Kerala High Court
Gopala Panicker Baiju vs Mallika on 29 August, 2017
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MRS. JUSTICE ANNIE JOHN
WEDNESDAY, THE 18TH DAY OF JULY 2018 / 27TH ASHADHA, 1940
OP (RC).No. 161 of 2017
(AGAINST THE ORDERS OF THE RENT CONTROLLER/ PRINCIPAL MUNSIFF COURT,
NEYYATTINKARA IN I.A.NO.203 OF 2014 IN R.C.(O.P.) NO.2 OF 2014
DATED 29.08.2017
PETITIONERS :
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1 GOPALA PANICKER BAIJU,
SANTHI BHAVAN, AZHAMKULAM,
THOZHICHAL DESOM, VENGANOOR VILLAGE.
2 RADHAMMA GEETHA,
SANTHI BHAVAN, AZHAMKULAM,
THOZHICHAL DESOM, VENGANOOR VILLAGE.
BY ADVS.SRI.V.G.ARUN (K/795/2004)
SMT.INDULEKHA JOSEPH
SRI.NEERAJ NARAYAN
RESPONDENT :
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MALLIKA,
D/O.RAJAMMA, VIJAYA NIVAS, VILAPETTI,
VANDITHADAM, THIRUVALLAM.P.O.,
THIRUVALLAM VILLAGE, THIRUVANANTHAPURAM.
PIN - 695 027.
R1 BY ADVS. SRI.V.SURESH
SRI.G.SUDHEER
THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 18-07-2018, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING :
RKM
OP (RC).No. 161 of 2017 (O)
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-2-
APPENDIX
PETITIONERS' EXHIBITS :
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EXHIBIT P1 COPY OF RENT DEED EXECUTED BY BAIJU AND ANOTHER IN FAVOUR OF
MALLIKA DATED 07.12.2011.
EXHIBIT P2 COPY OF THE ORIGINAL PETITION IN RC(O.P)NO.2/2014 ON THE FILE
OF THE RENT CONTROLLER/ PRINCIPAL MUNSIFF COURT,
NEYYATTINKARA UNDER SECTION 11(3) OF THE KERALA BUILDINGS
(LEASE AND RENT CONTROL) ACT, 1965 DATED 27.08.14.
EXHIBIT P3 COPY OF OBJECTION FILED TO RC(O.P) 2/2014 ON THE FILE OF
THE RENT CONTROLLER/ PRINCIPAL MUNSIFF COURT, NEYYATTINKARA
DATED 03.07.2015.
EXHIBIT P4 COPY OF I.A.NO.203/2014 IN RC (O.P)2/2014 ON THE FILE OF THE
RENT CONTROLLER/ PRINCIPAL MUNSIFF COURT, NEYYATTINKARA DATED
08.01.2015.
EXHIBIT P5 COPY OF OBJECTION FILED AGAINST I.A.NO.203/ 2014 DATED
23.03.2015 IN RC(O.P)NO.2/2014 ON THE FILE OF THE RENT
CONTROLLER/ PRINCIPAL MUNSIFF COURT, NEYYATTINKARA.
EXHIBIT P6 COPY OF COUNTER AFFIDAVIT FILED AGAINST I.A.NO.203/2014 IN
RC(O.P.)NO.2/2014 ON THE FILE OF THE RENT CONTROLLER/
PRINCIPAL MUNSIFF COURT, NEYYATTINKARA DATED 20.06.2017.
EXHIBIT P7 COPY OF ORDER PASSED BY THE RENT CONTROLLER/ PRINCIPAL
MUNSIFF COURT, NEYYATTINKARA IN I.A.203/2014 IN
RCP(OP)NO.2/2014 DATED 29.08.2017.
RESPONDENT'S EXHIBITS : NIL
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TRUE COPY
PA TO JUDGE
RKM
C.R.
K. HARILAL & ANNIE JOHN, JJ.
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O.P.(RC).No. 161 of 2017
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Dated this the 18th day of July, 2018
JUDGMENT
K. Harilal, J.
The petitioners herein are the tenants and they are the respondents in R.C(OP).No.2/2014 on the files of the Rent Controller/ Principal Munsiff Court, Neyyattinkara. The respondent herein is the landlady and she is the petitioner in the aforesaid R.C(OP). The landlady filed the aforesaid Original Petition under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (Hereinafter referred to as, 'the Act') seeking an order of eviction of the tenants herein from the petition schedule building. Subsequently, the landlady filed a petition under Section 12 of the Act, seeking an order directing the tenants to deposit the admitted O.P.(RC).No. 161 of 2017 2 arrears of rent. According to the landlady, the rent was due from 01.10.2013 @Rs.2,00,000/- for 11 months. It is also averred that the landlady and the tenants entered into a lease agreement on 07.12.2011, agreeing Rs.2,00,000/- as rent for the petition schedule shop for 11 months from 01.11.2011 and another 2 lakhs was also agreed for the subsequent 11 months, besides one lakh as the earnest money deposit for the petition schedule building. However, the landlady has received only Rs.4,00,000/- towards the rent for the period from 01.10.2011 to 01.10.2013. The rent was in arrear from 01.09.2013 till the date of filing of the petition and the total arrears of rent due from the tenants would come to Rs.5,00,000/-.
2. The tenants filed an objection denying the allegation that the rent was in arrears and the landlady is entitled to get Rs.5,00,000/- as arrears of rent from the tenants. O.P.(RC).No. 161 of 2017 3 According to the tenants, no amount was due from them as arrears of rent. That apart, the tenants had spent more than Rs.3,00,000/- for renovation of the building and the landlady is liable to adjust the said amount towards rent. Thus, there is no admitted arrears of rent. After considering the rival contentions, the court below passed the impugned order directing the tenants to deposit the rent that fell in arrears with effect from 01.09.2013 to 29.08.2017 with 6% interest till the date of realization @Rs.2,00,000/- per each completed 11 months from 01.09.2013. The aforesaid findings, whereby the court below allowed the application under Section 12 of the Act, are assailed in this OP(RC).
3. Heard the learned counsel for the tenants and the learned counsel for the landlady.
4. The sum and substance of the argument advanced by the learned counsel for the tenants is O.P.(RC).No. 161 of 2017 4 that the tenants have not admitted any amount as arrears due to the landlady in the objection to the petition, filed under Section 12 of the Act. Therefore, there is no admitted arrears falling under Section 12 of the Act. Unless the tenant himself admits, in the objection, to the petition under Section 12 of the Act or in the counter statement that any amount is due to the landlord, as arrears of rent, there cannot be any admitted arrears of rent. In short, the simple denial of the tenant would absolve him from the liability to deposit the admitted arrears under Section 12 of the Act.
5. Here arises the question, can the tenant be absolved from the liability, to deposit the admitted arrears of rent, on a blank denial by him, that no amount is due to the landlord, as arrears of rent, in his counter statement or objection to the petition filed by the landlady, O.P.(RC).No. 161 of 2017 5 under Section 12 of the Act? It stands settled by this Court that the deposit, contemplated under Section 12, is not the amount, which is found to be due from the tenant, after adjudication of the dispute between the landlord and the tenant, as to the actual amount due as arrears of rent to the landlord. It is impermissible for the Rent Control Court or the Appellate Authority, as the case may be, to have an adjudication regarding the arrears of rent, as envisaged under Section 12(1) of the Act, by conducting an enquiry. In the above context, the questions that emerge for consideration are given below:
(1) What does the expression b