Disposed

M. Nagraj v. K. Jayadeva Prabhu

Kerala HC26 Jun 2024RCRev./87/2024

Case brief

AI extract

What is this about?

Landlord's revision against appellate authority's rejection of an application requiring the tenant to pay rent arrears before entertaining the eviction appeal. The High Court held Section 12(1) mandatorily requires payment and set aside the order.

What did the court decide?

Impugned appellate order set aside; tenant to pay arrears of Rs.38,500 within one month, failing which appeal closure and eviction follow under Section 12(3).

M. Nagraj Vs K. Jayadeva Prabhu — 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 24^TH DAY OF JULY 2024 / 2ND SRAVANA, 1946

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OP (RC) NO. 87 OF 2024

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AGAINST THE JUDGMENT DATED IN RCA NO.3 OF 2023 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA

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PETITIONER(S)/APPLICANT IN THE IA/RESPONDENT IN THE RCA/PETITIONER

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IN THE RCP:

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VIKAS CHACKO AGED 42 YEARS

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VALLAMATTATHIL HOUSE, NAGARAMCHAL, NOOLPUZHA VILLAGE, SULTHAN BATHERY, WAYANAD DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, V. M. CHACKO, VALLAMATTATHIL HOUSE, NAGARAMCHAL, NOOLPUZHA VILLAGE, SULTHAN BATHERY, WAYANAD DISTRICT., PIN - 673592

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BY ADVS. P.T.MOHANKUMAR RAM MOHAN

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RESPONDENT(S)/RESPONDENT IN THE IA/APPELLANT IN THE RCA/RESPONDENT

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IN THE RCP:

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USHA SEBASTIAN AGED 48 YEARS W/O. SEBASTIAN, CHACKALAKKAL HOUSE, KOLIYADI ROAD, SULTHAN BATHERY P. O., WAYANAD DISTRICT., PIN - 673592

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BY ADVS. SAJI.P.JOSEPH C.C.MATHEW(K/142/1976) G.MINI (PALATH)(K/1094/1999) A.SEENA(K/685/2009) K.T.SAJU(K/680/2008) THANKARAJAN P.K.(K/000224/1982) DEEPESH E.S(K/420/2020)

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THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 24.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (RC) NO. 87 OF 2024

JUDGMENT

Amit Rawal, J.

Present revision petition is directed against the order dated 30.5.2024 of the appellate authority whereby the application of the petitioner-landlord for commanding the respondent-tenant to pay the arrears of rent as determined by the Rent Controller for entertaining the appeal has been rejected on two accounts.

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Learned counsel for the petitioner submitted that the petitioner-landlord has sought the eviction of the respondenttenant on the ground of arrears of rent from July 2012 to February 2017 on the premise that the erstwhile owner and the landlord, vide sale deed dated 6.7.2012, had passed on the title in favour of the petitioner-landlord. A copy of the notice, Ext.A2 dated 15.2.2017 for vacating the premises was also served upon the tenant but there was no reply. Even the factum of purchase of the property was also intimated to the tenant but the tenant did not acknowledge the petitioner as the landlord nor paid the rent, whereas on the other hand, in the counter statement/written statement filed before the Rent Controller alleged that, had been paying rent to the previous landlord but no rent receipts or any proof much less the previous landlord had been examined in support of the said findings, resulting into

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OP (RC) NO. 87 OF 2024

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eviction order under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 and bonafide necessity.

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Section 12(1), 12(2) and 12(3) of the Act envisage three stages for trying and entertaining the rent control petition as well as the appeal. In cases where the eviction order is on the ground of arrears of rent, tenant, for entertaining and trying the appeal is required to clear the arrears of rent. Sub Section (2) of Section 12 envisages the non payment of the amount within the time prescribed whereas as per sub Section (3) prescribes automatic order of closure of the appeal or eviction. However the learned Appellate authority misconstrued and misread the aforementioned provisions and dismissed the application simply on the ground of denial of the title as well as the identity of the property whereas there was no such issue with regard to the identity of the property. Thus there is an abdication.

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On the other hand, learned counsel for the respondent-tenant countered the arguments of the learned counsel for petitioner on the premise that the application at the behest of the petitioner-landlord under sub Section (2) and (3) of the Section 12 of the Act was not maintainable as there was no such adjudication under sub Section (1) of Section 11. Respondent-tenant had categorically denied the title much less

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OP (RC) NO. 87 OF 2024

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the identity of the property and until and unless those controversies are not adjudicated, cannot be called upon to pay the arrears of rent for the period aforementioned, amounting to Rs.38, 500/- and prays for dismissal of the revision petition.

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We have heard learned counsels for the parties and appraised the paper book and of the view that the findings of the appellate authority in dismissing the claim/application submitted by the applicant-landlord for commanding the tenant to pay the rent for the purpose of trying and entertaining the appeal preferred against the order of eviction of the Rent Controller is not sustainable in the eyes of law for the reason that sub Section 1 of Section 12, which is extracted herein below, mandatorily provides that the tenant cannot maintain and press the appeal until and unless the arrears of rent ordered by the Rent Controller on merits are paid, much less even the interim order cannot be passed. No doubt, the contents of the application submitted by the petitioner-landlord reflected the provisions of sub Section (2) and (3), for, the provisions of Section (1) are deemed to have been attracted. Having failed to do so, petitioner-landlord has no other option but to ask for vacation or arrears of rent. The appellate authority could not have embarked or addressed the issue with regard to the identity of

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OP (RC) NO. 87 OF 2024

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the property in the absence of any issue framed by the Rent Controller or the evidence brought on record. Those findings are held as obiter. We are of the view that the appellate authority did not refer to the provisions of Section 12 for adjudication of the application. Accordingly, the impugned order is set aside. Respondent-tenant in terms of the provisions of Section 12 (1) of the Act, is directed to pay the arrears of the rent as determined ie., Rs.38,500/- within a period of one month from the date of preparation of the certified copy of judgment, failing which necessary orders of closure of the appeal and the eviction as provided under Section 12(3) of the Act would follow. Petitions stands disposed of.

SD/-

AMIT RAWAL

JUDGE

SD/-

sab

EASWARAN S.

JUDGE

OP (RC) NO. 87 OF 2024

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APPENDIX OF OP (RC) 87/2024

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PETITIONER EXHIBITS

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Exhibit P-1	TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE PETITIONER, DATED 04-04-2015
Exhibit P-2	TRUE COPY OF THE REGISTERED SALE DEED, NO.3802/2012, EXECUTED BY ONE HAFSATH (AFSATH) IN FAVOUR OF THE PETITIONER, ALONG WITH TRUE ENGLISH TRANSLATION OF THE SAME, DATED 06-07-2012
Exhibit P-3	TRUE COPY OF THE RENT CONTROL PETITION, IN RCP NO.20/2017 FILED BY THE PETITIONER BEFORE THE RENT CONTROLLER, SULTHAN BATHERY.
Exhibit P-4	TRUE COPY OF THE COUNTER-STATEMENT FILED BY THE RESPONDENT IN RCP 20/2017 IN THE FILE OF THE RENT CONTROLLER, SULTHAN BATHERY, TOGETHER WITH TRUE ENGLISH TRANSLATION, DATED 22-05-2019
Exhibit P-5	TRUE COPY OF THE ORDER PASSED BY THE RENT CONTROLLER IN RCP 20/2017, DATED 23-11-2022
Exhibit P-6	TRUE COPY OF THE RENT CONTROL APPEAL FILED BY THE RESPONDENT AND NUMBERED AS RCA 03/2023 IN THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY, KALPETTA.
Exhibit P-7	TRUE COPY OF THE PETITION FILED BY THE PETITIONER UNDER SECTION 12 OF THE RENT CONTROL ACT BEFORE THE APPELLATE AUTHORITY, NUMBERED AS IA 03/2023, DATED 02-12-2023
Exhibit P-8	TRUE COPY OF THE COUNTER-STATEMENT FILED BY THE RESPONDENT AGAINST EXHIBIT P-7 APPLICATION, BEFORE THE APPELLATE AUTHORITY.
Exhibit P-9	TRUE COPY OF THE ORDER PASSED BY THE RENT CONTROL APPELLATE AUTHORITY, KALPETTA, IN IA 03/2023 IN RCA 03/2023, TOGETHER WITH A TRUE TYPED COPY, DATED 30-05-2024

M. Nagraj v. K. Jayadeva Prabhu

Case brief

What is this about?

What did the court decide?

M. Nagraj v. K. Jayadeva Prabhu

Case brief

What is this about?

What did the court decide?

What the court decided

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