(2013) 302 KLR 889 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

TUESDAY, THE 26TH DAY OF MARCH 2013/5TH CHAITHRA 1935

RCRev..No. 69 of 2012 ()

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AGAINST THE JUDGMENT IN RCA.155/2008 of ADDL.D.C. KOZHIKODE-III DATED 19-11-2011 AGAINST THE ORDER IN RCP.77/2007 of PRL.M.C.KOZHIKODE-I DATED 18-09-2008

REVISION PETITIONER(S)/REV. PETITIONER/SUPPLEMENTAL 4TH RESPONDENT/LEGAL REPRESENTATIVE OF PETITIONER IN RCP:

KRISHNADASAN S/O. KANDAN, RESIDING AT PULLARAPOYIL ASOKAPURAM NARAKKATH THRISSERI, ATHANIKKAL EAST EDAKKAD AMSOM PUTHIYANGADI DESOM OF KOZHIKODE TALUK.

BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH SHRI P.M.PADMANABHAN SMT.SANIKA V. SMT.RESMY NANDANAN

RESPONDENT(S)/APPELLANTS :

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1. NADUKANDI MOHANAN S/O. PENNUTTY, RESIDING AT PYYAPPANKAVU THARAMMEL EDAKKAD AMSOM DESOM, OF KOZHIKODE TALUK P.O. WEST HILL, KOZHIKODE-673005.

2. ITTUVEETTIL KUMUDAM D/O.PENNUTTY, RESIDING AT PYYAPPANKAVU THARAMMEL EDAKKAD AMSOM DESOM, OF KOZHIKODE TALUK P.O. WEST HILL, KOZHIKODE-673005.

(*) 3. RESODHA W/O. GOPALAN, RESIDING AT MUTHUSSERIKAVU KARANNUR AMSOM, PUTHOOR DESOM OF KOZHIKODE TALUK.

4. BALAKRISHNAN, S/O. KANDAN, NARAKKATH THRISSERI, PULLARAPOYIL ASOKAPURAM, ATHANIKKAL EAST, EDAKKAD AMSOM PUTHIYANGADI DESOM, KOZHIKODE, P.O.WEST HILL KOZHIKODE-673005.

(*) THE NAME OF THE THIRD RESPONDENT IN THE REVISION IS DELETED FROM THE ARRAY OF PARTIES AT THE RISK OF THE REVISION PETITIONER AS PER ORDER DT.6.7.12 ON I.A.NO.1481/12 R1,R2 BY ADV. SRI.JACOB ABRAHAM

THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 26- 03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

T.R. RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ.

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R.C.R.No.69/2012

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Dated this the 26th day of March, 2013

Head Note:-

Kerala Buildings (Lease and Rent Control) Act, 1965 - Section 11(2)(b) Proviso - Registered Notice - The notice is addressed to the first and second respondents - In the last portion it is stated that the first named person will have to show the notice to the second named person also - notice is sent by registered post to the first respondent - It is evident that the landlord has complied with the provisions for issuance of notice - Both are residing in the same address - Therefore, the view taken by the Appellate Authority that notice has not been properly served to one of them is not correct.

O R D E R

Ramachandran Nair, J.

This revision petition is filed by the landlord aggrieved by the reversal of the order passed by the Rent Control Court, by the Appellate Authority.

2. It is a case where the Rent Control Court passed an order of eviction. The petition was filed under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (for short, 'the Act'). On the ground that the respondents have been absent, they have been set ex parte and after considering the materials furnished by the petitioner, an order of eviction was passed. The Appellate Authority was of the view that the proviso to Section 11(2)(b) of the Act insists that it is the duty of the landlord that a registered notice has to be sent to the tenant intimating the default and an application for eviction can be filed only if the tenant has failed to pay or tender the rent together with interest at 6% per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or of the refusal thereof and, accordingly, it was held that the tenants have a right to pay the rent, interest and cost of notice as provided under the said proviso on receiving notice. If any of the tenants comply the proviso to Section 11(2)(b) of the Act, the landlord has no right to file an application for eviction under Section 11(2)(b). In fact, the finding of the Appellate Authority is about the insufficiency of the lawyer notice. It was contended by the landlord that a lawyer notice issued to one of the tenants was sufficient for the requirement under the proviso to Section 11 (2)(b) of the Act in the light of the decision of this Court in Abdurahiman Haji v. Balakrishnan [2003 (2) KLT 690]. It was held by the Appellate Authority that the said dictum laid down in the above case would not apply in the facts of this case because A2 notice produced before the Appellate Authority was addressed only to the first appellant therein and he had refused to accept the notice in spite of intimation.

3. Heard Shri P.A.Harish learned counsel for the petitioner and Shri Jacob Abraham for the respondents.

4. Learned counsel for the petitioner submitted that the notice was properly addressed and it was returned unclaimed. In the notice, it was specified that the same will be shown to the second respondent and, therefore, it is submitted that the same complies with the provisions of the Act.

5. In Abdurahiman's case (supra), a Division Bench of this Court considered the very same issue in para.10 of the Judgment and, after referring to the decision of the Apex Court in H.C.Pandey v. G.C.Paul [(1989) 3 SCC 77], it was held that Ext.A1 lawyer notice produced therein issued to the first respondent therein satisfied the requirement under the proviso to Section 11(2)(b) of the Act since the legal heirs of the original tenant, Narayana Swamy, are only joint tenants and not co-tenants.

6. Herein also the position is same. We have perused the documents produced in evidence by the landlord. The notice is addressed to the first and second respondents herein. In the last portion it is stated that the first named person will have to show the notice to the second named person also. The notice is sent by registered post to the first respondent herein.

7. In fact, the Appellate Authority even though considered the Judgment of this Court in Abdurahiman's case [2003 (2) KLT 690], it did not apply the dictum laid therein. We find that the reason pointed out for distinguishing the Judgment is not correct. It is evident that the landlord has complied with the provisions for issuance of notice. Both are residing in the same address. Therefore, we reverse the view taken by the Appellate Authority that notice has not been properly served to one of them.

8. Learned counsel for the respondents relying upon the decisions of this Court in Union of India v. Subbammal [1988 (2) KLT 58] and C.K.Rama v. Abdulla Kunhi and Another [1998 (1) KLJ 524] contended that it was obligatory on the part of the Rent Control Court, even in a case where tenants are set ex parte, to go into the details of the claim and enter findings with reasons therefor upon each separate issue.

9. One of the points raised before the Rent Control Court in the objections is relating to the alleged claim of kudikidappu right by the tenants. The landlord had produced before the Rent Control Court exhibits marked as Exts.A1 to A5. Exts.A3 to A5 respectively are the certified copies of the Orders in R.C.P.No.117/2003 and I.A.No.129/2004 in R.C.P.No.117/2003 on the file of the Munsiff's Court-I, Kozhikode and Judgment in R.C.A.No.149/2005 on the file of the District Court, Kozhikode. A reading of the same will show that even though an application was filed by the tenants claiming kudikidappu right and to refer the matter to the Land Tribunal, after going into the merits of the matter, the said plea was refused. The respondents herein are parties in the said proceedings also. In that view of the matter, we cannot find fault with the Rent Control Court for not entering any findings on the said issue which is already a closed chapter in the light of the earlier Judgment and Order between the parties.

10. We have gone through the grounds pleaded in the appeal memorandum also. There is no specific contention regarding the rate of rent or period of default and what is projected is with regard to the kudikidappu right under the Kerala Land Reforms Act. In the light of the above, we do not find that the Rent Control Court has erred in not separately going into the contentions of the tenants.

11. In view of the above, we allow the revision petition and restore the order passed by the Rent Control Court. We make it clear that the provisions of Section 11(2)(c) of the Act will apply as far as the execution of the order passed by the Rent Control Court is concerned and it is open to the tenants to avail the benefit under the provision. No costs.

Sd/- (T.R. Ramachandran Nair, Judge.)

Sd/- (A.V. Ramakrishna Pillai, Judge.)

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