IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 RCRev..No. 258 of 2005() ------------------------ AGAINST THE ORDER IN IA.365/05 IN RCA.42/2005 of D.C. & SESSIONS COURT,KOZHIKODE RCP.19/2002 of ADDL.M.C.,KOZHIKODE-I .................... REVISION PETITIONER/RESPONDENT/IST RESPONDENT. ------------------------------------------------------------------ SUDHI VASUDEVAN, AGED 46 YEARS, S/O.VASUDEVAN, 5/2428, SREEVIDYA, U.K.ROAD, KALATHINKUNNU AMSOM DESOM, KOZHIKODE. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S): PETITIONER/APPELLANTS. ------------------------------------- 1. NISHANA, W/O.DINESH, SUJAMA NIVAS, CHOMBALA, ONJIYAM AMSOM DESOM. KOYILANDY. 2. DILSHAG (MINOR) REP. BY THE IST RESPONDENT, THE MOTHER AND GUARDIAN, AGED 16 YEARS S/O.DINESH, SUJAMA NIVAS, CHOMBALA, ONJIYAM AMSOM DESOM, KOYILANDY. 3. DIBINSHAG (MINOR) REP. BY THE IST RESPONDENT THE MOTHER AND GUARDIAN, AGED 14 YEARS, S/O DINESH, SUJAMA NIVAS, CHOMBALA, ONJIYAM AMSOM DESOM, KOYILANDY RESPONDENTS 2 & 3. REP. BY THEIR GUARDIAN AND MOTHER THE IST RESPONDENT. RCR.No.258/05 4. NALINI.P.M., ADVOCATE AGED 51 YEARS, D/O.LATE MANNAN, (5/2728, SREEVIDYA, U.K.ROAD, KALATHI8NKUNNU AMSOM DESOM, KOZHIKODE. Address amended as NALINI.P.M., ADVOCATE AGED 51 YEARS, D/O.LATE MANNAN, KALATHIN KUNNU AMSOM, DESOM, KOZHIKODE 5. P.M.SURESH, AGED 50 YEARS, S/O.LATE MANNAN, 5/1728, SREEVIDYA, U.K.ROAD, KALATHINKUNNU AMSOM DESOM, KOZHIKODE. Address amended as P.M.SURESH, AGED 50 YEARS, S/O.LATE MANNAN KALATHIN KUNNU AMSOM, DESOM, KOZHIKODE Address of respondents 4 and 5 amended as per order dated 7-10-2005 on I.A.No.2747/2005 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03/07/2009, THE COURT ON 28-10-2009 PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No.258 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of October, 2009 ORDER Barkath Ali, J. In this revision petition under Section 20 of the Kerala Buildings ( Lease and Rent Control) Act 1965, the landlord challenges the order of Rent Control Appellate Authority( District Judge), Kozhikode in I.A.No.365/2005 in R.C.A.No.42/2005 dated 3rd March 2005 granting leave to prefer appeal by the petitioner in the I.A. challenging the order of Rent Control Court ( Addl. Munsiff Court), Kozhikode in R.C.P.No.19/2002 dated July 22, 2002. 2. The facts leading to this revision in brief are these : The revision petitioner/landlord filed Rent Control Petition No.19/2002 before the Rent Control Court ( Addl. Munsiff), Kozhikode against the tenants i.e. respondents 1 to 3 in the RCP seeking eviction under Sections 11(2) and 11(3) of the Act alleging that the tenants have kept rent in arrears from January 1998 onwards, that the landlord bonafide requires the petition schedule building for his RCR.No.258/2005 Page numbers residential purpose and that there are no other suitable building available in that locality for him to reside. Respondents 2 and 3 in the RCP are respondents 4 and 5 in this revision petition. The first respondent in the rent control petition died. Her legal heirs are respondents 1 to 3 in this revision petition. The tenants remained ex parte before the Rent Control Court. Therefore, the Rent Controller passed an order of eviction under Section 11(2) and 11(3) of the Act on July 22, 2002. The landlord filed E.P.No.356/2004 before the Munsiff Court for executing the decree. Though delivery was ordered, it could not be effected in view of the resistance made by the second respondent in R.C.P. While so, respondents 1 to 3 in this revision petition filed I.A.No.365/2005 before the Appellate Authority( District Judge), Kozhikode under Section 18(2) of the Act for leave to prefer appeal challenging the ex parte order of Rent Control Court alleging that they are the legal heirs of the predeceased son of Mannan, the original tenant. By the impugned order dated March 3, 2005, the Appellate Authority allowed the said I.A. and granted leave to the petitioner in the I.A. to prefer appeal challenging the order of Rent Control Court in the R.C.P. Now the landlord challenges the said order in this revision RCR.No.258/2005 Page numbers petition. 3. Sri.Balakrishna Iyer, learned senior counsel for revision petitioner/landlord arguing the revision submitted that after the death of original landlord Mannan, tenancy right in respect of petition schedule building devolved on respondents in the RCP and the petitioners in the I.A. as joint tenants, that therefore the ex parte order of eviction passed by the Rent Control Court is binding on the petitioner in I.A. also and that therefore the Appellate Authority should not have granted leave to prefer appeal challenging the said order of Rent Control Court. The counsel for respondents 1 to 3 supported the order of Appellate Authority. 4. The main point which arises for consideration is whether the impugned order in I.A.No.365/2005 in R.C.A.No.42/2005 of Rent Control Appellate Authority, Kozhikode can be sustained ? 5. The learned senior counsel for revision petitioner further submitted that admittedly the rent is being paid by respondents 1 and 2 in RCP of which first respondent died, that revision respondents 1 to 3 i.e. petitioners in I.A. before the lower court are admittedly not residing in the petition schedule house, that under these circumstances, there is RCR.No.258/2005 Page numbers implied surrender of tenancy rights by the petitioners in the I.A. and that therefore they are not entitled to file appeal. He cited the following decisions in support of his contentions : H.C.Pandey v. G.C.Paul (AIR 1989 Supreme Court 1470) Mohd. Azeem v. District Judge, Aligarh and others ( AIR 1985 Supreme Court 1118) Pushpa Rani and others v. Bhagwanti Devi and another (AIR 1994 SC 774) Ashok Chintaman Juker and others v. Kishore Pandurang Mantri and another ( 2001( 5) Supreme Court Cases 1) Harish Tandon v. Addl. District Magistrate, Allahabad, U.P. and others ( AIR 1995 Supreme Court 676) Mohanambal v. Veeramani ( 1999(2) KLT 206) Libi v. Devassy ( 2003(3) KLT 685). 6. In H.C.Pandey v. G.C.Paul (AIR 1989 Supreme Court 1470) the Apex court has held that heirs of original tenant succeed to tenancy as joint tenants and not as tenants in common. The above principle has been reiterated by the Apex Court in Harish Tandon v. Addl. District Magistrate, Allahabad, U.P. and others ( AIR 1995 Supreme Court 676). This court has also followed the said principle RCR.No.258/2005 Page numbers in Mohanambal v. Veeramani ( 1999(2) KLT 206) and in Libi v. Devassy ( 2003(3) KLT 685). In all these decisions, it has been held that on the death of a tenant, his tenancy rights devolves on his legal heirs as joint tenants. The above principle has not been disputed by the respondents. That being so, in the present case, the order in R.C.P. is binding on the petitioners in the I.A. before the Appellate Authority. Therefore, we are of the view that Appellate Authority is perfectly justified in holding that the respondents are aggrieved party as contemplated under Section 18 of the Act and that they are entitled to file appeal challenging the order of Rent Control Court. That being so, we find no merit in this revision petition and the same is hereby dismissed. Parties shall bear their own costs. PIUS C. KURIAKOSE JUDGE P.Q.BARKATH ALI JUDGE sv. RCR.No.258/2005 Page numbers