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 13TH OCTOBER 2011 / 21ST ASWINA 1933 RCRev..No. 260 of 2011() ------------------------ RCA.7/2008 of RENT CONTROL APPELLATE AUTHORITY , MALAPPURAM RCP.5/2005 of RENT CONTROL COURT, MANJERI .................... PETITIONERS (APPELLANTS - RESPONDENTS) ------------------------------- 1. USMAN, SON OF VEERANKUTTY, MOORKKAN HOUSE, MOOTHEDAM P.O., EDAKKARA VILLAGE, NILAMBUR TALUK, MALAPPURAM DISTRICT REPRESENTED BY POWER OF ATTORNEY ABDUL NAZER, SON OF VEERANKUTTY, MOORKKAN HOUSE, MOOTHEDAM P.O., EDAKKARA VILLAGE, NILAMBUR TALUK, MALAPPURAM DISTRICT. 2. ABDUL NAZER, SON OF VEERANKUTTY, MOORKKAN HOUSE, MOOTHEDAM P.O., EDAKKARA VILLAGE, NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.R.RAJESH KORMATH RESPONDENT(S)/(RESPONDENT - PETITIONER): --------------- PALAPPATTA VELAYUDHAN, SON OF PALAPPATTA CHARU, PALAPPATTA HOUSE, KOVILAKAM ROAD, EDAKKARA P.O., NILAMBUR (VIA), NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-679 331. ADV. SRI.SAJU.S.A FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 13/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ RCR.No.260 OF 2011 ------------------------ Dated this the 13th day of October, 2011 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed by the tenants is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court on the ground of subletting and bona fide need for own occupation and the order of eviction passed by the Appellate Authority for the first time under Section 11 (2)(b) after reversing the order of the Rent Control Court which had declined the order of eviction sought for under Section 11 (2)(b). 2. Even though several admittedly attractive grounds had been raised in the revision petition and Sri.Rajesh R.Kormath learned counsel for the revision petitioners/tenants addressed us strenuously on the basis of all those grounds, having gone through the impugned judgment of the Appellate Authority and the order of the Rent Control Court and having reminded RCR.No.260/2011 2 ourselves of the attenuated nature of the jurisdiction in which we are presently sitting, we were convinced that there is absolutely no warrant for interfering with the order of eviction concurrently passed under Sections 11(3) and 11(4)(i). However, we issued notice to the extent the revision challenges the order of eviction passed by the Appellate Authority under Section 11(2)(b) and pursuant to that notice, we have today heard Smt. P.A.Sheeja learned counsel appearing for the landlord. 3. Drawing our attention to the findings entered by the Rent Control Court in the context of the ground under Section 11(2)(b) as well as to the provisos to Section 11(2)(b) and to Ext.A2 statutory intimation notice issued by the landlord as well as to the evidence adduced by the landlord as PW1, Mr.Rajesh R.Kormath learned counsel for the revision petitioners submitted that this is a case where it has been freely admitted by the landlord that at the time when Ext.A2 notice was issued the amounts claimed under that notice had already been paid by way of making remittances into the landlord's account maintained with Nilambur Gramina Karshika Vyapara Vikasana Society, Edakkara Branch. Under such a situation, the finding of the Rent RCR.No.260/2011 3 Control Court that the rent control petition to the extent it pertains to the ground under Section 11(2)(b) was not maintainable was perfectly correct and the learned Appellate Authority erred in interfering with that finding on the reason that Ext. A1 lease deed contained an escalation clause regarding the rent and it was obligation of the tenant to have paid rent to the landlord at the escalated rate, so submitted the learned counsel. 4. The submissions of Mr.Rajesh R.Kormath were very stiffly opposed by Smt.Sheeja learned counsel for the landlord. Smt.Sheeja submitted that this is a case where the landlord took up the stand initially that the jural status of the revision petitioner is that of a licencee only. The landlord's case was refuted by the revision petitioners relying on Ext.A1 lease deed. It is placing reliance on Ext.A1 lease deed that it was found finally by the Civil Court that the jural status of the revision petitioner is not that of the licenceee as alleged by the landlord but is that of a tenant as contended by the revision petitioners. Under such a situation, the revision petitioners cannot be allowed to disown Ext.A1. Going by Ext.A1, there is an escalation clause regarding rent and the rent payable by the revision RCR.No.260/2011 