IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 WP(C).No. 3307 of 2010(K) ------------------------------------- [RCP.NO.35/2008 OF THE RENT CONTROLLER (MUNSIFF'S COURT) ERNAKULAM] .................... PETITIONER: ------------------- M.ABDUL JABBAR, S/O.E.K.KUNHAHAMMED, HOTEL PARK ROYALE, OPP. COCHIN HOSPITAL, PALLIMUKKU, M.K.ROAD, KOCHI. BY ADVS. SRI.A.MOHAMED MUSTAQUE, SRI.T.PRAVEEN. RESPONDENTS: ------------------------ 1. MOHAMED AMEEN, AGED 33 YEARS, S/O.SULAIMAN ABOOBACKER SAIT, JUWAIRIA,DOOR NO.40/9087,OPP.YMCA, CHITTOOR ROAD,ERNAKULAM-35,REPRESENTED BY HIS POWER OF ATTORNEY HOLDER AND FATHER MR.SULAIMAN ABOOBACKER SAIT, S/O.LATE ABOOBACKER ABDULLA SAIT,RESIDING AT JUWAIRIA, DOOR NO.40/9087,OPP.YMCA,CHITTOOR ROAD,ERNAKULAM DISTRICT. 2. MOHAMED ELYAS, AGED 31 YEARS, S/O.SULAIMAN ABOOBACKER SAIT,JUWAIRIA,DOOR NO.40/9087,OPP.YMCA, CHITTOOR ROAD,ERNAKULAM-35,REPRESENTED BY HIS POWER OF ATTORNEY HOLDER AND FATHER MR.SULAIMAN ABOOBACKER SAIT, S/O.LATE ABOOBACKER ABDULLA SAIT, RESIDING AT JUWAIRIA,DOOR NO.40/9087, OPP.YMCA,CHITTOOR ROAD,ERNAKULAM DISTRICT. R1 & R2 BY ADVS. SRI.BABU KARUKAPADATH, SMT.M.A.VAHEEDA BABU, SRI.JAGAN GEORGE, SRI.K.A.NOUSHAD, SRI.P.G.PRAMOD, SRI.KANDAMPULLY RAHUL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.3307/2010-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PETITION FILED BY THE RESPONDENTS UNDER RCP.NO.35/08 ON THE FILE OF RENT CONTROLLER,(MUNSIFF'S COURT) ERNAKULAM. EXT.P.2: COPY OF THE COUNTER FILED PETITIONER IN RCP.35/08. EXT.P.3: COPY OF THE PETITION FILED BY THE RESPONDENTS UNDER I.A. NO. 4150/09. EXT.P.4: COPY OF THE COUNTER FILED BY THE RESPONDENTS. EXT.P.5: COPY OF THE PETITION FILED UNDER IA. NO.6962/09. EXT.P.6: COPY OF THE INTERROGATORIES FILED BY PETITIONER. EXT.P.7: COPY OF THE ORDER IN I.A. NO. 4150/09 IN RCP.NO.35/2008 ON THE FILE OF THE IIIRD ADDL. MUNSIFF'S AND RENT CONTROL COURT, ERNAKULAM DTD. 07/10/09. EXT.P.8: COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS IN I.A. NO. 6962/09. EXT.P.9: COPY OF THE ORDER IN I.A. NO. 6962/09 IN RCP.NO.35/08 ON THE FILE OF THE ADDL. MUNSIFF & RENT CONTROL COURT, ERNAKULAM DTD. 17/12/09. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- W.P.(C).No.3307 of 2010 ---------------------------------------------------- Dated this the 29th day of June, 2011 Judgment Pius C.Kuriakose, J. Under challenge in this writ petition filed under Article 227 of the Constitution is Ext.P9 order by which the Rent Control Court dismissed I.A.No.6962 of 2009 filed by the tenant in R.C.P.No.35 of 2008. The above I.A. was filed under Rule 1 of Order 11 C.P.C. seeking leave to serve an interrogatory upon the landlord. The interrogatory which the tenant wanted to serve on the landlord is shown in Ext.P6. Though the petitioner's admit receipt of Rs.15 lakhs from the respondents as per cheque dated 1.4.2004 drawn on Union Bank of India, Ernakulam bearing No.227751, the learned Rent Control Court dismissed the I.A. accepting the contention of the landlord that the question whether advance amount of Rs.15 lakhs drawn is received is not very much relevant to the eviction proceedings. It has been the consistent stand taken by the tenant-petitioner that he paid an advance amount of Rs.15 lakhs to the landlords as per the WPC 3307/10 2 cheque No.227751 drawn on Union Bank of India, Ernakulam on 1.4.2004, the date of commencement of the lease. The only ground which is invoked in the R.C.P. is the ground under Section 11(3). The question whether the tenant has paid a sum of Rs.15 lakhs as advance assume relevance only when the landlord filed Ext.P3 petition under Section 12(3) alleging that the rent at the rate of Rs.25,000/- per mensem is in arrears since April, 2008. To Ext.P3 petition, the tenant-petitioner filed Ext.P4 objections. To the main Rent Control Petition, the tenant filed Ext.P2 counter statement. Both in Ext.P2 as well as in Ext.P4 the tenant has raised a contention that at the time when he paid Rs.15 lakhs by way of cheque to the landlords, and that there was a specific agreement between the parties that the tenant will not be evicted till the entire advance amount paid as per the above cheque is exhausted after adjusting the rent payable. Ext.P4 shows that the tenant has denied the arrears of rent alleged by the landlord. But in Ext.P4 it is stated as follows: “It is submitted that this respondent is prepared to pay the rent at the rate of 20000 per month from October 2008 onwards.” WPC 3307/10 3 Mr.Mohamed Mustaque, learned counsel for the petitioner submitted that the question whether the advance amount was paid was relevant not only in the context of the proceeding under Section 12 initiated by the landlord but also in the context of the execution of the final order of eviction. If the contentions were true, the Rent Control Court will be obliged to postpone delivery proceedings till the advance amount is paid off. 2. Mr.Babu Karukapadath, learned counsel for the respondents submitted that neither in the main petition which is under Section 11(3) nor in the proceeding under Section 12(3) the question whether Rs.15 lakhs was paid as advance is relevant. The contention was not one of denial of arrears of rent alleged, instead the contention was one of admission with a further contention for entitlement to adjustment. 3. Having considered the rival submissions addressed at the Bar, we are of the view that the petitioner need not have any legitimate grievance about Ext.P9 because Ext.P6 interrogatory is already answered by the landlord. The only interrogatory was whether the landlord admit the receipt of Rs.15 lakhs from the respondents as per cheque dated 1.4.2004 drawn on Union Bank WPC 3307/10 4 of India, Ernakulam bearing No.227751. The landlord had admitted receipt of the cheque. At the Bar also learned counsel for the landlord admitted that his client had received the cheque. Since his interrogatory is answered, we feel that the petitioner cannot have any legitimate ground to challenge Ext.P9. To what extent the above admission of the landlord will be relevant in the adjudication to be made in the Rent Control Petition is a matter for the Rent Control Court to decide. We leave it to the Rent Control Court. 4. As already indicated, the issue became serious only when Ext.P3 (Section 12(3) ) petition was filed. As for that petition, we have already noticed the admission in Ext.P4 counter statement wherein the tenant has expressed his willingness to pay rent at the rate of Rs.20,000/- per month from October 2008 onwards. The admitted amount as on today inclusive of the rent for June, 2011 will come to Rs.6,60,000/-. We quantify the admitted amount payable inclusive of the rent for June, 2011 as Rs.6,60,000/-. The petitioner is directed to pay the above amount to the respondents either directly or through the respondents' counsel within two months from today. The learned WPC 3307/10 5 Rent Control Court will verify whether there is compliance with this order. If it is noticed that there is compliance, the learned Rent Control Court will include the R.C.P. in the earliest available special list, try the same on a day-to-day basis and dispose of the same in accordance with law. If it is noticed that there is no compliance, the Rent Control Court will pass appropriate orders keeping in mind the provisions of Section 12 including Section 12 (3). The Writ Petition is disposed of as above. PIUS C.KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd WPC 3307/10 6 WPC 3307/10 7