IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 WP(C).No. 35529 of 2009(I) -------------------------- RCP.55/2008 of PRL.M.C.,KOZHIKODE-II .................... PETITIONER(S): --------------- 1. NANIKKUTTY, AGED 61 YEARS, W/O. LATE SAMI, ELIPARAMBATH, 13/1070 PERUVAYAL AMSOM, POOVTTUPARAMBA DESOM, KOZHIKODE TALUK. 2. SEETHA, AGED 37 YEARSS, D/O. LATE SAMI, ELIPARAMBATH, 13/1070 PERUVAYAL AMSOM, POOVATTUPARAMBA DESOM, KOZHIKODE TALUK. 3. GIRIJA, AGED 36 YEARS, D/O. LATE SAMI, ELIPARAMBATH, 13/1070 PERUVAYAL AMSOM, POOVATTUPARAMBA DESOM, KOZHIKODE TALUK. 4. SATHYAN, AGED 32 YEARS, S/O. LATE SAMI, ELIPARAMBATH, 13/1070, PERUVAYAL AMSOM, POOVATTUPARAMBA ESOM, KOZHIKODE TALUK. 5. PRAKASH, AGED 27 YEARS, S/O.LATE SAMI, ELIPARAMBATH, 13/1070 PERUVAYAL AMSOM, POOVATTUPARAMBA DESOM, KOZHIKODE TALUK. BY ADV. SRI.MANJERI SUNDERRAJ RESPONDENT(S): --------------- 1. P.N.K. KUNHIMOIDEENKUTTY, AGED 59 YEARS S/O. KUNHALIKUTTY HAJI, KUNDATHUR HOUSE, MAYANAD AMSOM, VELLIPARAMBA DESOM, KOZHIKODE. 2. P.N.IMBICHIKOYA, AGED 56 YEARS, S/O. KUNHALIKKUTTY HAJI, K.K.HOUSE, KUTTIKKATTUR AMSOM, VELLIPARAMBA DESOM, KOZHIKODE TALUK. ADV. SRI.K.H.ASIF FOR R1-R2 SRI.P.FAIZAL FOR R1-R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ W.P.(C).No. 35529 OF 2009 ------------------------ Dated this the 18th day of December, 2009 JUDGMENT Pius C.Kuriakose, J. The learned counsel for the respondents Sri.K.H.Asif seeks time to file counter affidavit in the writ petition. We are not inclined to grant time. 2. We have heard the submissions of Sri.Manjeri S.Sunder Raj, learned counsel for the writ petitioners/tenants and those of learned counsel for the respondents /landlord. Under challenge is Ext.P5 common order passed by the Rent Control Court by which the learned Rent Control Court dismissed an application filed by the petitioners for setting aside Ext.P4 order under which earlier application filed by the petitioners for setting aside the ex parte order of eviction passed against them was set aside on condition that a sum of Rs.1,500/- be paid as cost. The learned Rent Control Court under the original order allowing I.A. Nos.2541/2009 & 2542/2009, imposed a condition that sum of Rs.1,500/-be paid to the respondents on or before 16/12/2009 as cost. The writ petitioners did not pay the amount on the WPC.No.35529/2009 2 stipulated date. Noticing the non payment I.A. Nos.2541/2009 & 2542/2009 were also dismissed on the reason that the dismissal of I.A. Nos. 2541/2009 & 2542/2009 were not for default but for non compliance with the condition. The view taken by the Rent Control Court was that earlier order was a self working order and due to non payment of cost, earlier order operated itself and the I.As were dismissed. 3. The prominent submission made before us by Sri. Manjeri Sunder Raj was that the Rent Control Court should have facilitated adjudication of the cause on merit. The learned counsel highlighted that the writ petitioners had tendered the amount on 17/12/2009 and it was just one day later than the day stipulated in the order. 4. The learned counsel for the respondents submitted that there was willful negligence on the part of the writ petitioners, whose endeavour has only been to see that the eviction proceedings were protracted to the maximum. The learned counsel also submitted that even the the paltry rent of Rs.30/- payable by the writ petitioners is not being paid by them. 5. We have very anxiously considered the rival submissions WPC.No.35529/2009 3 addressed at the Bar. We feel that the writ petitioners should be allowed to contest the proceedings in which eviction of the building where they were carrying on business is sought. In fact, the learned Rent Control Court itself thought that there was justification for permitting them to contest imposing conditions. The condition imposed was that a sum of Rs.1500/- be paid on or before 16/12/2009. It is due to the failure of the petitioners to make the payment on the stipulated date that the present situation has resulted. We are of the view that by imposing another condition, which should be considerable advantage to the landlords, the writ petitioners can be salvaged from the present situation. Accordingly, we are inclined to grant relief to the writ petitioners subject to the condition that with effect from 1/1/2010 the rent payable by them will stand refixed at Rs.500/- per month. We are inclined to impose such a condition because we notice that the current rent of Rs.30/- was fixed more than 30 years ago. 6. The result of the above discussion is as follows; i). The Writ Petition is allowed. WPC.No.35529/2009 4 ii). Ext.P5 common order is set aside. I.A. Nos. 2541/2009 & 2542/2009 are allowed on condition that the sum of Rs.1,500/- ordered by the Rent Control Court as costs shall be paid within five days from today. Iii). I.A. No.3749/2009 and 3748/2009 are allowed. The time for payment of costs, as already order in I.A. Nos. 2541/2009 & 2542/2009 is extended till 23/12/2009. iv). The writ petitioner shall pay the rent for the petition schedule building to the respondents at the rate of Rs.500/- per month with effect from 1/1/2010. It is clarified that the above fixation of rent is subject to the right of either of the parties to move the Rent Control Court for WPC.No.35529/2009 5 regular fixation of fair rent if they are aggrieved. The Rent Control Court is also directed to special list the RCP for trial in the list for the month of February 2010, try the RCP and dispose of the RCP in accordance with law at the earliest and at any rate within one month of commencement of the trial. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk