Tomy Devasia v. Thomas Joseph

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN`** ``` & ``` ## **`THE HONOURABLE MR.JUSTICE G.GIRISH`** ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ## **`R.C.REV.NO.53 OF 2024`** ``` AGAINST THE ORDER DATED 18.11.2023 IN R.P.NO.11 OF 2023 OF RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE – IV), KOTTAYAM IN ``` ``` R.C.A.No.1 OF 2017 ARISING OUT OF THE ORDER DATED 22.11.2016 IN ``` ``` R.C.P.NO.25 OF 2015 OF RENT CONTROL COURT (MUNSIFF), CHANGANACHERRY ``` ``` REVISION PETITIONER/PETITIONER/APPELLANT/RESPONDENT: ``` ``` TOMY DEVASIA AGED 58 YEARS ELAVUMAKAL HOUSE, THRIKODITHANAM VILLAGE CHANGANACHERRY TALUK, KOTTAYAM, PIN - 686105 ``` ``` BY ADVS. HARISH ABRAHAM JOSEPH ABRAHAM (KOTTAYAM) ``` ## **`RESPONDENT/RESPONDENT/RESPONDENT/PETITIONER:`** ``` THOMAS JOSEPH ``` ``` NEDIYAKALAPARAMBIL VAZHAPPALLY EAST VILLAGE CHANGANACHERRY TALUK KOTTAYAM, PIN - 686103 ``` ``` BY ADVS. SABU THOZHUPPADAN BIJU THOZHUPPADAN(K/1068/2002) ANTONY VARGHESE(K/000177/1994) ROSE GEORGE(K/001233/1999) DEVI P. PRATHAPAN(K/165/2013) ASHNA ALOYSIUS P.(K/100/2015) FATHIMA H P(K/1546/2023) SONA BENNY(K/004101/2023) ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.C.Rev.No.53 of 2024 ## **ORDER** ## **Anil K. Narendran, J.** The petitioner is the respondent-tenant in R.C.P.No.25 of 2015 on the file of the Rent Control Court (Munsiff), Changanaserry, which was one filed by the respondent herein-landlord, under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule shop room. In that Rent Control Petition, the Rent Control Court granted an order of eviction on 22.11.2016, under Section 11(3) of the Act, whereby the tenant is directed to hand over vacant possession of the petition schedule shop room to the landlord within the time limit specified in that order. Challenging the order of eviction granted by the Rent Control Court, the tenant filed R.C.A.No.1 of 2017 before the Rent Control Appellate Authority (Additional District Judge-IV), Kottayam, invoking the provisions under Section 18(1)(b) of the Act. That appeal was dismissed for default, by the order dated 04.03.2023. The appellant-tenant filed R.P.No.11 of 2023 to restore R.C.A.No.1 of 2017. That petition ended in dismissal by the impugned order dated 18.11.2023, for the reasons stated therein. Feeling aggrieved, the petitioner-tenant 3 ## R.C.Rev.No.53 of 2024 is before this Court in this Rent Control Revision, invoking the provisions under Section 20 of the Act. 2. On 28.02.2024, when this matter came up for admission, this Court admitted the matter on file and issued notice to the respondent by speed post, returnable within three weeks. The matter was ordered to be listed on 20.03.2024. 3. On 14.03.2024, when this matter came up for consideration, this Court passed the following order; “The petitioner has filed I.A.No.2 of 2024 for accepting additional documents and I.A.No.3 of 2024 seeking interim stay. 2. Considering the urgency pointed out by the learned counsel for the petitioner, issue fresh notice by special messenger to the respondent, returnable by tomorrow (15.03.2024) by 2.00 pm. A copy of the interlocutory applications shall also be enclosed along with the notice issued to the respondent.” 4. On 15.03.2024, when this matter came up for consideration, the respondent-landlord entered appearance through counsel and sought an adjournment. In I.A.No.3 of 2024, this Court granted an interim stay as prayed for, for a period of ten days. 4 ## R.C.Rev.No.53 of 2024 5. The issue that requires consideration in this Rent Control Revision is as to whether any interference is warranted on the impugned order dated 18.11.2023 of the Rent Control Appellate Authority in R.P.No.11 of 2023 in R.C.A.No.1 of 2017. 6. Heard the learned counsel for the petitioner-tenant and the learned counsel for the respondent-landlord. 7. The learned counsel for the petitioner-tenant would submit that when the application for restoration is one filed within the period of limitation, the Appellate Authority ought to have allowed that interlocutory application. 8. On the other hand, the learned counsel for the respondent-landlord would submit that in the affidavit filed in support of R.P.No.11 of 2023, the appellant-tenant could not offer a sufficient case for his absence on 04.03.2023, when R.C.A.No.1 of 2017 was listed before the Appellate Authority. Therefore, the Appellate Authority rightly dismissed R.P.No.11 of 2023, by the impugned order. The order of the Appellate Authority warrants no interference in this Rent Control Revision, in the exercise of the revisional jurisdiction under Section 20 of the Act. 9. The reasoning of the Rent Control Appellate Authority in the impugned order, as contained in paragraph 6, reads thus; 5 R.C.Rev.No.53 of 2024 “6. Point No.1 & 2:- Petitioner is the appellant. The appeal was dismissed for default on 04.03.2023. According to the petitioner, the advocate clerk noted the date of hearing as 14.03.2023, thereby the appeal happened to be dismissed for non-appearance. It is to be noted that the appeal is of the year 2017. Several adjournments were given on the request of the appellant/petitioner. At last, on 15.02.2023 the case was adjourned to 04.03.2023 as last chance for the appearance of the appellant for hearing. On that day there was no representation and thereby the appeal was dismissed. The reason stated for non-appearance cannot be believed. The posting date of the case will be available in e-courts. So the non-appearance was due to noting of the posting date mistakenly cannot be believed. On going through the proceedings in the appeal it is very well seen that the appellant was not at all ready to argue the matter and only intention was to protract the matter. The reason for the nonappearance of the appellant on the date of hearing is not at all satisfactory or genuine to allow this petition.” 10. In **G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC** **54]** in the context of an application filed under Order IX, Rule 13 of the Code of Civil Procedure, 1908, for setting aside an _ex parte_ decree, the Apex Court held that the word ‘was prevented by any sufficient cause from appearing’ occurring in Order IX, Rule 13 of the Code must be liberally construed to enable the court to do complete justice between the parties, particularly when no 6 R.C.Rev.No.53 of 2024 negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX, Rule 13 of the Code has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. 11. In **G.P. Srivastava** , the Apex Court held further that, ‘sufficient cause’ for non-appearance refers to 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 non-appearance of the defendant on the date fixed for hearing when _ex parte_ proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where 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. ## 12. In **Peeves Enterprises v. Muhammed Ashraf [2015** **(3) KHC 981]** , relying on the law laid down by the Apex Court in 7 R.C.Rev.No.53 of 2024 **G.P. Srivastava** , a Division Bench of this Court held that, on an application filed under Order IX, Rule 13 of the Code of Civil Procedure, the court has to find out whether the erring party has made out sufficient cause for setting aside the _ex parte_ decree. When no negligence or inaction is imputable to the erring party and the absence was not mala fide or intentional, the discretion has to be exercised in his favour, especially when the application is within the statutory time limit. In appropriate cases, the plaintiff can be compensated by adequate costs for the loss of time and the inconvenience caused to him. But any such condition shall not be too onerous. 13. In the instant case, R.P.No.11 of 2023 filed by the appellant-tenant to restore the appeal, i.e., R.C.A.No.1 of 2017, which was dismissed for default on 04.03.2023, is one filed within the period of limitation. In the facts and circumstances of the case, it cannot be said that the absence of the appellant-tenant on 04.03.2023 is either mala fide or intentional. In such circumstances, we find no reason to sustain the impugned order dated 18.11.2023 of the Rent Control Court, whereby R.P.No.11 of 2023 in R.C.A.No.1 of 2017 for restoration stands dismissed. 8 ## R.C.Rev.No.53 of 2024 In the result, this Rent Control Revision is disposed of by setting aside the order dated 18.11.2023 of the Rent Control Appellate Authority (Additional District Judge-IV), Kottayam in R.P.No.11 of 2023, thereby restoring R.C.A.No.1 of 2017 to file. Since that R.C.A. arises out of a Rent Control Petition of the year 2015, the Appellate Authority is directed to finally dispose of the same, as expeditiously as possible, at any rate, within a period of three months from the date of production of a certified copy of this order. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** MIN 9 R.C.Rev.No.53 of 2024 ## **`APPENDIX OF RCREV. 53/2024`** ## **`PETITIONER ANNEXURES`** ``` ANNEXURE A1 ``` ``` TRUE COPY OF THE E.P. NO.12/2024 DATED 02.03.2024 IN RCOP NO.25 OF 2015 ```