VIJAYAKUMAR v. MARIKULAM MAHADEVA KSHETHRAM & VINOD KUMAR

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN** **&** **THE HONOURABLE MRS. JUSTICE M.R. ANITHA WEDNESDAY, THE 28[TH] DAY OF JULY 2021 / 6TH SRAVANA, 1943 R.C.REV. NO. 354 OF 2019** **AGAINST THE JUDGMENT DATED 30.07.2019 IN R.C.A.NO.9 OF 2010 OF THE RENT CONTROL APPELLATE AUTHORITY-I, ALAPPUZHA, ARISING OUT OF THE ORDER DATED 05.03.2010 IN I.A.No.2037 OF 2009 IN R.C.P.No.6 OF 2008 OF THE RENT CONTROL COURT, CHERTHALA** ## **REVISION PETITIONER/S:** **VIJAYAKUMAR, AGED 60 YEARS, S/O.PARAMESWARA KURUP, KIZHAKKE MOOPPILANCHERIYIL, MARARIKULAM MURI, MARARIKULAM VILLAGE, ALAPPUZHA-688 523.** **BY ADVS. P.B.KRISHNAN SRI.SABU GEORGE SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.MANU VYASAN PETER** ## **RESPONDENT/S:** **1 MARIKULAM MAHADEVA KSHETHRAM, REPRESENTED BY THE DEVASWOM MANAGER, MARARIKULAM, ALAPPUZHA-688 523.** R.C.REV.NO.354 OF 2019 -2- **2 VINOD KUMAR, AGED 56 YEARS, S/O.PARAMESWARA KURUP, KIZHAKKEMOOPPILANCHERIL, MARARIKULAM MURI, MARARIKULAM VILLAGE, ALAPPUZHA-688 523.** **BY ADVS. SRI.JACOB TOMLIN VARGHESE SRI.BIJISH B.TOM SRI.GENS GEORGE ELAVINAMANNIL SRI.JOY THATTIL ITTOOP SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 28.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.REV.NO.354 OF 2019 -3- ## **ORDER** ## **Anil K. Narendran, J.** The petitioner-tenant is the applicant in I.A.No.2037 of 2009 in R.C.P.No.6 of 2008 on the file of the Rent Control Court, Cherthala, an application filed under Section 11(2)(c) of the Kerala Buildings (Lease and Rent Control) Act, 1965 seeking an order to vacate the order of eviction granted by the Rent Control Court under Section 11(2)(b) of the Act, in its order dated 20.06.2009 in that R.C.P., in respect of two shop rooms in the building bearing No.VIII/240 of Mararikulam Grama Panchayat, owned by the respondentlandlord. The Rent Control Court, by the order dated 05.03.2010 in I.A.No.2037 of 2009, vacated the order of eviction granted in the R.C.P., for the reasons stated therein. That order was under challenge in R.C.A.No.9 of 2010 filed by the landlord before the Rent Control Appellate Authority-I, Alappuzha. By the judgment dated 3.11.2015, the Appellate Authority allowed that R.C.A. Challenging the judgment of the Appellate Authority the petitioner-tenant filed R.C.Rev.No.56 R.C.REV.NO.354 OF 2019 -4- of 2016 before this Court, which was allowed by the order dated 06.03.2018, remanding the matter to the Appellate Authority. Paragraph 8 of that order reads thus: “8. We have carefully gone through the impugned judgment. Besides making a statement to the effect that the interest applied by the respondent/the revision petitioner herein is incorrect and that it should have been reckoned from the respective days of default and therefore, interest calculated is insufficient, there is no clear finding by the Appellate Authority that what exactly was the amount payable towards interest and how the calculation made by the revision petitioner went wrong. So also, there is recital in the impugned judgment to the effect that the cost reckoned by the respondent/the revision petitioner is insufficient. True that in paragraph No.5, the Appellate Authority took note of the fact that the cost ordered by the Rent Control Court was Rs.1,477/- whereas in the statement filed by the revision petitioner/the tenant only an amount of Rs.200/- was shown as cost. In this context, it is also to be noted that the revision petitioner has a further contention. It is his case that while effecting payment of/deposit of arrears of rent what is required to be paid is only the arrears upto the date of notice. The learned Senior counsel, to fortify the said contention, R.C.REV.NO.354 OF 2019 -5- relied on a decision of the Hon'ble Apex Court in **Chinnamma v. Gopalan [1995(2) KLT 755]** . In the light of the said decision, we have no hesitation to uphold the said contention of the learned counsel appearing for the revision petitioner. In fact, the said position was correctly understood by the Appellate Authority as can be seen from the impugned judgment. The contention of the learned Senior counsel is that if the amount of arrears of rent is calculated bearing in mind the said settled position there is excess payment made by the revision petitioner and that excess could be adjusted against any deficit. Obviously, the Appellate Authority had no occasion to consider such aspects. The learned counsel appearing for the first respondent submitted that once the arrears of rent is paid directly to the landlord, the landlord can appropriate it firstly to the interest payable and if such adjustment is made, the contention of the revision petitioner that there is excess payment cannot be said to be correct and in fact, there