R.C.Rev. No.87 of 2023

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR ``` ## **`&`** ``` THE HONOURABLE MR. JUSTICE JOHNSON JOHN THURSDAY, THE 2[ND] DAY OF NOVEMBER 2023/11TH KARTHIKA, 1945 ``` ``` RCREV. NO. 87 OF 2023 ``` ## **`REVISION PETITIONER/APPELLANT/RESPONDENT:`** ``` ANTHONY AGED 60 YEARS ``` ``` PARAPILLY HOUSE, NO. 27/35, STANLEY COMMERCIAL INSTITUTE, CHEMBUKAVU, THRISSUR, PIN - 680020 ``` ``` BY ADVS. ``` ``` ALEXANDER MATHAI PAIKADAY SHAJI THOMAS PORKKATTIL JOSE THOMAS (PALA) MATHAI M PAIKADAY(SR.)(M-130) ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` 1DR. THOMAS KALLIATH S/O. LATE JACOB KALLIATH KALLIATH HOUSE, MISSION QUARTERS, THRISSUR VILLAGE,THRISSUR TALUK, GEORGE KALLIATH, REP. BY POWER HOLDER S/O LATE JACOB KALLIATH, KALLIATH HOUSE, GANDHI NAGAR, CHEROOR ROAD, PEINGAVU DESOM, CHEMBUKAVU VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT ``` - **`2 WILLIAMS PARAPILLY (STRUCK OUT) S/O.LATE KOCHANTHONY, PARAPILLY HOUSE, NO. 27/35, STANLEY COMMERCIAL INSTITUTE, CHEMBUKAVU, THRISSUR - 20, THRISSUR TALUK, THRISSUR DISTRICT`** R.C. Rev. No.87 of 2023 2 - **`3 STANLEY PARAPILLY`** ``` S/O.LATE KOCHANTHONY, PARAPILLY HOUSE, NO. 27/35, STANLEY COMMERCIAL INSTITUTE, CHEMBUKAVU, THRISSUR, PIN – 680020 ``` ``` (RESPONDENT NO.2 WILLIAMS PARAPILLY, S/O.LATE KOCHANTHONY STRIKED OUT FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 12/9/23 IN IA 4/2023 IN RCR 87/23) BY ADVS. SABU GEORGE . P.B.KRISHNAN(K/1193/1994) P.B.SUBRAMANYAN(K/1145/2009) MANU VYASAN PETER(K/000652/2013) ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 02.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.C. Rev. No.87 of 2023 3 ## **P.B.SURESH KUMAR & JOHNSON JOHN, JJ.** ## **-----------------------------------------------** ## **R.C.Rev. No.87 of 2023** ## **-----------------------------------------------** ## **Dated this the 2[nd] day of November, 2023** ## **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 affidavit filed by the first respondent and the documents produced along with the same, the Rent Control Court allowed the eviction petition under Section 11(3) on 31.01.2009. The R.C. Rev. No.87 of 2023 4 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. R.C. Rev. No.87 of 2023 5 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 in **Malkiat Singh v. Joginder Singh** , (1998) 2 SCC 206, decision of the High Court of Gujarat in **Chimanlal v. Trishulam Co-Operative Housing Society Ltd.** , 2021 SCC OnLine Guj 770 and the decision of the High Court of Andhra Pradesh in **Garuda 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 R.C. Rev. No.87 of 2023 6 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 in **Kiran 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 the learned Senior Counsel, in the circumstances, the Rent Control Court ought to have allowed I.A.No.4266(a) of 2009 and I.A.No.4250 of 2009 and restored the eviction petition. 4. Per contra, the learned counsel for the first respondent submitted that inasmuch as the appeal preferred by the petitioner against the ex parte order of eviction was dismissed for R.C. Rev. No.87 of 2023 7 default, the petitioner was precluded from pursuing I.A.No.4266(a) of 2009 and I.A.No.4250 of 2009. As such, according to him, none of the arguments raised by the learned Senior Counsel for the petitioner arises for consideration in this revision petition instituted challenging the decision of the Appellate Authority in R.C.A. No.11 of 2011. 5. We have considered the arguments advanced by the learned counsel for the parties on either side. 6. Inasmuch as the revision is one instituted challenging the decision of the Appellate Authority in R.C.A. No.11 of 2011, as rightly put by the learned counsel for the first respondent, the short question that arises for consideration is whether the said decision is vitiated by illegality, irregularity or impropriety warranting interference, in exercise of the revisional jurisdiction conferred on this Court under Section 20 of the Act. As noted, R.C.A. No.11 of 2011 is one instituted by the petitioner challenging the common order passed by the Rent Control Court on 03.03.2010 in I.A.No.4266(a) of 2009 and I.A.No.4250 of 2009. The objection raised to the above interlocutory applications by the first respondent was 8 R.C. Rev. No.87 of 2023 that the said applications are not maintainable inasmuch as the petitioner subsequently filed an appeal against the ex parte order. It is accepting the said objection that the said applications were dismissed by the Rent Control Court. As noted, the Appellate Authority has concurred with the said view taken by the Rent Control Court holding that the petitioner was not entitled to pursue the appeal against the ex parte order and the application to set aside the ex parte order, simultaneously. 7. It is seen that the objection raised by the first respondent as to the maintainability of the interlocutory applications preferred by the petitioner before the Rent Control Court was based on the Explanation to Rule 13 of Order 9 of the Code of Civil Procedure which provides that where there has been an appeal against a decree passed ex parte under this Rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this Rule for setting aside that ex parte decree. The Explanation aforesaid is one introduced in terms of the Code of Civil Procedure (Amendment) Act, 1976 with the avowed purpose of abridging and R.C. Rev. No.87 of 2023 9 simplifying the procedural law. By enacting the Explanation, Parliament left it open to the defendant to apply under Rule 13 of Order 9 for setting aside an ex parte decree only if the defendant had opted not to appeal against the ex parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him. It obliged the defendant to decide whether he would prefer an adjudication by the appellate court on the merits of the decree or have the decree set aside by the trial court under Rule 13 of Order 9. The legislative attempt incorporated in the Explanation was to discourage a two-pronged attack on the decree and to confine the defendant to a single course of action. If he did not withdraw the appeal filed by him, but allowed the appeal to be disposed of on any other ground, he is denied the right to apply under Rule 13 of Order 9 [See **Rani Choudhury v. Suraj Jit Choudhury** , (1982) 2 SCC 596]. As noted, in the case on hand, even though the appeal against the ex parte order was instituted after filing the application preferred for setting aside the ex parte order, the petitioner was pursuing the appeal when the application to set aside the ex parte order was being taken up for orders by the Rent Control Court. Similarly, 10 R.C. Rev. No.87 of 2023 R.C.A. No.32 of 2009 was disposed of otherwise than by withdrawal, when R.C.A.No.11 of 2011 against the order dismissing the application to set aside the ex parte order was taken up for orders. In the said view of the matter, the impugned decisions are in order. Needless to say, the various arguments advanced by the learned Senior Counsel for the petitioner do not arise for consideration. The rent control revision, in the circumstances, is without merits and the same is accordingly, dismissed. **Sd/-** **P.B.SURESH KUMAR, JUDGE.** **Sd/-** **JOHNSON JOHN, JUDGE.** Mn