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2023 Supreme(Online)(KER) 13264
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA,
1944
OP (RC) NO. 229 OF 2022
AGAINST THE ORDER IN I.A NO.1/2022 IN RP AND I.A
NO.5/2022 IN RCP 6/2019 OF MUNSIFF COURT, PAYYOLI
RP 5/2022 OF A.A.(LR),KOZHIKODE
PETITIONER/RESPONDENT:
KAITHAVALAPPIL BINDU, AGED 45 YEARS, W/O.
PAVITHRAN,
TAILORING SHOP, ROOM NO. PP 12/743, MELADY
AMSOM, DESOM, KOYILANDY TALUK, PIN – 673 305
BY ADV O.D.SIVADAS
RESPONDENT/PETITIONER:
POYILTHAZHA AMMED, AGED 57 YEARS, S/O. ANTHRU,
THEKKE ANIYATHUR HOUSE, KEEZHUR POST, MELADY
AMSOM, KEEZHUR DESOM, KOYILANDY TALUK, PIN – 673
305
BY ADV ZUBAIR PULIKKOOL
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION
ON 11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP (RC) NO. 229 OF 2022
..2..
A tenant who has not received notice in rent control proceedings may have an ex-parte order set aside upon condition that they pay the entire arrears of rent.
Headnote:
Fact of the Case:
The tenant filed an original petition after being set ex-parte in rent control proceedings for eviction, claiming she did not receive notice in the proceedings.
Finding of the Court:
The court found that the Rent Controller had not verified whether the tenant had received notice in the rent control proceedings and that serious irregularities had been committed.
Issues: Whether the tenant had received notice in the rent control proceedings.
Ratio Decidendi: The court held that the tenant was entitled to have the ex-parte order set aside upon condition that she pay the entire arrears of rent within four weeks.
Final Decision: The court set aside the impugned order and restored the rent control petition on the condition that the tenant pay the entire arrears of rent within four weeks.
J U D G M E N T
A. Muhamed Mustaque, J This original petition is filed by the tenant, who was set ex-parte in rent control proceedings for eviction. The main contention raised by the tenant is that she has not received notice in rent control proceedings. She approached the Rent Controller only when she received a notice in Execution Petition.
2. It is true that there was a delay in approaching the Court when she came to know about the Execution Petition. It is to be noted that the Rent Controller had not adverted to the fact that whether she had received notice in rent control proceedings or not. The Rent Controller could have verified the file and found out whether notice has been received by the petitioner-tenant or not. Serious irregularities have been committed by the Rent Controller. We would have inclined to remand back this matter.
However, the learned counsel for the tenant would submit that the tenant is prepared to clear the entire arrears of rent of Rs.1 Laksh and the ex- parte order may be set aside. Accepting this submission, we set aside the impugned order on condition that the petitioner would pay the entire arrears of rent approximately of Rs.1 Lakh within four weeks from today. On complying the condition as above, the application would stand allowed and the rent control petition would stand restored. The parties are directed to appear before the Rent Controller on 17.02.2023. Thereafter, the Rent Controller shall dispose of the case before the Court closes for summer holidays.
This original petition is disposed of as above.
APPENDIX OF OP (RC) 229/2022 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF RCP NO. 6/2019 FILED BY THE RESPONDENT HEREIN, DATED
18.3.2019, ON THE FILES OF THE RENT CONTROLLER / MUNSIFF - MAGISTRATE, PAYYOLI Exhibit P2 THE TRUE COPY OF THE PETITION DATED
8.6.2022 TO SET ASIDE EXPARTE ORDER IN RCP NO.6/2019.
Exhibit P3 TRUE COPY OF THE AFFIDAVIT DATED
8.6.2022 FOR CONDONATION OF DELAY IN FILING THE PETITION FOR SETTING ASIDE THE EXPARTE ORDER IN RCP NO.6/2019.
Exhibit P4 TRUE COPY OF THE COUNTER STATEMENT IN RPIA NO.5/2022 IN EP NO.64/2021 IN RCP NO.6/2019, DATED 31.8.2022 FILED BY THE COUNSEL FOR THE RESPONDENT.
Exhibit P5 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE COUNSEL FOR THE RESPONDENT HEREIN IN IA NO. 1/2022 IN RPIA NO.5/2022 IN RCP NO.6/2019 DATED
14.9.2022.
Exhibit P6 TRUE COPY OF THE PROOF AFFIDAVIT DATED
8.11.2022, BY THE PETITIONER HEREIN, BEFORE THE HON'BLE RENT CONTROL COURT (MUNSIFF), PAYYOLI, IN IA NO.1/2022 IN RPIA NO.5/2022 IN RCP NO.6/2019.
Exhibit7 TRUE COPY OF THE COMMON ORDER DATED
17.11.2022 ISSUED BY THE HON'BLE RENT CONTROL COURT (MUNSIFF), PAYYOLI, IN IA NO.1/2022 IN RPIA NO.5/2022 IN RCP NO.6/2019.
