P. Sukumaran v. K.A. Hamza Haji

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 19TH DAY OF AUGUST 2014/28TH SRAVANA, 1936 RCRev..No. 220 of 2014 () -------------------------AGAINST THE JUDGMENT IN RCA 1/2013 OF RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT), ,KASARAGOD DATED 20-02-2014 AGAINST THE ORDER IN RCP 10/2012 of RENT CONTROLLER(MUNSIFF COURT), HOSDRUG DATED 29-01-2013 REVISION PETITIONER/RESPONDNET/RESPONDENT: --------------------------------------------------------------------------- P.SUKUMARAN, AGED 47 YEARS, S/O.KUNHIKANNAN, SHAHIBAZ QUARTERS, GUARDER VALAPPU KANHANGAD P.O., BALLA VILLAGE, HOSDURG TALUK - 671 318 BY ADV. SRI.A.ARUNKUMAR RESPONDENT/APPELLANT/PETITIONER: --------------------------------------------------------- K.A.HAMZA HAJI, AGED 54 YEARS, S/O.K.AHAMMED, R/AT KHAIRATH MANZIL, KOTTIKKULAM, P.O.BEKAL, PALLIKKARE II VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 19-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **“CR”** **K.T.SANKARAN & ANIL K.NARENDRAN, JJ. -------------------------------------------------R.C.R.No.220 OF 2014** **-------------------------------------------------DATED THIS THE 19TH DAY OF AUGUST, 2014** ## **ORDER** ## **ANIL K.NARENDRAN, J** . Revision petitioner is the tenant. The respondent-landlord filed R.C.P.No.10/2012 before the Rent Controller (Munsiff), Hosdurg, under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act') seeking eviction of the revision petitioner-tenant from the petition schedule building. 2. According to the landlord, the petition schedule building was let out to the tenant on a monthly rent of 2,000/- for a period₹ of 11 months, on 7.1.2011. The tenant defaulted payment of rent from 7.7.2011. The landlord bona fide requires the petition schedule building for own occupation, in order to start business in readymade textiles. The landlord caused to issue Exhibit A1 registered lawyer notice to which the tenant sent Exhibit A2 reply stating false allegations. Therefore, the Rent Control Petition was filed seeking an order of eviction under Sections 11(2)(b) and 11(3) of the Act. RCR.220/14 -2- 3. The tenant filed objections denying the allegation that there is arrears of rent in respect of the petition schedule building. According to the tenant, he had already paid the rent in respect of the petition schedule building. But, the landlord failed to issue any receipts for such payments. He had paid ₹4,000/- to the landlord towards deposit for which as well the landlord failed to issue any receipts. The tenant contended further that, the bona fide need put forward by the landlord is not genuine. 4. Though the landlord sought for eviction under Section 11(3) of the Act, a memo was filed before the Rent Control Court not pressing the ground for eviction under Section 11(3) of the Act. On the side of the landlord, Exhibits A1 and A2 were marked. The tenant was examined as RW1. 5. The Rent Control Court, by order dated 29.1.2013, dismissed the Rent Control Petition stating that the landlord failed to establish the ground for eviction under Section 11(2)(b) of the Act. Aggrieved by the said order, the landlord filed R.C.A.No.1/2013 before the Rent Control Appellate Authority (District Court), Kasaragod. The Appellate Authority, by judgment RCR.220/14 -3- dated 20.2.2014, allowed the said appeal setting aside the order passed by the Rent Control Court and granted an order of eviction under Section 11(2)(b) of the Act. It is aggrieved by the judgment of the Appellate Authority in R.C.A.No.1/2013, the revision petitioner-tenant is before us in this Rent Control Revision. 6. We heard the arguments of the learned counsel for the revision petitioner-tenant. The learned counsel contended that, the order of eviction granted by the Rent Control Appellate Authority is not supported by any cogent and convincing evidence adduced on the side of the landlord. Hence the order of eviction is liable to be interfered with in this revision. We have considered the submissions made at the Bar. 7. The case put forward by the landlord in the Rent Control petition and Exhibit A1 lawyer notice in order to seek an order of eviction under Section 11(2)(b) of the Act is that, the tenant kept the rent of the petition schedule building, at the rate of 2,000/- per month, in arrears from 7.7.2011 onwards.₹ Despite the receipt of Exhibit A1 lawyer notice, the tenant did not pay the arrears of rent. Hence the Rent Control Petition was filed RCR.220/14 -4- seeking an order of eviction. In the counter statement filed before the Rent Control Court as well as in Exhibit A2 reply notice, the tenant admitted the tenancy in respect of the petition schedule building for residential use and also the rate of monthly rent payable at 2,000/-. According to the tenant, he had paid₹ rent up to 29.2.2012 and the last payment was on 5.2.2012. Therefore, no arrears of rent is payable to the landlord. The tenant would further contend that, the landlord was in the habit of not issuing receipts on payment of rent. 8. Section 9 of the Act deals with the right of the tenant to obtain receipt for the amount paid to the landlord towards rent or advance. As per sub-section (2) of Section 9 of the Act, where a landlord refuses to accept, or evades the receipt of any rent lawfully payable to him by a tenant in respect of any building, the tenant may either remit the rent to the landlord by money order after deducting the money order commission and continue to remit any rent which may subsequently become due in respect of the building in the same manner until the landlord signifies by a written notice to the tenant his willingness to accept the rent or may by notice in writing, require the landlord to specify within RCR.220/14 -5- ten days from the date of receipt of the notice by him, a bank into which the rent may be deposited by the tenant to the credit of the landlord. 