IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 RCRev..No. 339 of 2007() ------------------------ RCA.144/2006 of RENT CONTRL APPELLATE AUTORITY, KOZHIKODE I.A. 1799/2006 IN RCP.16/1997 of RENT CONTROL COURT, KOZHIKODE-I .................... REVISION PETITIONERS/ APPELLANTS/PETITIONERS: ------------------------------------------- 1. PANKAJAM, W/O.P.BALANANDAN, AGED 60 YEAR PAKKATH VEEDU, PRO.WELL SHINE AUTO GARAGE NO. 4/1018, GANDHI ROAD, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK. 2. SREEJITH, S/O.P.BALANANDAN, -DO-, -DO-. 3. SREEJESH, S/O.P.BALANANDAN, -DO-, -DO-. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA SMT.P.RANI DIOTHIMA RESPONDENTS: RESPONDENT/RESPONDENTS: -------------------------------------- 1. P.K.KOYAKUTTY, S/O.ALAVI HAJI, HEAD OF THE FAMILY AND MANAGER, ANAKKULAM ELAYANALI PARAMBU, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 2. SREEJA, D/O.P.BALANANDAN, PAKKATH VEEDU, GANDHI ROAD, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK. ADV. SRI.JACOB ABRAHAM FOR R1 ADV. SRI.ROY JOSEPH FOR R2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29/09/2010, ALONG WITH RCR NO. 340 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C KURIAKOSE & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.C.R. NOS. 339 & 340 OF 2007 = = = = = = = = = = = = = = = = DATED THIS, THE 29TH DAY OF AUGUST, 2010. O R D E R P.S. Gopinathan, J. The legal heirs of the respondent in R.C.P. 16 of 1997 on the file of the Rent Controller (Principal Munsiff -1, Kozhikode) are the revision petitioners herein. The first respondent herein instituted the above petition seeking an order of eviction under Section 11(2)(b) and 11(3) of the Kerala Building (Lease & Rent Control) Act, with a plea that the original tenant had kept the rent of the building in arrears and that the petition schedule building is required for the bona fide need of the brother of the first respondent for starting a business. 2. After due enquiry, the Rent Controller arrived at a finding against the first respondent and consequently, the petition was dismissed. During the pendency of the appeal therefrom, the original tenant died and his legal heirs were impleaded as Respondents 2 to 5. On appeal, the Appellate Authority reversed the finding of the Rent Control Court and allowed the petition on both the grounds. Aggrieved by the above judgment, the revision petitioners herein along with the second respondent preferred CRP 1905 of 2001 before this Court. This Court, by order dated 17.6.2005, RCR Nos. 339 & 340/2007 2 confirmed the finding of the Appellate Authority regarding eviction under Section 11(2)(b). The bona fide need urged was also found in favour of the first respondent herein. But it was further noticed that it is just and proper to give an opportunity to the revision petitioners and the second respondent to adduce evidence regarding the entitlement/disentitlement for protection under the second proviso to section 11(3). Ultimately, the revision petition was allowed and the matter was remanded to the Rent Control Court for a fresh decision after affording opportunity to both sides to adduce evidence. The parties were directed to appear before the Rent Control Court on 25.7.2005. 3. Though the first respondent entered appearance before the Rent Controller, the revision petitioners and the second respondent failed to appear. Consequently, on 30.7.2005, the Rent Control Petition was allowed after setting the original tenant exparte. 4. On 10.4.2006, the revision petitioners filed three petitions as I.A. 1798 of 2006, I.A. 1799 of 2006 and I.A. 1800 of 2006. I.A. 1799 of 2006 was a petition to set aside the ex parte order. In filing that petition, there was a delay of 238 days and to condone that delay, I.A. 1798 of 2006 was filed. I.A. 1800 of 2006 was filed seeking an order to get the legal heirs of the deceased tenant impleaded in the proceedings as supplemental RCR Nos. 339 & 340/2007 3 respondents 2 to 5. In the affidavit accompanying the petitions I.A. Nos. 1799 of 2006 and 1798 of 2006, it was averred by the first petitioner that though the remand of the matter was informed to them by their counsel since she was not aware of the court proceedings and due to old age and consequential ailments, arrangements could not be made to enter appearance or to engage a lawyer and thus the exparte order was happened to be passed against the revision petitioners and the second respondent and that they came to know about the exparte order only when the Amin went to the premises for evicting them in pursuance to the order in E.P. 10 of 2006 and that unless the exparte order is set aside, they would be put to irreparable difficulties and hardships. With these pleadings, the revision petitioners sought for condonation of the delay in filing the petition to set aside the exparte order and also to implead the legal heirs of the deceased as additional respondents. 5. The first respondent filed counter statement in all the petitions stating that there is total lack of bona fides in filing the petitions, there is inordinate delay and that it is not at all warranted to implead any of the legal heirs of the deceased tenant. No evidence was let in by either party. After hearing either side, though IA. 1800 of 2006 was allowed by the Rent Controller, I.A. 1798 of 2006 and 1799 of 2006 were dismissed by a RCR Nos. 339 & 340/2007 4 common order dated 5.8.2006 on arriving at a finding that there is inordinate delay and that the delay was not properly explained. Aggrieved by the order dismissing I.A. Nos. 1798 of 2006 and 1799 of 2006, the revision petitioners preferred appeals as R.C.A. Nos. 143 and 144 of 2006. By a common judgment dated 16.10.2009, the Appellate Authority dismissed the appeals. Impugning the said common judgment, these revision petitions are filed. 6. We heard Smt. Preetha, learned counsel appearing for the revision petitioners and Sri. Jacob Abraham for the respondents and perused the records. Having heard the arguments advanced and perusing the records, we find that the first respondent, in fact, suppressed the factum of death of the original tenant before the Rent Controller and obtained an exparte order against the original tenant on 30.7.2005 ie. long after the death of the original tenant. The first respondent being the master of the petition before the Rent Control Court, he had got a duty to see that the legal heirs of the deceased tenant are brought on record, though there was failure on the side of the revision petitioners to appear before the trial court. Such laches are on the part of the 1st respondent. In fact the exparte order sought to be set aside is a nullity as it is against a dead person. It is admitted from the Bar that the deceased tenant was running a workshop. The fact that the first RCR Nos. 339 & 340/2007 5 revision petitioner is an aged ailing lady and she was not accustomed with the court procedures is not at all disputed by the first respondent in his counter statement. First revision petitioner appears to be an aged and ailing rustic widow. The first respondent even did not care to file any counter affidavit denying the reasons stated in the affidavit accompanying, which according to us are sufficient uncontroverted reasons to allow the petition for setting aside the exparte order after condoning the delay. It is also pertinent to note that in the first round of revision before this Court, in CRP 1905 of 2001 this court remanded the case to the trial court so as to enable the tenant to adduce evidence regarding the benefit of the second proviso. The authorities below failed to appreciate all these circumstances, resulting miscarriage of justice. In the above circumstances, we find that in the interest of justice, it would be just and proper to give the revision petitioners an opportunity to avail the benefit given by this Court in the order dated 17.6.2005 in C.R.P. 1905 of 2001 on terms and for that purpose as well as for the reasons stated earlier, we find that the order impugned is to be set aside and the matter is to be remitted back to the Rent Control Court for giving an opportunity to the revision petitioners to adduce evidence regarding entitlement of the benefit of the second proviso to section 11(3). The inconvenience and delay caused to the 1st respondent RCR Nos. 339 & 340/2007 6 can be compensated. 7. Resultantly, we allow both these revision petitions. The order impugned of the authorities below are set aside and the applications I.A. 1798 of 2006 and 1799 of 2006 shall stand allowed. The delay in filing the petition I.A. 1799 of 2006 would stand condoned and the exparte order dated 30.7.2005 would stand set aside on the following condition. 8. The revision petitioners shall deposit/pay a sum of Rs. 12,000/- (twelve thousand) to the first respondent towards arrears of rent including interest and cost, within three weeks from today and produce receipt before the Rent Control Court failing which these revision petitions would stand dismissed. In the event of payment of the above amount, the parties shall appear before the Rent Control Court on 18.10.2010. 9. We notice that the rent of the petition schedule building is Rs. 225/-. It was fixed in 1981. It is ridiculously low and against ground realities. It is high time to fix a fair rent. It is submitted that the deceased tenant was running a workshop in the petition schedule building which is within the town. In the above circumstances, we find that the fair rent of the petition schedule building can be tentatively fixed at Rs. 1,500/- (Rupees one thousand and five hundred) with effect from 1.11.2010. The fair rent fixed tentatively shall be in force until the fair rent of the building is fixed RCR Nos. 339 & 340/2007 7 by the Rent Controller on an application by either of the parties. The parties are at liberty to apply for fixation of the fair rent before the Rent Controller. Transmit the records forthwith. PIUS C KURIAKOSE, (JUDGE) P.S. GOPINATAN, (JUDGE) P.S. To Judge knc/-