Saiju Y.P vs Sunil J.Chungath on 17 January, 2024

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Kerala High Court

Saiju Y.P vs Sunil J.Chungath on 17 January, 2024

The petitioner is the respondent-tenant in R.C.P.No.32 of 2019 on the file of the Rent Control Court (Additional Munsiff - III), Ernakulam, a petition filed by the respondent herein-landlord under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule building, on the ground of arrears of rent for the period from 15.02.2018 to 15.11.2018, amounting to Rs.76,599/-, at the rate of Rs.7,000/- per month, with effect from 16.09.2006, with an annual enhancement at the rate of 5%. Before the Rent Control Court, the tenant filed an objection, opposing the order of eviction sought for. The power of attorney holder of the landlord was examined as PW1 and Exts.A1 to A5 were marked. The tenant has not chosen to adduce any oral or documentary evidence. After considering the pleadings and evidence on record, the Rent Control Court found that the tenant defaulted payment of rent at the rate of Rs.8,511/- per month from 16.02.2018 to 15.11.2018. Accordingly, by the order dated 23.10.2021, the Rent Control Court allowed R.C.P.No.32 of 2019 granting an order of eviction under Section 11(2)(b) of the Act and the tenant was directed to 3 R.C.Rev.No.12 of 2024 handover the vacant possession of the petition schedule building to the landlord, within the time limit specified in that order. The Rent Control Court made it clear that in case the tenant pays the arrears of rent as stated in that order, along with interest and notice charges, within the time limit stipulated therein, the order of eviction under Section 11(2)(b) of the Act will stand vacated under Section 11(2)(c).

2. Challenging the order of eviction granted by the Rent Control Court under Section 11(2)(b) of the Act, the tenant filed R.C.A.No.55 of 2021 before the Rent Control Appellate Authority (Additional District Judge - VII), Ernakulam, invoking the provisions under Section 18(1)(b) of the Act. That appeal ended in dismissal by the judgment dated 11.10.2023, whereby the order of eviction granted by the Rent Control Court stands confirmed. Feeling aggrieved by the order of eviction granted by the Rent Control Court and the Appellate Authority under Section 11(2)(b) of the Act, the tenant is before this Court in this Rent Control Revision, invoking the provisions under Section 20 of the Act.

3. Heard the learned counsel for the petitioner-tenant.

4. After referring to the pleadings in the memorandum of 4 R.C.Rev.No.12 of 2024 Rent Control Revision, the learned counsel for the petitioner- tenant would contend that there is no arrears of rent for the period referred to in the impugned order/judgment of the Rent Control Court and the Appellate Authority and as such, the authorities below committed a grave error in granting an order of eviction under Section 11(2)(b) of the Act.

5. Section 11 of the Kerala Buildings (Lease and Rent Control) Act deals with eviction of tenants. As per Section 11(2)(a) of the Act, a landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf. As per Section 11(2)(b), if the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, 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. As per the first proviso to Section 11(2)(b), an application under this sub-section shall be made only 5 R.C.Rev.No.12 of 2024 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 per cent per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or of the refusal thereof. As per Section 11(2)(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 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.

6. Section 9 of the Act deals with right of tenant paying rent or advance to receipt. As per Section 9(2) of the Act, where a landlord refuses to accept or evades the receipt of any rent lawfully payable to him by a tenant in respect of any building the tenant may either remit the rent to the landlord by money order after deducting the money order commission and continue to remit any rent which may subsequently become due in respect of the building in the same manner until the landlord signifies by a 6 R.C.Rev.No.12 of 2024 written notice to the tenant his willingness to accept the rent or may by notice in writing, require the landlord to specify within ten days from the date of receipt of the notice by him, a bank into which the rent may be deposited by the tenant to the credit of the landlord. As per the proviso to Section 9(2), such bank, if specified as aforesaid, shall be one situated in the city, town or village in which the building is situated or if there is no such bank in such city, town or village, within three miles of the limits thereof. As per Explanation to Section 9(2), it shall be open to the landlord to specify, from time to time, by a written notice to the tenant and subject to the proviso aforesaid, a bank different from the one already specified by him under this sub-section. As per Section 9(3), if the landlord specifies a bank as aforesaid the tenant shall deposit the rent in the bank and shall continue to deposit in it any rent which may subsequently become due in respect of the building. As per Section 9(4), if the landlord does not specify a bank as aforesaid, the tenant shall remit the rent to the landlord by money order, after deducting the money order commission and continue to remit any rent which may subsequently become due in respect of the building in the same manner until the landlord signifies by a written notice to the tenant his willingness to accept 7 R.C.Rev.No.12 of 2024 the rent or specifies a bank in which the rent shall be deposited in accordance with the provisions of sub-section (2).

7. In Bhaskaran Assan v. Ammukutty Amma [1992 (2) KLT 565 : AIR 1993 Ker. 144] this Court held that, any prudent tenant would and should, resort to Section 9 of the Kerala Buildings (Lease and Rent Control) Act in cases where the landlord refuses to issue receipt to him on his paying the rent due. If he is not prudent enough to resort to that course it will require very strong evidence on his side to substantiate a plea that he has paid the rent without obtaining receipts for the same.

8. In Sukumaran P. v. K.A. Hamza Haji [2014 (3) KHC 833 : ILR 2015 (2) Ker. 166] a Division Bench of this Court, in which one among us [Anil K. Narendran, J] was a party, held that, when the tenancy in respect of the petition schedule building and the rate of rent are not in dispute, the burden is upon the tenant to prove the plea of discharge of rent set up by him. If the landlord was in the habit of not issuing receipts on payment of rent, the tenant could have chosen any one of the modes prescribed under Section 9 of the Act.

9. In Ouseph Mathai v. Abdul Khader [(2002) 1 SCC 319] the Apex Court noticed that the Kerala Buildings (Lease and 8 R.C.Rev.No.12 of 2024 Rent Control) Act is a social welfare legislation meant to protect and safeguard the interests of the tenants but it does not confer unfettered powers on the tenants to remain in possession of the leased premises notwithstanding the compliance with directions of the court or the provisions of the statute. The Act is intended to protect the interests of bona fide tenants in possession. The Act has put restrictions on the right of the landlord to seek eviction of the tenant on the ground of defaults in the payment of rent which are regulated by Section 11(2). A tenant is under an obligation to pay or tender the rent in respect of the building under his occupation within 15 days after the expiry of time fixed in the agreement of tenancy or in the absence of such agreement by the last day of next month falling for which the rent is payable. Non- payment of rent, as per contract and statutory provisions, entitles the landlord to seek possession only after compliance of sending a registered notice to tenants intimating the default. If after the receipt of such a notice a genuine tenant pays or tenders the rent together with interest at 6% per annum and postal charges, the right accrued to the landlord to get possession on this ground is defeated. Even after passing of the eviction order, a further right is conferred upon tenant in terms of Section 11(2)(c) of the Act. 9 R.C.Rev.No.12 of 2024 It is only such tenant who defaults to pay the rent at all the three relevant times, the law requires him to be dispossessed.

10. In the instant case, the Rent Control Court and the Appellate Authority, after analysing the pleadings and evidence on record, concurrently found that the tenant has defaulted payment of arrears of rent for the period referred to in the impugned order/judgment and that the landlord is entitled to get an order of eviction under Section 11(2)(b) of the Act. The landlord contended that the tenant has defaulted payment of the monthly rent for the period from 16.02.2018 to 15.11.2018, amounting to Rs.76,599/-. The tenant contended that the monthly rent had fallen due, since the landlord demanded exorbitant rent and failed to issue receipts for payment of rent. The tenant contended that he had paid rent up to December 2018.

11. As noticed in the impugned judgment/order, the tenant has not chosen to issue any reply to Ext.A2 lawyer notice issued on behalf of the landlord. The tenant has not placed on record any receipt regarding the alleged payment of rent, in any one of the modes prescribed under Section 9(2) of the Act. The oral testimony of the power of attorney holder of the landlord, who was examined as PW1 that the rate of monthly rent is Rs.8,511/- is 10 R.C.Rev.No.12 of 2024 not challenged by the tenant during cross examination. PW1 has categorically stated that the monthly rent in respect of the petition schedule building is in arrears from 16.02.2018 to 15.11.2018. Before the Rent Control Court, the tenant has not chosen to adduce any oral or documentary evidence to substantiate his contentions regarding payment of monthly rent of the petition schedule building. In the impugned judgment, the Appellate Authority noticed that, not even a suggestion was put to PW1 as to the rate of monthly rent of the petition schedule building. After analysing the evidence on record, the authorities below concurrently found that the landlord is entitled to an order of eviction under Section 11(2)(b) of the Act. The tenant, who has not even chosen to mount the box before the Rent Control Court cannot challenge the findings in the impugned judgment/order of the authorities below, relying on the additional facts stated in the memorandum of Rent Control Revision filed under Section 20 of the Act.

12. In Abdul Gafoor M.C. v. K. Abdurahiman and another [2015 (3) KHC 775] the Division Bench of this Court was dealing with a case in which the learned counsel for the tenant raised an alternative contention that the tenant has already paid 11 R.C.Rev.No.12 of 2024 an advance of Rs.7,50,000/- and that, in the light of the principles laid down by the Apex Court in Modern Hotel, Gudur v. K. Radhakrishnaiah [(1989) 2 SCC 686] and Reghunathan v. Varghese [(2005) 7 SCC 317] the landlord cannot retain such huge amount and that this amount being repayable to the tenant is liable to be adjusted towards rent arrears, if any.

