Compliance with the requirements of Section 12(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965 is necessary to contest eviction.

ORDER :

(Johnson John, J.)

The revision petitioners are the tenants, who suffered an order of eviction under Section 12(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') and subsequently evicted in E.P No.377 of 2022 on 16-10-2023. Against the order under Section 12(3) of the Rent Control Court, the petitioners filed an appeal as RCA No.23 of 2023 with a petition to condone the delay of 309 days in filing the appeal and the Appellate Court dismissed the petition to condone the delay for want of sufficient cause with an observation that the appeal and delay condonation petition filed at the fag end of the execution proceedings is only a dilatory strategy to drag the proceedings.

2. Heard the learned counsel for the revision petitioners and the learned counsel for the respondents.

3. Learned counsel for the revision petitioners argued that the landlords filed I.A No.4 of 2021 in RCP No.46 of 2021 seeking payment of admitted arrears of rent even before the tenants filed their objection to the RCP and a perusal of Section 12 of the Act would show that the contest in the RCP is a prerequisite to entertain an application under Section 12 of the Act. Learned counsel for the revision petitioners pointed out that in the order under Section 12(1) of the Act, even though, 30 days time is fixed for remitting the rent arrears from February 2021 till the date of the order, no time is fixed for payment of the rent arrears from 01-02-2020 till 31-01-2021 and in that circumstance, the order of eviction passed under Section 12(3) of the Act on 03-09-2022 is not legally sustainable. Another contention raised by the learned counsel for the revision petitioners is that the proceedings of the Rent Control Court in the RCP dated 30-08-2022 shows thus, “Both represented. Order not complied. Issue show cause.” It is argued that in spite of the above order to issue show cause, no notice was issued from the court or served on the revision petitioners and in this connection the learned counsel for the petitioners also pointed out that as per Rule 22 of the Kerala Buildings (Lease and Rent Control) Rules, 1979, the notice is required to be served on the person concerned personally by delivering or tendering to him and in the absence of personal service of show cause notice the order dated 03-09- 2022 is illegal and liable to be set aside.

4. Learned counsel for the respondents/ landlords argued that after the eviction order under Section 12(3) of the Act on 03-09-2022, the tenants appeared before the execution court and contested the E.P seriously and only at the fag end of the execution proceedings they filed the RCA with a petition to condone the delay of 309 days in filing the appeal and there is no illegality or irregularity in the order of the Appellate court dismissing the petition to condone the delay. It is argued that the petitioners filed the appeal with a delay condonation petition at the fag end of the execution proceedings with an intention to sabotage the execution proceedings. Even though the petitioner pleaded that on account of his health issues, he was not in a condition to meet his counsel to take the necessary steps to file the appeal and that he was also hospitalized for serious respiratory illness, no satisfactory evidence is adduced to substantiate the said pleadings and it is also evident that during the relevant period, the tenants appeared in execution proceedings and seriously contested the matter.

5. Learned counsel for the petitioners cited the decision of this Court in Pochappan Narayanan v. Gopalan (1990(2) KLT 1) in support of the contention that the jurisdiction under Section 12 of the Act can be exercised only after filing of the objection by the tenants in the RCP. But in the above decision relied on by the learned counsel for the petitioners the question considered was whether the tenant can file an appeal before payment of the admitted arrears of rent and this Court held that the word 'prefe