IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 1359 of 2008(J) ------------------------- IA. 2900 /2005 IN RCP.5/1996 of RENT CONTROL COURT, KOLLAM .................... PETITIONER(S): --------------- 1. J.RAMACHANDRAN NAIR, S/O.LATE JANARDHANA MOOPIL, LEKSHMI NIVAS, VADAKKEVILA CHERRY, VADAKKEVILA VILLAGE. 2. PAJASEKHARA BABU, S/O.LATE JANARDHANA MOOPIL, LEKSHMI NIVAS, VADAKKEVILA CHERRY, VADAKKEVILA VILLAGE. 3. RAMA BHADRAN, S/O.LATE JANARDHANA MOOPIL, LEKSHMI NIVAS, VADAKKEVILA CHERRY, VADAKKEVILA VILLAGE. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT(S): --------------- LEBBA KUNJU AMEER HAMSA, PROPRIETOR, HOTEL KINGS, NEAR STATE BANK OF INDIA, KOLLAM. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1 SRI.T.C.SURESH MENON FOR R1 SRI.JIBU P THOMAS FOR R1 SRI.APPU.P.S. FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXT.P1 TRUE COPY OF THE ORDER IN CRP.. NO.2611 OF 2000 DATED 29-62005 PASSED BY THIS COURT. EXT.P2 TRUE COPY OF THE ORDER IN RCP. NO.2 OF 2000 DATED 27-8-02 PASSED BY THE RENT CONTROL COURT, KOLLAM. EXT.P3 TRUE COPY OF THE AFFIDAVIT AND PETITION IN IA. NO.2900/05 IN RCP. NO.5/96 BEFORE THE RENT CONTROL COURT, KOLLAM. EXT.P4 TRUE COPY OF EXECUTION PETITION IN EP. NO.52 OF 2005 IN RCP NO. 5/96 PASSED BY THE EXECUTION COURT. EXT.P5 TRUE COPY OF OBJECTION FILED TO THE PETITION IN IA. NO.2900/05 EXT.P6 TRUE COPY OF ORDER DT. 14-7-06 IN IA. NO.2900/05 PASSD BY THE RENT CONTROL COURT KOLLAM. EXT.P7 TRUE COPY OF THE ORDER OF DELIVERY DT. 16-6-7 IN EP NO.52 OF 2007 IN RCP NO. 5/96 PASSED BY THE EXECUTION COURT. EXT.P8 TRUE COPY OF THE ORDER IN RCRP NO.1/07 DT. 27-10-07 PASSED BY THE DISTRICT COURT, KOLLAM. //TRUE COPY// PS TO JUDGE. PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- W.P.(C) No. 1359 OF 2008 ----------------------------------------------- Dated this the 6th day of April, 2009 J U D G M E N T Pius.C.Kuriakose, J. Under challenge in this writ petition under Article 227 of the Constitution initiated by the landlord, is Ext.P8 order of the District Court, Kollam setting aside Ext.P7 order passed by the Munsiff, Kollam in E.P.No.52/2007 in RCP.No.5/1996 directing delivery of the building scheduled to RCP.No.5/1996 to the petitioner/landlord. It was very extensive submissions which were addressed before us by Sri.Subhashchandra Bose, learned counsel for the petitioner and Sri.V.Chitambaresh, learned senior counsel for the tenant/respondent. Sri.Subhashchandra Bose submitted that as an executing court, the duty of that court was only to execute the order of eviction. In this context, Sri.Subhashchandra Bose would place reliance on the judgment of this court in Velayudhan v. Addl. Dist. Court WP(C)N0. 1359/08 -2- (1996(2) KLT 684). Learned counsel submitted that an order of eviction under Section 11(2)(b) had been finally passed by a Division Bench of this court in CRP.No.2611/2000. That judgment has become final. The order of eviction passed under Section 11(2)(b) was never got vacated by invoking the powers of the rent control court under Section 11(2)(c). The tenant respondent did file an application under Section 11(2)(c) as I.A.No.2900/2005. That I.A. was dismissed by Ext.P6 order on 14/07/2006. The correctness of Ext.P6 order was never challenged by the respondent/tenant in revision before this court. Instead, the respondent sought a belated review of the said order on 16/06/2007. The review application was I.A.No.2697/2007. Sri.Subhashchandra Bose submitted that the above I.A. seeking review was filed by the respondent only after the execution court had ordered delivery. The review petition was also subsequently dismissed by the rent control court WP(C)N0. 1359/08 -3- by order dated 23-6-2007. Even that order has been allowed to become final by the tenant by not challenging that order before any forum. Referring to the order of the rent control appellate authority interfering with the order of delivery passed by the Munsiff Court, Sri.Subhashchandra Bose would submit that the said order is the result of a wrong impression in the mind of the court that I.A.No.2900/2007 filed by the tenant under Section 11(2)(c) had not been disposed of and the same was pending. In view of the irrefutable position that I.A.No.2990/07 was dismissed and even the petition for review filed by the tenant has been finally dismissed, the order of remand passed by the District Court cannot be sustained in law. 2. Sri.V.Chitambaresh, learned senior counsel drew our attention to Section 11(2)(c). He would submit that the statutory obligation of the tenant who suffered order of eviction under Section 11(2)(b) is only to deposit the WP(C)N0. 