Rent; Mohammed Kannu Abdul Rasheed Vs. Nazarudeen [Kerala High Court, 30-05-2012]

Buildings (Lease and Rent Control) Act, 1965 (Kerala) – S. 11(2)(b) – Civil Rules of Practice, 1971 (Kerala) – S.356 – Arrears of Rent – Date of application for chalan – Date of deposit – Whether a formal order is required vacating the order of eviction?

Rent Law

2012 (3) KLT 225 : 2012 (3) KLJ 40 : 2012 (2) KHC 756

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PIUS C. KURIAKOSE & A.V. RAMAKRISHNA PILLAI, JJ

Dated this the 30th day of May, 2012

O.P.(R.C.) No.698 of 2012 (O)

OP.5/1976 of PRL. MUNSIFF COURT, NEDUMANGAD

FOR PETITIONER(S): BY ADVS.SRI.T.KRISHNAN UNNI (SR.), SRI. SAJU. S.A, SRI. K.C. KIRAN, SMT. P.A. SHEEJA; FOR RESPONDENT(S): BY ADV. SRI.V.SURESH BY ADV. SRI.G.SUDHEER

J U D G M E N T

Ramakrishna Pillai, J

In this petition the landlord challenges the order passed by the District Court in an R.C.R.P filed by the tenants against the order passed by the execution court in a rent control matter rejecting the tenant’s prayer for re-induction to the reconstructed building.

2. The facts: – Claiming eviction of the tenanted premises, the petitioner moved the Rent Control Court, Thiruvananthapuram, under

Sections 11(2)(b) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965

(hereinafter referred to as ‘the Act’) against respondents 1 and 3, who are the legal heirs of the deceased tenant. The Rent Control Court granted eviction under Section 11(2)(b) only. Appeals by the petitioner as well as respondents 1 and 3 were considered by the Rent Control Appellate Authority. The petitioner was successful in the RCA. The verdict ultimately came up for consideration before this Court in CRP No.1927/1992. This Court ordered eviction under both grounds and granted one month time to respondents 1 and 3 to deposit the arrears of rent. After re-construction of the building, respondents 1 and 3 filed execution petition claiming that they are entitled to get allotment of the newly constructed building pursuant to the order passed under Section 11(4)(iv) of the Act. The petitioner opposed the application contending that as the arrears of rent was not deposited by respondents 1 and 3 within time and the order under Section 11(2)(b) has not been vacated, the tenant is not entitled to exercise the above option. Accepting the contentions of the petitioner, the executing court dismissed the execution petition. Respondents 1 and 3 challenged the order by filing RCRP before the District Court, Thiruvananthapuram, which was allowed accepting the contentions of respondents 1 and 3. The said order is under challenge in this original petition.

3. We have heard Mr. T. Krishnanunni, the learned senior counsel for the petitioner as well as Mr. V. Suresh, the learned counsel for respondents 1 and 3. We have also perused the impugned order as well as the order passed by the execution court.

4. The questions that arise for consideration in this petition are the following:

i) Whether the deposit of arrears by respondents 1 and 3 was in time ?

ii) Whether a specific order vacating the order of eviction under Section 11(2)(b) is necessary to entitle respondents 1 and 3 to exercise the option of allotment of the newly constructed building pursuant to the order passed under Section 11(4) (iv) of the Act?

5. The Rent Control Court, while granting the order of eviction under Section 11(2)(b) of the Act, made it clear that the said order would stand vacated upon deposit of arrears of rent and interest (emphasis added). The Rent Control Court fixed a time limit of one month to make the deposit. The Appellate Court granted a further period of two months from the date of its order. This Court granted another period of one month from 25.5.2001 which is the date of the judgment in CRP No.1927/1992. The period of thirty days granted by this Court expired on 24.6.2001. The calendar of the relevant year reveals that 24.6.2001 was a Sunday. Hence, as rightly held by the learned Additional District Judge, who heard the RCRP, Section 4 of the Limitation Act and Section 10 of the General Clauses Act would come to the rescue of the respondents and accordingly, the last day by which the deposit had to be made was 25.6.2001. The respondents filed chalan application on 25.6.2001 for remitting a sum of Rs.16,422/- as arrears of rent. The said application was allowed on 27.6.2001 and on that day itself, the amount was remitted in the treasury. The chalan receipts as well as the memo showing the remittance were produced before the court on 27.6.2001 itself. These are admitted facts.

6. The learned Additional District Judge, relying on a decision of the Apex Court in

Ved Prakash Wadhwa v Vishwa Mohan, AIR 1982 SC 816

concluded that the date of chalan application can be considered as the date of payment. This finding is seriously challenged by the petitioner. Inviting our attention to Rules 355 and 356 of the Civil Rules of Practice, Kerala, the learned Senior counsel for the petitioner would argue that the aforesaid decision was rendered in a case similar to one covered by Rule 356.

7. Mr. V. Suresh, the learned counsel appearing for the respondents, per contra, would submit that Rule 356 does not contemplate an application for chalan at all. In order to appreciate the rival submissions, it is useful to have a look at

Rule 355 and 356 of the Civil Rules of Practice, Kerala

which are extracted below:

355. Lodgment schedule

(1) A person desirous of paying money into Court, hereinafter called the payer, shall file a lodgment schedule as in Form No.64. An order for lodgment and counterfoil receipts stating the date of issue, and bearing the serial number shall then be issued to the payer by the Court as in Form No.65.

(2) The payer shall deliver the money and the order and counterfoil receipt to the Treasury Officer mentioned therein, who will retain the order and return the receipt duly signed and dated to the payer. The latter shall return the said receipt to the Court within a week of the remittance.

(3) No lodgment shall be presented before the Treasury Officer after the expiry of 14 days from the date of issue.