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2017 DIGILAW 1475 (KER)

Antony Mathew v. Jose Varghese

2017-12-05

K.HARILAL, K.P.JYOTHINDRANATH

body2017
JUDGMENT : K. Harilal, J. 1. The petitioner is the landlord who filed the Rent Control Petition against the respondent under Section 11 (3) and 11 (8) of the Kerala Building (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The respondent filed a counter statement resisting the claim for eviction. While so, the petitioner filed Ext.P4 petition under Section 12 of the Act seeking an order directing the respondent to pay admitted arrears of rent. Thereafter, the respondent filed Ext.P6 petition seeking an order permitting the petitioner to amend the counter statement to incorporate necessary pleadings challenging the maintainability of the Rent Control Petition. In Ext.P6 it is contended that the Rent Control Petition is not maintainable as the same is hit by Section 11 (9) of the Act. In the above context the Rent Control Court posted Ext.P5 amendment petition at first for hearing in preference to Ext.P6 petition filed earlier under Section 12 of the Act. In the above context, the petitioner filed this O.P.(R.C.) invoking the supervisory jurisdiction of this court under Article 227 of the Constitution of India seeking a direction to the Rent Control Court to pass orders at first on Ext.P4 petition filed by the petitioner within a specified time in preference to Ext.P6 petition for amendment filed by the respondent. 2. Heard; the learned counsel for the petitioner and the learned counsel for the respondent. 3. The learned counsel for the petitioner drew our attention to Section 12 and contended that the respondent has no right to contest the Rent Control Petition challenging the maintainability also unless admitted arrears of rent is paid as provided under Section 12 of the Act. 4. On the other hand, the learned counsel for the respondent submits that jurisdiction and power under Section 12 cannot be invoked unless the Rent Control Petition itself is maintainable and found so. 5. In view of the rival pleas, the question to be considered is whether the jurisdiction and power of the court provided under Section 12 of the Act can be invoked before considering the maintainability of the petition. In the instant case, admittedly, the respondent has filed counter statement and in that counter statement the respondent had not raised a contention that the Rent Control Petition is not maintainable under Section 11 (9) of the Act. In the instant case, admittedly, the respondent has filed counter statement and in that counter statement the respondent had not raised a contention that the Rent Control Petition is not maintainable under Section 11 (9) of the Act. In other words, in the objection the respondent has no case that the Rent Control Petition was filed before the lease period agreed upon between the landlord and the tenant. But subsequently they have filed Ext.P6 petition seeking an amendment to the objection so as to incorporate the pleadings challenging the maintainability of the Rent Control Petition under Section 11 (9) of the Act. Therefore, the pleadings challenging the maintainability of the Rent Control Petition do not form as a part of the pleadings, so far. Going by Section 12 of the Act the statutory mandate is that no tenant against whom an application for eviction has been made by landlord under Section 11, shall be entitled to contest the application before the Rent Control Court under that Section, unless he has paid or pays to the landlord or deposits with the Rent Control Court 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 to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court. It is pertinent to note that even now the objection challenging the maintainability of the Rent Control Petition has not become a part of the pleadings of the respondent and the challenge against the maintainability of Rent Control Petition has been raised by way of amendment to the objection only at present. On an analysis of Section 12, we are of the view that the challenge against the maintainability of the Rent Control Petition also would fall under the expression 'contest' contemplated under Section 12 (1) of the Act where the landlord - tenant relationship is admitted. In other words, the requirements under Section 12 is a condition precedent to contest a Rent Control Petition. 6. In the instant case, the landlord - tenant relationship is admitted. In the above view, we find that the application under Section 12 deserves to be heard at first and thereafter the amendment application can be considered. In other words, the requirements under Section 12 is a condition precedent to contest a Rent Control Petition. 6. In the instant case, the landlord - tenant relationship is admitted. In the above view, we find that the application under Section 12 deserves to be heard at first and thereafter the amendment application can be considered. Hence the Rent Control Court is directed to consider and pass orders on Ext.P4 at first and thereafter Ext.P6 can be considered. The Rent Control Court shall pass orders on Ext.P4 as expeditiously as possible.