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Original Petition (Rent Control)
O.P. (RC) No. 2848 of 2012 - Easwar Gangaram Patil Vs. Uduppi Madhava Mandiram Trust, (2012) 269 KLR 827
(2012) 269 KLR 827 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 10TH DAY OF SEPTEMBER 2012/19TH BHADRA 1934 OP (RC).No. 2848 of 2012 (O) ---------------------------- IA.NO.3709/2012 IN RCP.151/2011 of III ADDL.M.C.EKM (RENT CONTROL) PETITIONER: -------------
RESPONDENT: --------------
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 10-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(R.C.) No.2848 of 2012R APPENDIX PETITIONER'S EXHIBITS:
RESPONDENTS' EXHIBITS:
// TRUE COPY // C.R. K.T.SANKARAN & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P.(R.C.) No.2848 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of September, 2012 Head Note:- Kerala Buildings (Lease and Rent Control) Act, 1965 - Sections 11(7) and 11(8) - Code of Civil Procedure, 1908 - Order XXVI Rule 9 - filing of work memo when a Commissioner is appointed - Propriety of. Held:- There is no provision in the Code of Civil Procedure or in the Civil Rules of Practice, Kerala with regard to filing of work memo when a Commissioner is appointed under Rule 9 of Order XXVI of Code of Civil Procedure. It is also not necessary for the Court to apply its mind to the aspects mentioned in the work memo and make specific instructions to the Commissioner, though the Court is not precluded from doing so. If the Court finds that the points mentioned in the work memo are prolix, irrelevant or unnecessary for resolving the disputes involved in the case, the Court can certainly issue directions to the Commissioner to confine to certain points alone. A rigid approach in the matter of insisting on the work memo to be filed before Court would not be desirable. Valuable judicial time also can be saved if an adjudication on the relevancy or otherwise of the points mentioned in the work memo is avoided at the stage of issuing commission. JUDGMENT K.T. Sankaran J., The respondent filed Rent Control Petition No.151 of 2011 against the petitioner before the Rent Control Court, Ernakulam under Sections 11(7) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act. The petition schedule room is occupied by the tenant and he is doing business in silver in that building. According to the landlord, a temple is situated in the ground floor of the building and the space occupied by the petition schedule room is required for the purpose mentioned in the Rent Control Petition. 2. Before filing the Rent Control Petition, a notice was issued by the landlord on 28.7.2011 [Ext.R1(a)]. In that notice, mention was made about the shrine of Sree Anjaneya housed in the building. In the reply notice sent by the tenant, there is no dispute regarding the nature of the shrine in the place. However, in the counter filed by the tenant in the Rent Control Petition, the tenant stated thus: "There is no public or private temple inside the premises. It is only a puja room in the ground floor. Some pujas are conducted, as the members are Brahmins. This is a practice usually done in all Brahmin business establishments, as well as their homes. There is no full-fledged temple activity nor any festival or special rituals which are common and mandatory in any public temple. It is not true that the members of other Hindu community also visits the "shrine". It is frequented only by a few members of the Madhwa community. There is no religious functions conducted in the ground floor." 3. According to the landlord, the above contention raised by tenant necessitated the filing of I.A. No.3709 of 2012 to appoint a Commissioner to note the following matters: "(i) What is the deity worshipped at the ground floor of the petition schedule building. (ii) Are regular poojas being conducted at this temple (iii) On how many occasions in a day poojas and Naivedyams are offered to the deity. (iv) What are the timings for offering worship to the devotees. (v) Are there not poojaris employed by the petitioner trust for performing poojas. (vi) Where is the articles for offering are kept or stored? Is it under lock and key? (vii) Where is the kitchen where Naivedyams are prepared located? (viii) Can this kitchen be put to use by the devotees or members of Madhawa Community in connection with their functions? (ix) Are there any boards describing the time for worship and rates which the devotees are to pay to perform poojas and offerings to the deity? (x) Are the rituals and religious functions exclusively being performed at the ground floor? (xi) And such other matters requested to be noted by the Commissioner?" 