13. In Abdul Gafoor M.C. [2015 (3) KHC 775] the Division Bench noticed that, Modern Hotel [(1989) 2 SCC 686] was a case arising under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. Section 7(2) of the said Act provided that where the fair rent of a building has not been fixed, the landlord shall not, after the commencement of the Act, claim, receive or stipulate for the payment of any premium or other like sum in addition to the agreed rent. However, as per the proviso to this section, the landlord could receive or stipulate for the payment of an amount not exceeding one month's rent by way of advance. It was taking note of this statutory provision that the Apex Court took the view that money received as advance by the landlord from the tenant, in excess of what was provided under Section 7(2), becomes payable to the tenant immediately and that amount of arrears of rent being smaller than the advance amount 12 R.C.Rev.No.12 of 2024 held by the landlord on account of the tenant, there was no default in payment of rent and eviction order is not justified. It is this judgment which is followed in Reghunathan [(2005) 7 SCC 317].

14. In Abdul Gafoor M.C. [2015 (3) KHC 775] the Division Bench held that, insofar as Kerala Buildings (Lease and Rent Control) Act is concerned, a similar provision is contained in Section 8 of the Act and in the light of the judgment of this Court in Isac Ninan v. State of Kerala [1995 (2) KLT 848] that section no longer survives in the Statute. This, therefore, means that the Kerala Act does not contain any provision similar to Section 7 of the Andhra Pradesh Act, in the context of which judgment in Modern Hotel [(1989) 2 SCC 686] was rendered by the Apex Court. If that be so, the aforesaid argument raised by the learned counsel for the tenant cannot be accepted.

15. In view of the law laid down by a Division Bench of this Court in Abdul Gafoor M.C. [2015 (3) KHC 775], in a proceedings for eviction under Section 11(2)(b) of the Act, the tenant cannot raise an alternative contention that he has already paid an advance to the landlord, which has to be adjusted towards arrears of rent.

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16. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of Section 20, in cases, where the appellate authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per sub-section (2) of Section 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under sub- section (1) shall be in its discretion.

17. In Rukmini Amma Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499], the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second 14 R.C.Rev.No.12 of 2024 court of appeal. Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word 'propriety' it cannot mean that there could be a re-appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re- appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it.

18. In T. Sivasubramaniam v. Kasinath Pujari [(1999) 7 SCC 275] the Apex Court held that, the words 'to satisfy itself' employed in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts 15 R.C.Rev.No.12 of 2024 below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below.

19. In Ubaiba v. Damodaran [(1999) 5 SCC 645] the Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. Relying on the decision in Rukmini Amma Saradamma it was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to re-appreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority. The Apex Court held that, though the revisional power under Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate power conferred on the civil court under the Code. Therefore, notwithstanding the use of the expression 'propriety' in Section 20 of the Act, the revisional court will not be entitled to re-appreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining 16 R.C.Rev.No.12 of 2024 the impugned judgment of the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by re-appreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist.

20. In Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78] a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in Rukmini Amma Saradamma the Apex Court reiterated that even the wider language of Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench agreed with the view of the Three-Judge Bench in Rukmini Amma Saradamma that the word 'propriety' does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it.

21. In Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412] considering the matter in the 17 R.C.Rev.No.12 of 2024 backdrop of law laid down in Rukmini Amma Saradamma, Ubaiba and Dilbahar Singh the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said to be perverse in any way. The High Court could not have re-appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction.

22. In Abdul Salam v. Sebastian [2013 (4) KLT 592], a Division Bench of this Court held that, even though in the decisions of the Apex Court and this Court, it has been held that, in revisional jurisdiction there cannot be a re-appreciation of evidence in order to come to a different conclusion on the same set of facts, it has been held in those decisions itself that, if the view taken is perverse and the statutory scheme has not been kept in mind and if it requires correction, then Court can re- appreciate the evidence. When the argument is that, the approach made by the authorities are perverse, it cannot be said that this Court cannot look into the pleadings and scan through the evidence to find out whether the conclusions have been arrived at properly on the pleadings and evidence.

R.C.Rev.No.12 of 2024

23. In Regy V. Edthil v. Hubert Leslie D'Cruz [2016 (2) KLJ 164], a Division Bench of this Court held that, the High Court (in revision) is obliged to test the order of the Rent Control Court on the touch stone of whether it is according to law. For that limited purpose, it may enter into reappraisal of evidence for the purpose of ascertaining whether the conclusion arrived at by the Rent Control Court is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available.

24. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the reasoning of the Rent Control Court as well as the Appellate Authority while granting an order of eviction under Section 11(2)(b) of the Act is neither perverse nor patently illegal. It cannot also be said that while ordering eviction of the tenant under Section 11(2)(b) of the Act, the authorities below have committed a manifest error, warranting interference of this Court in exercise of the revisional jurisdiction under Section 20 of the Act. Therefore, we find no reason to interfere with the order of eviction passed by the Rent Control Court and the Appellate Authority under Section 11(2)(b) of the Act.

R.C.Rev.No.12 of 2024

In the result, this Rent Control Revision fails and the same is accordingly dismissed.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

G. GIRISH, JUDGE MIN

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