The High Court of Kerala dismissed this revision petition. It held that pending Supreme Court appeals or High Court appeals do not stop a tenant from paying fixed arrears of rent under Section 12(2) of the Kerala Buildings (Lease & Rent Control) Act, 1965.
Petitioner given three weeks to deposit admitted rent arrears; no stay on liability asserted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MRS. JUSTICE ANNIE JOHN
MONDAY, THE 26TH DAY OF NOVEMBER 2018 / 5TH AGRAHAYANA, 1940
OP (RC).No. 171 of 2018
AGAINST THE ORDER DATED 17.10.2018 IN I.A.NO.761/2018 IN RCA.NO.59/2012 of THE RENT CONTROL APPELLATE AUTHORITY, THRISSUR
PETITIONER/ RESPONDENT/ APPELLANT-TENANT :
JOSE, AGED 75 YEARS, S/O KUTTICHAKKU LONA, PALLIKULAM ROAD, AMBAKKADAN JUNCTION, CHEMBUKKAVU VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT
BY ADVS. SRI.SANTHOSH P.PODUVAL SMT.R.RAJITHA SRI.R.N.SANDEEP
RESPONDENT/ PETITIONER/ RESPONDENT-LANDLORD :
WILLIAMS DANIEL, AGED 56 YEARS, S/O KANNAMPUZHA DANIEL, KIZHAKKEKOTTA DESOM, CHEMBUKKAVU VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT - 680 020
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 26.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :
OP (RC).No. 171 of 2018
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JUDGMENT
K.Harilal, J.
The revision petitioner is the tenant
against whom an order has been passed under Section 12(2) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (Hereinafter referred to as, 'the Act'). The landlord filed IA.No.761/2018 in RCA.No.59/2012 under Section 12 of the Act against the tenant seeking an order directing the tenant to deposit the admitted arrears of rent. According to the landlord, in RCA.No.88/2010, the rent was fixed as Rs.10,000/- from 01.09.2006
onwards and Rs.11,000/- from 01.09.2008 and Rs.12,100/- from 01.09.2010 onwards and the revision petition filed challenging the said fixation of rent stands dismissed by the High Court. Therefore, according to the landlord, the tenant is liable to deposit admitted arrears at the rate as shown above. Hence he filed
IA.No.761/2018 in RCA.No.59/2012 under Section 12
3
OP (RC).No. 171 of 2018
of the Act seeking an order directing the
petitioner to deposit admitted arrears of rent, as fixed by the Appellate Authority in
RCA.No.88/2010.
an order of eviction passed in RCP.No.39/2008 under Section 11(4)(iii) of the Act. The tenant
resisted the claim for admitted arrears contending that RFA.No.106/2009 filed by the tenant before the District Court, challenging the judgment and
decree dismissing the claim for specific performance, is pending consideration of this Court. Therefore, he is not liable to pay the admitted arrears. That apart, he has filed a
Special Leave Petition before the Supreme Court challenging the order passed in RCR.No.225/2018 dismissing the challenge against fixation of fair rent. Thus, the fixation of fair rent has not attained a finality so far. In short, he is not
liable to pay the rent till the disposal of the Special Leave Petition pending before the Supreme
OP (RC).No. 171 of 2018
4
Court and RFA.No.106/2009 pending before the High
Court.
pleas, the Appellate Authority allowed the petition on a finding that the tenant is liable to pay the admitted arrears of rent, notwithstanding
the pendancy of Special Leave Petition before the Supreme Court and RFA.No.106/2009 before this
Court.
petitioner and the learned counsel for the
respondent.
Petition is pending before the Supreme Court challenging the order passed by this Court in RCR.No.225/2018. Similarly, the claim for
specific performance also stands dismissed by the
sub court and now the appeal is pending as
OP (RC).No. 171 of 2018
5
RFA.No.106/2009 before this Court. No order of stay has been obtained either from the Supreme Court or from this Court in RFA.No.106/2009. Needless to say, mere pendancy of an Appeal will not operate as a stay against the judgment under challenge in the Appeal. More over, in Gopala Panicker Baiju v. Mallika (2018 (5) KHC 95) , this Court held that no kind of adjustment or set off or counter claim can be considered, while determining the claim for admitted arrears under Section 12 of the Act. Therefore, the claim for specific performance cannot be considered while considering an application under Section 12 of the Act.
In the above view, we find that there is no illegality or impropriety in the findings of the court below that the petitioner/ tenant is liable to pay the admitted arrears of rent, notwithstanding the pendancy of Special Leave Petition before the Supreme Court or
RFA.No.106/2009 before this Court.
OP (RC).No. 171 of 2018
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We do not find any reason to interfere
with the aforesaid finding of the court below. The learned counsel for the petitioner sought for some more time to deposit the admitted arrears. Having regard to the fact that this OP(RC) has
been filed before the expiry of one month granted by the Appellate Authority, the petitioner is given three weeks time from today to deposit admitted arrears of rent. It is needless to say
in the event of failure, the Appellate Authority is at liberty to pass an order under Section 12(3) of the Act.
Sd/-
K.HARILAL, JUDGE
Sd/-
ANNIE JOHN, JUDGE
RKM
OP (RC).No. 171 of 2018
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APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1 COPY OF ORDER DATED 20.9.12 IN RCP 39/2008 ON THE FILE OF RENT CONTROL COURT, THRISSUR. EXHIBIT P2 COPY OF ORDER DATED 23.7.18 IN R.C.R. 225/18 OF THIS HON'BLE COURT. EXHIBIT P3 COPY OF MEMORANDUM IN RCA 59/12 ON THE FILE OF RENT CONTROL APPELLATE AUTHORITY, THRISSUR.
EXHIBIT P4 COPY OF I.A.761/18 IN RCA 59/12 ON THE FILE OF RENT CONTROL APPELLATE AUTHORITY, THRISSUR.
EXHIBIT P5 COPY OF COUNTER IN I.A.761/18 IN RCA 59/12 ON THE FILE OF RENT CONTROL APPELLATE AUTHORITY, THRISSUR.
EXHIBIT P6 EXHIBIT P3: COPY OF ORDER DATED 17.10.2018 IN I.A.761/18 IN RCA 59/12 ON THE FILE OF RENT CONTROL APPELLATE AUTHORITY, THRISSUR.
2 issues framed by the court
Whether the pending appeal and approval of a Supreme Court petition can withhold the liability of a tenant to deposit admitted rent arrears.
Whether a tenant can claim set-off or adjustment against admitted rent arrears while pending appeals against eviction and fair rent fixation.
Colour shows how this judgement treated each authority
Gopala Panicker Baiju v. MallikaApplied¶5
Gopala Panicker Baiju v. Mallika (2018 (5) KHC 95)
3 provisions across 1 enactments
Jose
Williams Daniel
K. Harilal
Annie John
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
