R.C.R.No.222/2019; O.P.(RC) No.57/2022

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944** **RCREV. NO. 222 OF 2019** **AGAINST THE ORDER DTD 20/3/2015 IN RCP 99/2012 OF ADDITIONAL MUNSIFF (RENT CONTROL COURT), TVM AGAINST THE JUDGMENT DTD 29/9/2018 IN RCA 1/2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT – IV (RCAA), THIRUVANANTHAPURAM** **REVISION PETITIONER/RESPONDENT/RESPONDENT IN IA 8059/2016 IN RCP** **99/2012:** **USHA** **AGED 56 YEARS W/O.SURENDRAN, TC.NO.22/51, USHUS BHAVAN, THIRTTAKUDI LANE, PUTHENKOTTA, MANACAUD.P.O., THIRUVANANTHAPURAM.** **BY ADVS.RAAJESH S.SUBRAHMANIAN V.R.RAJESH** ## **RESPONDENT/APPELLANT/PETITIONER IN IA 8059/2016 IN RCP 99/2012:** **K H ABDUL LATHEEF, S/O.K.A.HAMEED, T.C.29/473(1), MOSQUE LANE, PETTAH, THIRUVANANTHAPURAM-695024.** ## **BY ADV.AYYAPPAN SANKAR** **THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 23.11.2022, ALONG WITH OP (RC).57/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **R.C.R.No.222 of 2019 and O.P.(RC)No.57 of 2022** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA,** **1944** **OP (RC) NO. 57 OF 2022 AGAINST THE ORDER IN RCP 99/2012 OF ADDITIONAL MUNSIFF (RENT CONTROL COURT), TVM & ORDER DTD 3/3/22 IN EP 288/2015 IN RCP 99/2012 OF PRINCIPAL MUNSIFF'S COURT, TVM** ## **PETITIONER/JUDGMENT DEBTOR/RESPONDENT:** **K.H.ABDUL LATHEEF AGED 42 YEARS S/O. K,A HAMEED, T.C. 29/473 (1) MOSQUE LANE, PETTAH, THIRUVANANTHAPURAM,PIN-695 024** **BY ADVS.AYYAPPAN SANKAR S.HRIDYA** ## **RESPONDENT/DECREE HOLDER/PETITIONER:** **USHA AGED 53 YEARS W/O. SURENDRAN, T.C.22/31, USHUS BHAVAN, THITTAKKUDI LANE, PUTHENKOTTA, MANACAUD P.O., THIRUVANANTHAPURAM, PIN-695 009** **BY ADVS.RAAJESH S.SUBRAHMANIAN V.R.RAJESH** **THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 23.11.2022, ALONG WITH RCRev..222/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 ## **R.C.R.No.222 of 2019 and O.P.(RC)No.57 of 2022** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **-------------------------------------------------R.C.R.No.222 of 2019 and O.P.(RC)No.57 of 2022 ------------------------------------------Dated this the 23[rd] day of November, 2022** ## **O R D E R** ## **C.S.Sudha, J.** R.C.R.No.222/2019 under Section 20 of the Kerala Building (Lease and Rent Control) Act, 1965 (the Act) has been filed against the judgment dated 29/09/2018 in R.C.A.No.1/2017 on the file of Rent Control Appellate Authority (RCAA), Thiruvananthapuram, against the order in I.A.No.8059/2016 in R.C.P.No.99/2012 on the file of the Rent Control Court (RCC), Thiruvananthapuram. The revision petitioner is the petitionerlandlady in the R.C.P. and the respondent in the appeal. The parties and documents will be referred to as described in the R.C.P. 2. R.C.P.No.99/2012 was filed by the petitioner-landlady claiming eviction under Sections 11(2)(b) and 11(3) of the Act. The RCC by order dated 20/03/2015 allowed the R.C.P. in part. The claim for eviction under Section 11(3) was dismissed and eviction ordered under Section 11(2)(b). The respondent-tenant was directed to vacate the petition schedule building 4 ## **R.C.R.No.222 of 2019 and O.P.(RC)No.57 of 2022** within a period of one month from the date of the order. It was also ordered that the order under Section 11(2)(b) would be subject to the provisions of Section 11(2)(c) of the Act. The respondent-tenant aggrieved by the order of the RCC, filed R.C.A.No.19/2015 which was later on dismissed as not pressed. Thereafter, he filed I.A.No.8059/2016 under Section 11(2)(c) on 23/08/2016 for extending the period of one month granted in the order dated 20/03/2015. Along with the said application, he also filed I.A.No.8058/2016 for condoning the delay of 490 days in filing the application seeking extension of time. Finding no merits in I.A.No.8059/2016, the RCC by order dated 11/11/2016 dismissed the same. 3. The respondent took up the matter in appeal as R.C.A.No.1/2017. The RCAA by the impugned judgment allowed the appeal. The order dated 11/11/2016 in I.A.No.8059/2016 in R.C.P.No.99/2012 of the RCC was set aside and the said petition was allowed. The period of one month stipulated in the order dated 20/03/2015 in R.C.P.No.99/2012 was extended till 04/01/2016 and the payments of ₹71,400/- and ₹42,600/- made on 28/09/2015 and 04/01/2016 respectively, was accepted as payment of rent arrears within the extended period. The tenant has also been directed to pay cost of ₹5,000/- to the petitioner-landlady 5 ## **R.C.R.No.222 of 2019 and O.P.(RC)No.57 of 2022** within a period of two months from the date of the order. It has been further directed that in default of payment of cost, the appeal would stand dismissed. Aggrieved, the petitioner-landlady in the R.C.P. and the respondent in I.A.No.8059/2016 has come up in revision. 4. In the revision petition it is alleged that the RCAA had no power to extend the time of one month granted by the RCC by order dated 20/03/2015. Hence the order of the RCAA is liable to be interfered with. 5. Heard Adv.Rajeesh S.Subrahmanian, the learned counsel for the revision petitioner. 6. The only point that arises for consideration in this case is whether there is any irregularity, illegality or impropriety in the order of the RCAA. 7. In order to maintain an application for eviction of the tenant on the ground of default in the payment of rent, the proviso to Section 11(2)(b) says that the landlord is to send a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at 6% per annum and postal charges incurred in sending the notice within 15 days of the receipt of the notice or of the refusal thereof. This proviso is mandatory. Only after compliance of the said proviso, the landlord 6 ## **R.C.R.No.222 of 2019 and O.P.(RC)No.57 of 2022** can apply to the RCC for a direction to evict the tenant. The RCC after giving the tenant a reasonable opportunity, should be satisfied that the tenant has not paid or tendered the rent due by him in respect of the building as per the terms of the agreement of tenancy or by the last day of the month next following that for which the rent is payable, the court can make an order directing the tenant to put the landlord in possession of the building. 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 the RCC 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). The language of Section 11(2)(b), and the proviso thereto, read along with Section 11(2)(c) clearly obliges the tenant only to deposit the arrears of rent (along with interest and cost of proceedings) for which the landlord is obliged to send the notice under the proviso to Section 11(2)(b) of the Act and the court has passed an order on the basis of such cause of action, under Section 11(2)(b) of the Act. The arrears of rent specified in Section 11(2)(c) of the Act will not take within its fold, the entire arrears of rent due till the deposit, if any made by the tenant, because the date of deposit will always be 7 ## **R.C.R.No.222 of 2019 and O.P.(RC)No.57 of 2022** after the date of the order passed by the court under Section 11(2)(b) of the Act ( **Chinnamma v. Gopalan, AIR 1996 SC 363** ). 8. The fact that the respondent-tenant on 28/09/2015 and 04/01/2016 has deposited an amount of ₹71,400/- and ₹42,600/- respectively is not disputed by the petitioner-landlady. The amount so deposited covers the rent arrears demanded in the registered notice sent to the tenant, is also not disputed. The RCC in its order dated 11/11/2016 in I.A.No.8059/2016 has not given any reasons for concluding that there is no merit in the petition. The fact that the RCC has got power to extend the time, even after the expiry of the statutory period of one month, is settled. ( **Karthyayani v. SNDP Sakha Yogam, 2004 KHC 1164** and **Paul Varghese @ Shibi Varghese v. Dr.John S.Kurian, 2016(3) KHC 430** ). The RCAA, finding that the reasons cited by the respondent-tenant in I.A.No.8059/2016 are sufficient to explain the delay, has allowed the prayer for extension of time. The revision petitioner-landlady has been unable to show any illegality, irregularity or impropriety in the impugned judgment. Therefore, there is no scope for interference into the same. 9. O.P.(RC)No.57/2022, which has been filed challenging Ext.P11 order dated 03/03/2022 directing delivery of the property, is liable to be set 8 ## **R.C.R.No.222 of 2019 and O.P.(RC)No.57 of 2022** aside in view of the dismissal of the R.C.R. In the result, the revision is dismissed. O.P.(RC)No.57/2022 is allowed and Ext.P11 order dated 03/03/2022 directing delivery of the property is set aside. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/