Disposed

K.J.Antony v. Marina Sunny

Kerala HC10 Jul 2024RCRev./126/2022

Case brief

AI extract

What is this about?

Rent control revision against concurrent findings ordering tenant's eviction for non-payment of arrears based on a claimed 10% annual rent enhancement. The Court held the earlier final judgment had interpreted the lease clause as providing only Rs.60 per year increase; landlord's remedy was Section 5 fair-rent fixation. Judgments below set aside with one month to clear arrears.

What did the court decide?

Judgments below set aside; one month granted to clear arrears per tenant's calculation, failing which the challenged orders revive.

K.J.Antony Vs Marina Sunny — Landlord and Tenant | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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THE HONOURABLE MR. JUSTICE EASWARAN S.

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WEDNESDAY, THE 10TH DAY OF JULY 2024 / 19TH ASHADHA, 1946

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RCREV. NO. 126 OF 2022

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AGAINST THE JUDGMENT DATED 29.11.2021 IN RCA NO.20 OF 2016 OF I
ADDITIONAL RENT CONTROL APPELLATE AUTHORITY, THRISSUR ARISING OUT
OF THE ORDER DATED 31.08.2015 IN RCP NO.93 OF 2013 OF RENT CONTROL
COURT, THRISSUR

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REVISION PETITIONER/APPELLANT/RESPONDENT:

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K.J.ANTONY
AGED 60 YEARS
S/O. JOHN, KONIKKARA HOUSE, KOLAZHY VILLAGE AND DESOM,
THRISSUR TALUK, THRISSUR DISTRICT, PIN-680010.

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BY ADVS.
T.K.VIPINDAS
K.M.MUHAMMED HUSSAIN

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RESPONDENTS/RESPONDENTS/PETITIONERS:

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1 MARINA SUNNY AGED 70 YEARS W/O. PALLAN SUNNY, ERINJERY ANGADI, CHEMBUKKAVU VILLAGE, THRISSUR TALUK, PIN- 680020

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2 HENCY.S.PALLAN, AGED 50 YEARS D/O. PALLAN SUNNY, ERINJERY ANGADI, CHEMBUKKAVU VILLAGE, THRISSUR TALUK, PIN- 680020

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3 PRADEEP .S.PALLAN, AGED 47 YEARS S/O. PALLAN SUNNY, ERINJERY ANGADI, CHEMBUKKAVU VILLAGE, THRISSUR TALUK, PIN- 680020 REPRESENTED BY POWER OF ATTORNEY HOLDER, MARINA SUNNY W/O. PALLAN SUNNY, ERINJERY ANGADI, CHEMBUKKAVU VILLAGE, THRISSUR TALUK, PIN- 680020.

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4 PRAVEEN S. PALLAN, S/O. PALLAN SUNNY, ERINJERY ANGADI, CHEMBUKKAVU VILLAGE, THRISSUR TALUK, PIN- 680020

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RCREV. NO. 126 OF 2022 -2-

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BY ADV
G.SREEKUMAR (CHELUR)

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY
HEARD ON 10.07.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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RCREV. NO. 126 OF 2022 -3-

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ORDER

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AMIT RAWAL, J.

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The present rent control revision is directed against the concurrent findings of the fact arrived at by the Rent Controller in RCP No.93 of 2013 dated 31.08.2015 and affirmed by the appellate authority vide judgment dated 29.11.2021 in Rent Control Appeal No.20 of 2016 ordering the eviction of the petitioner – tenant for non-payment of the arrears of rent as provided under Section 11(2)(b) of the Kerala Building (Lease and Rent) Control Act, 1965. Before institution of the Rent Petition No.93 of 2013 there was a previous litigation in RCP No.35 of 2005 preferred by the landlord for claiming the arrears of rent which was accepted and upheld by the appellate authority in R.C.A.No.41 of 2006.

