Kerala High Court
Sajeevan Swamy vs Johnson, (Died) on 14 February, 2025
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
OP (RC)No.88 of 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 14TH DAY OF FEBRUARY 2025 / 25TH MAGHA, 1946
OP (RC) NO. 88 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 4/1/2024 IN I.A.NO.1/2023
IN IA.NO.117/2018 RCA NO.22 OF 2016 OF RENT CONTROL APPELLATE
AUTHORITY, IRINJALAKUDA
PETITIONER/PETITIONER/COUNTER PETITIONER:
SAJEEVAN SWAMY
AGED 58 YEARS
S/O RAVEENDRAN, THUBARAPULLI HOUSE,
NORTH IRINJALAKUDA P O THRISSUR DISTRICT,
PIN - 680125
BY ADV G.SREEKUMAR (CHELUR)
RESPONDENTS/ORIGINAL RESPONDENT AND THE ADDITIONAL RESPONDENTS 2
TO 5/ORIGINAL PETITIONER SINCE DECEASED AND THE LEGAL HEIRS OF
ORIGINAL PETITIONER LANDLORD:
1 JOHNSON, (DIED)
S/O RAPPAYI, RESIDING IN THE ADDRESS PALLISSERY HOUSE,
ROSARIO STREET, KIZHAKE CHALAKUDY VILLAGE DESOM,
CHALAKUDY P O, CHALAKUDY TALUK, THRISSUR DISTRICT,,
PIN - 680701
OP (RC)No.88 of 2024
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2 MINI JOHNSON
AGED 49 YEARS
W/O JOHNSON, RESIDING IN THE ADDRESS PALLISSERY HOUSE,
ROSARIO STREET, KIZHAKE CHALAKUDY VILLAGE DESOM,
CHALAKUDY P O, CHALAKUDY TALUK, THRISSUR DISTRICT,,
PIN - 680307
3 AKHILA JOHN
AGED 29 YEARS
D/O JOHNSON, RESIDING IN THE ADDRESS PALLISSERY HOUSE,
ROSARIO STREET, KIZHAKE CHALAKUDY VILLAGE DESOM,
CHALAKUDY P O, CHALAKUDY TALUK, THRISSUR DISTRICT,,
PIN - 680307
4 ALEENA JOHN
AGED 25 YEARS
D/O JOHNSON, RESIDING IN THE ADDRESS PALLISSERY HOUSE,
ROSARIO STREET, KIZHAKE CHALAKUDY VILLAGE DESOM,
CHALAKUDY P O, CHALAKUDY TALUK, THRISSUR DISTRICT,
PIN - 680307
5 AMAL JOHN
AGED 23 YEARS
S/O JOHNSON, RESIDING IN THE ADDRESS PALLISSERY HOUSE,
ROSARIO STREET, KIZHAKE CHALAKUDY VILLAGE DESOM,
CHALAKUDY P O, CHALAKUDY TALUK, THRISSUR DISTRICT,
PIN - 680307
BY ADV RAJESH R KORMATH
THIS OP (RENT CONTROL) HAVING COME UP FOR HEARING ON
30.01.2025, THE COURT ON 14.02.2025 DELIVERED THE FOLLOWING:
OP (RC)No.88 of 2024
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CR
JUDGMENT
P.Krishna Kumar, J.
The petitioner suffered an ex parte order of
eviction [Ext.R2(a)] dated 31.01.2015 under section
11(3) of the Kerala Buildings (Lease and Rent Control)
Act, 1965 ('the Act', for short). On 18/02/2015, he
filed an application to set aside the ex parte order. As
the said application was filed without a petition to
condone the delay, the court dismissed the application
by Ext.P4 order. The court also rejected the
explanation offered by the petitioner for setting aside
the ex parte order i.e., the petitioner was under the
impression that the matter would be settled by the
opposite party.
2. The petitioner filed an appeal against the said
order. He alleges that the appeal was transferred to
the Additional District Court, Irinjalakkuda from the
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District Court, Thrissur and it was not intimated to
the petitioner and consequently, the appeal was
dismissed for default. In the meantime, the person who
initiated the rent control proceedings died, and the
petitioner was unable to trace out the details of his
legal heirs. As a result, the application submitted by
the petitioner for readmitting the appeal was also
dismissed for default, it is contended. Resultantly, he
filed a petition to condone the delay of 1535 days for
restoring the application for readmitting the appeal,
and it was also dismissed by the Appellate Authority as
per Ext.P12 order on the finding that there are no
reasonable grounds to condone the delay.
3. The present original petition is filed against
Ext.P12 order contending that the delay occasioned as
mentioned above was not purposeful and, hence, the
petitioner should be permitted to contest the matter on
merit.
4. Heard Sri.G.Sreekumar (Chelur), the learned
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counsel appearing for the petitioner and Sri.R. Rajesh
Kormath, the learned counsel appearing for the
respondents.
5. Sri. G.Sreekumar (Chelur) submitted that the
person who originally initiated the rent control
proceedings had no title to the property as Ext.P2 sale
deed in his name is not a genuine document and that
there is no landlord-tenant relationship between him
and the respondents. Even according to the purported
landlord's account, the petitioner was put in
possession of the building on the very day the sale
deed was executed, based on an oral rental arrangement.
This fact alone exposes the falsity of his claim, it is
urged.
6. Refuting the above submissions, Sri.R.Rajesh
Kormath submitted that the petitioner has no bona fides
and he has filed the present petition in collusion with
his wife, who had executed the sale deed in favour of
the predecessor in interest of the present respondents.
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The learned counsel further pointed out that the
petitioner moved the court by waking up from his
slumber only when the execution petition was filed, and
thus, there is no reason to condone the delay of nearly
five years.
7. After considering the submissions of both sides
and the orders passed by the Rent Control Appellate
Authority and the Rent Control Court, we find no
apparent illegality in the said orders. The records
reveal that the petitioner failed to diligently contest
the matter. Furthermore, the explanation offered for
condoning the delay is unconvincing. Nevertheless, we
remain cognizant of the consistent stand of this court
on condoning delay. As a general principle, delay will
be condoned unless it smacks malafide, and the parties
will be permitted to raise their contentions on merit,
provided the opposing party is adequately compensated
for the losses incurred due to the delay.
8. We would have left the matter here by setting
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aside the impugned order on cost but for a grave
irregularity that caught our attention. Significantly,
Ext.R2(a), the ex parte order of eviction, reveals that
the Rent Control Court allowed the application with no
discussion of the merits of the materials presented
before the court. After summarizing the contents of the
eviction petition, the court passed the order in the
following lines:
"3. Respondent filed objection denying all the
allegations in the petition. According to the
respondent the agreement entered into between the
parties in O.S.No.770/2010 on the file of the
Hon'ble Sub Court, Palakkad is only as a security
for the debt due by him to the petitioner. He sold
20 ¼ cents of property to a third party with the
consent of the petitioner and his friend.
4. When the case came up for trial, the
respondent remained exparte. Petitioner filed
proof affidavit. Exts.A1 to A8 were marked. Ext.A1
is the sale deed No.164/2009. Ext.A2 is the rent
agreement dated 17.08.2009. Ext.A3 is the exchange
agreement. Ext.A4 is the copy of lawyer notice.
Ext.A5 is the postal receipt. Ext.A6 is the postal
acknowledgment card. Ext.A7 is the reply notice
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and Ext.A8 is the compromise petition filed in
O.S.770/2010.
5. The unrebutted evidence adduced by the
petitioner entitled him an order for getting
vacant possession of the building.
In the result, petition is allowed with costs
directing the respondent to surrender vacant
possession of the petition schedule house to the
petitioner within two months and on failure of the
same allowing the petitioner to secure vacant
possession of the petition scheduled building by
the due execution of the order."
(emphasis added)
It is evident from paragraph 5 that the court passed
the eviction order solely because the evidence
presented remained unrebutted. However, the court
failed to examine the nature and sufficiency of this
unrebutted evidence in relation to the relief sought.
When a court proceeds ex parte, it merely signifies
that the case will continue without the presence of the
opposing party. Even in ex parte proceedings, the court
remains equally bound to return a considered order just
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as it would in a contested case. The absence of the
opposite party does not exempt the court from adhering
to the fundamental legal principles. The court will
grant an order in favour of a litigant only if he
successfully establishes his right or the liability of
the opposite party. The burden of the litigant to prove
his case to the satisfaction of the court is not
vanished by the absence of the opposite party. Equally,
the court is not expected to blindly pass an order in
favour of the prosecuting party for the fault of the
defending side.
9. Indeed, the burden of proof of the party who
approached the court will not be hefty when his
averments stand undisputed in an ex parte proceeding.
Only a prima facie proof of the relevant facts
constituting the cause of action would suffice, and the
court would grant him such relief as to which he may in
law be found entitled [see Rameshchand Arda v. Anil
Panjwani AIR (2003 SC 2508)]. Even in such cases, the
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the court can issue a favourable order only if it is
satisfied about the existence of the right/liability in
question. When the opposite party is set ex parte, he
is not forbidden to take part in the further
proceedings of the case. It is open to him to join and
participate in the proceedings at a later stage by
accepting the events which had taken place in the
interregnum as they stand [see Arjun Singh v. Mohindra
kumar (AIR 1964 SC 1993)]. This also shows that the
court cannot mechanically pass an order in favour of
the plaintiff/petitioner in an ex parte proceeding.
10. Ordinarily, although the judgment/final order
is passed ex parte, the court will provide in the
judgment/order a summary of pleadings, points for
determination and findings therein after succinctly
discussing oral as well as documentary evidence.
Ext.R2(a) order is an exception to that standard
practice.
11. In this context, it is relevant to read sub-
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rule (8) of Rule 11 of the Kerala Buildings (Lease and
Rent Control) Rules, 1979, which describes the manner
in which the Rent Control Court (as well as the
Accommodation Controller and the Appellate Authority)
has to arrive at a final decision. Sub-rule (8)
expressly permits the Rent Control Court to decide a
dispute ex parte. The said provision also does not
prescribe a different course in the case of ex parte
orders. Sub-clause (8) reads thus:
"(8) The Accommodation Controller, Rent Control Court
or the Appellate Authority deciding the dispute shall
record a brief note of the evidence adduced by the
parties and witness who attend, and upon the evidence
so recorded, and after consideration of any
documentary evidence produced by the parties, a
decision shall be given in accordance with justice,
equity and good conscience by Accommodation
Controller, Rent Control Court or Appellate
Authority. The decision given shall be reduced to
writing. In the absence of any party duly summoned to
attend, the dispute may be decided ex parte."
(emphasis added)
The term "the dispute may be decided ex parte" means the
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dispute must be decided in the manner provided in the
said provision, when the party duly summoned fails to
attend. In other words, the decision should be in
writing and it must be made after considering the oral
or documentary evidence produced in the case. It must
also be in accordance with justice, equity and good
conscience.
12. Besides the procedural and conventional
requirements in passing ex parte judgment or orders,
Section 11 of the Act itself unequivocally provides
that an eviction order can be passed by the Rent
Control Court only if it is satisfied that the claim of
the landlord is bona fide. For illustration, Rule 2(b)
provides that if the Rent Control Court is satisfied
that the tenant has not paid the rent due by him, it
shall make an order directing the tenant to put the
landlord in possession, subject to the satisfaction of
certain other conditions. In respect of sub-sections
(3), (4), (7) and (8) of Section 11 of the Act, sub-
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section 10 provides as follows:
"The Rent Control Court shall, if it is satisfied
that the claim of the landlord under sub-sections
(3), (4), (7) or sub-section (8) is bonafide make an
order directing the tenant to put the landlord in
possession of the building..............."
(emphasis added)
13. In short, the satisfaction of the court as to
the genuineness of the claim made by the landlord is a
concomitant element of a valid order of eviction under
the Act. An order passed under the Act without arriving
at such satisfaction is a nullity and unsustainable in
law. We make it clear that it is not the form of
expression of the court about the satisfaction of the
existence of a bona fide claim but the manner in which
the court arrived at such a conclusion that matters. It
need not be stated in so many words. However, there
should be some reasoning from which such satisfaction
could even be inferred.
14. Regrettably, the ex parte order in this case
fails to demonstrate such satisfaction, and hence, we
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are unable to uphold it for that reason as well.
Although the petitioner does not directly challenge the
order on the above ground, when this court noticed such
a grave irregularity from the records produced before
it, it is necessary to set aside the same and relegate
the parties to the trial court, rather than readmitting
the appeal.
15. However, considering the fact that the eviction
petition was filed in the year 2011 and the petitioner
was not so vigilant in defending the matter, the
original petition is disposed of as follows:
1.Ext.R2(a) order is set aside.
2.The parties shall appear before the Rent
Control Court on 27/02/2025.
3.The petitioner will be permitted to contest
the matter on merit, on condition that he
should deposit Rs.15,000/- (Rupees Fifteen
Thousand only) as cost in the Rent Control
Court within thirty days from today, which
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shall be released to the respondents on filing
a proper application. If the petitioner herein
complies with the above direction, the order
setting him ex parte will be treated as
recalled. If he fails to do so, the court can
proceed afresh from the stage it set the
petitioner ex parte. The respondents will be at
liberty to adduce fresh evidence, if advised.
4.The Rent Control Court shall make all efforts
to dispose of the matter on or before
11/04/2025.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
P.KRISHNA KUMAR
JUDGE
sv
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APPENDIX OF OP (RC) 88/2024
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE RENT CONTROL PETITION
BEARING NO. 22 OF 2011 FILED BEFORE THE
RENT CONTROL COURT, IRINJALAKUDA DATED
22.12.2011
Exhibit -P2 TRUE COPY OF THE ALLEGED SALE DEED BEARING
NO. 164 OF 2009 OF THE IRINJALAKUDA SRO
DATED 24.01.2009 ALLEGEDLY EXECUTED BY WIFE
OF THE PETITIONER HEREIN IN THE NAME OF THE
1ST RESPONDENT SINCE DECEASED ,WITH ENGLISH
TRANSLATION
Exhibit P3 TRUE COPY OF THE OBJECTION FILED AT THE
OF 2011 ON THE FILE OF THE RENT CONTROL
COURT, IRINJALAKUDA FILED DATED 15.10.2013
WITH ENGLISH TRANSLATION
Exhibit -P4 TRUE COPY OF THE ORDER PASSED IN I A NO.
1326 OF 2015 IN R C P NO. 22 OF 2011 DATED
09.07.2015 ON THE FILE OF THE RENT CONTROL
COURT, IRINJALAKUDA
Exhibit -P5 TRUE COPY OF THE APPEAL MEMORANDUM FILED IN
R C A NO. 22 OF 2016 BEFORE THE RENT
CONTROL APPELLATE AUTHORITY, DISTRICT
COURT, THRISSUR DATED 19.02.2016
Exhibit -P6 TRUE COPY OF I A NO. 117 OF 2018 IN R C A
NO. 22 OF 2016 FILED ON THE FILE OF THE
ADDITIONAL DISTRICT COURT, IRINJALAKUDA
DATED 02.07.2018,WITH ENGLISH TRANSLATION
Exhibit -P7 TRUE COPY OF E P NO. 54 OF 2022 IN R C P
NO. 22 OF 2011 ON THE FILE OF THE MUNSIFF
COURT, IRINJALAKUDA FILED DATED 12.07.2022
WITH ENGLISH TRANSLATION
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Exhibit -P8 TRUE COPY OF I A NO. 4 OF 2023 IN I A NO.
117 OF 2018 IN R C A NO. 22 OF 2016 FILED
DATED 02.02.2023 ON THE FILE OF THE
ADDITIONAL DISTRICT COURT, IRINJALAKUDA
WITH ENGLISH TRANSLATION
Exhibit -P9 TRUE COPY OF THE OBJECTION FILED AT THE
INSTANCE OF THE RESPONDENTS 2 TO 5 IN THIS
ORIGINAL PETITION TO THE APPLICATION FILED
AS EXT P8 FILED DATED 17.07.2023 WITH
ENGLISH TRANSLATION
Exhibit -P10 TRUE COPY OF I A NO. 1 OF 2023 IN I A NO.
117 OF 2018 IN R C A NO. 22 OF 2016 BEFORE
THE ADDITIONAL DISTRICT COURT, IRINJALAKUDA
FILED DATED 02.02.2023 WITH ENGLISH
TRANSLATION
Exhibit -P11 TRUE COPY OF THE OBJECTION FILED IN EXT P10
AT THE INSTANCE OF THE RESPONDENTS 2 TO 5
HEREIN FILED DATED 01.07.2023 WITH ENGLISH
TRANSLATION
Exhibit -P12 RUE COPY OF THE ORDER PASSED IN I A NO I OF
2023 IN I A NO 117 OF 2018 IN R C A NO 22
OF 2016 ON THE FILE OF THE RENT CONTROL
APPELLATE AUTHORITY, IRINJALAKUDA DATED
4.1.2024
Exhibit -P13 TRUE COPY OF THE ORDER PASSED IN R P NO 4
OF 2023 IN I A NO 117 OF 2018 IN R C A NO
22 OF 2016 DATED 4.1.2024 ON THE FILE OF
THE RENT CONTROL APPELLATE AUTHORITY,
IRINJALAKUDA
RESPONDENT'S EXHIBITS
Exhibit R2(a) TRUE COPY OF THE ORDER DATED 31.1.2015 IN
R.C.P.NO. 22 OF 2011 ON THE FILE OF THE
RENT CONTROLLER, IRINJALAKUDA.
Exhibit R2(b) TRUE COPY OF THE PLAINT DATED 27.7.2024 IN
O.S.NO. 405 OF 2024 ON THE FILE OF THE
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COURT OF THE MUNSIFF OF IRINJALAKUDA.
Exhibit R2(c) TRUE COPY OF I.A.NO. 2 OF 2024 AND THE
ACCOMPANYING AFFIDAVIT DATED 27.7.2024 IN
O.S.NO. 405 OF 2024 ON THE FILE OF THE
COURT OF THE MUNSIFF OF IRINJALAKUDA.
Exhibit R2(d) TRUE COPY OF THE COUNTER STATEMENT DATED
23.9.2024 FILED BY RESPONDENTS 2 TO 5
HEREIN TO I.A.NO. 2 OF 2024 IN O.S.NO.-405
OF 2024 ON THE FILE OF THE COURT OF THE
MUNSIFF OF IRINJALAKUDA.
Exhibit R2(e) TRUE-COPY OF E.A.NO. 488 OF 2023 AND THE
ACCOMPANYING AFFIDAVIT DATED 28.2.2023 IN
E.P.NO. 547 OF 2023 IN R.C.P. NO. 22 OF
2011 ON THE FILE OF THE COURT OF THE
MUNSIFF OF IRINJALAKUDA.
