IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 RCRev..No. 85 of 2009() ----------------------- RCA.119/2006 of VI ADDL.DISTRICT COURT, ERNAKULAM RCOP.14/2004 of MUNSIFF COURT,MUVATTUPUZHA .................... REVISION PETITIONER (S): APPELLANT/1ST RESPONDENT: --------------------------------------------- P.G.SUBRAMANIAN, S/O.GANGADHARAN, AGED 53 YEARS, PUTHUSSERIKUNNEL HOUSE, EAST MARADY KARA, MARADY VILLAGE. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN RESPONDENT(S): RESPONDENTS/PETITIONERS 1 & 2 AND RESPONDENTS: ------------------------------------------------------------- 1. ELIAS, S/O.MATHAI, THAZHATHEPUNNATHOTTATHIL, AGED 72 YEARS, MUVATTUPUZHA TALUK, PIRAVOM VILLAGE, KAKKADU KARA, KAKKAD. 2. MRS.CHINNAMMA MATHEW, W/O.MATHEW, PUTHUKUNNATHU HOUSE, KARINGAZHAL KARA, KOTHAMANGALAM VILLAGE, CHERLADU P.O., KOTHAMANGALAM TALUK. 3. SARAMMA, AGED 68 YEARS, W/O.VARKEY, NIRAPPUKANDATHIL, KOOTHATTUKULAM KARA, KOOTHATTUKULAM. 4. ALEYAMMA, AGED 63 YEARS, W/O.REV.FR.JOSEPH, NEDUMATTATHIL, AMBALLOOR VILLAGE, KANJIRAMATTOM KARA. 5. ANNAKUTTY, AGED 60 YEARS, W/O.JOHN, ERALIL HOUSE, PIRAVOM KARA, PIRAVOM VILLAGE. 6. KUNJAMMA VARGHESE, AGED 58 YEARS, D/O.VARGHESE, MADAPPATTIL HOUSE, PUVELIL, NOW AT 1/2A INDIRA NAGAR, KOUNDAPALAYAM, COIMBATORE-2. RCR.NO.85/09 7. ABRAHAM, S/O.CHERIYAN, AGED ABOUT 56 YEARS, KARTHIDATHIL HOUSE, PIRAVOM VILLAGE. 8. AMMINI, W/O.JOHN, KALARIKKAPARAMBIL HOUSE, POONITHURA VILLAGE, CHITHRAPUZHA KARA, PRESENT ADDRESS: DR.AMMINI JOHN, SR.VET. SURGEON, 255, PALACE WARD, OODAYIL, THEVALLI P.O. 9. SALOMY, W/O.JOSEPH, AGED ABOUT 50 YEARS, II GRADE PROFESSOR, T.C.XVI/1493, JOSHINI JAGATHY, TRIVANDRUM. 10. PAULOSE, S/O.CHERIYAN, AGED ABOUT 48 YEARS, KARITHADATHIL HOUSE, PIRAVOM VILLAGE. 11. DR.ROY CHERIYAN, S/O.CHERIYAN, KARITHADATHIL HOUSE, PIRAVOM VILLAGE, PIRAVOM. 12. SUMA, W/O.JOSEPH, AGED ABOUT 44 YEARS, OLIKKAL HOUSE, MULAVOOR VILLAGE, PRESENT ADDRESS: SUMA JOSEPH, W/O.JOSEPH, PLOT NO.28, KETRON NAGAR, KOLAZHI P.O., TRICHUR DISTRICT. 13. ACHAMMA, WIDOW OF JACOB, AGED ABOUT 53 YEARS, KARITHADATHIL HOUSE, PIRAVOM VILLAGE. 14. LISSI, D/O.DECEASED JACOB AND W/O.GEORGE, AGED ABOUT 33 YEARS, CHITTIYAMKUDI HOUSE, DEVIKULAM TALUK MANNAMKANDAM, PRESENT ADDRESS: LISSY GEORGE, C/O.REJI CHERIYAN JACOB, P.B.NO.7058, MUTTRUB, MUSCAT S.O.OMAN, 15. RAJI, S/O.JACOB, AGED ABOUT 37 YEARS, KARITHADATHIL HOUSE, PIRAVOM VILLAGE, PIRAVOM. 16. SHAJI, S/O.DECEASED KARITHADATHIL JACOB, AGED ABOUT 32 YEARS, PIRAVOM VILLAGE, PIRAVOM KARA, PRESENT ADDRESS: SHAJI JACOB, C/O.CHERIYAN JACOB, P.B.NO.7058, MUTTRUB, MUSCAT, S.O.OMAN. 17. MEENA, W/O.BENNY AND D/O.DECEASED KARTHIDATHIL JACOB, AGED ABOUT 29 YEARS, MEPPURAM HOUSE, AIKKARANADU SOUTH VILLAGE, KADAYIRUPPU KARA, PRESENT ADDRESS: AIR TECHNICAL ASSIST, NATIONAL AIRPORT AUTHORITY, TRIVANDRUM. 18. CHINNAMMA, W/O.DECEASED JACOB, AGED ABOUT 60 YEARS, KARITHADATHIL HOUSE, PIRAVOM VILLAGE, PIRAVOM. RCR.NO.85/2009 19. BOBAN, S/O.DECEASED JACOB, AGED ABOUT 29 YEARS, KARITHADATHIL HOUSE, PIRAVOM VILLAGE PIRAVOM KARA. 20. SABU, S/O.DECEASED JACOB, AGED ABOUT 29 YEARS, KARITHADATHIL HOUSE, PIRAVOM VILLAGE, PIRAVOM KARA. 21. SUSSY, W/O.BABY AND D/O.DECEASED JACOB, CHEMMALA HOUSE, VAZHAKULAM VILLAGE, MRS.SUSSY BABY, C/O.C.V.BABY, C.1316, GRASION COLONY, KUMARAPURAM P.O., KARNATAKA. 22. JESSY, W/O.CHACKO AND D/O.DECEASED JACOB AGED ABOUT 32 YEARS, VALIYAMARAVATH HOUSE, MUVATTUPUZHA TALUK, RAMAMANGALAM VILLAGE, RAMAMANGALAM. 23. MATHEW K.V., S/O.DECEASED VARKEY, AGED ABOUT 53 YEAS, KARITHADATHIL HOUSE, PIRAVOM VILLAGE, PIRAVOM POST. 24. SARAMMA, W/O.ABRAHAM AND D/O.DECEASED KARTHIDATHIL VARKEY, KACHAPPILLIL HOUSE, MULANTHURUTHY KARA, MULANTHURUTHI P.O. 25. THANKAMMA, W/O.ABRAHAM, AGED ABOUT 52 YEARS, MANCHIMKARA HOUSE, AIKKARANADU NORTH VILLAGE, PATTIMATTOM KARA, PATTIMATTOM P.O. 26. SOSAMMA YOHANNAN, W/O.YOHANNAN, AGED ABOUT 65 YEARS, MANATHIKULATHIL HOUSE, PALAKKAD DISTRICT, MANNARKADU VILLAGE, KADAMANGALAM P.O., ALENELLOOR. 27. MRS.SARAMMA GEORGE, W/O.GEORGE, AGED ABOUT 61 YEARS, THENGALIL HOUSE, MUVATTUPUZHA TALUK, THIRUMARADY VILLAGE, OLIYAPURAM P.O. 28. MRS.ALEYAMMA VARGHESE, W/O.VARGHESE, AGED ABOUT 59 YEARS, KIYALIL HOUSE, MANEED VILLAGE, MANEED P.O. ADV. SRI.PAUL K.VARGHESE FOR R2 SRI.PAUL K.VARGHESE THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 02/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R .No. 85 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of April, 2009 ORDER Pius.C.Kuriakose, J. The tenant is the revision petitioner in this revision under Section 20 of the Kerala Buildings ( Lease and Rent Control) Act 1965. Impugned in this revision is the judgment of the Rent Control Appellate Authority, Ernakulam dismissing the rent control appeal preferred by the revision petitioner/tenant against the order of eviction which had been passed against him on the ground of clause (b) of Section 2 of Section 11 on the reason that application for condonation of delay caused in the matter of filing of the rent control appeal was already dismissed. 2. We have heard the submissions of Sri.Jaju Babu, learned counsel for the petitioner and also those of Sri.Paul.K.Varghese, learned counsel for the respondent/landlord. Extensive submissions were addressed before us by the learned counsel on either sides. We were taken through the orders passed in proceedings between the RCR.No.85/09 2 parties by various courts including the judgment of the Division Bench of this court in W.P.(C)No.17862/2007 against the order of delivery which had been passed by the execution court during the pendency of the rent control appeal. It was submitted by Sri.Jaju Babu that the order of eviction which was passed against the revision petitioner was only an order under Section 11(2)(b) which was not an absolute order of eviction and was liable to be vacated by making requisite deposit by the tenant. According to the learned counsel, the rent control appellate authority erred in virtually rejecting the rent control appeal on the ground of limitation when that authority was under the direction of this court to dispose of the rent control appeal on merits. 3. The submissions of Sri.Jaju Babu were stiffly opposed by Sri.Paul.K.Varghese. Drawing our attention to a catena of decisions including the judgment of the Full Bench of this court in Moideen Koya v. Kunhammed Haji ( 1999(2) KLT 646 (F.B.), Sri.Paul.K.Varghese submitted that when a very valuable right has accrued in favour of the landlord by operation of the law of limitation, the said right is not to be taken away lightly. It is obligatory on the part RCR.No.85/09 3 of a tenant/appellant to explain each day's of delay. No such explanation had been offered by the tenant before the rent control appellate authority. Learned counsel pointed out that the certified copy of the judgment which is impugned in this rent control revision was actually obtained by the revision petitioner about an year prior to the filing of the rent control revision. No convincing explanation whatsoever is offered by the revision petitioner through the affidavit which he has filed before this court. 4. In reply, Sri.Jaju Babu would submit that after the impugned judgment was passed by the rent control appellate authority virtually rejecting the appeal, the petitioner had moved the appellate authority itself by a review petition. Sine that review petition was being bonafidely prosecuted, this revision, on legal advice was filed only after the result of the review was known. 5. We have anxiously considered the rival submissions addressed at the Bar. Anenxure F judgment of this court in W.P.