IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 27TH JUNE 2008 / 6TH ASHADHA 1930 RCRev..No. 150 of 2008() ------------------------ RCA.33/2007 of II ADDL. DISTRICT COURT, PALAKKAD RCP.19/2005 of MUNSIFF COURT, CHITTUR (IA.513/2007) .................... : REVISION PETITIONER/APPELLANT/PETITIONER/RESPONDET ------------------------------------------------------------------- M.T.JALEEL, S/O.K.T.KUNJUMON, RESIDING AT PALLITHERUVU, KOZHINJAMPRA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PRO. JASMINE STORE, D.NO.7/456, KCC COMPLEX, NEAR KOZHINJAMPRA BUS STAND, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH (SR.) SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENT: RESPONDENT:RESPONDENT:PETITIONER ----------------------- NAGARAJ, S/O.LATE LAKSHMANAN, R/AT. VANIYAR STREET, KOZHINJAMPRA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. FOR CAVEATOR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No.150 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of June, 2008. O R D E R Raman, J. The tenant is the revision petitioner. The respondent/landlord sought eviction of the tenanted premises under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965. The case was listed to 7.2.2007 before the court below for enquiry and for adducing evidence. The tenant/appellant sought for an adjournment which was refused by the Rent Control Court. The evidence of the landlord was recorded. The tenant or his counsel was not prepared to cross examine the witness examined on the side of the landlord or to adduce his own evidence in the matter. Therefore, the Rent Control Court eventually passed an order under Section 11(3) of the Act on 9/2/2007. Thereafter, the appellant filed an application as I.A.No.513/2007 under Rule 13(3) of the Lease and Rent Control Rules read with Section 151 C.P.C. for setting aside the ex-parte order passed in the Rent Control Petition on 9.2.2007. The point that arose for consideration in the circumstances was as to whether an ex-parte order passed, is to be set aside. The Rent Control Court found that the landlord RCR 150/2008 -2- had filed I.A.No.353/2007 in February 2007 for a direction to the tenant to deposit the admitted arrears of rent till that date which comes to Rs.5,225/-, that the court allowed the application on the same day, but it noticed that the said amount was not paid. Four more months elapsed by the time the matter came up for consideration. Therefore, a further amount of Rs.1,500/- was also found due towards arrears of rent, totaling to Rs.6,725/-. Though the trial court found that there was no valid reason for non-participation in the trial, considering that the question of bonafides is a matter which is a state of mind to be ascertained only from evidence and in order to give an opportunity to the tenant, the court thought it fit to impose a condition, viz. to deposit Rs.6,725/- along with the cost of Rs.1,000/- on or before 7.6.2007 for setting aside the order and in case the said amounts are not paid within the aforesaid time, the petition will stand dismissed. 2. Thus, the Rent Control Court took notice of its earlier order passed in I.A.No.353/2007 and added further arrears also to be paid to the landlord along with the cost of Rs.1,000/- as a condition for setting aside the ex- parte order of eviction passed in the case. 3. Aggrieved thereby, the appellant preferred an appeal before the Rent Control Appellate Authority. One of the grounds urged before the Appellate Authority was that since the tenant had raised a dispute of title of RCR 150/2008 -3- the rent control petitioner, the court could not have ordered to deposit the arrears of rent, at any rate, to pay the same to the landlord directly. Instead, his contention was that the amount could at best be directed to be deposited. The Appellate Authority, by the impugned order, confirmed the order of the Rent Control Court. We have gone through the order passed by the Appellate Authority and we do not find there is any consideration regarding this contention. However, the Appellate Authority found that the order does not disclose that the tenant was set ex-parte since he was present and it was a case where he did not proceed to cross examine the witness or to adduce evidence. Therefore, accepting the evidence on the part of the petitioner in the Rent Control Petition, an order of eviction was passed. Therefore, what arose for consideration was as to whether the tenant should be given a further opportunity to reopen the case and to permit him to adduce evidence. In that regard, it was held that the condition imposed by the Rent Control Court was justified and the order of the Rent Control Court was confirmed. 4. Since a caveat was filed by the respondent herein, we heard counsel on both sides and finally dispose of this revision petition. 5. Learned counsel appearing for the appellant contended that the appellant is prepared to deposit the entire amount as directed by the court below, but according to him, there should not have been a direction to pay RCR 150/2008 -4- the same directly to the landlord, in view of the contention raised by the tenant disputing the title of the rent control petitioner and that this aspect of the matter was not considered by the Appellate Authority. 6. Per contra, learned counsel appearing for the respondent would submit that not only the appellant has committed default in paying the amount directed to be paid by the Rent Control Court and as confirmed by the Appellate Authority, there was a previous order as is referred to in the order passed by the Rent Control Court wherein the court has directed the appellant to deposit the arrears of rent which he did not comply. The said order was not challenged and therefore the tenant has no right to dispute the landlord-tenant relationship. It has not been shown by the landlord that any application under Section 12 (3) of the Act for non-depositing the admitted rent as ordered by the Rent Control Court, was filed. At any rate, the Rent Control Court has taken into account while passing the order impugned, that the further arrears also become due and quantified the same while directing the tenant to deposit the same. The limited question therefore that arises for consideration is as to whether the order directing the appellant to deposit the amount is justified as a reason for giving him an opportunity to adduce evidence in the matter. 7. We have considered the orders passed by the Rent Control Court RCR 150/2008 -5- as well as that of the Appellate Authority and we are satisfied that both the courts below have addressed this question and there was no justification for non-cross examination of the witness examined on the side of the landlord by the counsel. Therefore, as a condition for setting aside the order when a reasonable amount was fixed for payment, it cannot be said that the order is in any way illegal. However, we find that a direction to pay the amount directly to the landlord should not affect the contention, if any, between the parties since no order of the court shall prejudice the right of parties. Since now an opportunity is given to the tenant to contest the matter on merits, the order directing the appellant to pay the arrears of rent directly to the landlord shall not affect the contention raised in the written statement. 8. Therefore, a modification of the order is called for. Instead of paying the amount directly to the landlord, the direction could have been to deposit the amount before the Rent Control Court. At the same time, we find that the appellant has not deposited or paid the amount in spite of the order passed by the Rent Control Court as early as in May 2007. Admittedly, no amount is paid towards rent to anybody after the death of the original landlord. If that be so, we think it is only proper to direct the appellant herein to deposit an amount of Rs.15,000/- together with a cost of Rs.1,000/- ordered by the court below, to be deposited before the Rent RCR 150/2008 -6- Control Court on or before 15.7.2008. We permit the respondent herein to withdraw 50% of the amount so deposited along with cost of Rs.1,000/-. The deposit of the amount and the withdrawal will not adversely affect the right of parties. The amount as directed to be deposited will be given credit to while passing final orders. In case of default, this revision will stand dismissed. The revision petition is disposed of as above. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/