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The matter was in this Court in R.C. Rev.No.369 of 2011. On the basis of the submissions and the documentary evidence on record, this Court vide

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RCREV. NO. 126 OF 2022 -4-

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judgment dated 07.03.2012 dismissed the Revision Petition on the ground that the rent increased as per the Clause in Ext.A1 rent agreement by Rs.60/- (Rupees Sixty only) every year and granted two(2) months time to the tenant to clear the same and in the alternative, landlord was given opportunity to seek eviction in accordance with law. Respondent – landlord in the subsequent Rent Petition No.93 of 2013 i.e., in controversy, claimed the increase of the rent by 10%, whereas the petitioner – tenant denied 10% increase and relied upon the findings rendered in the judgment dated 07.03.2012 in R.C.Rev No.369 of 2014.

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Mr.T.K.Vipindas, learned counsel appearing on behalf of the petitioner – tenant submitted that the courts below have abdicated in accepting the contention of the landlord by increasing the rent of 10% for, there is a categoric interpretation of Clause of Ext.A1 in the previous round of litigation i.e., an agreement of lease where the increase of Rs.60/- (Rupees Sixty only) every

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RCREV. NO. 126 OF 2022 -5-

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year was provided and not 10%. The remedy for the landlord, if any, was under Section 5 of the Act i.e., for fixation of the fair rent but not in the manner and mode as has been chosen, therefore there is an abdication.

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On the other hand Mr.Sreekumar Chelur, learned counsel appearing on behalf of the landlord submitted that those findings cannot be treated to be binding as the landlord can always claim the rent in terms of the rent agreement and claim 10% increase, but do not deny the findings of fact and law attained finality in the R.C.R.No.369 of 2011.

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We have heard learned counsel for the parties and appraised the paper book.

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It would be appropriate to extract the relevant portion of the findings:

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“…...4. We therefore in this revision are called upon to decide only the above question - whether Ext.A1 is a compulsorily registrable document and whether the landlords claim based on Ext.A1 is sustainable.

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RCREV. NO. 126 OF 2022 -6-

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We have heard Sri.Santhosh P. Poduval, the learned counsel for the revision petitioner and Sri.G.Sreekumar, the learned counsel for the respondents in detail. According to us, the question raised in this revision can be answered only in favour of the respondents and against the revision petitioner. According to us, Ext.A1 does not fall within the ambit of Section 17(1)(d) of the Registration Act. We also find that Ext.A1 was marked in evidence without any objection whatsoever from the part of the revision petitioner. We find further that the clause in Ext.A1 that the rent will stand enhanced by ` 60/- every year was admittedly implemented during the first two years. For these reasons it is too late in the day for the revision petitioner to contend that Ext.A1 is a void document being compulsorily registrable and that the claim based on Ext.A1 cannot be sustained.

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The revision fails and the same will stand dismissed. For taking this view we also take into account the fact that the order of eviction passed by the Appellate Authority under Section 11(2)(b) is a tentative one. We allow to the revision petitioner two months' time from today i.e. 7^th March, 2012 for getting the above order vacated by invoking Section 11(2) (c).”

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RCREV. NO. 126 OF 2022 -7-

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Both the courts below in the instant case relied

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upon the version of the landlord claiming rent at an increase of 10%. It is a matter of record that the landlord had, for claiming the arrears from 23.01.2004 to 14.06.2006 with monthly interest at the rate of 12%, instituted Original Suit, but owing to the order passed by this Court, that is the demand in RCP 35 of 2005, the claim in Original Suit was satisfied. But, since the tenant was in arrears of the rent, claimed the arrears from 23.05.2007 with 10% increase, we are not in agreement with the finding of the Courts below, in view of the findings of this Court extracted above. At the best the remedy for the respondent – landlord was to claim fixation of fair rent under Section 5 of the Act, the right which was not taken away by this Court. The judgments of the courts below are set aside.

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We have been informed that the rent as calculated by the petitioner – tenant is still in arrears. We grant one month time to clear the arrears, failing which, the

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RCREV. NO. 126 OF 2022 -8-

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orders under challenge will come in force. Respondent –

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landlord shall be entitled to claim the eviction in accordance with law. Revision stands disposed off.

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Sd/-

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AMIT RAWAL
JUDGE

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 Sd/-

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 EASWARAN S.

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JUDGE

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K.J.Antony v. Marina Sunny

Case brief

What is this about?

What did the court decide?

K.J.Antony v. Marina Sunny

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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