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2017 DIGILAW 1269 (KER)

P. Devasahayam v. G. Sudhakaran Nair

2017-10-06

A.M.BABU, K.HARILAL

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JUDGMENT : K. Harilal, J. 1. The revision petitioner is the respondent in RCP No.47/2010 of the Additional Rent Control Court, Thiruvananthapuram (The parties are referred to as in the Rent Control Petition). The petitioner filed the above RCP under Sec.11 (2) (b) of the Kerala Buildings (Lease and Rent Control) Act (for short ‘the Act) claiming an order of eviction on the ground that rent was in arrear from 7.7.2005 at the rate of Rs. 800/- per month. He sent Ext A2 statutory notice on 3.5.2010, but the respondent has not paid arrears of rent as claimed by the petitioner and sent Ext A3 reply notice dated 17.5.2010 stating that he has deposited rent up to December 2009 at the rate of Rs.400/- per month. On the failure to pay rent as claimed in Ext A2 notice, the petitioner had preferred the aforesaid RCP claiming an order of eviction under Sec.11 (2) (b) of the Act. 2. After considering the evidence on record, the Rent Control Court dismissed the Rent Control Petition on a finding that the Rent Control Petition was a premature one and the petitioner is not entitled to get interest for the arrears in the absence of a provision for interest for arrears of rent in the lease agreement. In appeal, the appellate authority reversed the said findings and passed order of eviction under Sec.11 (2) (b) of the Act. Thus, the legality and propriety of the divergent findings under Sec.11 (2) (b) have come up in revision. 3. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 4. Going by the judgment passed by the Rent Control Court, it is seen that the Rent Control Court dismissed the Rent Control Petition on a finding that the Rent Control Petition itself was a premature one and he is not entitled to get interest for the arrears of rent as there is no provision in the rent deed for claiming interest for arrears of rent. It is not disputed that RCA 22/2007 was allowed on 25.3.2010 fixing the fair rent and directing the respondent to pay fair rent at the rate of Rs.800/- from 7.7.2005 onwards. The existing rent was Rs.400/- only. It is not disputed that RCA 22/2007 was allowed on 25.3.2010 fixing the fair rent and directing the respondent to pay fair rent at the rate of Rs.800/- from 7.7.2005 onwards. The existing rent was Rs.400/- only. Therefore it can be held that at the time of issuing Ext A2 notice on 3.5.2010, the petitioner was entitled to get rent at the rate of Rs.800/- from the respondent from 7.7.2005 onwards. Ext A2 notice was dated 3.5.2010 and Ext A3 reply notice was dated 17.5.2010. The respondent has not paid the arrears of rent as demanded by the petitioner in Ext A2 and he sent Ext A3 reply notice stating that he has deposited rent up to December, 2009 at the rate of Rs.400/- per month and he is tendering rent from January, 2009 onwards. Thus, in Ext A3 reply notice itself the respondent has admitted that he has not paid rent at the rate of Rs.800/- per month from 7.7.2005 onwards and he paid rent at the rate of Rs.400/- per month till December, 2009 only. 5. According to Sec.11 (2) (b) of the Act, the respondent should have paid the rent at the rate of Rs.800/- per month from 7.7.2005 within 15 days from the receipt of Ext A2 notice dated 3.5.2010. It is needless to say, the payment of rent at the rate of Rs.400/- till December, 2009 will not wipe out his liability, when the Appellate Court allowed his appeal and enhanced rent to Rs.800/- with effect from 7.7.2005. So the respondent was liable to pay the balance amount, within fifteen days from the date of receipt of Ext A2 notice, even if earlier he had paid rent at the rate of Rs.400/- per month. As per Sec.11 (2) (b) of the Act, on the failure to pay arrears of rent within 15 days from the date of receipt of notice sent under Sec.11 (2) (b), the right to get an order of eviction under Sec.11 (2) (b) of the Act would automatically be accrued to the petitioner. Even if the tenant pays or deposits the arrears of rent, after 15 days from the date of receipt of notice, it is inconsequential and the Rent Control Court is bound to pass an order under Sec.11 (2) (b) of the Act granting eviction. 6. Even if the tenant pays or deposits the arrears of rent, after 15 days from the date of receipt of notice, it is inconsequential and the Rent Control Court is bound to pass an order under Sec.11 (2) (b) of the Act granting eviction. 6. The learned counsel for the respondent further submitted that since the order in RCR 267/2010 was delivered on 28.11.2011 only the respondent was not liable to pay rent, at the rate of Rs.800/- per month from 7.7.2005, on the date of Ext A2 notice i.e. 3.5.2010. Per contra, the learned counsel for the petitioner submitted that there was no order in RCR 267/2010, staying the operation or execution of the judgment passed by the Appellate Authority in RCA 22/2007. So the petitioner was entitled to get rent as per the said judgment, on the date of Ext A2 notice. 7. We have enquired with the Registry of this Court, as to whether any order staying the execution of the judgment in RCA 22/2007 was passed by this Court in RCR 267/2010. The Registry reported that no stay order was passed, as referred above. We find that in the absence of an order staying the execution or operation of the impugned judgment in RCA 22/2007, the petitioner was entitled to get rent at the rate of Rs.800/- per month from 7.7.2005, on the date of Ext A2 i.e 3.5.2010. That apart RCR 267/2010 was dismissed confirming the fixation of fair rent at the rate of Rs.800/- per month from 7.7.2005. So the date of delivery of judgment in RCR 267/2010 is of no consequences at all. Therefore, we reject the argument referred to above made by the learned counsel for the respondent. 8. In the above analysis, we find that the Rent Control Court went wrong by finding that the Rent Control Petition was a premature one and the appellate authority is justified in finding that the respondent failed to pay rent at the rate of Rs.800/- per month from 7.7.2005 onwards. It follows that the appellate authority is justified in passing an order of eviction under Sec.11 (2) (b) by reversing the order passed by the Rent Control Court. 9. It follows that the appellate authority is justified in passing an order of eviction under Sec.11 (2) (b) by reversing the order passed by the Rent Control Court. 9. Coming to entitlement of interest, the question is whether the landlord is entitled to get interest for the arrears of rent under Sec.11 (2) (b) of the Act, in the absence of provision for the same in the rental agreement. We find that the right to get interest at the rate of 6% per annum for the arrears of rent is a statutory right conferred to the landlord under Sec.11 (2) (b) of the Act. The court cannot deny a right conferred by the statute to the party, for the mere absence of the provision for the same in the agreement between the parties. That apart, in view of the ‘non-obstante clause’ contained in Sec.11 of the Act, presence of a provision to the contrary or absence of such provision in the agreement is inconsequential. Therefore, absence of a specific provision in the rent deed for getting interest for arrears of rent is of no consequence at all. In this view of the matter, the Rent Control Court has went wrong in finding that the petitioner is not entitled to get interest for the arrears of rent. Being a right conferred by the Act to the petitioner, he is entitled to get interest for arrears of rent and the appellate authority is justified in finding so. 10. In the above analysis, we find that the appellate authority is justified in granting an order of eviction under Sec.11 (2) (b). It is made clear that the order of eviction passed under Sec.11 (2) (b) will be subject to Sec.11 (2) (c) and the respondent is granted one month’s time from today to pay the arrears of rent. The Rent Control Revision is dismissed.