1359/08 -4- arrears of rent which is due from him to the landlord as on the date of the statutory intimation notice under Section 11 (2)(b) within one month or such longer period as the court may specify in its order. Once that is done it is the obligatory duty of the court to vacate the eviction order. Drawing our attention to Ext.P1 order in CRP. No.2611 of 2000 Mr.Chitambaresh submitted that the finding therein was that the arrears of rent due from the tenant was Rs.5398.20 and that the order of eviction passed under section 11(2) (b) will stand automatically vacated once the tenant deposits that amount. According to the learned senior counsel, as against the arrears quantified at Rs.5398.20 the tenant deposited on 27-7-2005, a total amount of Rs.9000/- which was more than sufficient to cover the arrears found. The deposit having been made within the statutory minimum period of 30 days the eviction order stood vacated automatically. However, I.A. WP(C)N0. 1359/08 -5- No.2900/05 a formal application under section 11(2)(c), though unnecessary, was also filed by the tenant for getting the eviction order formally vacated under section 11(2)(c). In the affidavit in support of that I.A. even minute details regarding the arrears due had been disclosed with reference to Ext.P1 judgment of this Court. Nevertheless, the Rent Control Court dismissed the I.A. stating that the tenant did not file a statement as was directed and also that the I.A. has been filed with the object of protracting the eviction proceedings and that the I.A. is sheer abuse of legal process. Pointing out the error which was apparent on the order of the learned Rent Control Court, the tenant filed a review petition I.A. No. 2697/07. The same was also dismissed by the Rent Control Court observing that the order sought to be reviewed was one passed on merits, that no case is made out for review and also that the application for review is time barred. Sri.Chitambaresh would place WP(C)N0. 1359/08 -6- strong reliance on the judgment of this court in Dasan V. S.M.Syed Aboobacker Sahib, (1977 KLN Short Note Case No.257) in support of his argument that it is not necessary to file a separate application under section 11(2)(c) for getting the eviction order vacated. The learned senior counsel would place reliance also on another judgment of this court in Francis v. Jacob, (1983 KLT 669) in support of the same argument. Counsel relied on the judgment of the Supreme Court in Chinnamma v. Gopalan, (1995 (2) KLT 755) to argue that section 12 of the Act has no application in the present case where final order under section 11(2)(b) is passed; that the arrears of rent to be deposited is only the arrears demanded in the notice and statutory interest and cost and also to argue that once such a deposit is made the court is bound to vacate the order passed under section 11 (2)(b). 3. In reply, Mr.Subashchandra Bose would reiterate his WP(C)N0. 1359/08 -7- submissions earlier relying on the judgment of this court in Velayudhan v. Addl. Dist. Court, 1996(2) KLT 684. The learned counsel submitted that when an order of eviction passed under section 11(2)(b) is put in execution the executing court is not competent to receive evidence and embark upon an enquiry as to whether the arrears of rent, interest and cost have been paid or not. The concern of the execution court need only be whether the order put in execution subsists. The question whether the arrears of rent is deposited and whether the order under section 11(2) (b) is vacated is a question to be considered by the Rent Control Court when an application is moved under section 11(2)(c). Mr.Subashchandra Bose submitted that unless the Rent Control Court is informed about the deposit and moved by an application under section 11(2)(c), there is no possibility of that court coming to know about the deposit and hence on consideration of expediency and convenience WP(C)N0. 1359/08 -8- it is absolutely necessary that the tenant depositing the arrears moves the Rent Control Court by an application. Counsel submitted that the tenant in this case did file and move an application, but the application was dismissed and the further application filed for review of that order was also dismissed. The only question which arises is whether the tenant can be permitted to ignore the orders finally passed against him in I.A. No. 2900/05. The counsel argued that the order under challenge in this writ petition filed in the supervisory jurisdiction of this court under Article 227 is Ext.P8 order of remand passed by the District Judge. That order was passed under an erroneous impression that I.A.2900/05 was yet to be finally considered by the court. Now that it is seen that I.A. 2900/05 had been dismissed, P8 order cannot be sustained at all. 4. We have very anxiously considered the rival submissions addressed at the Bar. Ext.P1 is the judgment of WP(C)N0. 