## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU**
**THURSDAY, THE 31ST DAY OF AUGUST 2017/9TH BHADRA, 1939**
**RCRev..No. 285 of 2017 () --------------------------**
**RCA 22/2014 of RENT CONTROL APPELLATE AUTHORITY/DISTRICT COURT, ALAPPUZHA DATED 03-01-2017**
**RCP 2/2011 of RENT CONTROL COURT/MUNSIFF COURT,ALAPPUZHA DATED 12-09-2013**
**REVISION PETITIONER(S)/APPELLANT/RESPONDENT:**
**-------------------------------------------**
**S.VINOD KANJIRATHUPARAMBU, THONDAKULANGARA WARD, ALAPPUZHA 688 013.**
**BY ADV. SRI.ROY CHACKO**
**RESPONDENT(S)/PETITIONER:**
**-------------------------**
**SAMEENA SAINUL ABDEEN SOUMYA MANZIL, VATTAYAL WARD, ALAPPUZHA 688 002**
**THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 31-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
## _**OKB**_
## K.HARILAL & A.M.BABU, JJ.
---------------------------
R.C.R. No.285 of 2017 --------------------------Dated this the 31[st] day of August, 2017
## O R D E R
## **Harilal, J.**
The revision petitioner is the tenant against whom the Rent Control Court passed an ex parte order of eviction under sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short “the Act”). Feeling aggrieved, though he had preferred an appeal, the Appellate Authority also confirmed the findings of the Rent Control Court as such and dismissed the appeal on merits. Thus, this revision is filed challenging the legality and propriety of the findings of the appellate authority confirming the findings of the Rent Control Court.
2. Heard the learned counsel for the revision petitioner.
3. Going by the impugned judgment, it could be
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seen that the Appellate Authority has raised three points for consideration, which are given below:
- (1) Whether the respondent has kept the rent in arrears, warranting eviction u/s.11(2) of Act 2 of 65?
- (2) Whether the petitioner is entitled to get an order of eviction u/s.11(3) of Act 2 of 65?
- (3) Whether any interference is required against the order of the court below and if so, in what manner?
Thus, it appears that the Appellate Authority has considered all the relevant points to be considered in the appeal and rendered the judgment on merits.
4. It is true that the tenant was set ex parte before the Rent Control Court and thereafter no application was filed before the Rent Control Court within the time to set aside the ex parte order. In the above context, the Rent Control Court analysed the pleadings in the Rent Control Petition and the counter statement filed by the tenant and passed an order on merits. In appeal, the Appellate Authority reappreciated the findings in view of the materials available on record.
5. As regards the claim under section 11(3) of the
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Act, after considering the counter statement the Appellate Authority found that in fact the counter statement does not touch any of the matters covered by the plea regarding the bona fide need. More particularly, the bona fide need projected in the petition has not been denied or challenged in the said counter statement. We do not find any reason to disbelieve the findings of the Appellate Authority, made after going through the counter statement filed by the tenant. Thereafter, the Appellate Authority considered the provisos under section 11(3) of the Act and found that as regards the protection under the provisos the burden is heavy on the tenant to prove the entitlement of protection. But, the tenant has not adduced any evidence, though several opportunities were given to him to adduce evidence. In the absence of any evidence on record to claim protection under the second proviso to section 11(3) of the Act, the Appellate Authority also confirmed the finding of the Rent Control Court that the tenant is not entitled to get protection under section 11(3) of the Act. We do not find any illegality or impropriety to interfere
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## with the above findings.
6. Going by the impugned judgment, it appears that in the absence of evidence the counsel appearing for the tenant before the Appellate Authority had urged for granting an opportunity to adduce evidence, by remitting the case back to the Rent Control Court, enabling him to adduce further evidence, and the Appellate Authority declined the said plea, after analysing the sequence of events during the course of proceedings. Here arises another question whether there is any illegality or impropriety in rejecting the prayer for remitting the case back to the trial court for enabling the tenant to adduce further evidence in the Rent Control Petition.
7. In paragraph 12 of the impugned judgment passed by the Appellate Authority, the Appellate Authority has reiterated the sequence of events after filing the Rent Control Petition, found in the proceedings. Going by the sequence of events it could be seen that there was no representation for the tenant in three adjournments, when the case was posted for filing objections. In the absence of
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objection from the tenant, the Rent Control Court set him ex parte and subsequently he filed the Interlocutory Application to set aside the ex parte order, which was allowed on 20/6/2012. Even thereafter there was a failure on the part of the tenant to file objections and after two posting dates, the objection to the Rent Control Petition was filed and the Rent Control Court accepted the same as per the order in I.A.No.2576/2012. Thereafter, the Rent Control Petition was listed for trial on 11/9/2013. On that day, the counsel for the tenant reported “no instruction”, the tenant was set ex parte and thereafter the impugned order was pronounced on 12/9/2013.
8. It is pertinent to note that the impugned order was passed by the Rent Control Court one month after setting him ex parte and no attempt was made to set aside the ex parte order. Thus, on an analysis of the sequence of events it could be seen that the tenant was highly negligent in prosecuting his case and he has not given any sort of respect or regard to the opportunities given to him to contest the case on merits, despite the negligent attitude
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shown by him throughout the proceedings of the Rent Control Court. So also, he has not complied with the statutory requirements, by clearing the arrears of rent as mandated by law. In the above view, the Appellate Authority declined the prayer for remitting the case back to the trial court, for enabling the tenant to adduce further evidence, on a finding that the tenant is not entitled to obtain any further mercy or leniency from the court. We agree with the above finding and we are also of the opinion that the tenant, who was not diligent in prosecuting the Rent Control Petition is not entitled to get a liberal approach in setting aside the ex parte order of eviction so as to enable him to adduce further evidence in the Rent Control Petition.
9. The learned counsel for the petitioner cited the decision of this Court reported in **Susheela v. Balakrishnan [2014 (1) KLT 1004]** and contended that it is obligatory on the part of the Appellate Authority to consider the entitlement of protection under the second
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proviso to Section 11(3) of the Act. We agree with the said proposition. But, we are of the opinion that the said proposition cannot be applied to the instant case and the said proposition is applicable to the cases where the tenant adduced evidence under the second proviso to Section 11 (3) of the Act. More clearly, the said decision cannot be applied to a case in which the tenant has not adduced evidence or failed to adduce sufficient evidence to determine the entitlement of protection under the second proviso to Section 11(3) of the Act. Therefore, the petitioner is not entitled to get any benefit under the proposition laid down in the decision. In short, this is not a case to which the decision cited can be applied. There is no illegality or impropriety in the findings of the Appellate Authority. This Rent Control Revision is dismissed.
10. Having regard to the entire facts and circumstances of the case, the revision petitioner/tenant is given six months' time from today to vacate the petition schedule shop room, on the following conditions:
(1). The revision petitioner/tenant shall file an
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affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop room within six months from today.
(2). The revision petitioner/tenant shall deposit entire arrears, if any, within one month, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay rent without default.
(3). In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondent/landlord will be at liberty to proceed with the execution of the eviction order.
**Sd/-**
K.HARILAL, Judge. **Sd/-** A.M.BABU, Judge.
okb.
//True copy//
