IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 RCRev..No. 53 of 2009() ----------------------- RCA.82/2008 of RENT CONTROL APPELLATE AUTHORITY ( VI ADDL. DISTRICT COURT), ERNAKULAM RCP.NO.132/05 OF RENT CONTROL COURT, ERNAKULAM. .................... PETITIONER/APPELLANT IN R.C.A.82/2008 --------------------------------------------------------- MINI GEORGE, W/O.IVAN JOSEPH, D/O.LATE P.X.GEORGE, PERMANENT RESIDENT OF KACHAPPILLY HOUSE, KASSIM LANE, LISSY JUNCTION, ERNAKULAM DISTRICT, AND PRESENTLY AT P.B.NO.4108, ABU DHABI. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN RESPONDENT(S): RESPONDENTS IN R.C.A.82/2008/PETITIONER ------------------------------------------------------ 1. BABU PHILIP, S/O.LATE M.C.PHILIPOSE, M/S.MINERVA CORPORATION, M.G.ROAD, ERNAKULAM, KOCHI- 682 035. 2. SMT.REETHA GEORGE, W/O.LATE P.X.GEORGE, PUTHEZHATH HOUSE, VATTAKKAT ROAD, KALOOR, KOCHI-682 017. 3. ROY GEORGE, S/O.LATE P.X.GEORGE, -DO- -DO- 4. NEETHA GEORGE, D/O.LATE P.X.GEORGE, -DO- -DO- R1 BY ADV. SRI.JACOB GEORGE R2 & R3 BY ADV. SRI.K.S.BABU THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- RCR. No. 53 OF 2009 ----------------------------------------------- Dated this the 5th day of March, 2009 O R D E R Pius C. Kuriakose, J. Under challenge in this revision petition filed under section 20 of Act 2 of 1965 is the judgment of the Rent Control Appellate Authority confirming the order of the Rent Control Court allowing the rent control petition filed by the first respondent landlord ordering eviction under subsection (8) of section 11, requirement of additional accommodation for personal use of the landlord. The revision petitioner is the 4th respondent in the rent control petition and respondent Nos. 2 to 4 are respectively respondent Nos.1 to 3 in the rent control petition. The revision petitioner is the daughter of the 2nd respondent and sister of respondents 3 and 4. The petition schedule building is a commercial building where the revision petitioner's father late P.X.George used to conduct a photo studio by name “Vimala Studio”. Upon demise of Sri.P.X.George, the tenant, the RCR. N0. 53 of 2009 -2- tenancy rights devolved upon respondents 2 to 4 and the revision petitioner and it is on that basis that the rent control petition was filed against these four persons. The rent control petition was very stiffly contested by respondents 2 to 4 raising all possible contentions. The revision petitioner is residing in Abu Dhabi. Notice to her was served on her mother the second respondent and in spite of such service the revision petitioner remained ex parte. The contention which was prominently raised by the revision petitioner before the Rent Control Appellate Authority was that there was no proper service of notice on her and that due to want of such service she was disabled from raising contest in the rent control petition. The above contention has been repelled by the learned Rent Control Appellate Authority under the impugned judgment holding that there is sufficient service of notice of the rent control RCR. N0. 53 of 2009 -3- petition on the revision petitioner also. 2. Sri.M.S.Narayanan, learned counsel for the revision petitioner would address us extensively on the various grounds raised in the memorandum of revision. He drew our attention to Order V Rule 15 of the Code of Civil Procedure and to the judgment of a Division Bench of this Court in Thomas Joseph v. Catholic Syrian Bank (1998(1) KLT 986). He submitted that when substituted service of summons on a party is effected by service on an adult member of a family, it is obligatory that the concerned party is residing along with the adult member. 3. We are unable to accept the argument of Mr.M.S.Narayanan. True, it has been held in Thomas Joseph v. Catholic Syrian Bank (supra) that substituted service of notice under Order V Rule 15 C.P.C. can be effected only on an adult member of the family who is RCR. N0. 53 of 2009 -4- actually residing along with the party concerned. It has been also held that “no matter how close a relative may be, notice to a particular respondent cannot be effected on such a family member, if he or she is not residing with him”. But according to us, rule 15 of Order V CPC cannot have application to proceeding before the Rent Control Court. Service of notice on respondents in rent control proceedings is governed by the Kerala Buildings (Lease and Rent Control) Rules, 1979 and the relevant rule is sub-rule (4) of rule 11 which we extract below: “(4) The service of summons under the Act on any person shall be effected in any of the following ways:- (a) by giving or tendering it to such person; or (b) if such person is not found, by leaving it at his last known place of abode or business or by giving or tendering it to some adult member of his family; or (c) if the address of such person is known to the Accommodation Controller, Rent Control Court or the Appellate Authority, by sending it to him by registered RCR. N0. 53 of 2009 -5- post; or (d) if none of the means aforesaid is available, by affixing it in some conspicuous part of his last known place of abode or business.” A reading of the above quoted sub-rule will show that the various modes of service provided therein are in the alternative. Considering clause (b) it would have been sufficient in the circumstances of this case where the revision petitioner could not be found for a direct service, if the notice was left in her last known place of abode which is admittedly the place where the second respondent Smt.Reetha George is presently residing. In the instant case, what was done is that the notice for the revision petitioner was tendered to Smt.Reetha George. She received the same from the process server. According to us such a service is more than sufficient for the purpose of sub- rule (4) of rule 11 of the Kerala Buildings (Lease and Rent RCR. N0. 53 of 2009 -6- Control) Rules. 4. There is yet another reason why we are not inclined to entertain this revision. The tenant of the building was Sri.P.X.George. Upon demise of Sri.George, the tenancy has devolved upon his legal heirs jointly. Going by section 2 (6) of the Kerala Building (Lease and Rent Control) Act, “tenant” includes the heir or heirs of the deceased tenant. It is more or less trite that the tenancy which devolves upon the legal heirs of a deceased tenant is a joint tenancy devolving upon the whole body of legal heirs and the legal heirs are joint tenants and not tenants in common. (see the judgment of the Supreme Court in H.C.Pandey v. G.C.Paul, (1989) 3 SCC 77) and the judgment of the Supreme Court in Harish Tandon v. Addl. District Magistrate, (AIR 1995 SCC 676). Respondent Nos. 2 to 4 are admittedly legal heirs of the deceased tenant P.X.George and they have raised all RCR. N0. 53 of 2009 -7- possible contentions in the rent control petition. Obviously, they do not have any interest adverse to that of the revision petitioner in the subject matter of the litigation – the building. The interest of the 4th respondent, who is residing abroad for quite some time, we feel, is more sentimental than substantial. Even if it is assumed for the sake of argument that the revision petitioner is having substantial interest in the business which is being carried on in the building, then also we are of the view that her interest has been adequately safeguarded by respondents 2 to 4 who raised all contentions which were available to them as legal heirs of the deceased tenant and made every endeavour to substantiate those contentions by adducing evidence. 6. We are informed by Smt.Sudha Babu that respondents 2 to 4 are submitting separate revision petition impugning the decision of the Rent Control Appellate RCR. N0. 53 of 2009 -8- Authority on merits. Under the above circumstance we dismiss this revision petition in limine clarifying that we have not considered the legality, regularity and propriety of the order of eviction passed by the Rent Control Court or the Appellate Authority on its merits. (PIUS C.KURIAKOSE, JUDGE) (C.K.ABDUL RAHIM, JUDGE) KSV/-