ABDUL RAHIMAN Vs. DAMODARAN

JUDGEMENT

(1.) The tenant-respondent in the O.P.O. No.61 of the 1971 the files of the Rent Control Court, Palghat, is the revision petitioner The petition was for eviction on the ground that the rent was in arrears. The petitioner disputed the rate of rent claimed by the landlord-respondent. According to the landlord, the rent was Rs. 400.00 per month, while according to the tenant, it was Rs. 200.00 per month. The Rent Control Court, the Appellate Authority and the District Judge, in revision, held that the rent payable per month as per the contract was Rs. 400.00. In addition to this dispute, there was another plea raised by the tenant about insufficiency of notice to quit.

(2.) The present revision challenges the order of eviction on a new ground, not taken up by the petitioner before any of the authorities below. This contention is based on section 8(2) of the Kerala Buildings (Lease and Rent Control) Act, hereinafter referred to as the Act. Sec. 8(2) of the Act provides that where fair rent has not been determined, the rent payable is only the maximum rent that may be fixed by Rent Control Court under Sec. 5 (2) or the agreed rent, whichever is less. Sec. 8(2) opens with the non-obstante clause that this is, notwithstanding anything contained in any contract. This section is pressed into service by the petitioner's counsel to contend that his client need deposit only the rent as contemplated under Sec. 8(2) since fair rent has not been fixed. Sec. 8(2) also provides that fair rent cannot exceed more than 15% the monthly rent on the basis of which the property tax or house tax for the building, prevailing two years immediately before the date of the application, was fixed.

(3.) To accept the petitioner's contention would cause disastrous consequences. I can summarily dismiss this C.R.P. on the short ground that this question was not raised before any of the authorities below, and also on on the ground that the rent fixed in this case is not for the building alone but for the building and furniture. Even so, I would in passing refer to the contention raised with reference to section 18(2) and its impact on section 11 (2) of the Act. I have no hesitation to hold that section 8(2) of the Act does tat control section 11. Sec. 11 is a self-contained section. The Rent Control Court has to order evication on being srtisfied after giving the tenant treasonable opportunity of showing cause against the application, that the tenant has not paid the rent stipulated in section 11(2)(b). Sub-section 2(c) restricts the right of the landlord to execute the order for eviction and permits the tenant to avert the danger of eviction by making the deposit of arrears of tent with interest and costs of proceedings. This is an enabling provision forking to the detriment of the landlord and to the benefit of the defaulting tenant. This sub-section has to be very strictly construed. Non-payment of rent under the General Law, operates as forefeiture against the tenant and the landlord is at liberty to get back the property from such a tenant. The Act, which is an ameliorative piece of legislation, has under section 11 given a wide concession to a defaulting tenant, to avert the order of eviction to be passed against him by making the deposit of arrears of rent. The expression in sub-union 11(2)(c) is important and has to be taken note of and that is,