T.K. Benny v. Vikas Chacko

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ``` RCREV.NO.266OF 2023 ``` ``` AGAINST THE ORDER IN RCP NO.8 OF 2018 OF MUNSIFF MAGISTRATE, SULTHAN BATHERI ARISING OUT OF THE JUDGMENT IN RCA NO.1 OF 2022 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, KALPETTA ``` ## **`REVISION PETITIONER/APPELLANT/REVISION PETITIONER:`** ``` T.K. BENNY AGED 54 YEARS S/O KURIAKOSE, KOTTAKKUNNU, THINDIYATHIL HOUSE, SULTHAN BATHERY POST, SULTHAN BATHERY TALUK, WAYANAD DISTRICT,, PIN - 673592 BY ADVS. SAJI.P.JOSEPH ; C.C.MATHEW G.MINI (PALATH); K.T.SAJU A.SEENA THANKARAJAN P.K. DEEPESH E.S SALI. P. MATHEW (MUNNAR) ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` VIKAS CHACKO AGED 42 YEARS S/O CHACKO, VELLAMATTATHIL HOUSE, NAGARAMCHAL, NOOLPUZHA P.O, KUPPADI AMSOM, DESOM, SULTHAN BATHERY TALUK, WAYANAD DISTRICT., PIN - 673592 BY ADVS. NOEL EALIAS(K/001630/2022)(caveator) SUNIL V. MOHAMMED ; NOEL EALIAS(K/001630/2022) TOM PIOUS(K/2065/2021) ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ``` ``` ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.C.(Rev) .No266 of 2023 ## **O R D E R** ## G. Girish, J. The tenant in R.C.P.No.8 of 2018 of the Rent Control Court, Sulthan Bathery, aggrieved by the concurrent findings of the said court as well as the Rent Control Appellate Authority (Additional District Judge-II), Kalpetta, Wayanad ordering eviction under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'), has filed this revision. 2. The respondent-landlord had instituted the R.C.P seeking eviction of the revision petitioner, an Advocate, from the petition schedule room on the ground of arrears of rent, bona fide need and subletting envisaged under Sections 11(2)(b), 11(3) and 11(4)(i) respectively of the Act. The Rent Control Court disallowed the request for eviction under Sections 11(3) and 11(4)(i) of the Act, but permitted the respondent-landlord to have possession of the petition schedule room on the ground envisaged under Section 11(2)(b) subject to Section 11(2)(c) of the Act. Though the revision petitioner challenged the above verdict before the Rent Control Appellate Authority, he could not succeed. Thus, the revision petitioner is here before this Court challenging the judgment of the Rent Control Appellate Authority (Additional District Judge-II), Kalpetta dated 14.07.2023 in R.C.A.No.1 of 2022. 3 R.C.(Rev) .No266 of 2023 3. Though various objections from denial of landlord-tenant relationship to claim of set off/adjustment of the rent with the security advance amount said to have been paid, were raised before the trial court and Appellate Authority, the revision petitioner confined his challenge to the validity of statutory notice issued under the proviso to Section 11(2)(b) of the Act, in the arguments advanced in this revision. 4. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent-landlord. 5. The point to be decided is whether the concurrent findings of the Rent Control Court and the Rent Control Appellate Authority in the matter of eviction of the revision petitioner under Section 11(2)(b) of the Act, is liable to be interfered with in this revision. 6. Admittedly, the petition schedule room came under the occupation of the revision petitioner pursuant to a lease deed executed by one Mrs.K.M.Afsath, the owner of that building, in the year 2003. The revision petitioner admits his capacity as tenant of the room presently held by him. The respondent-landlord claims to have obtained the above room from Mrs.K.M.Afsath by virtue of a sale deed executed in the year 2012. The abovesaid sale deed is seen produced before the Rent Control Court and marked in evidence 4 ## R.C.(Rev) .No266 of 2023 as Ext.A2. The revision petitioner-tenant would contend that he was totally unaware of the sale of the room held by him as lessee, to the respondent-landlord by Mrs.K.M.Afsath. According to the revision petitioner, he continued to pay rent to Mrs.K.M.Afsath even for several years past 2012. It is upon the above premises that the revision petitioner had challenged the landlord-tenant relationship between the respondent and himself. However, the revision petitioner-tenant would admit the receipt of the statutory notice issued by the respondent-landlord, which has been marked in evidence before the trial court as Ext.A6. 7. The learned counsel for the revision petitioner would contend that no legal sanctity could be attributed to Ext.A6 notice since the identity of the shop room mentioned in the said notice is totally different from the identity of the shop room described in the petition filed before the trial court. It is also pointed out that the descriptions of the above shop room in the sale deed and rent deed relied on by the respondent-landlord, do not tally. Thus, it is stated that no order under Section 11(2)(b) of the Act could be passed on the basis of the said notice issued by the respondent-landlord. 8. The contention of the revision petitioner-tenant disputing the identity of the petition schedule shop room by harping upon the discrepancies in the building number, name of village etc., 5 R.C.(Rev) .No266 of 2023 mentioned in the statutory notice, cannot be accepted, since it could be seen from the additional counter statement filed by the revision petitioner before the Rent Control Court, Sulthan Batheri on 01.10.2019 that he has absolutely no confusion about the room held by him on lease from Mrs.K.M.Afsath, which was subsequently sold to the respondent-landlord. In paragraph No.3 of the above additional counter statement, the revision petitioner unequivocally admits the rental arrangement with Mrs.K.M.Afsath. A conjoint reading of Paragraph Nos.5 and 7 of the above additional counter statement would make it clear that the rent in respect of the above said shop room held by the revision petitioner, fell in arrears from 01.02.2015 onwards. In paragraph No.6 of the above counter statement, the revision petitioner admits that his landlord Mrs.K.M.Afsath had informed him in the year 2011 that she had entered into an agreement with a person to sell the room held by the revision petitioner, and that the revision petitioner has to vacate the said room before the execution of sale deed. Again, in paragraph No.7 of the above additional counter statement, the revision petitioner admits that he had conveyed his willingness to vacate the room to Mrs.K.M.Afsath when she informed him about the execution of the sale deed in respect of the room held by him as tenant. The revision petitioner had also made clear in the same paragraph that 6 R.C.(Rev) .No266 of 2023 he had paid rent to Mrs.K.M.Afsath till 01/02/2015 since he was told by her that the purchaser has allowed her to receive the rent. In paragraph No.8 of the additional counter statement, the revision petitioner-tenant has stated that in the month of January, 2015, he had found a new room and informed Mrs.K.M.Afsath about his decision to vacate the room, but he continued occupation in the same room as permitted by Mrs.K.M.Afsath who is said to have informed the revision petitioner that she had not yet received the sale consideration in full, and hence she was not in a position to return the security advance of Rs.1,00,000/- said to have been received from the revision petitioner. The above statements made by the revision petitioner in the additional counter statement filed by him before the Rent Control Court, Sulthan Bathery, leave no room for any doubt about the identity of the leasehold building held by him as a tenant. Nor could the revision petitioner turn round from the unequivocal statements made in the additional counter statement and contend that he was totally unaware of the sale of the room by Mrs.K.M.Afsath to the respondent-landlord. 9. It is common knowledge that the numbers allotted to buildings by Local Self Government institutions would change periodically whenever there is re-assessment made by such institutions. So also, the Village within which a particular area is 7 R.C.(Rev) .No266 of 2023 comprised, is likely to change with the formation of new Taluks, or due to delimitation of constituencies. Thus, the identity of a particular building with respect to its number allotted by the local authority, and the Village in which it is situated, is likely to be different after a long period of time. When viewed in the above perspective, it is not possible to consider the changes in the building number, name of Village etc. in respect of a particular building, in the documents executed at different points of time, as a substantial defect which would affect the identity of that building. As far as the present case is concerned, the revision petitioner-tenant is having no doubt or confusion about the petition schedule building in R.C.P.No.8 of 2018 which he obtained on lease from Mrs.K.M.Afsath, which later on came under the ownership of the respondentlandlord. That being so, there is absolutely no merit in the argument that the proceedings initiated by the respondent-landlord under Section 11(2)(b) of the Act would fail due to the variations in the building number, name of Village, etc. in the statutory notice, and the petition schedule description. 10. As per the proviso to Section 11(2)(b) of the Act, the requirements to be fulfilled for a notice envisaged thereunder are as follows: 8 R.C.