4. The Court below allowed I.A No.3709 of 2012, by the order dated 4.8.2012 and an Advocate Commissioner was appointed. 5. The tenant submitted that he may be permitted to file a work memo before the Commissioner. He also stated that if the work memo is filed in Court in advance, there is every chance of evidence being manipulated by the landlord. The Court below held that such a contention cannot be permitted and the tenant cannot be allowed to file a work memo before the Commissioner without filing the same in Court. The order passed by the Court below in I.A. No.3709 of 2012 is challenged by the tenant to the extent to which the Court below rejected the prayer made by the tenant to file a work memo before the Commissioner. 6. Heard Shri. Dinesh R.Shenoy, learned counsel appearing for the petitioner and Shri.K.P. Sreekumar, learned counsel appearing for the respondent. 7. A Commissioner appointed by the Court under Rule 9 of Order XXVI of the Code of Civil Procedure is expected to note the points mentioned in the Commission application. In doing so, it would not be sufficient always to say 'yes' or 'no' in respect of most of the points. Detailed narration of facts, which the Commissioner perceives at the spot, would be required in most of the cases. While doing so, the Commissioner would be justified in noting certain aspects which are relevant and which have not been requested to be noted by either or both the parties. The facts to be brought before the Court in the form of a Commission Report are intended for enabling the Court to completely and finally adjudicate upon the disputes involved in the case. In many cases, work memo is being filed by the parties before the Commissioner at the time of inspection. Sometimes, even without a work memo, a party would be entitled to make a request to the Commissioner to note such ancillary points which are relevant. There is no rule which mandates the parties to file work memo before the Court. There is no provision in the Code of Civil Procedure or in the Civil Rules of Practice, Kerala with regard to filing of work memo when a Commissioner is appointed under Rule 9 of Order XXVI of Code of Civil Procedure. It is also not necessary for the Court to apply its mind to the aspects mentioned in the work memo and make specific instructions to the Commissioner, though the Court is not precluded from doing so. If the Court finds that the points mentioned in the work memo are prolix, irrelevant or unnecessary for resolving the disputes involved in the case, the Court can certainly issue directions to the Commissioner to confine to certain points alone. A rigid approach in the matter of insisting on the work memo to be filed before Court would not be desirable. Valuable judicial time also can be saved if an adjudication on the relevancy or otherwise of the points mentioned in the work memo is avoided at the stage of issuing commission. 8. In the present case, the tenant submitted before Court that if the points to be noted by the Commissioner at the instance of the tenant are disclosed now, there are chances of manipulation or chances of stage managing by the landlord. Even without a work memo, the tenant can point out to the Commissioner certain aspects, which may be relevant for adjudication of the disputes. In the peculiar facts and circumstances of the case, we are of the view that the tenant can be permitted to file a work memo before the Commissioner at the time of inspection. By the order impugned, the Commissioner was permitted to make more than one inspection, in the nature of the disputes involved in the case. If the Commissioner notes certain aspects mentioned in the work memo filed by the tenant and the landlord wants to point out some other aspects, the landlord would be free to file a work memo to the Commissioner. The Commissioner shall note the points mentioned in the work memo filed by the landlord as well as the tenant. 9. The Original Petition (R.C.) is disposed of in the manner indicated above; and to the extent mentioned therein, the order passed by the Court below is modified. 10. It is made clear that if the Commissioner makes a report taking into account the work memo filed by the tenant, or the landlord, as the case may be, the Rent Control Court would be free to decide the question whether any particular point mentioned therein is relevant for adjudication of the disputes involved in the case. Sd/ K.T. SANKARAN, (JUDGE) Sd/- M. L. JOSEPH FRANCIS, (JUDGE) dl/ |
O.P. (RC) No. 1785 of 2012 - Vittala D. Prabhu Vs. Nalini Shenoy, (2012) 256 KLR 225 : 2012 (3) KLT 70
(2012) 256 KLR 225 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 12TH DAY OF JUNE 2012/22ND JYAISHTA 1934 OP (RC).No. 1785 of 2012 (O) EP.230/2011 ON THE FILE OF THE MUNSIFF'S COURT, KASARAGOD OA.4/2012 ON THE FILE OF THE LAND TRIBUNAL, KASARGOD PETITIONERS: 1. VITTALA D.PRABHU, AGED 60 YEARS S/O.LATE DEVADASA PRABHU R/AT RAMACHANDRA SHANBHOGUE'S COMPOUND POST MANJESHWAR, KASARAGOD DISTRICT. 2. VAIKUNDA D.PRABHU, AGED 58 YEARS, S/O.LATE DEVADASA PRABHU, R/AT RAMACHANDRA SHANBHOGUE'S COMPOUND POST MANJESHWAR, KASARAGOD DISTRICT. 3. KASTURI @X SHANTHA BALIGA , AGED 62 YEARS W/O.LATE KAMALAKSHA BALIGA R/AT.SHEDIGURI IN ASHOK NAGAR, MANGALORE D.K.DISTRICT, KARNATAKA STATE 4. SARASWATHI PRABHU,, AGED 56 YEARS W/O.LATE PADMANABA PRABHU, R/A.C/O.HARIDAS PRABHU KOMALAS RESTAURANT, RAILWAY STATION ROAD KANNUR DISTRICT. 5. GEETHA SHENOY, AGED 54 YEARS W/O.JAGADEESH SHENAI, R/A.SHANGHNIKETAN, MANGALORE, D.K.DIST, KARNATAKA STATE 6. JAYANTHI PRABU, AGED 51 YEARS R/AT RAMACHANDRA SHANBHOGUE'S COMPOUND LOWER CAR STREET, MANJESHWAR, HOSBETTU VILLAGE POST MANJESHWAR,KASARAGOD DISTRICT. 7. SANTHA PRABHU, AGED 49 YEARS R/AT RAMACHANDRA SHANBHOGUE'S COMPOUND LOWER CAR STREET, MANJESHWAR, HOSBETTU VILLAGE POST MANJESHWAR, KASARAGOD DISTRICT. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENTS: NALINI SHENOY, AGED 69 YEARS, W/O.M.NARASIMHA SHENOY, R/AT LOWER CAR STREET HOSBETTU VILLAGE, POST MANJESHWAR, KASARAGOD DISTRICT. BY ADV. SRI.V.V.ASOKAN THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 12-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ---------------------------------------------------- O.P.(RC) NO.1785 OF 2012 O ---------------------------------------------------- Dated this the 12th day of June, 2012 Head Note:- Kerala Buildings (Lease and Rent Control) Act, 1965 - Section 11(4)(iii) - Kerala Land Reforms Act, 1963 - Section 2(25) - A person cannot at the same time be a tenant under the Kerala Buildings (Lease and Rent Control) Act and a kudikidappukaran under the Kerala Land Reforms Act in respect of the same building. J U D G M E N T K.T.Sankaran, J. The respondent filed R.C.P.No.6 of 2009 on the file of the Rent Control Court, Kasaragod, for eviction under Section 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act against the petitioners. The Rent Control Petition was allowed on 17.12.2009. Though the tenants filed appeal, the Rent Control Appellate Authority dismissed the appeal. The tenants filed R.C.R.No.258 of 2011 before this Court. The Revision was disposed of by this Court on 4.7.2011, granting nine months' time from 1.8.2011 to the tenants to vacate the building. The nine months' period expired on 30.4.2012. As per the order passed by the High Court, the tenants filed an unconditional undertaking before the executing court to vacate the building within the period fixed by the High Court. 2. On the basis of the order passed by the High Court, the executing court closed the Execution Petition, taking into account the undertaking made by the tenants. However, the tenants did not vacate the building within the time granted by the High Court. The respondent/landlord was constrained to file E.A.No.105 of 2012 to reopen the execution proceedings. The tenants raised objections. The executing court overruled the objections and reopened the Execution Petition. The executing court also ordered delivery of the building. 3. One of the contentions raised by the tenants before the executing court was that they filed O.A.No.4 of 2012 before the Land Tribunal, Kasaragod under Section 80B of the Kerala Land Reforms Act and till the application is disposed of, the execution proceedings are liable to be kept in abeyance. The learned counsel for the respondent/landlord pointed out that R.C.R.No.258 of 2011 was disposed of by the High Court on 4.7.2011 and the tenants filed O.A.No.4 of 2012 before the Land Tribunal on 22.11.2011. The application before the Land Tribunal was filed only to see whether the matter could be protracted. 