MUHAMMEDKUTTY Vs. AHAMEDKUTTY
LAWS(KER)-1978-6-14
HIGH COURT OF KERALA
Decided on June 09,1978

MUHAMMEDKUTTY Appellant
VERSUS
AHAMEDKUTTY Respondents

JUDGEMENT

- (1.) The revision petitioner is the respondent in a petition for eviction under S.11(2) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The building which was the subject matter of the petition was taken on rent by the petitioner from one Ali, the father of respondents 1 to 5 here and the grandfather of respondents 6 to 10. It is the admitted case that due to the pendency of certain proceedings in the civil courts, there was default in payment of rent from 1961. R.C.O.P. 22/73 was filed by the landlord for eviction of the revision petitioner on the ground of arrears of rent. A contention was raised that the tenant was not liable to pay rent prior to the three years preceding the petition. The Rent Control Court upheld the contention. A conditional order for eviction was passed granting a month's time for deposit of arrears of rent. Aggrieved by the order refusing rent beyond the period of three years, the respondent landlord preferred C.M.A. 7 of 1974 before the Subordinate Judge, Ottappalam. The Subordinate Judge allowed the appeal and held that the tenant was liable to pay the full arrears including the portion thereof which had become barred for getting the order of eviction vacated. The tenant preferred C.R.P. 11/75 before the District Court, Palghat challenging the above order. The District Court confirmed the order of the Appellate authority. The objection regarding sufficiency of the notice to quit, though taken, was overruled by the Rent Control Court and also in appeal and revision. It does not arise for consideration by this Court. The Appellate Authority and the District Court omitted to make mention of any extended period within which the tenant could deposit the arrears of rent. In the present revision petition, the tenant petitioner has taken up the following points: "(1) Under the general law, a landlord is entitled to receive only arrears of rent for three years. The portion of the rent which fell due prior to the period of three years has already become barred and the landlord is not entitled to recover the same for getting the order of stay vacated. (2) The Appellate authority having modified the order of the Rent Control Court and having found that the petitioner should pay an enhanced amount by way of arrears of rent should have allowed the tenant time for deposit of the full arrears".
(2.) S.11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 directs that the Rent Control Court shall make an order for eviction of the tenant in cases where the tenant has not paid or tendered the rent due by him in respect of the building within the time specified in the section. S.11(2)(b) does not make mention of arrears of rent. It is clear that every time there is default to pay the rent due within the time specified, the landlord becomes entitled to get an order of eviction in his favour. It is only S.11(2)(c) that makes mention of deposit of arrears of rent. Here again, it is not specifically mentioned that for getting the order of eviction vacated, the tenant should deposit the whole arrears including the portion which is barred or is otherwise irrecoverable. In the absence of special mention about the deposit of barred arrears of rent, whether the statute contemplates deposit of such arrears as a condition for vacating the order of eviction has to be decided on general principles.
(3.) S.11(2)(b) is in the nature of forfeiture of tenancy for non payment of rent S.11(2)(c) provides relief against forfeiture similar to that contained in S.114 of the Transfer of Property Act. Under S.114 of the Transfer of Property Act, where a lease of immovable property is determined by forfeiture for nonpayment of rent and if at the hearing of the suit for ejectment, the lessee pays or tenders the rent in arrear, the court may in lieu of making a decree for ejectment pass an order relieving the lessee against forfeiture. The expression 'rent in arrear' in S.114 has been interpreted by the different High Courts to take in even time barred arrears. In Vasudeva v. Krishna Udpa ( ILR 44 Mad. 629 ) it was held that though in a suit for rent, the landlord cannot recover arrears for more than three years, yet in a suit for ejectment by the landlord on the ground of forfeiture of the lease owing to the nonpayment of rent, the court can relieve the tenant against the forfeiture only on condition of his paying the full arrears of rent, though it is for a longer period than three years. The High Court observed: "The principle is that under the Limitation Act only the remedy is barred and not that the right of the landlord to rent beyond the period specified in the Act is extinguished." See also Vellathi v. K. K. Thayammal ( AIR 1958 Mad. 232 ), Dhurrumtolia Properties v. Dhunbai ( AIR 1931 Cal. 457 ) and Narsing Das v. Peremshwari Das (AIR 1962 All 65). In Dhurrumtolia Properties v. Dhunbai (AIR 1931 Cal. 457) Mitter, J. has explained how the provision relating to relief against forfeiture happened to be enacted: "The true ground of the relief against penalties is from the original intent of the case where the penalty is designed only to secure money, and the Court gives him all that he expected and desired. This was pointed out in the leading case of Peachy v. The Duke of Somerset (1724 (1) Str. 447 = 2 Wh. and Tud. 979). In notes to that leading case, the learned editor points out that the result of the examination of the authorities show that from a very early period, equity would, at any indefinite time after the tenant had incurred forfeiture and had been ejected for non payment of rent at a particular time under the stipulation in his lease, relieve him upon his paying to the lessor the rent accrued due, interests and costs; upon this principle that, as the right of entry was intended merely as security for the rent, the lessor thereby received full compensation and was put in the same situation as if the rent had been paid to him when it was originally due." "The purpose of this section", according to Beg, J. in Narsingh Das v. Permeshwari Das (AIR 1962 All. 65). "appears to be extend a special indulgence in favour of a tenant who is prepared to purge himself of his conduct as a persistent defaulter by making an honest offer to clear off his entire liability. His unconditional readiness to wipe off his legal dues is, therefore, made a condition precedent to his prayer that the Court might invoke this section in his favour. A more reasonable construction of this section would, therefore be to interpret the word "rent" in such a manner as to include in it the entire amount which the tenant would be liable to pay to the landlord by way of rent upto the date of tender. In other words, his liability for rental dues will be determined on the supposition that he had continued to remain as tenant and the forfeiture of his rights following the purported determination of his tenancy had not taken place.";


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