Kerala High Court
Ramesh vs Mariamma on 3 October, 2024
Author: Amit Rawal
Bench: Amit Rawal
RCREV. NO. 299 OF 2023 1
2024:KER:74893
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
RCREV. NO. 299 OF 2023
AGAINST THE JUDGMENT DATED 30.09.2023 IN RCA NO.4 OF 2022 OF
ADDITIONAL DISTRICT COURT (ADHOC), KOLLAM ARISING OUT OF THE ORDER DATED
31.03.2022 IN RCOP NO.5 OF 2018 OF MUNSIFF COURT, PUNALUR
REVISION PETITIONER(S)/APPELLANT/RESPONDENT IN RC(OP) NO.5/2018:
RAMESH
AGED 49 YEARS
DIESEL AUTO WORKSHOP, KANDAMTHU BUILDING, COLLEGE JUNCTION,
CHEMMANTHOOR, PUNALUR, KOLLAM-, PIN - 691305
BY ADVS.
P.MAYA
M.M.DEEPA(K/000491/1995)
N.SUDHA(S-652)
RESPONDENT(S)/RESPONDENTS/PETITIONERS IN RC(OP) NO.5/2018:
1 MARIAMMA
AGED 61 YEARS, D/O.SAMUEL, NO.9, 13TH CROSS, PEACE LAY OUT,
ANAND NAGAR, OIL HILL ROAD, BANGALURU, KARNATAKA FROM KANDAMATHU
VEEDU, CHEMMANTHOOR, PUNALUR, KOLLAM DISTRICT – ., PIN -
691305
2 AKSA JOE RAJAN
AGED 27 YEARS, D/O.RAJAN MATHAI, NOW OF STREET KIROVA, 50
SMOLENSK, RUSSIA, FROM RAJAN VILLA, PANAMPATTA, PIDAVOOR
VILLAGE, PATHANAMTHITTA, REPRESENTED BY MOTHER AND POWER OF
ATTORNEY HOLDER, THE 1ST RESPONDENT MARIAMMA., PIN - 689695
BY ADVS.
HARINDRANATH B G
AMITH KRISHNAN H.(K/000666/2015)
LEJO JOSEPH GEORGE(K/357-C/2017)
SAIRA PUTHIYAPARAMPATH(K/1557-B/2019)
GOWRI DEV(K/003380/2023)
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03.10.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RCREV. NO. 299 OF 2023 2
2024:KER:74893
JUDGMENT
Amit Rawal, J.
The present revision petition is directed against the judgment dated 31.3.2022 rendered in RC(OP) No.5 of 2018 preferred by the respondent-landlord whereby the eviction of the petitioner-tenant has been ordered on the ground or arrears of rent provided under Section 11(2)(b) of the Kerala Building (Lease and Rent Control) Act, 1965 and the judgment in RCA dated 30.9.2023 whereby the appeal preferred against the eviction order, ibid, has been dismissed.
2. Succinctly, the facts in brief are that the respondents- landlords instituted the rent petition aforementioned against the petitioner Ramesh on the premise that since 2018, had been arrears of rent of area measuring 4 cents of property in Survey No.417/1-1-4 of Village Office, Punalur. It was averred that the scheduled room is attached to two storied commercial building which are in absolute ownership and possession of the respondent ie., Mariamma, D/o Samuel and Aksa Joe Rajan, D/o Rajan Mathai. The father of respondent-landlord Smt.Mariamma ie., Sri.Samuel, had life interest in the property. Smt. Mariamma got absolute right over one cent of property and on demise of Sri.Samuel, the property was inherited by her. Smt.Mariamma was employed in Bangalore. After the death RCREV. NO. 299 OF 2023 3 2024:KER:74893 of her husband all the tenants other than the respondent and one another, have directly been paying rent to them. Petitioner was paying monthly rent at rate of Rs.3,250/- per month to the Samuel till June, 2015. The rent subsequently rent on accrual was not paid. Legal notice dated 16.7.2018 was served but was not replied despite service.
3. Petitioner-tenant denied the relationship of landlord-tenant and submitted that his wife, Santhi, had entered into a rental agreement with Sri.Samuel and his wife Thankamma Samuel and their daughter Joykutty Samuel in the year 2013 for conducting tailoring in the shop, in continuation of the existing rental agreement. The aforementioned landlords have received an amount of Rs.25,000/- as advance from Santhi and the monthly rent was fixed @ Rs.1500/- per month. After the death of Samuel the rent amount was paid to the wife and daughter of Samuel namely Joykutty Samuel. Since the parties were at variance, the learned Rent Controller framed the following issues:
1) Whether the petition is maintainable?
2) Whether the petitioner is entitled to get an order of eviction under Section 11(2)(b) of the Kerala Building (Lease and Rent Control) Act, 1965?
