GRACY KUTTY Vs. VASUDEVAN

JUDGEMENT

(1.) Respondent herein is a tenant occupying a shop room belonging to the revision petitioner. Revision petitioner originally filed RCP 33 of 1975 before the Rent Control Court, Kayamkulam seeking eviction of the tenant from the premises on the ground that the premises is needed for reconstruction under S. 11(4)(iv) of the Kerala Act 2 of 1965. The case was transferred to the file of the Rent Control Court, Chengannur because of personal embarrassment of the Rent Controller, Kayamkulam. It was re-numbered as R.C.P. 15 of 1977. The Rent Controller dismissed the eviction petition. However, the appellate authority, in an appeal filed by the landlord, reversed the decision and allowed eviction on the ground sought for. This order was confirmed by the District Court in revision and by this Court in a second revision, the order of this Court having been passed on 1-4-1980. This Court granted two month's time to the tenant to vacate the premises and directed the landlord to reconstruct the building within one year from the date of surrender. This Court also held that the tenant has a first option to take a room on fair rent. The premises was surrendered on 2-6-1980. It was not reconstructed within the period of one year allowed by this Court. In January 1981, the tenant filed IA 764 of 1981 before the Rent Controller, Kayamkulam under the two provisos to S.11(4)(iv) of the Act praying that penalty may be levied on the landlord for wilful failure to comply with the order of reconstruction and direct the landlord to pay to the tenant the excess rent which the tenant has been constrained to pay for an alternative premises taken by him on rent. The Rent Controller declined to impose the fine under the first proviso, but passed an order directing the landlord to pay the excess rent which the tenant has been paying under the second proviso, and determined the excess rent as Rs. 210/- per month. The landlord challenged this order before the appellate authority, who, however, dismissed the appeal. Hence this revision.

(2.) Learned counsel for the revision petitioner has urged before us only two contentions; firstly that the Rent controller, Kayamkulam has no jurisdiction to pass an order of the nature passed by him and secondly that the second proviso to S.11(4)(iv) of the Act is inapplicable to the facts of the case.

(3.) Admittedly the disputed premises is situate within the territorial jurisdiction of the Rent Controller, Kayamkulam. "The eviction petition RCP 33 of 1975 was filed originally before the Rent Controller, Kayamkulam. It was subsequently transferred to the file of the Rent Controller, Chengannur and the case was re-numbered as RCP 15 of 1977. The Rent Controller originally dismissed the eviction petition, but that was allowed by the appellate authority and the order of the appellate authority was confirmed by the District Court in revision and the High Court in second revision. It is argued by learned counsel for the revision petitioner that since the eviction petition was initially disposed of by the Rent Controller, Chengannur, it is only that court which can pass an order under the two provisos and the Rent Controller, Kayamkulam has no jurisdiction. The first proviso to S.11(4)(iv) of the Act indicates that it is the Rent Control Court which is to impose fine and the reference in the second proviso is also to that court, namely, the Rent Control Court. Ordinarily this would mean that it is the Rent Control Court which has passed the eviction order is to pass the orders contemplated in the provisos. However, many a time it may not be the Rent Control Court which passes the eviction order, as in this case, and it may be the appellate authority or the revisional court which passes the order of eviction. Even in such cases the order contemplated under the provisos is to be passed by the Rent Control Court, at any rate initially. At first blush the contention of the revision petitioner that Rent Control Court, Chengannur having disposed of the eviction petition initially, that court itself must pass the orders contemplated under the provisos appears to be weighty; but it is seen that the landlord did not raise this contention in his objection to IA 764/81. If the landlord had raised such an objection, it would have been open to the tenant to withdraw the interlocutory application from the Kayamkulam Court and file it before the Chengannur Court. The tenant was deprived of that opportunity because of the failure of the landlord to raise this objection at the earliest opportunity. Now more than three years have passed since the interlocutory application was filed. Further, it is not as if the Rent Control Court at Kayamkulam has no territorial jurisdiction over the subject matter of the dispute; as we have pointed out, it is only that Court which has territorial jurisdiction over the subject matter. In these circumstances, we cannot permit the revision petitioner to raise this objection at this belated stage.