Palakkodan Abdullakkutty vs Mailanchikkal Marakka Valappil … on 1 December, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RCRev..No. 87 of 2007()


1. PALAKKODAN ABDULLAKKUTTY,
                      ...  Petitioner

                        Vs



1. MAILANCHIKKAL MARAKKA VALAPPIL NOORJAHAN
                       ...       Respondent

                For Petitioner  :SRI.M.SASINDRAN

                For Respondent  :SRI.GRASHIOUS KURIAKOSE

The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN

 Dated :01/12/2009

 O R D E R
           PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ.
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                               R.C.R. NO: 87 OF 2007
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                     Dated this the 1st December, 2009.

                                          O R D E R

PIUS C.KURIAKOSE, J.

Under Challenge in this revision filed by the tenant under

Section 20 of Act 2 of 1965 is a judgment of the Rent Control

Appellate Authority, Thalasserry passed on 26.7.2006 closing the

Rent Control Appeal itself, in view of an order of eviction already

passed by the Rent Control Appellate Authority in I.A.304/2005

directing the tenant to put the landlord in possession of the

building. The main ground on which the impugned judgment is

assailed is that after the Appellate Authority had passed the order

dated 21.2.2006, the revision petitioner filed an affidavit dated

23.3.2006 before the Appellate Authority. It was brought to the

notice of the Appellate Authority through the said affidavit that

even before I.A.304/2005 was filed by the landlord, the tenant had

deposited the rent due in respect of the building for the period up

to 1.12.2005. According to Mr. M.Sasindran, learned counsel for

the revision petitioner, the Appellate Authority was obliged to

notice the above affidavit and suo motu cancel the order of eviction

RCR 87/2007 2

passed on 21.2.2006 in I.A.304/2005 and thereafter proceeded to

decide the Rent Control Appeal on its merits.

2. Mr. Grashious Kuriakose, learned counsel for the

respondent would submit that the question to be decided by this

Court in the instant revision is whether the judgment of the

Appellate Authority impugned herein is vitiated by any infirmity

warranting invocation of the revisional jurisdiction. Learned

counsel pointed out that the order of eviction passed by the

Appellate Authority in I.A.304/2005 is a summary order of eviction

having the trappings of an order passed under Section 12(3) of Act

2 of 1965.

3. In reply Mr. Sasindran would draw our attention to a

judgment of the Division Bench of this Court in Mary Beena John v.

Additional District Court {1996(2) KLT 955}. The learned counsel

pointed out that the R.C. Appeal was an appeal filed by the landlord

who was aggrieved by the order of the Rent Control Court

dismissing the application for eviction filed by him. In such an R.C

Appeal, Section 12 cannot have any application.

4. Mr. Grashious Kuriakose submitted that the legislative

intendment underlying Section 12 is to ensure that the landlord

RCR 87/2007 3

gets at least arrears of rent admitted by the tenant and the rent

which admittedly falls due before the tenant is allowed to contest

eviction proceedings. According to him the judgment in Mary

Beena John’s case requires reconsideration.

5. According to us it is not necessary to decide the question

whether the judgment in Mary Beena John’s case requires

reconsideration for deciding the instant revision. It is not disputed

that it is an order of eviction which is passed against the revision

petitioner on 21.2.2006 by the Appellate Authority in I.A.304/2005.

That order is yet to be challenged formally by the revision

petitioner. The revision petitioner, is not entitled to challenge that

order collaterally in the instant revision which is directed against

the judgment of the Rent Control Appellate Authority closing the

RCA in view of the order in I.A.304/2005. We are in agreement

with Mr. Grashious Kuriakose who submits that so long as the

order of eviction passed by the Appellate Authority in I.A.304/2005

stands, the impugned judgment cannot be faulted. We dispose of

the RCR observing that the remedy of the revision petitioner if he

has grievance is to challenge the order dated 21.2.2006 in

I.A.304/2005 by initiating appropriate proceedings in that regard.

RCR 87/2007 4

However, there will be a direction that the order of stay currently in

force will continue for a period of six weeks from today.

PIUS C.KURIAKOSE
Judge

K. SURENDRA MOHAN
Judge

jj

PIUS C.KURIAKOSE &
K.SURENDRA MOHAN, JJ.

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L.A.A.NO:

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JUDGMENT

Dated: