Paul Varghese @ Shibi Varghese v. Dr. John S. Kurian

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN THURSDAY, THE 31ST DAY OF MARCH 2016/11TH CHAITHRA, 1938 OP (RC).No. 11 of 2016 (O) --------------------------- AGAINST THE ORDER/JUDGMENT IN E.P.NO.142/2015 IN RCOP 30/2013 of PRL.M.C., KOTTAYAM DATED PETITIONER(S)/JUDGMENT DEBTOR: ----------------------------- PAUL VARGHESE @ SHIBI VARGHESE, S/O.K.J. VARGHESE, KURISINKAL HOUSE, COLLECTORATE P.O., KOTTAYAM -686 002. BY ADVS.SRI.M.V.THAMBAN SRI.R.REJI RESPONDENT(S)/DECREE HOLDER: ---------------------------- DR.JOHN S. KURIAN S/O. LATE C. JOHN KURIAN, KUNNANKARA HOUSE, CHINGAVANAM P.O., NATTAKOM VILLAGE, KOTTAYAM - 686 531. R1 BY ADV. SRI.BECHU KURIAN THOMAS (SR.) R1 BY ADV. SRI.S.SREEDEV THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 3103-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (RC).No. 11 of 2016 (O) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- P1-TRUE COPY OF THE EXECUTION PETITION AS E.P. 142/2015 FILED BY THE RESPONDENT P2-TRUE COPY OF THE OBJECTION DATED 21/12/2015 ON THE FILES OF THE HONOURABLE RENT CONTROL COURT, KOTTAYAM. P3-TRUE COPY OF THE ORDER DATED 30/06/2014 IN R.C.P 30/2013 P4-TRUE COPY OF THE R.C.O.P 72/2014 ON THE FILES OF THE HONOURALE RENT CONTROL COURT, KOTTAYAM P5-TRUE COPY OF THE RECEIPT DATED 06/08/20124 ISSUED BY THE ICICI BANK P6-TRUE COPY OF THE RENT RECEIPT DATED 30/08/2014 P6(A)-TRUE COPY OF THE RENT RECEIPT DATED 30/09/2014 P6(B)-TRUE COPY OF THE RENT RECEIPT DATED 08/10/2014 P6(C)-TRUE COPY OF THE RENT RECEIPT DATED 01/11/2014 P6(D)-TRUE COPY OF THE RENT RECEIPT DATED 29/11/2014 P6(E)-TRUE COPY OF THE RENT RECEIPT DATED 26/12/2014 P6(F)-TRUE COPY OF THE RENT RECEIPT DATED 31/01/2014 P6(G)-TRUE COPY OF THE RENT RECEIPT DATED 27/02/2015 P6(H)-TRUE COPY OF THE RENT RECEIPT DATED 13/03/2015 P6(I)-TRUE COPY OF THE RENT RECEIPT DATED 13/04/2014 P6(J)-TRUE COPY OF THE RENT RECEIPT DATED 30/05/2015 P6(K)-TRUE COPY OF THE RENT RECEIPT DATED 29/06/2015 P6(L)-TRUE COPY OF THE RENT RECEIPT DATED 31/07/2015 P6(M)-TRUE COPY OF THE RENT RECEIPT DATED 31/08/2015 P6(N)-TRUE COPY OF THE RENT RECEIPT DATED 30/09/2015 P6(O)-TRUE COPY OF THE RENT RECEIPT DATED 30/10/2015 P6(P)-TRUE COPY OF THE RENT RECEIPT DATED 30/11/2015 P6(Q)-TRUE COPY OF THE RENT RECEIPT DATED 30/12/2015 EXHIBIT-P7-TRUE COPY OF THE ORDER DATED 14/01/2016 IN E.A 16/2016 IN E.P. 142/2015 OF THE HONOURABLE PRINCIPAL RENT CONTROL COURT, KOTTAYAM EXHIBIT-P8-TRUE COPY OF THE I.A 193/2016 IN R.C.P. 130/2013 IN THE FILES OF THE HONOURABLE PRINCIPAL RENT CONTROL COURT, KOTTAYAM EXHIBIT-P9-TRUE COPY OF THE I.A. 343/2016 IN R.C.P. 130/2013 IN THE FILES OF THE HONOURABLE PRINCIPAL RENT CONTROL COURT, KOTTAYAM. RESPONDENT(S)' EXHIBITS ----------------------- NIL // TRUE COPY // P.S. TO JUDGE **“C.R.”** ## **P.N. Ravindran & K. Ramakrishnan, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - O.P.(RC) No.11 of 2016 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 31[st] March, 2016** ## **JUDGMENT** ## **P.N. Ravindran, J.** The petitioner is the tenant in R.C.O.P.No.30 of 2013 on the file of the Rent Control Court, Kottayam, a petition filed by the respondent/landlord for an order of eviction under section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as 'the Act' for short. After considering the rival contentions the rent control court held that the tenant has kept the rent in arrears. Consequently, Ext.P3 order of eviction under section 11(2)(b) of the Act was passed on 30.6.2014 directing the tenant to put the landlord in possession of the petition schedule building. The rent control court however directed that the said order of eviction shall not be executed before the expiry of the period of one month from the date of the order if the tenant deposits the arrears of rent quantified and fixed by the rent control court as Rs.30,940/-, with interest at the rate of 6% per annum calculated from the respective dates of default till the date of deposit, as also the costs of the proceedings. 2. It is not in dispute that after the order of eviction was passed the tenant had on 6.8.2014 deposited the sum of Rs.34,000/- in the OP(RC) 11/2016 2 bank account maintained by the landlord with ICICI Bank Ltd., Kottayam. It is also not in dispute that the tenant was depositing rent for the succeeding months as well in the bank account of the landlord. The landlord had, after Ext.P3 order of eviction was passed, filed R.C.O.P.No.72 of 2014 (Ext.P4) before the Rent Control Court, Kottayam praying for an order of eviction under section 11(2)(b) of the Act on the averment that the tenant has again kept the rent in arrears after Ext.P3 order of eviction was passed. He had in Ext.P4 rent control petition averred that the tenant has paid the arrears of rent payable as per Ext.P3 order of eviction. He thereafter moved the Court of the Munsiff of Kottayam by filing E.P.No.142 of 2015 seeking execution of the order of eviction passed by the rent control court. In that execution petition he had averred that the judgment debtor has neither deposited the arrears of rent as stipulated in the order of eviction nor surrendered vacant possession of the petition schedule building even after the expiry of the period of one month. 3. Upon receipt of notice in the execution petition, the tenant entered appearance and filed Ext.P2 objections wherein he contended that he has deposited the sum of Rs.34,000/- in the bank account of the landlord on 6.8.2014. He further averred that in R.C.O.P.No.72 of 2014 which was filed after Ext.P3 order of eviction was passed, the OP(RC) 11/2016 3 landlord has admitted that the tenant had paid rent upto and inclusive of September, 2013. He had also averred that rent upto and inclusive of November, 2015 has been paid and therefore no amount is due towards arrears of rent. The execution court after considering the rival contentions passed an order directing delivery of the petition schedule building. The tenant thereupon filed E.A.No.16 of 2016 in E.P.No.142 of 2015 in R.C.O.P.No.30 of 2013 to condone the delay of 7 days in depositing the arrears of rent. The execution court dismissed the application by Ext.P7 order passed on 14.1.2016 on the ground that the execution court cannot grant the relief prayed for in the application and that such a relief can be granted only by the rent control court. 4. The tenant thereupon filed I.A.Nos.193 and 343 of 2016 in R.C.O.P.No.30 of 2013 (Exts.P8 and P9 in the instant original petition) wherein he prayed for enlargement of time to deposit the arrears of rent by 7 days, i.e. till 6.8.2014 and to condone the delay of one year, five months and nine days in filing the application for enlargement of time. The aforesaid applications were filed in the third week of January, 2016. The instant original petition was thereafter filed on 3.2.2016 praying for a declaration that Ext.P1 execution petition (E.P.No.142 of 2015 in R.C.O.P.No.30 of 2013) is not maintainable and to quash and set aside Ext.P7 order passed by the execution court on OP(RC) 11/2016 4 E.A.No.16 of 2016 in E.P.No.142 of 2015 in R.C.O.P.No.30 of 2013. The petitioner has also prayed for an order directing the Rent Control Court, Kottayam (sic for Principal Munsiff's Court, Kottayam) to keep all further proceedings in E.P.No.142 of 2015 in R.C.O.P.No.30 of 2013 in abeyance till a decision is taken on Exts.P8 and P9 applications, viz. I.A.Nos.193 and 343 of 2016 in R.C.O.P.No.30 of 2013. It is contended that unless the execution court awaits the orders on the aforesaid applications which are yet to be passed by the rent control court, the remedy available to the petitioner/tenant under section 11 (2)(c) of the Act will be rendered illusory and meaningless. 5. We heard Shri R. Reji, learned counsel appearing for the revision petitioner and Shri Bechu Kurian Thomas, learned senior counsel appearing for the respondent. We have also gone through the pleadings and the materials on record. While Shri R. Reji, learned counsel appearing for the petitioner contended, relying on the decision of a Full Bench of this court in **Karthyayani v. S.N.D.P. Sakha Yogam** (2004 (3) KLT 524 - FB), as also the provisions contained in section 11(2)(c) of the Act that the rent control court has got the discretion to allow time more than once to the tenant to pay arrears with interest and costs even after the expiry of the period stipulated in the order of eviction passed by the rent control court and that the OP(RC) 11/2016 5 statute does not place any restriction on the power of the rent control court to consider Exts.P8 and P9 applications. Learned counsel submitted that this original petition may therefore be disposed of with a direction to the Rent Control Court, Kottayam to consider and pass orders on Exts.P8 and P9 applications, viz. I.A.Nos.193 and 343 of 2016 in R.C.P.No.30 of 2013 in a time bound manner and to keep all further proceedings in the execution court in abeyance, till such time as orders are passed by the rent control court. 