JAMES JACOB Vs. INDIA TECH LTD

JUDGEMENT

(1.) The petitioners are the landlords in R.C.P.No.7 of 2015 on the file of the Rent Control Court, Aluva, a petition filed by them for an order evicting the respondent/tenant under sections 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for short). The petitioners had in the petition for eviction, which was instituted on 9.4.2015, inter alia averred that the petition schedule premises was let out to the tenant as per registered lease deed dated 10.8.2012, registered as document No.3890/2012 of SRO, Chengamanad for a period of ten years, that as per the said registered lease deed, the rent payable for the first 12 months is Rs.3,41,249/- and for the subsequent period of 12 months is Rs.3,61,724/-, that rent for the period thereafter is also fixed in the lease deed and that the tenant has committed default in paying the rent from October 2013 onwards.

(2.) As stated earlier, R.C.P.No.7 of 2015 was instituted on 9.4.2015. On that petition, on 10.4.2015, the Rent Control Court, Aluva directed notice to be issued to the respondent returnable by 16.6.2015. The petitioners did not take steps immediately. They took steps only on 17.6.2015 and thereupon notice was issued to the respondent on 18.6.2015 with the hearing date fixed as 28.7.2015. On that day, the respondent appeared and sought time to file objections and thereupon the rent control petition was adjourned to 22.9.2015. On 22.9.2015, the rent control petition was again adjourned to 22.11.2015. On that day, the rent control petition was not called. It was called on only 23.11.2015. On that day, it was submitted on behalf of the respondent/tenant that the rent control petition has become infructous for the reason that key of the building has already been surrendered. The Rent Control Court thereupon adjourned the petition to 27.11.2015 for verification. On 27.11.2015 on the short ground that key of the building has already been surrendered, the Rent Control Court closed R.C.P.No.7 of 2015 as infructuous by Ext.P5 order. The said order is under challenge in this original petition filed by the landlords under Article 227 of the Constitution of India.

(3.) It is contended that instead closing the petition for eviction as infructuous, the rent control court ought to have passed an order of eviction for the reason that the entrustment was by registered entrustment of lease. It is submitted that unless an order of eviction is passed and the said order is communicated to the Sub Registrar's Office concerned in terms of the stipulations contained in section 89 (5) of the Registration Act, 1908, execution of the lease deed would be shown as an encumbrance in encumbrance certificate for the reason that entrustment was by registered lease. On noticing the aforesaid circumstances, we admitted the original petition and directed notice to be served on the respondent by special messenger. After notice was served, the records were also called for. The records disclose that the tenant had on 30.10.2015 filed the original of Ext.P3 memo dated 29.11.2015 in the rent control court stating that the respondent/tenant is not in a position to continue the tenancy in the petition schedule property. It is stated therein that the keys of the said premises were offered to the landlords earlier by the respondent, but the same was not accepted by them and hence keys of the premises are produced before this court. It is also stated in the memo that the surrender of the keys is without prejudice to the rights of the tenant relating to the investment made by him in the petition schedule property and that but the respondent/tenant reserves the right to claim the amount invested by it in appropriate proceedings. The said memo was returned on the ground that the vakalath nama does not bear the advocate welfare stamp. The memo was represented on 18.11.2015 after curing the defect. By the impugned order passed on 27.11.2015 the Rent Control petition was closed as infructous.