RCRev..No.368 OF 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 07TH DAY OF JANUARY 2020 / 17TH POUSHA, 1941** ## **RCRev..No.368 OF 2018** **AGAINST THE JUDGMENT DATED 31.05.2018 IN RCA 79/2017 OF RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT - II), THALASSERY IN I.A.NO.6917/2016 IN RCP 197/2015 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF COURT), KANNUR** **REVISION PETITIONERS/ RESPONDENT NO.2 & LEGAL HEIRS OF DECEASED RESPONDENT NO.1/ PETITIONER NO.2 & LEGAL HEIRS OF DECEASED PETITIONER NO.1 :** **1 ABDUL LATHEEF K.P., KOVVAPURATH PUTHIYAPURAYIL, S/O. P.V.MUHAMMED KUNHI HAJI, RESIDING AT ZAINEST, KANNUR 1 AMSOM, THANA P.O, KANNUR 670 012, (REPRESENTED BY HIS POWER OF ATTORNEY HOLDER T.P.ABDUL JABBAR, AGED 57 YEARS, S/O. I.K.C ABDU RAHIMAN HAJI, RESIDING AT ZAINEST, KANNUR II VILLAGE, THANA P.O, KANNUR – 670 012)** **2 T.P. ABDUL JABBAR, AGED 57 YEARS, S/O. I.K.C. ABDU RAHIMAN HAJI, RESIDING AT ZAINEST, KANNUR -II VILLAGE, THANA P.O., KANNUR - 670 012** **3 T.P. ASSIYA, AGED 54 YEARS, D/O. I.K.C. ABDU RAHIMAN HAJI, RESIDING AT ZAINEST, KANNUR -II VILLAGE, THANA P.O., KANNUR - 670 012** **4 T.P. SAINUL ABIDEEN, AGED 50 YEARS, S/O. I.K.C ABDU RAHIMAN HAJI, RESIDING AT ZAINEST, KANNUR -II VILLAGE, THANA P.O., KANNUR – 670 012** **RCRev..No.368 OF 2018** 2 **5 T.P. SABIRA, AGED 48 YEARS, D/O. I.K.C. ABDU RAHIMAN HAJI, RESIDING AT ZAINEST, KANNUR-II VILLAGE, THANA P.O., KANNUR – 670 012 6 T.P. HARIS, AGED 45 YEARS, S/O. I.K.C. ABDU RAHIMAN HAJI, RESIDING AT ZAINEST, KANNUR -II VILLAGE, THANA P.O., KANNUR - 670 012 7 T.P. KADEEJA, AGED 42 YEARS, D/O. I.K.C. ABDU RAHIMAN HAJI, RESIDING AT ZAINEST, KANNUR -II VILLAGE, THANA P.O., KANNUR - 670 012** **BY ADVS. SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA** **RESPONDENTS/ APPELLANT & LEGAL HEIRS OF DECEASED RESPONDENT NO.1/ RESPONDENT & LEGAL HEIRS OF DECEASED PETITIONER NO.1 :** **1 DR. GEETHA, D/O. SREEDHARAN, MANAGING PARTNER, GIFT WOMENS HOSPITAL, NEELS COTTAGE, KANNUR – 670 001** **2 T.P. FASEEMA, AGED 37 YEARS, D/O. I.K.C. ABDU RAHIMAN HAJI, RESIDING AT ZAINEST, KANNUR -II VILLAGE, THANA P.O., KANNUR - 670 012 R1 BY ADVS. SRI.T.REMESH BABU SRI.C.K.SREEJITH** **R2 BY ADV. SMT.M.M.DEEPA** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 07-01-2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No.368 OF 2018** 3 ## **ORDER** K.Harilal, J. This revision petition has been directed against the judgment passed by the rent control appellate authority in RCA.No.79/2017. The aforesaid appeal was filed by the first respondent herein, challenging the order granting an order of eviction passed by the rent control court under Section 12(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 [Hereinafter referred to as, 'the Act'] in I.A.No.6917/2016 in RCP.No.197/2015 of the rent control court, Kannur filed by the revision petitioners herein. 2. After considering the rival pleas, the rent control appellate authority reversed the findings of the rent control court, under Section 12(3) of the Act in I.A.No.6917/2016 and allowed the appeal on a finding **RCRev..No.368 OF 2018** **==> picture [7 x 7] intentionally omitted <==** that the rent control court is liable to pass an order directing the tenant to pay the admitted arrears, under Section 12(1) of the Act on the basis of the admission of the tenant only and the arrears of rent rests solely on the admission of the tenant, for which, no enquiry is contemplated as to what would be the arrears of rent. But in the instant case, the rent control court went wrong by conducting an enquiry and directed the first respondent to deposit the specified amount as arrears of rent. The legality and propriety of the aforesaid findings are challenged in this revision petition. 3. Heard the learned counsel for the revision petitioners and the learned counsel for the respondents. 4. The learned counsel for the revision petitioners advanced arguments contending that the appellate authority reversed the findings of the rent control court in violation of the proposition laid down by **RCRev..No.368 OF 2018** 5 the decision of the Division Bench of this Court in **2006 KHC 1399, 2017 4 KHC 936 and 2018 5 KHC 95** . According to the learned counsel for the revision petitioners, where the rent deed specifically quantifies the rate of rent and the period of default is admitted by the tenant, the rent control court is liable to quantify the admitted arrears, without conducting any enquiry and the admitted arrears need not come from the mouth of the tenant herself. In the instant case, the lease deed is admitted by the first respondent and there is no challenge against the rate of rent. So also, the period of default is not disputed. Therefore, the rent control court quantified the admitted arrears and passed order under Section 12(1) of the Act. But the appellate authority erroneously found that unless the respondent/tenant herself admits, there cannot be an admitted arrears, notwithstanding the admission on the rate of rent and the period of default. **RCRev..No.368 OF 2018** 6 5. Per contra, the learned counsel for the respondent/tenant advanced arguments contending that unless the tenant herself admits the existence of admitted arrears, there cannot be any quantification of admitted arrears, even if the rate of rent and the period of default are admitted by the tenant herself. Thus, the learned counsel for the respondents advanced arguments to justify the findings whereby the appellate authority reversed the findings of the rent control court and dismissed the petition filed under Section 12(1) of the Act. 6. In view of the arguments at the bar, the question to be considered is whether there is any illegality or impropriety in the findings of the appellate authority that unless the tenant herself admits and quantify the admitted amount of arrears of rent, there cannot be any quantification of admitted arrears by the rent control court, notwithstanding the admission of the **RCRev..No.368 OF 2018** 7 rate of rent and the period of default by the tenant. 7. Coming to the instant case, it could be seen that the respondent/ tenant herself admitted the execution of the lease deed, wherein the rent of the tenanted building is quantified as Rs.2,20,000/- per month. According to the revision petitioners/ landlord, the rent is in arrears from 14.11.2014 onwards. The first respondent/ tenant has no case that she had paid the rent after 14.11.2014. Thus, the defaulted period stands admitted. But the first respondent/ tenant, on the other hand contended that there was an agreement between her and the previous owners of the building to complete the works of the structure of the building and to carry out interior works, as per which Rs.60,00,000/was incurred by her as expenses. According to her, the said amount was agreed to be adjusted in future. So the first respondent/ tenant is not liable to pay the rent to the revision petitioners/ landlord after 14.11.2014. Further, she contended that she has not paid any **RCRev..No.368 OF 2018** 8 amount to the revision petitioners/landlord after the attornment of tenancy to the petitioner in continuation of the agreement between the previous landlord and the first respondent/ tenant. In short, the first respondent/ tenant has claimed set off for the amount of Rs.60,00,000/- which is said to have been incurred by her for completing the construction of the building. Admittedly, in the lease deed, there is no whisper about such an adjustment or set off or about the amount of Rs.60,00,000/-, which is alleged to have been incurred for completing the works of the building structure and to carry out the interior works. On the other hand, the lease deed specifically imposed liability on the first respondent/tenant to pay a monthly rent of Rs.2,20,000/- to the revision petitioners/landlord without default. 8. In view of the aforesaid admitted facts, the decision of this Court in _**Kuruvila v. Sainabha Saleh**_ **RCRev..No.368 OF 2018** 9 _**2006 KHC 1399, Nazar v. K.P. Naseema [2017 (4) KHC 936]**_ and _**Gopala Panicker Baiju and Another**_ _**v. Mallika 2018 (5) KHC 95**_ would come into application. ## 9. In _**2006 KHC 1399** (supra)_ , this Court held ## as follows :- _The terminology “arrears of rent” has to be construed or understood in strict conformity or consonance with the statutorily recognized rights and liabilities - Tenant of a building cannot claimed set off or adjustment of certain payments allegedly due from landlord towards rent payable by him, while making deposit of admitted arrears as envisaged under Section 12._ ## 10. In _**2017 (4) KHC 936 (supra)**_ , this Court ## held as follows : _21. On coming to S.11(2)(b) of the Act, both the rent control court as well as the appellate authority concurrently found that the rent which was due for the period from 01.04.2006 to 01.08.2010 comes to Rs.19,11,238/- and only an amount of Rs.14,94,040/was paid. The main contention raised by the tenants is_ **RCRev..No.368 OF 2018** 10 _that there is a deposit of Rs.8,60,000/- with the landlord, i.e., Rs.4,30,000/- for each set of buildings and the landlord can set off the arrears of rent from the advance amount received. It is true that as per the provisions contained in the Act, the landlord can claim only one month's rent in advance. But when more amount was received by way of advance, both the parties are governed by the covenants agreed upon and the non obstante clause in S.11(1) would not operate to the extent of the said covenant regarding adjustment or repayment or return of the advance amount received by the landlord. Nothing was brought to our notice with respect to existence of any covenant for adjusting the rent payable towards advance amount and hence, it has to be presumed that they agreed to return the said amount only on the termination of the lease. If that be so, it cannot be adjusted towards the rent arrears. So, we are of the view that there is no sufficient ground to interfere with the order passed under S.11(2)(b) of the Act._ ## 11. In _**2018 (5) KHC 95** (supra),_ this Court ## held as follows : 6. The word “admitted arrears” is not defined in the Act, but proceedings under S.12 can be invoked against the tenant only, when arrears of rent is admitted. The dictionary meaning of 'admit' is 'to accept or to agree **RCRev..No.368 OF 2018** 11 that something is true'. So, 'admitted arrears' mean and intend 'agreed amount as arrears'. How can the 'agreed amount as arrears' be determined? The Act does not distinguish the word 'admitted' from the meaning given to the word 