Ragini Venugopal v. N.S.S. Karayogam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944 RCREV. NO. 17 OF 2023** **AGAINST THE ORDER DATED 21.06.2022 IN RCP NO.178 OF 2015 OF THE RENT CONTROL COURT/III ADDITIONAL MUNSIFF'S COURT, ERNAKULAM CONCURRING WITH THE COMMON JUDGMENT IN RCA NO.31 OF 2022 DATED 22.11.2022 OF THE DISTRICT JUDGE & RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM** ## **REVISION PETITIONER/APPELLANT/PETITIONER/RESPONDENT:** **RAGINI VENUGOPAL AGED 50 YEARS KUTANAPILLY HOUSE, VENNALA KARA, EDAPPALLY THEKKUMBHAGAM, EDAPPALLY SOUTH P.O, ERNAKULAM DISTRICT, PIN - 682028** **BY ADVS. BABU CHERUKARA ARUN BABU** ## **RESPONDENT/RESPONDENT/RESPONDENT/PETITIONER:** **N.S.S. KARAYOGAM 2124 REPRESENTED BY IT'S SECRETARY, ELAMAKKARA, KOCHI, PIN - 682026** **BY ADV P.CHANDRASEKHAR(C-42) (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR** **ADMISSION ON 07.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev. No.17 of 2023 ## -: 2 :- **P.B.SURESH KUMAR & SOPHY THOMAS, JJ. -----------------------------------------------** **R.C.Rev. No.17 of 2023 -----------------------------------------------** ## **Dated this the 7[th] day of February, 2023** ## **O R D E R** ## **P.B.Suresh Kumar, J.** Concurrent decisions in an application under Section 11(2)(c) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) to vacate an order of eviction passed under Section 11(2)(b) are under challenge in this revision petition preferred under Section 20 of the Act. The tenant in the proceedings is the petitioner. 2. The respondent obtained an order of eviction against the petitioner under Section 11(2)(b) of the Act in R.C.P.No.178 of 2015. The finding in the order of eviction was that the petitioner has not paid the rent due in respect of the premises involved at the rate of Rs.1,660/- per month for the period from April, 2015 to July, 2015. The tenant challenged the said order in R.C.A.No.34 of 2018. During pendency of the R.C.Rev. No.17 of 2023 -: 3 :- appeal, the tenant deposited the rent for the period from April, 2015 to November, 2018, namely, Rs.73,040/-. R.C.A.No. 34 of 2018 was nevertheless dismissed on 17.06.2019. The tenant challenged the said decision of the Appellate Authority in R.C.Rev.No.2 of 2020 before this Court. Although the said revision was dismissed, this Court chose to grant six months time to the petitioner to vacate the premises, on condition that she shall file an affidavit before the Rent Control Court undertaking to vacate the premises within six months and shall deposit the arrears within one month from the date of receipt of a copy of the order. The petitioner did not avail the benefit of time granted by this Court to vacate the premises. Instead, she preferred I.A.No.1 of 2022 in the eviction petition under Section 11(2)(c) of the Act to vacate the order of eviction on the ground that she has deposited the arrears of rent required for the said purpose. The Rent Control Court dismissed I.A.No.1 of 2022 taking the stand that in light of the order of this Court in R.C.Rev.No.2 of 2020 granting time to the petitioner to vacate the premises, the application cannot be entertained. The petitioner challenged the order in I.A.No.1 of 2022 in appeal. She has also preferred R.P.No.733 of 2022 in the R.C.Rev. No.17 of 2023 -: 4 :- meanwhile seeking review of the order in R.C.Rev.No.2 of 2020 insofar as it relates to the directions therein for vacating the premises. The review petition was disposed of by this Court clarifying that the direction in the order in R.C.Rev.No.2 of 2020 granting time to the petitioner will not stand in her way in pursuing her statutory remedy under Section 11(2)(c) to get the order vacated. Thereafter, when the appeal was taken up for hearing, even though the Appellate Authority noticed the order in R.P.No.733 of 2022, dismissed the appeal taking the view that the petitioner ought to have deposited the arrears of rent up-to-date within one month from the date of the order in R.C.Rev.No.2 of 2020 and inasmuch as the petitioner has not deposited the up-to-date rent within one month from the date of the order in R.C.Rev.No.2 of 2020, she is not entitled to any relief in the application filed by her under Section 11(2)(c). The petitioner is aggrieved by the said decision of the Appellate Authority. 3. The learned counsel for the petitioner contended that the rent to be deposited for vacating an order of eviction under Section 11(2)(b) of the Act in terms of the provisions contained in Section 11(2)(c) is the rent found to be R.C.Rev. No.17 of 2023 -: 5 :- in arrears, on the basis of which the order of eviction was passed, and inasmuch as the petitioner has deposited the said arrears during the pendency of the appeal preferred against the order of eviction itself, the authorities below ought to have vacated the eviction order. Per contra, the learned counsel for the respondent submitted that in terms of the order in R.P.No.733 of 2022, this Court only permitted the petitioner to prefer an application under Section 11(2)(c) and the directions in the order in R.C.Rev.No.2 of 2020 for deposit of arrears of rent have not been varied or reviewed. According to the learned counsel, the petitioner, in the circumstances, ought to have deposited the arrears of rent up-to-date within one month from the date of the order and inasmuch as the petitioner has not resorted to the said course, she is not entitled to any relief in the application preferred under Section 11(2)(c). 4. The concluding paragraphs in the order in ## R.C.Rev.No.2 of 2020 read thus: “11. In the above analysis, the courts below are fully justified in invoking the presumption under Section 116 of the Evidence Act. There is no illegality or impropriety in warranting interference with the impugned judgment, invoking the revisionary jurisdiction. 12. Having regard to the nature of business, which is R.C.Rev. No.17 of 2023 ## -: 6 :- being conducted in the tenanted premises, the revision petitioner is given six months' time to vacate the petition schedule building, on the following conditions: (1) The revision petitioner/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that she will vacate the petition schedule shop room within six months from today. (2) The revision petitioner/tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default. (3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondent/landlord will be at liberty to proceed with the execution of the eviction order. This revision petition hence would stand dismissed.” It is evident from the extracted portion of the order that the direction in paragraph 12 that the petitioner shall deposit the entire arrears within one month from the date of receipt of a copy of the order was only a condition imposed on the petitioner for availing the benefit of the time granted in terms of the said order to vacate the premises. The order of this Court in R.P.No.733 of 2022 reads thus: “The review petition was filed, aggrieved by an order under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the 'Act'). This Court, affirmed the orders of the authorities below, dismissed the revision petition granting six months time to vacate the building. The review petitioner/tenant's case is that the direction to vacate the R.C.Rev. No.17 of 2023 ## -: 7 :- building within six months' time, would bar the tenant to invoke the statutory remedy under Section 11(2)(c) of the Act. We make it clear that the statutory right of the tenant, if any, can be availed in accordance with law. The order, granting six months' time will not stand in the way of the tenant, invoking the statutory right as above. We, clarifying the order as above, dispose of the review petition. ” Inasmuch as this Court has clarified in the review order that time granted in terms of the order will not stand in the way of the petitioner invoking her statutory remedy under Section 11(2)(c), R.C.Rev.No.2 of 2020 shall be treated as dismissed without any directions. 5. As noted, while the Rent Control Court was dealing with the application under Section 11(2)(c) of the Act, the directions in the order in R.C.Rev.No.2 of 2020 regarding payment of arrears of rent were in force and consequently, the Rent Control Court could not have dealt with the said application independently. Even though the said order was reviewed since the decision of the Rent Control Court, it appears that the Appellate Authority was under the impression that in terms of the review order, the petitioner was given only a right to prefer an application under Section 11(2)(c) and all the other directions in the order remain as it is, otherwise, there is no reason why the Appellate Authority should take the R.C.Rev. No.17 of 2023 -: 8 :- view that the petitioner should have cleared the arrears up-todate within one month from the date of the order in R.C.Rev.No.2 of 2020. 6. As noted, the specific case of the petitioner is that the rent to be deposited for vacating an order of eviction under Section 11(2)(b) of the Act is the rent found to be in arrears on the basis of which the order of eviction was passed and inasmuch as the petitioner has deposited the said arrears during the pendency of the appeal preferred against the order of eviction itself, the authorities below ought to have vacated the eviction order. In light of the decision of the Apex Court in **Chinnamma v. Gopalan** , 1995 (2) KLT 755 (SC), there cannot be any doubt to the proposition that the rent to be deposited for vacating an order of eviction under Section 11(2)(b) of the Act is the rent found to be in arrears, on the basis of which the order of eviction was passed. Similarly, it is trite that the time for deposit of arrears of rent for vacating an order of eviction under Section 11(2)(b) would commence only when the order of eviction becomes final. In the case on hand, in the place of Rs.6,640/- with interest and costs, admittedly, the petitioner has made a deposit of Rs.73,040/-, that too, long before the R.C.Rev. No.17 of 2023 -: 9 :- order of eviction attained finality. We, therefore, find force in the contentions raised by the petitioner. Inasmuch as the application preferred by the petitioner under Section 11(2)(c) has not been considered by the authorities below independently, we are of the view that I.A.No.1 of 2022 filed by the petitioner in R.C.P.No.178 of 2015 invoking Section 11(2)(c) needs to be considered afresh. In the result, the revision petition is allowed, the impugned decisions of the authorities below are set aside and the Rent Control Court is directed to dispose of I.A.No.1 of 2022 in R.C.P.No.178 of 2015 in accordance with law afresh, treating R.C.Rev.No.2 of 2020 as one dismissed without any directions. Needless to say, till then, the execution petition, if any, filed to execute the order in R.C.P.No.178 of 2015 will remain stayed. ## Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **SOPHY THOMAS, JUDGE.** ds 31.01.2023