1359/08 -9- this court in the civil revision petition filed by the landlord under section 20 against the order of the Rent Control Court and the Appellate Authority concurrently disallowing his petition for eviction. As will be clear from Ext.P1 the landlord had invoked the grounds of arrears of rent, bona fide own occupation, user of the building in such a manner as to reduce the value and utility of the building and also the ground of requirement of reconstruction. The Rent Control Court and the Appellate Authority dismissed the rent control petition completely disallowing order of eviction on all the grounds sought for. In Ext.P1, which is reported in 2005(3) KLT 627 this court gives relief to the landlord to a limited extent. Reversing the findings of the Rent Control Court and the Appellate Authority in the context of the ground of arrears of rent this court finds that there is arrears of rent to the tune of Rs.5398.20. This court also notices that the rent which has been paid by the tenant at WP(C)N0. 1359/08 -10- the rate of Rs.25/- per day was fixed 20 years before, and directs the tenant to pay rent at the rate of Rs.1500/- per month prospectively with effect from July 2005. The eviction order which was put in execution by the petitioner against the respondent tenant was Ext.P1. 5. Orders of eviction under section 11(2)(b) in our view are not absolute orders of eviction. They are only tentative orders which are liable to be vacated under clause (c) of subsection (2) of section 11, once the arrears of rent, interest and cost of the proceeding are deposited by the tenant within one month of the order or such longer period as the Rent Control Court may in its discretion allow. An issue which seriously arises in the light of the arguments addressed before us, is whether it is necessary that the tenant shall also file a formal application under section 11 (2)(c) apart from making the requisite deposits so as to enable the Rent Control Court to vacate the order of WP(C)N0. 1359/08 -11- eviction. An incidental issue which arises, is whether an order of Rent Control Court formally vacating the order under section 11(2)(b) is necessary or whether the order will stand automatically vacated upon deposits. 6. We will now quote clause(c) of subsection (2) of section 11 which reads as follows: “(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 of 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.” It is clear to our mind even on a cursory reading of clause (c) of subsection (2) of section 11 that a judicial order by the Rent Control Court vacating the eviction order under section 11(2)(b) is envisaged. Ofcourse, we notice that in Dasan v. S.M.Aboobacker Sahib, (1977 KLN S.N. Case No.257) T.Kochu Thommen, J. as a Judge of this Court has WP(C)N0. 1359/08 -12- observed that the order of eviction passed under section 11 (2)(b) “shall stand vacated on deposit of the arrears of rent with interest and cost within the time stipulated” and also stated that in His Lordship's view “it is unnecessary to move the court specially for vacating the order, for in terms of the section itself, the order stands vacated.” Clause (c) of subsection (2) of section 11 in its present form was inserted into Act 2 of 1965 by Act 7 of 1966 with effect from 20-7- 1966 and before that section 11(2)(c) was in the following words: “The order directing the tenant to put the landlord in possession of the building shall not be executed before the lapse of one month from the date of the order of the Rent Control Court and if the tenant deposits arrears of rent with interest and cost of proceedings within a month of such order or such other period as may be allowed by the Rent Control Court, it shall vacate that order.” Thus under section 11(2)(c) as it obtains now and as it obtained earlier, in order that the executability of the order under section 11(2)(b) comes to an end it was necessary WP(C)N0. 1359/08 -13- that the Rent Control Court passed order vacating the same. It is clear to our mind that the order which is envisaged under section 11(2)(c) is a judicial order to be passed by the Rent Control Court with notice to the landlord in whose favour it passed the order under section 11(2)(b), since questions such as sufficiency of the amount deposited and whether the deposit is on time are likely to arise and the parties are likely to be at issue on these questions. Even though the judgment of the Supreme Court in Chinnamma v. Gopalan (1995(2) KLT 755) and a subsequent judgment of this court in Francis v. Jacob (1983 KLT 669) were also relied on by Mr. V. Chitambaresh we notice that the only judgment which takes the extreme view that upon deposit the order of eviction under section 11 (2) (b) shall get automatically vacated is the judgment of Kochu Thommen, J. in Dasan's case and we with respect, disagree with that view. WP(C)N0. 1359/08 -14- 7. At the same time, the view expressed by Kochu Thommen, J. in Dasan's case that a formal application under section 11(2)(c) may not be necessary for enabling the Rent Control Court to exercise powers under section 11(2)(c) has some support from the statutory provision itself and also from the following two sentences in paragraph 8 of the judgment of the Supreme Court in Chinnamma v. Gopalan (1995(2) KLT 755) “An order passed under section 11(2)(b) remains in suspended animation for a period of one month. If within the period of one month from the date of the order passed under section 11(2)(b) or such further period as Rent Control Court may allow, the tenant deposits the arrears of rent with interest and cost of proceedings, the court is bound to vacate the order passed under Section 11(2)(b).” We will at once notice that in actual practice formal applications are being filed by tenants against whom eviction orders have been passed under section 11(2)(b) which are often contested by the landlords and Rent Control Courts pass reasoned orders allowing or disallowing the WP(C)N0. 1359/08 -15- applications filed by the tenants or at times pass interim orders regarding deposit of further amounts to make up for deficiency if any in the deposit already made. The above practice has been judicially approved also, obviously on considerations of expediency and convenience to the parties and also to the court. See the judgments in Khadi Gram Udyog Trust v. S.R.C.V.Mandir, (1978) 1 SCC 44, Mohammedkutty v. Ahammedkutty, 1979 KLT 539, and Francis v. Jacob, (1983 KLT 669) cited by Mr.Subashchandra Bose for a different proposition. To the question whether a formal application is absolutely necessary for enabling the Rent Control Court to exercise the power under section 11(2)(c) for vacating the eviction order under section 11(2)(b), our answer is that a formal written application specifically invoking the power under section 11(2)(c) is not mandatory. At the same time, it is absolutely necessary that deposit by the tenant of the WP(C)N0. 1359/08 -16- arrears of rent in court or payment of arrears by him to the landlord directly, should be brought to the notice of the Rent Control Court by filing at least a memo or a statement and the Rent Control Court shall pass orders under section 11(2) (c) only after issuing notice to the landlord. This as we have already indicated is absolutely necessary since questions regarding sufficiency of deposit or payment are likely to become contentious. Ideally, a formal application under section 11(2)(c) should be filed in the interest of the tenant himself and on pragmatic considerations. A positive or negative order under section 11(2)(c) will be of immense consequence to the parties and in the language of section 18 such orders will be appealable and thereafter can be subjected to revision under section 20 also. In the interest of the parties themselves it is better that a formal application itself is filed so that the Rent Control Court, the Appellate Authority and the Revisional Court will have the WP(C)N0. 1359/08 -17- advantage of appreciating the parties' case in the context of section 11(2)(c) by scanning the averments in the affidavits respectively filed by them. In the instant case also we find that a formal application was filed supported by an affidavit wherein the tenant had given even minute details regarding the sufficiency of the deposits made by him. 8. Coming to the legality of the order of the District Judge which is impugned in this writ petition, Mr.Subsashchandra Bose is certainly right when he submits that while passing the impugned order of remand the District Judge was under an impression that I.A. No.2900/05 filed by the tenant was pending consideration before the Rent Control Court. We also notice that Mr.Subashchandra Bose's submission that the order dismissing I.A. No. 2900/05 having attained finality, it was not open to the tenant to contend before the execution court that the eviction order stood vacated automatically despite the WP(C)N0. 