IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 WP(C).No. 21140 of 2009(J) -------------------------- RCA.25/2003 of DISTRICT COURT, KASARAGOD RCP.26/2001 of SUB COURT, KASARAGOD .................... PETITIONER(S): --------------- 1. GURUDATHA MALLYA 2. CHANDRASEKHARA MALLYA 3. RAMADAS MALLYA (ALL ARE CHILDREN OF THE KOGGU MALLYA, MERCHANTS, RESIDING AT NULLIPPADY, KASARAGOD KASABA VILLAGE, KASARAGOD TALUK AND DISTRICT, KASARAGOD POST. BY ADV. SRI.M.CHATHUKUTTY NAMBIAR RESPONDENT(S): --------------- 1. P.H.ABDHULKHADER (DEAD) 2. SMT.ZUHARA, W/O.LATE ABDHULKHADER 3. A.K.ASHAF, 4. A.K.ABOOBACKER, (RESPONDENT 1, 2, 3, 4 RESIDING AT THALANGARA VILLAGE, KASARAGOD). 5. GOWRI 6. SEETHARATHNA 7. VATHSALA, (RESPONDENTS 5 TO 6 ARE CHILDREN OF LATE KOGGU MALLYA RESIDING AT NULLIPPADY, KASARAGOD KASABA VILLAGE, KASARAGOD TALUK AND DISTRICT. 8. MUHAMMEDALI MULIYAR, HASANATHUL JARIA MASJID COMMITTEE, RAILWAY STATION ROAD, KASARAGOD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & P.Q.BARKATH ALI, JJ. ------------------------ W.P.C.No.21140 OF 2009 ------------------------ Dated this the 28th day of July, 2009 JUDGMENT Pius C.Kuriakose, J. Under challenge in this writ petition under Article 227 are Exts.P4 and P5 orders passed by the rent control appellate authority which is presently in seizin of RCA No.20/2008 filed by the petitioners against Ext.P3 order of eviction passed by the rent control court inter alia on the ground of arrears of rent. In fact, in response to the RCP, the petitioners denied the title of the landlord. Ignoring that contention, the rent control court allowed the RCP. An appeal was preferred by the petitioners to the rent control appellate authority and the appellate authority set aside the order of the rent control court and remanded the RCP to the rent control court for considering the question whether the denial of the landlord's title by the petitioners is bona fide one . Pursuant to that order, the matter was enquired into and the rent control court has passed Ext.P3 order. RCA No.20/2008 was preferred by the petitioners against Ext.P3. In that RCA the landlord filed I.A. No.403/2008 seeking direction WPC.No.21140/2009 2 that the tenant deposits the entire arrears of rent as found by the rent control court. By Ext.P4 order dated 23/6/2009, the rent control appellate authority allowed the I.A. and directed the petitioners to deposit the entire arrears of rent on or before 7/7/2009. The petitioners did not make the deposit. I.A. No.403/2009 was considered by the appellate authority again on 7/7/2009. On that day, on the basis of application submitted by the petitioners, by Ext.P5, the appellate authority extended the time to deposit the entire arrears of rent till 29/7/2009. It was clarified that the posting on 29/7/2009 is peremptory and that no further extension will be granted. 2. In this writ petition under Article 227, the petitioners impugn both Exts.P4 and P5. Even though Sri.M.C.Nambiar, learned counsel for the petitioners, would address us strenuously, we are not persuaded to hold that Ext.P4 or for that matter Ext.P5 suffers from any infirmity so as to justify invocation of visitorial jurisdiction of this court under Article 227. We are unable to say that Exts.P4 and P5 are per se illegal orders or they are orders passed without jurisdiction. We cannot say that those orders result in patent injustice or failure of justice. We WPC.No.21140/2009 3 cannot also say that those orders violate any provisions of law either settled or statutory. In fact, it is obligatory that the tenant who prefers appeal against order of eviction passed by the rent control court, as is done by the present petitioners by filing RCA No.20/2008, deposits the arrears of rent. The learned counsel Sri.M.C.Nambiar would argue that the finding of the rent control court in Ext.P3 that denial of the landlord's title is not bona fide is wrong and the same is under challenge in RCA No.20/2008. Whatever that be, we are of the view that if the petitioners want to prosecute the RCA further, they should deposit the arrears of rent as found by the rent control court. However, considering the submission of Sri.M.C.Nambiar, we are inclined to issue direction to the appellate authority to expedite matters and dispose of RCA No.20/2008 early. Accordingly, we dispose of this writ petition issuing the following directions; i). The rent control appellate authority, Kasaragod, which is in seizin of RCA NO.20/2008, is directed to dispose of that RCA in accordance with law at the earliest WPC.No.21140/2009 4 and at any rate within five weeks of receiving a copy of this judgment. ii). In the meanwhile, Exts.P4 and P5 will be kept in abeyance on condition that the petitioners deposit before the rent control appellate authority on or before 7/8/2009 atleast 50% of the arrears of rent as found by the rent control court under Ext.P3 to be due in respect of the building from the petitioners. PIUS C.KURIAKOSE,JUDGE P.Q.BARKATH ALI, JUDGE dpk