Sreelatha Sunilkumar v. N.S.S. Karayogam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 14[TH] DAY OF DECEMBER 2022 / 23[RD] AGRAHAYANA, 1944 ``` ``` RCREV. NO. 201 OF 2022 AGAINST THE JUDGMENT IN RCA NO.32 OF 2022 DATED 31-10-2022 OF THE DISTRICT JUDGE & RENT CONTROL APPEALLATE AUTHORITY ERNAKULAM WHICH IS ORIGINATED FROM THE ORDER IN I.A. NO.1/2022 IN RCP NO.179 OF 2015 OF THE RENT CONTROL CORUT,/III ADDITIONAL MUNSIFF’S COURT, ERNAKULAM DATED 21-06-2022. ``` ``` REVISION PETITIONER/APPELLANT/PETITIONER/ RESPONDENT: ``` ``` SREELATHA SUNILKUMAR AGED 54 YEARS, D/O A.K. SIVAN PILLAI, EDAKATHALATHIL VEETTIL, ELOOR P.O., ELOOR KISHAKKUMBHAGAM, PARAVUR TALUK, ERNAKULAM DISTRICT, PIN - 683501 BY ADVS. BABU CHERUKARA ARUN BABU ``` ``` RCREV. NO. 201 OF 2022 ``` ``` 2 ``` ## **`RESPONDENT/RESPONDENT/RESPONDENT/PETITIONER:`** ``` N.S.S. KARAYOGAM 2124 REPRESENTED BY IT'S SECRETARY, ELAMAKKARA, KOCHI, - 682 026 ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RCREV. NO. 201 OF 2022 ``` ``` 3 ``` ## **`JUDGMENT`** ## **`A. MUHAMED MUSTAQUE, J.`** ``` The point that has to be considered in this revision is, whether a tenant, who is ordered to be evicted for default of arrears of rent, can avail the benefit of section 11(2)(c) of the Kerala Buildings (Lease and Rent) Control Act, 1965, to vacate an order of eviction based on rent arrears deposited while challenge in appeal was pending. ``` ``` 2. The brief facts of the case are as follows: ``` ``` The tenant was sought to be evicted on the ground of defaulted payment of rent under section 11(2)(a)(b) of the Act. The tenant raised a dispute as to the title of the landlord. Overruling his objection and noting that tenant failed to pay the rent arrears, an order under ``` ``` 4 ``` ``` RCREV. NO. 201 OF 2022 ``` ``` section 11(2)(a)(b) of the Act was passed on 03.07.2018. The eviction petition was preceded by a mandatory notice. Going by the calculation of the rent arrears, as per the notice, the rent arrears payable was Rs.11,400/-. The tenant deposited, Rs.87,400/- on 21.11.2018 and also made a further payment of Rs.22,800/- on 25.11.2019. The appeal filed by the tenant was dismissed on 18.06.2019. The revision filed before this Court by tenant was also dismissed on 09.10.2019. ``` ``` 3. The tenant filed I.A. No.1/2022 to vacate the order under section 11(2)(b) of the Act invoking the provisions under section 11(2)(c) of the Act. This was resisted by the landlord. The court below noting that the entire arrears have not been paid up to the date, dismissed application. The matter was carried in appeal by the tenant. The Appellate Authority also ``` ``` 5 ``` ``` RCREV. NO. 201 OF 2022 ``` ``` affirmed the order of the Rent Controller. Challenging the above, this revision is filed invoking section 20 of the Act. ``` ``` 4. Heard the learned counsel for the tenant and the landlord. ``` ``` 5. The first question to be considered in the light of formidable objection by the landlord is in regard to the rent payable under Section 11(2) (b). According to the tenant, rent payable is only the rent arrears as covered by the mandatory notice. According to the learned counsel for the landlord, the entire arrears upto date will have to be construed as a rent payable. It is profitable to refer the provision for eviction under section 11(2)(a), (b) and (c): ``` ``` ‘’11. Eviction of tenants.-(1) xxx xxx ``` ``` (2)(a) A landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf. ``` ``` (b) If the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, ``` ``` RCREV. NO. 201 OF 2022 ``` ``` 6 ``` ``` is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him: ``` ``` Provided that an application under this sub-section shall be made only if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at six percent per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the nott of proceedings, within the said period of one month or such further period, as the case may be, it shall vacate that order.ice or of the refusal thereof. ``` ``` (c) The order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall not be executed before the expiry ot of proceedings, within the said period of one month or such further period, as the case may be, it shall vacate that order.f one month from the date of such order or such further period as the Rent Control Court may in its discretion allow; and if the tenant deposits the arrears of rent with interest and cost of proceedings, within the said period of one month or such further period, as the case may be, it shall vacate that order.’’ ``` ``` RCREV. NO. 201 OF 2022 ``` ``` 7 ``` ``` 6. The Rent Control Court can order eviction only on being satisfied that the tenant has not paid or tendered rent due to him in respect of the building within 15 days. The notice preceding eviction petition is a mandatory as seen from proviso to section 11(2)(b) of the Act. The fact that tenant has failed to pay or tender rent together with interest @ 6% per annum would give cause of action to the landlord in approaching the Rent Control Court for eviction. The rent payable thereafter, cannot be considered as part of the demand raised in the notice. The defaulted rent has to be understood with reference to the cause of action enuring to the landlord consequent upon non-payment of rent after sending registered notice. No doubt, in a proceedings under Section 12 of the Act, pending Rent Control Petition, the landlord is entitled to demand ``` ``` RCREV. NO. 201 OF 2022 ``` ``` 8 ``` ``` entire admitted arrears of rent and if the tenant fails to pay the entire admitted arrears of rent, the Rent Control Court can order tenant to put landlord in possession. The order under section 12 can be passed only in pending proceedings. The order under section 11(2)(a)(b) of the Act can be passed only with reference to the cause of action enured to the landlord prior to presenting the eviction proceedings. That means, consequent upon the default of payment of rent pursuant to mandatory notice. A learned Single Judge of this Court in Sulochana v. Kalyani [2006(1) KLT (SN 85(C.No.123)] held that the tenant is only liable to deposit the rent, which was claimed in the notice. We are of the considered view that, in order to vacate the order passed under section 11(2)(b), the tenant is liable to pay only the amount under default pursuant to notice together with interest @ 6% per annum, postal charges, for ``` ``` RCREV. NO. 201 OF 2022 ``` ``` 9 ``` ``` sending such notice as referred under proviso to section 11(2)(c) of the Act. ``` ``` 7. The next question is whether a petition filed after the period fixed under section 12(c) to vacate order under section 11(2)(b) is maintainable or not. Admittedly, the present petition was filed only in the year 2022, much after the disposal of revision by this Court as early as on 09.10.2019. Going by the language of section 11(2)(c) of the Act, we are of the view that there is no requirement of separate or formal application under section 11(2)(c) of the Act to pass such an order. No doubt, such an application is ideal, so as to enable the court to conduct an enquiry as to the actual rent payable along with interest, postal charges etc., giving opportunity to both parties to contest such application and to give an order thereon by the Court. But, it does not mean that the ``` ``` 10 ``` ``` RCREV. NO. 201 OF 2022 ``` ``` application is mandatory going by the language of section 11(2)(c) of the Act. Even an oral request would be sufficient for the court to pass such an order under section 11(2)(c) of the Act. ``` ``` 8. However, a serious objection has been raised by the landlord in regard to the deposit made and to vacate the order under section 11(2) ``` ``` (c) of the Act. According to the learned counsel, the thirty days' period fixed under the order passed by the Rent Control Court already ran out much before the deposit made by the tenant before the court below pursuant to the direction by the Appellate Court. Therefore, that deposit cannot save the tenant from the impending eviction, consequent upon non-compliance of the order passed by the Rent Control Court. According to the learned counsel for the landlord, the nature of relationship between landlord and ``` ``` RCREV. NO. 201 OF 2022 ``` ``` 11 ``` ``` tenant have been determined consequent to an order passed under section 11(2)(a)(b) of the Act and non-compliance thereon, the status of the tenant has become a trespasser and therefore, the court cannot now revive his status as a tenant by vacating order under section 11(2)(c). The learned counsel placed reliance on judgment of the Apex Court in Atma Ram Properties(P) Ltd. v. Federal Motors(P) Ltd.[2005 KHC 370] and an unreported judgment in Civil Appeal No.5996 of 2021. First of all, we note that these judgments are rendered appreciating the provisions under the Delhi Rent Control Act, where the definition of 'tenant' is not similar to that of the Kerala Buildings (Lease and Rent) Control Act, 1965. Under the Delhi Rent Control Act, the definition of the word “tenant” in Section 2(i) does not include any person against whom an Order or Decree for Eviction has been made.The ``` ``` RCREV. NO. 201 OF 2022 ``` ``` 12 ``` ``` definition of “tenant”, in our legislation, would mean that any person, by whom or on whose account, rent is payable for a building and includes the heir or heirs of a deceased tenant. The tenant availed a challenge against the order of the Rent Control Court, before the Appellate Authority and also availed a challenge before the revisional authority. The order passed by the Rent Control Court finally merged with the order of the revisional authority of this Court on 09.10.2019 that means the period fixed in section 11(2)(c) to vacate the order would only run from the date of the order passed by the revisional court before this Court. ``` ``` 9. In view of the fact that tenant has already deposited entire arrears of rent and there is no formal requirement of filing an application, the courts below ought to have taken ``` ``` 13 ``` ``` RCREV. NO. 201 OF 2022 ``` ``` note of the deposit already made by the tenant to vacate the order of eviction passed under section 11(2)(b). However, before doing so, the Court below shall calculate the rent payable as per the notice @ 6% interest and postal charges incurred for sending notice etc. to set off the same from the amount already deposited before the court below. ``` ``` 10. The learned counsel appearing for the landlord further argued that if the tenant deposited the amount not towards the rent arrears, but on a compliance of a direction of the appellate authority to obtain stay, cannot be treated as a payment towards rent arrears. It is true, in compliance of the direction, the tenant deposited amount before the Rent Control Court. It was not towards rent arrears, though it was calculated based on the rent arrears, as on the passing of the order by the Appellate Authority. ``` ``` RCREV. NO. 201 OF 2022 ``` ``` 14 ``` ``` Be that as it may, once appeal is dismissed and revision thereon is also dismissed, the deposit so made would attain the colour of rent as the tenant has no other obligation but to discharge the amount towards rent arrears. We cannot construe that the amount so paid pursuant to the order of the Appellate Authority was not towards arrears of rent. The tenant, having raised a question on the title of the landlord, could deposit the amount only based on the direction of the Court, not as a discharging obligation under contract to pay rent. The nature of payment therefore cannot have much consequences, when the entire matter attained finality after the disposal of the revision before this Court. ``` ``` 11. In such circumstances, we are of the view, both the Authorities failed to consider the matter in proper perspective and decide the question on Section 11(2)(c). Hence, we set aside ``` ``` 15 ``` ``` RCREV. NO. 201 OF 2022 ``` ``` the impugned order and allow the application filed by the tenant under section 11(2)(c) of the Act. The landlord is permitted to withdraw the entire amount after depositing the defaulted rent, interest and postal charges, from the deposits already made. ``` ``` The revision accordingly stands allowed and impugned orders are set aside. ``` ``` SD/- ``` ## **`A.MUHAMED MUSTAQUE`** ``` JUDGE ``` ``` SD/- ``` ``` SHOBA ANNAMMA EAPEN JUDGE ``` ``` BR ```