Kerala High Court
Rayaroth R.Bhaskaran vs Chaliyottu Kunhi Moossa Haji on 30 January, 2020
Bench: K.Harilal, C.S.Dias
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 30TH DAY OF JANUARY 2020 / 10TH MAGHA, 1941
RCRev..No.313 OF 2019
AGAINST THE JUDGMENT IN RCA 185/2017 DATED 21-06-2019 OF THE
ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA
AGAINST THE ORDER IN RCP NO. 124/2015 DATED 31-08-2017 OF MUNSIFF
COURT, VADAKARA
REVISION PETITIONER/APPELLANT IN RCA/RESPONDENT IN RCP/TENANT:
RAYAROTH R.BHASKARAN
AGED 65 YEARS
S/O. CHATHU, NADAKKUTHAZHA AMSOM, KURIKKILAD DESOM,
VATAKARA TALUK, KOZHIKODE DISTRICT.
BY ADVS.
SRI.B.KRISHNAN
SRI.R.PARTHASARATHY
RESPONDENTS/RESPONDENTS IN RCA/PETITIONERS IN RCP/LANDLORDS:
1 CHALIYOTTU KUNHI MOOSSA HAJI
AGED 62 YEARS
S/O. KUNHAMMETH HAJI, KUNINGAD DESOM, PURAMERI
VILLAGE, VATAKARA TALUK, KOZHIKODE DISTRICT -
673 101.
2 CHALIYOTTU HAJIRA,
W/O. KUNHIMOOSA HAJI, KUNINGAD DESOM, PURAMERI
VILLAGE, VATAKARA TALUK, KOZHIKODE DISTRICT -
673 101.
3 C. H. ASLAM, AGED 40 YEARS
S/O. MOOSSA HAJI, AYISHA MANZIL, VATAKARA AMSOM,
DESOM, VATAKARA TALUK, KOZHIKKODE DISTRICT - 673 101.
4 CHALIYOTTU SHEFEENA, AGED 29 YEARS,
W/O. NIZAR, EDACHERIKANDIYIL HOUSE, CHORODE AMSOM,
RCR No.313 of 2019 2
DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT -
673 101.
5 KHAIRUNNISSA, AGED 30 YEARS,
W/O. SHOUKKATH, ZEENATH MAHAL, CHORODE AMSOM,
DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT -
673 101.
R1-5 BY ADV. SRI.M.MUHAMMED SHAFI
R1-5 BY ADV. SMT.T.RASINI
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
29-01-2020, THE COURT ON 30-01-2020 PASSED THE FOLLOWING:
RCR No.313 of 2019 3
ORDER
Harilal, J.
The Revision Petitioner herein is the tenant against whom an order of eviction has been passed under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for brevity 'the Act') by the Rent Control Court and confirmed by the appellate authority in appeal.
2. This revision petition has been filed on the sole ground that the rent control petition was actually barred by Section 11(9) of the Act, but the courts below have lost sight of the said statutory bar against the maintainability of the Rent Control Petition and erroneously passed an order of eviction against the petitioner. According to the revision petitioner, the date of registration of the lease deed was on 23.01.2013 and the lease was created for a period of three years. But the Rent Control Petition was filed on RCR No.313 of 2019 4 13.11.2015, ie. before the expiry of three years. The learned counsel for the revision petitioner contended that the institution of the Rent Control Petition is hit by the statutory bar under Section 11(9) of the Act. The Rent Control Petition was filed before the expiry of the lease period as per the date of registration of the lease deed and thereby the institution of the Rent Control Petition is barred by Section 11(9) of the Act.
3. On the other hand, the learned counsel for the respondent has produced a copy of Ext.A1 lease deed and submitted that as per Ext.A1 lease deed, though the registration was made on 23.01.2013, the lease period specified in Ext.A1 is for three years commencing from 01.11.2012 and the Rent Control Petition was filed on 13.11.2015 ie.12 days after the expiry of the lease period, as per the date of commencement of lease specified in the lease deed. Therefore, the Rent Control Petition was not barred by Section 11(9) of the Act.
RCR No.313 of 2019 5
4. Section 11(9) of the Kerala Buildings (Lease and Rent Control) Act reads thus:
"Where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply to the Rent Control Court before the expiry of such period."
5. Where the tenancy is for a specified period agreed upon between the landlord and tenant and the date of execution and the date of registration of the lease deed are different, which is the date of commencement of the lease for reckoning the specified period of tenancy under Section 11(9) of the Kerala Buildings (Lease and Rent Control) Act.
6. We are of the view that the aforesaid question can be answered without doubt in view of Section 47 of the Registration Act, 1908, which reads thus :
"Time from which registered document operates.- A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration."
RCR No.313 of 2019 6
7. On an analysis of the aforesaid provision, we find that a legal fiction is created in respect of the operation of a registered document. According to this provision, a registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required and not from the time of its registration. It means that where the date of execution and the date of registration of the lease deed are different, the lease shall be deemed to be in operation from the date on which the lease actually commenced and not from the date of its registration. Therefore, we are of the opinion that where the tenancy is for a specified period shown in the registered lease deed and the date of execution and the date of registration of the lease deed are different, the specified period of tenancy under Section 11(9) of the Act must be reckoned from the date of actual commencement of lease mentioned in the lease deed and not from the date of registration of the lease deed.
RCR No.313 of 2019 7
8. When applying the aforesaid interpretation to the instant case we find that the lease has commenced to operate from 01.11.2012 though the lease deed was registered on 23.01.2013. It follows that the Rent Control Petition was filed on a day, 12 days after the expiry of the lease deed. Thus, the Rent Control Petition is not hit by Section 11(9) of the Act. Hence this Revision Petition fails and it is dismissed accordingly.
9. The learned counsel for the revision petitioner prays for granting some time to vacate the premises.
Having regard to the nature of business, which is being conducted in the tenanted premises, the revision petitioner is given six months' time to vacate the petition schedule building, on the following conditions:
(1) The revision petitioner/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop room within six months from today.RCR No.313 of 2019 8
(2) The revision petitioner/tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default.
(3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondents/landlords will be at liberty to proceed with the execution of the eviction order.
Sd/-
K.HARILAL, JUDGE Sd/-
pkk C.S.DIAS, JUDGE