3) Reliefs and costs?
4. Learned Rent Controller on analysis of the documentary evidence, particularly, the alleged rent agreement, Ext.B1 dated 24.9.2013 held that the aforementioned rent deed was not proved on RCREV. NO. 299 OF 2023 4 2024:KER:74893 record in the absence of examination of any witnesses of the rent deed much less the alleged tenant ie., the Santhi ie., the wife of the petitioner, Ramesh.
5. Even the two rent receipts, B2 and B3 dated 1.8.2018 and 1.9.2018 executed by Smt.Joykutty were also not proved in the absence of any testimony from the signatory ie., Smt.Joykutty. The settlement deed arrived at between the parties was also a figment of imagination much less the pendency of the suit would be of no consequences as the suit with regard to the title of the property alleged to have been claimed and succeeded by the respondent as far as the relationship of landlord-tenant is concerned, the tenant cannot get away from non payment of rent in the dispute between the two co- owners. The learned Rent Controller allowed the ejectment petition by giving three months time to pay the rent subject to the compliance under Section 11(2)(c) of the Act.
6. Petitioner-tenant did not avail the aforementioned opportunity instead assailed the ejectment order before the appellate authority. Appellate authority also affirmed the finding of the Rent Controller. It is in that background, the present revision petition has been filed. This court while granting the interim stay directed the petitioner vide order dated 1.2.2024 to deposit Rs.1,00,000/- (Rupees one lakh only) before the executing court within two weeks, which is stated to have RCREV. NO. 299 OF 2023 5 2024:KER:74893 been deposited as the counsel representing the landlord had not denied the same.
7. Learned counsel for the petitioner submits that even Smt.Joykutty and Smt.Thankamma during their life time filed an application in the rent petition which was dismissed but the fact remains that the civil suit No.454 of 2015 is stated to be pending before the Munsiff court wherein respondents Mariamma and Rajan Mathai have been arrayed as defendant Nos. 4 and 5. Since the title of the landlord is under challenge, it would be a farcical exercise on behalf of the tenant not only to pay the rent but also may be burdened with double the amount. The arrears as claimed by the respondents- alleged landlords was not paid much less the notice was also not replied. This fact has not been noticed by the learned courts below and even the rent agreements and receipts Exts.B1 to B3, therefore there is illegality and perversity.
8. Learned counsel for the respondent-landlord does not counter the argument but did not deny the pendency of the suit claiming title over the property in dispute by the other siblings ie., Smt.Joykutty, D/o Samuel. Even the widow of the Sri.Samuel is also alive who are the plaintiff in the suit. They have no objection in case the petitioner- tenant pays the rent subject to the decision of the suit, failing which the ejectment order as ordered cannot be permitted to remain in RCREV. NO. 299 OF 2023 6 2024:KER:74893 operational for infinite period.
9. We have heard learned counsel for the parties and appraised the paper book. The alleged rent deed dated 24.9.2013 has been tendered before the court below and marked as Ext.B1. It is settled law that mere exhibition of the documents does not dispense with its proof.
10. It is also settled law that any document which has been placed on record has to be proved in accordance with law. However on going through the evidence on record, it is evident that none of the witnesses of the rent agreement Ext.B1 or the alleged landlord have been examined except the self serving statement of Sri.Ramesh. Smt.Santhi had also not been examined, thus cannot be accepted that the relationship of the landlord existed between Santhi and other landlord but not with Sri.Ramesh. Be that as it may, the rent receipts Ext.B2 and B3 have also not been proved in accordance with law, in the absence of any testimony of the signatory to the same. The rejection of the aforementioned documents by both the courts below in our considered view is the right approach. If at all, the petitioner- tenant had a bonafide intention to clear of the dues could have offered to deposit in the court subject to the decision of the pending suit or in the alternative, preferred an interpleader suit. Having failed to do so, incurred the order of the eviction by both the courts below. We RCREV. NO. 299 OF 2023 7 2024:KER:74893 cannot remain oblivious of the fact that the liability of the tenant cannot be obliterated by non payment of the rent, it has to be discharged either by depositing in the court as has been done in terms of the interim order whereby Rupees one lakh has been ordered to be deposited.
11. Considering the predicament of the petitioner-tenant that the ejectment order has been passed only on the arrears of rent, we are of the view that the balance arrears of rent @ 3250/- amounting to Rs.1,34,000/- (one lakh thirty four thousand and odd amount) in case is deposited to the court within a period of one month from today, the order of eviction will not be operative in terms of the provisions of Rule 11(2)(c) of the Act subject to the outcome of the pending suit, but on failure, the ejectment order shall continue to sustain and the respondents-landlords are entitled to seek the execution of the ejectment order in accordance with law.
Sd/-
AMIT RAWAL JUDGE Sd/-
sab EASWARAN S.
JUDGE