would be deficit. It is also submitted that the order passed by the Rent Control Court under Section 11(2)(b) would reveal that the cost awarded thereunder is Rs.1,477/- and therefore there is deficit in that regard as well. A perusal of the impugned judgment of the Appellate Authority reversing the order passed by the Rent Control Court would reveal R.C.REV.NO.354 OF 2019 -6- that these aspects were not at all looked into. There can be no doubt that these aspects are essential for considering the question whether the order passed by the Rent Control Court invoking the power under Section 11(2)(c) could be sustained or not inasmuch as the question to be looked into, is whether the arrears of rent with interest and cost were paid up to the date of notice, within the time statutorily provided therefor. This aspect was not pointedly considered by the Appellate Authority while reversing the order passed by the Rent Control Court dated 05.03.2010 in I.A.No.2037/2009. We may hasten to add that a perusal of the impugned judgment would reveal that the documents produced by either side were not at all adverted to by the Appellate Authority while reversing the order passed by the Rent Control Court. In the said circumstances, the order passed by the Appellate Authority cannot be sustained. In view of the aforesaid reasons, we are of the view that it is only appropriate to remand the matter to the Appellate Authority for proper consideration, in accordance with law. Consequently, the impugned judgment is set aside. The appeal is restored into the file of the Appellate Authority, Alappuzha and the Appellate Authority shall consider the appeal and pass fresh orders after affording opportunities to both sides to raise their respective contentions and after R.C.REV.NO.354 OF 2019 -7- considering the contentions, in accordance with law and also taking note of the observations made by this court regarding the mode of payment. Such orders shall be passed as expeditiously as possible. The Registry shall transmit the records to the Rent Control Appellate Authority-1, Alappuzha. There will be no order as to cost.” (underline supplied) 2. After the order of remand, the landlord contended before the Appellate Authority that there was arrears of rent from the month of March, 1997 till the date of issuance of notice on 20.02.2008. As on 20.06.2009, 132 months’ rent at the rate of Rs.100/- is in arrears. Rent arrears comes to Rs.13,200/- and 6% interest for the said amount comes to Rs.8,712/-. The landlord is also entitled to recover an amount of Rs.1,477/- towards cost. The tenant had paid an amount of Rs.7978.50 on 14.07.2009 and an amount of Rs.1,277/- on 04.12.2009. The landlord received only Rs.9,255/- from the tenant towards arrears of rent, interest and cost. Therefore, according to the landlord, the Rent Control Court vacated the order of eviction granted in R.C.P.No.6 of 2008 without proper application of mind. R.C.REV.NO.354 OF 2019 -8- 3. The Appellate Authority, by the impugned judgment dated 30.07.2019, allowed R.C.A.No.9 of 2010 filed by the landlord with cost, holding that the Rent Control Court ought not to have vacated the order of eviction passed under Section 11(2)(b) of the Act, in R.C.P.No.6 of 2008. In the said judgment it is stated that, Sri.K.S.Mohanachandran Nair, the learned Senior Counsel for the contesting respondent-tenant submitted before the Appellate Authority that “he does not have anything to reply”. At the time of arguments, the learned counsel for the appellant-landlord submitted a copy of the statement showing the details of the actual arrears of rent with interest and cost and also the actual amount received from the side of the contesting respondent-tenant. However, the learned Senior Counsel did not advance any reply arguments. The Appellate Authority observed that, it amounts to admission of the arguments advanced by the learned counsel for the appellant-landlord. Moreover, the contesting tenant has not produced any statement showing payment of arrears of rent, interest and cost within one month from the R.C.REV.NO.354 OF 2019 -9- date of the order passed in R.C.P. Therefore, the Appellate Authority concluded that the Rent Control Court ought not to have vacated the order of eviction passed under 11(2)(b) of the Act, in R.C.P.No.6 of 2008. 4. Heard the learned Senior Counsel for the petitioner-tenant and also the learned Senior Counsel for the 1[st] respondent-landlord. Despite service of notice, none appeared for the 2[nd] respondent. 5. The issue that arises for consideration in this revision is as to whether any interference is warranted on the impugned judgment of the Rent Control Appellate Authority dated 30.07.2019 in R.C.A.No.9 of 2010, arising out of the order of the Rent Control Court in I.A.No.2037 of 2009 in R.C.P.No.6 of 2008. 