(C)No.17862/07 specifically directs the rent control appellate authority to dispose of the rent control appeal taking into account the RCR.No.85/09 4 deposit of Rs. 50,000/- made by the revision petitioner towards arrears of rent leaving to the appellate authority to determine what if any is the balance amount to be deposited by the revision petitioner. On a careful reading of Annexure F, it will be seen that the appellate authority has been directed to examine the merits of the appeal and if possible decide the issue finally after quantifying the amount to be paid by the revision petitioner for relief under Clause ( c ) of Sub Section (2) of Section 11. In the teeth of Annexure F, it is idle for the revision petitioner to contend that the appellate authority is justified in rejecting the appeal on the ground of delay. At the same time, we find considerable merit in the submission of Sri.Paul.K.Varghese that the delay which has been caused in the matter of instituting the rent control revision has not been convincingly explained by the revision petitioner. Though a separate application for condonation of delay is not necessary in the matter of petitions under Section 20, the revision petitioner is expected to offer convincing explanation and satisfy this court that he was prevented by sufficient reason from moving this court under Section 20 within the reasonable period of 90 days as settled by earlier RCR.No.85/09 5 decisions of this court. We therefore are inclined to condone the delay which has been caused in the matter of filing of the rent control revision and entertain this revision only on condition that the revision petitioner pays a sum of Rs. 5,000/- by way of costs to the respondent either directly or through his counsel in this court on or before 08/04/2009. 6. Sri.Jaju Babu assures us that the said amount will be paid readily on time. We accept that submission and are proceeding to consider the merits of the rent control revision. The eviction order which has been passed against the revision petitioner is under Section 11(2)(b). According to us, unlike eviction orders under other sub sections of Section 11, eviction order under Section 11(2)(b) is not an absolute order and such orders are liable to be vacated by the rent control court upon being satisfied that the entire arrears of rent with statutory interest is paid or deposited by the tenant. It is conceded before us by both sides on going by the allegation in the rent control petition the total arrears of rent inclusive of statutory interest as on 01/05/2009 will be Rs.70,000/- and that a sum of Rs. 50,000/- has RCR.No.85/09 6 already been paid. Thus if Rs. 20,000/- more is paid, the said amount will clear off the arrears of rent with interest due from the revision petitioner as on 01/05/2009. We are inclined to permit the revision petitioner to pay the balance amount of Rs. 20,000/- so as to enable him to have the order of eviction presently passed against him under Section 11(2)(b) vacated by the rent control court subject to what we are stating in the following paragraph. We are told that the petition schedule building is a room in the second floor of a commercial building situated in a very important area of Muvattupuzha Municipal town. The petitioner is a contractor and he is using the petition schedule building as his office. The contract rent of Rs. 300/- fixed about 18 years ago, according to us, is far below the prevailing market rate in Muvattupuzha town. We tentatively refix the monthly rent payable by the revision petitioner in respect of the petition schedule room at Rs. 600/- ( Rupees six hundred) prospectively from 01/05/2009. It is made clear that this tentative refixation is subject to the right of either party to move the appropriate court to have the fair rent of the building fixed. RCR.No.85/09 7 We direct the revision petitioner to pay the balance amount of Rs. 20,000/- ( Rupees twenty thousand) payable by him towards arrears of rent and interest and also to pay a sum of Rs. 5000/- ( Rupees five thousand) payable by way of costs to the respondent either directly or through his counsel in this court on or before 08/04/2009. Thereafter he is permitted to file an application before the rent control court under Section 11(2) (c ) and if that court notices receipt against payment of Rs. 20,000/- and Rs. 5,000/- as ordered by us, that court shall consider the said application favourably. The order of delivery will stand adjourned. The impugned judgment of the appellate authority is set aside subject to the above and the RCR is disposed of on the above terms. No costs. PIUS.C.KURIAKOSE JUDGE C.K.ABDUL REHIM JUDGE sv. RCR.No.85/09 8