IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 15TH JULY 2011 / 24TH ASHADHA 1933 RCRev..No. 267 of 2011() ------------------------ RCA.47/2010 of RENT CONTROL APPELLATE AUTHORITY , ERNAKULAM RCP.63/2007 of RENT CONTROL COURT, ERNAKULAM. .................... REVISION PETITIONERS)/ APPELLANT/RESPONDENTS/TENANT ----------------------------- GOULDEN JIJI MATHEW @ G.G.MATHEW, S/O.GEORGE MATHEW, 39/4954, PULIKKAL BUILDING, M.G.ROAD, ERNAKULAM. BY ADV. SRI.SANTHAN V.NAIR SRI.V.V.MITHUN RESPONDENT(S): RESPONDENTS/PETITIONER/LANDLORD -------------------------- 1. LATE P.A.JOHN, S/O.ANTHAPPAN, PULIKKAL HOUSE, M.G.ROAD, ERNAKULAM-16. 2. MOLLY JOHN, W/O.LATE P.A.JOHN, PULIKKAL HOUSE, M.G.ROAD, ERNAKULAM-16. 3. TONY JOHN, S/O.LATE P.A.JOHN, PULIKKAL HOUSE, M.G.ROAD, ERNAKULAM-16. 4. XAVIER JOHN, S/O.LATE P.A.JOHN, PULIKKAL HOUSE, M.G.ROAD, ERNAKULAM-16. ADV. SRI.N.C.JOSEPH FOR R2-4 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 15/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No. 267 OF 2011 ------------------------ Dated this the 15th day of July, 2011 O R D E R Pius C.Kuriakose, J. Under challenge in this revision petition filed by one of the legal heirs of the deceased tenant one George Mathew is the judgment of the Rent Control Appellate Authority dismissing the rent control appeal preferred by the original tenant against the order of eviction passed on the ground under sub section (3) of Section 11 on the reason that the appeal is preferred by a dead person. The learned Appellate Authority noticed under the impugned judgment that the tenant, who had purportedly preferred the rent control appeal had passed away as early as on 2/4/2010 and that the RCA was filed on 19/5/2010. 2. The ground raised by the revision petitioner, son of the appellant in the RCA, is that it is he who has been in physical occupation of the building and doing business as an auto consultant and that it was under a bona fide belief that the original tenant was alive and the appeal was preferred on the basis of instructions imparted, at the time when the Rent RCR.No.267/2011 2 Control Court passed the eviction order. 3. We have heard Sri. Santhan V.Nair, learned counsel for the revision petitioner and also Sri. N.C.Joseph, learned counsel for the landlords/respondents before the Rent Control Court and the Appellate Authority who took notice as directed by us. 4. Sri.Santhan V.Nair submitted that the petitioner, who is the legal heir of the deceased original tenant, should be allowed to come on record as the appellant in the RCA in substitution of George Mathew, the tenant who is shown as the appellant. Unless the revision petitioner is permitted to come on record as the appellant in the RCA, serious prejudice will be caused to the revision petitioner as under the impugned judgment the eviction order passed by the Rent Control Court stands confirmed. 5. Sri.N.C.Joseph, learned counsel for the respondents submitted that the impugned judgment of the Appellate Authority cannot be faulted as evidently the appeal was preferred by a dead person. The appeal preferred by a dead person is not an appeal in the eyes of law and the court below had no option other than to reject the same. As no infirmity, much less any illegality , irregularity or impropriety, as envisaged under Section RCR.No.267/2011 3 20, can be pointed out regarding the judgment of the Appellate Authority, this court will not be justified in interfering with the above judgment under Section 20, so submitted the learned counsel. Mr.Joseph referred to the merits of the eviction ground invoked by the landlords and submitted that it is on a correct appreciation of the evidence adduced by the parties that the Rent Control Court passed the order of eviction. The learned counsel highlighted that the 4th respondent herein, one of the sons of the original landlord is a doctor, who is badly in need of the subject building for conducting a clinic. 6. Having considered the rival submissions addressed at the Bar, we feel that it will not be just to deprive the revision petitioner, who is one of the legal heirs of the deceased tenant and is presently in physical occupation of the subject building and is conducting an auto consultancy therein, of the statutory right to have exercise of the appellate jurisdiction by the Rent Control Appellate Authority on the eviction order. As rightly argued by Mr.Joseph, the impugned judgment of the Appellate Authority cannot be described as illegal, irregular or improper as the Appellate Authority had no option other than to reject the RCR.No.267/2011 4 appeal preferred by the deceased original tenant who was dead and gone at the time of filing of the appeal itself. Yet, we feel that the impugned judgment can be set aside and the Rent Control Appeal can be remanded back to the Rent Control Appellate Authority giving liberty to the revision petitioner to apply to the Rent Control Appellate Authority for substituting the revision petitioner's name as the appellant for that of his deceased father. We notice in this connection the affidavit filed before this court by the revision petitioner wherein he has stated that his brothers and sisters who are also tenant, going by the statutory definition of the term "tenant" under Section 2 (6)(i) of Act 2 of 1965, have absolutely no objection in the revision petitioner representing them also. In fact what is stated in the affidavit is that his siblings who are the other surviving heirs of the deceased original tenant have no objection in the revision petitioner retaining possession of the subject room as the only tenant. 7. However, we are not inclined to grant relief to the revision petitioner without imposing stringent conditions. We are surprised to learn that the subject building, having an RCR.No.267/2011 5 approximate extent of 400 sq. feet in the ground floor of a building which abuts M.G.Road and situated just opposite to the Medical Trust Hospital, is fetching to the landlords a paltry monthly rent of Rs.200 /- only. It is freely agreed at the Bar that if the building is let out today , the same will fetch rent at the rate of more than 30/- rupees per square feet. Calculated that way, the building will fetch a minimum rent of Rs.12,000/- per month. We feel that as a condition for our judgment to operate, the revision petitioner shall pay rent to the respondents with effect from 1/8/2011 at the rate of Rs.7,500/- per month. Thus, we refix the rent of the building payable by the revision petitioner at Rs.7,500/- per month. We make it clear that this refixation is tentative and if either party is aggrieved, it is open to them to move the Rent Control Court for regular fixation of fair rent under Section 5. Till fair rent is fixed regularly, the revision petitioner shall pay to the respondents/landlords at the rate of Rs.7,500/- per month. The revision petitioner is directed to file an affidavit before the Rent Control Appellate Authority within ten days from today undertaking that he shall pay rent to the respondents at the rate of Rs.7,500/- per month with effect from 1/8/2011. RCR.No.267/2011 6 8. The result of the above discussion is as follows; The impugned judgment of the Appellate Authority is set aside. R.C.A. No.47/2010 is remanded to the Rent Control Appellate Authority, Ernakulam. If the learned Appellate Authority notices affidavit filed by the petitioner undertaking to pay the rent to the respondent at the rate of Rs.7,500/- per month with effect from 1/8/2011, the learned Appellate Authority will favourably consider the application to be filed by the petitioner for substituting his name for that of the appellant in the RCA and will consider the RCA on its merits at the earliest and dispose of the same in accordance with law. At any rate, the learned Appellate Authority will ensure that the RCA is disposed of on its merits within one month of the parties entering appearance pursuant to this judgment. The parties will enter appearance before the Rent Control Appellate Authority on 29/7/2011. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM, JUDGE dpk