Raju Joseph vs M/S. Ponoth Shopping Complex Kaloor

K.T. Sankaran J.

The respondents filed R.C.P. No. 110 of 2008 on the file of the Rent Control Court, Ernakulam against the petitioner u/s 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act. The petitioner, who was the respondent in the Rent Control Petition, remained absent and he was set ex-parte. The Rent Control Court passed an order of eviction on 9.12.2010. The petitioner/ tenant filed I.A. No. 2888 of 2011 to set aside the ex-parte order. There was a delay of 136 days in filing the application. To condone the delay, the tenant filed I.A. No. 2889 of 2011. The Rent Control Court dismissed those applications. The tenant challenged that order in R.C.A. No. 87 of 2011 on the file of the Rent Control Appellate Authority, Ernakulam. The Appellate Authority dismissed the appeal. The tenant challenges in this Revision the order of the Rent Control Court and the judgment of the Rent Control Appellate Authority.

The tenant contended that he was suffering from inflammatory bowel disease and he was bedridden due to the disease and therefore he could not appear before the Rent Control Court on 6.12.2010. To substantiate the contention, the tenant relied on Ext. A1 discharge summary dated 27.12.2008 and Ext. A2 bill, both issued by the Christian Medical College, Vellore, respectively dated 27.12.2008 and 27.4.2011. The Court below did not rely on these documents on the ground that the documents would not support the case of the petitioner/ tenant that he was prevented by sufficient cause from appearing before Court on 6.12.2010. The tenant raised a contention that he had gone to Vellore Hospital on 6.12.2010 and he came back only after a week.

The Rent Control Court held that there is no document to prove the same. The Appellate Authority concurred with the findings of the Rent Control Court.

The learned counsel for the petitioner/ tenant submitted that the case put forward by the landlord on the merits of the case is not proved and the tenant did not get an opportunity to contest the case on the merits. Learned counsel submitted that the tenant is prepared to comply with any condition that may be imposed by this Court for granting him an opportunity to contest the case on the merits. The learned counsel appearing for the respondents submitted that the rent paid by the petitioner/ tenant at present is only Rs. 1,150/- and even that rent is in arrears from September 2003. It is also submitted that during the pendency of the R.C.A., the tenant paid Rs. 50,000/- and the balance payable is Rs. 74,000/-. Learned counsel for the landlord also raised a contention that in respect of two other rooms in the same building and having same plinth area, the Rent Control Court in R.C.P. Nos. 103 and 104 of 2010 fixed the fair rent at Rs. 9,900/- per month. It is submitted that the plaint schedule building is situated in an important location in the Ernakulam city and it will fetch a rent of more than Rs. 25,000/- per month.

The tenant had entered appearance before the Rent Control Court and filed counter. However, he did not appear when the case was posted for hearing. It is true that he could not prove to the satisfaction of the Court that he was prevented by sufficient cause from appearing before the Court when the case was posted for hearing. However, it is on record that he was under treatment for inflammatory bowel disease at Christian Medical College, Vellore on two earlier occasions. We are of the view that an opportunity can be afforded to the tenant to contest the case on the merits, on stringent conditions.

Accordingly the order passed by the Rent Control Court and the judgment of the Appellate Authority are set aside and I.A. Nos. 2888 and 2889 of 2011 in R.C.P. No. 110 of 2008 are allowed on the following conditions:

(i) The petitioner/tenant shall pay a sum of Rs. 10,000/- as costs to the respondent/ landlord within a period of one month.

(ii) The petitioner/ tenant shall deposit the entire arrears of rent before the Rent Control Court within a period of two months from today.

(iii) The petitioner/tenant shall pay monthly rent at the rate of Rs. 5,000/- to the respondents/landlords from 1.11.2012 onwards.

(iv) It is made clear that fixing of rent from November 2012 onwards at Rs. 5,000/- is only provisional and it does not bar the rights of either the tenant or the landlord in the matter of fixation of fair rent before the appropriate Court.

(v) The Rent Control Court shall dispose of R.C.P. expeditiously. The parties shall appear before the Rent Control Court on 17.12.2012.