Allowed

Sreelatha Sunilkumar v. N.S.S. Karayogam 2124

Kerala HC14 Dec 2022RCRev./201/2022

Case brief

AI extract

What is this about?

The High Court revisiting an eviction order held that a tenant challenging the eviction remains eligible for vacation of order under Section 11(2)(c) if entire arrears mentioned in the notice are deposited, despite delay in filing.

What did the court decide?

Impugned order set aside; tenant's application under Section 11(2)(c) allowed; landlord permitted to withdraw deposits after deducting defaulted rent, interest, and postal charges.

Sreelatha Sunilkumar Vs N.S.S. Karayogam 2124 — Landlord and Tenant | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

¶2

THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

¶3

¶4

THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 14TH DAY OF DECEMBER 2022 /
23RD AGRAHAYANA, 1944

¶5

RCREV. NO. 201 OF 2022

¶6

AGAINST THE JUDGMENT IN RCA NO.32 OF 2022 DATED
31-10-2022 OF THE DISTRICT JUDGE & RENT CONTROL
APPEALLATE AUTHORITY ERNAKULAM WHICH IS
ORIGINATED FROM THE ORDER IN I.A. NO.1/2022 IN
RCP NO.179 OF 2015 OF THE RENT CONTROL CORUT,/III
ADDITIONAL MUNSIFF’S COURT, ERNAKULAM
DATED 21-06-2022.

¶7

REVISION PETITIONER/APPELLANT/PETITIONER/
RESPONDENT:

¶8

SREELATHA SUNILKUMAR
AGED 54 YEARS,
D/O A.K. SIVAN PILLAI,
EDAKATHALATHIL VEETTIL,

¶9

ELOOR P.O., ELOOR KISHAKKUMBHAGAM,
PARAVUR TALUK, ERNAKULAM DISTRICT,
PIN - 683501

¶10

BY ADVS.
BABU CHERUKARA
ARUN BABU

¶11

¶12

RCREV. NO. 201 OF 2022

¶13

RESPONDENT/RESPONDENT/RESPONDENT/PETITIONER:

¶14

N.S.S. KARAYOGAM 2124
REPRESENTED BY IT'S SECRETARY,
ELAMAKKARA, KOCHI, - 682 026

¶15

THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 14.12.2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:

¶16

¶17

RCREV. NO. 201 OF 2022

¶18

JUDGMENT

¶19

A. MUHAMED MUSTAQUE, J.

¶20

The point that has to be considered in this
revision is, whether a tenant, who is ordered to
be evicted for default of arrears of rent, can
avail the benefit of section 11(2)(c) of the
Kerala Buildings (Lease and Rent) Control Act,
1965, to vacate an order of eviction based on
rent arrears deposited while challenge in appeal
was pending.

¶21

2. The brief facts of the case are as
follows:

¶22

 The tenant was sought to be evicted on the
ground of defaulted payment of rent under section
11(2)(a)(b) of the Act. The tenant raised a
dispute as to the title of the landlord.
Overruling his objection and noting that tenant
failed to pay the rent arrears, an order under

¶23

RCREV. NO. 201 OF 2022

¶24

¶25

section 11(2)(a)(b) of the Act was passed on
03.07.2018. The eviction petition was preceded by
a mandatory notice. Going by the calculation of
the rent arrears, as per the notice, the rent
arrears payable was Rs.11,400/-. The tenant
deposited, Rs.87,400/- on 21.11.2018 and also
made a further payment of Rs.22,800/- on
25.11.2019. The appeal filed by the tenant was
dismissed on 18.06.2019. The revision filed

¶26

before this Court by tenant was also dismissed on
09.10.2019.

¶27

3. The tenant filed I.A. No.1/2022 to vacate

¶28

the order under section 11(2)(b) of the Act
invoking the provisions under section 11(2)(c) of
the Act. This was resisted by the landlord. The
court below noting that the entire arrears have
not been paid up to the date, dismissed
application. The matter was carried in appeal by
the tenant. The Appellate Authority also

¶29

RCREV. NO. 201 OF 2022

¶30

¶31

affirmed the order of the Rent Controller.
Challenging the above, this revision is filed
invoking section 20 of the Act.

¶32

4. Heard the learned counsel for the tenant
and the landlord.

¶33

5. The first question to be considered in the
light of formidable objection by the landlord is
in regard to the rent payable under Section 11(2)
(b). According to the tenant, rent payable is
only the rent arrears as covered by the mandatory
notice. According to the learned counsel for the
landlord, the entire arrears upto date will have
to be construed as a rent payable. It is
profitable to refer the provision for eviction
under section 11(2)(a), (b) and (c):

¶34

‘’11. Eviction of tenants.-(1) xxx xxx
(2)(a) A landlord who seeks to evict
his tenant shall apply to the Rent Control
Court for a direction in that behalf.

¶35

(b) If the Rent Control Court, after
giving the tenant a reasonable opportunity
of showing cause against the application,

¶36

RCREV. NO. 201 OF 2022

¶37

¶38

is satisfied that the tenant has not paid
or tendered the rent due by him in respect
of the building within fifteen days after
the expiry of the time fixed in the
agreement of tenancy with his landlord or
in the absence of any such agreement by
the last day of the month next following
that for which the rent is payable, it
shall make an order directing the tenant
to put the landlord in possession of the
building, and if it is not satisfied it
shall make an order rejecting the
application thereof by him:

¶39

Provided that an application under
this sub-section shall be made only if the
landlord has sent a registered notice to
the tenant intimating the default and the
tenant has failed to pay or tender the
rent together with interest at six percent
per annum and postal charges incurred in
sending the notice within fifteen days of
the receipt of the nott of proceedings,
within the said period of one month or
such further period, as the case may be,
it shall vacate that order.ice or of the
refusal thereof.

¶40

(c) The order of the Rent Control
Court directing the tenant to put the
landlord in possession of the building
shall not be executed before the expiry ot
of proceedings, within the said period of
one month or such further period, as the
case may be, it shall vacate that order.f
one month from the date of such order or
such further period as the Rent Control
Court may in its discretion allow; and if
the tenant deposits the arrears of rent
with interest and cost of proceedings,
within the said period of one month or
such further period, as the case may be,
it shall vacate that order.’’

¶41

¶42

RCREV. NO. 201 OF 2022

¶43

6. The Rent Control Court can order eviction

¶44

only on being satisfied that the tenant has not
paid or tendered rent due to him in respect of
the building within 15 days. The notice preceding
eviction petition is a mandatory as seen from
proviso to section 11(2)(b) of the Act. The fact
that tenant has failed to pay or tender rent
together with interest @ 6% per annum would give
cause of action to the landlord in approaching
the Rent Control Court for eviction. The rent
payable thereafter, cannot be considered as part
of the demand raised in the notice. The defaulted
rent has to be understood with reference to the

¶45

cause of action enuring to the landlord
consequent upon non-payment of rent after sending
registered notice. No doubt, in a proceedings
under Section 12 of the Act, pending Rent Control
Petition, the landlord is entitled to demand

¶46

¶47

RCREV. NO. 201 OF 2022

¶48

entire admitted arrears of rent and if the tenant
fails to pay the entire admitted arrears of rent,
the Rent Control Court can order tenant to put
landlord in possession. The order under section
12 can be passed only in pending proceedings. The
order under section 11(2)(a)(b) of the Act can be
passed only with reference to the cause of action
enured to the landlord prior to presenting the
eviction proceedings. That means, consequent upon
the default of payment of rent pursuant to
mandatory notice. A learned Single Judge of this
Court in Sulochana v. Kalyani [2006(1) KLT
(SN 85(C.No.123)] held that the tenant is only
liable to deposit the rent, which was claimed in
the notice. We are of the considered view that,
in order to vacate the order passed under section
11(2)(b), the tenant is liable to pay only the
amount under default pursuant to notice together
with interest @ 6% per annum, postal charges, for

¶49

¶50

RCREV. NO. 201 OF 2022

¶51

sending such notice as referred under proviso to
section 11(2)(c) of the Act.

¶52

7. The next question is whether a petition
filed after the period fixed under section 12(c)
to vacate order under section 11(2)(b) is
maintainable or not. Admittedly, the present
petition was filed only in the year 2022, much
after the disposal of revision by this Court as
early as on 09.10.2019. Going by the language of
section 11(2)(c) of the Act, we are of the view
that there is no requirement of separate or
formal application under section 11(2)(c) of the
Act to pass such an order. No doubt, such an
application is ideal, so as to enable the court
to conduct an enquiry as to the actual rent
payable along with interest, postal charges etc.,
giving opportunity to both parties to contest
such application and to give an order thereon by
the Court. But, it does not mean that the

¶53

¶54

RCREV. NO. 201 OF 2022

¶55

application is mandatory going by the language of
section 11(2)(c) of the Act. Even an oral request
would be sufficient for the court to pass such an
order under section 11(2)(c) of the Act.

¶56

8. However, a serious objection has been

¶57

raised by the landlord in regard to the deposit
made andto vacate the order under section 11(2)
(c) of the Act. According to the learned
counsel, the thirty days' period fixed under the
order passed by the Rent Control Court already
ran out much before the deposit made by the
tenant before the court below pursuant to the
direction by the Appellate Court. Therefore, that
deposit cannot save the tenant from the impending
eviction, consequent upon non-compliance of the
order passed by the Rent Control Court. According
to the learned counsel for the landlord, the
nature of relationship between landlord and

¶58

RCREV. NO. 201 OF 2022

¶59

¶60

tenant have been determined consequent to an
order passed under section 11(2)(a)(b) of the Act
and non-compliance thereon, the status of the
tenant has become a trespasser and therefore, the
court cannot now revive his status as a tenant by
vacating order under section 11(2)(c). The
learned counsel placed reliance on judgment of
the Apex Court in Atma Ram Properties(P) Ltd. v.
Federal Motors(P) Ltd.[2005 KHC 370] and an
unreported judgment in Civil Appeal No.5996 of
2021. First of all, we note that these judgments
are rendered appreciating the provisions under
the Delhi Rent Control Act, where the definition
of 'tenant' is not similar to that of the Kerala
Buildings (Lease and Rent) Control Act, 1965.
Under the Delhi Rent Control Act, the definition
of the word “tenant” in Section 2(i) does not

¶61

include any person against whom an Order or
Decree for Eviction has been made. The

¶62

¶63

RCREV. NO. 201 OF 2022

¶64

definition of “tenant”, in our legislation, would
mean that any person, by whom or on whose
account, rent is payable for a building and
includes the heir or heirs of a deceased tenant.
The tenant availed a challenge against the order
of the Rent Control Court, before the Appellate
Authority and also availed a challenge before the
revisional authority. The order passed by the
Rent Control Court finally merged with the order
of the revisional authority of this Court on
09.10.2019 that means the period fixed in section
11(2)(c) to vacate the order would only run from
the date of the order passed by the revisional
court before this Court.

¶65

9. In view of the fact that tenant has

¶66

already deposited entire arrears of rent and
there is no formal requirement of filing an
application, the courts below ought to have taken

¶67

¶68

RCREV. NO. 201 OF 2022

¶69

note of the deposit already made by the tenant to
vacate the order of eviction passed under section
11(2)(b). However, before doing so, the Court
below shall calculate the rent payable as per the
notice @ 6% interest and postal charges incurred
for sending notice etc. to set off the same from
the amount already deposited before the court
below.

¶70

10. The learned counsel appearing for the
landlord further argued that if the tenant
deposited the amount not towards the rent
arrears, but on a compliance of a direction of
the appellate authority to obtain stay, cannot be
treated as a payment towards rent arrears. It is
true, in compliance of the direction, the tenant
deposited amount before the Rent Control Court.
It was not towards rent arrears, though it was
calculated based on the rent arrears, as on the
passing of the order by the Appellate Authority.

¶71

RCREV. NO. 201 OF 2022

¶72

¶73

Be that as it may, once appeal is dismissed and
revision thereon is also dismissed, the deposit
so made would attain the colour of rent as the
tenant has no other obligation but to discharge
the amount towards rent arrears. We cannot
construe that the amount so paid pursuant to the
order of the Appellate Authority was not towards
arrears of rent. The tenant, having raised a
question on the title of the landlord, could
deposit the amount only based on the direction of
the Court, not as a discharging obligation under
contract to pay rent. The nature of payment
therefore cannot have much consequences, when the
entire matter attained finality after the
disposal of the revision before this Court.

¶74

11. In such circumstances, we are of the

¶75

view, both the Authorities failed to consider
the matter in proper perspective and decide the
question on Section 11(2)(c). Hence, we set aside

¶76

RCREV. NO. 201 OF 2022

¶77

¶78

the impugned order and allow the application
filed by the tenant under section 11(2)(c) of the
Act. The landlord is permitted to withdraw the
entire amount after depositing the defaulted
rent, interest and postal charges, from the
deposits already made.

¶79

The revision accordingly stands allowed and
impugned orders are set aside.

¶80

SD/-

¶81

A.MUHAMED MUSTAQUE JUDGE

¶82

SD/-

¶83

SHOBA ANNAMMA EAPEN JUDGE

¶84

BR

Sreelatha Sunilkumar v. N.S.S. Karayogam 2124

Case brief

What is this about?

What did the court decide?

Sreelatha Sunilkumar v. N.S.S. Karayogam 2124

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ressy James Vs Jinsi George

Vijayalakshmi Vs Sundaran

Kuzhikandathil Karunakarakurup Vs 1. Accomodation Controller and Tahsildar

Meharab Bachan Vs B Vijayalakshmi

Prejith .K.B Vs Valsala.K

M.J.Varghese Vs Elizabeth Joseph