R.C.R.No.215 of 2020 (Rent Control Revision)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 27[TH] DAY OF JANUARY 2023 / 7TH MAGHA, 1944** **RCREV. NO. 215 OF 2020** **(AGAINST ORDER IN INTERLOCUTORY APPLICATION NO.1345/2017 OF THE RENT CONTROL APPELLATE AUTHORITY ADDITIONAL DISTRICT COURT II, PALAKKAD IN RENT CONTROL APPEAL NO.12/2016 IN RENT CONTROL PETITION NO.3/2014)** ## **PETITIONERS/SUPPLIMENTARY REVIEW PETITIONERS/** ## **RESPONDENTS/PETITIONERS:** 1 SALEENA AGED 50 YEARS W/O.LATE ALI, RESIDING AT AMBALATH VEEDU, PALLIKUNNAM POST, KUMARAMPUTHUR PANCHAYAT, MANNARKKAD, PALAKKAD 678 582 2 SUHAIBATH SINANA AGED 29 YEARS D/O.LATE ALI, RESIDING AT AMBALATH VEEDU, PALLIKUNNAM POST, KUMARAMPUTHUR PANCHAYAT, MANNARKKAD, PALAKKAD 678 582 3 NIHALA YASIM AGED 17 YEARS, MINOR D/O.LATE ALI, RESIDING AT AMBALATH VEEDU, PALLIKUNNAM POST, KUMARAMPUTHUR PANCHAYAT, MANNARKKAD, PALAKKAD REP. HER MOTHER AND NEXT FRIEND SALEENA 678 582 BY ADV A.SHAFEEK (KAYAMKULAM) ## **RESPONDENT/RESPONDENT/APPELLANT/RESPONDENT:** MANIKANDAN AGED 46 YEARS, S/O.LATE MANI, MECHERIPADOM, ELAPPULLY, PALAKKAD 678 622 BY ADVS. SRI.K.C.SANTHOSHKUMAR SRI.NIKHIL K SABU SRI.K.V.SABU THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 27.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R.No.215 of 2020 2 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** ## **R.C.R.No.215 of 2020** **------------------------------------------Dated this the 27[th] day of January, 2023** ## **O R D E R** ## **C.S.Sudha, J.** This R.C.R. under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) has been filed against the order dated 20/10/2020 in I.A.No.1345/2017 in R.C.A.No.12/2016 on the file of the Rent Control Appellate Authority (RCAA), Palakkad, which is an application to review the order dated 31/07/2017 in R.C.A.No.12/2016, which appeal arose from the order dated 29/01/2016 in R.C.P.No.3/2014, on the file of the Rent Control Court (RCC), Palakkad. The revision petitioners are the legal heirs of the petitioner-landlord in the R.C.P. and the respondent herein, the respondent-tenant in the R.C.P. The parties and the documents will be referred to as described in the R.C.P. 2. R.C.P.No.3/2014 was filed by the sole petitioner, namely, Ali claiming eviction of the respondent under Section 11(3) of the Act. The petitionerlandlord claimed to be the owner of the petition schedule building, which he had let out to the respondent for a monthly rent of ₹5000/-. The rent was alleged to be in arrears. During the pendency of the R.C.P., Ali died and hence his heirs were impleaded as additional petitioners 2 to 4. R.C.R.No.215 of 2020 3 3. The respondent-tenant denied the rental arrangement pleaded in the R.C.P. According to the respondent, he is in possession of the building as per a sale agreement dated 26/09/2011. The sale consideration for the property was fixed at ₹13,20,000/-. On the day the agreement was executed, an amount of ₹10,00,000/was given as advance to the petitioner, on which day, possession of the petition schedule building and property was given to the respondent. Thereafter, the respondent constructed a building spending an amount of ₹9,50,000/-, in which building he is running a business in the name and style 'Sree Ram Steel Furniture'. As the petitioner herein failed to execute a sale deed in his favour after receipt of the balance sale consideration, he filed O.S.420/2012 before the Subordinate Court, Palakkad, which is pending. Therefore, the respondent contended that the petitioner is not entitled to claim eviction as prayed for in the R.C.P. 4. After the counter was filed by the respondent, the petitioner filed I.A.No.1458/2014 under Section 12 alleging that the rent is in arrears from 13/08/2011 and so to direct the respondent to deposit the arrears. The RCC by Annexure 1 order dated 11/07/2014, allowed the Section 12 petition. The RCC held that rent at the rate of ₹5000/- per month from the date of petition is in arrears and hence directed the respondent to deposit the rent within one month of the date of order. The respondent took up the matter in appeal as R.C.A.No18/2014. The RCAA, as per Annexure 2 order dated 28/11/2014 set aside Annexure 1 order. The RCAA found that when the respondent has denied the title of the petitioner, as well as the R.C.R.No.215 of 2020 4 existence of any landlord tenant relationship, the RCC was bound to first decide about the bonafides of the claim made by the respondent. As the said exercise had not been done by the RCC as contemplated under the second proviso to Section 11(1) of the Act, remanded the matter to the RCC directing the court to adjudicate on the plea raised by the tenant denying the title of the landlord. Pursuant to the remand, the RCC by order dated 06/11/2015, that is, as per Annexure A3 order dated 06/11/2015, found the denial to be not bonafide. Thereafter, I.A.No.1458/2014 filed under Section 12 of the Act was again taken up by the RCC and the same was allowed on 27/01/2016 on the ground that the respondent has not shown sufficient cause for not depositing the rent arrears. On the same day the R.C.P. was also allowed and eviction ordered under Section 12(3) of the Act. 5. The respondent preferred an appeal, that is, R.C.A.No. 12/2016. The RCAA, found by order dated 31/07/2017 that when the landlord tenant relationship itself is disputed, there cannot be any admitted arrears as contemplated under Section 12 of the Act and hence set aside the order passed by the RCC in I.A.No.1458/2014 and remanded the the matter back to the RCC to decide the matter afresh. Paragraph 10 of the order of the RCAA reads thus- _“ 10. In view of this court's findings on point No.1, the order dated 27.01.2016 in RCP No.3/2014 of the court below is set aside and R.C.A.No.12/2016 is disposed of in the following terms:-_ _1. The order dated 11.07.2014 in I.A.No.1458/2014 in RCP No._ - _3/14 and the order dated 27.01.2016 in R.C.P.No.3/2014 of the_ R.C.R.No.215 of 2020 5 _court below are set aside;_ _2. The case is remanded back to the court below;_ _3. I.A.No.1458/2014 in R.C.P.No.3/2014 shall be considered afresh after hearing both parties and pass appropriate orders untrammeled by the observation made by this court;_ _4. There is no order as to costs; and_ _5. The parties shall appear before the court below on 16.08.2017.”_ 6. Referring to this order, it was argued on behalf of the respondent that when Annexure 1 order had already been set aside by Annexure 2 order in R.C.A.No.18/2014, the RCAA erred in again setting aside the said order. The direction to consider the matter afresh is also incorrect in the light of the subsequent order of the RCC, that is, Annexure 3 order, which order has been confirmed by Annexure 4 order dated 20/10/2020 in R.C.A.No.5/2016. Therefore, the RCAA committed an apparent mistake by again remanding the matter. As there was an error apparent on the face of the record, the petitioners filed I.A.No.1345/2017 for reviewing the said order. After finding that there was an error on the face of the record, the RCAA still proceeded to dismiss the review petition on the ground that the power of review is limited and that the prayer sought for in the review petition would not come within the ambit of order 47 C.P.C. This conclusion or finding of the RCAA is incorrect and wrong, contend the petitioners. 7. The remand order dated 31/07/2017 in R.C.A.No.12/2016, is not for considering the bonafides of the denial of title by the respondent. On the other hand the RCAA only said that when the landlord tenant relationship and the title of the R.C.R.No.215 of 2020 6 petitioner is disputed, there cannot be any admitted rent as contemplated under Section 12 of the Act. There is no infirmity in the finding because Section 12 proceedings can be initiated against a tenant, only when the arrears of rent is admitted. The admitted arrears contemplated under Section 12 is not the amount determined after adjudication, but is the rent admitted by the tenant. ( **Mrs.Celine Sourunny v. Mary Paul Abrao, 1979 KLT 533** ). Further, the basis for determining the admitted rent is the written statement or objection filed by the tenant. In the case on hand, when the landlord tenant relationship as well as the title of the petitioner is denied, there cannot be any admitted arrears as contemplated under Section 12 of the Act and therefore, the RCAA was certainly right in holding that the RCC went wrong in ordering eviction under Section 12(3). The only mistake committed by the RCAA is in stating that the order dated 11/07/2014 in I.A.No.1458/2014 in R.C.P.No.3/2014, that is Annexure 1 order, has also been set aside. That was unnecessary and the same could not have done also because the said order has already been set aside by Annexure 2 judgment. The RCAA in R.C.A.No.5/2016 by Annexure 4 judgment has confirmed the finding of the RCC that the denial is not bonafide. As there is no admission of arrears of rent, an order under Section 12 of the Act could not have been passed. Therefore, the remand can only be for the purpose of deciding the need alleged under Section 11(3) of the Act. To that extent, the remand order requires to be clarified. As there is no error(s) apparent on the face of the order dated 31/07/2017 in R.C.A.No.12/2016 and hence the review petition R.C.R.No.215 of 2020 7 has been rightly dismissed by the RCAA. In the result, the Rent Control Revision is dismissed with a clarification that to the impugned order to the effect that the remand will be for the purpose of considering the need alleged under Section 11(3) of the Act. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** Jms/18.01 R.C.R.No.215 of 2020 8 ## **APPENDIX OF RCREV. 215/2020** |PETITIONER ANNEXURES|| |---|---| |ANNEXURE 1|TRUE COPY OF THE ORDER DATED 11/7/2014 IN| ||I.A.NO.1458/2014 IN RCP NO.3/2014 OF THE RENT| ||CONTROLLER, PALAKKAD| |ANNEXURE 2|TRUE COPY OF THE JUDGMENT DATED 28/11/2014 IN| ||RCA NO.18/2014 OF THE RENT CONTROL APPELLATE| ||AUTHORITY, PALAKKAD| |ANNEXURE 3|TRUE COPY OF THE ORDER 6/11/2015 IN RCP| ||NO.3/2014 OF THE RENT CONTROLLER, PALAKKAD| |ANNEXURE 4|TRUE COPY OF THE JUDGMENT DATED 20/10/2019 IN| ||RCA NO.5/2016 OF THE RENT CONTROL APPELLATE| ||AUTHORITY, PALAKKAD|