Sajuraj v. Thomas George Muthoot and Geetha Sajeev

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 23RD DAY OF MARCH 2018 / 2ND CHAITHRA,1940** **OP (RC).No. 32 of 2018** **AGAINST THE ORDER IN IA 7525/2017 IN RCP 118/2016 of RENT CONTROL COURT, ERNAKULAM DATED 31.1.2018** ## **PETITIONER:** **SAJURAJ, AGED 34, S/O.LATE A.K.RAJAN, ARAKAKADAVIL HOUSE, CHAKUNGAL ROAD, PALARIVATTOM, KOCHI-682 025.** **BY ADV.SRI.G.SREEKUMAR (CHELUR)** ## **RESPONDENTS:** ## **1. THOMAS GEORGE MUTHOOT** **AGED 54, S/O.MATHEW M.THOMAS @ PAPACHAN, MUTHOOT TOWERS, M.G.ROAD, COLLEGE ROAD P.O., KOCHI-35.** ## **2. GEETHA SAJEEV,** **AGED 43, W/O.SAJEEV KURUP, RESIDING AT NO.9, GEETHANJALI S B I COLONY, CHAKUNGAL ROAD, PALARIVATTOM, KOCHI-682 025.** **R1 & R2 BY ADV. SRI.BABU KARUKAPADATH** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 23-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP (RC).No. 32 of 2018 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1- A TRUE COPY OF THE ORIGINAL PETITION IN R C P NO.118 OF 2016 FILED BEFORE THE RENT CONTROL COURT, ERNAKULAM DATED 23/07/2016. EXHIBIT P2- A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN IN EXT.P1 PROCEEDINGS DATED 13/12/2016. EXHIBIT P3- A TRUE COPY OF THE I.A.NO.7525 OF 2017 IN R C P NO.118 OF 2016 DATED 04/11/2017 ON THE FILE OF THE RENT CONTROL COURT, ERNAKULAM. EXHIBIT P4- A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT.P3 DATED 21.11.2017. EXHIBIT P5- A TRUE COPY OF THE ORDER PASSED IN I.A.NO.7525 OF 2017 IN R C P NO.118 OF 2016 DATED 31/01/2018 ON THE FILE OF THE RENT CONTROL COURT, ERNAKULAM, 3RD ADDL. MUNSIFF COURT, ERNAKULAM.** ## **RESPONDENTS' EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A. TO JUDGE** ## **VPV** **“C.R.”** ## **P.N.RAVINDRAN & R.NARAYANA PISHARADI, JJ.** =-=-==-=-==-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= ## **O.P.(R.C.)No.32 of 2018** =-=-==-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 23[rd ] day of March, 2018** ## **JUDGMENT** ## _**P.N.Ravindran, J.**_ The petitioner is the tenant of a commercial building situate within the limits of Cochin Corporation, by the side of the Cochin Bypass. The said building originally belonged to Dr.M.P.Ravindra Nathan Menon, his wife and children. While the building was under their ownership, the petitioner herein filed O.S.No.160 of 2014 in the Court of the Principal Munsiff of Ernakulam, for an injunction restraining the land owners from forcibly evicting him from the tenanted premises. The suit was disposed of in terms of a compromise entered into between the parties, the particulars of which are set out in I.A. No.6056 of 2014 in O.S.No.160 of 2014, a petition filed by the parties to the suit under Order XXIII Rule 3 of the Code of Civil Procedure. In terms of the said compromise, the suit was decreed by judgment delivered on 29.8.2014. The said judgment reads as follows: “ _Compromise petition IA 6056/2014 filed. Suit decreed it terms of the compromise petition. IA 6056/2014 shall form part of the decree._ ” 2. The compromise entered into between the parties, is as ## **O.P.(R.C.)No.32 of 2018** ## **-:2:-** ## follows: ## “ _**BEFORE THE HONOURABLE MUNSIFF'S COURT, ERNAKULAM**_ _I.A.No.6056 of 2014 in O.S.No. 160/2014_ ## _Petitioner/Plaintiff and Defendants_ _Plaintiff : Mr. Saju Raj, S/o.A.K.Rajan (late), Arakkakkadavil House, Chakkungal road, Palarivattom, Cochin-682 025._ ## _Defendants:_ _1. Dr.M.P.Ravindra Nathan, aged 73 years, 11159 Cindy Dr, Brooksville, Florida 34601, USA, residing at “Ashirwad”, Vennala P.O., Cochin-682 028._ _2. Dr. Suseela Ravindranathan, aged 68 years, 11159 Cindy Dr, Brooksville, Florida 34601, USA, residing at “Ashirwad”, Vennala P.O., Cochin-682 028._ _3. Dr.Sandeep Nathan, aged 43 years, S/o.M.P.Ravindra Nathan, 11159 Cindy Dr, Brooksville, Florida 34601, USA._ _4. Sandra Narayanann, aged 35 years, S/o.M.P.Ravindra Nathan, 11159 Cindy Dr, Brooksville, Florida 34601, USA._ _5. Mr.M.P.Mohan Kumar, aged 55 years, S/o.P.R.Krishna Pillai, working as the Manager, The South Indian Bank Ltd., Kolenchery Branch, Kolenchery P.O., Ernakulam District._ _6. Mrs.Geetha Sajeev, aged 40 years, W/o.Mr.Sajeev Kurup, residing at No.9, Geethanjali, SBI Colony, Chakkungal Road, Palarivattom, Cochin - 682 025._ ## _**COMPROMISE FILED BY PLAINTIFF AND DEFENDANTS UNDER ORDER 23 RULE 3 OF THE CODE OF CIVIL PROCEDURE 1908**_ _It is submitted that the subject matter involved in the above case has been amicably settled by the Plaintiff and defendants 1 to 6 out of court. The sixth defendant is also a tenant of the plaint schedule building, as far as the defendants 1 to 5, who are the land lords of the plaint schedule building, irrespective of her status in the suit and it is agreed to as well by the 6[th] defendant. The subject matter of the suit is settled subject to the following terms and conditions:_ ## **O.P.(R.C.)No.32 of 2018** ## **-:3:-** _Terms of Compromise:_ _1. Plaintiffs and the 6[th] defendant are allowed to continue as tenants of the plaint schedule building for a period of 5 years from this date irrespective of the internal arrangement between them as per the pleadings in the suit._ _2. The plaintiff and 6[th] defendant shall pay monthly rent as already agreed to at the rate of Rs. 75,000/- per month with a condition to pay enhanced rent at 5% on the said amount every year. In case the plaintiff and the 6[th] defendant fail to make payment of rent for 3 months consecutively, the plaintiff and the 6[th] defendant hereby agrees to vacate the plaint schedule building within one month thereafter._ _3. The plaintiff and 6[th] defendant shall surrender the vacant possession without raising any objection and without referring for any of the grounds for eviction as per the Rent Control Law in force at the time of expiry of the time fixed above, as provided here or as per clause 2, whichever occurs early._ _4. The deposit of advance lease rent which has been made already with the defendants 1 to 4 will continue as such and other terms of the original lease agreement dated 15/02/2012, which are not contrary to the terms herein will continue in force in respect of the conditions of lease of the plaint schedule building._ _5. The plaintiff and 6[th] defendant shall put the plaint schedule building into the original condition at the time of lease on 15/02/2012 unless otherwise agreed to later by the defendants 1 to 4 by spending expenses from their pocket._ _6. In case the plaintiff and the 6[th] defendant cause for violation of the terms hereto, they are bound to be vacated from the plaint schedule building forthwith and they agree that the defendants 1 to 4 can get the eviction through court by executing this compromise decree as a decree for eviction by a court of law competent to pass eviction in respect of the building and they expressly waive their rights as a tenant under the Rent Control Legislations for the time being in force as they are entitled to get the same waived as per their wish and volition._ ” 3. It appears, thereafter the first respondent herein purchased ## **O.P.(R.C.)No.32 of 2018** ## **-:4:-** the tenanted premises as per sale deed No.31 of 2016 of SRO, Ernakulam executed on 23.12.2015 but registered in January 2016. A few months later, to be exact on 23.7.2016, the first respondent filed R.C.P.No.118 of 2016 in the Rent Control Court, Ernakulam praying for an order of eviction under Sections 11(2)(b) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as “the Act” for short). He had in the petition for eviction averred that the tenant has kept the rent in arrears from 5.1.2016 till 5.7.2016 and that on that count the sum of Rs.4,72,500/- is due. He had also averred that the tenants (the petitioner herein and the second respondent) have ceased to occupy the building without reasonable cause, continuously for more than six months from June 2015. 4. Upon receipt of notice, the petitioner herein entered appearance and filed written objections dated 13.12.2016. In the objections he denied the averment that he has kept the rent in arrears till July 2016. He also disputed the rate of rent and contended that the rent payable is only Rs.75,000/-. He further contended that he is not bound to pay rent to the landlord till the landlord gives consent letter, tax receipts, etc., required to obtain a licence from the Cochin Corporation and also the documents required to be submitted to the Kerala State Electricity Board and the Kerala Water Authority. He contended that the landlord is not entitled to receive rent from him ## **O.P.(R.C.)No.32 of 2018** ## **-:5:-** before giving the said documents. The relevant averments in that regard contained in paragraph 12 of the objections dated 13.12.2016 are extracted below: “ _As regards paragraphs 4 and 5 of the petition, it is submitted that there is no arrears of rent due to the petitioner. The statement that monthly rent at the rate of Rs.78,750/- is in arrears from January 2016 to the petitioner is false and hence denied. It is false to say that the petitioner is entitled to receive the said amount from the respondents as monthly rent in respect of the building. As per the agreed terms with the prior owners, the rent is fixed at Rs.75,000/- with 5% increase every year from July, 2014. It is submitted that the respondent is not bound to pay rent to the petitioner till he give consent letter, tax receipts etc required for submitting to get D & O license from the Cochin Corporation and such documents required to submit before KSEB and Kerala Water Authority. Hence the petitioner is not entitled to receive rent from the respondents before giving the said documents to the respondents._ ” 5. As regards cessation of occupation, the case set out by him was that the tenants have not abandoned the tenanted premises and have not ceased to occupy it. However in paragraph 10 of the objections, the petitioner had conceded that the tenants had closed down the restaurant which they were conducting under the name and style “Hot Jungle” in May 2015 as the business was not profitable and that they are making alternate arrangements to change the business being run by them in the tenanted premises. The petitioner had averred that the intention of the tenants is to convert the restaurant into a furniture shop and that the articles and utensils used in the restaurant were collected and kept together in the first floor of the ## **O.P.(R.C.)No.32 of 2018** ## **-:6:-** building. He had further averred that he used to go to the tenanted premises everyday and was working there with the staff and making all arrangements to start a new business and that some of the staff were also residing there, but the landlord did not co-operate and did not provide documents to submit before the concerned authorities. 6. The second respondent herein did not enter appearance and file objections with the result, she was set exparte. After the tenants were served, the landlord filed I.A.No.7525 of 2017 under Section 12 of the Act with the prayer that the tenants may be directed to pay arrears of rent from January 2016 to November 2017 amounting to Rs.17,32,500/- or to deposit it in court for payment to him and on their failure to do so, to direct the tenants to put him in possession of the petition schedule building. In the affidavit filed is support of the said application, the landlord had averred that the rent agreed to be paid is Rs.78,750/- per mensem and that the respondent has not paid the admitted rent at the rate of Rs.78,750/- per mensem from January 2016 till the date of the application. He had also quantified the rent thus payable at Rs.17,32,500/-. 7. The petitioner herein resisted the said application by filing a counter affidavit dated 21.11.2017. He had in the said counter affidavit reiterated the stand taken by him in the objections to the rent control petition and contended that he is not liable to pay any rent ## **O.P.(R.C.)No.32 of 2018** ## **-:7:-** unless and until the landlord gives a consent letter, a copy of the receipt evidencing payment of building tax and also enters into a fresh lease agreement with him for production before the local authorities/other agencies to obtain the necessary sanctions and licences to conduct a new business in the petition schedule building. He had thereby impliedly conceded that he is not running any business in the petition schedule building. 8. The rent control court considered the rival contentions and passed the following order on I.A.No.7525 of 2017 on 31.1.2018: “ _Petitioner and respondent represented. Respondent filed counter affidavit contending that there is no arrears of rent and he has not admitted the arrears of rent. The R.C.P. was filed on 25-07-2016. Since the respondent has not admitted any arrears of rent he is bound to pay the rent accrued from 25-07-2016, that is the date of filing of the R.C.P. Admittedly, no rent has been paid to the petitioner/ landlord even after the filing of the petition. Therefore, the respondent/tenant is directed to pay arrears of rent accrued from 25-07-2016 to the petitioner/landlord within 30 days of the date of this order. Respondent shall continue to pay the rent which subsequently accrues due within 15 days from the date on which the rent becomes due. For deposit._ ” The said order, a copy of which is produced and marked as Ext.P5, is under challenge in this original petition filed under Article 227 of the Constitution of India. 9. We heard Sri.G.Sreekumar (Chelur), learned counsel appearing for the petitioner and Sri.Babu Karukappadath, learned counsel appearing for the first respondent/landlord. Sri.G.Sreekumar (Chelur), ## **O.P.(R.C.)No.32 of 2018** ## **-:8:-** learned counsel appearing for the petitioner contended that unless the landlord does all that is required to enable the tenant to run his business in the tenanted premises, the tenant is not bound to pay rent. Learned counsel submitted that as the landlord has not in the instant case done what is required and expected of him to enable the tenant to run his business, he cannot contend for the position that the tenant has ceased to occupy the building or that the rent is in arrears. Learned counsel contended that in such circumstances, the rent control court erred in passing an order directing the tenant to pay the rent which has accrued from 25.7.2016, the date of institution of the rent control petition and to continue to pay rent which subsequently accrues after the date of the order. 10. Per contra, Sri.Babu Karukappadath, learned counsel appearing for the landlord contended that even assuming for the sake of arguments that the tenant has not kept the rent in arrears till the date on which the rent control petition was filed, the tenant cannot refuse to pay rent after the date of institution of the rent control petition namely 25.7.2016 and that in the instant case all that the rent control court has done is to direct the tenant to pay the rent that has accrued after such institution. Learned counsel contended that the tenant cannot be heard to contend that he will not pay rent to the landlord and at the same time continue to be in possession of the ## **O.P.(R.C.)No.32 of 2018** ## **-:9:-** tenanted premises. Learned counsel contended that on the terms of the compromise entered into between the predecessor-in-interest of the landlord and the tenants, they were bound to pay rent at the rate of Rs.75,000/- per mensem and to pay enhanced rent at the rate of 5% every year. Learned counsel submitted that it was in accordance with the terms of the compromise that the landlord has claimed rent at the rate of Rs.78,750/- per mensem in the petition filed by him under Section 12 of the Act. Learned counsel contended that Section 12 of the Act casts an obligation on the tenant not only to pay the arrears of rent which he admits but to continue to pay the rent that falls due subsequent to the institution of the rent control petition. Learned counsel also invited our attention to the decision of a Division Bench of this court in **Biju v. Madhavikutty Amma** (2011 (1) KLT 864) in support of the said submission. Learned counsel further submitted that since the tenant did not deposit the arrears of rent as directed in the impugned order, the rent control court has on 1.3.2018 passed an order directing the tenant to show cause why the proceedings shall not be stopped and an order of eviction shall not be passed. Learned counsel submitted that as the tenant did not show cause, the rent control court has on 14.3.2018 passed an order stopping the proceedings and directed the tenants to put the landlord in possession of the premises. ## **O.P.(R.C.)No.32 of 2018** ## **-:10:-** 11. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. It is evident from the stand taken by the petitioner herein in the objections to the rent control petition as also in the counter affidavit filed in I.A.No.7525 of 2017 that he has not paid rent to the first respondent/landlord. He has also admitted the fact that the rent payable is Rs.75,000/- per mensem. The stand taken by him is that he is not liable to pay rent to the landlord unless and until the landlord complies with all his demands and enables him to restart the business. 12. A Division Bench of this court has in **Biju v. Madhavikutty Amma** (supra) held that it is obligatory under Section 12(1) of the Act that the tenant pays not only the arrears of rent admitted by him but also the rent which admittedly falls due in respect of the building subsequent to the commencement of the rent control proceedings. We are in agreement with the aforesaid declaration of law that the tenant is obliged to pay not only the admitted arrears of rent but also the rent that has accrued after the institution of the rent control petition. At the stage of an order under Section 12(1) of the Act the question whether the tenant was justified in not paying the rent does not in our opinion arise for consideration. That question arises only at the stage of an order under Section 12(3). The order impugned before us though ## **O.P.(R.C.)No.32 of 2018** ## **-:11:-** passed in an application styled as one filed under Section 12(3) of the Act, is an order under Section 12(1) directing the tenant to pay the rent that has accrued after the rent control petition was instituted. As stated earlier, the question whether the tenant had sufficient cause for not paying the rent if any that had fallen in arrears prior to the institution of the rent control petition or the rent that has accrued thereafter, depends on the facts and circumstances of each case and that question need be considered only at a later stage, which in this case has already happened. The correctness of that order is not under challenge in this original petition. The petitioner/tenant will have to challenge that order by instituting other appropriate proceedings. 13. An order under Section 12(3) of the Act directing the tenant to put the landlord in possession of the building is an appealable order. It is for the Appellate Authority to consider whether having regard to the facts and circumstances pleaded and proved by the tenant he was justified in not paying the arrears of rent or the rent that has accrued after the date of institution of the rent control petition. In our considered opinion, for the purpose of an enquiry under Section 12(1) of the Act, the question whether the tenant had sufficient cause for not paying the rent does not arise. This court has in **Biju v. Madhavikutty Amma** (supra) held that the liability of the tenant under Section 12 is not only to pay the arrears of rent admitted by him ## **O.P.(R.C.)No.32 of 2018** ## **-:12:-** but also the rent which has fallen due in respect of the building subsequent to the commencement of the rent control petition. In the light of the binding decision of this court, with which we concur, we see no reason or justification to interfere with the impugned order. The original petition fails and is accordingly dismissed, subject to the observations made above. Sd/- **P.N.RAVINDRAN** **JUDGE** Sd/- **R.NARAYANA PISHARADI JUDGE** ## **vpv**