R. Shanmughan vs Suseelan

P.N. Ravindran, J.—1. The petitioner is the tenant in R.C.(O.P.) No. 3 of 2012 on the file of the Rent Control Court, Kollam wherein the respondent/landlord has prayed for an order of eviction under section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as "the Act" for short. The landlord had in the petition for eviction averred that he had entrusted the petition schedule building to the tenant on 1.7.2009 for a period of 11 months with a stipulation to pay Rs. 4,000/- per month as rent. He had also admitted that the tenant had deposited the sum of Rs. 1,00,000/- as interest free deposit. It is stated that as the tenant had committed default in payment of rent and as he bonafide needs the petition schedule building for his daughter who is depending on him, he filed R.C.(O.P.) No. 20 of 2010, that after notice in the said case was served on the tenant, he remitted Rs. 16,000/- on two occasions and that the amount thus deposited namely Rs. 32,000/- covers only the rent for the period till February 2010. He had further averred that though in R.C.(O.P.) No. 20 of 2010, the rent control court had entered a finding that the tenant has committed default in payment of rent from 1.8.2009 on 25.3.2010, an order of eviction under section 11(3) of the Act was not passed. It is stated that challenging the order declining the prayer for eviction under section 11(3) of the Act, the landlord has filed R.C.A. No. 41 of 2011 on the file of the Rent Control Appellate Authority, Kollam and it is pending. The rent control petition proceeds to state that after R.C.A. No. 41 of 2011 was filed, the tenant deposited Rs. 39,700/- towards arrears of rent till November 2010 and that as on the date of the rent control petition namely 2.1.2012, the rent for 13 months is due. He also contended that similar rooms in the locality fetch Rs. 7,500/- per mensem as rent and that he is entitled to rent at that rate from 31.5.2010 plus yearly increase at 10% thereafter till the building is vacated.

Upon receipt of notice, the tenant entered appearance and filed a counter statement dated 11.9.2012 wherein he contended that he has paid rent for the period till May 2011, that after the notice dated 14.11.2011 was issued, the landlord received the rent for the period from June 2011 to August 2012 with interest on 5.9.2012 and that he is not liable to pay any amount as arrears to the landlord. He further contended that rent upto August 2012 was being paid directly to the landlord and rent for the period from September 2010 to April 2011 amounting to Rs. 32,000/- was remitted to the credit of R.C. (O.P.) No. 20 of 2010. He also contended that upon deposit of the sum of Rs. 39,658.50, the order of eviction passed under section 11(2)(b) of the Act in R.C.(O.P.) No. 20 of 2010 was vacated.

After the tenant filed his counter statement in R.C.(O.P.) No. 3 of 2012, the landlord filed I.A. No. 1286 of 2013 under section 151 of the Code of Civil Procedure praying for an order directing the tenant to pay rent at the rate of Rs. 4,000/- per mensem from 31.5.2010 and to strike off his defence in the event of failure to pay arrears of rent at that rate. He had in paragraph 3 of the affidavit filed in support of the application averred that the tenant has paid rent only for the period ending with 31.5.2010 and that rent for the period thereafter has not been paid or deposited. The tenant opposed the said application by filing a counter statement dated 4.6.2013. He contended that he has paid rent till May 2011 and that the landlord refused to receive the rent from June 2011 onwards. The said contention was contrary to the stand taken by him in paragraph 5 of the objections to the rent control petition wherein he had stated that the rent for the period from June 2011 to August 2012 with interest was received by the landlord on 5.9.2012.

The rent control court after considering the rival contentions allowed the application and directed the tenant to pay admitted arrears within 30 days. The rent control court also directed the application to be called again on 19.7.2013. On 19.7.2013 it was adjourned to 25.7.2013. It was however not called on 25.7.2013 but it was called only on 31.8.2013 and on that day on the ground that no remittance has been made, I.A. No. 1286 of 2013 was allowed, the defence of the tenant was struck off and the tenant was directed to vacate the petition schedule shop room within one month.

Challenging that order the tenant filed O.P.(R.C.) No. 3509 of 2013 in this court. On that petition this court passed an interim order on 10.10.2013 staying the operation of the order of eviction passed on 31.8.2013 subject to the condition that the tenant shall pay the sum of Rs. 50,000/- within ten days and deposit the balance amount within one month thereafter. O.P.(R.C.) No. 3509 of 2013 was thereafter heard and disposed of by judgment delivered on 19.12.2013 in the following lines:

"This original petition is one filed by the respondent in R.C.P. No. 3/2012 aggrieved by Ext. P5 order passed by the Rent Control Court directing the petitioner to vacate the petition schedule premises within one month from the date of the order. While admitting this original petition, this Court had passed an interim order dated 10/10/2013 directing the petitioner to pay/deposit an amount of Rs. 50,000/- within ten days from the date of the order and the balance amount to be deposited within one month thereafter.

Shri S. Soman, learned counsel for the petitioner submitted that the amount has been paid and the same will cover the defaulted arrears of rent. In the light of the payment made, Ext. P5 will stand set aside.

We heard learned counsel for the respondent Shri K. Subash Chandra Bose, who submitted that the petitioner may be directed to pay monthly rent from time to time. The petitioner will pay the monthly rent from time to time during the pendency of the proceedings. The O.P.(R.C.) is disposed of as above."

A reading of the said judgment discloses that this court has proceeded on the basis that the deposit of Rs. 50,000/- made pursuant to the interim order passed by this court on 10.10.2013 in O.P.(R.C.) No. 3509 of 2009 will cover the entire arrears of rent till then and that the tenant''s liability is only to pay the monthly rent accruing from December 2013 onwards.

Alleging that the tenant has not complied with this court''s direction in O.P.(R.C.) No. 3509 of 2013, the landlord filed I.A. No. 4830 of 2014 in R.C.(O.P.) No. 3 of 2012 styled as an application under section 151 of the Code of Civil Procedure for an order evicting the tenant. Such a relief was sought on the averment that the tenant has kept the rent in arrears from March 2013 onwards and that he has not complied with the direction issued by this court in O.P.(R.C.) No. 3509 of 2013 that he should deposit the monthly rent from time to time during the pendency of the proceedings. The tenant opposed the said application by filing a counter statement. In paragraph 3 thereof, he contended that he has deposited a total amount of Rs. 1,32,200/- being the rent with interest due for the period from 1.5.2011 till 19.10.2013. He also contended that he is willing to deposit the admitted arrears of rent due from 19.11.2013 till 18.11.2014 with interest. He denied and disputed the landlord''s averment in I.A. No. 4830 of 2014 that rent upto February 2013 alone has been paid and that rent from March 2013 is in arrears. Notwithstanding these contentions, the rent control court disposed of I.A. No. 4830 of 2014 by order passed on 19.1.2015. The relevant portion thereof reads as follows:

"5. Heard both sides.

From the averments with petition, from objection and on the submission of the learned counsel for the counter petitioner/tenant I am satisfied that the tenant has not remitted the admitted arrears of the rent. Since the last remittance on 19-11-2013 and therefore the tenant has committed default in payment. Hence the petitioner/land lord as entitled to invoke Section 12 of the BRC Act and therefore this petition is liable to be allowed.

In the result, the counter petitioner/tenant is directed to give the vacant possession of the tenanted premises to the petitioner/landlord within one month from this date."

The rent control court held that the last remittance was on 19.11.2013 meaning thereby that the tenant has committed default in payment of rent and therefore, the landlord is entitled to invoke section 12 of the Act and pray for an order of eviction. The rent control court accordingly directed the tenant to surrender possession of the premises to the landlord within one month. Challenging that order, the tenant filed R.C.A. No. 8 of 2015 on the file of the Rent Control Appellate Authority, Kollam. By order passed on 26.6.2015, the appellate authority dismissed the appeal. The tenant has, aggrieved thereby, filed this appeal.

We heard Sri. S. Soman, learned counsel appearing for the petitioner and Sri. K. Subhash Chandra Bose, learned counsel appearing for the respondent. We have also gone through the pleadings and the materials on record. The case set out by the landlord in the rent control petition is that the tenant has kept the rent at the rate of Rs. 4,000/- per mensem in arrears from November 2010. The tenant has in his counter statement contended that he has paid rent upto and inclusive of August 2012. The last payment according to him was on 5.9.2012. Initially, on application filed by the landlord as I.A. No. 1286 of 2013 without entering a finding as regards the actual arrears payable and without quantifying it, by order passed on 18.6.2013 the rent control court directed the tenant to pay the admitted arrears. Since no payment was made by 31.8.2013, an order of eviction under section 12(3) of the Act was passed. When that order was challenged in this court in O.P.(R.C.) No. 3509 of 2013, this court passed an interim order staying the order of eviction subject to payment of Rs. 50,000/- towards arrears of rent within ten days and deposit of the balance amount within one month. The deposit of the balance amount within one month was not made. However O.P.(R.C.) No. 3509 of 2013 was disposed of on the premise that deposit of the sum Rs. 50,000/- would cover the entire arrears till the date of the order. The tenant was however directed to pay the monthly rent from time to time during the pendency of the proceedings. It was alleging that the said direction has not been complied with and that the tenant has kept the rent at the rate of Rs. 4,000/- per mensem in arrears from March 2013 that the landlord filed I.A. No. 4830 of 2014. The tenant opposed the said application and contended that he has paid rent upto November 2013 and that rent from 20.11.2013 alone is due. It was without entering a finding as regards the correctness of this contention that by order passed on 19.1.2015 the rent control court directed the tenant to surrender vacant possession. The rent control court has not adverted to the various facts stated above. Instead merely on the ground that as the last remittance was on 19.11.2013, it implies that the tenant has committed default in payment and therefore the landlord is entitled to invoke section 12 of the Act, an order of eviction was passed. The appellate authority has upheld the said order. Having regard to the fact that the parties were at issue as regards the actual amount due by way of arrears and this court had disposed of O.P. (R.C.) No. 3509 of 2013 on the premise that as on the date of the order disposing of the said case, no rent was in arrears, the rent control court ought to have in our opinion decided what exactly was the amount payable as otherwise, the tenant will be put to serious prejudice at a later stage. If the actual amount due by way of admitted arrears is not quantified, the landlord will be able to contend that the deposit made by the tenant does not represent the actual arrears and therefore, he is liable to be summarily evicted by recourse to section 12(3) of the Act. That is exactly what happened in the instant case. We are therefore of the considered opinion that the rent control court should have a relook at the issue after calling upon the landlord to file a statement setting out the actual amount of arrears due as on 31.3.2016 and by directing the tenant to file a statement setting out the payments made by him till date towards arrears of rent after the institution of R.C.(O.P.) No. 20 of 2010.

We accordingly allow the revision petition, set aside the impugned orders and remand I.A. No. 4830 of 2014 in R.C.(O.P.) No. 3 of 2012 to the Rent Control Court, Kollam for fresh disposal after quantifying the admitted arrears of rent and after giving an opportunity to the tenant to deposit the same. The rent control court shall dispose of I.A. No. 4830 of 2014 afresh untrammelled by the findings and observations in the impugned orders, expeditiously and in any event before 8.4.2016. In order to enable the rent control court to act as directed above, the parties shall appear through counsel before the rent control court and file their statements on 1.4.2016. The rent control court shall thereupon adjudicate the issue and pass orders on the application on or before 8.4.2016.