DHARMA NATESAN Vs. THANKAPPAN HARIDAS

JUDGEMENT

(1.) THE petitioner is the landlord and the respondent the tenant Rent Control Petition, O.P. 60 of 1976 was filed by the petitioner against the respondent on the ground of arrears of rent. The respondent took the building on lease as per rent deed dated 12.11.1974 agreeing to pay rent at the rate of Rs. 20 per mensem Rent from January 1975 was in arrears. The petitioner demanded rent when the respondent filed O.A. 780 of 1975 before the Land Tribunal, Kottayan claiming Kudikidappu rights. That application was dismissed on 15.12.1975. The rent Control petition followed. The respondent appeared through his Advocate and filed his objections denying the tenancy and the claim for arrears of rent. He raised the question of Kudikidappu again and moved the court under Section 125(3) of the Kerala Land Reforms Act to refer his plea of Kudikidappu to the concerned Land Tribunal. A reference was made by the Rent Control Court by its order dated 12.1.1977. The Land Tribunal held against the respondent on his plea that he was a Kudikidappukaran and returned the records with its findings to the Rent Control Court. The case was thereafter posted for evidence to 23.3. 1978 on which date neither the respondent nor his advocate was present and no representation was made on their behalf. The petitioner and his advocate were present. The respondent was declared ex parte and the petition for eviction was allowed as prayed for witcosts. The Rent Control Court directed that a copy of the order should be communicated to the respondent which directed also was complied with. No attempt was made by the respondent either to get the ex parte order set aside or the order of eviction avoided by deposition the arrears of rent claimed under Section 11(2) of the Act. The petitioner filed E.P. 220 of 1978 for execution of the order of eviction and notice was issued to the respondent. On receipt of notice, he appeared and filed objections to effect that the order of eviction was not executable. The Execution Court rejected the objection raised and ordered delivery. The respondent tool the matter in revision to the District Court. The District Court allowed the revision holding that the eviction order was passed without satisfying the a statutory ground for eviction existed and held that the order was inexcutable. Hence this revision.

(2.) THE respondents, denial of rent deed and the arrears of rent in his counter was only to establish his right as Kudikidappukaran. The fact that the Rent is Rs. 20/- per month itself falsifies his case. He moved the Land Tribunal as per O.A. 780 of 1975 for declaration that he was Kudikidappukaran. He did not succeed. Before the Rent Control Court also be got a reference on this question and invited a finding against him by the Land Tribunal. It was thereafter that the case was posted for evidence and the ex parte eviction order was passed. The complaint of the respondent before the execution court was that no evidence was adduced on behalf of the petitioner in support of the case that there were arrears so rent and therefore no ground was made out to support the order of eviction. An order of eviction under The Kerala Buildings (Lease and Rent Control) Act, 2 of 1965 (hereinafter referred to as the Act) can be passed only on one or other of the grounds enumerated in Section 11 of the Act. Since there is no finding by the Rent Control Court about the availability of any ground to support the order of eviction the order is without jurisdiction and hence non-set. Under these circumstances, according to the petitioner, the execution court could go behind the order and refuse to execute it. This did not find favour with the execution court, but found favour with the execution court, but found with the District Court in revision.

(3.) THE question for consideration is whether this approach on the facts of this case is correct. Are all ex parte orders not based on opposite, non-set ? Is there an obligation on a court, even when the opposite side is absent, to satisfy itself of the sufficiency of the ground urged for eviction? Every case has to depend upon its facts.