IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 RCRev..No. 275 of 2010() ------------------------ AGAINST THE ORDER DATED 11/06/2010 IN IA.478/10 IN RCA.24/2009 of RENT CONTROL APPELLATE AUTHORITY ,KOTTAYAM RCP.15/2008 of RENT CONTROL COURT KOTTAYAM .................... REVN.PETITIONER/APPELLANT/CR.PETITIONER ----------------------------------------------------------- K.A.ABDUL RASHEED, S/O. ABDUL KHADER, AGED 58, FRUIT MERCHANT & COMMISSION AGENT, T.B.ROAD, KOTTAYAM. BY ADV. SRI.R.AZAD BABU RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ PHILIP ABRAHAM, S/O. ABRAHAM, AGED 79 YEARS, RESIDING AT KATTATHARA HOUSE, MUTTAMBALAM KARA, MUTTAMBALAM P.O., KOTTAYAM-686 612. ADV. SRI.M.R.RAJESH FOR R1 SMT.A.K.PREETHA FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ R.C.R.No. 275 OF 2010 ------------------------ Dated this the 9th day of November, 2010 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed under Section 20 is the order of the rent control appellate authority, Kottayam passing a summary order of eviction against the revision petitioner under Section 12(3) of Act 2 of 1965. The rent control court ordered eviction against the revision petitioner on the ground under Section 11 (4)(iv). The revision petitioner filed RCA No.24/2009. The respondent landlord had invoked the ground of arrears of rent also against the revision petitioner. But, that ground was not pressed by the respondent when the rent control petition was listed for trial. 2. In the rent control appeal filed by the revision petitioner I.A. No.478/2010 was filed by the respondent. The above I.A. was filed under Section 12. It appears that the court issued notice to the tenant and I.A. was posted for 'objection and payment'. The posting of the I.A. on 11/6/2010 when the RCR.No.275/2010 2 impugned order was passed was for the above purpose. Noticing that no objection was filed and that no amount was paid or deposited, the learned appellate authority would hear the parties on the I.A. and pass the impugned summary order of eviction. 3. The one point, which was highlighted before us by Mr.R.Azad Babu, learned counsel for the revision petitioner, was that the observation of the learned appellate authority that notice was issued to the tenant is wrong. No such notice was issued to the tenant, so submitted Mr.Azad Babu. 4. Sri.M.R.Rajesh, learned counsel for the landlord would submit that it will not be possible for the landlord to file the I.A. without giving notice. He requested that a report be called for from the appellate authority regarding the manner in which notice was served. 5. Having considered the submissions, we are of the view that it is not necessary that we settle the dispute as to whether notice was actually served on the revision petitioner. According to us, the impugned order suffers from a grave procedural infirmity. It is summary order of eviction under Section 12(3) RCR.No.275/2010 3 which has been passed against the revision petitioner. That order has been passed on a day when the I.A. stood posted for objection and payments. It is trite by decisions that it is mandatory under the scheme of Section 12 that even after noticing that rent admittedly in arrears is not paid, a meaningful opportunity should be given to the tenant to show cause against passage of summary order. True it is not necessary to issue a formal show cause notice. But it is to be ensured that the tenant gets at least two or three days time to show cause against the passage of such summary order. We are convinced that such an opportunity was denied to the tenant. On that reason we are inclined to set aside the impugned order. At the same time, we are not inclined to grant relief to the petitioner unconditionally. It is submitted by Mr.Azad Babu that even on the admission of the revision petitioner a sum of Rs.24,000/- will be due as on date, towards the rent in arrears. We are of the view that as a condition for getting relief, the petitioner should pay that amount together with an amount of Rs.1,000/- as costs. Accordingly, we allow the revision and set aside the impugned order on condition that the petitioner pays to the RCR.No.275/2010 4 respondent either directly or through his counsel in this court a sum of Rs.24,000/- towards rent admittedly in arrears and further sum of Rs.1,000/- by way of costs. Payment as ordered above shall be made within 10 days from today. It is made clear that if payment is not made as ordered above, the impugned order will stand confirmed. If payment is made, the learned appellate authority will ensure that the appeal itself is disposed of early. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk