Point of Law: Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn appeal, no application shall lie under this rule for setting aside that ex-parte decree.

JUDGMENT :

P.G. AJITHKUMAR, J.

1. The petitioner is the tenant-respondent in Rent Control Petition No. 11 of 2008 on the files of the Rent Control Court, Thiruvananthapuram. Respondents/landlords filed the Rent Control Petition claiming eviction under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Petition was allowed on 01.01.2019 ordering eviction under Section 11(3) of the Act, ex-parte the petitioner. He filed Interlocutory Application No. 952 of 2019 before the Rent Control Court for setting aside the ex-parte order. It was dismissed as per order dated 18.09.2019. That order is under challenge in this Original Petition.

2. After dismissal of I.A. No. 952 of 2019, the petitioner filed Rent Control Appeal No. 5 of 2020 before the Rent Control Appellate Authority (Additional District Judge-VI), Thiruvananthapuram. There was a delay of 381 days in filing the appeal. The petitioner filed Interlocutory Application No. 1 of 2020 for condonation of the delay. The Appellate Authority after considering in detail, dismissed that application holding that sufficient cause was not shown to condone the delay. Consequent to the said order, R.C.A. No. 5 of 2020 was dismissed as time barred. Challenging the said orders, the petitioner filed R.C. Revision No. 23 of 2021 before this Court under Section 20 of the Act.

3. The petitioner would contend that despite the respondents having no objection for allowing Interlocutory Application No. 952 of 2019, the Rent Control Court proceeded to dismiss the petition. The Rent Control court followed the law laid down in Ratheesh vs. K.M. Chako, 2018 (5) KHC 35 that Section 5 of the Limitation Act was not applicable to the Rent Control proceedings, which was then the valid law, dismissed the petition. The petitioner submitted that having the said decision been overruled by a Full Bench of this Court in Hamsa K.K. and Others vs. Athikottu Snehalatha and Others, 2020 (6) KHC 609 the impugned order turned out to be illegal, and therefore, the ex-parte order of eviction dated 01.01.2019 in R.C.P. No. 11 of 2018 is liable to be set aside.

4. Heard the learned counsel appearing for both the petitioner and the respondents.

5. The learned counsel appearing for the petitioner submitted that the Rent Control Court was justified in dismissing his application for setting aside the ex-parte order in view of the position of law as existed then, but the change in the law entails him to get the order set aside, after condoning the delay, if any. The learned counsel appearing for the respondents, on the other hand, argues that the petitioner approached this Court without any bona-fides and, as he already availed the remedy of appeal by filling R.C.A. No. 5 of 2020, this Original Petition does not deserve consideration. It is further contended that the petitioner himself an Advocate by profession, cannot be heard to contend that he was not aware of the provisions of the law and the progress of the proceedings before the Rent Control Court. Further, the petitioner having filed the Rent Control Appeal without disclosing dismissal of I.A. No. 952 of 2019 by the Rent Control Court, cannot be extended the benefit of a discretionary remedy under Article 227 of the Constitution of India.

6. The petitioner is an Advocate having more than 20 years of practice. The petition scheduled building was taken on rent by him as early on 25.06.2007 for a monthly rent of Rs. 8,000/-. The Rent Control Petition for eviction was filed on the ground of arrears of rent and bona-fide need of the 2nd respondent for starting a business of his own, who is the son of the 1st respondent. During the pendency of the Rent Control Petition, the petitioner paid the entire arrears of rent, and therefore, the respondents did not press the claim for eviction under Section 11(2)(b) of the Act. Although notice was duly served on the petitioner, he did not appear before the Rent Control Court. Hence, after decla