IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 RCRev..No. 20 of 2010() ----------------------- RCA.11/2009 of RENT CONTROL APPELLATE AUTHORITY, ALAPPUZHA RCP.7/2006 of RENT CONTROL COURT, ALAPPUZHA .................... REVISION PETITIONER/APPELLANT/LR OF CR.PETITIONER ----------------------------------- MOHANDAS, S/O. GOWRI PADMANABHAN, AGED 47, PUTHENPURACKA, THIRUMALA WARD, ALAPPUZHA. BY ADV. SRI.R.AZAD BABU RESPONDENT/ RESPONDENT/PEITIONER --------------------- C.X.JOSEPH, S/O.XAVIER, CHENNAKKATTU, PAZHAVANGADI, THIRUMALA WARD, ALAPPUZHA. ADV. SRI.B.PRAMOD FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. --------------------------- R.C.R.No.20 OF 2010 --------------------------- Dated this the 16th day of February, 2010 J U D G M E N T ~~~~~~~~~~~ Pius C. Kuriakose, J. Under challenge in this revision petition are the order passed by the rent control appellate authority dismissing the application seeking the condonation of delay of two years and two months caused in the matter of filing the rent control appeal and the consequential judgment dismissing the RCA on the reason that the delay petition is dismissed. In this revision under Section 20 various grounds are raised assailing the judgment of the rent control appellate authority and Sri.Azad Babu, learned counsel for the revision petitioner, addressed on the basis of all those grounds. Mr. Azad Babu submitted that subletting under Section 11(4)(i) is the only eviction ground, which has been invoked in the RCR. The name of the alleged sub lessee is not even disclosed in the RCP. The RCP was filed against one Sri.Sukumaran, who was allegedly original tenant. The appellate authority under the present order has come to the R.C.R.No.20/2010 2 conclusion that the revision petitioner Sri.Mohandas and his mother Smt.Gowri are the alleged sub lessees. Mr. Azad Babu submitted that Sri.Mohandas and Smt.Gowri were impleaded by the respondent landlord himself on the revision filed as the legal heirs of Sri.Sukumaran after Sri. Sukumaran passed away. Considering the social relationship between Sukumaran, the revision petitioner and his mother Gowri, it is very unlikely that the jural relationship between them is that of tenant and sub tenant. The revision petitioner had an excellent case in the RCA. It was an exparte order of eviction that was passed against Sukumaran. The merits of the ground of sublease were never adjudicated by the rent control authority. Mr. Azad Babu requested that even if be on stringent terms the impugned order and judgment be set aside and opportunity be given to the revision petitioner to contest the appeal. 2. Sri.B.Pramod, learned counsel for the respondent, submitted that the delay caused in the matter of filing the RCA was inordinate. He pointed out that in the execution petition Sri.Mohandas, the revision petitioner, had been made a party R.C.R.No.20/2010 3 and he got notice of the execution proceedings at least 1½ years before filing the RCA. No explanation is forthcoming from the side of the revision petitioner regarding the above part of the delay. Mr.Pramod also submitted that in the judgment of this Court given in a writ petition filed by the revision petitioner challenging the order of the local authority denying licence to the revision petitioner, there is observation by this Court that the order of eviction has become final. The judgment of this Court in the writ petition was rendered as early as on 2.7.2009. But, even then, the appeal was filed only one month thereafter. 3. We have very anxiously considered the rival submissions made at the Bar. We find considerable merit in the submissions of Mr.Pramod that there was inordinate delay on the part of the revision petitioner in filing the rent control appeal against the eviction order passed against Mr.Sukumaran. We also notice that the above delay was not convincingly explained to the rent control appellate authority. At the same time, we notice that the eviction order, which was passed against Sri.Sukumaran, was an exparte one. Sukumaran, we are told, R.C.R.No.20/2010 4 was unable to pursue the defence that he had raised in the RCP. 4. In any case for eviction on the ground of sub lessee it will be necessary for the landlord to establish that the tenant has unauthorisedly sublet or parted with possession of the building. In the instant case, in view of the relationship between Sri.Sukumaran and the revision petitioner and his mother Gowri, who are now alleged to be tenant and subtenants, we feel that the respondent landlord will have to adduce quality evidence to prove that the relationship is that of tenant and subtenant. At the same time, we notice considerable merit in the submission of Mr.Pramod that the defence raised by Sri.Sukumaran was that Sri.Mohandas and his mother Gowri in their own right are the tenants and it is for them to substantiate that defence adduced by quality evidence. Whatever that be, we feel that an opportunity should be afforded to the revision petitioner to prosecute the appeal that he preferred against an exparte order of eviction passed against his predecessor-in-interest Sri.Sukumaran. At the same time, we are not inclined to afford such opportunity unconditionally. We are of the view that the R.C.R.No.20/2010 5 conditions imposed hereunder are adequate enough to avoid prejudice, if any, that may be caused to the respondent and also to safeguard the interest of the respondent in the subject matter of the litigation. The result of the above discussion is as follows: 5. The order of the rent control appellate authority dismissing the delay petition is set aside and the delay petition is allowed and the RCA is restored to the files of the rent control appellate authority subject to the following conditions: 1)The revision petitioner shall pay a sum of Rs.10,000/- as cost to the respondent either directly or through his advocate in this Court within three weeks from today. 2)The revision petitioner shall pay a sum of Rs.2500/- to the High Court Legal Services Committee within the same time limit. 3)Receipts against payment of both the amount shall be produced before the rent control appellate authority. Once that authority finds that the amounts are paid on time, that authority will repost the RCA for hearing. Once that is done, the RCA will be heard and disposed of at the earliest R.C.R.No.20/2010 6 and at any rate within one month of this judgment becoming operative. 4)There is yet another condition. The rent payable by the revision petitioner in respect of the building in question stands tentatively refixed at Rs.1,000/-per mensum prospectively with effect from 1.3.2010. We make it clear that the above refixation is on a tentative and if anybody is aggrieved, it is open to him to move the rent control court for regular fixation of fair rent. (PIUS C. KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) ps