# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
# **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR**
**&**
**THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. WEDNESDAY, THE 5[TH] DAY OF JULY 2023 / 14TH ASHADHA, 1945 OP (RC) NO. 97 OF 2023**
**(AGAISNT THE ORDER IN IA 3/2022 IN RCP 11/2022 OF THE THIRD**
**ADDITIONAL MUNSIFF & RENT CONTROLLER, ERNAKULAM**
## **PETITIONER/RESPONDENT:**
ISAC, AGED 54 YEARS S/O JOHN, 27/224, KOLATH HOUSE, K. P. VALLON ROAD, KADAVANTHRA, KOCHI, PIN - 682020 BY ADV MANU ROY
## **RESPONDENT/PETITIONER:**
N. JAYAKRISHNAN, AGED 63, S/O NARAYANA SWAMY, 8H, NJK SIVAM, 8TH FLOOR, LAYAM ROAD, KOCHI - 682011 BY ADVS. A.BALAGOPALAN M.S.IMTHIYAZ AHAMMED M.N.MANMADAN A.RAJAGOPALAN P.SEENA
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 05.07.2023, ALONG WITH OP (RC).98/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(RC) Nos.97 & 98 of 2023
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# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR**
**&**
**THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. WEDNESDAY, THE 5[TH] DAY OF JULY 2023 / 14TH ASHADHA, 1945 OP (RC) NO. 98 OF 2023**
**(AGAISNT THE ORDER IN IA 3/2022 IN RCP 10/2022 OF THE THIRD ADDITIONAL MUNSIFF & RENT CONTROLLER, ERNAKULAM**
## **PETITIONER/RESPONDENT:**
ISAC, AGED 54 YEARS S/O JOHN, 27/224, KOLATH HOUSE, K. P. VALLON ROAD, KADAVANTHRA, KOCHI, PIN - 682020 BY ADV MANU ROY
## **RESPONDENT/PETITIONER:**
ANNAPOORNI JAYAKRISHNAN, AGED 53 YEARS S/O N. JAYAKRISHNAN, 8H, NJK SIVAM, 8TH FLOOR, LAYAM ROAD, KOCHI, PIN - 682011 BY ADVS. A.BALAGOPALAN M.N.MANMADAN M.S.IMTHIYAZ AHAMMED P.SEENA
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 05.07.2023, ALONG WITH OP (RC).97/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(RC) Nos.97 & 98 of 2023
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## A.K.JAYASANKARAN NAMBIAR,
## &
MOHAMMED NIAS C.P., JJ
..............................................................
## O.P(RC) Nos.97 and 98 of 2023
.............................................................
Dated this the 5[th] day of July, 2023
## JUDGMENT
## Mohammed Nias C.P., J.
The above original petitions are preferred by the tenant in RCP 10/22 and RCP 11/22 on the files of the III Additional Munsiff and Rent Controller, Ernakulam.
2. RCP No.10/2022 was filed by the landlord/respondent herein under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (for short, 'Act') stating that the building in question was let out to the tenant, as per an agreement dated 4.4.2018 fixing a monthly rent of Rs.20,000/-. Alleging that the tenant had committed default from October 2019 onwards and that a total amount of Rs.6,31,674/- is due with interest at the rate of 6% per annum, the application was filed for eviction.
3. RCP No.11/2022 was filed stating that the building was let out to the tenant as per an agreement dated 20.11.2018 for a monthly rent of
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Rs.50,000/- with a provision for renewal of the lease agreement with an annual increase of 5% till 2023. Alleging that the rent is in default from October 2019 and that a total amount of Rs.14, 15,399/- is due from the tenant, the petition for eviction was filed under Section 11(2)(b). The tenants had filed objections stating that they had spent more than Rs.21 lakhs for furnishing the shop rooms to suit the ISO certification standards for starting a medical shop and that as per the order in W.P(C) No.19238/2019, a stay was granted by this Court interdicting all commercial activities in the scheduled building and it was suppressing all these facts that the building was let out. It is also alleged that the construction was unauthorised and therefore, the tenant was unable to get the licence for running the medical shop. Since the tenant could not occupy the scheduled building even for a day, it was contended that the landlord was not entitled to collect any rent.
4. In the rent control proceedings, the landlord filed a petition as I.A.No.3/2022 under Section 12 of the Act for a direction to the tenant to pay the admitted arrears of rent. The tenant has filed a counter affidavit opposing the prayer in IA. 3/2022 on almost identical lines as the counter filed to the rent control petition. The tenant had also filed an application as I.A.No.4/2022 seeking permission to cross-examine the landlord. The landlord had filed a counter to the said application. The grievance of the original petitioner is that without considering IA.4/2022 filed in IA. 3/2022, by Ext.P7 order, Section 12 applications in both cases were
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allowed by the Rent Controller. It is challenging the said orders these original petitions are filed.
5. We have heard Sri. Manu Roy, the learned counsel for the original petitioner/tenant, and Sri.A. Balagopalan, the learned counsel for the respondent/landlord.
6. Having heard the learned counsel for the parties and perusing the impugned orders along with the available records, we do not find any reason to interfere with the impugned orders. Though the tenant had filed RCA No.3/2023 against the order in RCP No.10/2022 and RCA No.6/2023 against the order in RCP No.11/2022, both of them were dismissed, stating that the order passed under Section 12(1) of the Act is only a temporary order and that no appeal will lie against the said order, as the tenant can challenge the legality of the order under Section 12(1) in case he is challenging the order to be passed under Section 12(3). The Rent Controller found that the first limb of Section 12 stands for pre-litigation arrears of rent. But, the second limb, the expression “admitted arrears,” is absent as the second part deals with the payment of subsequent monthly rent, which may become due after the filing of the rent control petition. The tenant in the instant case had stated that he had paid rent up to September 2019, and as it was on the rent fixed in the document, the Rent Controller found that the said amount was treated as the admitted amount.
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7. We do not find anything illegal in the trial court taking such a view, more so in the light of the judgment of this Court in Gopala Panicker Baiju v. Mallika [2018 (5) KHC 95] . The argument of the tenant/petitioner is that he had spent more than Rs.21 lakhs for furnishing the building, which the landlord knew was an illegal construction. Further, he was interdicted from carrying on any commercial activity on account of the stay granted by this Court. According to the learned counsel, in such circumstances, the landlord cannot demand the rent, and there is no liability on the part of the tenant to pay the same. We cannot accept this contention. It is not disputed that an agreement was entered into with fixing a monthly rent, and that has to be taken as the admitted rent within the meaning of Section 12 of the Act. There is no case for the tenant that the rent as fixed has been paid. In such circumstances, the order passed by the Rent Controller under Section 12 calls for no interference.
8. Regarding the second contention that his application for permission to examine the landlord was not considered before passing orders under Section 12(1), we hold that the same was not warranted at the stage of Section 12. We find no fault in the Rent Controller not allowing the said application before passing orders under Section 12(1) of the Act. As soon as the tenant occupies the premises, he is liable to pay the fixed monthly rent. If it is his case that he had spent the amount and had suffered a loss, it is open to him to institute appropriate proceedings to recover the same. But the same cannot be a defence for not paying the
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rent due to the landlord as long as he is occupying the premises.
We find nothing wrong in Ext.P7 order passed in both cases. The original petitions fail and are accordingly dismissed.
Sd/-
## A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
MOHAMMED NIAS C.P., JUDGE
okb/
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## **APPENDIX OF OP (RC) 98/2023**
## PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF PETITION FILED AS R.C.P NO: 10/22 Exhibit P2 TRUE COPY OF THE OBJECTION IN R.C.010/2022 Exhibit P3 TRUE COPY OF THE PETITION FILED AS I.A NO: 3/22 Exhibit P4 TRUE COPY OF COUNTER AFFIDAVIT FILED IN I.A. NO: 3/22 Exhibit P5 TRUE COPY THE PETITION FILED AS I.A NO: 4/2022 Exhibit P6 TRUE COPY OF COUNTER AFFIDAVIT FILED IN I.A NO: 4/22 Exhibit P7 TRUE COPY OF ORDER IN I.A 3/2022 DATED 23-12-22 Exhibit P8 TRUE COPY OF ORDER IN R.C.A NO. 3/2023 DATED 10/04/2023
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## **APPENDIX OF OP (RC) 97/2023**
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF PETITION FILED AS R.C.P NO: 11/22 DATED 13.01.2022 Exhibit P2 TRUE COPY OF THE OBJECTION IN R.C.P 11/2022 DATED 11.08.2021 Exhibit P3 TRUE COPY OF THE PETITION FILED AS I.A NO: 3/22 DATED 16.08.2022 Exhibit P4 TRUE COPY OF COUNTER AFFIDAVIT FILED IN I.A. NO: 3/22 DATED 24.08.2022 Exhibit P5 TRUE COPY THE PETITION FILED AS I.A NO: 4/2022 DATED 28.11.2022 Exhibit P6 TRUE COPY OF COUNTER AFFIDAVIT FILED IN I.A NO: 4/22 DATED 21.12.2022 Exhibit P7 TRUE COPY OF ORDER IN I.A3/2022 DATED 23-12-22 Exhibit P8 TRUE COPY OF ORDER IN R.C.A NO. 6/2023 DATED 10.04.2023
