GOPALAN Vs. MADHAVAN

JUDGEMENT

(1.) This Second Appeal is by the defendant in a suit for recovery of possession of a building with arrears of rent. According to the plaintiff respondent, the building was purchased by him under Ext, A2 dt.24-5-1985 from DW2, one Rajasekharan Nair and subsequent to the said purchase, the defendant executed Ext. A4 rent deed in his favour and went into possession of the building. Averring that the rent was in arrears, the respondent plaintiff filed the suit for recovery of possession of the building on the strength of the letting under Ext. A4 with arrears of rent. The defendant resisted the suit contending inter alia that he was the original owner of the building and though he alongwith his wife had executed Ext. B4 sale deed in respect of it, in favour of DW2, Rajasekharan Nair, there was no intention to pass title to Rajasekharan Nair and what was intended was only to give the plaint schedule property as security for the amounts due from him to Rajasekharan Nair. In Para.11 of the written statement he further submitted that there was no obligation on the plaintiff also to reconvey the property to him originally he stated mat the obligation was incurred by the power of attorney of the plaintiff The courts below went into the question raised by the defendant and came to the conclusion that in the face of Exts. B4 and Ext. A4 the case of the defendant could not be accepted and the plaintiff was entitled to relief on the basis of the letting evidenced by Ext. A4. Consequently, a decree for eviction with arrears of rent was passed by the Trial Court and the same was confirmed in appeal by the lower appellate court. The Second Appeal is filed by the defendant challenging that decree.

(2.) Pending the Second Appeal, it appears, that the Kerala Buildings (Lease and Rent Control) Act was extended to the area in which the plaint schedule building is situate. In view of this, the respondent plaintiff, it is stated, has filed an application for eviction R.C.O.P.1 of 1993 before the Rent Control Court, Kottarakkara under S.11 of the Kerala Buildings (Lease and Rent Control) Act. At the hearing, learned counsel for the appellant relying on the decision of the Supreme Court reported in Eastern Properties v. Meenakshi Mills ( AIR 1991 SC 1094 ) and the decision of the Full Bench of this court in Kuruvilla Abraham v. John 1995 (1) KLT 161 ) contended that the suit has to be dismissed on the ground that the same is not maintainable, in view of the extension of the Kerala Buildings (Lease and Rent Control) Act to the area in question, pending the Second Appeal. Learned counsel for the plaintiff respondent, met this argument by pointing out that the plaint contains not only a claim for eviction on the letting, of a tenant, but also the claim for recovery of arrears of rent. He submitted that the claim for recovery of arrears of rent could be entertained and can be entertained only by the civil court, since there is nothing in the Kerala Buildings (Lease and Rent Control) Act which enables a landlord to recover the rent from a tenant and all that the said Act does is to give a right to a landlord to apply for eviction on the ground of arrears of rent, in case the tenant was in arrears. He therefore submitted that even though the prayer for eviction could not now be granted by the civil court in view of the decisions referred to above, clearly the decree for arrears of rent has only to be sustained, subject of course to any contention that the appellant may have on the merits of the case.

(3.) I put it to counsel for the appellant as to how he substantiates his contention that the decree for rent passed by the courts below, ought to be set aside on the ground that there is no jurisdiction in the civil court to entertain the suit. According to me, the extension of the Act to the area in question does not disable any landlord of a building from seeking a decree for recovery of arrears of rent. It only disables a landlord from filing a suit for eviction of a tenant in possession of a building. The decision of the Supreme Court in Eastern Properties Ltd. and that of the Full Bench in Kuruvilla Abraham cannot be understood as laying down a rule that even a suit for arrears of rent in a civil court is barred or would become barred on the extension of the Act. In fact, the Rent Control Court is not competent to grant any decree for arrears of rent to a landlord. So long as there is no machinery provided by the Act, which has been held to be a complete code in itself by this court in Lalitha v. Ayissumma ( 1977 KLT 587 (FB) (see also Dhanapal Chettiar v. Yesodai Ammal AIR 1979 SC 1745 ), the general remedy of a suit in a civil court for recovery of arrears of rent cannot be said to be barred either expressly of by necessary implication. It is not as if whenever there is arrears of rent, the landlord is obliged to apply for eviction under S.11(2) of the Kerala Buildings (Lease and Rent Control) Act; It is open to him to recover or to seek to recover only the arrears of rent. There is no remedy provided by the Act and no forum provided by the Act for recovery of arrears of rent. In such a situation the only remedy available to the landlord is to institute a suit for recovery of the rent that may be in arrears.