4. The petitioners/tenants did not raise any contention before the Rent Control Court that the respondent is not the 'landlord' under the Rent Control Act or that the tenants are not liable to be evicted on the ground that they are kudikidappukars. No such contention having been taken before the Rent Control Court, the tenants are precluded from raising such a contention before the executing court. The contention of the petitioners that they are kudikidappukars is barred by constructive res judicata. Section 108A of the Kerala Land Reforms Act provides that Section 11 of the Code of Civil Procedure is applicable to the proceedings under the Land Reforms Act. Therefore, the proceedings initiated by the petitioners before the Land Tribunal would be barred by res judicata. The tenants having not raised a contention that they are kudikidappukars in the Rent Control Proceedings, they cannot get the execution proceedings stopped on the ground that they moved the Land Tribunal. The respondent in a Rent Control Petition, unless disputes the title of the landlord or contends that he is a tenant or kudikidappukaran, he concedes the fact that there is a landlord-tenant relationship. That landlord-tenant relationship is in respect of the tenancy under the Kerala Buildings (Lease and Rent Control) Act, which is quite distinct and different from the tenancy right or kudikidappu right under the Kerala Land Reforms Act. Having conceded to the jurisdiction of the Rent Control Authorities and having suffered an order of eviction, the tenants are not entitled to turn round and contend that they are kudikidappukars under Section 2(25) of the Kerala Land Reforms Act. A person cannot at the same time be a tenant under the Kerala Buildings (Lease and Rent Control) Act and a kudikidappukaran under the Kerala Land Reforms Act in respect of the same building. 5. The executing court was justified in ordering delivery of the building. There is no illegality, irregularity or impropriety in the order passed by the court below. 6. Learned counsel for the petitioners submitted that the landlord has excess lands and the land in question was earmarked as the excess land to be surrendered by the landlord. The learned counsel also raised a contention that the land in question was really surrendered by the landlord and therefore, she has no existing title to get delivery of the property. No such contention was raised by the petitioners before the executing court. Such a contention is raised for the first time in this Original Petition and that too without any supporting documents. We are not inclined to entertain this highly belated contention. Even if the contention raised by the petitioners is true, that is not a ground to adjourn or stop the execution proceedings. For the reasons stated above, the Original Petition (RC) is dismissed. (K.T.SANKARAN) Judge (M.L.JOSEPH FRANCIS) Judge ahz/ |
O.P. (RC) No. 698 of 2012 - Mohammed Kannu Abdul Rasheed Vs. Nazarudeen, 2012 (2) KLT 225 : 2012 (2) KHC 756
(2012) 256 KLR 224 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI WEDNESDAY, THE 30TH DAY OF MAY 2012/9TH JYAISHTA 1934 OP (RC).No. 698 of 2012 (O) -------------------------------------- OP.5/1976 of PRL. MUNSIFF COURT, NEDUMANGAD ...................................................... PETITIONER(S): ------------------------- MOHAMMED KANNU ABDUL RASHEED, AGED 68 YEARS SHALIMAR VEEDU, TC NO.49/243, MANACAUD THIRUVANANTHAPURAM. BY ADVS.SRI.T.KRISHNAN UNNI (SR.) SRI.SAJU.S.A SRI.K.C.KIRAN SMT.P.A.SHEEJA RESPONDENT(S): -------------------------- 1. NAZARUDEEN S/O.MUHAMMED YOUSUF, SABEEN MANZIL, MANCHA THEKKUMKARA MURI, NEDUANGADU VILLAGE NEDUMANGAD TALUK-695 541. 2. A.R.SHAJEER SHALIMAR VEEDU, T.C NO.49/243, MANACAUD THIRUVANANTHAPURAM-695 009. 3. SUBEENA BEEVI D/O.MOHAMMED YOUSUF, RESIDING AT SHALIMAR VEEDU TC NO.49/243, MANACAUD, THIRUVANANTHAPURAM-695 009. BY ADV. SRI.V.SURESH BY ADV. SRI.G.SUDHEER THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 30-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DCS OP (RC).No. 698 of 2012 (O) APPENDIX PETITIONER(S) EXHIBITS :-
RESPONDENTS' EXHIBITS :-
/TRUE COPY/ P.A. TO JUDGE DCS C.R PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ --------------------------------------------- O.P.(R.C.) No.698 of 2012 --------------------------------------------- Dated this the 30th day of May, 2012 Head Note:- Kerala Civil Rules of Practice, 1971 - Section 356 - date of application for chalan can be reckoned as the date of deposit. Held:- The very filing of the application for chalan manifests the decision of the respondents to make the deposit in time. As already pointed out, the application for chalan was placed on 25.6.2001 itself. One has to bear in mind the time taken by the office to process the application for chalan. The remitter cannot be blamed for such delays. The argument that the respondents should have anticipated such delay occurring on account of procedural formalities appears to be hyper technical. We endorse the view expressed by the learned Additional District Judge that deposit was made by the respondents within one month from the date of the order of this Court as directed in the order in CRP No.1927/1992. Kerala Buildings (Lease and Rent Control) Act, 1965 - Section 11(2)(b) -Whether a formal order is required vacating the order of eviction? Held:- It is relevant to note that the order passed by the Rent Control Court under Section 11(2)(b) of the Act was that the said order would stand vacated upon deposit of the arrears of rent and interest. A time limit was also fixed which was enlarged by the Appellate Court as well as this Court. The deposit of the amount within one month from the date of judgment would result in the vacation of the order of eviction under section 11(2)(b) because of the specific order of the rent control court that the order would stand vacated upon deposit of arrears of rent and interest. In other words, the deposit of arrears within the time limit would relate back to the original order vacating the order of eviction under Section 11(2)(b) and no formal order vacating the order of eviction was necessary after the deposit was made. The sequence of events that followed are also relevant to justify the aforesaid conclusion. The petitioner got the arrears of rent and interest disbursed by filing an affidavit and cheque application on 9.4.2003. The delivery was effected by the executing court after the entire deposit made by the respondents was disbursed to the petitioner. In the delivery order passed on 19.5.2004, the respondents were directed to surrender vacant possession on or before 28.5.2004 and the petitioner was directed to construct the building within six months from the date on which he got possession. It was further made clear that the respondents are entitled to get the first option of getting the reconstructed building alloted. This also would indicate that the order passed under Section 11(2)(b) stood vacated on deposit of arrears of rent by the respondents as directed. As the said order has not been challenged by the petitioner, his present resistance to allot the newly constructed building to the respondents, is untenable. Constitution of India, 1950 - Article 227 - Visitorial Jurisdiction - High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the Tribunal or court subordinate to it, is a possible view. J U D G M E N T Ramakrishna Pillai, J In this petition the landlord challenges the order passed by the District Court in an R.C.R.P filed by the tenants against the order passed by the execution court in a rent control matter rejecting the tenant's prayer for re-induction to the reconstructed building. 2. The facts: - Claiming eviction of the tenanted premises, the petitioner moved the Rent Control Court, Thiruvananthapuram, under Sections 11(2)(b) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act') against respondents 1 and 3, who are the legal heirs of the deceased tenant. The Rent Control Court granted eviction under Section 11(2)(b) only. Appeals by the petitioner as well as respondents 1 and 3 were considered by the Rent Control Appellate Authority. The petitioner was successful in the RCA. The verdict ultimately came up for consideration before this Court in CRP No.1927/1992. This Court ordered eviction under both grounds and granted one month time to respondents 1 and 3 to deposit the arrears of rent. After re-construction of the building, respondents 1 and 3 filed execution petition claiming that they are entitled to get allotment of the newly constructed building pursuant to the order passed under Section 11(4)(iv) of the Act. The petitioner opposed the application contending that as the arrears of rent was not deposited by respondents 1 and 3 within time and the order under Section 11(2)(b) has not been vacated, the tenant is not entitled to exercise the above option. Accepting the contentions of the petitioner, the executing court dismissed the execution petition. Respondents 1 and 3 challenged the order by filing RCRP before the District Court, Thiruvananthapuram, which was allowed accepting the contentions of respondents 1 and 3. The said order is under challenge in this original petition. 3. We have heard Mr. T. Krishnanunni, the learned senior counsel for the petitioner as well as Mr. V. Suresh, the learned counsel for respondents 1 and 3. We have also perused the impugned order as well as the order passed by the execution court. 4. The questions that arise for consideration in this petition are the following: i) Whether the deposit of arrears by respondents 1 and 3 was in time ? ii) Whether a specific order vacating the order of eviction under Section 11(2)(b) is necessary to entitle respondents 1 and 3 to exercise the option of allotment of the newly constructed building pursuant to the order passed under Section 11(4) (iv) of the Act? 5. The Rent Control Court, while granting the order of eviction under Section 11(2)(b) of the Act, made it clear that the said order would stand vacated upon deposit of arrears of rent and interest (emphasis added). The Rent Control Court fixed a time limit of one month to make the deposit. The Appellate Court granted a further period of two months from the date of its order. This Court granted another period of one month from 25.5.2001 which is the date of the judgment in CRP No.1927/1992. The period of thirty days granted by this Court expired on 24.6.2001. The calendar of the relevant year reveals that 24.6.2001 was a Sunday. Hence, as rightly held by the learned Additional District Judge, who heard the RCRP, Section 4 of the Limitation Act and Section 10 of the General Clauses Act would come to the rescue of the respondents and accordingly, the last day by which the deposit had to be made was 25.6.2001. The respondents filed chalan application on 25.6.2001 for remitting a sum of Rs.16,422/- as arrears of rent. The said application was allowed on 27.6.2001 and on that day itself, the amount was remitted in the treasury. The chalan receipts as well as the memo showing the remittance were produced before the court on 27.6.2001 itself. These are admitted facts. 6. The learned Additional District Judge, relying on a decision of the Apex Court in Ved Prakash Wadhwa v Vishwa Mohan (AIR 1982 SC 816), concluded that the date of chalan application can be considered as the date of payment. This finding is seriously challenged by the petitioner. Inviting our attention to Rules 355 and 356 of the Civil Rules of Practice, Kerala, the learned Senior counsel for the petitioner would argue that the aforesaid decision was rendered in a case similar to one covered by Rule 356. 7. Mr. V. Suresh, the learned counsel appearing for the respondents, per contra, would submit that Rule 356 does not contemplate an application for chalan at all. In order to appreciate the rival submissions, it is useful to have a look at Rule 355 and 356 of the Civil Rules of Practice, Kerala, which are extracted below: 355. Lodgment schedule.- (1) A person desirous of paying money into Court, hereinafter called the payer, shall file a lodgment schedule as in Form No.64. An order for lodgment and counterfoil receipts stating the date of issue, and bearing the serial number shall then be issued to the payer by the Court as in Form No.65. (2) The payer shall deliver the money and the order and counterfoil receipt to the Treasury Officer mentioned therein, who will retain the order and return the receipt duly signed and dated to the payer. The latter shall return the said receipt to the Court within a week of the remittance. (3) No lodgment shall be presented before the Treasury Officer after the expiry of 14 days from the date of issue. 356. Cash payment for special reasons.- For special reasons the money may, with leave of the Judge, be paid to the chief ministerial officer of the Court and the payment shall forthwith be entered in the cash book. In such cases, the lodgment schedule shall be endorsed with a receipt to be signed by the Judge, and the amount shall, on the next day on which the treasury is open, be sent together with an order and counterfoil receipt by the chief ministerial officer of the Court to the Treasury Officer who will return the said receipt to the Court. 8. In the decision referred to above, the Apex Court relied on two decisions rendered by the Allahabad High Court which laid down the law that when money is tendered before the court, the chalan is passed by the ministerial officer and thereupon, the money is deposited in the treasury with the chalan, such deposit relates back to the date on which the tender was made or the chalan was presented. 9. Mr. Krishnanunni, the learned Senior counsel would argue that the learned District Judge erred in reading the said decision to hold that when chalan application is made that would satisfy the requirement of a valid tender of money before court. According to the learned Senior counsel, the aforesaid decision is applicable only to cases where money is tendered directly to the court as envisaged by Section 356 of Civil Rules of Practice, Kerala. The argument advanced by the learned counsel for respondents 1 and 3 that there is no question of applying for chalan at all in cases covered by Rule 356 appears to be more convincing. That being the case, the decision referred to above can be safely relied on to hold that date of application for chalan can be reckoned as the date of deposit. 10. According to us, the very filing of the application for chalan manifests the decision of the respondents to make the deposit in time. As already pointed out, the application for chalan was placed on 25.6.2001 itself. One has to bear in mind the time taken by the office to process the application for chalan. The remitter cannot be blamed for such delays. The argument that the respondents should have anticipated such delay occurring on account of procedural formalities appears to be hyper technical. We endorse the view expressed by the learned Additional District Judge that deposit was made by the respondents within one month from the date of the order of this Court as directed in the order in CRP No.1927/1992. 11. Now, we will come to the second question as to whether a formal order is required vacating the order of eviction under Section 11(2)(b). In Ramachandran Nair v Lebba Kunju (2009 (2) KLT 393), a Division Bench of this Court to which one among us (PCK(J)) was party, held that a formal written application specifically invoking the power under Section 11(2)(c) is not mandatory though it is necessary that deposit of the arrears of rent by the tenant in court or payment of arrears of rent by him directly should be brought to the notice of the Court by filing atleast a memo or a statement and the Rent Control Court shall pass orders under Section 11(2)(c) only after issuing notice to the landlord. However, it was observed that it would be ideal to prefer a formal application under Section 11(2)(c). Though not expressly stated, what is implied is that a formal order by the Rent Control Court is required under Section 11(2)(c) in such cases. 12. Now, we will examine whether such an order has been passed by the Rent Control Court in this case. As stated earlier, the respondents deposited the arrears of rent before Court on 25.6.2001. It is true that no written application under Section 11 (2)(c) was filed. However, a memo has been filed by the respondents before the court below with a copy of the chalan receipt on 27.6.2001. Though no formal application to invoke the powers under Section 11(2)(c) has been filed, the filing of the memo along with the chalan receipt satisfies the requirements of the steps to be taken by the tenants, as laid down by this Court in the decision referred to above. 13. It is relevant to note that the order passed by the Rent Control Court under Section 11(2)(b) of the Act was that the said order would stand vacated upon deposit of the arrears of rent and interest. A time limit was also fixed which was enlarged by the Appellate Court as well as this Court. The deposit of the amount within one month from the date of judgment would result in the vacation of the order of eviction under section 11(2)(b) because of the specific order of the rent control court that the order would stand vacated upon deposit of arrears of rent and interest. In other words, the deposit of arrears within the time limit would relate back to the original order vacating the order of eviction under Section 11(2)(b) and no formal order vacating the order of eviction was necessary after the deposit was made. 14. The sequence of events that followed are also relevant to justify the aforesaid conclusion. The petitioner got the arrears of rent and interest disbursed by filing an affidavit and cheque application on 9.4.2003. The delivery was effected by the executing court after the entire deposit made by the respondents was disbursed to the petitioner. In the delivery order passed on 19.5.2004, the respondents were directed to surrender vacant possession on or before 28.5.2004 and the petitioner was directed to construct the building within six months from the date on which he got possession. It was further made clear that the respondents are entitled to get the first option of getting the reconstructed building alloted. This also would indicate that the order passed under Section 11(2)(b) stood vacated on deposit of arrears of rent by the respondents as directed. As the said order has not been challenged by the petitioner, his present resistance to allot the newly constructed building to the respondents, is untenable. 15. We also remind ourselves of the contours of the visitorial jurisdiction of this Court under Article 227 of the Constitution of India by the exercise of which this Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the Tribunal or court subordinate to it, is a possible view. 16. As we do not see any justifiable reason for interference with the impugned order, we decline jurisdiction under Article 227. Accordingly, we dismiss the petition. No order as to costs. Sd/- PIUS C.KURIAKOSE, JUDGE sd/- A.V.RAMAKRISHNA PILLAI, JUDGE css/ true copy P.S.TO JUDGE |
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