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2018 ICO 2068

18-07-2018
High Court of Kerala

O.P. (RC) No. 161 of 2017

Justice K Harilal, Justice Annie John

Gopala Panicker Baiju & Anr ( Represented by, V G Arun (Adv.) & Indulekha Joseph (Adv.) & Neeraj
Narayan (Adv.) )

Vs.

Mallika ( Represented by, V Suresh (Adv.) & G Sudheer (Adv.) )

Equivalent Citations : 2018 (5) KHC 95

Referred Citations : 2006 ICO 7020,1958 ICO 148,2017 ICO 963

Headnotes :-

A. Kerala Building (Lease and Rent Control) Act, 1965 – Sections 12 and 9 – “Admitted arrear” – The
word “admitted arrears” is not defined in the Act, but proceedings under Section 12 can be invoked
against the tenant only, when arrears of rent is admitted. The dictionary meaning of 'admit' is 'to
accept or to agree that something is true'. So, 'admitted arrears' mean and intend 'agreed amount as
arrears'. ( Para 6 )

B. Indian Evidence Act, 1872 – Section 17 and Kerala Building (Lease and Rent Control) Act, 1965 –
Sections 12 – Admission –The meaning given to the word “admission” in the Evidence Act can be
adopted to find out the admitted arrears of rent also. ( Para 6 )

C. Kerala Building (Lease and Rent Control) Act, 1965 – Section 9 - The rent receipt is a statutorily
accepted substantive evidence from which the period of default can be inferred indirectly. ( Para 7 )

D. Kerala Building (Lease and Rent Control) Act, 1965 – Sections 12 and 9 – For the determination of
a petition under Section 12 of the Act, it is permissible to require production of rent deed by the
landlord and the rent receipt or document mentioned in Section 9(2) of the Act by the tenant. These
materials would obviously show the admitted arrears of rent, without conducting any enquiry or
adjudication. ( Para 7 )

E. Kerala Building (Lease and Rent Control) Act, 1965 – Sections 12 and 9 – The tenant cannot be
allowed to wriggle out from the statutory liability, under section 12 of the Act, by a blank denial in his
counter statement or objection to the application filed under section 12 of the Act, where the rent deed
and receipts would quantify an amount, as admitted arrears of rent, from the admissions therein; but
otherwise, the determination empowered with the Rent Control Court contemplated under section 12
(1) of the Act would come to an end, on a bare denial of the tenant and thereby the purpose of section
12 of the Act itself would be defeated. ( Para 9 )

F. Kerala Building (Lease and Rent Control) Act, 1965 – Sections 12 and 9 – Failure to pay rent can be
a ground for eviction. ( Para 10 )

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G. Kerala Building (Lease and Rent Control) Act, 1965 – Sections 9 and 12 – Terminology 'all arrears
of rent' used in Section 12 includes all arrears of rent includes and interest also. ( Para 12 )

JUDGMENT
K. Harilal, J.
1. The petitioners herein are the tenants and they are the respondents in R.C(OP).No.2/2014 on the files of
the Rent Controller/ Principal Munsiff Court, Neyyattinkara. The respondent herein is the landlady and she
is the petitioner in the aforesaid R.C(OP). The landlady filed the aforesaid Original Petition under Section
11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (Hereinafter referred to as, 'the Act')
seeking an order of eviction of the tenants herein from the petition schedule building. Subsequently, the
landlady filed a petition under Section 12 of the Act, seeking an order directing the tenants to deposit the
admitted arrears of rent. According to the landlady, the rent was due from 01.10.2013 @Rs.2,00,000/- for 11
months. It is also averred that the landlady and the tenants entered into a lease agreement on 07.12.2011,
agreeing Rs.2,00,000/- as rent for the petition schedule shop for 11 months from 01.11.2011 and another 2
lakhs was also agreed for the subsequent 11 months, besides one lakh as the earnest money deposit for the
petition schedule building. However, the landlady has received only Rs.4,00,000/- towards the rent for the
period from 01.10.2011 to 01.10.2013. The rent was in arrear from 01.09.2013 till the date of filing of the
petition and the total arrears of rent due from the tenants would come to Rs.5,00,000/-.
2. The tenants filed an objection denying the allegation that the rent was in arrears and the landlady is
entitled to get Rs.5,00,000/- as arrears of rent from the tenants. According to the tenants, no amount was due
from them as arrears of rent. That apart, the tenants had spent more than Rs.3,00,000/- for renovation of the
building and the landlady is liable to adjust the said amount towards rent. Thus, there is no admitted arrears
of rent. After considering the rival contentions, the court below passed the impugned order directing the
tenants to deposit the rent that fell in arrears with effect from 01.09.2013 to 29.08.2017 with 6% interest till
the date of realization @Rs.2,00,000/- per each completed 11 months from 01.09.2013. The aforesaid
findings, whereby the court below allowed the application under Section 12 of the Act, are assailed in this
OP(RC).
3. Heard the learned counsel for the tenants and the learned counsel for the landlady.
4. The sum and substance of the argument advanced by the learned counsel for the tenants is that the tenants
have not admitted any amount as arrears due to the landlady in the objection to the petition, filed under
Section 12 of the Act. Therefore, there is no admitted arrears falling under Section 12 of the Act. Unless the
tenant himself admits, in the objection, to the petition under Section 12 of the Act or in the counter statement
that any amount is due to the landlord, as arrears of rent, there cannot be any admitted arrears of rent. In
short, the simple denial of the tenant would absolve him from the liability to deposit the admitted arrears
under Section 12 of the Act.
5. Here arises the question, can the tenant be absolved from the liability, to deposit the admitted arrears of
rent, on a blank denial by him, that no amount is due to the landlord, as arrears of rent, in his counter
statement or objection to the petition filed by the landlady, under Section 12 of the Act? It stands settled by
this Court that the deposit, contemplated under Section 12, is not the amount, which is found to be due from
the tenant, after adjudication of the dispute between the landlord and the tenant, as to the actual amount due
as arrears of rent to the landlord. It is impermissible for the Rent Control Court or the Appellate Authority,
as the case may be, to have an adjudication regarding the arrears of rent, as envisaged under Section 12(1) of
the Act, by conducting an enquiry. In the above context, the questions that emerge for consideration are
given below:
(1) What does the expression “arrears of rent admitted by the tenant” mean and intend, under
Section 12 of the Act? For brevity, the said wording can be called as 'admitted arrears'.

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(2) Can a tenant be absolved from the liability to deposit the admitted arrears under Section
12(1) of the Act, on a blank denial that no amount is due to the landlord or on a positive
assertion that he does not admit any amount, as arrears of rent due to the landlord, in his
counter statement or objection to the petition filed by the landlord under Section 12 of the Act,
where admissions, as to the rate of rent and period of default, are evident from the rent deed
and rent receipts?
(3) Should the admission of default in payment and the quantum of admitted arrears come by
express words from the tenant himself in the objection or counter statement filed in the rent
control proceedings itself to pass an order under Section 12(i) of the Act?
(4) Is it permissible to require the landlord and the tenant to provide the rent deed and the rent
receipt respectively and quantify the admitted arrears of rent from the admissions therein,
unless there is anything to the contrary in the rent deed?
6. The word “admitted arrears” is not defined in the Act, but proceedings under Section 12 can be invoked
against the tenant only, when arrears of rent is admitted. The dictionary meaning of 'admit' is 'to accept or to
agree that something is true'. So, 'admitted arrears' mean and intend 'agreed amount as arrears'. How can the
'agreed amount as arrears' be determined? The Act does not distinguish the word 'admitted' from the
meaning given to the word 'admission', envisaged under Section 17 of the Indian Evidence Act. Therefore,
we are of the opinion that the meaning given to the word “admission” in the Evidence Act can be adopted to
find out the admitted arrears of rent also. According to Section 17 of the Indian Evidence Act, an admission
is a statement, [oral or documentary, contained in electronic form], which suggests any inference as to any
fact in issue or relevant fact which is made by any persons, under the circumstances mentioned in Sections
18 to 20 of the Act. As per Section 18 of the Act, the statement made by the parties to the proceedings or by
an authorised agent are admissions. In Bhogilal Chunilal Pandya v. State of Bombay AIR 1959 SC 356 ::
1958 ICO 148, the Supreme Court held that, statement only means “what is stated”. According to Taylor on
evidence S.804, the recitals in a document are also admission of the maker. Therefore, the admitted arrears
of rent, contemplated under Section 12(1) of the Act, need not be an admission in the rent control
proceedings itself and it cannot be insisted that the acceptance of the arrears or the quantum of admitted
arrears of rent should come by the express words from the tenant himself in his counter statement in the
RCP or in the objection to the application, filed under Section 12 of the Act by the landlord. But, it can be
inferred from any document containing admission, as to the rate of rent, and period of default, made by the
tenant.
7. The relevant factors, from which “arrears of rent”, can be inferred are the rate of rent and period of
default. Normally, the rent deed executed by the tenant is a document which contains admission as to the
rate of rent made by the tenant. The periodical enhancement in the rate of rent is evident from the rent
receipts, in case the rent deed is not current. Similarly, the rent receipts, postal receipts or bank records,
contemplated under Section 9(2) of the Act, produced by the tenant, are the documents which would suggest
the period for which rent is paid. According to Section 9(1) of the Act, the tenant is entitled to get receipt, on
payment of rent and in case of refusal, an alternative remedy for payment of rent is also provided in sub
section (2) of Section 9 of the Act. Therefore, a tenant cannot be heard to say that landlord refused to issue
receipt, on payment of rent. The rent receipt is a statutorily accepted substantive evidence from which the
period of default can be inferred indirectly. According to Taylor on evidence, S.800 an admission may be
direct or indirect, express or implied. Therefore, the rent receipts, money order receipts and other bank
records, provided under Section 9 of the Act, are documents containing admission which would suggest an
inference indirectly, as to the period of default also. 'Admitted arrears of rent' has to be understood and
construed in conformity with statutorily recognized payment only. Therefore, for the determination of a
petition under Section 12 of the Act, it is permissible to require production of rent deed by the landlord and
the rent receipt or document mentioned in Section 9(2) of the Act by the tenant. These materials would
obviously show the admitted arrears of rent, without conducting any enquiry or adjudication.

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8. In this context, it is to be borne in mind that any kind of set off or adjustment towards arrears of rent
cannot be accepted, while considering an application under Section 12 of the Act, as such counter claims
require enquiry and adjudication. Neither Section 11(2)(b) nor Section 12 recognises or permits any kind of
set off, adjustment or counter claim by the tenant towards arrears of rent or admitted arrears. The enabling
provision which permits set off towards rent is Section 17(2) of the Act and the same is permissible, where
an order to that effect is passed by the Accommodation Controller, on satisfaction of the failure on the
landlord to attend to maintenance and necessary repairs of the building.
9. Thus, we conclude that the admitted arrears is an amount that can be quantified by the Rent Control Court
from the rent deed produced by the landlord and the receipts or documents specified under section 9 of the
Act, evidencing payment of rent, produced by the tenants, unless the rent deed contains anything to the
contrary. To sum up, the tenant cannot be allowed to wriggle out from the statutory liability, under section
12 of the Act, by a blank denial in his counter statement or objection to the application filed under section 12
of the Act, where the rent deed and receipts would quantify an amount, as admitted arrears of rent, from the
admissions therein; but otherwise, the determination empowered with the Rent Control Court contemplated
under section 12 (1) of the Act would come to an end, on a bare denial of the tenant and thereby the purpose
of section 12 of the Act itself would be defeated.
10. In the instant case, the lease agreement dated 07.12.2011 whereunder the tenancy commenced has been
produced before the court below and as per the said rent deed, the tenancy commenced from 07.12.2011 and
the tenants herein agreed to pay Rs.2 lakhs as rent for the petition schedule shop room for 11 months from
01.11.2011 and another 2 lakhs for subsequent 11 months. Where the rate of rent stands undisputed or
evidenced by the rent deed, the admitted arrears, if any, can be deduced from the rent receipt or any other
material, evidencing payment of rent produced by the tenant. In such cases, mere denial of admitted arrears
will not absolve the tenant from the liability under Section 12 of the Act and he cannot escape from the
summary order of eviction, on his failure to pay the admitted arrears quantified by the court under Section
12(i) of the Act. It is not disputed that the tenants had paid a total amount of Rs.5 lakhs to the landlady as
per the said agreement and out of that 5 lakhs, Rs.1 lakh is the earnest money deposit for the petition
schedule building. So, we find that the tenants had already paid the rent up to 01.09.2013 and the rent was in
arrears from 01.09.2013. Admittedly, no amount had been paid to the landlady other than the amount which
was paid at the time of commencement of tenancy on 07.12.2011. In other words, there was no subsequent
payment, for arrears of rent due after 01.09.2013. No document has been produced to prove otherwise. Thus,
admittedly, the rent was in arrears from 01.09.2013. The present application was filed on 29.08.2017. In the
absence of payment of any amount towards arrears from 01.09.2013, the Rent Control Court is justified in
finding that the admitted arrears is due from 01.09.2013.
11. In the above analysis, we further find that the Rent Control Court is justified in directing the tenants to
pay the arrears of rent with effect from 01.09.2013 to 29.08.2017 @Rs.2 lakhs per each completed 11
months with effect from 01.09.2013.
12. The next question to be considered is whether the Rent Control Court is justified in granting 6% interest
for the admitted arrears of rent due under Section 12 of the Act. According to the learned counsel for the
tenants, going by the scheme under Section 12 of the Act, the tenant is not liable to pay interest for the
admitted arrears of rent. The learned counsel further invited our attention to Section 12 (1) and pointed out
that the expression employed is “arrears of rent admitted only”. Per contra, the learned counsel for the
landlady cited the decision reported in Kuruvila v. Sainabha Saleh 2006 (4) KLT 138 :: 2006 ICO 7020 and
submits that the terminology 'all arrears of rent' used in Section 12 was interpreted by this Court in the said
decision and found that all arrears of rent includes interest also. The learned counsel for the tenants, per
contra, cited another decision of this Court in Jose P.O. v. Xavier and Another 2017(3) KHC 844 :: 2017
ICO 963 and submitted that this Court has unambiguously differentiated the scheme under Sections 11 and
12 and found that the schemes are entirely different and mutually exclusive.
13. We have meticulously gone through the decisions cited by the learned counsel for the tenants. As rightly
submitted by the learned counsel for the tenants, in Jose's case (supra), this Court has meticulously

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considered the aim and object of Section 12 and compared it with the scheme provided under Section 11 of
the Act. But, we further find that in the aforesaid decision, the question whether the expression 'arrears of
rent' includes interest also was not considered. But, going by the decision in Kuruvila's case (supra), we
further find that in the said decision, this Court considered the question whether the terminology “all arrears
of rent” admitted by the tenant includes interest on such arrears and held as follows :-
“The above statutory provision that the tenant who commits default in payment of the rent
within the stipulated time as indicated above, will be liable to pay or tender the rent with
interest at 6% per annum and postal charges incurred in sending the notice. Failure to pay the
monthly rent results in a recurring default or liability. Further, the liability to pay interest on
such default is statutorily mandated. Thus, so long as the tenant keeps the rent in arrears, his
liability to pay interest till its payment or tender becomes a statutory obligation. Therefore, the
failure to pay/ deposit the rent in arrears, will entail the liability to pay interest thereon. Thus,
the terminology “all arrears of rent” used in S.12 will undoubtedly include interest on such
arrears. In that view of the matter, we have no hesitation to hold that the tenants will be liable
to pay or deposit the arrears of rent with interest to avoid an order under S.12 of the Act.
14. Therefore, we find that the Rent Control Court is justified in awarding interest at 6% also for admitted
arrears of rent under Section 12 of the Act. We do not find any reason to interfere with the impugned order
under challenge. This order will stand dismissed. The learned counsel for the tenants sought for some time
to pay the arrears of rent.
The learned counsel for the landlady submits that a reasonable time can be given to the tenants to pay the
arrears of rent due under the impugned order.
Having regard to the facts and circumstances of the case, the tenants are given 3 months' time to pay the
amount due under the impugned order under challenge.
--- End ---

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