P. M. Ismail v. Abbas and Abdul Salim Salim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY ,THE 25TH DAY OF JANUARY 2019 / 5TH MAGHA, 1940** **OP (RC).No. 10 of 2018** **AGAINST THE ORDER/JUDGMENT IN RCP 28/1997 of MUNSIFF COURT,ALUVA DATED 24-11-2017** ## **PETITIONER/S:** **P.M. ISMAIL S/O.MAMMU,AGED 71 YEARS,M/S.BOMBAY HARDWARES,XIII/9,ALUVA MUNICIPALITY,PALACE ROAD,ALUVA TALUK,PIN-683101.** **BY ADVS. SRI.T.KRISHNANUNNI (SR.) SRI.KURIAN ANTONY EDASSERY SRI.SAJU.S.A SRI.VINOD RAVINDRANATH** ## **RESPONDENT/S:** **1 ABBAS AGED 54 YEARS,S/O HYDROS,THEMBADATH HOUSE,TASS ROAD,ALUVA KARA,ALUVA WEST VILLAGE,ALUVA TALUK,NOW RESIDING AT THEMBADATH HOUSE,MANA LINE,THOTTAKKATTUKARA,ALUVA,PIN-683108.** **2 ABDUL SALIM SALIM S/O.HYDROSE,TASS ROAD,ALUVA KARA,ALULVA WEST VILLAGE,ALUVA TALUK,NOW RESIDING AT THEMBADATH HOUSE,MANA LINE,THOTTAKKATTUKARA,ALUVA,PIN-683108.** **BY ADVS. SRI.K.K.NASSEER (ALUVA) SHRI. PRIJU K.PONNAPPAN SHRI. SUDHEER K.K. SRI.K.A.ANEEZ FAHID SRI.K.M.JAMALUDHEEN(VATTOLAKKUDY)** **ADV.K K NASSEER--FOR THE RESPONDENTS .** **THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 25.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OP (RC).No. 10 of 2018** 2 ## **JUDGMENT** ## **K. Harilal, J** The petitioner herein is the respondent/tenant in R.C.P.No. 28 of 1997 on the files of the Rent Control Court, Aluva. The above Rent Control Petition was filed under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). The Rent Control Court dismissed the Rent Control Petition. The said order was challenged before the Rent Control Appellate Authority by the land lord by filing R.C.A.No. 13 of 2001. The Appellate Authority allowed the appeal granting eviction under Section 11(3) of the Act and denial of eviction under Section 11(2)(b) of the Act was confirmed. The petitioner challenged the above order by filing C.R.P No.447 of 2003 before this Court. This Court allowed the Revision **OP (RC).No. 10 of 2018** 3 Petition and remitted the case back to the Rent Control Court for fresh consideration and disposal. After remand, the Rent Control Petition is pending before that Court for fresh disposal. 2. In the meantime, the petitioner filed R.C.P.No. 2 of 2011 before the Rent Control Court, under Section 5(1) of the Act, for fixation of fair rent. The Rent Control Court disposed of the Rent Control Petition fixing the fair rent at Rs.15,000/- per month. That order was challenged before the Rent Control Appellate Authority by filing R.C.A.No.25 of 2012. The Appellate Authority modified the rent and reduced it to Rs.12,500/- per month. The said order was challenged by the petitioner before this Court by filing R.C.R.No. 150 of 2017. This court dismissed the above Revision Petition by judgment dated 14.06.2017. 3. According to the petitioner, in the meantime **OP (RC).No. 10 of 2018** 4 the Supreme Court passed the judgment reported in **Mohammad Ahmad and Others v. Atma Ram Chauhan [(2011) 7 SCC 755]** wherein it was held that once rent has been re-fixed by the Rent Control Court, the tenant gets immunity from eviction for a period of five years. On the basis of the said judgment, the petitioner filed I.A.No.1544/2017 in R.C.P.No.28 of 1997, praying for an order dismissing R.C.P.No.28 of 1997. After considering the objections raised by the respondent herein, the Rent Control Court dismissed the said I.A by Exhibit-P6 on a finding that the proposition laid down in the said decision is not applicable to the petitioner’s case. The legality and correctness of the said finding are challenged in this original petition filed under Article 227 of the Constitution. 4. We have heard the learned counsel for the **OP (RC).No. 10 of 2018** 5 petitioner as well as the respondent. 5. The sole question that arises for consideration is whether there is illegality or impropriety in the finding that the decision reported in **Mohammad Ahmad and Others v. Atma Ram Chauhan [(2011) 7 SCC 755]** is not applicable to the instant case. Going by the decision in **Mohammad Ahmad and Others v. Atma Ram Chauhan [(2011) 7 SCC 755]** , we find that in this decision the Supreme Court has held that if present and prevalent market rent assessed and fixed between the parties is paid by the tenant, then the land lord shall not be entitled to bring any action for his eviction against such a tenant at least for a period of five years. Thus for a period of five years, the tenant shall enjoy immunity from being evicted from the premises. 6. Bearing the above proposition in mind coming **OP (RC).No. 10 of 2018** 6 to the instant case, we find that in the instant case the Rent Control Petition seeking fixation of fair rent was filed as R.C.P. No. 2/2011, under Section 5 of the Rent Control Act in the year 2011. This petition was disposed of on 31.10.2012, by fixing the fair rent as Rs.15,000/per month. The Rent Control Petition seeking eviction was filed in the year 1997 as R.C.P.No. 28 of 1997. Though the R.C.P was filed in the year 1997, the Rent Control Petition is still pending for disposal, after the chequered history of appeal and revision, which came up to this Court. Thus, we find that as rightly observed by the Rent Control Court, in a case where the Rent Control Petition seeking eviction was originally filed prior to the Rent Control Petition seeking fixation of fair rent, the immunity from eviction laid down in **Mohammad Ahamad (Supra)** cannot be applied. It is needless to say that the immunity from eviction laid **OP (RC).No. 10 of 2018** 7 down in the aforesaid decision can be applied to the Rent Control Petition filed after the fixation of fair rent by the agreement between the parties or through the process of the Rent Control Court. We do not find any illegality or impropriety in Exhibit-P6 order. Hence, this O.P.(RC) is dismissed. Sd/- **K.HARILAL JUDGE** **Sd/-** **R. NARAYANA PISHARADI JUDGE** Dxy **OP (RC).No. 10 of 2018** 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT OF THIS HON'BE COURT IN C.R.P.NO.447/2003 DATED 23.11.2010** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT OF THE RENT CONTROL COURT,ALUVA IN R.C.P.NO.2/2011 DATED 31.10.2012** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT OF RENT CONTROL APPELLATE AUTHORITY,NORTH PARAVUR IN R.C.A.NO.25/2012 DATED 17.11.2016** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 14.06.2017 IN R.C.R.NO.150/2017** **EXHIBIT P5** **TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF I.A.NO.1544/2017 IN R.C.P.NO.28/1997 BEFORE RENT CONTROL COURT,ALUVA DATED 20.09.2017 AND 1544/17** **EXHIBIT P6** **TRUE COPY OF ORDER DATED 24.11.2017 IN I.A.NO.1544/2017 IN R.C.P.NO.28/1997 OF THE RENT CONTROL COURT,ALUVA.**