IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 RCRev..No. 227 of 2007() ------------------------ RCA.53/2006 of DISTRICT COURT, KOTTAYAM RCP.29/2000 of PRL.M.C., KOTTAYAM .................... REVISION PETITIONER/RESPONDENT/ RENT CONTROL PETITIONER-LAND LADY -------------------------------------------------- JANAKI, W/O MANI ACHARI, KULANGARA MADATHIL VEEDU, THIRUVARPPU, THIRUVARPPU VILLAGE, KOTTAYAM. BY ADV. SRI.P.SANJAY SRI.A.PARVATHI MENON RESPONDENT(S)/APPELLANT/RESPONDENT IN RCP/TENANT ------------------------------------------------- T.K.SOBHA, D/O KUNJAN, TOTTUCHIRAYIL VEEDU, VELOOR KARA, VELOOR VILLAGE, KOTTAYAM. ADV. SRI.M.P.MADHAVANKUTTY THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No.227 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of May, 2009 ORDER Pius.C.Kuriakose, J. Under challenge in this revision filed by the landlady is the judgment of the rent control appellate authority vacating a summary order of eviction passed by the rent control court under Section 12(3) of the Rent Control Act. Eviction was sought inter alia on the ground of arrears of rent under Sub Section 2 of Section 11. The tenant through his objections denied the title of the landlady and alternatively contended that the allegations regarding arrears of rent is not correct. Noticing the denial of landlady's title, a preliminary issue was raised under Sub Section 1 of Section 11 as to whether the tenant's denial of the landlady's title is bonafide. After enquiry it was found by the rent control court that the denial was not bonafide. At that time the landlady filed I.A.No.3586/02 invoking Section 12 seeking orders directing payment of admitted arrears of rent and on failure passage of summary order of eviction. Considering that I.A., the Rent Control RCR.No.227/07 2 Court passed initial order on 28/05/2004 directing the tenant to pay all the arrears of rent admitted by him within one month and posted the case to 29/06/2004 obviously for payment or deposit of arrears of rent. On 29/06/2004 it was submitted to the court that I.A.No.1898/04 seeking a review of the order dated 28-09-2004 has been filed. On that submission, the case was adjourned to 14/07/2004. On 14/07/2004 both the I.As were considered together and the I.As were posted to 20/07/04. From 20/07/2004 the I.As were adjourned to the next date and on 21/07/2004 after hearing both sides I.A.No. 1898/04, an application styled as a review petition, but virtually for extension of time of one month in the matter of deposit or payment of arrears, was dismissed. The case was thereafter posted to 31/07/2004. From 31/07/2004 I.A.No. 3586/02 was adjourned to 16/08/2004 and thereafter to 2/09/04 and to 16/10/2004. In the meanwhile the tenant had preferred two rent control appeals, R.C.A.Nos. 29/04 and 30/2004 respectively. R.C.A.No. 29/04 was directed against the order dated 28/05/2004 in I.A.No. 3586/2002 and the other rent control appeal was directed against the order of the rent control court finding that the RCR.No.227/07 3 tenant's denial of the landlady's title is not bonafide. Both these rent control appeals were dismissed by a common order on 07/03/2005. Revision petitions were preferred by the tenants before this court as R.C.R.Nos. 324/05 and 325/05 against the judgment in R.C.A.No. 30/04 and R.C.A.No. 29/04. This court dismissed both the rent control revisions. A review petition was filed by the landlady against the judgment in R.C.R.No. 324/05 pointing out to this court that notwithstanding the pendency of the revision petitions, the rent control court had already passed summary order of eviction under Section 12 (3) on 2/04/2005 following the initial order dated 28/04/2004. Under the judgment this court granted two months time to the tenant to deposit the arrears of rent. The review petition was filed by the landlady being aggrieved by the grant of time to make deposit. The review petition was disposed of by this court making the following observation : “ We make it clear that grant of time for depositing the arrears of rent will not by itself invalidate the order passed under Section 12(3). It is made clear that the rights of parties are left open RCR.No.227/07 4 and this order will not prejudicially affect their rights.” 2. It is after this court passed the above order in the review petition that R.C.A.No. 53/06 was filed by the tenant against the summary order of eviction passed under Section 12(3) along with a petition for condoning the delay. Delay was condoned and the R.C.A. was considered on merits. The learned District Judge under the impugned judgment set aside the summary order of eviction dated 02/04/2005 passed by the rent control court in favour of the revision petitioner under Section 12(3) stating that the tenant did not receive sufficient opportunity for showing cause against passage of the summary order of eviction. Reliance was placed by the learned District Judge on the judgment of the Division Bench of this court in Pappali's case ( 1975 KLT 542). According to the learned District Judge opportunity was denied by the rent control court to the tenant to show cause against the summary order of eviction. 