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Citation Codes
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Case Number
Attorney(S)
  • For the Appellant: V. Giri, Advocate
  • For the Respondent: R. Sudhish, M. Manju, Advocates.
Judges
  • M. Ramachandran
  • K.T Sankaran, JJ.
Acts
  • Sections 11(2) (b) and 11(3) the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred
  • Order XII Rule 6 of the Code of Civil Procedure
  • Sub-section (3) of Section 12
  • Order XII Rule 6
  • Section 11 (4)(ii)
  • Section 11(2)(b)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Appellant: V. Giri, Advocate
  • For the Respondent: R. Sudhish, M. Manju, Advocates.
Judges
  • M. Ramachandran
  • K.T Sankaran, JJ.
Acts
  • Sections 11(2) (b) and 11(3) the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred
  • Order XII Rule 6 of the Code of Civil Procedure
  • Sub-section (3) of Section 12
  • Order XII Rule 6
  • Section 11 (4)(ii)
  • Section 11(2)(b)
See more information ...
Smart Summary

Judgment Summary: Sankaran, J.

Factual and Procedural Background

The revision petitioner (tenant) challenged concurrent findings of the Rent Control Court and the Appellate Authority under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act ("the Act").

The landlord (respondent) had filed a Rent Control Petition under Sections 11(2)(b), 11(3) and 11(4)(ii) of the Act. The Rent Control Court rejected the landlord's claim under Section 11(4)(ii); that rejection was not appealed by the landlord and therefore became final.

The landlord's case: he acquired the property in 1978 and alleged he entrusted the building to the tenant on 1-1-1994 at a monthly rent of Rs. 500/-. He alleged the tenant defaulted from 1-1-1995, failed to pay arrears despite notice, and that the landlord bona fide required the premises to conduct photostat and real estate business. He also stated he had no job or income.

The tenant's case: he disputed the 1-1-1994 entrustment and said he had been a tenant since 1976 at Rs. 25 per month, attorning to the landlord when he purchased the building and paying rent up to June 1998. The tenant disputed that arrears ran from 1-1-1995, disputed the bona fide need, and claimed benefit under the second proviso to Section 11(3).

On evidence, the Rent Control Court and the Appellate Authority made findings: the landlord failed to prove entrustment in 1994 or that the agreed rent was Rs. 500; the tenant failed to prove he had paid rent up to June 1998; the authorities treated the rate of rent as Rs. 25 and found arrears from 1-1-1995.

Legal Issues Presented

  1. Whether the authorities below were justified in passing an eviction order under Section 11(2)(b) of the Act when the landlord failed to prove entrustment in 1994 and the alleged monthly rent of Rs. 500.
  2. Whether the landlord bona fide required the petition schedule building for his asserted business purpose within the meaning of Section 11(3) of the Act, and whether the tenant was entitled to benefit of the second proviso to Section 11(3).
  3. What is the legal consequence, under the scheme of the Act and applicable procedure, of admissions or disputed assertions regarding the rate of rent and period of arrears (including interaction with Order XII Rule 6 CPC and Section 12 of the Act).
  4. Whether the findings of fact recorded by the authorities below under Sections 11(2)(b) and 11(3) are open to interference under Section 20 of the Act.

Arguments of the Parties

Revision Petitioner / Tenant

  • Contended that the authorities erred in passing an eviction order under Section 11(2)(b) because the landlord failed to prove entrustment in 1994 and the rate of rent at Rs. 500 per month.
  • Argued a landlord may not succeed on the basis of weaknesses in the tenant's case; a plaintiff must succeed on the strength of its own case, not on the weakness of the defense. The tenant's counsel relied on the Supreme Court decision in Saved Muhammed Mashur Kubhi Koya Thangal v. Badagara Jumayath Palli Dharas Committee ((2004) 7 SCC 708) to that effect.

Respondent / Landlord

  • Asserted that the building was entrusted on 1-1-1994 at Rs. 500 per month, that the tenant defaulted in payment from 1-1-1995 and that the landlord bona fide required the premises to run photostat and real estate business.
  • Placed evidence before the Rent Control Court (examined as PW1 and produced Exts. A1 and A1(a)).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Saved Muhammed Mashur Kubhi Koya Thangal v. Badagara Jumayath Palli Dharas Committee ((2004) 7 SCC 708) Principle that a plaintiff must succeed on the strength of his own case and not on the weakness of the defence. Cited by revision petitioner’s counsel. The Court acknowledged the principle but explained that disputes over rate/period of arrears and admissions in rent matters are governed by different procedural and statutory rules (e.g., Order XII Rule 6 CPC and Section 12 of the Act), permitting outcomes based on admitted or proved facts relevant to arrears.
Moran Mar Baselios Catholicos v. Most Rev. Mar Poulose Athanasius (AIR 1954 SC 526) Authority for the settled principle that in title suits the plaintiff must prove title and mere destruction of the defendant's title does not assist the plaintiff. Used to distinguish title suits from rent/arrear claims; the Court relied on this line of authority to explain why the rule applicable to title suits does not preclude the Rent Control Court from acting on admissions or findings about rent/arrears.
Brahma Nand Puri v. Neki Puri (AIR 1965 SC 1506) Reinforcement of the principle that a plaintiff in a title suit must establish title and cannot rely solely on the weakness of the defence. Referenced along with other authorities to support the Court's distinction between title disputes and money/arrears disputes.
Jagdish Narain v. Nawab Said Ahmed Khan (AIR 1946 PC 59) Part of the jurisprudence emphasising the plaintiff's burden in title suits. Relied on for the general principle differentiating title suits from actions for money/arrears relied upon in the Court's analysis.
Baba Kartar Singh Bedi v. Dayal Das (AIR 1939 PC 201) Another authority underscoring the rule about proof of title in title suits. Grouped with the other cited precedents to explain the legal backdrop against which the Court treats rent/arrear disputes differently.
Kunhikannan v. Damodaran Nambeesan (1992 (2) KLJ 625) Local authority cited in the same context concerning the principle applicable to title suits. Used as part of the Court's supporting authorities to show settled law on title disputes and to contrast with rent/arrear proceedings.

Court's Reasoning and Analysis

The Court proceeded by first identifying and explaining the legal distinction between suits for title to immovable property and claims for money or arrears of rent. It observed that the authorities cited establish the settled rule that in title suits a plaintiff succeeds only by proving title and cannot rely merely on the destruction of the defendant's title. However, the Court emphasised that the position differs in claims for money or arrears of rent.

The Court turned to procedural law: Order XII Rule 6 of the Code of Civil Procedure allows the court to grant relief to the extent of admissions made by a party, whether in pleadings or otherwise. The Court noted that even without invoking Order XII Rule 6, a court at final determination may take into account admissions made by a defendant when passing judgment.

The Act itself (Section 12) was then examined. Section 12 requires a tenant against whom an eviction application under Section 11 is made to pay or deposit all arrears the tenant admits to be due to contest the application; subsection (3) provides consequences for failure to do so and subsection (4) permits the landlord to withdraw admitted arrears deposited by the tenant. The Court observed that the Act does not specify what is to be done if the Rent Control Court ultimately finds the rate of rent or period of arrears is as contended by the tenant (i.e., less than the landlord claimed), and the Court interpreted the scheme of the Act to mean:

  • The landlord need not repay or re-deposit amounts withdrawn under Section 12(4), and the tenant should not be permitted to withdraw such deposits if the landlord has already withdrawn;
  • Such payments or deposits should be adjusted towards the rent ultimately found to be in arrears.

On the question whether a Rent Control Court may pass an order under Section 11(2)(b) on the basis of the tenant's contentions regarding rate or period of arrears, the Court held that the Rent Control Court has jurisdiction to do so when it finds the landlord has failed to prove his version of the rate or period of arrears.

Applying these principles to the facts, the Court noted that the tenant consistently maintained the agreed monthly rent was Rs. 25 and that entrustment occurred in 1976. The tenant did not dispute liability to pay at the rate of Rs. 25. The authorities below found on evidence that the tenant failed to prove his asserted discharge of rent (payment up to June 1998) and therefore disbelieved the tenant's claim of payment up to that date. The Court found no infirmity in these factual findings and concluded there were no grounds to interfere under Section 20 of the Act.

On bona fide need (Section 11(3)), the Court examined evidence that the landlord had a fractional right in a hotel business (a business run by the landlord's late father, giving the landlord a fractional interest with other legal representatives) and observed the Appellate Authority rightly held that such co-ownership did not disentitle the landlord from claiming eviction. The Court explained that the first proviso to Section 11(3) applies only if the landlord has another building in his possession; mere fractional interest in a business or possession of other business activities does not by itself negate bona fide need for the petition schedule building. The authorities below had found the landlord's claim bona fide and that the tenant had not proved the ingredients of the second proviso to Section 11(3); these were factual findings based on evidence and there was no basis for interference under Section 20.

Finally, the Court addressed the tenant's allegation that the landlord had forcibly taken possession of part of the building in breach of a stay order during the pendency of the appeal. The Court noted that applications were filed before the Appellate Authority (I.A. No. 1644 of 2005 and I.A. No. 1695 of 2005) and that those applications were stated to have been dismissed by the court below, but the orders were not produced. The Court emphasised that proceedings for alleged violation of a court order during the pendency of an appeal are separate and independent and are not dependent on the outcome of the present revision; the tenant's rights to challenge those orders remain unaffected.

Holding and Implications

HOLDING: The Rent Control Revision is DISMISSED.

Immediate consequences and directions:

  • The revision petitioner/tenant is granted four months' time to vacate the petition schedule building.
  • Conditions imposed on the tenant:
    • File an affidavit in the Rent Control Court within six weeks from the date of the judgment, undertaking to vacate the petition schedule building within four months from the date of this judgment.
    • Pay the arrears of rent up to and inclusive of January 2006 within two months from the date of this judgment.
  • If the tenant defaults in complying with any of these conditions, the landlord is entitled to execute the order of eviction forthwith.
  • The disposal of this revision does not affect the tenant's right to challenge, in accordance with law, the orders relating to the alleged violation of stay and forcible taking of possession (the separate I.A. proceedings referred to in the record).

Broader implication: The Court re-affirmed that rent/arrear disputes permit the court to act on admissions and findings about the rate and period of arrears (distinguishing them from title suits). The opinion does not purport to establish a new precedent beyond its interpretation of the Act's scheme concerning deposits under Section 12 and the Rent Control Court's jurisdiction to decide disputes on rate and period of arrears.

Show full summary ...

    K.M Paul v. K. Pradeep

    Sankaran, J.:— The revision petitioner, the tenant, challenges the concurrent findings of the Rent Control Court and the Appellate Authority under Sections 11(2) (b) and 11(3) the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as ‘the Act’)—

    2. The Rent Control Petition was filed by the respondent under Sections 11 (2)(b), 11(3) and 11(4)(ii) of the Act. The Rent Control Court rejected the claim under Section 11 (4)(ii) The landlord has not challenged the order of the Rent Control Court in appeal and, therefore, the decision under Section 11(4)(ii) has become final. The case of the landlord is that he acquired the property, in the year 1978 and the building was entrusted to the tenant on a monthly rent of Rs. 500/- on 1-1-1994. The tenant defaulted payment of rent for the period from 1-1-1995 and in spite of notice, he did not pay the arrears of rent. The landlord contended that he bona fide requires the petition schedule building for conducting photostat and real estate business. According to him, he has no job or income.

    3. The tenant disputed the entrustment of the building on 1-1-1994. He contended that he was a tenant from 1976 onwards on a monthly rent of Rs. 25/-. The respondent the landlord, purchased the building only subsequently and the tenant attorned to him and paid rent up to June, 1998. The tenant disputed the case of the landlord that the rent is in arrears from 1-1-1995. The bona fide need was disputed by the tenant and he claimed the benefit of the second proviso to Section 11(3) of the Act.

    4. Before the Rent Control Court, the landlord was exaimined as PW1 and Exts.A1 and A1(a) were marked. The tenant was examined as RW1 and Exts.B1 to B36 were marked on his side. As stated earlier, the Rent Control Court found against the claim of the landlord under Section 11 (4)(ii). In so far as the ground under Section 11 (2)(b) is concerned, the authorities below found that the landlord failed to prove the entrustment in 1994; fixing a monthly rent of Rs. 500/-. It was also fount by the authorities below on evidence, that the tenant failed to prove that the paid rent up to june 1998. The authorities below found that since the landlord failed to prove that the rate of rent was Rs. 500/-, the tenant is liable to pay only Rs. 25/- as monthly rent and that he has kept rent in arrears from 1-1-1995 onwards..

    5. The learned counsel for the revision petitioner/tenant contended that the authorities below erred in passing an order under Section 11(2)(b) as it was found that the landlord failed to prove the entrustment in 1994 and the rate of rent at Rs. 500/- per month. He contended that a landlord can get an order of eviction under Section 11(2)(b) only on the strength of his case and not on the basis of the contentions raised by the tenant. The iearned counsel relied on the decision of the Supreme Court in Saved Muhammed Mashur Kubhi Koya Thangal v. Badagara Jumayath Palli Dharas Committee ((2004) 7 SCC 708), wherein it is held that the plaintiff could only succeed on the strength of its case and not on the weakness found in the case of the defendant, if any”.In that case, the Division Bench of the High Court reversed the judgment of the District Court and decreed the suit on title relying on the statement in the written statement of the Wakf Board their the plaintiff was actually acting as the mutawalli. The plaintiff had no such case in the plaint. The Supreme Court held that the admission in the written statement of the Wakf Board would not bind the second defendant who contested the suit and the plaintiff could succeed on the strength of its case and not on the weakness of the defence.

    6. It is a settled principle of law that in a suit based on title, the plaintiff can succeed only on proof of his title and mere destruction of the defendant's title carried the plaintiff nowhere (See Moran Mar Baselios Catholicos v. Most Rev. Mar Poulose Athanasius (AIR 1954 SC 526); Brahma Nand Puri v. Neki Puri Since deceased represented by Mathra Puri (AIR 1965 SC 1506); Jagdish Narain v. Nawab Said Ahmed Khan (AIR 1946 PC 59); Baba Kartar Singh Bedi v. Dayal Das (AIR 1939 PC 201) and Kunhikannan v. Damodaran Nambeesan (1992 (2) KLJ 625).

    7. The question of title to immovable property is different from a claim for money or a claim for arrears of rent. If the defendant in a suit for money admits a part of the suit claim, a decree to that extent can be passed against him Order XII Rule 6 of the Code of Civil Procedure provides that where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think Fit, having regard to such admissions. The object of this Rule is to entitled the plaintiff to get, and to empower the court to pass, a judgment granting the relief to the extent of the admission made by the defendant. Without recourse to Order XII Rule 6 also, the court can pass a decree at the final determination of the suit, in favour of the plaintiff, taking into account the admission made by the defendant. The position is the same in a Rent Control Petition claiming eviction on the ground of arrears of rent. If the landlord says that the monthly rent agreed upon is a certain sum, but the tenant contends that the rate of rent is different, the Rent Control Court has to decide, the dispute on the rate of rent. So also, when there is dispute regarding the period during which the arrears of rent fell due, that dispute also shall be decided by the Rent Control Court. An order under Section 11 (2)(b) of the Act shall be passed based on such finding. In such a process of deciding the dispute regarding rate of rent or the period of arrears, the Rent Control Court would be acting well within its jurisdiction if it accepts the case of the tenant. Section 12 of the Act provides that no tenant against whom an application for eviction has been made by a landlord under Section 11, shall be entitled to contest the application before the Rent Control Court or to prefer an appeal under Section 18 unless he pays to the landlord or deposits, all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment or deposit, and continues to pay or deposit any rent which may become subsequently due. Sub-section (3) of Section 12 provides for the consequence of failure to make such payment or deposit. The landlord is entitled to withdraw the amount of admitted arrears of rent deposited by the tenant, as provided in sub-section (4). After such payment or deposit, what is to be done in case the Rent Control Court finds that the rate of rent or the period of arrears is really as contended by the tenant? Should the landlord re-pay the amount withdrawn by him under Section 12 (4) to the tenant? or if the deposit made under Section 12(1) was not withdrawn by the landlord under. Section 12(4), should the tenant be allowed to withdraw it? Had the tenant paid to the landlord the arrears of rent, should the landlord be directed to repay it to the tenant? What order is to be passed in such a contigency and how it is to be implemented, is not provided in the Act. To our mind, the Scheme of the Act is that the landlord need not repay or re-deposit such amount and the tenant should not be allowed to withdraw such deposit. Such payment or deposit should be adjusted towards the rent found to be in arrears. This answer would also lead us to the conclusion that the Rent Control Court is entitled and has jurisdiction to pass an order under Section 12(b) of the Act, on the basis of the rate of rent or period of the arrears of rent as stated by the tenant, if ‘the court finds that the landlord failed to prove his case regarding the rate of rent or the period during which the rent fell in anrears.

    8. We are not in a position to accept the contention raised by the revision petitioner/tenant. It is the specific case of the tenant that the rate of rent is Rs. 25/- and that the entrustment was in 1976. According to him, the Rent Control Petition was filed when he refused to enhance the rent at the rate of Rs. 500/- per month The liability to pay rent at the rate of Rs. 25/- is not disputed by the tenant. Therefore, the revision petitioner is not justified in contending that an order under Section 11(2)(b) cannot be passed on the finding that the rent is in arrears at the rate conceded by the tenant. Even according to the tenant, he has paid rent only up to June, 1998. The Rent Control Petition was filed in 2002. Therefore, at the time when the Rent Control Petition was filed, the tenant had the liability to pay the arrears of rent. Subsequent payment of rent is only a ground to get an order of eviction under Section 11 (2)(b) set aside under Section 11 (2)(c) of the Act. The authorise below found on evidence that the tenant failed to prove the discharge of rent pleaded by him and therefore, the case put forwarded by him that rent was paid up to June, 1998 was disbelieved. There is no infirmity in the order and judgment passed by the authorities below and we do not find any ground to interfere under Section 20 of the Act.

    9. The landlord was employed in a Gulf country for quite some time. At present, according to him, he has no job or income. It has come out in evidence that the father of the landlord was running a hotel and after his death, the respondent herein has a fractional right over that business along with the other legal representatives. The Appellate Authority, according to us, rightly held that the co-ownership right in the building where the hotel is being run would not disentitle the landlord from claiming eviction of the revision petitioner. The first proviso to Section 11(3) would apply only if the landlord has another building of his own in his possession. The fractional interest of the respondent/landlord in the hotel business could not be a ground for denying the claim for eviction of the tenant from the petition schedule building Even if the landlord is having other business that is not a ground to doubt the bona fide need put forward by him to start a business in the petition schedule building. The authorities below, on evidence, found that the claim of the landlord is bona fide It was also found by the authorities below that the tenant failed to prove that he is entitled to the benefit of second proviso to Section 11(3) of the Act. The findings that the landlord bona fide needs the building and that the tenant failed to prove the ingredients of the second proviso to Section 11(3) of the Act are findings of fact arrived at on the evidence on record. There is no case that the authorities below failed to consider any material piece of evidence or that irrelevant or inadmissible evidence has been relied on. No grounds are made out under Section 20 of the Act for interference with the findings of the authorities below under Section 11(3) of the Act.

    10. There is no merit in the Rent Control Revision and it is accordingly, dismissed. However, taking into account the facts and circumstances of the case of revision petitioner/tenant is granted four months’ time to vacate the petition schedule building, on condition that he shall file an affidavit before the Rent Control Court, within six weeks from today, undertaking that he shall vacate the petition schedule building within a period of four months from today and also shall pay the arrears of rent up to and inclusive of January, 2006 within a period of two months from today. If default is committed in complying with any of these conditions, the landlord shall be entitled to execute the order of eviction forthwith.

    11. The counsel for the revision petitioner contended that during the pendency of the appeal before the Appellate Authority, disregarding the order of stay passed by the court, the landlord forcibly took possession of a portion of the building. It is submitted that I.A No. 1644 of 2005 was filed by the tenant before the Appellate Authority for taking action against the landlord for, violating the stay order and that I.A No. 1695 of 2005 was filed for directing the landlord or restore possession of the portion of the petition schedule, building which was forcibly taken possession of by him. It is stated in the memorandum of revision that the court below dismissed those applications. The orders passed by the court below in those applications are not produced. The proceeding for violation of an order passed by the Court during the pendency of Appeal is a separate and independent proceeding and it is not dependent upon the judgment to be passed in the appeal. The disposal of this Rent Control Revision would not deprive the right jf any of the tenant to challenge the orders in the aforesaid applications in accordance with law if he is entitled to do so under law.

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    Comments

    K.M Paul v. K. Pradeep
    (Feb 23, 2006)