9. Going by Sub-section (4) of Section 9, if the landlord does not specify a bank as aforesaid, the tenant shall remit the rent to the landlord by money order, after deducting the money order commission and continue to remit any rent which may subsequently become due in respect of the building in the same manner until the landlord signifies by a written notice to the tenant his willingness to accept the rent or specifies a bank in which the rent shall be deposited in accordance with the provisions of Sub-section (2). Therefore, if the landlord refuses to issue receipt for payment of rent, the tenant can remit the rent by money order, after deducting the money order commission, or deposit the rent into a bank account specified by the landlord. The provisions contained in Section 9 of the Act is a protection to the tenant and it is for the tenant to make use of such protection in a case where the landlord refuses to issue receipt for the rent or advance paid by the tenant. 10. In **Bhaskaran Assan v. Ammukutty Amma (1992** RCR.220/14 -6- **(2) KLT 565)** this Court held that, “any prudent tenant would and should, resort to Section 9 of the Act in cases where the landlord refuses to issue receipt to him on his paying the rent due. If he is not prudent enough to resort to that course it will require very strong evidence on his side to substantiate a plea that he has paid the rent without obtaining receipts for the same.” In the case on hand, the case put forward by RW1 is that, the landlord was in the habit of not issuing receipts on payment of rent. If that be so, one would normally expect the tenant to take recourse to Section 9 of the Act. His failure to take recourse to Section 9 is a relevant circumstance in appreciating the ground for eviction made by the landlord under Section 11(2) of the Act. 11. As noticed by the Appellate Authority, the evidence of RW1 discloses that he is mostly a resident in tenanted premises. The premises, which is the subject matter in the Rent Control Petition, is the fourth in the series. From the other three tenanted premises, which preceded the present premises, he was evicted due to quarrel with the respective landlords. When the tenancy in respect of the petition schedule building and the rate RCR.220/14 -7- of rent are not in dispute, the burden is upon the tenant to prove the plea of discharge of rent set up by him. If the landlord was in the habit of not issuing receipts on payment of rent, the tenant could have chosen any one of the modes prescribed under Section 9 of the Act. On an appreciation of the evidence on record, the Appellate Authority rightly found that, in the absence of any voucher for payment of rent issued by the landlord the oral evidence adduced by the tenant as RW1 is insufficient to shift the burden to the landlord. 12. In **Vidhyadhar** v. **Manikrao and another (1999** **(3) SCC 573)** the Apex Court held that, “where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.” It was relying on the aforesaid judgment of the Apex Court, the Rent Control Court concluded that, the omission on the part of the landlord to appear as a witness and to state his own case on oath would be sufficient to hold that the case set up by the landlord is not correct. 13. In **Vidhyadhar's case (supra)** , the Apex Court was RCR.220/14 -8- dealing with a case where the first defendant in the suit contended that, the sale deed executed by the second defendant in favour of the plaintiff was fictitious and the whole transaction was a bogus transaction as only ₹500/- was paid as sale consideration to the second defendant. He further claimed that payment of ₹4500/- to the second defendant at his home before the registration of the deed was wholly incorrect. This plea was not supported by the first defendant as he did not enter the witness box. It was in such circumstances, the Apex Court held that, the non-examination of the first defendant, by itself, is enough to reject his claim that the transaction of sale between second defendant and the plaintiff was a bogus transaction. 14. But, in the case on hand, the tenancy in respect of the petition schedule building and the rate of rent are not in dispute. When a plea of discharge of rent is set up by the tenant, the burden is upon him to prove that plea of discharge and no adverse inference or a presumption under Section 114(g) of the Evidence Act, 1872, can be drawn against the landlord on his omission to appear as a witness and to state his own case on oath. On an appreciation of the facts of the case and evidence on RCR.220/14 -9- record, the Appellate Authority rightly reversed the finding of the Rent Control Court and granted an order of eviction under Section 11(2)(b) of the Act. 15. The Apex Court in **K.A. Anthappai v. C. Ahammed (1992 (3) SCC 277)** held that, though the scope of the revisional jurisdiction conferred under Section 20 of the Act is wider than that conferred under Section 115 of the Code of Civil Procedure, a revision under Section 20 of the Act cannot be equated with an appeal. The power conferred on the High Court under Section 20 of the Act is essentially a power of superintendence and despite the wide language employed, the High Court should not interfere with the findings of fact of the subordinate authority merely because it does not agree with the said findings. 16. On the basis of evidence on record, the Rent Control Appellate Authority concluded that the landlord has succeeded in making out a case for ordering eviction under Section 11(2)(b) of the Act. Such finding of the Appellate Authority cannot be said to be erroneous or perverse, warranting interference of this Court under Section 20 of the Act. We find absolutely no illegality, RCR.220/14 -10- irregularity or impropriety in the finding to that effect in the impugned judgment. In the result, the Rent Control Revision is dismissed. No order as to costs. Sd/- **K.T.SANKARAN** , **JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn