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2023 DIGILAW 184 (KER)

Shaji, S/o. Kanadiveettil Krishnan v. Alikutty, S/o. Variyath Khadar

2023-02-20

P.B.SURESH KUMAR, SOPHY THOMAS

body2023
ORDER : [P.B. Suresh Kumar, J.] 1. The tenant in a proceedings for eviction under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) is the petitioner in this revision petition. 2. The eviction petition was one instituted in the year 2012. During January, 2020, the landlord filed an application in the eviction petition as I.A.No.3 of 2020 invoking Section 12(1) of the Act for a direction to the tenant to deposit the arrears of rent admitted by him. It was alleged in the affidavit filed in support of the said application that the tenant is not paying rent of the building ever since the institution of the eviction petition. In I.A.No.3 of 2020, the Rent Control Court passed an order on 24.01.2020 directing the tenant to pay the rent admitted by him. The tenant has not preferred any objection to the said application or paid any amount to the landlord towards arrears of rent. Consequently, the Rent Control Court stopped further proceedings in the eviction petition and passed an order of eviction under Section 12(3). Aggrieved by the said order, the tenant preferred R.C.A.No.26 of 2022. In R.C.A.No.26 of 2022, an interlocutory application was filed by the tenant as I.A.No.4 of 2020 seeking orders to receive a few documents. It is stated in the affidavit filed in support of I.A.No.4 of 2020 that the landlord has transferred the tenanted premises pending proceedings in the year 2019. One of the documents sought to be produced in terms of the said interlocutory application is an encumbrance certificate in which the said transaction is stated to be certified. The Appellate Authority dismissed I.A.No.4 of 2020 taking the stand that the documents sought to be produced are not of any relevance in the context of the appeal. Thereupon, the Appellate Authority dismissed the appeal also, on the ground that despite reasonable opportunity, the tenant has not shown that he has paid the rent prescribed in the rent deed after the institution of the eviction petition. It is aggrieved by the concurrent decisions aforesaid of the authorities below that the tenant has come up in this revision petition. 3. Heard the learned counsel for the tenant. 4. It is aggrieved by the concurrent decisions aforesaid of the authorities below that the tenant has come up in this revision petition. 3. Heard the learned counsel for the tenant. 4. The learned counsel for the tenant contended that inasmuch as the landlord transferred the building which is the subject matter of the proceedings pending disposal of the eviction petition, the landlord is not entitled to prefer an application under Section 12(1) of the Act. The learned counsel has also contended that at any rate, insofar as the tenant has disputed the title of the landlord, an application under Section 12 should not have been entertained by the Rent Control Court before the question as to whether the dispute as to the title raised by the tenant is bonafide, is decided by the Rent Control Court. He relied on the decision of this court in Sadique v. Mohammed Umair, 2017 (3) KLT 759 , in support of the said contention. 5. As noted, the eviction petition from which this revision arises, was one instituted in the year 2012. It was much later in the year 2020 that the landlord preferred I.A.No.3 of 2020 seeking a direction to the tenant to pay the admitted arrears of rent and it is since the said order has not been complied with by the tenant, an order of eviction under Section 12(3) of the Act happened to be passed. The tenant has no case in this revision petition that he has paid the admitted arrears. Instead, his case is only that the application preferred by the landlord under Section 12(1) is not maintainable inasmuch as the landlord has transferred the building which is the subject matter of the proceedings before preferring the said application. There is absolutely nothing on record to indicate that the landlord has transferred the building as alleged by the tenant. What was attempted to be produced before the Appellate Authority is only an encumbrance certificate. Be that as it may, let us assume that the landlord did transfer the building pending proceedings. The question is whether, in such circumstances, the landlord would be precluded from pursuing the eviction petition. It is settled law that a transfer which is made lispendensis not a void transaction. It does create rights as between the parties to the transfer, but of course subject to the final outcome of the lis. The question is whether, in such circumstances, the landlord would be precluded from pursuing the eviction petition. It is settled law that a transfer which is made lispendensis not a void transaction. It does create rights as between the parties to the transfer, but of course subject to the final outcome of the lis. In the said view of the matter, the transferor, by reason of the transfer, does not lose his right to continue the proceedings [See Sharadamma v. Mohd. Pyrejan, (2016) 1 SCC 730 and Karka Somulu v. Reddy Appalanaidu, 1957 SCC OnLine AP 286]. If that be the position, according to us, the landlord who transfers the building subject to the lis, and nevertheless continues the proceedings, is certainly entitled to prefer an application under Section 12(1), and the said application cannot be said to be not maintainable. 6. It is conceded that though the tenant has filed objection to the eviction petition, in the said objection, he has not denied the title of the landlord. The judgment relied on by the learned counsel for the tenant is a case where this Court has held that where a tenant denies the title of the landlord within the meaning of the second proviso to Section 11(1) of the Act, unless and until the question whether the denial of title is bonafideor not, is decided by the court, no application under Section 12(1) of the Act can be entertained. The contention raised by the tenant in the case on hand is only that pending disposal of the eviction petition, the landlord transferred the building which is the subject matter of the proceedings. The said contention does not amount to denial of title contemplated under the second proviso to Section 11(1). The said judgment, in the circumstances, has absolutely no application to the facts of the present case. We do not find any illegality, irregularity or impropriety in the decisions of the authorities below. The revision petition, in the circumstances, is dismissed.