Kerala High Court
Biju Kumar vs Sreenu on 27 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 27TH DAY OF AUGUST 2021 / 5TH BHADRA, 1943
RCREV. NO. 107 OF 2021
AGAINST THE ORDER/JUDGMENT IN RCP 81/2009 OF MUNSIFF COURT-IV,
THIRUVANANTHAPURAM, THIRUVANANTHAPURAM
REVISION PETITIONER:
BIJU KUMAR, AGED 41 YEARS, S/O BHASKARAN, TC 67/537,
VARUVILAKATHU VEEDU, PACHALLOOR,THIRUVANANTHAPURAM-
695027.
BY ADVS.
D.KISHORE
MEERA GOPINATH
R.MURALEEKRISHNAN (MALAKKARA)
RESPONDENT:
SREENU, TC 43/1005(4), SWAYA NIVAS, NEAR VADUVATHUKOVIL,
MUTTATHARA, THIRUVANANTHAPURAM-695008.
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
27.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RCREV. NO. 107 OF 2021
2
JUDGMENT
A.Muhamed Mustaque, J
This Rent Control Revision have come up for admission today. We are
not prepared to entertain this matter and the same is dismissed. We had the
advantage of hearing the appellant's counsel as well as the learned counsel
for the respondent, who entered through Caveat.
2. The reasons for the dismissal of this RCR are set out here:-
3. The revision petitioner herein was the respondent in RCP No.81
of 2009 on the file of the Rent Control Court, Thiruvananthapuram. The
proceeding for eviction was initiated by the respondent herein under
Sec.11(2) (b) and 11(3) of the Kerala Building (Lease and Rent Control) Act,
1965. An ex-parte order was passed on 4.03.2010. Thereafter, he filed an
application to set aside the ex-parte order along with an application to
condone the delay of about 3351 days. The application to condone the
delay was dismissed. Consequently, the application to set aside the ex-
RCREV. NO. 107 OF 2021
parte order has been dismissed. The matter was carried in appeal. The
appeal also has been dismissed.
4. Admittedly, the revision petitioner had received the notice.
According to him, he has been working at various places in India and also
went abroad in the year 2014. Therefore, he could not engage a lawyer to
contest the matter. No document was produced to substantiate his
contention before the Rent Control Court. However, he had produced
Ext.A1 referred in the Appellate Court Judgment. Ext. A1 is the notarized
copy of the passport. The Appellate Court, after referring to Ext.A1, entered
into the following findings:
"Admittedly the appellant received notice in RCP 81/2009 in 2009 itself. Ext.A1 copy of
Passport reveal that he obtained the Passport on 23.01.2013 and went abroad only on
10.05.2015. No documents were produced by the appellant to show that he was not in
Kerala from 2010 to 09.05.2015. It is also revealed that he came to India and was
available here from 27.10.2015 to 26.11.2015, from 05.10.2016 to 25.11.2016, from
25.04.2017 to 11.05.2017, from 23.09.2017 to 15.11.2017, from 03.04.2018 to
30.04.2018, from 09.11.2018 to 24.11.2018, from 27.04.2019 to 05.06.2019, from
28.10.2019 to 18.11.2019 and finally he came back to India on 26.02.2021. Thus it
can be found that the petitioner was available at least for one month every year in 2015
and 2016 and twice in 2017, 2018 and 2019."
5. It is to be noted that an execution petition was filed in the year
2010 as E.P No.276 of 2010. The subject matter of eviction is a residential
RCREV. NO. 107 OF 2021
building. The petitioner's mother and sister filed claim petitions, that were
disallowed. It is submitted that it was carried upto this Court. The order of
the Execution Court was affirmed by this Court.
6. The learned counsel for the revision petitioner referring to
Sec.15(5) of the Limitation Act, 1963 (for short the "Act") argued that in
computing the period of limitation, the period during which the revision
petitioner was absent from India has to be reckoned and therefore, both the
Courts below erred in their findings.
7. We have serious doubt whether Sec.15(5) of the Act would
apply in a matter related to setting aside an ex-parte decree. Anyway,
according to us, Sec.15(5) of the Act could not be applied in this case as this
is a case where the petitioner was served with the notice and the petitioner
had not chosen to appear. It is to be noted that the petitioner had appeared
in the matter and thereafter, remained absent. In such circumstances, we
are sure that Sec.15(5) of the Act will not come to the aid of such a person.
We are, therefore, of the view that both the Courts are justified in
dismissing the application.
RCREV. NO. 107 OF 2021
However, taking note of the plea made by the learned counsel for the
revision petitioner, we are of the view that one month time shall be given to
the petitioner to vacate the building. The petitioner shall file an affidavit
before the Rent Control Court that he will vacate the building within one
month from today. The learned counsel for the respondent prayed for
payment of arrears of rent. The respondent is free to seek the arrears in
appropriate manner.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
ms/PR
