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. 173 of 2005() ------------------------ RCA.42/2005 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE,KOZHIKODE) RCP.19/2002 of THE RENT CONTROL COURT (ADDL.MUNSIFF-I), KOZHIKODE. REVISION PETITIONER/1ST RESPONDENT/PETITIONER: ------------------------------------------------------------------ SUDHI VASUDEVAN, AGED 46 YEARS, S/O. VASUDEVAN, 5/2428, `SREEVIDYA', U.K.S. ROAD, KALATHINKUNNU AMSOM, DESOM, KOZHIKODE. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S): APPELLANTS/3RD PARTY AND RESPONDENTS: ---------------------------------------------------- 1. NISHANA, W/O. DINESH, `SUJAMA NIVAS', CHOMBALA, ONJIYAM AMSOM, DESOM, KOYILANDY. 2. DILSHAG (MINOR), AGED 16 YEARS, S/O. DINESH, `SUJAMA NIVAS', CHOMBALA, ONJIYAM AMSOM DESOM, KOYILANDY. 3. DIBINSHAG (MINOR) AGED 14 YEARS, S/O. DINESH, `SUJAMA NIVAS', CHOMBALA, ONJIYAM AMSOM DESOM, KOYILANDY. (RESPONDENTS 2 & 3 REPRESENTED BY THEIR GUARDINA AND MOTHER THE 1ST RESPONDENT). 4. NALINI P.M., D/O. LATE MANNAN, AGED 51 YEARS, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK. 5. P.M. SURESH, AGED 50 YEARS, S/O. LATE MANNAN, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK. ADV. SRI.V.V.SURENDRAN FOR R1 TO R3 SRI.P.A.HARISH FOR R1 TO 3 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 3-7-2009, ALONG WITH RCR NO. 258 OF 2005 THE COURT ON 28-10-2009 PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= R.C.R. No. 173 of 2005 D =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 28th day of October, 2009 O R D E R BARKATH ALI, J. In this revision under section 20 of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as “the Act”) the landlord challenges the judgment of the Rent Control Appellate Authority (District Judge), Kozhikode in R.C.A. No. 42 of 2005 dated March 22, 2005 allowing the appeal and remanding the matter to the Rent Control Court for deciding the matter afresh. 2. The facts in brief are these:- The revision petitioner/landlord filed R.C.P.No.19 of 2002 before the Rent Control Court (Addl. Munsiff-I), Kozhikode against the tenants i.e., respondents 1 to 3 in the Rent Control Petition seeking eviction under sections 11(2) and (3) of the Act alleging that the tenants have kept rent in arrears from January 1998 onwards, that the landlord bona fide requires the petition schedule building for his residential purpose and that there are no other suitable buildings available in that locality for him to reside. Respondents 2 and 3 in the Rent Control RCR 173/05 2 Petition 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 Control Court passed an order of eviction under sections 11(2) and (3) of the Act on July 22, 2002. The landlord field E.P.No.356 of 2004 before the Munsiff’s 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 the Rent Control Petition. While so, respondents 4 and 5 in this revision petition filed I.A. No.365 of 2005 before the Appellate Authority under section 18(2) of the Act for leave to prefer appeal challenging the ex parte order of the 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 application and granted leave to prefer appeal challenging the order of the Rent Control Court in the Rent Control Petition. They filed appeal R.C.A. No.42 of 2005 before the Appellate Authority challenging the ex parte order of the Rent Control Court. The Rent Control Appellate Authority by judgment dated March 3, 2005 allowed the appeal and remanded the matter to the Rent Control Court for fresh consideration. 3. By a separate order, today we have dismissed the R.C.R. No.258 RCR 173/05 3 of 2005 challenging the order in I.A.No.365 of 2005 in R.C.A. No.42 of 2005 holding that the petitioners in that application are entitled to challenge the order in the Rent Control Petition. 4. The only question arises for consideration is whether the judgment of the Rent Control Appellate Authority allowing the appeal and remanding the matter to the Rent Control Court can be sustained? 5. We are of the view that the impugned order of the Rent Control Appellate Authority allowing the Rent Control Appeal cannot be sustained under section 18 of the Act. The appeal has to be filed within 60 days from the date of the order. The Rent Control Petition was allowed on January 23, 2002 and the Rent Control Appeal was filed only on February 11, 2005. There was inordinate delay in filing the appeal. No separate petition was filed before the Rent Control Appellate Authority to condone the delay in filing the appeal. The specific case of respondents 4 and 5 is that they came to know about the judgment of the Rent Control Petition when Amin came to the spot for eviction on February 5, 2005 appears be not true. Amin went to the spot on several occasions, but could not effect delivery due to the resistance of the second respondent in the Rent Control Petition. Therefore, the above version of respondents 4 and 5 appears to be not correct. No other reason was stated by respondents 4 and 5 to condone the delay. That being RCR 173/05 4 so, the Rent Control Appellate Authority is not justified in allowing the appeal and the appeal should have been dismissed. 6. In the result, the revision petition is allowed and the judgment of the Rent Control Appellate Authority dated March 22, 2005 in R.C.A. No.42 of 2005 allowing the appeal is set aside and the R.C.A. is dismissed. In the circumstances, the parties shall bear their own costs. PIUS C. KURIAKOSE, JUDGE P.Q. BARKATH ALI, JUDGE mn