'admission', envisaged under S.17 of the Indian Evidence Act. Therefore, we are of the opinion that the meaning given to the word “admission” in the Evidence Act can be adopted to find out the admitted arrears of rent also. According to S.17 of the Indian Evidence Act, an admission is a statement, (oral or documentary, contained in electronic form), which suggests any inference as to any fact in issue or relevant fact which is made by any persons, under the circumstances mentioned in S.18 to 20 of the Act. As per S.18 of the Act, the statement made by the parties to the proceedings or by an authorised agent are admissions. In Bhogilal Chunilal Pandya v. State of Bombay, 1959 KHC 489 : AIR 1959 SC 356 : 1959 Supp (1) SCR 310 : 1959 CriLJ 389 the Supreme Court held that, statement only means “what is stated”. According to Taylor on evidence S.804, the recitals in a document are also admission of the maker. Therefore, the admitted arrears of rent, contemplated under S.12(1) of the Act, need not be an admission in the rent control proceedings itself and it cannot be insisted that the acceptance of the arrears or the quantum of admitted arrears of rent should come by the express words from the tenant himself in his counter statement in the RCP or in the objection to the application, filed under S.12 of the Act by the landlord. But, it can be inferred **RCRev..No.368 OF 2018** 12 from any document containing admission, as to the rate of rent, and period of default, made by the tenant. _8. In this context, it is to be borne in mind that any kind of set off or adjustment towards arrears of rent cannot be accepted, while considering an application under S.12 of the Act, as such counter claims require enquiry and adjudication. Neither S.11(2)(b) nor S.12 recognises or permits any kind of set off, adjustment or counter claim by the tenant towards arrears of rent or admitted arrears. The enabling provision which permits set off towards rent is S.17(2) of the Act and the same is permissible, where an order to that effect is passed by the Accommodation Controller, on satisfaction of the failure on the landlord to attend to maintenance and necessary repairs of the building._ _9. Thus, we conclude that the admitted arrears is an amount that can be quantified by the rent control court from the rent deed produced by the landlord and the receipts or documents specified under S.9 of the Act, evidencing payment of rent, produced by the tenants, unless the rent deed contains anything to the contrary. To sum up, the tenant cannot be allowed to wriggle out from the statutory liability, under S.12 of the Act, by a blank denial in his counter statement or objection to the application filed under S.12 of the Act, where the rent deed and receipts would quantify an amount, as admitted arrears of rent, from the admissions_ **RCRev..No.368 OF 2018** 13 _therein; but otherwise, the determination empowered with the rent control court contemplated under S.12(1) of the Act would come to an end, on a bare denial of the tenant and thereby the purpose of S.12 of the Act itself would be defeated._ 12. The legal proposition well settled in the aforesaid decisions is that the amount of admitted arrears need not come invariably from the mouth of the tenant herself and it can be well inferred from the admissions of the tenant. Where the lease deed in which the rate of rent per month is specifically quantified and the period of default is admitted by the tenant herself, the admitted arrears of rent, falling under Section 12(1) of the Act can be quantified easily, without conducting any enquiry. The tenant cannot wriggle out from the liability to pay the admitted arrears of rent, by a mere denial without bonafide that there is no admitted arrears. So also, there cannot be any set off or adjustment where the rent deed does not contain any covenant in this respect. **RCRev..No.368 OF 2018** 14 13. Coming to the facts of the instant case, we find that the tenant herself admitted the execution of lease deed, wherein the monthly rent is quantified as Rs.2,20,000/- per month. Similarly, the tenant admitted that she has not paid any rent to the revision petitioners/ landlord after 14.11.2014, the date of lease deed, as claimed by the revision petitioners/ landlord. At the same time, she herself admitted the attornment of tenancy to the revision petitioners/ landlord. More importantly, there is no denial of landlord-tenant relationship. In the above view, the appellate authority is not justified in reversing the findings of the rent control court and allowing the appeal. Hence the impugned judgment passed by the appellate authority is set aside and the judgment passed by the rent control court would stand restored on the files of the rent control court. It is needless to say, in view of the order passed under Section 12(1) of **RCRev..No.368 OF 2018** **==> picture [13 x 7] intentionally omitted <==** the Act, the order passed under Section 12(3) is also sustainable under law. Hence, the order of eviction passed under Section 12(3) is confirmed. The revision petitioners/ landlord have a right to execute the order dated 05.01.2017 passed by the rent control court, under Section 12(3) of the Act. The revision is allowed. Sd/- **K.HARILAL, JUDGE** Sd/- **C.S.DIAS, JUDGE** RKM