IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 RCRev..No. 212 of 2010() ------------------------ AGAINST THE ORDER DATED 30/03/2010 IN IA.2508/2009 IN RCA.4/2004 OF RENT CONTROL APPELLATE AUTHORITY,KOLLAM RCP.3/2001 OF RENT CONTROL COURT, PUNALUR .................... REVISION PETITIONER/PETITIONER/APPELLANT ------------------------------------------------------------ P.N.SAGAR, S/O.NANU, SREEKOVIL, PANANGADU, VALANCODE, PUNALUR. BY ADV. SRI.T.RAJESH RESPONDENT(S): PETITIONER ------------------------- MUBARAK BEEVI, W/O.BABU MUTHUMEERAN, HOUSE NO.128, CREMPETTA, SANTI NAGAR-1, CHENNAI REP. BY THE ALLEGED POWER OF ATTORNEY HOLDER IBRAHIM SHERIFF, S/O.A.S.M.SHAH, SHAW MANZIL, PATHANAPURAM TALUK,PIN-689 695. ADV. SRI. S. MOHAMMED HANEEF THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 04/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- RCR. No. 212 of 2010 ----------------------------------------------- Dated this the 4th day of August, 2010 O R D E R ABDUL REHIM, J. This revision petition is preferred against order in I.A. No.2508/09 in RCA.4/04 issued by the Rent Control Appellate Authority (District Judge), Kollam. The facts of the case in brief is as follows. Revision petitioner herein is the respondent/tenant in RCP.3/01 before the Rent Control Court, Punalur, which petition was allowed ex parte. I.A.663/03 was filed for setting aside the ex parte order, which was dismissed by the Rent Control Court. RCA No.4/04 was filed against that order. The Appellate Authority dismissed the RCA at the first instance. In RCR 102/06, this Court remanded the matter for fresh consideration by the Appellate Authority. Before this Court it was pointed out that, the only material contention in the Rent Control Petition was regarding competency of the RCR. 212/10 -2- Power of Attorney Holder who had instituted the Rent Control Petition. Therefore, the Appellate Authority was directed to examine the question as to the competency of the signatory, in order to arrive at a conclusion regarding sustainability of the eviction order passed. We notice that in paragraph No.6 of the order of this Court there occurred an apparent mistake in observing that, the order of eviction passed by the Rent Control Court is set aside. In fact, this Court intended only to set aside judgment of the Appellate Authority. 2. While remanding the matter, this Court insisted condition for payment of arrears of rent, at the rate of Rs.350/- per month from 13/03/2000 till the date of order and at the enhanced rate of Rs.500/- per month from 01/05/09 onwards, along with payment of cost of Rs.3,000/- to the landlord. It is submitted that even though the said order was challenged before the Hon'ble Supreme Court, the RCR. 212/10 -3- Special Leave Petition was dismissed at the time of admission itself. 3. Meanwhile, the Rent Control Appellate Authority took up RCA.4/04 and dismissed the same because the revision petitioner had failed to comply with the conditions stipulated by this Court in the order in RCR No. 102/2006 dated 2-4- 2009. The revision petitioner thereupon filed a review petition before the Appellate Authority along with a petition seeking condonation of delay in filing the review petition. The revision petitioner had also approached this Court through a writ petition (WP(C) No. 5522 of 2010) seeking direction for an early disposal of the review petition. This Court through judgment in WP(C) 5522/10 dt. 24-2-2010 allowed the application for condonation of delay and directed Appellate Authority to consider and dispose of the review petition, subject to stringent conditions imposed, for payment of Rs.43,500/- towards arrears of rent and RCR. 212/10 -4- interest within seven days from the date of the judgment and also for payment of Rs.3500/- as costs to the respondent, along with a further sum of Rs.1500/- to the High Court Legal Services Committee. 4. It is submitted that the revision petitioner had complied with the condition stipulated in the judgment in WP(C) 5522/10. But the Appellate Authority had dismissed the review petition holding that the application lacks merit and the dismissal of the appeal need not be reviewed. The present revision petition is filed against order of the Appellate Authority. 5. On a perusal of the impugned order, we notice that the Appellate Authority had taken note of circumstances prevailed at the time when the appeal was dismissed. The learned Appellate Authority observed that after remand of the matter by this Court in RCR 102/2006, the revision petitioner had failed to prosecute the appeal. It is observed RCR. 212/10 -5- that inspite of notice issued to counsel for the revision petitioner, neither the counsel nor the revision petitioner appeared on two occasions when the appeal was posted on 8-7-2009 and on 29-7-2009. It is further observed that the revision petitioner had also failed in complying with the conditions stipulated by this Court. The review petition was dismissed pointing out that there is no error apparent on the face of the record warranting review of the judgment dismissing the appeal. 6. Sri. T.Rajesh, learned counsel appearing for the revision petitioner pointed out that the findings in the impugned order are not factually correct. No notice was served with respect to posting of the appeal, is the contention. It is pointed out that the notice intimating posting of the appeal was issued to Sri.K. Velappan Pillai, Advocate of Kollam Bar through his clerk, whereas the review petition was filed through Advocate K.P. Sajinath. RCR. 212/10 -6- It is submitted that neither the revision petitioner nor Advocate K.P.Sajinath was having any knowledge about posting of the matter on 8-7-2009 or on 29-7-2009. It is also argued that the conditions stipulated in the revisional order was not complied with only because the matter was taken before the Honourable Supreme Court. According to the revision petitioner, there was proper compliance of the conditions stipulated by this Court in the judgment in WP (C) No. 5522 of 2010, which was omitted notice of the Appellate Authority. 7. While evaluating the legality, regularity and propriety of the order impugned, we notice that, the non- compliance of conditions stipulated in RCR. 102/2006 is not having much consequence in the subsequent circumstances, when this Court has stipulated fresh conditions, which are more stringent in nature, through the judgment in WP(C) No. 5522 of 2010. We notice that the learned Appellate RCR. 212/10 -7- Authority had omitted to take note of the observations contained in the judgment in WP(C) No. 5522 of 2010 and also about compliance of conditions stipulated therein by the revision petitioner. In fact those conditions were stipulated by this Court in the judgment in WP(C) 5522/10 after noticing non-compliance of the judgment in RCR 102/2006. We are in perfect agreement with the Appellate Authority that technically there is no error apparent in the order which was sought to be reviewed. But we notice that the order of eviction passed in the RCP is an ex parte order and the petitioner could not contest the RCP on merits. Taking note of the above aspect only the matter was remanded in RCP 102/2006. We are of the opinion that rather than clinching on the technicalities, the material issue on facts of the case can be decided by looking into merits of the order passed by the Rent Control Court, based on the contentions on both sides. As noticed in the judgment in RCR. 212/10 -8- RCR 106/06, the only material contention raised is regarding competency of the person who had instituted the petition. Under the above circumstances, we are of the opinion that, as already directed by this Court in the revisional order, merit of such contention can be considered by the Appellate Authority and a final decision on the rent control petition can be arrived. 8. However, we are of the opinion that there is considerable latches on the part of the revision petitioner in not prosecuting the matter properly at different stages of the proceedings. Therefore, we are inclined to allow the revision petition subject to terms. In the result, the rent control revision is allowed and the impugned order of the Appellate Authority is set aside. The revision petition will stand allowed subject to condition of the revision petitioner paying a sum of Rs.3000/- (rupees three thousand) as cost to the respondent either directly or RCR. 212/10 -9- through counsel appearing for the respondent in this Court. The revision petitioner shall pay a sum of Rs.1000/- (rupees one thousand) to the High Court Legal Services Committee as well. Once payments as directed above is noticed, the Appellate Authority will restore RCA No. 4 of 2004 back to files and dispose of the same in accordance with the directions contained in the order in RCR. No. 102 of 2006. (PIUS C.KURIAKOSE, JUDGE) (C.K.ABDUL REHIM,JUDGE) kns/ksv/-