6. On the other hand, Shri Bechu Kurian Thomas, learned senior counsel appearing for the respondent contended, relying on the decision of the Apex Court in **Nasiruddin and others v. Sita Ram Agarwal** (AIR 2003 SC 1543) that the rent control court does not have the power to enlarge the time limit stipulated in the order of eviction for deposit of arrears of rent and therefore, Exts.P8 and P9 applications are not maintainable. Learned senior counsel also submitted that the sum of Rs.34,000/- deposited by the tenant after Ext.P3 order of eviction was passed, is not sufficient to satisfy the interest and costs and therefore, for that reason also, the reliefs prayed for in the instant original petition are not liable to be granted. 7. We have considered the submissions made at the Bar by the learned counsel appearing on both sides. We have also gone through OP(RC) 11/2016 6 the pleadings and the materials on record. Section 11(2)(c) of the Act which is relevant for the purpose of this case, reads as follows: “11(2)(c) The order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow; and if the tenant deposits the arrears of rent with interest and cost of proceedings, within the said period of one month or such further period, as the case may be, it shall vacate that order.” It is evident from a reading of the aforesaid provision that it is only the rent control court which can consider an application for enlargement of time to deposit the arrears of rent and to vacate the order of eviction passed under section 11(2)(b) of the Act. The execution court was therefore perfectly right in passing Ext.P7 order dismissing E.A.No.16 of 2016 in E.P.No.142 of 2015 in R.C.O.P.No.30 of 2013. Though the petitioner/tenant challenges the said order, it was submitted during the course of the hearing that the tenant is only interested in having Exts.P8 and P9 applications considered and disposed of and to keep all further proceedings in the execution court in abeyance until such time as orders are passed thereon. 8. Interpreting section 11(2)(c) of the Act, a Full Bench of this court has in **Karthyayani's case** (supra), held that the rent control OP(RC) 11/2016 7 court has got the discretion to allow time more than once, to pay arrears of rent with interest and costs. In the light of the aforesaid decision, it is for the rent control court which is now in seisin of the matter, to consider whether having regard to the facts placed before it, the tenant is entitled to enlargement of time as prayed for by him. Though it is contended by the learned senior counsel appearing for the respondent that the rent control court does not have the power to grant time beyond the time limit originally prescribed by it and reliance is placed on the decision of the Apex Court in **Nasiruddin's case** (supra), in support of the said contention, we find no merit or force in the said contention. The provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 as amended by Rajasthan Act 14 of 1976, are differently worded. All that the Apex Court has in the aforesaid decision, held is that under the Rajasthan Act there is a limitation on the power of the rent control court to enlarge the time and that it cannot enlarge the time beyond three months. The Apex Court has not in **Nasiruddin's case** (supra) held that the rent control court does not have the power to enlarge the time originally fixed. Under the Rajasthan Act, the tenant is required to deposit the rent determined by the court under sub-section (3) of section 13 of the Act within fifteen days from the date of determination or within such OP(RC) 11/2016 8 further time not exceeding three months, as may be extended by the court. It was in such circumstances that the Apex Court held that the power of the court has been limited to the extent that it can extend time for such deposit only for a period not exceeding three months and that the court's power in that regard is restricted. In the very same decision, after referring to the provisions contained in the Madhya Pradesh Accommodation Control Act, 1961, the Apex Court held that under the Madhya Pradesh Act, the court has been conferred power to extend the time for deposit of rent without any limitation on the exercise of power if sufficient cause is shown. After analysing the provisions contained in the various enactments including Madhya Pradesh Accommodation Control Act, Delhi Rent Control Act, Bihar Rent Control Act and the West Bengal Rent Control Act, the Apex Court held as follows: “40. Thus, on analysis of the aforesaid two decisions we find that wherever the special Act provides for extension of time or condonation of default, the Court possesses the power therefor, but where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the Court does not have the power to do so. 41. In that view of the matter it must be held that in absence of such provisions in the present Act the Court did not have the power to either extend the period to deposit the rent or OP(RC) 11/2016 9 to condone the default in depositing the rent.” 9. The Kerala Act is not identically worded as the Rajasthan Act. It was having regard to the provisions contained in the Kerala Act that the Full Bench of this court in **Karthyayani's case** (supra) held that the rent control court has got the discretion to allow time more than once to deposit the arrears with interest and costs. The question whether in the instant case or in any case arising for consideration before it, the rent control court should grant extension is a matter to be decided having regard to the pleadings and the materials on record. It is quite different from saying that the power to enlarge the time for deposit is not vested in the rent control court. The Apex Court has in **Chinnamma v. Gopalan** (1995 (2) KLT 755) held, interpreting the provisions contained in the Act as follows: “An order passed under Section 11(2)(b) remains in suspended animation for a period of one month. If within the period of one month from the date of the order passed under Section 11(2)(b) or such further period as Rent Control Court may allow, the tenant deposits the arrears of rent with interest and cost of proceedings, the court is bound to vacate the order passed under Section 11(2)(b).” 10. It is evident from the aforesaid decision of the Apex Court that the rent control court has the power to enlarge the time to deposit the arrears of rent. In such circumstances, we are of the opinion that OP(RC) 11/2016 10 in order to meet the ends of justice, the tenant who has admittedly deposited the sum of Rs.34,000/-, though such deposit was made 7 days after the expiry of the period of thirty days stipulated in the order of eviction, should be afforded an opportunity to have Exts.P8 and P9 applications considered and disposed of by the rent control court and to have the execution petition filed by the landlord to execute the order of eviction kept in abeyance till then. Having regard to the fact that nearly two years have passed after the order of eviction was passed, we are of the opinion that the rent control court should be directed to dispose of the applications in a time bound manner, so that no serious prejudice will be caused to the landlord. We accordingly dispose of the original petition with the following directions: i) The Rent Control Court, Kottayam where I.A.Nos.193 and 343 of 2016 in R.C.O.P.No.30 of 2013 are pending, shall hear and dispose of the said applications expeditiously and in any event, before 30.6.2016; ii) Until such time as orders are passed on I.A.Nos.193 and 343 of 2016 in R.C.O.P.No.30 of 2013 on the file of the Rent Control Court, Kottayam, further proceedings in E.P.No.142 of 2015 in R.C.O.P.No.30 of 2013 on the file of the Court of the Principal Munsiff of Kottayam shall be kept in abeyance. OP(RC) 11/2016 11 iii) We make it clear that we have not expressed any opinion on the merits of the rival contentions and that the rent control court will be free to take an appropriate decision on the aforesaid applications having regard to the pleadings and the materials on record as also the law laid down by the Apex Court and this court. ## **( P.N. Ravindran, Judge)** ## **(K. Ramakrishnan, Judge)** ## **kav/**