Rent Control Revision No. 53 of 2010

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR.JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 21ST DAY OF MARCH 2016/1ST CHAITHRA, 1938** **RENT CONTROL REVISION No.53 of 2010 ( )** **-------------------------AGAINST THE JUDGMENT IN RCA 120/2008 of VI ADDL.DISTRICT COURT, ERNAKULAM, DATED 02-12-2009. & AGAINST THE ORDER IN RCP 150/2006 of III ADDL.M.C.EKM (RENT CONTROL) DATED 17-06-2008.** **REVISION PETITIONER(S)/REVISION PETITIONERS:** **------------------------------------------1. SHEIK JAN MOHAMMED @ S.A.RAHIM, S/O.LATE SHEIK ABDUL KHADER, SAK SOUND, PULLEPPADY JUNCTION, CHITTOOR ROAD, KOCHI - 18. 2. MR.SHEIK ABDUL RASHEED, S/O.LATE SHEIK ABDUL KHADAR, SAK SOUND, PULLEPPADY JUNCTION, CHITTOOR ROAD,KOCHI - 18. 3. SHEIK MOHAMMED SHABBER, S/O.LATE SHEIK ABDUL KHADER, SAK SOUND, PULLEPPADY JUNCTION, CHITTOOR ROAD, KOCHI - 18. 4. SHEIK MOHAMMED RAFEEQUE, S/O.LATE SHEIK ABDUL KHADER, SAK SOUND, PULLEPPADY JUNCTION, CHITTOOR ROAD, KOCHI - 18. 5. SMT.FATHIMA BEEVI, W/O.LATE SHEIK ABDUL KHADER,SAK SOUND, PULLEPPADY JUNCTION, CHITTOOR ROAD, KOCHI - 18. BY ADV. SRI.S.SUDHEESHKUMAR** **RESPONDENT(S)/RESPONDENTS: -------------------------1. RAZIYA IQUBAL, W/O.LATE IQUBAL, ALUNGAPARAMBIL HOUSE, A.S.MANSION, CHITTOOR ROAD, KOCHI - 682 018. 2. DR.SUHAIL, S/O.LATE IQUBAL, ALUNGAPARAMBIL HOUSE, A.S.MANSION, CHITTOOR ROAD, KOCHI - 682 018. 3. MRS.SUNAYNA, D/O.LATE IQUBAL, ALUNGAPARAMBIL HOUSE, A.S.MANSION, CHITTOOR ROAD, KOCHI - 682 018. 4. MRS.TISHANA, D/O.LATE IQUBAL, ALUNGAPARAMBIL HOUSE, A.S.MANSION, CHITTOOR ROAD, KOCHI - 682 018. R1-R4 BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.N.M.MOHAMMED AYUB** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ss **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR.JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 21ST DAY OF MARCH 2016/1ST CHAITHRA, 1938** **CROSS OBJECTION 14 OF 2010 IN RENT CONTROL REVISION No.53 of 2010 ( )** **------------------------------------------------AGAINST THE JUDGMENT IN RCA 115/2008 of RENT CONTROL APPELLATE AUTHORITY (VI ADDL.DISTRICT COURT)& ORDER IN R.C.P.NO.150 OF 2006 OF RENT CONTROL COURT, ERNAKULAM, DATED 07-09-2007.** ## **PETITIONERS IN CROSS OBJECTION/RESPONDENTS IN REVISION PETITION:** - **--------------------------------------------------------------1. SMT. RAZIYA IQBAL, W/O.LATE IQBAL, AGED 56 YEARS, ALUNGAPARAMBIL HOUSE, A.S.MANSION, CHITTOOR ROAD, KOCHI-682 018.** **2. DR.SUHAIL, AGED 35 YEARS S/O.LATE IQBAL, ALUNGAPARAMBIL HOUSE, A.S.MANSION, CHITTOOR ROAD, KOCHI-682 018.** **3. MRS. SUNAYNA, AGED 30 YEARS D/O.LATE IQBAL, ALUNGAPARAMBIL HOUSE, A.S.MANSION, CHITTOOR ROAD, KOCHI-682 018. (REPRESENTED BY POWER OF ATTORNEY HOLDER DR.SUHAIL, 2ND PETITIONER)** **4. MRS.TISHANA, AGED 28 YEARS D/O.LATE IQBAL, ALUNGAPARAMBIL HOUSE, A.S.MANSION, CHITTOOR ROAD, KOCHI-682 018.** - **R1-R4 BY ADVS.SRI.S.SREEKUMAR (SR.)** **SRI.N.M.MOHAMMED AYUB** ## **RESPONDENTS/PETITIONERS IN REVISION PETITION: --------------------------------------------** **1. MR. SHEIK JAN MOHAMMED @ S.A.RAHIM, S/O.LATE SHEIK ABDUL KHADER, SAK SOUND, PULLEPPADY JUNCTION, CHITTOOR ROAD, KOCHI-18.** **2. MR. SHEIK ABDUL RASHEED, S/O.LATE SHEIK ABDUL KHADAR, SAK SOUND, PULLEPPADY JUNCTION, CHITTOOR ROAD,KOCHI-18.** **3. MR. SHEIK MOHAMED SHABEER, S/O.LATE SHEIK ABDUL KHADER, SAK SOUND, PULLEPPADY JUNCTION, CHITTOOR ROAD, KOCHI-18.** **4. MR. SHEIK MOHAMED RAFEEQUE, S/O.LATE SHEIK ABDUL KHADER, SAK SOUND, PULLEPPADY JUNCTION, CHITTOOR ROAD, KOCHI-18.** **5. SMT.FATHIMA BEEVI, W/O.LATE SHEIK ABDUL KHADER,SAK SOUND, PULLEPPADY JUNCTION, CHITTOOR ROAD, KOCHI-18.** **BY ADV. SRI.S.SUDHEESHKUMAR** **THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 21-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ss ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ------------------------------------------------ ## **R.C.R. No.53 of 2010 and Cross Objection No.14 of 2010** -----------------------------------------------------Dated this the 21[st] day of March, 2016 ## **ORDER** ## **P.N.RAVINDRAN, J** The petitioners are the tenants in R.C.P.No.150 of 2006 on the file of the Rent Control Court, Ernakulam, a petition filed by the respondents/landlords on 20.10.2006 for an order of eviction under sections 11(2)(b), 11(4)(iii) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as 'the Act' for short. The landlords had in the petition for eviction averred that the tenants have kept rent at the rate of 16/- per mensem in arrears₹ from July 2002 and that as on 30.04.2006, the sum of 3,321/-₹ representing the arrears of rent for 45 months and interest thereon at 12% per annum is due from them. They had in paragraph 5 of the rent control petition averred that after the petition schedule building was taken on rent, the tenants have acquired possession and ownership of another building in the same city, bearing door No.40/9589 situate near the petition schedule building and that the said building in the possession of the tenants is more spacious and more than reasonably sufficient for their requirements. The landlords had in the petition for eviction further averred that the entire petition schedule building _**R.C.R. No.53 of 2010**_ 2 bearing Door No.40/9582 of Cochin Corporation is more than hundred years old, that it is in a dilapidated condition and that it needs reconstruction. It was further averred that the petition schedule building is situate at Pullappady Junction facing Chittoor road, that the locality where the petition schedule building is situate has commercial importance, that a number of new buildings have come up in the locality, that they have got the approved plan and building permit issued from the Cochin Corporation and that they have the financial capacity to reconstruct the building. 2. The rent control court ordered notice returnable in 15 days to the respondents and posted R.C.P.No.150 of 2006 for return of notice on 14.12.2006. On that day, the tenants (the petitioners herein) entered appearance and filed vakalath and thereupon the rent control petition was adjourned to 05.02.2007 for counter. Since no counter statement was filed on 05.02.2007, it was adjourned to 03.03.2007, later to 05.06.2007 and still later to 16.06.2007. On 16.06.2007 when the rent control petition was taken up, it was submitted on behalf of the tenants that the counter statement has been filed. The rent control court thereupon adjourned the petition to 06.07.2007 for verification. On that day as no counter statement had been filed, the tenants were set ex-parte and the rent control petition was adjourned to 20.07.2007 _**R.C.R. No.53 of 2010**_ 3 for the evidence of the landlords'. On that day, at the request of the learned counsel appearing for the landlords, the rent control petition was adjourned to 24.07.2007 for filing affidavit in lieu of chief examination. On 24.07.2007, the landlords filed an affidavit in lieu of chief examination sworn to by the second petitioner in the rent control petition. Thereupon, ex-parte evidence on the side of the landlords was recorded, Exts.A1 to A3 produced along with the proof affidavit were marked and the rent control petition was adjourned to 28.07.2007 for hearing. As there was no sitting on 28.07.2007, it was adjourned to 04.09.2007. On 04.09.2007, learned counsel appearing for the landlords was heard and the rent control petition was adjourned to 07.09.2007 for orders. On 07.09.2007 relying on the uncontroverted pleadings and the uncontested testimony tendered by PW1, an order of eviction under sections 11(2)(b), 11(4)(iii) and 11(4) (iv) of the Act was passed and the tenants were directed to give vacant possession of the petition schedule building to the landlords within one month from the date of the order. 3. Shortly after the order of eviction was passed, the tenants filed I.A.Nos.9060, 9061 and 9062 of 2007 in R.C.P.No.150 of 2006 accompanied by a counter statement dated 29.10.2007. They had in I.A.No.9060 of 2007 prayed that the delay of 39 days in filing _**R.C.R. No.53 of 2010**_ 4 I.A.No.9062 of 2007 may be condoned. They had in I.A.No.9062 of 2007 prayed that the ex-parte order of eviction passed on 07.09.2007 in R.C.P.No.150 of 2006 may be set aside. They had in I.A.No.9061 of 2007 prayed that the counter statement filed along with it may be received after condoning the delay in filing the counter statement. The affidavit filed in support of all the three applications had a common ground. The first petitioner herein had in that affidavit averred that, upon receipt of summons he and the other tenants had entered appearance through counsel and filed vakalath, that at the point of time all the materials were entrusted to the learned counsel who appeared for them, that they had been frequently contacting their counsel and were under the _bonafide_ belief that the case is going on and that when they contacted their counsel on 27.10.1997, they came to know that the rent control petition has been allowed by order passed on 07.09.2007 with costs. The deponent had further averred that on further verification he came to know that he and the other tenants were set ex-parte on 06.07.2007 and thereafter an order of eviction was passed on 07.09.2007. They had further averred that in view of the aforesaid developments, they took back the case records from the counsel to whom it was originally entrusted and entrusted it to the learned counsel presently appearing for them. The landlords _**R.C.R. No.53 of 2010**_ 5 opposed the said applications by filing separate counter statements contending i _nter alia_ that the averment in the affidavit filed in support of the applications that the tenants came to know about the order of eviction only on 27.10.2007 is incorrect and that it was with the intention of deliberately delaying the proceedings that the tenants got themselves set ex-parte. The rent control court considered the rival contentions and dismissed I.A.Nos.9060 and 9062 of 2007 by a common order passed on 17.06.2008. The rent control court held that the tenants have not shown sufficient cause to set aside the ex-parte order of eviction and that there is no _bonafides_ in their statement that they were frequently contacting their former counsel and were under the _bonafide_ belief that the case is pending in the rent control court. Consequently by a separate order passed on the same day, the rent control court dismissed the I.A.No.9061 of 2007 to receive the counter statement filed along with it after condoning the delay in filing it. 4. Challenging the order passed by the rent control court on 17.06.2008, dismissing I.A.Nos.9060 of 2007 and 9062 of 2007, the tenants filed R.C.A.No.120 of 2008 on the file of the Rent Control Appellate Authority, Ernakulam. More or less simultaneously, the tenants filed R.C.A.No.115 of 2008 challenging the order of eviction passed by the rent control court on 07.09.2006. When _**R.C.R. No.53 of 2010**_ 6 R.C.A.No.115 of 2008 came up for consideration before the rent control appellate authority on 24.11.2009, learned counsel appearing for the appellants/tenants submitted that the appellants are not desirous of prosecuting the appeal any further. An endorsement to the effect that the appeal is not pressed was thereupon made on the appeal memorandum. Consequently, R.C.A.No.115 of 2008 was dismissed as not pressed. R.C.A.No.120 of 2008 was heard on 30.11.2009 and it was dismissed by judgment delivered on 02.12.2009. The tenants have, aggrieved thereby, filed this revision petition. 5. We heard Sri.S.Sudheeshkumar, learned counsel appearing for the petitioners and Sri.S.Sreekumar, learned senior advocate appearing for the respondents. Learned counsel appearing for the petitioners contended, inviting our attention to the order passed by the rent control court on 17.06.2008 dismissing I.A.Nos.9060 and 9062 of 2007, that a reading of the said order will show that the rent control court has proceeded on the basis that I.A.No.9060 of 2007 is an application to set aside the ex-parte order of eviction passed on 07.09.2007, but in fact the prayer in the application was to set aside the order passed on 06.07.2007 setting them exparte, that apart from merely contending that the tenants have _**R.C.R. No.53 of 2010**_ 7 deliberately created a situation which resulted in them being setting ex-parte, the landlords had not seriously disputed the averment in the affidavit filed in support of the application that the tenants were frequently contacting their counsel and were under the _bonafide_ belief that the case is still pending and therefore, the rent control court erred in dismissing I.A.No.9062 of 2007, that having regard to the fact that along with the application to set aside the ex-parte order as also the application to condone the delay, a counter statement had been filed along with an application to receive it to file, the rent control court ought to have taken a lenient view, condoned the delay in filing the application to set aside the order setting the tenants ex-parte and allowed I.A.No.9060 of 2007 so as to enable the tenants an opportunity to have the rent control petition heard and decided on the merits. Learned counsel contended that the tenants do not dispute the entitlement of the landlord to have an order of eviction passed under sections 11(4)(iv) of the Act, that the tenants have even in Exts.A2 and A4 reply notices taken the stand that the building in their possession is not reasonably sufficient for the purpose of accommodating the office of the business which is presently being run in the petition schedule building, that the tenants have also given adequate explanation even in the reply notice as to why in such _**R.C.R. No.53 of 2010**_ 8 circumstances the landlords cannot seek an order of eviction under section 11(4)(iii) of the Act and therefore, on the merits also, the impugned order is liable to be set aside. 6. Per contra Sri.S.Sreekumar, learned senior counsel appearing for the landlords submitted that as R.C.A.No.115 of 2008 filed by the tenants challenging the ex-parte order of eviction was dismissed as not pressed by order passed on 24.11.2009, the tenants cannot thereafter prosecute R.C.A.No.120 of 2008 or challenge the orders passed by the rent control appellate authority in this revision petition. Learned senior counsel also placed reliance on the decision of the Apex Court in _**Bhanu Kumar v. Archana Kumar**_ [2005(1) KLT 456 (SC)] and the decision of a learned single judge of this court in _**Sosamma v. Mariyamma**_ [2015(4) KLJ 32] in support of the said contention. Learned senior counsel also submitted that the tenants had entered appearance through counsel on 14.12.2006 and were taking repeated adjournments through their former counsel, that it was more than six months after they had entered appearance that they were set ex-parte for the reason that they had not in tact filed a counter statement contrary to the submission made in court, that going by the stand taken by the tenants themselves in Exts.A4 and A5 reply notices, there was no serious dispute as regards the entitlement of the _**R.C.R. No.53 of 2010**_ 9 landlords for an order of eviction under section 11(4)(iv) of the Act, that no explanation as regards the building in the possession of the tenants was set out in the said reply notices and that there is nothing to show that the counter statement which was submitted along with I.A.No.9061 of 2007 could not have been filed earlier in point of time. Learned senior counsel submitted that in such circumstances, no interference is called for with the impugned judgment/order. 7. We have considered the submissions made at the Bar by learned counsel appearing on both sides. We have also gone through the pleadings and the materials on record, including the lower court records. The records disclose that the tenants had entered appearance on 14.12.2006, the date fixed for return of notice. The tenants were set ex-parte only on 06.07.2007, more than six months after they had entered appearance in the rent control court. It is not in dispute that when the rent control petition was called on 16.06.2007 it was submitted on behalf of the tenants by their counsel that the counter statement has been filed. But as a matter of fact, no such counter statement had been filed. It was for that reason that they were set ex-parte on 06.07.2007. Thereafter the rent control petition was adjourned to 20.07.2007 for the landlords' evidence. On that day, at the request of the landlords it was adjourned to 24.07.2007. On _**R.C.R. No.53 of 2010**_ 10 24.07.2007, ex-parte evidence on the side of the landlords was recorded. The rent control petition was thereafter heard on 04.09.2007 and an order of eviction, relying on the uncontested averments in the rent control petition and the uncontroverted testimony tendered by PW1, was passed on 07.09.2007. The tenants who were represented by counsel did not however choose to file an application to set aside the order setting them ex-parte till 30.10.2007. Apart from contending that they were under the belief that the case is pending in the rent control court, they have no explanation as to why during the period between 14.12.2006 and 06.07.2007, a counter statement denying and disputing the averments and allegations in the rent control petition had not been filed. Though in the affidavit filed in support of the applications the first petitioner herein had, on his own behalf and on behalf of other tenants stated that the tenants were under the impression that their case is pending for the reason that they had frequent contact with their counsel, there is no explanation as to why the counter statement was not filed. The tenants did not enter the box and testify in support of their case. It was having regard to the aforesaid circumstances, the rent control court dismissed the applications filed by them to have the ex-parte order passed on 17.06.2008 set aside. The rent control court held that _**R.C.R. No.53 of 2010**_ 11 the case set out by the tenants in the affidavit filed in support of the applications cannot be believed and that satisfactory reasons have not been given for condoning the delay in filing the application to set aside the ex-parte order. Though learned counsel contended that the rent control court has treated the application filed by the tenants as an application to set aside the ex-parte order of eviction and that the rent control court has incorrectly dismissed the applications, we find no merit in the said submission. Though it is true that the rent control court had understood the application filed by the tenants as one to set aside the ex-parte order of eviction passed on 07.09.2007, it is evident from a reading of the order passed by the rent control court that the case set out by the tenants did not find acceptance at the hands of the rent control court. Therefore, merely for the reason that rent control court has proceeded on the basis that the application before it arises from the order of eviction passed by it and not from the order setting the tenants ex-parte, we are not persuaded to hold that the order passed by the rent control court, is an erroneous order. As stated earlier, there is no explanation at all from the side of the tenants as to the reason why a counter statement was not filed during the period from 14.12.2006 to 06.07.2007. It is also relevant in this context to note that even in the reply notice marked as Ext.A1, the tenants had _**R.C.R. No.53 of 2010**_ 12 an explanation regarding the building in their possession. If that be so, nothing prevented them from filing a counter statement in time. The building in their possession admittedly belongs to the tenants. It was therefore not necessary for them to make enquiries regarding its area or its suitability for the business they were running in the petition schedule building. In such circumstances, we are of the opinion that the tenants have not given any valid and acceptable explanation as to why they did not file a counter statement between 14.12.2006 and 06.07.2006. 8. There is also yet another reason why we are not persuaded to interfere with the impugned judgment. As stated earlier, challenging the ex-parte order of eviction passed on 07.09.2007, the tenants had filed R.C.A.No.115 of 2008 before the Rent Control Appellate Authority, Ernakulam. In that appeal, tenants had challenged the order of eviction passed by the rent control court under sections 11(2)(b), 11(4)(iii) and 11(4)(iv) of the Act. The tenants had also challenged the correctness of the orders passed by the rent control court, dismissing I.A.Nos.9061 and 9062 of 2007. For reasons best know to them, the tenants did not pursue the said appeal. When the appeal came up for consideration on 24.11.2007, learned counsel appearing for the tenants made an endorsement on the appeal _**R.C.R. No.53 of 2010**_ 13 memorandum to the effect that the appeal is not pressed. Consequently that appeal was dismissed as not pressed. Since the appeal from the ex-parte order of eviction stands dismissed, the tenants could not have thereafter in our opinion, prosecuted R.C.A.120 of 2008 arising from the order passed by the rent control court on I.A.Nos.9060 and 9062 of 2006, in view of the decision of the Apex Court in _**Bhanu Kumar v. Archana Kumar**_ 2005(1) KLT 456. 9. The landlords have filed a memorandum of cross objections contending _interalia that_ the rent control court ought to have dismissed the application to condone delay on the short ground that it has no power to condone the delay. It is also contended that, as the application to condone the delay and the application to set aside the order setting the tenants ex-parte were dismissed by a common order, two appeals ought to have been filed challenging the said common order. It is also contended that the dismissal of R.C.A.No.115 of 2008 operates _as res judicata_ and therefore on that short ground, R.C.A.No.120 of 2008 should have been dismissed. For the reason that these contentions, except the contention that the rent control appellate authority had no power to condone delay in filing the application to set aside the order setting the tenants ex-parte, have been considered and decided in favour of the landlords and we have dismissed the revision _**R.C.R. No.53 of 2010**_ 14 petition filed by the tenants, it is not necessary for us to finally pronounce on the question whether the rent control appellate authority had jurisdiction to condone the delay in filing R.C.A No.120 of 2008. The memorandum of cross objection is accordingly closed with the aforesaid observation. The said question is left open. For the reasons stated above, we hold that there is no merit in the instant revision petition. The revision petition fails and is accordingly dismissed. However, having regard to the fact that the tenants are admittedly running a business in the petition schedule building for the past three decades, we deem it appropriate to grant them three months time from today to surrender vacant possession of the petition schedule building to the landlords. No costs. ## _Sd/-_ **P.N.RAVINDRAN (JUDGE)** ## _Sd/-_ **K.RAMAKRISHNAN (JUDGE)** //True Copy// ## P.A. to Judge ss