(Rev) .No266 of 2023 - (i) The landlord has to send the notice to the tenant through registered post. - (ii) The notice should intimate the tenant about the default in payment of rent, and call upon him to pay the rent together with interest at the rate of 6% per annum, and the postal charges incurred in sending the notice. - (iii) The notice should be one providing 15 days’ time from the date of receipt of it by the tenant, for making payment of the defaulted rent. 11. It is seen from the records that the above requirements of law have been substantially complied by the respondent-landlord while issuing the statutory notice to the revision petitioner, which has been marked in evidence before the Rent Control Court as Ext.A6. Therefore, the challenge raised by the revision petitionertenant against the validity of the statutory notice issued to him, is totally unfounded. 12. The revision petitioner-tenant is seen to have raised a contention before the Rent Control Court and Appellate Authority about the payment of a security advance amount of Rs.1,00,000/to Mrs.K.M.Afsath, the previous landlord of the petition schedule shop room. He has also taken up a contention that the actual rent which was being paid by him to Mrs.K.M.Afsath was only Rs.700/per month, and that such payments were made by him to the above person till 01.02.2015. According to the revision petitioner, the 9 R.C.(Rev) .No266 of 2023 above payments made by him to the previous landlord, is liable to be adjusted with the rent arrears due from him. 13. The claim of the revision petitioner-tenant for adjustment/set off of the security advance amount of Rs.1,00,000/said to have been made by him to the previous landlord, is prima facie unsustainable in law in the light of the decisions of this Court in **Abdul Gafoor M.C v. K.Abdurahiman and another [2015 (3) KHC 775]** , **Gopala Panicker Baiju and Another v. Mallika [2018 (5) KHC 95]** and **Abdul Razak P.M v. K.C.Thomas and Others [2022 (4) KHC 260]** . As regards the claim of the revision petitioner-tenant about his continued payment of rent to the previous landlord till 01.02.2015 at the rate of Rs.700/- per month, it has to be stated that there is absolutely no evidence adduced by the tenant before the Rent Control Court in that regard. It is to be noted that the revision petitioner-tenant, who is said to be an Advocate by profession, did not feel it necessary to enter the witness box and adduce oral evidence in the trial before the Rent Control Court, in support of the contentions set forth by him, opposing the eviction sought by the respondent-landlord under Section 11(2)(b) of the Act. In view of the total absence of evidence of any sort on the part of the revision petitioner-tenant, the Rent Control Court and the Appellate Authority, cannot be found fault with, for not 10 ## R.C.(Rev) .No266 of 2023 attributing any credence upon the contentions raised by him against the claim of the respondent-landlord. 14. Thus, there is absolutely no reason to interfere with the findings of the Rent Control Court and the Appellate Authority about the arrears of rent due to the respondent-landlord from the revision petitioner, and the entitlement of the respondent-landlord to have possession of the petition schedule shop room under Section 11(2)(b), subject to the provisions contained in Section 11(2)(c) of the Act. Needless to say, that this revision is destined only to fail. We accordingly, dismiss this revision petition. Sd/- Sd/- **G. GIRISH, JUDGE** jsr/vgd 11 R.C.(Rev) .No266 of 2023 ## **`APPENDIX OF RCREV. 266/2023`** ## **`PETITIONER’S ANNEXURES`** ``` ANNEXURE A1CERTIFIED COPY OF THE RENT AGREEMENT PRODUCED IN RCP 8/2018 BY THE PETITIONER IN RCP 8/2018 ``` ``` ANNEXURE A2CERTIFIED COPY OF THE OF SALE DEED NO.3802/12 DATED 24.10.2016 ``` ``` ANNEXURE A3TRUE COPY OF THE RENT RECEIPT DATED 1/2/2015 BY K.M. AFSATH IN FAVOR OF REVISION PETITIONER ``` ``` ANNEXURE A4CERTIFIED COPY OF THE LAND TAX RECEIPT NO.KL12020605429/2019 DATED ON.01.06.2019 ANNEXURE A5CERTIFIED COPY OF THE REPLY NOTICE IS PRODUCED IN RCP 8/2018 AS EXHIBIT A6. ``` - **`ANNEXURE A6 TRUE COPY OF THE REPLY NOTICE DATED 18/1/2018`** - **`ANNEXURE A7 TRUE COPY OF THE PETITION IN RCP 8/2018 ANNEXURE A8 THE CERTIFIED COPY OF THE COUNTER STATEMENT IN RCP 8/2018 FILED BY REVISION PETITIONER`** - **`ANNEXURE A9 THE CERTIFIED COPY OF THE ADDITIONAL COUNTER STATEMENT FILED BY THE RESPONDENT IN RCP NO. 8/2018`** ``` ANNEXURE A10TRUE COPY OF THE APPEAL MEMORANDUM IN RCA 1/2022 ``` ``` ANNEXURE A11TRUE COPY OF THE NOTES OF ARGUMENT RCA 1/2022 ``` ``` RESPONDENT’s ANNEXURES ``` ``` ANNEXURE R1THE CERTIFIED TRUE COPY OF THE OF THE POWER OF ATTORNEY DATED 04.04.2015 PRODUCED IN CONNECTED RCP NO. 15/2015 OF THE HON'BLE RENT CONTROLLER, SULTAHAN BATHERI ``` ``` ANNEXURE R2THE CERTIFIED TRUE COPY OF THE COUNTER OF THE RESPONDENT TO IA NO. 322/2019 IN RCP NO. 8/2018 FILED BEFORE THE HON'BLE RENT CONTROLLER, SULTAHAN BATHERI ```