FRANCIS Vs. JACOB

JUDGEMENT

(1.) The respondent subtenant in a petition for eviction by the tenant - landlord is the petitioner in this Civil Revision. The Rent Control Court ordered eviction under S.11(2) of the Kerala Buildings (Lease and Rent Control) Act 2 of 1965. The petitioner's appeal was dismissed by the Appellate Authority. The revision filed by the petitioner then before the District Court also met with the same fate. It was under the above circumstances that the petitioner has filed this Civil Revision.

(2.) The main contentions of the petitioner are twofold: The first contention is that the Rent Control Court was in the wrong in deciding the petition for eviction without preliminarily deciding the question whether the denial of title of the landlord raised by the petitioner in the written objections was bona fide or not, as has to be done under the second proviso to S 11(1) of Act 2 of 1965. What is to be denied is the title of the landlord. Title is nothing but the ownership which only the owner has got. A tenant has no ownership of the building which is vested in his landlord. So, in a case where the petition for eviction has been filed by the tenant - landlord against his subtenant, as in this case, there is no scope for the subtenant to deny the title of his immediate landlord who is only the tenant of the building When there is no scope itself for denying the title why should the Rent Control Court be put to the difficulty of deciding whether the denial is bona fide or not and that too preliminarily. Even if the Rent Control Court takes the trouble of giving a decision on the question of bona fides of the denial of title in a case where the tenant has filed a petition for eviction against the subtenant, that will not in any way improve the position.

(3.) The next contention is that in a petition for eviction under S.11(2) of the Act for arrears of rent the liability of the tenant is only to pay arrears which are not barred by limitation and if the tenant pays that within the time allowed, the eviction order will stand vacated. As per S.11(2)(b) the Rent Control Court can pass an order for eviction only if it is satisfied that the tenant has not paid or tendered the rent 'due'. As has been held in Curwen v. Milburn ((1889) 42 Ch. D. 424) 'Statute - barred debts are dues, though payment of them cannot be enforced by action'. As per New Webster's Dictionary of the English Language, the meaning given to the word 'due' is 'that which is due or owed'. Even if some arrears are time barred, that will not cease to be arrears 'due' as the tenant still owes that amount to the landlord. Under S.11(2)(c) for the Rent Control Court to vacate order for eviction on the ground of arrears of rent, the tenant will have to deposit the arrears of rent with interest and cost of proceedings. It goes without saying that arrears of rent will include arrears, if any, barred by limitation. Simply because a remedy by way of a suit to realise such arrears is lost, it cannot be said that the landlord has lost his right for the same. All the rent that remains unpaid is rent due from him as the tenant continues to owe the same to the landlord. Under S.11(2)(c) also the tenant has to deposit the arrears of rent (not the arrears of rent not barred by limitation only) to get the order of eviction vacated. The tenant is made to pay the arrears over which the landlord has a right. As the landlord is not suing the tenant for arrears and realising the same, the question whether part of the arrears is time - barred or not does not arise under S.11(2). So, the contention that under S.11(2) the tenant need only pay arrears of rent not barred by limitation has only to be rejected.