Santosh K. Thomas (Proprietor, KIPS) v. Usha Suresh and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 4TH DAY OF DECEMBER 2012/13TH AGRAHAYANA 1934 RCRev..No. 372 of 2012 () ------------------------- RCA.118/2008 of I ADDL.DISTRICT COURT & RENT CONTROL APPELLATE AUTHORITY ERNAKULAM RCP.104/2006 of III ADDL.M.C.EKM (RENT CONTROL) REVISION PETITIONER(S)/REVISION PETITIONER/APPELLANT IN R.C.A.NO. 118/2008 AND RESPONDENT IN R.C.P.NO. 104/2006: ---------------------------------------------------------------------------------------------- SANTHOSH K.THOMAS PROPRIETOR, KIPS, IIND FLOOR S.V.BUILDINGS, M.G.ROAD, ERNAKULAM COCHIN-16, RESIDING AT PARAMBILOTH HOUSE K.S.N.MENON ROAD, COCHIN-16. BY ADVS.SRI.VARGHESE C.KURIAKOSE SRI.G.MANU KRISHNAN RESPONDENT(S)/RESPONDENTS/RESPONDENTS IN R.C.A. 118/2008 AND PETITIONERS IN R.C.P. NO.104/2006: ---------------------------------------------------------------------------------------------- 1. USHA SURESH, AGED 48 YEARS W/O. LATE SURESH, RESIDING AT REGAL ROSE APARTMENT FLAT NO. 1C, PADAM ROAD, ELAMAKKARA P.O. ERNAKULAM. 2. MISS. SRUTHI SURESH, AGED 22 YEARS D/O. LATE SURESH, RESIDING AT REGAL ROSE APARTMENT FLAT NO. 1C, PADAM ROAD, ELAMAKKARA P.O. ERNAKULAM. 3. MISS. SURABHY SURESH, AGED 20 YEARS D/O. LATE SURESH, RESIDING AT REGAL ROSE APARTMENT FLAT NO. 1C, PADAM ROAD, ELAMAKKARA P.O. ERNAKULAM. R1-R3 BY ADV. SRI.P.N.RAMAKRISHNAN NAIR & BY ADV. SRI.P.VISWANATHAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 04-122012, ALONG WITH RCR 371/12, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR & C.T.RAVIKUMAR,JJ. --------------------------------------------R.C.R.Nos.371 & 372 of 2012 --------------------------------------------Dated 4[th] December, 2012 ## ORDER ## Sasidharan Nambiar,J. Appellant is the tenant and respondent in R.C.P.104/2006 before Rent Control Court, Ernakulam. Respondents are the landlords petitioners. Petition Schedule building, admittedly, obtained on rent by the petitioner from Suresh on monthly rent. Suresh admittedly died on 18/1/2004. First respondent is the widow and other respondents, their children. The fact that on the death of Suresh, his rights devolved on respondents as his legal heirs was not disputed. Respondents instituted the R.C.P claiming an order of eviction under Section 11(2)(b) and 11(3) of the Kerala Buildings (lease and Rent Control) Act (Act 2 of 1965). An order of eviction under Section 2 11(2)(b) was claimed contending that monthly rent payable from 2000 is Rs.13,800/- per month. It was contended that petitioner defaulted to pay the rent from 10/12/2005 and in spite of notice demanding the arrears of rent, sent on 6/1/2006, rent was not paid. Petitioner resisted the R.C.P contending that the respondents have no title to the building. It was based on the contention that the building does not belong to Suresh but to Sankunni Vaidyan, though fact that the building was obtained from Suresh was admitted. It was also admitted that monthly rent payable from 11/4/2000 is Rs.13,800/-. Petitioner also did not dispute the fact that no rent was paid from 10/12/2005. Petitioner also contended that he had paid an advance of Rs.2,00,000/- which is liable to be adjusted towards the arrears of rent. According to the petitioner he paid 3 Rs.1,00,000/- on 19/11/1996, Rs.25,000/- each on 9/1/1997, 10/2/1997, 20/2/1997 and 31/3/1997. As petitioner did not pay/deposit the rent which accrued even after the institution of the R.C.P, respondents filed I.A.9600/2007 under Section 12 of the Kerala Act 2 of 1965, for a direction to the petitioner to put the respondents in possession of the building. Petitioner resisted the said petition re-iterating the contentions taken in the objection filed in the R.C.P that there is denial of title and there is also payment of advance which is liable to be adjusted towards the arrears of rent. 2. By order dated 23/1/2008 Rent Control Court found that the denial of title is not bonafide and the petitioner admittedly paid rent to the respondents, after the death of original landlord and also admitted the monthly 4 rent of Rs.13,8000/- and that it is not paid from 10/12/2005. The petitioner was directed to deposit the arrears of rent at the rate of Rs.13,8000/- from 10/12/2005 within thirty days from the date of the order. Petitioner challenged that order before the Appellate Authority, Ernakulam in R.C.A.57/2008. Petitioner contended that being an order passed under Section 11(1), he is entitled to challenge the order in an appeal there is no separate order under Section 11(1), the order under Section 12(1) is not sustainable. It was also contended that when there is a deposit of security amount, which is liable to be adjusted, petitioner is not liable to deposit the arrears of rent as directed and the direction to pay arrears of rent is not sustainable. Though the appeal was admitted, Appellate Authority did not grant an order of 5 stay. Petitioner failed to deposit the amount within time provided under the order dated 23/1/2008. Rent Control Court, therefore, directed the petitioner to show cause why he shall not to be directed to put the landlords in possession of the building. Petitioner submitted a statement that as the liability to pay rent is challenged in R.C.A.57/2008, he did not deposit the amount and hence, he is not liable to put the landlord in possession. Rent Control Court by order dated 24/6/2008 found that as no order of stay was passed by the Appellate Authority, petitioner is bound to pay or deposit the rent within the time and as he did not deposit the amount, landlords are entitled to an order under Section 12(3) was passed. Petitioner was directed to put the landlords in possession of the buildings. R.C.A.118/2008 is filed challenging the said 6 order. 3. Appellate Authority, Ernakulam heard both the appeals together. As is clear from the order of the Appellate Authority, petitioner only contended that during the pendency of the appeal, he had paid the entire arrears of rent as found by the Rent Control Court directly to the learned counsel appearing for the respondents and even if there was no deposit within the time, as provided under the order under Section 12(1), the Appellate Authority is competent to extent the period and therefore, sought extension of time and to permit the petitioner to contest the R.C.P., Appellate Authority did not consider the question whether existence of security deposit is a bar for passing an order under Section 12(3) even though appellant had contended that the advance is liable to be 7 adjusted towards arrears of rent. Instead finding that in spite of the order passed by the Rent Control Court, petitioner did not pay the arrears and he did not file application for extension of time, it was found that the time cannot be extended and dismissed both the appeals. R.C.R.No.371/2012 is filed challenging the judgment in R.C.A.57/2008 and R.C.R.372/2012 challenging the judgment in R.C.A.118/2008. 4. Learned counsel appearing for the petitioner and learned counsel appearing for the respondents were heard. 5. It is true that petitioner had disputed the title, contending that the title vests with Sankunni Vaidyan and before the order under Section 12(1) was passed, Rent Control Court did not pass an order under Section 11(1), finding that denial of title 8 is not bonafide. But the order passed by the Rent Control Court under Section 12(1) shows that it was specifically found that the dispute of title is not bonafide. Therefore, for the reason that there is no specific order, prior to the order passed under Section 12(1), that the dispute of title is not bonafide, we do not find any illegality in the order as canvassed by the learned counsel. As rightly found by the Rent Control Court as well as the Appellate Authority, it is admitted by the petitioner that Suresh was the original landlord from whom the petitioner obtained the building on rent. It is also not disputed that respondents are the legal heirs of said Suresh. Petitioner also admitted that he has paid rent, subsequent to the death of Suresh to the first respondent. In such circumstances, the dispute of title is not at all bonafide. Petitioner, the tenant is 9 not entitled to challenge or dispute the title of respondents, his landlords. 6. Though learned counsel appearing for the petitioner relying on the decision of a learned Single Judge of this Court in **Pathumma Beevi v. Lonappan (1985 KLT 705)** argued that landlord is bound to adjust the security amount towards the arrears of rent and when there is a deposit of security amount, tenant cannot be directed to deposit arrears of rent, before adjusting the security amount, under Section 12 of the Act and also relied on the decision of the Supreme Court in **G.Reghunathan v. K.V.Varghese (2005 (7) SCC** **317)** , we cannot agree with the submission. Honourable Supreme Court in Raghunathan's case (supra) relying on Section 8(1) of the Kerala Act 2 of 1965 held that no landlord is entitled to receive as advance any amount in 10 excess of one month's rent and if he has accepted or received any amount in excess of one month's rent, it is liable to be repaid to the tenant forthwith. When Section 8(1) is not in Statute book, as Section 8 was declared ultra vires by the Division Bench of this Court ## in **Issac Ninan v. State of Kerala (1995 (2) KLT** **848** ), based on Section 8(1) petitioner cannot contend that respondents are not entitled to retain the security amount in excess of one month's rent and therefore, he is not liable to deposit arrears of rent as found by Rent Control Court. Though in **Edger Ferus v.** **Abraham Ittycheria (2004 (1) KLT 767)** , Section 5(1) out of Sections 5,6 and 8 which were declared ultra vires in Issac Ninan's case, was severed and retained in the Statute, the declaration in Issac Ninan's case that Section 11 8 is ultra vires is still subsisting. Another Division Bench in **Nalla Thampy Thera v. Abdulla** **(2002 (2) KLT 158** ) considered the said question and held that Section 8 is not in the Statute book and based on Section 8(1) a tenant is not entitled to contend that the landlord is not entitled to retain the advance in excess one month's rent. In such circumstances, case of the petitioner that Rent Control Court was not justified in passing an order under Section 12(1), when there is deposit of Rs.2,00,000/- as security, is also not sustainable. We find no illegality in the orders passed under Section 12(1) or 12(3) of the Act. 7. But as is clear from the judgment of the Appellate Authority, when the appeals were pending, the learned counsel appearing for the respondents had received the arrears of 12 rent, which was directed to be paid by the Rent Control Court by the order passed under Section 12(1), which was also directed to be paid by the Appellate Authority. It is thus clear that petitioner was persuaded to pay the arrears of rent under a bonafide belief that by such payment he would be permitted to contest the R.C.P, forgoing the order passed under Section 12 of the Act. In such peculiar facts and circumstances of this case, we are inclined to grant an opportunity to the petitioner to have a decision on merits, even though the orders passed under Section 12(1) and (3) are not illegal. Though learned counsel appearing for the respondents opposed granting such opportunity, as stated earlier in the peculiar facts and circumstances of this case, we are inclined to grant an opportunity to the petitioner which could only be on conditions. 13 8. Petitioner tenant shall pay to the respondents or deposit before the Rent Control Court the entire arrears of rent from 10/12/2005 till the date of deposit, at the rate of Rs.13,800/- per month, less the amount which was already deposited/paid, on or before 10/1/2013. If the petitioner fails to pay/deposit the said amount, Rent Control Court shall pass an order directing the petitioner/tenant to put the respondents landlords in possession of the building immediately. In the event the petitioner tenant paying/depositing the rent as directed, Rent Control Court shall dispose the R.C.P within three months from that date. We record the submission of the learned counsel appearing for the petitioner tenant that the tenant will not press the plea of denial of title and also the liability to deposit the rent before Rent 14 Control Court based on the security deposit. Petitioner shall also continue to deposit/pay the rent at the rate of Rs.13,800/- that accrued due from 10/1/2013 till the disposal of R.C.P. Parties to appear before the Rent Control Court on 10/1/2013. Revisions are disposed accordingly. M.SASIDHARAN NAMBIAR, JUDGE. C.T.RAVIKUMAR, JUDGE. uj.