K.N. Raghavan Vs. Habeeb Moahmmed and ors. - Court Judgment

Excerpt:
- - the text below is only a summarized version of the order pronounced appellant contended that if fixation of fair rent by rent controller is taken into consideration he would not be in arrears of rent and thus decree of eviction was bad.a.p. mishra and; u.c. banerjee, jj.1. leave granted.2. heard learned counsel for the parties.3. the present appeals are directed against the order passed in revision by the high court dismissing the revision petitions filed by the appellant. in order to appreciate the controversy we are herewith giving certain essential facts.4. the appellant is running a tourist hotel in the disputed premises. in the earlier proceedings for eviction before the high court, the appellant was found to be in arrears of rent and hence directed, unless he deposits arrears of rent within a month, eviction against him is decreed. so far as order fixing rent is concerned, it was set aside and the matter was remanded back to the rent controller for adjudication afresh in accordance with law. learned counsel for the appellant placed strong reliance on this order of the high court, wherein certain claims made by the tenant as against the landlord were referred to get it adjudicated from the civil court, for which he sought adjustment in the rent.5. it seems in spite of the aforesaid litigation and decree the appellant again fell into arrears of rent as no payment was made by him from september 1986 till february 1993 which led the landlord to file another suit for eviction for arrears of rent. learned counsel for the landlord submits, even thereafter he did not pay till february 1999. it is not in dispute that the agreed rent is rs 20,000 per month under an agreement with provision of 10% increase every year. the case of the appellant tenant is that towards renovation, construction of the building and furniture he spent rs 7,99,290.52p. and coupled with other expenses on other construction, it comes to rs 21,79,299.33p. the tenant filed a petition for fixation of fair rent in the year 1988 in respect of schedule building as the fixation at rs 20,000 per month agreed rent was excessive. the petition of the tenant was allowed by the rent controller and he fixed the rent of the building at rs 9780 per month. both, the landlord and the tenant filed appeal before the appellate authority. the appellate authority relying upon the decision of the high court in issac ninan v. state of kerala1 allowed the appeal filed by the landlord and dismissed that of the tenant on the ground that the high court has declared the provisions relating to fixation of fair rent, namely, sections 5, 6 and 8 of the act as unconstitutional and void. the court hence fixed the rate of rent of the disputed building at rs 20,000 per month, as contained in the agreed terms. thereafter the tenant filed revision before the high court. during the pendency of the proceedings, the landlord filed eviction petition in the year 1994 before the rent controller seeking eviction of the tenant under section 11(2)(b) of the kerala buildings (lease and rent control) act alleging huge amount of rent being in arrears as against the present appellant. the rent controller decreed the eviction petition of the landlord and the appeal preferred by the tenant was also dismissed by holding that the rentamount of rs 12,46,000 is in arrears. at this point we further make it clear, initially the arrears were approximately to the tune of rs 20,00,000 but seven lakhs from the security deposit were adjusted towards the said arrears, hence at the stage of revision the arrears still remained to the tune of rs 12,46,000. during its pendency the high court further directed the appellant to deposit rupees seven lakhs as a condition precedent before hearing of the appeal itself. this amount was deposited by the appellant. the high court finally dismissed the revision petition filed by the tenant, holding that the decision of issac1 is fully applicable and covers the field. therefore, the fixation of fair rent under the aforesaid act does not arise. it is against this order the present appeals have been preferred.6. mr krishnamoorthy iyer, learned senior counsel appearing for the appellant submits, in view of the fixation of the fair rent by the rent controller, if that be taken into consideration, he would not be in arrears of rent. learned counsel made an attempt to submit that the provision is not ultra vires hence fixation of rent by the rent controller was just and proper, hence the decree of eviction is bad in law.7. this submission suffers from patent illegality as there could be no question of fixing a fair rent under provisions which are held to be ultra vires. the only reason submitted for accepting fixation of rent by the rent controller is, since the appellant was not party to the proceedings in which the high court declared the said provisions as ultra vires, hence not binding. the submission has no merit. when any provision is held to be ultra vires, it covers the field as against all its subjects who are within the jurisdiction of the said legislation and the court. thus this submission to us looks strange that as he was not a party to it hence would not bind him, has no merit and is rejected.8. the second submission relates to the adjustment of the amount which he has spent on renovation, construction etc. as aforesaid. for this he has filed separate suit in pursuance of the observations made by the high court in the earlier revision. without going into the question, whether that could be adjusted or not, we are informed that suit stands dismissed for default on 10-11-2000. the submission for the appellant is that application for setting aside ex parte is pending. in any case there is no decree of his said claim then how could it be pleaded for adjustment towards the arrears of rent? in view of the aforesaid facts and finding which we have recorded, we do not find any merit in the present appeals. accordingly, they fail and are dismissed. costs on the parties. any amount deposited pursuant to the order of this court may be withdrawn by the respondent landlord.