3. We have heard the submissions of Smt. Parvathy Menon.A., learned counsel for the petitioner and Sri.M.P.Madhavankutty, learned counsel for the respondent. We have RCR.No.227/07 5 carefully gone through the proceedings paper pertaining to the rent control petition. The proceedings on and after 28/05/2004 when the initial order under Section 12(1) was passed by the rent control court on I.A.No. 2586/02 till 02/04/2005 when the summary order under Section 12(3) was passed is extracted below: 28-05-04 Call on with I.A.No.3586/02. Respondent tenant directed to pay all the admitted arrears of rent within one month. Call on 29-06-04. Id/- Prl.Rent Controller 29-6-04 Call with I.A. 14-7-04 Id/- Prl.Rent Controller 14-7-04 Call with I.A.1898/04 20-7-04 Id/- Prl.Rent Controller 20-7-04 Call with I.A. 21-7-04 Id/- Prl.Rent Controller 21-7-04 I.A.1898/04 is dismissed Call on 31-7-1994 Id/- Prl.Rent Controller 31-7-04 Call on 16-8-04 Id/- Prl.Rent Controller 16-08-04 Call on 2-9-04 Id/- Prl.Rent Controller RCR.No.227/07 6 2-9-04 Call with I.A. 16-10-04 Id/- Prl.Rent Controller 16-10-04 Await records. Call on 14-12-04 Id/- Prl.Rent Controller 14-12-04 Await records. Call on 3-3-05 Id/- Prl.Rent Controller 3-3-05 Await records. Call on 1-4-05 Id/- Prl.Rent Controller 1-4-05 Records received. Perused the order in RCA.No.30/04 and RCA No.29/04. Heard. For orders. Call on 2-4-05. Id/- Prl.Rent Controller 2-4-05 All further proceedings stopped and the tenant is directed to put the landlord in possession of the building u/s. 12(3) of the Act. Vide separate order. Petition allowed u/s. 12(3) of the Act. Id/- Prl.Rent Controller 4. It is trite by now that after the initial order under Section 12 (1) directing the tenant to pay or deposit the arrears of rent admitted by RCR.No.227/07 7 him and the rent which has fallen due subsequent to the institution of the rent control petition is passed, if the tenant fails to deposit or pay the amounts within the time provided in the initial order, it is not necessary that the rent control court issues notice to the tenant to show cause against passage of summary order of eviction. Under Sub Section 3 of Section 12, it is the tenant's obligation to show cause against the passage of summary order of eviction and on his failure to show cause the rent control court will be justified in passing summary order of eviction. This in our view is clear from the language of Sub Section 3 of Section 12 itself. Therefore the question to be considered in this case is not whether the rent control court issued show cause notice or whether rent control court specifically granted opportunity to the tenant for showing cause, but the question is whether the tenant actually received opportunity for showing cause. In this context, it is to be noticed that the tenant who filed I.A.No.1898/04 which was practically an application for extension of time for making deposit did not question the correctness of the quantification of the admitted arrears by the rent control court. He did not dispute his liability to pay RCR.No.227/07 8 the arrears. He only wanted one month's time. Despite the elapse of one month's time sought for by him and despite several postings of the I.A. thereafter , he never made the payment or deposit nor did he show any cause. According to us, if he wanted to show cause, he could have shown the same on 31/07/04, 16/08/04 or 2/9/04 on which dates the entire records were before the rent control court. It was thereafter the records were transmitted to the rent control appellate authority in connection with R.C.A.No. 29/04 and 30/04. Whatever that be, this court by order in the review petition has made it clear that the permission granted to the tenant to pay the arrears of rent will not prejudice the right of the landlady in the event of a prospective challenge to the summary order under Section 12(3) which had already been passed. This means that the correctness of the summary order of eviction which was impugned before the rent control appellate authority should have been gone into by the appellate authority independently and without being influenced by the situation that this court granted two more months to deposit. The rent control appellate authority in our view has gone wrong in holding that the tenant did not RCR.No.227/07 9 get sufficient opportunity to show cause against the summary order of eviction. The view of the learned Appellate Authority is too technical to receive acceptance. The appellate authority is certainly right in saying that the gap between the date of the summary order of eviction under Section 12(3) and the posting immediately prior to that is just one day. The authority however failed to notice that prior to that there were several postings which could have been availed by the tenant to make the deposit or to show cause. The result of the above discussion is that the Appellate Authority's order is liable to be set aside. The same is set aside. The R.C.R. is allowed. The order passed by the rent control court under Section 12(3) is restored. But in the circumstances, the parties will suffer their costs. PIUS.C.KURIAKOSE JUDGE P.Q.BARKATH ALI JUDGE sv. RCR.No.227/07 10