Point of Law: Tenancy – waiver - Tenant cannot take shelter to the plea of waiver by making payments subsequent to the date on which the order of eviction under Section 11(2)(b) of the Act has become final.

JUDGMENT :

P.G. AJITHKUMAR, J.

1. Can waiver be claimed against a statutory obligation? Waiver in legal parlance is an elusive term. It takes shades from the situations. Waiver can be express or implied. Does receipt of unqualified payments by the landlord waive the statutory obligation of the tenant under Section 11(2)(c) of the Kerala Buildings (Lease and Rent Control) Act, 1965? This is the short, but interesting question that arises in these Original Petitions.

2. Common revision petitioner is the tenant. He took on rent one shop room belonging to each of the respondents. Respective respondents filed R.C.P. No. 4 of 2014 and R.C.P. No. 5 of 2014 for eviction of the petitioner. Eviction ordered by the Rent Control Court under Section 11(2)(b) of the Act was confirmed by the Appellate Authority and eventually by this Court. The respondent pursued execution. The Munsiff, Kalpetta in E.P. Nos. 60 of 2019 in R.C.P. No. 4 of 2014 and E.P. No. 61 of 2019 in R.C.P. No. 5 of 2015 passed Ext. P2 order directing delivery. The petitioner filed R.C.R.P. Nos. 1 and 2 of 2021 before the Additional District Judge-I, Kalpetta under Section 14 of the Act challenging Ext.P2 order. Both revision petitions were dismissed and these Original Petitions were filed challenging that order, Ext. P1.

3. Heard the learned counsel Sri. B. Krishnan appearing for the petitioner and the learned counsel Smt. V. Namitha appearing for the respondents in both the cases.

4. There is no much dispute with respect to the factual aspects. R.C.P. Nos. 4 and 5 of 2014 were filed by the respective respondent-landlord for eviction under Section 11(2)(b), 11(3), 11(4)(i) and 11(4)(ii) of the Act. The Rent Control Court ordered eviction except under Section 11(4)(ii). The appeals filed by the petitioner-tenant were dismissed. He approached this Court by filing R.C. Rev. Nos. 217 of 2018 and 249 of 2018. The same were disposed of as per Order dated 28.11.2018 reversing the order of eviction under Section 11(4)(i) of the Act. This Court confirmed the order of eviction under Section 11(2)(b), but remitted the matter to the Rent Control Court by a closed remand directing to decide whether the petitioner is entitled to get the benefit of the second proviso to Section 11(3) of the Act.

5. The respondents-landlords filed E.P. Nos. 60 and 61 of 2019 in the respective R.C.Ps. for executing the order of eviction under Section 11(2)(b) of the Act as confirmed by this Court. The petitioner resisted the execution petitions by contending that having the R.C.Ps. and Review Petitions filed by him in the R.C.Ps. were still pending the order of eviction could not be executed. The learned Munsiff as per Ext.P2 order dated 29.01.2021 rejected the said contentions and ordered delivery. The matter was taken up before the Additional District Judge-I, Kalpetta by filing R.C.R.P. Nos. 1 and 2 of 2021 under Section 14 of the Act. The revisional authority, after hearing both sides, dismissed the revision petitions as per Ext.P1 order, which is under challenge in these Original Petitions.

6. The learned counsel appearing for the petitioner raised two points:

(i) would deposit of arrears of rent, interest and costs, unaccompanied by a formal application automatically vacate an order of eviction under Section 11(2) (b) of the Act?

(ii) would receipt of money covering arrears of rent, interest and costs, without any demur by the landlord waive his right for eviction as per order under Section 11(2)(b) of the Act?

7. It is the contention of the learned counsel for the petitioner that this is a case where the principle of law laid down in Muhammed Kannu Abdul Rasheed vs. Nazarudeen and Others, 2012 (2) KHC 756 has application. The said judgment was reversed by the Apex Court in appeal and that decision has been reported in Mohammed Kannu Abdul Rasheed vs. Nazarudeen and Others, 2013 (4) KHC 491. But, it is