IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 RCRev..No. 209 of 2009() ------------------------ RCA.17/2009 of RENT CONTROL APPELLATE AUTHORITY ,KOLLAM RCOP.34/2008 of RENT CONTROL COURT, KOLLAM .................... REVISION PETITIONER/APPELLANT/RSPONDENT ----------------------------------------------------------- EBRAHIMKUTTY, S/O. MUHAMME KUNJU, AGED 51 YEARS, VALIYAVEETTIL VADAKKUMTHALA MURI, VADAKKUMATHALA VILLAGE, KARUNAGAPPALLY. BY ADV. SRI.P.B.SURESH KUMAR RESPONDENT(S):/RESPONDENT/ PETITIONERS -------------------------- 1. FATHIMA BEEVI, AGED 63 YEARS, W/O. POOKUNJU, MAHEEN MANZIL KILIKOLLOOR CHERRY MANGADU VILLAGE, KOLLAM TALUK, KOLLAM. 2. POOKUNJU, AGED 65 YEARS, S/O. ALIKUNJU MALIKA VEEDU, KILIKOLLOOR CHERRY, MANGADU VILLAGE KOLLAM TALUK, KOLLAM. 3. MAHEEN, S/O. POOKUNJU, MALIKA VEEDU, KILIKOLLOOR CHERRY, MANGADU VILLAGE, KOLLAM TALUK, KOLLAM. 4. SHANAVAS, S/O. POOKUNJU, MALIKA VEEDU, KILIKOLLOOR CHERRY, MANGADU VILLAGE, KOLLAM TALUK, KOLLAM. ADV. SRI.S.ABDUL RAZZAK FOR R1 TO 4 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No. 209 OF 2009 ------------------------ Dated this the 15th day of December, 2009 O R D E R Pius C.Kuriakose, J. The tenant is in revision. He challenges the judgment of the Rent Control Appellate Authority confirming the summary order of eviction passed by the Rent Control Court under Section 12(3) of Act 2 of 1965. The summary order of eviction is dated 18/2/2009 and the same was passed pursuant to the direction under Section 12(1) passed by the court on 19/1/2009. The direction on 19/1/2009 was that “the tenant shall deposit the arrears of rent from April 2008 till December 2007 on 17/2/2009 and he shall also deposit the rent which would become due subsequently on expiry of two weeks from the date on which it becomes due”. The case of the revision petitioner is that, on 17/2/2009 with the intention of making deposit of the admitted arrears of rent, lodgment schedule was submitted by him before the Rent Control Court. The chalan was issued by the court only on 19/2/2009 on which day the entire arrears of rent was deposited. The Rent Control Court called the case on RCR.No.209/2009 2 18/2/2009 and on noticing that actual deposit was not made on 17/2/2009, passed the summary order of eviction under Section 12 (3). 2. The Appellate Authority refused to interfere with the above summary order of eviction. In doing so, the Appellate Authority refused to follow the judgment of the Supreme Court in Ved Prakash Wadhwa v. Vishwa Mohan (1980 KLT S.N.56) (Case No.81), which was cited on behalf of the revision petitioner before that authority. The Appellate Authority turned down the argument raised by the tenant that at any rate the Rent Control Court did not afford sufficient opportunity for the tenant for showing cause against the proposed summary order of eviction. By relying on the judgment in Narayanan v. Vinod (2004 (3) KLT 955) , the Appellate Authority went to the extent of holding that the cause shown by the tenant in a subsequent interlocutory application (I.A. No.994/2009) was also not acceptable for want of evidence. 3. In this revision petition under Section 20 various grounds are raised challenging the judgment of the Appellate Authority as well as the eviction order passed by the Rent Control RCR.No.209/2009 3 Court. 4. We have heard the submissions of Sri.P.B.Suresh Kumar, learned counsel for the revision petitioner and those of Sri.S.A.Razzak, learned counsel for the respondents. Drawing our attention to the judgment of a Division Bench of this court in C.V.Xavier & Others. v. Francis Leonard Pappali (1975 KLT 542) , Sri.Suresh Kumar submitted that this is a case where opportunity was not given to the revision petitioner by the Rent Control Court for showing cause against the proposed summary order of eviction and the revision petitioner did not get even day's time to show cause against the proposed eviction order. The judgment in Narayanan's case (supra), according to the learned counsel, does not rule that the tenant is not entitled for an opportunity to show cause. That judgment is only to the effect that it is not necessary that show cause notice as such is issued to the tenant. The present one is a case where the tenant did not get even one day's time to show cause. Sri.Suresh Kumar also argued that in as much as on 17/2/2009 itself, the application for chalan was submitted by the revision petitioner to the Rent Control Court and that court could have accepted the RCR.No.209/2009 4 argument that there is at least substantial compliance of the direction to make deposit of arrears of rent. 5. All the submissions of Sri.Suresh Kumar were very stiffly resisted by Sri. S.A.Razzak, learned counsel for the respondents. According to him, there is no illegality, irregularity or impropriety about the judgment of the Appellate Authority, which under the statutory scheme is the final court on facts. The learned counsel drew our attention to the judgment of a Division Bench of this court in Lakshmi v. Labbah Kunju Ameer Hamsa (2005 (3) KLT 627). Sri.Razzak also drew our attention to the averments in the affidavit filed in support of I.A. No.3556/2009 and submitted that for a building, which has got carpet area of 2000 sq. feet, the contract rent of Rs.2000/- is being paid by the revision petitioner is ridiculously low. Sri. Razzak submitted that the rent of Rs.2,000/- was fixed way back in 1993. The learned counsel further submitted that the building is situated within the area of the Kollam Corporation. 6. We have very anxiously considered the rival submissions addressed at the Bar. We find merits in the submission of the learned counsel for the petitioner Sri. Suresh Kumar that it is RCR.No.209/2009 5 necessary, before the Rent Control Court passes an order of summary eviction under Section 11(3), that it is ensured that the tenant gets opportunity to show cause against the proposed summary order of eviction. In the instant case what we notice is that the direction was to make the deposit on 17/2/2009 and the order of summary eviction is passed on 18/2/2009. We have no difficulty to accept the argument of Sri.Suresh Kumar that the order of summary eviction passed by the Rent Control Court, which is confirmed by the Appellate Authority is vitiated by a grave procedural irregularity which has resulted in prejudice to the revision petitioner. We are, therefore, obliged to set aside the order of eviction passed by the Rent Control Court and confirmed by the Appellate Authority. At the same time, we notice some merit in the submission of Sri.Razzak that monthly rent of Rs.2,000/- being paid presently by the revision petitioner is too low. The Supreme Court has held in Edger Ferus v. Abraham Ittycheria (2009 (4) KLT 673 (SC) that the jurisdiction to fix the fair rent in terms of Section 5 of the Rent Control Act is that of the Rent Control Court. At the same time, we are justified in tentatively refixing the rent payable by the revision RCR.No.209/2009 6 petitioner to the respondents subject to the regular fixation of fair rent by the Rent Control Court. 7.The upshot of the above discussion is therefore as follows; i). The RCR is allowed. ii). The order of eviction passed by the Rent Control Court and confirmed by the Rent Control Appellate Authority is set aside and the Rent Control Court is directed to enquire into the RCP and to finally dispose of the RCP on merits at the earliest and at any rate within three months of receiving a copy of this judgment. ii). The rent payable by the revision petitioner to the respondents/landlord is fixed with effect from 1/1/2010 at Rs.5,000/- per month. RCR.No.209/2009 7 It is made clear that fixation of the above rent is subject to the right of either parties to move the Rent Control Court for fixation of fair rent under Section 5 of the Act. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk