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2011 DIGILAW 172 (KER)

R. S. Biju v. Madhavikutty Amma

2011-02-09

N.K.BALAKRISHNAN, PIUS C.KURIAKOSE

body2011
Judgment :- Pius C. Kuriakose, J. 1. Under challenge in this revision filed under Section 20 by the tenant is the judgment of the Rent Control Appellate Authority confirming the summary order of eviction which was passed by the Rent Control Court under Section 12(3) of Act 2 of 1965. The above summary order was passed on 8/4/2010. In order to appreciate whether the above order is legal and proper, it will be necessary to read the order dated 11/3/2010 passed by the learned Rent Control Court in the application under Section 12 which was filed by the landlady. Copy of the above order is placed before us by Sri. G.Unnikrishnan. We are convinced on a reading of that order that the learned Rent Control Court has examined the question whether there is justification for proposing a summary order under Section 12(3) and also that show cause notice has been issued to the tenant as to why he should not be summarily evicted. The order dated 8/4/2010 is obviously passed by the Rent Control Court noticing that no satisfactory cause is shown by the tenant against the proposed summary order of eviction. 2. The learned Appellate Authority did not notice any infirmity in the order passed by the Rent Control Court or in the procedure followed by that court. It was accordingly, that the impugned judgment dismissing the rent control appeal was passed. 3. In this revision various grounds are raised assailing the judgment of the Appellate Authority. Sri.T.I.Unniraja, learned counsel for the revision petitioner/tenant addressed strenuous arguments before us on the basis of those grounds. Drawing our attention to Section 12 of Act 2 of 1965, Mr.Unniraja submitted that summary order of eviction under Section 12(3) can be passed only when there is admission from the part of the tenant regarding the arrears of rent. According to him, as it is contended through paragraph 9 of the statement of objections filed by the tenant to the rent control petition, that there is no arrears of rent as claimed in the rent control petition, it cannot be taken that arrears of rent is admitted . What Section 12 requires is unqualified admission from the part of the tenant according to the counsel. What Section 12 requires is unqualified admission from the part of the tenant according to the counsel. Mr.Unniraja referred to the reply notice which was sent on his client's behalf to the landlady's advocate and submitted that in the reply notice also it was specifically contended that the arrears of rent demanded by the landlady is not correct. The eviction order under Section 12(3) passed by the Rent Control Court and the Judgment of the Appellate Authority confirming the same are illegal, irregular and improper as they have been passed ignoring the vital fact that the tenant did not admit the rent to be in arrears, according to Mr.Unniraja. 4. All the submissions of Sri.T.I.Unniraja were opposed by Sri.G.Unnikrishnan, learned counsel for the respondent/landlady. According to Mr.Unnikrishnan, the objections raised by the tenant do not amount to specific denial of the allegation of the landlady regarding the rent in arrears. What is not specifically denied should be assumed to be admitted. The learned counsel would refer to the rules relating to pleadings. The counsel submitted that even though the order under Section 12(3) is a cryptic one, the same is passed only consequent to the earlier order dated 11/3/2010. According to him, the earlier order dated 11/3/2010 directing the tenant to show cause against the proposed summary order was passed after hearing the parties in detail and after considering the contentions actually raised. 5. We have anxiously considered the submissions addressed at the Bar. The short question, which arises for decision before us, is whether the summary order of eviction passed by the Rent Control Court under Section 12(3) and the judgment of the Appellate Authority confirming the same warrants interference within the contours of Section 20 of Act 2 of 1965. According to us, the above question can be answered only in the negative. It is a fundamental rule in the law of pleadings that denial should be specific and that non specific denials will amount to admissions by non traverse. It is in paragraph 6 of the Rent Control Petition that the landlady has raised specific allegation regarding the rent in arrears. It is through paragraph 5 of the statement of objections filed by the tenant that he answers the allegation in paragraph 6 of the Rent Control Petition. It is in paragraph 6 of the Rent Control Petition that the landlady has raised specific allegation regarding the rent in arrears. It is through paragraph 5 of the statement of objections filed by the tenant that he answers the allegation in paragraph 6 of the Rent Control Petition. Significantly, there is not even indirect denial of the landlady's allegation regarding the rent in arrears in paragraph 6 of the statement of objection. 