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2023 Supreme(Online)(KER) 31161
HIGH COURT OF KERALA
P. B. Suresh Kumar, SOPHY THOMAS, JJ
PRATHEESH – Appellant
Versus
KALAVISHNU – Respondent
RCRev. 31 2023
SRI.R.PARTHASARATHY, SMT.SEEMA, SRI.SANAL KUMAR, S BHAVANA VELAYUDHAN(K/290/2003), T.J.SEEMA(K/391/2002)
A tenant can challenge an ex parte eviction order under the Kerala Rent Control Act without a delay condonation petition if delays arise from circumstances such as a Supreme Court directive.
Headnote:
Revision - Rent Control - Kerala Buildings (Lease and Rent Control) Act - Sections 11(2)(b), 11(4)(ii), 11(8) - The court emphasized the importance of timely applications and procedures in eviction cases, interpreting the Act to allow opportunities for tenants to challenge orders under specific conditions.
Fact of the Case:
A tenant challenged the ex parte eviction order passed against him, claiming delays in proceedings were not due to his fault and referring to a Supreme Court directive on limitation during a pandemic.
Finding of the Court:
The court found that the tenant had not been vigilant in defending his case, leading to repeated ex parte orders, but ruled that the ex parte order could be set aside without a delay application due to a Supreme Court ruling.
Issues: Whether the tenant could set aside an ex parte order without filing a delay condonation petition, given specific Supreme Court directives on limitation.
Ratio Decidendi: The court held that an ex parte decree can be set aside if there is no genuine delay in filing the petition, especially in light of extraordinary circumstances recognized by the Supreme Court.
Final Decision: The revision petition is allowed, setting aside the ex parte order of eviction subject to payment of costs.
O R D E R
Sophy Thomas, J.
The tenant is in revision challenging the order in RP No.16 of 2022 in RCP No.18 of 2019.
2. The landlord filed RCP No.18 of 2019 for evicting the tenant under Section 11 (2)(b), 11(4)(ii) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as ‘The Act’). The Rent Control Court passed an ex parte order in the RCP on 17.01.2022. The tenant filed RP No.16 of 2022 for setting aside the ex parte order, but it was dismissed by the impugned order dated 27.09.2022. The tenant took the matter in appeal by filing RCA No.19 of 2022, but there also he could not succeed. He is challenging the judgment of the Rent Control Appellate Authority in this revision.
3. According to the tenant, from the very beginning, he was challenging the title of the landlord over the petition schedule building. Though he filed a petition for hearing maintainability as a preliminary issue, it was dismissed. Thereafter, the RCP was posted for trial. He filed an application to issue a Survey Commission, and also a petition to remove the case from the list. Both applications were dismissed and the trial was proceeded with in his absence, and an ex parte order of eviction was passed on 17.01.2022. The Rent Control Court dismissed his application to set aside the ex parte order, on the ground that it was not accompanied by a petition to condone the delay. The Rent Control Appellate Authority also dismissed his appeal, on the ground that there was no delay condonation petition along with the petition to set aside the ex parte order. The ex parte order was dated 17.01.2022. He filed the petition to set aise the ex parte order on 17.02.2022. As per Rule 13(3) of the Kerala Buildings (Lease and Rent Control) Rules , 1979, 15 days is the time limit to make an application, from the date of receipt of the orders.
4. According to the tenant, there was no delay, as the Honourable Supreme Court in Suo Motu Writ Petition No.3 of 2020 directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of Limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. The period in question is covered by that decision and so, there was no delay to be condoned and so much so, there was no necessity to file an application for delay condonation. With that grievance, the tenant filed the Revision Petition, invoking the revisional jurisdiction of this court under Section 20 of the Act.
5. Heard learned counsel Sri.R.Parthasarathy appearing for the tenant and learned counsel Sri.S.Sanal Kumar appearing for the landlord.
6. Sri.S.Sanal Kumar, learned counsel appearing for the landlord, contended that the revision is filed only with a view to drag the proceedings indefinitely. He invited our attention to the fact that the tenant was not properly defending his case, and earlier on two occasions he was set ex parte, prior to the ex parte order dated
17.01.2022. When the case was posted for evidence, the tenant filed unnecessary petitions and it was dismissed by the Rent Control Court, and after taking evidence of the landlord, the RCP was allowed in his favour. In fact, it was not an ex parte order to be set aside on a petition filed under Order IX Rule 13 of CPC. It is an admitted fact that the tenant remained absent when the landlord adduced evidence, and in his absence, an order was passed and so, the order dated
17.01.2022 is to be treated as an ex parte order.
7. At the time of hearing, learned counsel for the tenant submitted that he has preferred an appeal also, as RCA No. 5 of 2023 against the ex parte decree of the Rent Control Court dated 17.01.2022. The present revision is against the order of the Rent Control Appellate Authority in RCA No.19 of 2022, upholding dismissal order of the Rent Control Court in RP No.16 of 2022, filed under Order IX Rule 13 of CPC, to set aside the ex parte order. Whereas RCA No.5 of 2023 is an appeal under
