## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR**
**&**
**THE HONOURABLE MRS. JUSTICE C.S. SUDHA**
**WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA,**
## **1944**
**RCREV. NO. 66 OF 2019**
**AGAINST THE ORDER DATED 27.06.2017 IN RCP NO.106 OF 2013 OF PRINCIPAL MUNSIFF'S COURT KOZHIKODE-I CONCURRING WITH THE COMMON JUDGMENT IN RCA NO.153 OF 2018 DATED 06.02.2019 OF THE RENT CONTROL APPELLATE AUTHORITY,**
**KOZHIKODE.**
## **REVISION PETITIONER/APPELLANT/RESPONDENT:**
**M.V.ABDUL GAFOOR, AGED 60 YEARS S/O P.N. HASSAN KOYA, A.V.HOUSE, NAGARAM AMSOM, DESOM, KOZHIKODE TALUK**
**BY ADV E.NARAYANAN**
## **RESPONDENT/RESPONDENT/PETITIONER:**
**RAMLA, D/O POKKER HAJI, LYLA QUARTERS, KUNHIKOYILOTH, KUMMANGODE AMSOM, KAKKAVALLY DESOM, VATAKARA TALUK 673111**
**BY ADVS. SRI.M.PROMODH KUMAR SMT.MAYA CHANDRAN**
**THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.**
## **-----------------------------------------------**
## **R.C.Rev. No.66 of 2019**
## **-----------------------------------------------**
## **Dated this the 23[rd] day of November, 2022.**
## **O R D E R**
## **P.B.Suresh Kumar, J.**
The tenant in a proceedings for eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act), is the petitioner in this revision petition.
2. The subject matter of the proceedings is a shop room. It is alleged by the landlady in the eviction petition that the said premises was leased out to the tenant by her predecessor on 23.10.1991 on a monthly rent of Rs.1,950/-; that she obtained title to the property by virtue of a settlement deed executed in the year 1992; that the transfer of property was informed to the tenant by her and that the tenant has accepted her as the landlady of the premises and was paying rent to her thereafter. The case set out by the landlady in the eviction petition is that her husband needs the tenanted premises for running a showroom for sale of ready-made
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garments.
3. The tenant entered appearance in the proceedings and filed objections to the eviction petition contending, among others, that the landlady has neither informed him about her ownership over the tenanted premises nor has he paid rent to the landlady at any point of time as claimed by her. It was also contended by the tenant that the need set out by the landlady for eviction of the premises is not _bona fide_ and that at any rate, he is entitled to the benefit of the first and second provisos to Section 11(3) of the Act.
4. Even though the tenant entered appearance in the proceedings and filed objections to the eviction petition, he did not appear when the case was taken up for evidence. Consequently, the tenant was set _ex parte_ in the proceedings and the eviction petition was allowed based on the evidence let in by the landlady. The tenant thereupon filed an application as I.A.No.2076 of 2017 seeking to setting aside the _ex parte_ order. The said application was dismissed by the Rent Control Court. The tenant though challenged the order of the Rent Control Court in I.A.No.2076 of 2017 before the Appellate Authority in R.C.A.No.217 of 2017, the same was dismissed. The order on I.A.No.2076 of 2017 and the judgment
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in R.C.A.No.217 of 2017 were challenged by the tenant in R.C.R.No.264 of 2018 before this Court, and in terms of the judgment dated 06.08.2018, this Court affirmed the said decisions of the authorities below.
5. It is seen that when the order passed in the application preferred by the tenant to set aside the _ex parte_ order of eviction has become final, the tenant preferred an appeal as R.C.A.No.153 of 2018 against the _ex parte_ order of eviction. There was a delay of 515 days in filing the said appeal. The tenant has therefore preferred an application to condone the delay in filing the appeal also. The Appellate Authority dismissed the said application. Consequently, the appeal was also dismissed. It is aggrieved by the said decision of the Appellate Authority that this revision petition is preferred.
6. Heard the learned counsel for the revision petitioner/tenant and the learned counsel for the respondent/landlady. We have also perused the records of the proceedings before the authorities below.
7. It is now trite that a party who is set _ex parte_ in a proceedings is entitled to prefer an appeal against the _ex parte_ decree simultaneous to any proceedings instituted by
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him to set aside such a decree. However, in such an appeal, the party would be entitled to urge only contentions as to the sustainability of the order suffered based on the available materials [See **Bhanu Kumar Jain v. Archana Kumar** , (2005) 1 SCC 787]. According to the learned counsel, this is a case where the available materials do not justify an order of eviction. The learned counsel elaborated the said submission pointing out that since the title of the landlady was denied by the tenant, the Rent Control Court ought to have adjudicated the question as to whether the denial of title by the tenant is _bona fide_ , before going into the merits of the eviction petition. It was pointed out that the Rent Control Court has admittedly not considered the said question. It was conceded by the learned counsel that the landlady has produced the settlement deed in respect of the property in her favour namely, Ext.A3 in the proceedings. According to the learned counsel for the tenant, the said document, which was insufficiently stamped, should not have been admitted in evidence, without impounding the same. It was argued by the learned counsel that if the said document is eschewed, there is nothing on record to indicate that the landlady owns the subject matter premises and if that be so, even this Court cannot hold, based
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on the materials on record, that the denial of the title of the landlady by the tenant is not _bona fide_ . It was also argued by the learned counsel, placing reliance on the decision of this Court in **Sheeja v. Balakrishnan** , 2018 (3) KLT 1102 that even in a case where the tenant remains _ex parte_ , it is obligatory for the Rent Control Court to consider whether the need alleged is _bona fide_ and also whether the tenant is entitled to the benefit of the first and second provisos to Section 11(3) of the Act based on the available materials. It was forcefully submitted by the learned counsel that the Rent Control Court did not consider the said questions while ordering eviction of the tenant.
8. At the outset, it is to be noted that there was a long delay of 515 days in filing R.C.A. No.153 of 2018. Of course, the tenant has preferred immediately after the _ex parte_ order, an application to set aside the same and the said proceedings culminated finally in the order of this Court in R.C.R.No.264 of 2018 only on 06.08.2018. The tenant who was entitled to prefer an appeal simultaneous to the application preferred by him to set aside the _ex parte_ order, did not choose to file an appeal within time [See **Bhanu Kumar Jain** ( _supra)_ ]. Instead, he filed the appeal almost four months after
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the disposal of R.C.R.No.264 of 2018. The tenant has not put forward any cause much less any sufficient cause for not preferring the appeal on time, or at least immediately after the disposal of R.C.R.No.264 of 2018. We do not, therefore, find any illegality, irregularity or impropriety in the order passed by the Appellate Authority in dismissing the application to condone the long delay of 515 days in filing the appeal.
9. In the light of the finding aforesaid, although it is not necessary for us to deal with the various contentions raised by the learned counsel for the tenant on the merits, we propose to examine the same. As noted, the specific case pleaded by the landlady in the eviction petition is that the tenanted premises was leased out to the tenant by her predecessor; that she obtained title to the property by virtue of a settlement deed executed in the year 1992; that the transfer of property was informed to the tenant by her and that the tenant has accepted her as the landlady of the premises and was paying rent to her thereafter. In the objection filed by the tenant to the eviction petition, he has stated that he was not informed by the landlady about the transfer of the property in her favour and that he has not paid rent to the landlady at any given point of time. We have perused meticulously the
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objection filed by the tenant to the eviction petition and we do not find that the tenant has disputed the title of the landlady in the said objection. A mere statement that the landlady has not informed the tenant about the transfer of property and that the tenant has not paid rent to the landlady does not amount to denial of the title of the landlady. For the aforesaid reason, it is unnecessary to go into the various other arguments advanced by the learned counsel for the tenant as regards the admissibility of Ext.A3 settlement deed. The contention raised by the tenant that the Rent Control Court ought to have considered the question as to whether the denial of title of the landlady made by the tenant is _bona fide_ , in the circumstances, is unsustainable inasmuch as the title of the landlady has not been denied by the tenant.
10. What remains to be considered is the contentions advanced by the learned counsel for the tenant that the Rent Control Court ought to have considered the question whether the need put forward by the landlady is _bona fide_ as also the question whether the tenant is entitled to the benefit of the first and second provisos to Section 11(3) of the Act based on the available materials. According to the learned counsel for the tenant, based on the available materials, it
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cannot be said that the need put forward by the landlady is _bona fide_ and that the tenant is not entitled to the benefit of the first and second provisos to Section 11(3).
11. The materials on record indicate that both the landlady as also her husband filed proof affidavits in the proceedings explaining the need, and the evidence tendered by them in the form of the above-mentioned proof affidavits stands un-controverted. It is on the basis of the said evidence that the Rent Control Court came to the conclusion that the need is _bona fide_ . Of course, there is no discussion in the _ex parte_ order of eviction on the question as to whether the tenant is entitled to the benefit of the first and second provisos to Section 11(3) of the Act. It is, however, seen that in the proof affidavit filed by the landlady, it is categorically stated by the landlady that neither she nor her husband possess any other premises which could be used for the proposed business of her husband. It is also stated by the landlady in the proof affidavit that the tenant has other means of livelihood and that there are many vacant places in the vicinity of the tenanted premises for him to continue his business in the event of eviction, if at all he wants to continue the business. So long as the said evidence tendered by the landlady stands un-
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controverted, according to us, the contentions of the tenant that the materials on record are insufficient to hold that the need set out by the landlady for eviction is _bona fide_ and that the tenant is entitled to the benefit of the first and second provisos to Section 11(3) of the Act, are without any basis.
The revision petition, in the circumstances, is without merits and same is, accordingly, dismissed.
Sd/- **P.B.SURESH KUMAR, JUDGE.**
Sd/- **C.S.SUDHA, JUDGE.**
ds 24.11.2022
