IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE A.M.BABU
MONDAY, THE 21ST DAY OF NOVEMBER 2016/30TH KARTHIKA, 1938
OP (RC).No. 146 of 2016 (O)
---------------------------I.A.NO.2352/2016 IN R.C.A.NO.4/2016 DATED 14.10.2016, RENT CONTROL APPELLATE AUTHORITY-III, THIRUVANANTHAPURAM ARISING FROM R.C.P.NO.50/2013, ADDITIONAL MUNSIFF COURT (RENT CONTROL COURT), THIRUVANANTHAPURAM
PETITIONER/COUNTER PETITIONER/APPELLANT:
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SALIM M.KABEER MANAGING DIRECTOR, M/S.GRANDTECH BUILDERS AND DEVELOPERS PVT.LTD., RESIDING AT 7D, HEERA HEAVENS, ULLOOR, MEDICAL COLLEGE.P.O. THIRUVANANTHAPURAM DISTRICT.
BY ADVS.SRI.NAGARAJ NARAYANAN SRI.R.T.PRADEEP SRI.SAIJO HASSAN SRI.BENOJ C AUGUSTIN SRI.RAFEEK. V.K. SRI.VISHNU BHUVANENDRAN SRI.U.M.HASSAN
RESPONDENT/PETITIONER/RESPONDENT:
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RAJALEKSHMI SREEKUMAR PLOT NO.193, SECTOR B, GANDHI NAGAR, GUJARAT, PIN-382 008.
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 21-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (RC).No.146 of 2016 (O) ----------------------------------------
## APPENDIX
## PETITIONER'S EXHIBITS :
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EXHIBIT P1 : COPY OF THE ORDER DATED 11.07.2016 IN I.A.NO.1438/2016 IN RCA NO.4/2016 ON THE FILE OF THE ADDL. RENT CONTROL APPELLATE AUTHORITY-III, THIRUVANANTHAPURAM.
- EXHIBIT P2 : COPY OF THE MEMORANDUM OF REVIEW PETITION DATED 23.08.2016 FILED AS I.A.NO.2352/2016 IN RCA NO.4/2016.
EXHIBIT P3 : COPY OF THE OBJECTION IN RCA.4/2016 FILED BY THE PETITIONER DATED 17.09.2016.
- EXHIBIT P4 : COPY OF THE ORDER DATED 14.10.2016 IN I.A.NO.2352/2016 IN RCA NO.4/2016 ON THE FILE OF THE ADDL. RENT CONTROL APPELLATE AUTHORITY-III, THIRUVANANTHAPURAM.
- EXHIBIT P5: COPY OF RENT CONTROL PETITION FILED BEFORE THE COURT OF ADDITIONAL MUNSIFF (RENT CONTROLLER), THIRUVANANTHAPURAM IN R.C.P.NO.50/2013.
EXHIBIT P6: COPY OF THE COUNTER AFFIDAVIT FILED IN R.C.P.NO.50/2013.
EXHIBIT P7: COPY OF THE AMENDED RENT CONTROL PETITION.
EXHIBIT P8: COPY OF THE OBJECTION TO THE AMENDED PETITION.
## RESPONDENT'S EXHIBITS :
-----------------------------------
NIL
//TRUE COPY//
P.A. TO JUDGE
## **K.T.SANKARAN & A.M.BABU, JJ.**
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O.P.(R.C.) No.146 of 2016
----------------------------------------Dated this the 21[st] day of November, 2016
## _**JUDGMENT**_
## _**A.M.Babu, J.**_
Same landlady filed two rent control petitions against the same tenant to evict him from the same building. The petitions were filed before the Rent Control Court, Thiruvananthapuram. R.C.P.50/2013 was filed under Sections 11(2)(b), (3) and (4)(ii) of the Kerala Buildings (Lease and Rent Control) Act (for short 'the Act'). R.C.P.28/2014 was filed under Section 11(4)(i) of the Act. Both rent control petitions were allowed by a common order. Appeals, namely, R.C.A.4/2016 and R.C.A.5/2016, are pending before the Rent Control Appellate Authority, Thiruvananthapuram.
2. This O.P.(R.C.) relates to R.C.P.50/2013 and
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R.C.A.4/2016. The tenant moved I.A.35/2016 before the Appellate Authority for stay of execution of the order of eviction. Interim stay was granted on condition of deposit of the admitted arrears of rent within a period of two weeks. No amount was paid or deposited. Landlady filed I.A.1438/2016 complaining non compliance of the order in I.A.35/2016 and seeking an order under Section 12(3) of the Act. The tenant contended that rent was not in arrear.
3. The Appellate Authority allowed I.A.1438/2016 directing the tenant to deposit the admitted arrears of rent. The admitted rent was taken as Rs.35,000/- per month. It appears that the tenant deposited the arrears at the rate of Rs.35,000/per month.
4. Thereafter came I.A.2352/2016. The landlady filed it to review the order in I.A.1438/2016. What was sought to be reviewed was the finding that the admitted rent was Rs.35,000/-
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per month. The landlady contended that the agreed rent was Rs.1,00,000/- per month.
5. The tenant filed objection raising a three-fold contention. First, there was no error apparent on the face of the record warranting review. Second, the review petition was barred by the law of limitation. And the third, the Rent Control Appellate Authority had no power to review its order. It was also contended that the Rent Control Court correctly found that the rent was Rs.35,000/- per month. The tenant stated that he deposited the arrears at that rate without prejudice to his contentions.
6. We heard the learned counsel for the tenant.
7. The error apparent on the face of the record as found by the Appellate Authority was that it committed a mistake in finding what precisely was the admitted rent. The Authority below found that one lakh rupee was the admitted monthly rent,
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but by mistake it was shown to be Rs.35,000/- in its order in I.A.1438/2016. The tenant had taken a contention that he had spent fifty lakhs rupees for alteration, modification, interior beautification et _cetera_ . This contention was not acceptable to the Appellate Authority. It approved the finding of the Rent Control Court that the value of the improvements made by the tenant could not be a matter that could be adjudicated upon in a rent control proceedings. It is not necessary to go into the correctness or otherwise of the said finding (in the order in I.A.1438/16) in an Original Petition under Article 227 of the Constitution of India.
8. Admitted rent is Rs.35,000/- per month or one lakh rupees per month is the simple question. As directed by us the tenant produced in this proceedings a copy of the rent control petition and also a copy of the counter-statement in R.C.P.50/13. The petition and the counter-statement have been
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marked by the tenant as Exhibits P5 and P6 respectively. Paragraph 2 of Exhibit P5 reads thus :
“The counter petitioner entered into a lease agreement dated 1.8.2012 for carrying on business in the scheduled premises from 1.8.2012 to 30.6.2013 on a monthly rent of `1,00,000/- (Rupees one lakh only).”
The last sentence of paragraph 4 of Exhibit P6 counterstatement put in by the tenant in the Rent Control Court reads as under :
“Statements in Para No.2 of the petition are true and hence admitted.”
This statement at paragraph 4 of the counter-statement is the waterloo of the tenant. There is a categoric admission that the rate of rent stated at paragraph 2 of the petition is correct. In
view of the said admission the tenant cannot be heard to say that the admitted rent is different. There has been an error apparent on the face of the record. That was correctly corrected
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by the Appellate Authority. There is little scope for interference with the finding of the Appellate Authority.
9. Law of limitation was the second ground taken to get the review petition dismissed. The order in I.A.1438/2016 was passed on 11.7.2016. The review petition filed on 23.8.2016 was not within one month. That was the objection on the law of limitation raised by the tenant. As held in **Kadimuk Islam Jamayath v. Assoo (1997 (1) KLT 231)** certified copy of the decree or order sought to be reviewed should accompany the review petition. Section 12(2) of the Limitation Act applies. The time taken to obtain the certified copy of the order shall be excluded. When so excluded, the review petition was on time. There is no merit in the contention that the review petition was barred by the law of limitation.
10. The third and the final objection against the review petition was that the Appellate Authority was not competent to
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review its order. This objection is also without any merit. For, clause (k) of Section 23 of the Act permits the Appellate Authority to review its order. It is stated in the Original Petition that clause (k) of Section 23 of the Act has no application to the present case. But it is not stated why that clause is not applicable. At the time of hearing also there was no reference to this contention.
11. As per the order in I.A.1438/2016 the tenant was granted a month's time to deposit the entire admitted arrears. As per the impugned order one month's time more was granted to pay the deficit. The said one month expired on 14.11.2016. An order under Section 12(3) of the Act is yet to be passed. So far the direction is only to pay the admitted rent. We are inclined to grant one more month from today for the payment of the deficit.
12. The Original Petition is devoid of merit. The same
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deserves dismissal. Dismissed. We grant a period of one month from today to the tenant to deposit the deficit.
**K.T.SANKARAN Judge A.M.BABU Judge**
csl/22.11
