IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 RCRev..No. 298 of 2008() ------------------------ (RCA NO.3/2005 OF RENT CONTROL APPELLATE AUTHORITY PALAKKAD AGAINST RCP 56/2002 OF THE RENT CONTROLLER (ADDL. MUNSIFF) PALAKKAD) REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------------ M.V.MOIDU, S/O.MAMU, RESIDING AT THANAVU OLAVAKKODE, PUDUPPARIYARAM AMSOM, PALAKKAD TALUK. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ ASWATHY VARGHESE, W/O.GEORGE VARGHESE, RESIDING AT THANAVU, OLAVAKKODE, PUDUPPARIYARAM AMSOM, PALAKKAD TALUK. ADV. SRI.D.KRISHNA PRASAD FOR R SRI.D.NARENDRANATH FOR R SRI.M.HARISHARMA FOR R SMT.O.K.SANTHA FOR R THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No.298 OF 2008 ------------------------ Dated this the 8thday of September, 2009 ORDER Pius C.Kuriakose, J. The tenant is the revision petitioner and he impugns orders of eviction concurrently passed against him by the Rent Control Court and the Appellate Authority on the grounds of arrears of rent section 11 (2) (b), bona fide own occupation section 11(3) and Section 11(4) (iii), the tenant's acquisition of other buildings reasonably sufficient for his requirements. 2. We have heard the submissions of Sri.V.Chitambaresh, learned senior counsel for the revision petitioner and those of Sri.D.Krishna Prasad, learned counsel for the respondent landlady. Even though several grounds have been raised in the memorandum of revision assailing the orders of the authorities below and the learned senior counsel Sri.Chitambaresh addressed us on all those grounds, he gave more thrust to the argument that the Rent Control Petition is not maintainable. According to him, the Will relied on by the respondent/landlady RCR .No.298/2008 2 for maintaining the RCP was under challenge before the Civil Court and, therefore, it was obligatory on the part of the landlady to have obtained consent of the persons who challenged the Will before the present RCP was filed. The learned counsel submitted that even if the challenge against the Will failed, then also the rent control petition was liable to fail since the landlady had two children Reena M.George and Royce V.George, who were also legal heirs of the deceased husband, the original landlord. There is no pleading in the RCP that the RCP being instituted on their behalf also. 3. All the submissions of Sri.Chitambaresh, were resisted by Sri.Krishna Prasad. Considering the submissions, on 2/7/2009 this court passed the following orders; “Shri.D.Krishna Prasad, the Counsel for the respondent submits that the Suit in which the Will in favour of the landlady's husband was under challenge has been finally dismissed. He submits further that the RCP has been filed by the landlady with the consent of co-owners and for the benefit of her children also. The RCR .No.298/2008 3 respondent is directed to file an affidavit before this Hon'ble Court regarding the finality of the judgment dismissing the Suit wherein the Will is under challenge. She is also directed to facilitate filing affidavit by all the children of the landlady stating that the R.C.P is being instituted with their consent.” 4. Pursuant to that order, separate affidavits were filed by the landlady and her children Reena M.George and Royce V.George against memo dated 2/7/2009. The children stated in their affidavits that their mother, the landlady, has filed RCP on their behalf also. The landlady in her affidavit has stated that the suit O.S. No.63/1997, in which the Will relied on by the landlady was under challenge, was dismissed and that the order dismissing that suit has become final. Sri.Chitambaresh, learned senior counsel submits that it is not proper on the part of this court to rely on the affidavits filed by the landlady's children since they are not founded in the pleadings raised by the parties. The learned senior counsel requested that the orders under RCR .No.298/2008 4 challenge be set aside and the RCP be remanded to the Rent Control Court directing the landlady to amend their pleadings in tune with the affidavits filed by herself and her children. 5. As his last submission, the learned senior counsel requests that at any event time till 31/12/2010 should be granted to the revision petitioner to surrender the premises. The learned counsel's request for remand and for more time till 31/12/2010 was stiffly opposed by Sri. Krishna Prasad. 6. We are not inclined to pass order of remand since the purpose of the remand can only be to enable the landlady to contend that the suit O.S.63/1997 has been finally dismissed and that the Will in favour of her husband had become operative. The further purpose can only be to bring on record the affidavits, which are filed by the landlady's children before this court stating that it is with their consensus also and in their interest also that their mother has filed RCP. We are convinced by the affidavits that the suit has been finally dismissed and that the landlady filed RCP on behalf of her children also. We have scanned the order of the Rent Control Court and the Judgment of the Appellate Authority by the yardstick applicable to the exercise of the RCR .No.298/2008 5 revisional jurisdiction under Section 20 of the Act. We do find any illegality, irregularity or impropriety justifying interference in revision. At the same time, we feel that there is justification for granting reasonably long period of time to the revision petitioner to surrender the premises though we are unable to grant so much of time as sought for by the learned senior counsel. 6. The result of the above discussion is as follows; 1). The RCR is dismissed. 2). The Execution Court is directed not to order or effect delivery of the petition schedule building in favour of the respondent landlady subject to the following conditions; i). The revision petitioner shall file an affidavit before the Execution Court or the Rent Control Court, as the case may be, undertaking to give peaceful surrender of the petition schedule building to the respondent landlady on or before 30/6/2010 and undertaking further to discharge arrears of rent, if any within one month and to pay occupational charges at the current rent rate RCR .No.298/2008 6 promptly and regularly till actual surrender of the premises. ii). Affidavit as directed above shall be filed within three weeks from today. It is made clear that revision petitioner will get the benefit of time granted under this judgment only if affidavit is filed on time. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk