Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 13TH DAY OF APRIL 2023 / 23RD CHAITHRA, 1945 OP (RC) NO.71 OF 2023 AGAINST THE ORDER/JUDGMENT IN EP No.333/2022 IN RCP No.26/2021 OF RENT CONTROL COURT (ADDITIONAL MUNSIFF COURT),CHERTHALA PETITIONER/JUDGMENT DEBTOR:
BAIJU S. PILLAI AGED 46 YEARS S/O. GOPINATHAN PILLAI, GOLDEN NEPTUNE VEETIL, NETTOOR DESOM, MARADU VILLAGE, KANAYANOOR TALUK, ERNAKULAM, PIN - 682312.
BY ADVS.
SREEKANTH S.NAIR N.MAHESH RESPONDENTS/DECREE HOLDER:
1 SEBI SAIJU, AGED 36 YEARS S/O. SAIJU, VATHIYAYATHU VEETILL, PERUMBAVOOR DESOM, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM, PIN - 683542.
2 LAIJU NADIRSHA, AGED 54 YEARS, W/O. NADIRSHA, KAROTHU VEETILL @ KAROTHU, PERUMBAVOOR DESOM, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM, PIN - 683542.
OP(RC) No.71 of 2023 2 BY ADVS.
SRI.DINESH R.SHENOY SRI.T.S.SAUMYA(K/226/2011) SRI.P.ROHIT PREMANANDAN SRI.SHENOY(K/000195/2017) SRI.SILESH S. PRABHU(K/510/2020) SRI.JOMOL PIUS(K/002269/2022) THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 10.04.2023, THE COURT ON 13.04.2023 DELIVERED THE FOLLOWING:
OP(RC) No.71 of 2023 3 P.B.SURESH KUMAR & SOPHY THOMAS, JJ.
------------------------------------------- O.P (R.C) No.71 of 2023 ------------------------------------------- Dated this the 13th day of April, 2023 J U D G M E N T Sophy Thomas, J.
The petitioner herein is the respondent/tenant in RCP No.26 of 2021 on the file of Rent Control Court, Cherthala, and the respondents are the petitioners/landlords in that RCP.
2.
The prayer of the petitioner is to set aside Ext.P10 order of the execution court, to effect delivery of the tenanted premises on 15.03.2023 and to report on 17.03.2023.
3.
The landlords filed RCP No.26 of 2021 to evict the tenant under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred as the Act).
Pending RCP, the landlords filed I.A No.1 of 2022 seeking admitted arrears of rent.
That I.A was allowed on 08.04.2022, directing the tenant to pay Rs.1,50,000/- being the admitted arrears, on 28.05.2022 along with the rent at the admitted rate
OP(RC) No.71 of 2023 4 after the institution of the RCP till the date of that order.
The tenant did not pay the amount as directed, and so, the Rent Control Court found that the landlords are entitled to get vacant possession of the plaint schedule building forthwith.
Accordingly, the landlords were directed to be put in immediate possession of the schedule room under Section 12 of the Act.
4.
Aggrieved by the order dated 12.07.2022, the tenant preferred RCA No.10 of 2022 before the Rent Control Appellate Authority, Alappuzha.
On 10.01.2023, the appellate authority dismissed the RCA for default, since there was no representation for the appellant.
The landlords preferred execution petition before the Munsiff Court, Cherthala in which an order was passed on 10.03.2023, for effecting delivery on 15.03.2023 and to file report on 17.03.2023, against which the tenant has preferred this original petition.
5.
We are called upon to answer whether there is any illegality or impropriety in Ext.P10 order of the learned Munsiff, so as to set aside the same.
6.
Heard learned counsel appearing for the petitioner as
OP(RC) No.71 of 2023 5 well as the learned counsel appearing for the respondents.
7.
On hearing the counsel on either side, we are given to understand that, the monthly rent of the schedule premises including GST was Rs.82,000/-. Learned counsel for the landlords submitted that, at present more than Rs.14 lakh is due towards admitted arrears of rent.
The petitioner is not disputing that fact.
According to him, due to Covid-19 pandemic and consequential business loss, he could not be prompt in making payment of monthly rent.
There is no dispute that Section 12(1) order was passed by the Rent Control Court on 08.04.2022, directing the tenant to deposit the admitted arrears of rent on 28.05.2022.
It is also not in dispute that, the tenant did not pay the admitted arrears and so, Section 12(3) order was passed by the Rent Control Court on 12.07.2022.
Though the tenant preferred RCA No.10 of 2022, he was not prompt in prosecuting that case also.
Ext.P6 judgment of the Rent Control Appellate Authority shows that, though the matter was posted for hearing as last chance, there was no representation from the part of the appellant and moreover, on the earlier posting date also, there was no
OP(RC) No.71 of 2023 6 representation for the appellant.
So, the appeal was dismissed for default on 10.01.2023.
The impugned Ext.P10 order was passed on 10.03.2023.
Till then there was no payment of the admitted arrears of rent.
So, we could not see any illegality or impropriety in Ext.P10 order passed by the execution court.
8.
During argument, learned counsel for the respondents/landlords suggested that, if the tenant is ready to pay Rs.10 lakh towards admitted arrears of rent, out of Rs.14,63,400/- due, they have no objection in restoring the Rent Control Appeal dismissed by the appellate authority.
9.
Learned counsel for the petitioner prayed for payment in instalments saying that the petitioner is ready to pay the first instalment of Rs.5 lakh on or before 10.05.2023 and to pay the next instalment of Rs.5 lakh on or before 10.06.2023.
Learned counsel for the landlords agreed to that suggestion, provided if the first instalment of Rs.5 lakh is not paid on 10.05.2023, they have to pursue the delivery ordered as per the impugned order.
That suggestion seems to be fair and reasonable.
10.
In the result, the OP (RC) stands allowed on the
OP(RC) No.71 of 2023 7 following terms:
(i) The petitioner/tenant shall pay the first instalment of Rs.5 lakh towards admitted arrears of rent to the respondents/landlords on or before 10.05.2023.
(ii) The petitioner has to pay the next instalment of Rs.5 lakh to the respondents on or before 10.06.2023.
(iii) If the petitioner fails to make the payment of first instalment of Rs.5 lakh on or before 10.05.2023, the execution court shall proceed with the delivery as ordered in Ext.P10.
(iv) If the petitioner makes the payment of Rs.10 lakh towards admitted arrears of rent in two instalments viz.
10.05.2023 and 10.06.2023 respectively, Ext.P6 judgment shall stand set aside and the appellate authority shall restore RCA No.10 of 2022 on or before 15.06.2023 and dispose it on merits, on or before 30.06.2023 after affording an opportunity for hearing to both parties.
OP(RC) No.71 of 2023 8 (v) The delivery ordered as per Ext.P10 order shall stand deferred till 30.06.2023, if the petitioner makes the payment as ordered under clause (i) and (ii).
With these directions, the OP (RC) stands allowed.
Sd/- P.B.SURESH KUMAR JUDGE Sd/- SOPHY THOMAS JUDGE smp
OP(RC) No.71 of 2023 9 APPENDIX OF OP (RC) 71/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF R.C. P NO. 26/2021 DATED FILED BY RESPONDENTS.
Exhibit P2 TRUE COPY OF COUNTER AFFIDAVIT IN R.C. P NO. 26/2021 FILED BY PETITIONER.
Exhibit P3 TRUE COPY OF ORDER DATED 08.02.2022 IN R.C. P NO.
26/2021.
Exhibit P4 TRUE COPY OF ORDER DATED 12.07.2022 IN R.C. P NO.
26/2021.
Exhibit P5 TRUE COPY OF R. C. A NO.10/2022 DATED 22.07.2022 IN R.C. P NO. 26/2021.
Exhibit P6 TRUE COPY OF ORDER DATED 10.01.2023 IN R.C. A NO.
10/2022 .
Exhibit P7 TRUE COPY OF I. A NO. 2/2023 DATED 13.03.2023 IN R.C. A NO. 10/2022 FILED BY PETITIONER.
Exhibit P8 TRUE COPY OF EXECUTION PETITION, E. P NO. 333/2022 DATED 01.08.2022 IN R. C. P NO. 26/2021 FILED BY RESPONDENT.
Exhibit P9 TRUE COPY OF OBJECTION DATED 09.03.2023 IN E. P NO.
333/2022 FILED BY PETITIONER.
Exhibit P10 TRUE COPY OF DAILY CASE STATUS DATED 10.03.2023 IN E. P NO. 333/2022 PUBLISHED IN E-COURTS.
True Copy P.S to Judge smp