MAMMU Vs. GEORGE AUGUSTUS PAPPALI

JUDGEMENT

(1.) All the three original petitions were filed by the tenants of building owned by first respondent against order of eviction passed under the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The Rent Controller found that petitioners in O.P.Nos. 4979 and 9803 / 92 are liable to be evicted under S.11(2)(b) of the Act on the ground of arrears of rent by Ext. P1 common order and dismissed the case of the landlord under S.11 (4)(iv) for reconstruction. The appellate authority, in all cases, granted order for eviction under S.11(4)(iv) of the Act after finding that the building is in a dilapidated condition and it requires reconstruction. The bona fides of the petitioners, ability of the landlord to reconstruct the building etc. were also found. The plan was also looked into. The appellate authority also found that the tenant will be entitled to get sufficient space allotted in the reconstructed building in accordance with the provisions of S.11(4)(iv) of the Act. Appellate Authority, on the basis of evidence, held as follows:

(2.) During the pendency of the original petition, the landlord died on 1-1-1993. The tenants impleaded the legal representatives of the landlord to continue the proceedings. The landlord's brother's son also filed a petition for impleading on the ground that the land and building was already given to him by a Will. It is the contention of the petitioners that there was a dispute regarding the correctness of the will by some relatives. Even though the above is settled by judgment of this court, actual probate is not so far granted. Three points are pressed by the petitioner. First point is that since original landlord died, bona fide of the present landlord for reconstruction is not proved and order of eviction is liable to be quashed. In any event, their case is that the capacity of the present owner to reconstruct the building and absence of a valid plan now etc. shall be looked into. Secondly, it was contended that lower authorities did not fix the date for reconstruction which is mandatory as per the section. Thirdly it is submitted that if there is any arrears, they are prepared to pay the amount under S.11(2)(c).

(3.) At the outset, it can be stated that power under Art.227 of the Constitution will be exercised only when there is error of jurisdiction or patent error on the face of the - record causing irreparable injustice and it is a discretional remedy. I am of opinion that the landlord was alive when the case was pending before the Rent Control Appellate Authority and Revisional Authority. The matter was decided during his term on the basis of the facts available about the case. Writ Petitions filed in 1992 under Art.227 were pending here for about ten years (nine years). Art.227 being a discretional