(2012) 258 KLR 185

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 

RCRev..No. 289 of 2011 ( ) 

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RCA.36/2009 OF RENT CONTROL APPELLATE AUTHORITY, PALAKKAD RCP.3/2008 OF RENT CONTROLLER (MUNSIFF- MAGISTRATE), MANNARKAD. 

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REVISION PETITIONER/APPELLANT/RESPONDENT: 

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K.P. ABDUL KAREEM THANGAL, AGED 65 YEARS, S/O. KIZHAKKEPURATH ATTAKOYA THANGAL, MUMMOORTHY TEMPLE, VADAKKUMANNAM, ARAKKURUSSI AMSOM AND DESOM, MANNARKKAD TALUK, PALAKKAD. 

BY ADVS. SRI.S.M.UNNIKRISHNAN, SRI.U.BALAGANGADHARAN. 

RESPONDENTS/RESPONDENTS/PETITIONERS: 

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1. UMMER HAJI, 52 YEARS, S/O. AKKADAN MOHAMMED HAJI, VENGOOR AMSOM, CHEMMANIYODE DESOM, PERINTHALMANNA TALUK - 678 011. 

* ADDL. R2 & R3 IMPLEADED 

2. K.V. HARIDAS, S/O.VELAYUDHAN, PADIYATHODY, KALIYODE, KAREMBA AMSOM, MANNARGHAT TALUK, PALAKKAD. 

3. K. KRISHNADAS, S/O.JANAKI AMMA, KAKKASSERY, SRIRAGAM HOUSE, PAYYANEDAM VILLAGE, MANNARGHAT TALUK, PALAKKAD. 

* IMPLEADED SUOMOTU AS ADDITIONAL RESPONDENTS 2 AND 3 AS PER ORDER DATED 16/11/2011 IN RCR.289/2011. 

BY ADVS. SRI.K.S.BABU, SMT.N.SUDHA, SRI.BABU SHANKAR. 

THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14/03/2012, THE COURT ON 30/05/2012 PASSED THE FOLLOWING: rs. 

C.R 

PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ. 

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RCR No.289 of 2011 

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Dated this the 30th day of May, 2012. 

Head Note:-

Kerala Buildings (Lease and Rent Control) Act, 1965 - Sections 11(2)(b) and 12 - During the pendency of an appeal filed by the tenant against the order of eviction before the Rent Control Appellate Authority, the landlord sold the tenanted premises to a third party and later re-purchased the same. Is he entitled to move the court under Section 12 seeking direction to pay arrears of rent? 

Held:- It can be noticed that the assignment was made by the respondent only after the order of eviction was passed by the learned Rent Controller under Section 11(2)(b). That means the assignment was made after the revision petitioner entailed liability to be evicted on failure to make payment of the rent in terms of the contract of lease. Having become liable to be evicted disqualified by failure to make prompt payment of rent, the revision petitioner is bound to vacate the tenanted premises. The fact that the landlord had transferred the tenanted premises to a third party during a short period will not disentitle the respondent/landlord to seek eviction of the revision petitioner for non-payment of rent. The impugned order does not suffer from any illegality, impropriety or irregularity calling for an interference by this Court under Section 20 of the Act. 

ORDER 

Ramakrishna Pillai, J. 

During the pendency of an appeal filed by the tenant against the order of eviction under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the Act') before the Rent Control Appellate Authority, the landlord sold the tenanted premises to a third party and later re-purchased the same. Is he entitled to move the court under Section 12 seeking direction to pay arrears of rent? This question has been raised in this revision filed by the tenant challenging the orders passed by the authorities under this Act. 

2. The facts can be briefly stated: The respondent moved the Rent Control Court for evicting the revision petitioner/tenant from the tenanted premises under Sections 11(2)(b) and 11(3) of the Act. Though the claim of bonafide need was negatived, the learned Rent Controller directed the revision petitioner to vacate the premises within two months from the date of the order, as it was found that rent was in arrears. During the pendency of the appeal filed by the tenant challenging the order of the Rent Control Court, the tenanted premises was sold by the respondent on 17.3.2010 to one Haridas and Krishnadas. A petition under Section 12 of the Act filed by the respondent was resisted by the revision petitioner contending that the erstwhile landlord was not entitled to claim arrears of rent as he was no longer the landlord within the meaning of the Act. During the interregnum the respondent repurchased the tenanted premises on 27.12.2010. The appeal was dismissed holding that the tenant can continue in the premises only in the event of getting the order cancelled under Section 11(2)(c). The said order is under challenge in this revision. 

3. We have heard the learned counsel for the revision petitioner and the learned counsel for the respondent. We have also perused the impugned order as well as the order of the Rent Control Court. 

4. It was pointed out by the learned counsel for the revision petitioner that the assignment of the petition schedule premises by the respondent did not contain any recital regarding the rent due for the petition schedule building. Relying on the decision of this Court in Suhara v Abdul Shukkur (1996(2) KLT 936), it was argued by the learned counsel for the revision petitioner that a petition for eviction under Section 11(2)(b) of the Act cannot be filed by an assignee/landlord alleging existence of arrears of rent which fell due prior to the assignment of the building in his favour, even if the right to recover such prior arrears of rent was later assigned to him by a separate assignment deed. 

5. The learned counsel for the respondent, per contra, relying on a decision of this Court in Thankappan Pillai v Elsamma Joseph (1989 (2) KLT 158) would argue that eviction based on non-payment of arrears of rent under Section 11(2)(b) of the Act will continue to hold good notwithstanding the change of ownership of the building and that an assignee under the landlord pending eviction proceedings can continue the proceedings under Section 11(2)(b) of the Act. The reasoning adopted by the learned Rent Control Appellate Authority for giving a verdict against the revision petitioner was that in cases on the grounds of subletting, failure to make payments of rent and cessation of occupation for  more than six months, the assignee or the landlord will get the right to evict the tenant on those grounds. According to the Rent Control Appellate Authority, where an order under Section 11(2) of the Act is passed, the tenant can continue in the premises only after getting the said order cancelled under Section 11(2)(c) of the Act or if he succeeds in the appeal challenging the order. 

6. It was argued by the learned counsel for the revision petitioner that the learned Rent Control Appellate Authority failed to note that in view of the proviso to Section 109 of the Transfer of Property Act, the transferee ipso facto is not entitled to arrears of rent accrued before the transfer. Section 8 of the Transfer of Property Act provides that on transfer, the transferee is entitled to the rents and profits thereof accruing after the transfer, especially, when the assignment deed does not mention a specific transfer of arrears of rent in the transfer deed itself; it was pointed out by the learned counsel for the revision petitioner. So, according to the learned counsel for the revision petitioner, the respondent was the prior landlord and the assignee from him is not the landlord who is entitled to receive the rent from the tenant which accrued prior to the transfer. In other words, according to the learned counsel for the revision petitioner, there is no cause of action for the assignee from the respondent to continue a petition under Section 11(2)(b) of the Act. But, it has to be noted that the respondent repurchased the tenanted premises on 27.12.2010 and the state of affairs stood restored back to the original position as on the date of passing of the order of eviction. If the argument advanced by the learned counsel for the revision petitioner is accepted, we will be giving an unnecessary edge to a defaulter. As rightly held by the learned Rent Control Appellate Authority, this is not a case where a third party proceeded to enforce the order of eviction passed under Section 11(2)(b) of the Act. The very same landlord, who obtained an order of eviction under Section 11(2)(b) continued the proceedings and the court below gave a verdict in his favour. 

7. It can be noticed that the assignment was made by the respondent only after the order of eviction was passed by the learned Rent Controller under Section 11(2)(b). That means the assignment was made after the revision petitioner entailed liability to be evicted on failure to make payment of the rent in terms of the contract of lease. Having become liable to be evicted disqualified by failure to make prompt payment of rent, the revision petitioner is bound to vacate the tenanted premises. The fact that the landlord had transferred the tenanted premises to a third party during a short period will not disentitle the respondent/landlord to seek eviction of the revision petitioner for non-payment of rent. The impugned order does not suffer from any illegality, impropriety or irregularity calling for an interference by this Court under Section 20 of the Act. 

In the result, we dismiss the revision petition. No order as to costs. 

Sd/- PIUS C.KURIAKOSE, JUDGE 

sd/-  A.V.RAMAKRISHNA PILLAI, JUDGE 

css/ true copy P.S.TO JUDGE