1359/08 -18- dismissal of I.A. No.2900/05 has some force. At the same time, we are not inclined to restore the order of delivery passed by the Rent Control Court after setting aside the impugned judgment of the District Court passed in a revision filed by the tenant against the order of delivery. This is because we are convinced that the decision of the Rent Control Court dismissing I.A. No. 2900/05 was a patently erroneous decision passed in complete disregard of the mandatory provision of section 11(2)(c) which obliges that court to vacate the order of eviction passed under section 11(2)(b), once it is seen that the arrears of rent quantified by the court was paid or deposited by the tenant on time. In the instant case the passage of eviction order under section 11(2)(b) and quantification of arrears of rent was made for the first time by this court in Ext.P1 judgment. Within one month of Ext.P1 the amount was deposited and petition under section 11(2)(c) was filed by WP(C)N0. 1359/08 -19- the tenant. The affidavit in support of that petition contained all relevant details showing sufficiency of the deposit. In terms of the findings in Ext.P1 we fail to see how the Rent Control Court could direct the tenant to file statement again when the sufficiency of the amount deposited could not have been in doubt at all, especially, when the deposit was made within the statutory minimum period of one month. At the same time, the respondent tenant is not entitled to ignore the order passed against him on his application under section 11(2)(c), however erroneous the order was, especially when the jurisdiction of the Rent Control Court to decide the I.A. was never in question. Since in this writ petition we are invoking the supervisory jurisdiction under Article 227 wherein we are expected to ensure that the courts subordinate to this court keep within the limits of their powers and do not pass orders amounting to violation of clear provisions of law WP(C)N0. 1359/08 -20- statutory or settled, or orders resulting in injustice, miscarriage of justice or gross failure or justice, we are of the view that we should interfere not only with the impugned order passed by the District Judge but also with the order passed by the Rent Control Court on the application under section 11(2)(c) filed by the tenant. Mr.Subashchandra Bose addressed fervent submissions before us against our interfering with negative orders passed by the Rent Control Court in his client's favour, on the application under section 11(2)(c) in a writ petition which is filed by the tenant only. Since we find that it is imperative for doing justice between the parties on the cause before us, that we set aside the order of the Rent Control Court also, we are unable to accept the learned counsel's submissions against the rather unusual course which we are adopting in this case. However, we are doing so only by subjecting the tenant to conditions which will at WP(C)N0. 1359/08 -21- least to a certain extent redress the grievance of the landlord. 9. The result of the above discussions is that the writ petition stands allowed. Ext.P8 order of the District Judge as well as the order dated 16-6-107 in E.P. No. 52/07 in RCP. No. 5/96 which was challenged before the District Judge are set aside. The order passed by the Rent Control Court on 14-7-2006 in I.A. No. 2900/05 as well as the order dated 23-6-2007 in I.A. No. 2697/07 are also set aside. I.A. No.2900/05 is remitted back to the Rent Control Court for reconsideration and fresh decision. The orders above will become operative only upon the respondent tenant complying with / obeying the following conditions. 1. The respondent pays to the writ petitioner landlord within one month from today the rent which has fallen due in respect of the petition schedule building after Ext.P1 judgment at the fixed rate of Rs.1500/- per mensem till 30- WP(C)N0. 1359/08 -22- 4-2009 together with interest at the statutory rate, if any, due. 2. The monthly rent payable by the respondent for the schedule building stands re-fixed with effect from 1-5-2009 at the rate of Rs.3000/- per mensem subject to fixation of fair rent by competent court at the instance of either of the parties. 3. Respondent shall pay a consolidated amount of Rs.10,000/- to the petitioner by way of cost and taking into account the relief which is being given to him in a proceeding initiated at the instance of the landlord within three weeks from today either directly to the landlord or through his counsel in this court. 4. Once Rent Control Court notices that there is compliance with all the above conditions that court will close I.A. 2697/07 as unnecessary and will post I.A. No.2900/05 for fresh consideration and will dispose of that I.A. in WP(C)N0. 1359/08 -23- accordance with law after hearing both sides. It is needless to mention that disposal