ELOOR MUNICIPALITY Vs. KRISHNADHAR

JUDGEMENT

(1.) The question posed for consideration in this Writ Petition is whether an application for setting aside an ex parte order allowing an appeal will lie before the Tribunal for Local Self Government Institutions in the absence of any specific provision under the Kerala Municipality Act, 1994 or under the Tribunal for the Kerala Local Self Government Institutions Rules, 1999 The petitioners herein are respondents 1 to 3 in Appeal No. 1142 of 2013 before the Tribunal for Local Self Government Institutions. After numbering the appeal notice was served on the petitioners fixing the date of appearance as 9.1.2014. According to the petitioners, the date fixed for appearance was wrongly noted by them as 19.3.2014 and that resulted in their non-appearance before the Tribunal on 9.1.2014. Later, the appeal was heard on 14.3.2014 and Ext. P3 order was passed. The contention of the petitioners is that virtually, it is an ex parte order passed by the Tribunal and as their absence was not willful and occurred solely on account of the aforesaid circumstances Ext. P3 order is liable to be set aside for causing a decision on merits. This Writ Petition has been filed seeking quashment of Ext. P3 order passed by the Tribunal and for issuance of a writ of mandamus commanding the Tribunal to hear the petitioners and pass appropriate orders, in accordance with law, in the said circumstances. As per Ext. P3 order, the Tribunal directed the second petitioner herein/the second respondent therein, to issue building permit to the petitioner therein/the respondent herein. Though notice was not ordered to the respondent in this proceedings Adv. P.J. Joseph entered appearance on behalf of the respondent, on instructions. I have heard the learned counsel for the petitioners and Adv. Sri P.J. Joseph, the learned counsel appearing for the respondent.

(2.) It is evident from the rival contentions that Ext. P3 order is virtually an ex parte order. As noticed hereinbefore, the petitioners were not present before the Tribunal on 9.1.2014, the date fixed for their appearance and also on the subsequent date viz., 14.3.2014, the date on which the appeal was heard. True that, they are assigning the aforementioned reason for their absence on those days. Going by R. 19(3) of the Tribunal for the Kerala Local Self Government Institutions Rules, 1999 (for short 'the Rules) the Tribunal could dispose a petition ex parte if any of the parties or advocates has not been present on the date of hearing or any other adjourned date for hearing. In the said circumstances, in view of the admitted absence of the petitioners or advocates, on the dates mentioned above there was no legal impediment for passing an ex parte order in Appeal No. 1142 of 2013. Hence, the Tribunal could not be faulted for the disposal of the appeal ex parte. The petitioners who assigned the aforementioned reason for their absence on the aforementioned dates before the Tribunal, had not, admittedly, moved the Tribunal for setting aside Ext. P3 order. According to the petitioners in the absence of specific provision empowering to set aside an order passed ex parte no such petition will lie before the Tribunal. The question is whether it is the correct position of law. The learned counsel for the respondent submitted that the petitioners ought to have approached the Tribunal for getting Ext. P3 order set aside, with a proper petition.

(3.) In the contextual situation it is apposite to refer to a Division Bench decision of this Court in Aliyar v. Pathu,1988 2 KerLT 446. In paragraph 22 therein it was held thus:-