Kerala High Court
Mohammed Shameer K.P vs C. Ashokan on 29 March, 2017
Bench: K.Harilal, Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
MONDAY, THE 14TH DAY OF AUGUST 2017/23RD SRAVANA, 1939
RCRev..No. 266 of 2017 ()
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RCA 19/2011 of RENT CONTROL APPELLATE AUTHORITY/ADDL. DISTRICT
COURT, TIRUR DATED 29-03-2017
IA 1296/2011 IN RCP 28/2008 OF RENT CONTROL COURT, TIRUR DATED
17-10-2011
REVISION PETITIONER(S)/APPELLANT/PETITIONER:
-------------------------------------------
MOHAMMED SHAMEER K.P
S/O. K.P JAMAL, KOLLATHUPARAMBIL HOUSE,
ALATHIYOOR(PO), PIN-
TIRUR TALUK, MALAPPURAM DISTRICT.
BY ADVS.SRI.JAMSHEED HAFIZ
SMT.T.S.SREEKUTTY
RESPONDENT(S)/RESPONDENTS/PETITIONER:
-------------------------------------
1. C. ASHOKAN
S/O. CHEMANNUR PATHMAVATHI AMMA, ASHOK,
THRIKKANDIYOOR (PO), TIRUR TALUK,
MALAPPURAM DISTRICT.
2. K.P AYISHA, W/O. K.P JAMAL,
3. K.P SHAJI, S/O. K.P JAMAL.
4. K.P SALMA, D/O. K.P JAMAL.
5. K.P SHEFEEQUE,S/O. K.P JAMAL.
RESPONDENTS 2 TO 5 ARE RESIDING AT
KOLLATHUPARAMBIL HOUSE, ALATHIYOOR (PO), PIN -
TIRUR TALUK, MALAPPURAM DISTRICT.
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON 14-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
OKB
K.HARILAL & SATHISH NINAN, JJ.
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R.C.R. No.266 OF 2017
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Dated this the 14th day of August, 2017
O R D E R
Harilal, J.
The revision petitioner is the tenant, who is suffering from an ex parte order of eviction. This revision has been filed against the judgment passed by the Appellate Authority in RCA No.19/2011 in RCP No.28/2008. The Rent Control Petition was filed under Sections 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, "the Act") and an ex parte order of eviction has been passed against the tenant. The above appeal was filed challenging the dismissal of two petitions; I.A.No. 1296/2011 and I.A.No.1297/2011 in RCP No.28/2008, by the order dated 17/10/2011 of the Rent Control Court, Tirur. I.A.No.1296/2011 was filed under Section 5 of the Limitation Act. I.A.No.1297/2011 was filed to set aside the ex parte order passed against him.
2. According to the tenant, he has not received any RCR.266/17 :2:
notice either in the Rent Control Petition or in the execution petition. He was out of India and came back only on 13/6/2011. Thus, the tenant was unaware of the Rent Control Petition and he came to know about the ex parte order only on 13/6/2011, when the officers came to the petition schedule building for effecting delivery.
3. The landlord resisted the said contentions contending that the case was listed for trial on 10/9/2009 and an ex parte order was passed against the tenant on 23/10/2009. Against the said order, RCA No.3/2010 was filed by the tenant herein with a petition to stay the order, before the Appellate Authority. So the contention of the appellant that he was unaware of the Rent Control Petition is an utter falsehood. In the execution proceedings, on two occasions, the Amin of the court below went to the petition schedule building and attempted to effect delivery; but it was obstructed by the tenant herein and others.
4. After considering the rival pleas, the appellate court dismissed the appeal on a finding that the tenant failed to satisfy the court that there was sufficient cause for not appearing before the Rent Control Court. This revision RCR.266/17 :3:
is filed challenging the legality and propriety of the concurrent finding of the courts below that the tenant failed to satisfy the Rent Control Court by furnishing sufficient cause, for not appearing before the court.
5. Going by the impugned judgment, it is seen that the specific case of the tenant herein is that he was working abroad and neither in the Rent Control Court nor in the execution court he has received notice. In short, according to him, notice was not duly served on him in the Rent Control Court and the execution court. But it has come out in evidence that the tenant had filed an appeal RCA No.3/2010 with a petition to stay the order before the appellate court. So the contention of the appellant that he was unaware of the pendency of the Rent Control Petition till the filing of the present petition is nothing but a falsehood. More importantly, no evidence has been adduced to prove that he was working abroad and came back to India only on 13/6/2011.
6. In the absence of evidence to prove sufficient reason for not appearing before the Rent Control Court on the day when the case was listed for trial, the courts below RCR.266/17 :4:
are justified in dismissing the application and the appeal respectively. In the matter of condoning delay, liberal view is the general rule with certain exceptions. Lack of bona fides imputable to a party seeking condonation of delay is a relevant factor falling under the exception. Here, the reason for delay was found to be an utter falsehood. Therefore, the petitioner was not entitled to get the delay condoned, by taking a liberal view. The above view is supported by the decision of the Apex Court in Isha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others [2013 (12) SCC 649]. We do not find any reason to interfere with the concurrent findings of the courts below. Hence this Rent Control Revision will stand dismissed.
Sd/-
K.HARILAL, Judge.
Sd/-
SATHISH NINAN, Judge.
okb.