6. The argument of Mr.Unniraja was that paragraph 9 of the statement of objections contained specific denial of the rent in arrears. Through paragraph 9 of the statement of objections, the tenant purports to deny the averments in paragraphs 12 to 14 of the Rent Control Petition. Paragraphs 12 and 13 have nothing to do with the rent in arrears. Paragraph 14 refers to the contents of the lawyer notice and states that the allegation in the lawyer notice have not been specifically challenged in the reply notice. Reply notice is described in paragraph 14 as a very vague one. Paragraph 9 of the statement of objections reads as follows; "The averment in paragraphs 12 to 14 are false and denied. There is no arrears of rent as claimed in the petition and the improvements made by the counter petitioner has not been adjusted. The petitioner is the owner of building bearing Nos.T.C.4/2143(1) and T.C.2/2143(2) in the same locality besides the building in which the petitioner resides. " 7. Construing the averments stated in paragraph 9 in the liberal most manner, what the revision petitioner has contended is only that the arrears of rent claimed in the petition is not correct as the improvements effected by the tenant in the building have not been adjusted. The above contention, in our view, will not amount to specific denial of allegation of the landlady regarding the rent in arrears. In paragraph 16 of the rent control petition the landlady reiterates the allegation regarding the rent in arrears and gives minute details regarding the amounts claimed by way of arrears of rent. Paragraph 16 of the rent control petition is answered through paragraph 10 of the statement of objections filed by the tenant. What is contended therein is that the amount shown in paragraph 16 of the rent control petition is not correct. Paragraph 16 of the rent control petition is answered through paragraph 10 of the statement of objections filed by the tenant. What is contended therein is that the amount shown in paragraph 16 of the rent control petition is not correct. According to us, the above contention at best will show that the tenant is disputing the correctness of the quantum of rent in arrears and not the factum of the rent being in arrears. 8. According to us, to sustain the impugned order of the Rent Control Court and the judgment of the Appellate Authority, it will not be necessary even to decide whether the rent alleged to be in arrears was admitted by the tenant or not. It is obligatory under Section 12(1) that the tenant pays not only arrears of rent admitted by him but also the rent which admittedly falls due in respect of the building subsequent to the commencement of the rent control proceedings. Admittedly and evidently at the time the petition under Section 12 was filed by the landlady, at least five months rent had fallen due after the institution of the Rent Control Petition. It is not claimed before us by Mr.Unniraja that even a portion of that amount was paid. Thus, the Rent Control Court was perfectly justified in passing the order dated 11/3/2010. Admittedly, no cause and much less sufficient cause was shown on 8/4/2010 against the proposed summary order of eviction which was proposed by the Rent Control Court. Necessarily, the learned Rent Control Court was bound to pass the summary order of eviction. As there was no illegality or infirmity about that order, the learned Appellate Authority could not have interfered with the same. We do not find any justification for invoking the revisional jurisdiction of this court for interfering with the judgment of the Appellate Authority. 9. Even though we have not found any infirmity about the judgment of the Appellate Authority, we feel that there is justification for showing some indulgence towards the revision petitioner/tenant. This is because we notice that the only ground, which is invoked in the rent control petition for evicting the tenant, is the ground of arrears of rent. 9. Even though we have not found any infirmity about the judgment of the Appellate Authority, we feel that there is justification for showing some indulgence towards the revision petitioner/tenant. This is because we notice that the only ground, which is invoked in the rent control petition for evicting the tenant, is the ground of arrears of rent. According to the landlady, after adjusting the payments made by the tenant during the pendency of this revision inclusive of rent for the month of January 2011, a sum of Rs.2,15,000/- will be due to the landlady as arrears of rent alone(exclusive of interest and costs). We are of the view that relief can be given to the petitioner on condition that he pays the above amount either directly to the landlady or through the landlady's counsel in this court within six weeks from today. 10. The result of the above discussion is as follows: The judgment of the Appellate Authority and the order of the rent Control Court dated 8/4/2010 will stand set aside and the Rent Control Petition will stand posted before the Rent Control Court for trial subject to the following condition; The petitioner pays to the respondent either directly or through the respondent's counsel in this court within six weeks from today a sum of Rs.2,15,000/-, which is found to be due to the respondent/landlady, as arrears of rent for the period upto and inclusive of January 2011. If the amount is not paid, the impugned judgment and the order will stand confirmed. If the amount is paid, the Rent Control Petition will be special listed for trial by the Rent Control Court in the earliest available special list.