4 petitioners at the time of issuance of Ext.A2 notice , which is dated 3/1/2005, will be Rs.2657/-. The learned counsel Smt.Sheeja submitted that the statute does not contemplate quantification of the arrears due as on the date of issuance of the statutory notice. What is contemplated is only giving of intimation regarding the default. Though it is true that in Ext.A2 the landlord had stated that the rent is payable at the rate of Rs.1650/- per month, what is more significant and statutory is the intimation given to the tenant of the fact that he was a defaulter. Since the tenants were relying very much on Ext.A1, they were aware as to what was the rent actually in arrears as per Ext.A1. That being so, it was their obligation to pay the arrears correctly due as per Ext.A1 notwithstanding the mentioning of a mistaken amount in Ext.A2. The learned Appellate Authority was perfectly justified in relying on the terms of Ext.A1 and taking the view that the arrears of rent legally due from the revision petitioners was not discharged by them within the statutory period of 15 days after receiving Ext.A2. That being so, the order of eviction passed by the Appellate Authority was justified. After all, the order of eviction RCR.No.260/2011 5 under Section 11 (2)(b) is a tentative one which can always be got vacated by the tenant by making requisite deposits. The landlord has no objection in this court granting reasonable time to the tenants for making requisite deposits and getting the eviction order passed under Section 11 (2)(b) vacated. 5. Persuasiveness of the submissions of Smt.Sheeja notwithstanding, we are unable to accept those submissions. A reading of paragraph 3 of Ext.A2 statutory intimation notice will show that in so many words the landlord had stated that Rs.1650/- per month is the rate at which the revision petitioners has to pay every month to the respondent/landlord. The arrears intimated to the tenants under Ext.A2 is arrears quantified at the above rate only. A reading of the provisos to Section 11 (2)(b) will show that the landlord will be able to successfully maintain a petition for eviction under Section 11 (2) (b) only If the tenants had failed to discharge the amount demanded. It is evident that the amount demanded under Ext.A2 had been discharged by making remittances into the bank account already referred to. We are convinced that the action of the learned Appellate Authority in interfering with the negative RCR.No.260/2011 6 order passed by the Rent Control Court in the context of ground under Section 11 (2)(b) was illegal, irregular and improper. 6. We set aside the judgment of the Appellate Authority to the extent it orders eviction under Section 11 (2)(b), even as we confirm the order of eviction passed by the Appellate Authority under the grounds of subletting and bona fide need for own occupation. The revision petition is allowed to the above limited extent only. 7. After we made our decision known to Mr.Rajesh R.Kormath counsel for the revision petitioner, the learned counsel requested that at least one year's time be granted to the revision petitioners for surrendering the premises as the tea shop conducted in the building accounts for the sole means of the revision petitioners' livelihood. Though this request was opposed by Smt.Sheeja, she has no objection in this court granting reasonable time to the revision petitioners for surrendering the premises. Under the above circumstances, we are inclined to grant to the revision petitioners 10 months time from today i.e. time till 15/8/2012 to surrender the premises subject to the following conditions; RCR.No.260/2011 7 i). The revision petitioners shall discharge the arrears of rent if any due as on date within one month from today and produce receipt before the Execution Court. ii). The revision petitioners shall pay occupational charges to the respondent/landlord at the rate of Rs.3,000/- per month till they surrender the petition schedule building without fail. iii). The revision petitioners shall file an affidavit incorporating their agreement to surrender the building on 15/8/2012 and also to pay occupational charges at the rate of Rs.3,000/- per month before the Rent Control Court or the Execution Court within three weeks from today. We make it clear that the revision petitioners will get benefit of time as allowed above only if they file affidavit on time and honour the undertakings therein. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM,JUDGE. dpk RCR.No.260/2011 8