IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 RP.No. 162 of 2010 IN CRP. NO.2824/02 -------------------------- AGAINST THE JUDGMENT IN CRP.2824/2002 Dated 04/11/2009 .................... REVIEW PETITIONER(S): RESPONDENT ------------------------------------------- T.K. BABU, S/O. KRISHNANKUTTY, THAYYIL HOUSE, KONGORPPILLY, PARAVUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.N.K.MOHANLAL RESPONDENT(S): REVISION PETITIONERS ----------------------------------------------- 1. JOSEPH @ SIJU, S/O. LATE MATHEW, MOOLAN HOUSE, KONGORPPILLY, PARAVUR TALUK, ERNAKULAM DISTRICT, REPRESENTED BY POWER ATTORNEY HOLDER HIS MOTHER MARY MATHEW, MOOLAN HOUSE KNGORPPILLY. 2. JOHN @ SIBI, S/O. LATE MATHEW, MOOLAN HOUSE, KONGORPPILLY, PARAVUR TALUK, ERNAKULAM DISTRICT. REPRESENTED BY POWER OF ATTORNEY HOLDER HIS MOTHER MARY MATHEW, MOOLAN HOUSE, KONGORPPILLY. THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 05/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K. SURENDRA MOHAN , JJ. ------------------------------------------ RP. No. 162 of 2010 IN CRP. No. 2824 of 2002 ------------------------------------------- Dated this the 5th day of March, 2010 O R D E R Pius C. Kuriakose, J. The tenant respondent in CRP. 2824 of 2002 seeks review of our in order allowing the civil revision petition and ordering eviction against him on the ground under sub- section (3) of Section 11. Though several grounds are raised in the memorandum of review, Sri.N.K. Mohanlal, the counsel who has filed the RP on behalf of the review petitioner would urge before us that the revision petitioner's former counsel Sri.G.Balamuraleedharan had relinquished the vakalathnama executed by the review petitioner in his favour on 2-11-2009 but handed over the case bundle to the review petitioner only on 3-1-2010. According to him, Sri. Balamuraleedharan is to be blamed also for not giving correct information to the review petitioner as to what transpired in this court including the decision taken by this RP.162/10 - 2 - court in the CRP. It is alleged that the former counsel did not bring to the notice of this court several relevant subsequent events of other buildings becoming available with the landlord. As a result prejudice has been occasioned to the review petitioner. Mr.Mohanlal would submit at the Bar that the petitioner was never informed about the appointment of a commission by this court for the conduct of a local inspection. According to Mr. Mohanlal, the review petitioner is prepared to take out a commission now. As a last request Mr. Mohanlal sought for some more time to surrender the premises. 2. The submissions of Mr.Mohanlal were resisted by Sri.M.A.Abdul Hakkim. Mr. Hakkim submitted that though it is true that Sri.Balamuraleedharan was not present on 4-11- 2009 when the order was pronounced, he had argued the review petitioner's part fully on 29-10-2009 and on that day considering assertion of Sri.Balamuraleedhara that building bearing door Nos.416/2 and 417/2 of Alangad Panchayat RP.162/10 - 3 - continued to be under the vacant possession of the landlords and his submission that an Advocate Commissioner can be immediately deputed to have a local inspection, this court appointed Advocate Smt.Lakshmy Rajan as Commissioner. Mr.Hakkim submitted that the review petitioner did not co-operate with the Advocate Commissioner and therefore the Advocate Commissioner filed a report stating that she was unable to execute the commission order. Mr. Hakkim further submitted that with the obvious objective of avoiding personal embarrassment Mr.Balamuraleedharan kept away from the court on 4-11- 2009. The court however, in exercise of revisional jurisdiction under Section 20 thoroughly examined the entire records in the case including the records which were handed over to this court on 29-10-2009 by Mr. Balamuraleedharan himself and came to the conclusion that there was justification for invoking revisional jurisdiction and ordering the eviction. According to the learned counsel, no RP.162/10 - 4 - ground is made out for invocation of this court's jurisdiction for review of the judgment. 3. We have very anxiously considered the rival submissions addressed at the Bar. We are not at all impressed by the submission of the learned counsel for the petitioner that Sri.Balamuraleedharan, the counsel who was previously appearing for the review petitioner had issued a no objection letter to the review petitioner on 2-11-2009 and that the case bundle was handed over by him only on 3- 1-2010. Significantly, this review is filed by the review petitioner not through Sri.Balamuraleedharan, but by his newly engaged counsel. The only issue that was contentious in this case was whether the landlord was in vacant possession of other buildings as alleged by the tenant necessitating assignment of special reasons as envisaged by the first proviso to sub-section (3) of Section 11. We appointed Advocate Commissioner for local inspection after hearing Sri.Balamuraleedharan fully in the RP.162/10 - 5 - CRP itself. Our order dated 29-10-2009 will show that his stand on that day was that he has no objection in this court deputing an Advocate Commissioner. It was accordingly that we deputed the Advocate Commissioner and posted the case to 3-11-2009. On that day Advocate Commissioner appeared in person and told us that Sri.Balamuraleedharan did not render any co-operation to her in the matter of conducting the inspection and hence her inability to conduct the inspection. It was in the backdrop of all these and noticing the absence of Mr.Balamuraleedharan on 3-11-2009 that we posted the CRP to 4-11-2009 and decided the CRP by the order which is sought to be reviewed. Annexures A1 series and A2 series which are certified copies of property tax assessment registers and photographs were in fact shown to us across the Bar by Sri.Balamuraleedharan on 29-10-2009. Paragraphs 8 and 9 of our order will show that we reappraised the evidence to the extent of determining whether the inference by the Appellate Authority on the RP.162/10 - 6 - decision taken by the Rent Control Court was justified. In exercise of revisional powers of this court under section 20 only did we decide the CRP in the way we said. No ground is made out for invocation of the powers for review which are circumscribed by rule 1 of Order 47 CPC and Section 114 of the same Code. The RP is liable to fail and we dismiss the same. 4. Mr.Mohanlal's request for further time is very stiffly opposed by Mr.Hakkim. He submitted that substantial amounts are due by way of arrears of rent and that the rent that fell due before the RCP was instituted in 1998 has not been paid. We notice that order of eviction was passed only on the ground of bona fide need for own occupation. However, it is the statutory obligation that the tenant shall pay rent that falls due subsequent to the commencement of proceedings. Hence we are inclined to grant time of three months sought for by the review petitioner, i.e., till 15-6- 2010 only subject to the following condition. RP.162/10 - 7 - (1) The review petitioner shall file an affidavit before the execution court undertaking to give peaceful surrender of the building to the respondent landlord on or before 14-6- 2010. (2) The review petitioner shall pay rent at the rate of Rs.200/- per mensem that has fallen due since January 1998 less any amount paid during the pendency of the proceedings before the Rent Control Court and the Appellate Authority and this Court within one month from today. If it is revealed that the conditions incorporated above are complied with the E.P. will be adjourned to 16-6-2010. The affidavit shall be filed within two weeks from today. PIUS C.KURIAKOSE, JUDGE P.K.SURENDRA MOHAN, JUDGE ksv/-