IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 RCRev..No. 192 of 2008() ------------------------ RCA.28/2008 of ADDL. RENT CONTROL APPELLATE AUTHORITY,ALAPPUZHA. IA.Nos.2245/06 & 2361/06 in RCP.15/2005 RENT CONTROL COURT, CHERTHALA .................... REVISION PETITIONER/RESPONDENT/CR.PETITIONER ---------------------------------------------------------------- CYHRIL BRITTO, S/O.CONTARD BRITTO, POMPOZHIYIL HOUSE, CHERTHALA NORTH MURI, DO.VILLAGE, CHERTHALA. BY ADV. SRI.ROY CHACKO RESPONDENT(S): APPELLANT/PETITIONER ----------------------------------- CHACKO THOMAS, S/O.CHACKO, VATTUKULAM, CHERTHALA NORTH MURI & VILLAGE, CHERTHALA. ADV. SRI.S.P.ARAVINDAKSHAN PILLAY FOR R1 SMT.N.SANTHA FOR R1 SRI.S.A.ANAND FOR R1 SRI.PETER JOSE CHRISTO FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- R.C.R. No. 192 OF 2008 ----------------------------------------------- Dated this the 12th day of February, 2008 O R D E R Pius.C.Kuriakose, J. Under challenge in this revision petition filed under Section 20 of the Kerala Buildings Lease and Rent Control Act 1965, Act 2 of 1965 is the order of the rent control appellate authority reversing an order passed by the rent control court dismissing an application under Section 12(1) & (2) filed by the landlord. 2. The landlord filed the rent control petition against the revision petitioner invoking various grounds in the Rent Control Act including ground under Section 11(2)(b) (arrears of rent). The allegation of the landlord in the rent control petition in the context of ground under Section 11(2)(b) was that the contract rent at the rate of Rs. 550/- per mensem was defaulted by the tenant with effect from 01/11/2002. Prior to the instituting of the rent control petition, the landlord had sent a statutory demand notice under Section 11(2)(b) to the tenant to which the tenant had sent a reply in which he had contended that even after 01/11/2002 in October 2003, rent had been paid by cheque and that a total amount of Rs. 4600/- has been deposited by the tenant in O.S.No.117/2000 on the file of the RCR.N0.192 /2008 -2- Cherthala Munsiff court, a suit to which the landlord and the tenant are parties. However, in the statement of objections which was filed by the tenant to the main rent control petition the contention regarding the allegation of arrears of rent was only as follows: “ the allegation that the rent is in arrears is denied” 3. The rent control petition was posted for trial in special list and on that juncture alleging that the landlord is not willing to receive the rent despite tender, the tenant filed I.A.No.2245/06 seeking permission of the court to deposit the admitted arrears of rent falling due subsequently before the rent control court. That I.A. was resisted by the landlord contending inter alia that the I.A. is a machination by the tenant to protract the proceedings. In that I.A., the rent control court passed an order directing the tenant to deposit or pay the arrears admitted by him within four weeks and the rent control petition was enquired into. After the recording of evidence was completed in the rent control petition, the landlord filed I.A.No.2261/06 under Section 12(1) and (2) seeking a direction regarding payment of rent, payment of admitted arrears and rent falling due subsequently and also summary order of eviction under Section 12(3). This I.A. was resisted by the tenant contending inter alia that the I.A. is not maintainable at that stage of the proceedings and that the I.A. has RCR.N0.192 /2008 -3- been filed without any bonafides of the landlord who has realised after trial that his chances of success in the rent control petition is very remote . 4. The rent control court in the first instance dismissed the application filed by the landlord on the view that applications under Section 12(1) are expected to be filed before the commencement of actual trial in the case. In appeal by the landlord that order was set aside and thereafter the I.A. filed by the landlord and the tenant were considered together by the rent control court. The rent control court on considering the contentions and hearing the argument of parties dismissed the I.A. filed by the landlord and allowed the I.A. filed by the tenant. The order allowing the application filed by the tenant was not challenged by the landlord. The landlord preferred appeal against the order dismissing his application under Section 12(2). 5. Under the impugned order, the learned rent control appellate authority has allowed the landlord's appeal and proceeded to pass an order of summary eviction under Section 12(3). According to the appellate authority, the material to be considered for determining whether the rent arrears is admitted or not by the tenant is the statement of objections filed to the main rent control petition. The appellate authority would construe the contention raised by the tenant RCR.N0.192 /2008 -4- in the statement of objections as one which does not amount to a specific denial of the landlord's allegation that rent is in arrears from 01/11/2002. According to the appellate authority, it had to be taken by non traverse, the landlord's allegation that rent is in arrears from 01/11/2002 has been admitted and on that basis concluded that the tenant has not paid the arrears of rent admitted by him and the rent which fell due subsequent to the commencement of the proceedings despite opportunities given to the tenant. 6. We have heard Sri.Roy Chacko, learned counsel for the petitioner and Smt.N.Santha, learned counsel for the respondent landlord. Sri.Roy Chacko would argue that meticulous adherence to the rules of pleadings applicable to trial of civil suits are not insisted upon in proceedings under the Rent Control Act. According to him, the contention that “ the allegation that the rent is in arrears is denied” is sufficient enough to deny the landlord's allegation in the rent control petition regarding arrears of rent. He would submit that Ext.A2 reply notice which had been sent by the tenant in answer to the statutory demand notice sent by the landlord had been produced by the landlord himself along with the rent control petition and hence the same has to be construed as part of the pleadings in the case. When Ext.A2 is construed as part of the pleadings of the tenant, it could be easily seen RCR.N0.192 /2008 -5- that the allegation of the landlord regarding arrears of rent is denied by the tenant. Counsel highlighted that in any view of the matter the rent control appellate authority was not justified in proceeding to pass an order of summary eviction under Section 12(3) without informing the tenant of the proposal to pass an order of summary eviction and without giving opportunity to the tenant to show cause against the passage of summary order of eviction. In this context, learned counsel referred to the judgment of a Division Bench of this court in C.V.Xavier and others v. Francis Leonard Pappali ( 1975 KLT 542). No opportunity has been given by the rent control appellate authority to show cause against the proposed summary order of eviction under Section 12(3) much less no show cause notice as contemplated under the Act, it is submitted. 7. The arguments of Sri.Roy Chacko were resisted by Smt.N.Santha. She drew our attention to the judgment of a Division Bench of this court in Narayanan v. Vinod ( 2004(3)KLT 955) and argued that there is no obligation for the rent control court and the appellate authority to issue any show cause notice to the tenant. According to Smt.Santha the revision petitioner tenant is a chronic defaulter in the matter of payment of rent and the very legislative object underlying section 12 is to ensure that such tenants are not RCR.N0.192 /2008 -6- allowed to contest rent control petitions against them unless they pay the rent which is admittedly and obviously payable by them. The contention that a sum of Rs.4,600/- is deposited before the Munsiff's Court towards arrears of rent cannot be a valid defence for a proceeding under section 12 since the mandate of law is that deposit if any towards arrears shall be with the Rent Control Court or the Appellate Authority and not with any other court. The basic document on the basis of which the question as to what is the rent admitted by a tenant for the purpose of section 12 is the statement of objections filed to the main rent control petition and not the counter affidavit filed to the petition under section 12(1). It is such a view that is taken by the Rent Control Appellate Authority and there is no warrant for interfering with the order of that authority in the revisional jurisdiction. 8. We have considered the rival submissions addressed at the Bar. We are convinced that on the date the Appellate Authority passed its judgment, the revision petitioner had not discharged the entire arrears of rent admitted by him and the arrears of rent which had admittedly fallen due till the date of that judgment. But nevertheless, we notice a glaring infirmity in the judgment of that authority in as much as the summary order of eviction has been passed by that authority without affording an opportunity to the revision petitioner to RCR.N0.192 /2008 -7- show cause against passage of such summary order. Ofcourse it has been held by this Court in Narayanan v. Vinod, (2004(3) KLT 955) that the Rent Control Court or the Appellate Authority has no obligation to issue show cause notice to the tenant before proceeding to pass order of eviction under section 12(3). But the question is whether the Appellate Authority afforded at least a breathing time to the revision petitioner to show cause against summary order of eviction under section 12(3). The Appellate Authority in this case in reversal of the finding of the Rent Control Court found in its judgment only that the revision petitioner had failed to pay the arrears of rent admitted and the rent which fall due subsequently. When that finding is reverted in the final judgment only it cannot be stated it has to be found that the tenant was deprived of opportunity to show cause against the summary order of eviction passed through the judgment. For this reason the judgment of the Appellate Authority is bad. The first question to be decided in this case is whether the finding of the Rent Control Appellate Authority that the landlords allegation that rent is in arrears from 1-11-2002 stands admitted in the absence of any specific denial can be approved. As we have already noticed the denial was in a cryptic manner - “the allegation that the rent is in arrears is denied”. Even though ideally the petitioner could have denied the RCR.N0.192 /2008 -8- landlord's allegation more specifically, we are not prepared to agree with the Rent Control Appellate Authority in this case that the landlord's allegation stood admitted by non-traverse. We notice that apart from denying the allegation of the landlord in the above manner, the landlord himself had produced the reply notice which had been sent by the tenant to the demand notice under section 11(2)(b) sent by the landlord as a prelude to the rent control petition along with the rent control petition. It is by now trite that documents which are produced along with the rent control petition can be construed as part of the pleadings and when so construe the contentions in the reply notice becomes part of the pleadings in the case. When we go through the reply notice we find that the landlord's allegation that rent is in arrears from 1-11-2002 is denied specifically and it is contended that in October 2003 also rent is paid to the landlord by way of cheque and that a sum of Rs.4,600/- is deposited towards the rent demanded by the landlord in a statutory demand notice. Even though a contention was raised through the reply notice that rent was paid in October 2003 by means of cheque that contention is given up by the tenant and is not seen pursued before the authorities below. Mr.Roy Chacko also fairly conceded that the cheque payment need not be considered for the purpose of the present proceeding under section 12. Smt. Santha RCR.N0.192 /2008 -9- would object to the reckoning of the sum of Rs.4,600/- deposited by the revision petitioner before the Munsiff's Court of Cherthala in O.S. No.117/2000 for the purpose of the present proceeding under section 12. According to her the deposit which is contemplated under section 12 is deposit before the Rent Control Court or the Appellate Authority and not deposit before any other court. This argument, it is seen found favour with the Rent Control Appellate Authority also. This argument certainly is supported by the language of section 12. But we are of the view that on the circumstances which attend on this case credit can be given for sum deposited by the revision petitioner before the Munsiff's Court, Cherthala towards his liability under section 12. It is conceded by both sides that suit O.S. No.117/2000 has been finally disposed of by the Munsiff's Court, Cherthala. It is not disputed by the landlord that the above sum was deposited by the revision petitioner towards the arrears of rent claimed in respect of the subject building covering and covers the period of default alleged in the rent control petition. That amount is due to the respondent landlord alone and we do not find any reason why that amount should not be disbursed by the Munsiff's Court to the landlord. The following are the deposits/payments made by the tenant towards the rent due in respect of the subject building. RCR.N0.192 /2008 -10- Date Amount 09/08/2006 Rs.11,900/- 17/09/2007 Rs.5,500/- 08/01/2008 Rs.2,200/- 27/03/2008 Rs.1,100/- 27/05/2008 Rs.1,100/- 21/01/2009 Rs.4,400/- The contract rent is admittedly at the rate of Rs.550/- per mensem. The rent due to the landlord during the period from 01/11/2002 till 02/02/2009 comes to Rs.41,250/-. After adjusting the total deposits/payments inclusive of the deposit made before the Munsiff Court in O.S.No.117/2000, the balance which the tenant is liable to pay comes to Rs. 10,450/-. It is the statutory obligation of the tenant to pay the above amount of Rs.10,450/- if he is to be permitted to contest the proceedings for eviction. 10. The result is that the order of the rent control appellate authority is set aside. Revision Petition is allowed and the following orders are passed: i) The revision petitioner is directed to RCR.N0.192 /2008 -11- deposit or pay the sum of Rs. 10,450/- as found by us as above within twenty days from today. The deposit can be made before the Rent Control Court, Cherthala or payment can be made either through the counsel for the landlord in this court or through the counsel appearing for the landlord in the rent control court. ii) If the rent control court notices that the deposit/payment as directed above is made by the tenant, that court will post the rent control petition for final hearing and dispose of the rent control petition on the basis of the evidence which has come on record at the earliest. iii) If the rent control court notices that there is no compliance with our direction to pay or deposit the sum of RS. 10,450/- that court will proceed to pass final orders under Section 12(3) in accordance with law after hearing both sides. RCR.N0.192 /2008 -12- It is made clear that the finding entered by us that the tenant is liable to pay the sum of Rs. 10,450/- towards admitted arrears of rent and rent falling due subsequently is a tentative finding and final order of eviction including on the ground under Section 11(2)(b) which is one of the grounds invoked will be passed by the rent control court on the basis of the evidence adduced by the parties in the context of that ground. PIUS.C.KURIAKOSE JUDGE C.K.ABDUL REHIM JUDGE sv/ksv.