K. Saudath vs Kollanchalil Pocker and C. Abdul Azeez

Pius C. Kuriakose, J.—Under challenge in this revision u/s 20 filed by the tenant is the judgment of the Rent Control Appellate Authority "dismissing" RCA.245/96. The case has a chequered career. The parties will be referred to as the landlord and tenant. The landlord sought to evict the tenant by invoking the ground of sublease and arrears of rent u/s 11(4)(i) and 11(2)(b). It is submitted by both sides that we need be concerned only with the ground of sublease. The allegation of the landlord was that the tenant sublet the building to the alleged sub lessee one Abdul Azeez who was none other than the tenant''s direct brother-in-law. The tenant''s defence was twofold. Firstly, the arrangement was not one of sublease. The brother-in-law was only helping the tenant. Secondly the defence was that at any rate, the sublease was terminated within a period of 30 days of the notice and the alleged sub lessee has left the country for a foreign country even before the notice. The Rent Control Court accepted the defence and dismissed the RCP holding that there is no sub lease. The Appellate Authority, however, considering the appeal preferred by the landlord interfered with the finding of the Rent Control Court and found that there is objectionable sublease. The Appellate Authority ordered eviction on the ground of sub lease. The tenant came to this Court filing CRP.2039/02. This Court noticed that one question to be decided was whether the sub lease in favour of Abdul Azeez was terminated within a period of 30 days of the notice as claimed by the tenant. This Court set aside the judgment of the Appellate Authority and remanded the appeal to the Rent Control Appellate Authority for fresh disposal giving opportunity to both sides to adduce further evidence in substantiation of their rival contentions. It is pursuant to the above order of remand that the Appellate Authority has passed the impugned judgment.

We were taken through the full text of the judgment. A reading of paragraphs 1 to 12 in the judgment will show that the Appellate Authority has clearly found that the eviction ground of sublease is established. However, in the last paragraph this is what the Appellate Authority says "In the result, the appeal is dismissed. Both parties are directed to bear their respective costs in the appeal."

According to Sri. Grashious Kuriakose, the learned Counsel for the revision petitioner, the order dismissing the appeal is a patent mistake arising from an accidental slip or omission. Counsel requested that we may notice the above mistake and allow the RCR in full.

Sri. S.V. Balakrishna Iyer, the learned senior counsel for the respondent per contra would draw our attention to the Passport of Abdul Azeez which was produced by the tenant before the Appellate Authority vide I.A.1316/01. Drawing our attention to the endorsements in the Passport Sri. Balakrishna Iyer argued that it is crystal clear from those endorsements that Sri. Abdul Azeez, the alleged sub lessee was not even in the country at the time when the statutory notice under the proviso to Section 11(4)(i) was issued. According to him, the Passport should have been relied on and the finding that there is sublease and that such sublease was not terminated within 30 days of the notice should have been vacated.

The submission of Sri. Balakrishna Iyer has some appeal to us. But we are not inclined to accept that submission in the present revision which is filed by the landlord. We find force in the submission of Sri. Grashious Kuriakose that the ultimate order passed by the Appellate Authority dismissing the appeal despite all the findings entered in favour of the landlord is the result of a mistake resulting from an accidental slip or omission. According to us, it was unnecessary for the revision petitioner to have invoked the revisional jurisdiction of this Court. Revision petitioner could have invoked the jurisdiction of the Appellate Authority u/s 152 of the CPC or the jurisdiction for review under Order 47 Rule 1. We permit the Revision Petitioner to invoke either of the above jurisdictions and dispose of the RCR without examining or deciding the merits of the submissions addressed by Sri. Balakrishna Iyer. If application for review or correction is filed by the revision petitioner within three weeks from today, the same will be entertained and disposed of by the appellate authority in accordance with law with notice to the landlord.