the petitioners the balance amount of Rs.19,250/- on or before 13.10.2018. 2. In case of default, respondent is directed to hand over the vacant possession of the petition schedule building to petitioners. 3. The respondent is directed to pay to the petitioner the rent of the building at Rs.1200/- from 01.08.2018 onwards. 4. Respondent is also directed to pay enhanced rent every year by adding 10% of the then rent. 5. Joint statement forms part of this order. 6. Both parties shall suffer their respective costs.' 3 O.P.(RC) No.114 of 2021 2. Alleging that the petitioner-tenant did not comply with condition No.1 in Ext.P2, the respondents filed Execution Petition as E.P.No.322 of 2019 in R.C.P.No.13 of 2018 before the Munsiff's Court, Kannur. The petitioner filed counter statement contending that he has paid rent upto March, 2019, for which the 1[st] respondent issued receipts, thereafter sent rent by money order, since rent tendered by the petitioner was refused by the respondents and in the absence of an order of eviction passed under the Act, the respondents have no right to file petition for execution. 3. The respondents did not adduce any evidence. The petitioner was examined as RW1 and Exts.R1 to R8 were marked. After considering that evidence and hearing both sides, the Munsiff Court found that the petitioner violated the first condition in Ext.P2 order and accordingly passed Ext.P6 order for delivery on 13.10.2021. The petitioner, seeking to set aside the said order, has filed this petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 4 O.P.(RC) No.114 of 2021 4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 5. The essential contention raised by the learned counsel for the petitioner is that Ext.P1, mediation agreement, although has been made an order of the court as per Ext.P2 dated 21.08.2018, it remains as an executory agreement alone. The learned counsel on emphasizing that the petitioner was allowed to continue in the petition schedule building and new terms regarding the rate of rent was mutually agreed upon as per Ext.P1, contends that the respondents cannot have the right of getting possession of the petition schedule building in execution of Ext.P2 order. It is contended that as long as a fresh order of eviction under Section 11 of the Act is obtained, the tenancy arrangement continues and petitioner is not liable to be evicted from the petition schedule building in execution of Ext.P2. 6. The first condition in Ext.P2 is that the petitioner has been obligated to pay Rs.19,250/- on or before 5 O.P.(RC) No.114 of 2021 13.10.2018 towards the arrears of rent. In the event of failure to comply with that condition, eviction of the petitioner would have to follow. Regarding payment of Rs.19,250/-, there has been dispute between the parties. The execution court as per Ext.P6 found that the petitioner did not succeed in proving that he paid the said amount on 02.08.2018 as he claimed. 7. The execution petition was filed by the respondents alleging that the petitioner did not make payment of the said amount of Rs.19,250/-. The petitioner filed a counter statement, a copy of which is Ext.P5, stating that the respondents received the entire rent upto March, 2019. Ext.P3 series would show that the 1[st] respondent has received monthly rent at the rate of Rs.1,200/- from 02.09.2018 till 05.03.2019. Of course, there is no document to show that the petitioner paid Rs.19,250/- on 02.08.2018 as he claimed. In the counter statement, Ext.P5, the petitioner did not specifically state that he had paid the said amount. Taking the said fact and also the oral testimony of RW1 into account, the execution court found that the evidence is insufficient to prove 6 O.P.(RC) No.114 of 2021 that the petitioner had paid Rs.19,250/- on 02.08.2018 or on any other date. Having considered the material on record, we find no reason to interfere with the said finding. 8. When the petitioner failed to make payment of Rs.19,250/- in terms of the conditions stipulated in Ext.P2 order, the same would work out as an order of eviction under Section 11(2)(b) of the Act. The obligation to pay the said amount was cast on the petitioner, since that was the amount of arrears of rent mutually agreed to be due. Clause (ii) in Ext.P2 says that in default of payment of the said amount, there shall be an order directing the petitioner to handover vacant possession of the petition schedule building to the respondents-landlord. The petitioner failed to make payment of the said amount being the arrears of rent and, therefore, the effect is that there is an order of eviction under Section 11(2)(b) of the Act. 9. When there is an order of eviction under Section 11(2)(b) of the Act, it is the statutory right of the tenant to make deposit of the arrears of rent and get the order vacated 7 ## O.P.(RC) No.114 of 2021 under the provisions of Section 11(2)(c) of the Act. The statutory period in Section 11(2)(c) obligates a tenant to make payment within one month from the date of the order, in order to get the order of eviction vacated. The condition in Ext.P2 was that the arrears of rent of Rs.19,250/- has to be paid on or before 13.10.2018. It has to be taken, therefore, that in order to get the order of eviction vacated, the petitioner should have paid or deposited the said amount within one month from 13.10.2018. 10. As regards the payment of Rs.19,250/- the parties were at dispute. After enquiry, the executing court found that the petitioner did not make payment of that amount on 02.08.2018 as he claimed, which we also confirmed. Now, the question is whether time for depositing the said amount can be extended by this Court invoking the provisions of Section 11(2)(c) of the Act. 11. The petitioner has no case that he has filed an application to get order of eviction under Section 11(2)(b) of the Act vacated. As a consequence of his failure to make 8 O.P.(RC) No.114 of 2021 payment of Rs.19,250/- in time, Ext.P2 order has matured into an order of eviction under Section 11(2)(b) of the Act. The petitioner therefore had to file an application to get the order of eviction vacated after making payment of the rent in arrears within a period of one month as stipulated in Section 11(2)(c) of the Act. Now the petitioner would contend that, as evidenced by Ext.P3 series, the rent for the subsequent period, namely, September, 2018 till March, 2019 was received by the respondents and the previous arrears of rent of Rs.19,250/- has been deposited in the last week in the execution court, and therefore, he has a right to continue as a statutory tenant. 12. This Court in **Kuniyil Abdulla v. Abdul Haris K. [2021 (6) KLT 763]** held that it is the obligation of the tenant to deposit the arrears of rent and submit a formal application before the court for getting the order of eviction under Section 11(2)(b) of the Act vacated within the stipulated time. However, If there is self working clause in the order of the Rent Control Court that in the event of deposit of 9 O.P.(RC) No.114 of 2021 the arrears of rent within the stipulated time, the order of eviction would stand vacated, the tenant may be exempted from filing a formal application; it would be enough if he deposits/pays arrears of rent in time. In this case, neither of such acts happened. Therefore, there is no bar for a landlord to execute Ext.P2 order. 13. In **Kuniyil Abdulla** (supra) this Court also held that the tenant should deposit the arrears of rent within the stipulated period, failing which the order of eviction under Section 11(2)(b) of the Act would become absolute. Any payment of rent either arrears or for the current period by the tenant after becoming the order of eviction absolute, will not have the effect of vacation of the order of eviction. The right of eviction would not be waived by such subsequent payment. Therefore, the contention of the petitioner that as the respondents received rent during the period from September, 2018 to March, 2019 and also the arrears of rent, the right of the respondents to get the order of eviction executed has been waived, is untenable. 10 ## O.P.(RC) No.114 of 2021 14. In view of what are stated above, the order of the execution court for delivery of the petition schedule building, Ext.P6 cannot be said to be perverse or illegal. This Court in exercise of the jurisdiction under Article 227 of the Constitution of India cannot interfere with Ext.P6 order. Hence this petition fails. It is dismissed. No costs. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 11 O.P.(RC) No.114 of 2021 ## **APPENDIX OF OP (RC) 114/2021** ## **PETITIONER EXHIBITS** - **Exhibit P1 TRUE COPY OF THE MEDIATION REPORT IN RCP 13/2018 DATED 13.8.2018 BEFORE THE MUNSIFF COURT, KANNUR.** - **Exhibit P2 TRUE COPY OF THE ORDER IN RCP 13/2018 DATED 21.8.2018 PASSED BY THE RENT CONTROL COURT (PRINCIPAL MUNSIFF COURT).** - **Exhibit P3 TRUE COPY OF THE RECEIPT DATED 2.9.2018 ISSUED BY THE IST RESPONDENT.** - **Exhibit P3(A) TRUE COPY OF THE RECEIPT ISSUED BY THE IST RESPONDENT DATED 2.10.2018.** - **Exhibit P3(B) TRUE COPY OF THE RECEIPT ISSUED BY THE IST RESPONDENT DATED 2.11.2018.** - **Exhibit P3(C) TRUE COPY OF THE RECEIPT ISSUED BY THE IST RESPONDENT DATED 1.12.2018.** - **Exhibit P3(D) TRUE COPY OF THE RECEIPT ISSUED BY THE IST RESPONDENT DATED 1.1.2019.** - **Exhibit P3(E) TRUE COPY OF THE RECEIPT ISSUED BY THE IST RESPONDENT DATED 5.2.2019.** - **Exhibit P3(F) TRUE COPY OF THE RECEIPT ISSUED BY THE IST RESPONDENT DATED 5.3.2019.** - **Exhibit P3(G) TRUE COPY OF POSTAL RECEIPT.** - **Exhibit P4 TRUE COPY OF THE SUMMONS IN EP 322/2019 IN RCP 13/2018 DATED 26.9.2019.** - **Exhibit P5 TRUE COPY OF THE COUNTER STATEMENT DATED 26.2.2020 IN EP 322/2019.** 12 O.P.(RC) No.114 of 2021 **Exhibit P6** **TRUE COPY OF THE ORDER IN EP 322/2019 IN RCP 13/2018 DATED 13.10.2021 OF THE PRINCIPAL MUNSIFF COURT, KANNUR.**