6. I.A.No.2037 of 2009 is an application filed by the tenant under Section 11(2)(c) of the Act, seeking an order to vacate the order of eviction granted under Section 11(2)(b) of the Act, in R.C.P.No.6 of 2008. As per Section 11(2)(c) of the Act, the order of the Rent Control Court directing the tenant R.C.REV.NO.354 OF 2019 -10- to put the landlord in possession of the building shall not be executed before the expiry of 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. 7. By the order dated 05.03.2010 in I.A.No.2037 of 2009, the Rent Control Court vacated the order of eviction passed under Section 11(2)(b) of the Act, in R.C.P.No.6 of 2008, for the reasons stated therein. The Rent Control Appellate Authority set aside that order in R.C.A.No.9 of 2010 filed by the landlord. The tenant challenged the order of the Appellate Authority by filing R.C.Rev.No.56 of 2016 and this Court, by judgment dated 06.03.2018, remanded the matter to the Appellate Authority and that Authority was directed to consider the appeal afresh taking note of the observations made by this Court in that judgment. R.C.REV.NO.354 OF 2019 -11- 8. Relying on the statement dated 15.07.2009 filed before the Rent Control Court, by the learned counsel for the tenant, and also the memo dated 05.08.2000 and 29.01.2001 filed before the Rent Control Appellate Authority and also a memo dated 03.01.2004 filed before the Rent Control Court, the learned Senior Counsel for the petitioner-tenant would contend that the finding of the Appellate Authority in the impugned judgment that the tenant has not produced any statement showing payment of arrears of rent, interest and cost, as stipulated in Section 11(2)(c) of the Act, cannot be sustained in law. 9. Per contra, the learned Senior Counsel for the 1[st] respondent-landlord would point out the observations made by the Appellate Authority in the impugned judgment as to the conduct of the learned Senior Counsel for the tenant before that Authority. The learned Senior Counsel would submit that having failed to raise appropriate contentions before the Appellate Authority, the tenant cannot raise such R.C.REV.NO.354 OF 2019 -12- contentions before this Court, in a revision filed under Section 20 of the Act. 10. The learned Senior Counsel for the petitionertenant would submit that when the statement dated 15.07.2009 filed before the Rent Control Court, by the learned counsel for the tenant, regarding payment of arrears of rent with interest and cost forms part of the records in R.C.P.No.6 of 2008, the Appellate Authority ought to have considered the same along with various memos on record, evidencing payment of rent by the tenant for the period in question. The omission on the part of the counsel in pointing out those materials before the Appellate Authority may be condoned, on payment of cost, and the tenant may be granted an opportunity to substantiate his contentions before the Appellate Authority. 11. A reading of the impugned judgment dated 30.07.2019 would make it explicitly clear that the Appellate Authority reversed the finding of the Rent Control Court in its order dated 05.03.2010 even without adverting to the R.C.REV.NO.354 OF 2019 -13- statements, memos, etc., on record, evidencing the payments made by the tenant towards arrears of rent, interest, etc. A reading of the impugned judgment would show that there was omission on the part of the learned Senior Counsel for the tenant to bring the relevant facts and materials to the notice of the Appellate Authority. Therefore, another opportunity to the tenant to substantiate his contentions before the Appellate Authority can be granted only on payment of cost, for wasting the judicial time of the Appellate Authority and also that of this Court. Considering the facts and circumstances of the case, we deem it appropriate to impose a cost of Rs.15,000/- on the petitioner-tenant, payable to the respondent-landlord. In the result, this revision petition is allowed by setting aside the judgment dated 30.07.2019 of the Rent Control Appellate Authority-I, Alappuzha in R.C.A.No.9 of 2010, on payment of a cost of Rs.15,000/- by the petitioner-tenant, payable to the respondent-landlord, within a period of three weeks from the date of receipt of a certified copy of this R.C.REV.NO.354 OF 2019 -14- order. A memo evidencing such payment shall be filed before the Appellate Authority within a period of two weeks and thereafter, the Appellate Authority shall reconsider R.C.A.No.9 of 2010 and pass fresh orders, as directed in the order of this Court dated 06.03.2018 in R.C.Rev.No.56 of 2016, as expeditiously as possible, at any rate, within a period of three months. **Sd/ANIL K. NARENDRAN Judge Sd/M.R. ANITHA Judge** STK