The Kerala High Court in a second appeal dismissed the tenant's challenge to the lower courts' decision. The court held that failure to obtain receipts under the Kerala Buildings (Lease and Rent Control) Act precluded presumption of rent payment despite an unreplied notice.
The second appeal was dismissed, upholding the decree for recovery of arrears of rent.
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 P.B.SURESH KUMAR
MONDAY,THE 29TH DAY OF OCTOBER 2018 / 7TH KARTHIKA, 1940
RSA.No. 958 of 2018
[AGAINST THE JUDGMENT AND DECREE DATED 26-07-2018 IN AS 36/2011 OF SUB COURT, CHERTHALA]
[AGAINST THE JUDGMENT AND DECREE DATED 30-03-2011 IN OS 168/2009 OF THE ADDL.MUNSIFF COURT, CHERTHALA]
APPELLANT/RESPONDENT/DEFENDANT :
J.K.VIJENDRAN PROPRIETOR, M/S. VENUS PROCESSERS, 18/1781-B, BSNL WIRELESS STATION WEST, PALLURUTHY MURI, PALLURUTHY VILLAGE, KOCHI TALUK, ERNAKULAM
BY ADVS. SRI.C.CHANDRASEKHARAN SMT.ASALATHA VARMA SMT.P.M.SWAYAM PRABHA
RESPONDENTS/ADDL. APPELLANTS/PLAINTIFFS :
1 THERESA ALEX AGED 64 YEARS W/O. ALEX ABRAHAM, NEW DALE, CHERTHALA NORTH MURI, CHERTHALA NORTH VILLAGE, FROM THATTARUPARAMBIL, EZHUPUNNA SOUTH MURI, KODAMTHURUTH VILLAGE, CHERTHALA TALUK 688537
2 NAVYA ELIZABETH JACOB, AGED 37 YEARS, D/O. LATE ALEX ABRAHAM NEW DALE, CHERTHALA NORTH MURI, CHERTHALA NORTH VILLAGE, FROM THATTARUPARAMBIL, EZHUPUNNA SOUTH MURI, KODAMTHURUTH VILLAGE, CHERTHALA TALUK 688537
3 NIYA ANN LIJO, AGED 32 YEARS, D/O. LATE ALEX ABRAHAM NEW DALE, CHERTHALA NORTH MURI, CHERTHALA NORTH VILLAGE, FROM THATTARUPARAMBIL, EZHUPUNNA SOUTH MURI, KODAMTHURUTH VILLAGE, CHERTHALA TALUK 688537
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
The defendant in a suit for arrears of rent is the appellant in the second appeal. The case set out by the plaintiff in the plaint is that the defendant who was the tenant of a building owned by him has not paid the rent payable for the building from 10.03.2008 onwards. The defendant contended that he had surrendered the building on 23.08.2008 and that he has paid the rent payable, up-to-date. The defendant has also raised a counter claim in the written statement filed by him for realisation of Rs.25,000/- given by him to the plaintiff towards security deposit at the time when the building was let out to him. The trial court found that the defendant has surrendered the building to the plaintiff on 23.08.2008 and that the plaintiff has not established that there is arrears of rent. Consequently, the trial court dismissed the suit and decreed the counter claim as there was no dispute between the parties as regards the security deposit. The plaintiff challenged the decision in the suit in appeal. The appellate court though confirmed the finding of the trial court that the defendant had surrendered the building on 23.08.2008, found that the defendant has not established that he had paid rent for the period from 10.03.2008 to 31.08.2008. Consequently, the appellate court decreed the suit permitting the plaintiff to recover the arrears of rent claimed by him for the period from 10.03.2008 to
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RSA No. 958 of 2018
31.08.2008. The defendant is aggrieved by the said decision of the appellate court.
defendant has issued Ext.B1 notice to the plaintiff on 23.07.2008 expressing his intention to surrender the building within one month. It is pointed out that in Ext.B1, it is specifically stated by the defendant that he had paid up-to-date arrears of rent. It was contended by the learned counsel that the averments made in Ext.B1 notice that the defendant had paid the rent up-to-date has not been denied by the plaintiff by sending a reply. According to the learned counsel, in so far as no reply has been sent by the plaintiff to Ext.B1 notice, it has to be presumed that the plaintiff has admitted the fact that he has received the entire arrears of rent. In the circumstances, it is contended that the appellate court was not justified at all in decreeing the suit.
“9. Right of tenant paying rent or advance to receipt.--(1) Every tenant who makes a payment on account of rent or advance shall be entitled to obtain a receipt in the prescribed form for the amount paid, duly signed by the landlord or his authorized agent.”
In the light of Section 9 of the Act, it was obligatory for the defendant to
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obtain receipts from the plaintiff for the rent he has paid to the plaintiff. Admittedly, the defendant has not obtained receipts from the plaintiff for the rent claimed to have been paid for the period after 10.03.2008. True, the plaintiff has not sent a reply to Ext.B1 notice. But, it has come out in evidence that after some time, the plaintiff has caused Ext.A4 notice to be sent to the defendant, wherein he asserted that the defendant, has to pay the arrears of rent for the period from 10.03.2008. In the said circumstances, I do not think, merely for the reason that the plaintiff has not sent a reply to Ext.B1 notice, it has to be presumed that the plaintiff has admitted the averment made by the defendant therein that he has paid rent up-to-date. No question of law, much less any substantial question of law, arises for consideration in the second appeal. The second appeal, in the circumstances, is dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE
PKK
1 issue framed by the court
Whether the defendant's failure to obtain a receipt for rent paid under Section 9 of the Act, combined with the landlord's lack of reply to a notice, establishes full payment of arrears.
1 provisions across 1 enactments
J.K. Vijendran
Theresa Alex
Navya Elizabeth Jacob
Niya Ann Lijo
P.B. Suresh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
