Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR. JUSTICE JOHNSON JOHN FRIDAY, THE 22ND DAY OF DECEMBER 2023 / 1ST POUSHA, 1945 OP (RC) NO. 218 OF 2023 AGAINST THE ORDER DATED 14.11.2023 IN I.A.NO.5 OF 2023 IN RCP 25/2022 OF MUNSIFF COURT, TIRUR PETITIONER/RESPONDENT/RESPONDENT: RASAK AGED 53 YEARS, S /O KODIYIL MUHAMMED KUTTY, MARAKKARA AMSOM, PILATHARA DESOM, P.O. KADAMPUZHA, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676553 BY ADVS. JAMSHEED HAFIZ T.S.SREEKUTTY RESPONDENTS/PETITIONERS/PETITIONERS:
1 PRAKASHAN AGED 63 YEARS, S/O NELLEKKATT PADMANABHAN NAIR, KATTIPARUTHIAMSOM, VAIKKATHURDESOM, VALANCHERY P.O, TIRUR TALUK, MARAKKARA PANCHAYATH, MARAKKARA VILLAGE, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676105 2 LATHA PRAKASHAN AGED 53 YEARS, W/O PRAKASHAN, NELLEKKATT HOUSE, KATTIPARUTHIAMSOM, VAIKKATHURDESOM, VALANCHERY P.O, TIRUR TALUK, MALAPPURAM DISTRICT - 676105 BY ADVS. RAJIT ARJUN S. THIS OP (RENT CONTROL) HAVING COME UP FOR
ADMISSION ON 22.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (RC) No.218 of 2023 2 P.B.SURESH KUMAR & JOHNSON JOHN, JJ. ----------------------------------------------- O.P. (RC) No.218 of 2023 ----------------------------------------------- Dated this the 22nd day of December, 2023
JUDGMENT
The petitioner is the tenant in a proceedings for eviction instituted under the Kerala Buildings(Lease and Rent Control) Act, 1965(the Act) and the respondents are the landlords. In the proceedings, the respondents preferred an application under Section 12(1) of the Act seeking a direction to the petitioner to pay the admitted arrears of rent, and the Rent Control Court allowed the said application and directed the petitioner to pay the admitted arrears amounting to Rs.41,34,000/- within four weeks. The said order is under challenge in this original petition.
2. The petitioner contends that there is no landlord-
tenant relationship between the parties; that the arrangement between them is a licence arrangement and therefore, the application under Section 12(1) is not maintainable. It was also contended by the petitioner that he has raised the question of maintainability of the eviction petition in the objection filed to the OP (RC) No.218 of 2023 3 eviction petition and it is without considering the maintainability of
the eviction petition that the Rent Control Court passed an order
under Section 12(1) of the Act.
3. When the matter was taken up, the learned
counsel for the petitioner asserted that when an issue relating to the maintainability of an eviction petition is raised, it is obligatory for the Rent Control Court to consider the same before considering an application under Section 12(1) of the Act. Per contra, it was pointed out by the learned counsel for the respondents that though the agreement entered into between the parties is styled as a licence arrangement, it is in fact a lease arrangement, and the eviction petition is, therefore, maintainable. It was also pointed out by the learned counsel for the respondents that it is with a view to drag the proceedings and to continue occupying the premises without paying rent, that the petitioner has approached this Court by filing this original petition. It was asserted by the learned counsel that the question whether the arrangement is one of lease or licence has been considered by the Rent Control Court while passing the impugned order, and it is after rendering a finding that the arrangement is a lease, that the impugned order has been passed.
4. Having regard to the peculiar facts of this case,
OP (RC) No.218 of 2023 4 especially the fact that the petitioner has not been paying any amount to the respondents even as licence fee, we deem it appropriate to dispose of the original petition directing the Rent Control Court to consider the maintainability of the eviction petition, on or before 31.01.2024 on condition that the petitioner shall pay a sum of Rs.15,00,000/- to the respondents on or before 10.01.2024, in the manner in which the petitioner has agreed to pay licence fee to the respondents. Ordered accordingly. It is made clear that if the petitioner does not pay the said amount, the impugned order would revive and the Rent Control Court would be justified in proceeding with the case as if the arrangement is a lease arrangement. On the other hand, if the petitioner pays the said amount and the Rent Control Court holds that the eviction petition is not maintainable, the amount paid in terms of this order is liable to be adjusted against the licence fee payable by the petitioner to the respondents. Sd/- P.B.SURESH KUMAR, JUDGE. Sd/- JOHNSON JOHN, JUDGE. YKB OP (RC) No.218 of 2023 5 APPENDIX PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE RCP.NO.25/2022 FILED BY THE RESPONDENTS BEFORE THE RENT CONTROL COURT, TIRUR DATED 14.11.2022 Exhibit P2 TRUE COPY OF THE COUNTER IN RCP.NO. THE RENT CONTROL COURT, TIRUR DATED 07.09.2023 Exhibit P3 TRUE COPY OF THE IA. NO. 5/2023 IN RCP.NO. 25/2022 FILED BY THE RESPONDENTBEFORE THE RENT CONTROL COURT, TIRUR DATED 08.08.2023 Exhibit P4 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER/ TENANT IN IA. NO. 5/2023 IN RCP.NO. 25/2022 BEFORE THE RENT CONTROL COURT, TIRUR DATED 07.09.2023 Exhibit P5 TRUE COPY OF THE ORDER DATED 14.11.2023 IN IA. NO. 5/2023 IN RCP.NO. 25/2022 PASSED BY THE CONTROL COURT (MUNSIFF) TIRUR Exhibit P6 TRUE COPY OF THE LICENSE FEE AGREEMENT DATED 10.09.2019