P.K.SHYBA v. K.T.SAFOORA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944 R.C.REV. NO. 87 OF 2022** **AGAINST THE JUDGMENT DATED 30.11.2021 IN R.C.A.NO.187 OF 2015 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-I), THALASSERY AND THE ORDER DATED 30.09.2015 IN I.A.NO.1860 OF 2015 IN R.C.P.NO.301 OF 2013 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), KANNUR** ## **REVISION PETITIONER:** **P.K.SHYBA, AGED 51 YEARS, D/O. SADANANDAN, PAZHAYAPURAYIL HOUSE, AZHIKODE SOUTH AMSOM, MEENKU DESOM, KANNUR TALUK, KANNUR DISTRICT, PIN-670 009.** **BY ADV ANUROOPA JAYADEVAN** **RESPONDENT:** **K.T.SAFOORA, AGED 58 YEARS, D/O. MUHAMMEDKUNHI, SUNAISNAS, KUNHIPALLI, KOTTALI, KANNUR-6.** **BY ADVS. ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH) E.MOHAMMED SHAFI** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 30.06.2022, THE COURT ON 15.07.2022 DELIVERED THE FOLLOWING:** 2 **R.C.Rev.No.87 of 2022** ## **O R D E R** ## Ajithkumar, J. The tenant is the revision petitioner. The respondent filed R.C.P.No.301 of 2013 before the Rent Control Court (Principal Munsiff), Kannur seeking eviction of the petitioner under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petition was allowed exparte on 23.05.2015. The petitioner filed I.A.No.1860 of 2015 seeking to set aside the exparte order. The Rent Control Court dismissed that petition as per the order dated 30.09.2015. An appeal under Section 18(1)(b) of the Act was preferred by the petitioner to the Rent Control Appellate Authority (Additional District Judge-I), Thalassery. The appeal was dismissed as per judgment dated 30.11.2021. Feeling aggrieved thereof the petitioner has filed this revision under Section 20 of the Act. 2. On 07.06.2022 notice was ordered to be served on the respondent. The respondent entered appearance through her learned counsel. 3. Heard the learned counsel appearing for the 3 ## **R.C.Rev.No.87 of 2022** petitioner and the learned counsel appearing for the respondent. 4. A rent control petition filed in 2013 by the respondent claiming vacant possession of the petition schedule shop room for her to start ready-mades and textile business, has been dragged this far. The contention of the petitioner is that for sufficient reasons she could not appear before the Rent Control Court on 22.05.2015 and that resulted in allowing the petition for eviction as per the exparte order dated 23.05.2015. The respondent has opposed the petition to set aside the exparte order by filing a counter statement. It was contended that the need urged by the petitioner was not genuine and that it was the third time the petitioner has filed the application to set aside the exparte order. Therefore, a lenient view on the matter is said not possible or warranted. 5. The Rent Control Court, after considering the factual situations obtained in the case, particularly, that the petitioner failed to appear before the court on three 4 ## **R.C.Rev.No.87 of 2022** occasions, each time when the matter was taken up for trial, the petition was dismissed. The Rent Control Court observed that the attempt of the petitioner was to drag the matter and no sufficient cause for non-appearance on 22.05.2015 was shown. 6. Before the Appellate Authority also the petitioner raised similar contentions. She put forward a case that she was laid up due to high blood sugar, and that prevented her from appearing before the court on 22.05.2015. The Appellate Authority considered in detail the matter. Holding that the document produced before the court to show that the petitioner was suffering from illness was a prescription issued by a Doctor on 20.05.2015 and the same was insufficient to show that there was real impediment for her to appear before the court on 22.05.2015, the appeal was dismissed. 7. The leaner counsel appearing for the petitioner would submit that on all three occasions the petitioner could not appear in court for justifiable reasons, and therefore, a chance for contesting the matter may be afforded to the 5 ## **R.C.Rev.No.87 of 2022** petitioner. It was further submitted that the counsel appearing for the petitioner reported no instruction before the court on 22.05.2015 without giving any information to the petitioner, which resulted in prejudice against her. The learned counsel accordingly would urge that this is a case where the petitioner deserves to be afforded an opportunity to have a decision on the merits of the matter. 8. The learned counsel would place reliance on the decisions reported in **Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC 34** and **Peevees Enterprises v. Muhammed Asharaf [2015 (2) KLT SN 102 (120)]** . In **Peevees Enterprises** after referring to the decisions of the Apex Court, including **G.P.Sreevastava v. R.K.Raizada and others [(2000) 3 SCC 54]** held that,- “Under Order IX Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any "sufficient cause" from appearing when the suit was called 6 ## **R.C.Rev.No.87 of 2022** on for hearing. Unless "sufficient cause" is shown for nonappearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for nonappearance refers the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If sufficient cause" is made out for nonappearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.” 7 ## **R.C.Rev.No.87 of 2022** 9. The prescription produced by the petitioner would show the maximum that the petitioner was having some ailments. But that is not enough to show that the petitioner was not able to come to the court on 22.05.2015. While considering the sufficiency of cause for non-appearance on 22.05.2015, the absence of the petitioner on two earlier occasions before the court resulting in the passing of exparte orders may not have much relevance, except to show the nature of the petitioner. One fact that justifies the petitioner is that without much delay, the petitioner filed I.A.No.1860 of 2015. When there is no delay in filing the petition for setting the exparte order, it deserves a lenient consideration. Of course, the petitioner repeatedly absented from appearing in court in the case, which caused much inconvenience and difficulty to the respondent, the landlady, who has been longing to get vacant possession of the petition schedule shop room for her to start a business. 10. In **Rafeek** (supra) it was held that the Law of Limitation is founded on public policy to ensure that the 8 **R.C.Rev.No.87 of 2022** parties to litigation do not resort to dilatory tactics and seek legal remedy without delay and in an application filed under Section 5 of the Act, the court has to condone the delay if sufficient cause is shown. In **Peevees Enterprises** (supra), after referring to the decisions of the Apex Court and also this Court, held, “15. In **Vijay Kumar Madan and others v. R. N. Gupta Technical Education Society and others, [(2002) 5 SCC 30]** interpreting the provisions in Order IX Rule 7 of the CPC, the Apex Court held that terms imposed by the court on the defendant assigning good cause for previous non-appearance should not be too onerous or vague nor should they have the effect of prejudging the controversy involved and automatically decreeing the suit even though the ex parte order is set aside. The Apex Court held further that, costs should be so assessed as would reasonably compensate the plaintiff for the loss of time and inconvenience caused by relegating back the proceedings to an earlier stage. Paragraphs 7 and 8 of the judgment in **Vijay Kumar Madan's** case (supra) read thus: “7. Power in the Court to impose costs and to put the defendant-applicant on terms is spelled out from the expression "Upon such terms as the Court directs as to 9 **R.C.Rev.No.87 of 2022** costs or otherwise". It is settled with the decision of this Court in **Arjun Singh vs. Mohinder Kumar and others [AIR 1964 SC 993]** , that on an adjourned hearing, in spite of the Court having proceeded, ex parte earlier the defendant is entitled to appear and participate in the subsequent proceedings as of right. An application under Rule 7 is required to be made only if the defendant wishes the proceedings to be relegated back and re-open the proceedings from the date wherefrom they became ex parte so as to convert the ex parte hearings into bi-party. While exercising power of putting the defendant on terms under Rule 7 the Court cannot pass an order which would have the effect of placing the defendant in a situation more worse off than what he would have been if he had not applied under Rule 7. So also the conditions for taking benefit of the order should not be such as would have the effect of decreeing the suit itself. Similarly, the Court may not in the garb of exercising power of placing upon terms make an order which probably the Court may not have made in the suit itself. As pointed out in the case of Arjun Singh (supra), the purpose of Rule 7 in its essence is to ensure the orderly conduct of the proceedings by penalizing improper dilatoriness calculated merely to prolong the litigation. 8. Costs should be so assessed as would reasonably compensate the plaintiff for the loss of time and 10 ## **R.C.Rev.No.87 of 2022** inconvenience caused by relegating back the proceedings to an earlier stage. The terms which the Court may direct may take care of the time or mode of proceedings required to be taken pursuant to the order under Rule 7. For example, keeping in view the conduct of the defendant-applicant, the Court may direct that though the ex-parte proceedings are being set aside, the defendant must file the written statement within an appointed time or recall for cross-examination at his own cost and expenses the witnesses examined in his absence or that the defendant shall be allowed not more than one opportunity of adducing his evidence and so on. How the terms are to be devised and made a part of the order would depend on the facts and circumstances of a given case. In short, the Court cannot exercise its power to put the defendant/applicant on such terms as may have the effect of pre-judging the controversy involved in the suit and virtually decreeing the suit though ex-parte order has been set aside or to put the parties on such terms as may be too onerous.” 11. In the light of the principle laid down in the aforesaid decisions, we are of the view that the interest of justice requires to afford an opportunity to the petitioner to have a decision in the matter on merits, but subject to the condition that the inconvenience caused to the respondent is 11 ## **R.C.Rev.No.87 of 2022** adequately compensated. Hence, we allow this revision on payment of a cost of Rs.10,000/- (Rupees ten thousand only) and on the further condition that the petitioner shall pay/ deposit the entire rent in arrears, if any, within one month from today. On such payment, I.A.No.1860 of 2015 will stand allowed. Thereupon, the Rent Control Court (Principal Munsiff), Kannur will try and dispose of R.C.P.No.301 of 2013 within a period of three months from the date of restoration. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr