The judgment reinforced the principle that a party must select either to appeal an ex parte decree or to seek to set it aside, but cannot pursue both simultaneously.

O R D E R

P.B.Suresh Kumar, J.

The petitioner was one among the persons arrayed as the successors of the deceased tenant in a proceedings for eviction instituted by the first respondent under Section 11 (2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act). Though the petitioner entered appearance in the proceedings and filed objections to the eviction petition, at the time of trial, the learned counsel for the petitioner reported no instructions. Consequently, the Rent Control Court set him ex parte. Thereupon, based on the proof afÏdavit filed by the first respondent and the documents produced along with the same, the Rent Control Court allowed the eviction petition under (3) on 31.01.2009. The petitioner, thereupon filed two interlocutory applications on 29.05.2009, I.A.No.4266(a) of 2009 for setting aside the ex parte order and I.A.No.4250 of 2009 for condoning the delay in filing the application to set aside the ex parte order. Later, on 10.06.2009, the petitioner preferred an appeal also before the Appellate Authority as R.C.A. No.32 of 2009 against the ex parte order. While R.C.A. No.32 of 2009 was pending, the Rent Control Court dismissed I.A.No.4266(a) of 2009 and I.A.No.4250 of 2009 by a common order passed on 03.03.2010. On 21.01.2011, the petitioner challenged the said order before the Appellate Authority in R.C.A. No.11 of 2011. During the pendency of R.C.A. No.11 of 2011, the Appellate Authority dismissed R.C.A. No.32 of 2009 for default. Later, the Appellate Authority dismissed R.C.A. No.11 of 2011 also, mainly on the ground that since R.C.A. No.32 of 2009 was dismissed for default, the petitioner is not entitled to pursue I.A.No.4266(a) of 2009. Pursuant to the said decision, the petitioner has been evicted from the building in execution of the ex parte order. Nevertheless, the petitioner has instituted this revision aggrieved by the decision of the Appellate Authority in R.C.A. No.11 of 2011.

2. Heard the learned Senior Counsel for the petitioner as also the learned counsel for the first respondent.

3. The main contention raised by the learned Senior Counsel for the petitioner is that inasmuch as the petitioner has entered appearance in the eviction petition on receipt of notice and filed objection, the Rent Control Court ought not have set him ex parte and proceeded with the eviction petition on the basis of the submission made by his counsel that he has no instructions in the matter. According to the learned Senior Counsel, the Rent Control Court, in the circumstances, was duty bound to issue notice to the petitioner before setting him ex parte. The learned Senior Counsel relied on the decision of the Apex Court inMalkiat Singh v. Joginder Singh, (1998) 2 SCC 206 , decision of the High Court of Gujarat inChimanlal v. Trishulam Co-Operative Housing Society Ltd., 2021 SCC OnLine Guj 770 and the decision of the High Court of Andhra Pradesh inGaruda Sakuntala v. A.V.M. Jagga Rao, 2000 SCC OnLine AP 550, in support of the said proposition. The learned Senior Counsel has reinforced the said submission pointing out that if the said course is not adopted, the right of the petitioner to get a fair opportunity of hearing, which is so fundamental to any civilised legal system would be seriously jeopardised, rendering the decision taken in this regard null and void. The learned Senior Counsel relied on the judgments of the Apex Court inKiran Singh v. Chaman Paswan, 1954 SCC OnLine SC 11,Ram Swarup v. Shikar Chand, 1965 SCC OnLine SC 41 and Radhy Shyam v. State of U.P. , (2011) 5 SCC 553 , in support of the said proposition. It was also argued by the learned Senior Counsel that at any rate, the Rent Control Court ought to have considered, in the light of the objection filed by the petitioner, the issues namely, whether the need set out by the first respondent is bona fide and whether the petitioner is entitled to the benefit of the second proviso to Section 11 (3) of the Act. According to