IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 RCRev..No. 234 of 2009() ------------------------ RCA.150/2008 of D.C. & SESSIONS COURT,KOZHIKODE RCP.30/2005 of ADDL.M.C.,KOZHIKODE-I .................... REVISION PETITIONER/ APPELLANT/COUNTER PETITIONER: ------------------------------------------------- NELLIKUNNEL MOOSA, PANKAJ APARTMENT, CORPORATION ROAD, NAGARAM AMSOM AND DESOM, KOZHIKODE. BY ADV. SRI.RAJEEV V.KURUP SRI.ALEX.M.SCARIA RESPONDENT(S)/ RESPONDENTS/PETITIONERS: --------------------------------------- 1. ABDU RAHIMAN HAJI, S/O.ABDULLA HAJI, CHARAPARAMBIL HOUSE, THEKKAN KUTTOOR AMSOM, THIROOR TALUK, MALAPPURAM REPRESENTED BY HIS POWER OF ATTORNEY HOLDER HAMSA HAJI, MULLASSERIYAKATH PANNATT THARAYIL HOUSE, THALAKKAD AMSOM, THIROOR TALUK. 2. RAMLATH ABURAHIMAN HAJI OF DO, DO. ADV. SRI.M.SREEKUMAR FOR R1 & R2 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No. 234 OF 2009 ------------------------ Dated this the 11th day of November, 2009 O R D E R Pius C.Kuriakose, J. Under challenge in this revision petition filed by the tenant is a summary order of eviction passed by the Rent Control Appellate Authority invoking sub section (3) of Section 12 of Act 2 of 1965. The respondents/landlords sought to evict the tenant invoking the grounds of arrears of rent and bona fide need for own occupation. The Rent Control Court allowed the petition under both the grounds. The tenant preferred an appeal. While the appeal was pending, the landlords filed an interlocutory application alleging that the tenant has not paid the rent which admittedly fell due after the commencement of the rent control proceedings. The Rent Control Appellate Authority directed the tenant, the appellant in the RCA, to pay the rent. The tenant did not make the payment. He did not show cause before the Appellate Authority against passage of summary order of eviction. In fact, the advocate, who appeared for him reported RCR.No.234/2009 2 no instructions. The Appellate Authority had no way other than to allow the interlocutory application and close all the proceedings in the appeal and pass summary order under sub section (3) of section 12. 2. Having heard the submissions of Sri.Alex M.Scaria, learned counsel for the revision petitioner and those of Sri.M.Sreekumar, learned counsel for the respondents/landlords, we are of the view that in this case, where the merits of the eviction grounds upheld by the Rent Control Court are yet to be examined by the Rent Control Appellate Authority, some indulgence can be shown towards the revision petitioner and the Rent Control Appellate Authority can be directed to consider the appeal filed by the revision petitioner on its merits imposing stringent terms. It is conceded by the tenant that the current monthly rent of Rs.2310/- paid by him is far below the rent which the building situated within the area of the Calicut Corporation will fetch if let out today. We feel that as a condition for granting relief to the petitioner, the rent should be increased with prospective effect. It was submitted by the learned counsel for the revision petitioner that substantial portion of the rent which RCR.No.234/2009 3 has fallen due till date can be paid off immediately and that the balance amount will also be paid within two or three weeks. The learned counsel submitted that the petitioner is presently admitted in the Medical Trust Hospital, Ernakulam for kidney transplant surgery and this accounts for his inability to make full payment immediately. Sri.Sreekumar submitted that order, which is impugned in the Rent Control Appeal was passed by the Rent Control Court pursuant to an order of remand passed earlier by the Appellate Authority. The landlords are unable to accomplish their genuine need of own occupation due to delay which has been occasioned in the matter of final disposal of the proceedings. 3. Having taken into consideration all relevant inputs, we are of the view that the RCR can be allowed subject to the following conditions and directions: 1). The impugned summary order of eviction will stand set aside subject to the following conditions; i). The revision petitioner shall pay a sum of Rs.50,000/- to the respondents either directly or through RCR.No.234/2009 4 their advocate in this court on or before 13th November, 2009 and will pay the balance amount of Rs.19,300/- on or before the 30th instant. The balance amount also can be paid in the above manner. ii). The monthly rent payable by the tenant for the building in question is refixed prospectively with effect from 1st January 2010 at Rs.6000/- per month. From that day onwards, the revision petitioner shall pay the rent at the above rate. We make it clear that the above refixation is tentative and is subject to fixation of fair rent at the instance of either parties by the Rent Control court. 2. Once the order setting aside the impugned judgment of the Appellate Authority becomes operative, (once the payment as ordered above is made and once the Rent Control Appellate RCR.No.234/2009 5 Authority notices receipt against the payment of the above amounts) that authority will take up the Rent Control Appeal and dispose of the same on merits in accordance with law at the earliest and at any rate within one month of noticing the receipts against payment of the amounts ordered above. If payment as directed above is not made, the impugned order will stand confirmed and the RCR will stand dismissed. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk