IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 OP (RC).No. 1694 of 2011(O) --------------------------------- AGAINST THE ORDER IN IA 431/2011 IN RCP.24/2009 of MUNSIFF COURT, MANJERI .................... PETITIONER ------------- A.K. MUHAMMED ASHARAF MOULAVI, S/O. ASARIKANDI ABDULLA HAJI, POOKAKKODE AMSOM, PAZHOOR DESOM, P.O. PAZHOOR, VIA MAVOOR, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.SAJU.S.A SRI.K.C.KIRAN RESPONDENT(S): ------------------- 1. KUNJALI, S/O.THANDUPARAKKAL MUHAMMED, WANDOOR AMSOM AND DESOM, NILAMBUR TALUK, PIN - 679 328. 2. MUHAMMED ASLAM, S/O. THANDUPARAKKAL MUHAMMED, WANDLOOR AMSOM AND DESOM, NILAMBUR TALUK, PIN - 679 328. 3. AZEEZ, S/O. PALADAN MUHAMMED, PALADAN HOUSE, WANDOOR AMSOM AND DESOM, NILAMBUR TALUK, PIN - 679328. 4. SAHEER, S/O. PANANGATTUPARAMBIL KHALID, PANANGATTUPARAMBIL HOUSE, WANDOOR AMSOM AND DESOM, NILAMBUR TALUK, PIN - 679 328. O.P.(RC) NO.1694/2011 -2- 5. MUNEER, S/O. VALASSERI KUNHIMUHAMMED, VALASSERI HOUSE, WANDOOR AMSOM AND DESOM, NILAMBUR TALUK, PIN - 679 328. SRI.M.A.ABDUL HAKIM - CAVEATOR THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 27/05/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ O. P. (R.C.) No.1694 of 2011 ------------------------------------------------ Dated this the 27th day of May, 2011 ORDER Pius C. Kuriakose, J Under challenge in this Original Petition filed by the tenant under Article 227 of the constitution is Ext.P4 order passed by the Rent Control Court, Manjeri. By Ext.P4 the learned Rent Control Court has dismissed Ext.P3 review petition seeking review of Ext.P2 summary order of eviction passed under Section 12(3) and thus, confirmed Ext.P2. In this O.P. Ext.P4 and for that matter Ext.P2 are challenged on various grounds. Sri.T.Krishnanunni, the learned senior counsel for the petitioner would submit at the very outset that Ext.P2 order suffers from a glaring procedural irregularity that even before expiry of the period fixed by the Rent Control Court for payment of the rent admittedly in O. P. (R.C.) No.1694 of 2011 -2- arrears the learned court passed the summary order of eviction under Section 12(3). According to the learned senior counsel even if a show cause notice as such may not be necessary in view of judicial precedents governing the issue, it was obligatory that the Rent Control Court granted a reasonable time to the tenant for showing cause against the proposed summary order once it was noticed that the rent admittedly in arrears is not paid on the stipulated time. Sri.Krishnanunni very fervently submitted that going by Ext.P1, the tenant had time till the evening 03/01/11 to pay the admitted rent. The learned Rent Control Court passed Ext.P2 before lunch break on 03/01/11 itself. 2. Sri.M.A.Abdul Hakim, the learned counsel for the respondent/landlord would support Ext.P2 as well as Ext.P4. According to him, the visitorial jurisdiction of this Court under Article 227 is not to be invoked for interfering with each and every order that is passed by subordinate courts O. P. (R.C.) No.1694 of 2011 -3- even if there is some illegality about the same. Visitorial jurisdiction is to be invoked only in exceptional circumstances. Even if Ext.P2 was an illegal order the remedy available to the tenant was the regular appellate remedy under Section 18 and not in the form of a review petition. Ext.P3 review petition was rightly dismissed as there was no ground for review. 3. We have very anxiously considered the submissions addressed at the Bar. As for the submission of Sri.Hakim that against Ext.P2 the tenant had remedy by way of appeal under Section 18, we are of the view that the above submission is forceful. Ext.P2 was not an interlocutory order of a procedural nature. Ext.P2 was a final order in the sense that it put a quietus to the entire proceedings and was an executable eviction order in favour of the landlord. Nevertheless, we are not inclined to decline jurisdiction on the above reason. This is because we find force in the O. P. (R.C.) No.1694 of 2011 -4- submission of the learned senior counsel for the petitioner that Ext.P2 suffers from glaring procedural irregularity. We are of the view that the Rent Control Court was bound to grant at least a short time to the tenant so that he could show cause against the proposed summary order of eviction under Section 12(3). In view of the above irregularity noticed by us, we are inclined to grant relief to the petitioner. But we are not inclined to do so without imposing stringent conditions as we cannot approve of the action of the tenant in refusing to pay the rent which was admittedly in arrears. 4. There is dispute between the parties as to the contract rent. The landlord says that the same is ` 200 per day except during Ramsan season. The tenant's contention is, the same is only ` 100 per day. As we are told that in previous Rent Control Proceedings it has been found that the contract rent is ` 200 per day we will only observe that the contention of the tenant regarding contract rent cannot be O. P. (R.C.) No.1694 of 2011 -5- very strong. At any rate, we feel that even the rate of ` 200 per day is below the prevailing rent rates in the locality, so one of the conditions which we propose is enhancing the rent prospectively subject to right of either party to move the Rent Control Court for fixation of fair rent. The result of the above discussions therefore is as follows:- 5. Exts.P1, P2 and P4 will stand set aside and I.A. No.1870/10 will stand posted before the Rent Control Court for enquiry subject to compliance of the following conditions by the tenant/petitioner. 1) The petitioner pays to the respondent either directly or through the respondent's counsel before the Rent Control Court a sum of ` 1,50,000/- towards the rent admittedly in arrears within 30 days from today. 2) Petitioner pays in the same manner to the respondent a sum of ` 5,000/- as cost of the present proceedings. O. P. (R.C.) No.1694 of 2011 -6- 3) The rent payable by the petitioner for the building in question will stand tentatively re-fixed with effect from 01/06/11 at the rate of ` 300/- per day excluding Ramsan season and the petitioner shall file an affidavit within three weeks from today before the Rent Control Court undertaking to pay rent to the respondent at rate re-fixed as above with effect from 01/06/11. 6. We clarify that the above re-fixation is tentative and it is open to either party to move the Rent Control Court for fixation of fair rent regularly. Till fair rent is fixed petitioner shall pay rent at the rate of ` 300/- per day. 7. If the Rent Control Court notices the affidavit and receipts against payment of the amounts mentioned above on time I.A. No.1870/10 will be posted for enquiry and the enquiry will be completed within a period of one month. Once orders are passed on the I.A., the learned Rent Control Court will include the main RCP in the earliest available O. P. (R.C.) No.1694 of 2011 -7- special list and dispose of the main RCP also. 8. If any of the conditions are not complied with by the petitioner, Ext.P2 will stand confirmed. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/-