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2009 Supreme(Ker) 301
High Court Of Kerala
C.KURIAKOSE,C.K. ABDUL REHIM
J.Ramachandran Nair - Appellant
Versus
Lebba Kunju Ameer Hamsa, Proprietor - Respondent
WP(C).No. 1359 of 2008(J)
Decided On : 04/06/2009
For the Petitioners:K. Subash Chandra Bose, Advocate. For the Respondent:V. Chitambaresh (Sr), Advocate.
The main legal point established in the judgment is the necessity of bringing the deposit to the notice of the Rent Control Court and the importance of a formal application under Section 11(2)(c) for vacating the eviction order.
Headnote:
Eviction - Rent Control - Section 11(2)(b), Section 11(2)(c) - Velayudhan v. Addl. Dist. Court (1996(2) KLT 684), Dasan V. S.M.Syed Aboobacker Sahib, (1977 KLN Short Note Case No.257), Chinnamma v. Gopalan, (1995 (2) KLT 755), Francis v. Jacob, (1983 KLT 669) - The court discussed the interpretation of Section 11(2)(b) and Section 11(2)(c) of the Rent Control Act, emphasizing the necessity of a formal application under Section 11(2)(c) and the judicial order by the Rent Control Court to vacate the eviction order under Section 11(2)(b). The court disagreed with the view that the order of eviction stands vacated automatically upon deposit and highlighted the importance of bringing the deposit to the notice of the Rent Control Court. The judgment also referenced previous court decisions and statutory provisions to support its interpretation of the legal framework.
Fact of the Case:
The landlord filed a writ petition challenging the order of the District Court setting aside the order for delivery of the building to the landlord. The tenant had filed an application under Section 11(2)(c) of the Rent Control Act, which was dismissed by the Rent Control Court. The tenant sought a review of the dismissal, which was also rejected. The court was tasked with determining the legality of the orders and the necessity of a formal application under Section 11(2)(c) for vacating the eviction order.
Finding of the Court:
The court found that the order of the District Judge was passed under an erroneous impression and set aside the orders of the District Court and the Rent Control Court. The court emphasized the necessity of bringing the deposit to the notice of the Rent Control Court and highlighted the importance of a formal application under Section 11(2)(c). The court also imposed conditions on the tenant for compliance.
Issues: The issues involved the legality of the orders passed by the District Court and the Rent Control Court, the necessity of a formal application under Section 11(2)(c), and the compliance of the tenant with the imposed conditions.
Ratio Decidendi: The court held that a formal written application specifically invoking the power under Section 11(2)(c) is not mandatory, but it is necessary to bring the deposit to the notice of the Rent Control Court. The court also emphasized the importance of a judicial order by the Rent Control Court to vacate the eviction order under Section 11(2)(b).
Final Decision: The writ petition was allowed, and the orders of the District Court and the Rent Control Court were set aside. The court remitted the application under Section 11(2)(c) back to the Rent Control Court for reconsideration and imposed conditions on the tenant for compliance.
Pius. C. Kuriakose, J.
Under challenge in this writ petition under Article 227 of the Constitution initiated by the landlord, is Ext.P8 order of the District Court, Kollam setting aside Ext.P7 order passed by the Munsiff, Kollam in E.P.No.52/2007 in RCP.No.5/1996 directing delivery of the building scheduled to RCP.No.5/1996 to the petitioner/landlord. It was very extensive submissions which were addressed before us by Sri.Subhashchandra Bose, learned counsel for the petitioner and Sri.V.Chitambaresh, learned senior counsel for the tenant/respondent. Sri.Subhashchandra Bose submitted that as an executing court, the duty of that court was only to execute the order of eviction. In this context, Sri.Subhashchandra Bose would place reliance on the judgment of this court in Velayudhan v. Addl. Dist. Court (1996(2) KLT 684). Learned counsel submitted that an order of eviction under Section 11(2)(b) had been finally passed by a Division Bench of this court in CRP.No.2611/2000. That judgment has become final. The order of eviction passed under Section 11(2)(b) was never got vacated by invoking the powers of the rent control court under Section 11(2)(c). The tenant respondent did file an application under Section 11(2)(c) as I.A.No.2900/2005. That I.A. was dismissed by Ext.P6 order on 14/07/2006. The correctness of Ext.P6 order was never challenged by the respondent/tenant in revision before this court. Instead, the respondent sought a belated review of the said order on 16/06/2007. The review application was I.A.No.2697/2007. Sri.Subhashchandra Bose submitted that the above I.A. seeking review was filed by the respondent only after the execution court had ordered delivery. The review petition was also subsequently dismissed by the rent control court by order dated 23-6-2007. Even that order has been allowed to become final by the tenant by not challenging that order before any forum. Referring to the order of the rent control appellate authority interfering with the order of delivery passed by the Munsiff Court, Sri.Subhashchandra Bose would submit that the said order is the result of a wrong impression in the mind of the court that I.A.No.2900/2007 filed by the tenant under Section 11(2)(c) had not been disposed of and the same was pending. In view of the irrefutable position that I.A.No.2990/07 was dismissed and even the petition for review filed by the tenant has been finally dismissed, the order of remand passed by the District Court cannot be sustained in law.
2. Sri.V.Chitambaresh, learned senior counsel drew our attention to Section 11(2)(c). He would submit that the statutory obligation of the tenant who suffered order of eviction under Section 11(2) (b) is only to deposit the arrears of rent which is due from him to the landlord as on the date of the statutory intimation notice under Section 11 (2)(b) within one month or such longer period as the court may specify in its order. Once that is done it is the obligatory duty of the court to vacate the eviction order. Drawing our attention to Ext.P1 order in CRP. No.2611 of 2000 Mr.Chitambaresh submitted that the finding therein was that the arrears of rent due from the tenant was Rs.5398.20 and that the order of eviction passed under section 11(2) (b) will stand automatically vacated once the tenant deposits that amount. According to the learned senior counsel, as against the arrears quantified at Rs.5398.20 the tenant deposited on 27-7-2005, a total amount of Rs.9000/- which was more than sufficient to cover the arrears found. The deposit having been made within the statutory minimum period of 30 days the eviction order stood vacated automatically. However, I.A. No.2900/05 a formal application under section 11(2)(c), though unnecessary, was also filed by the tenant for getting the eviction order formally vacated under section 11(2)(c). In the affidavit in support of that I.A. even minute details regarding the arrears due had been disclosed with reference to Ext.P1 judgme
