SHAHUL HAMEED Vs. S GANGADHARA WARRIER

JUDGEMENT

(1.) One Nagoor Pichai Ahamed Kannu filed R.C.P. No. 170/81 against the respondent - tenant for eviction from a building on the ground of arrears of rent. Pending proceedings Ahamed Kannu died and the petitioners were impleaded as legal heirs. The Rent Control Court dismissed the application and an appeal was preferred against the order of the Tribunal before the Appellate Authority, namely, Sub Judge, Thiruvananthapuram as R. C. A. 12/86. The first respondent was declared ex parte in that proceedings and the appeal was allowed ordering eviction on the ground of arrears of rent. Petitioners later filed an application for execution of the order of eviction passed by the appellate authority. During the pendency of the application for eviction, Govt. by a notification issued under S.18 of the Act divested the powers of the appellate authority conferred on the Sub-Judge and by a separate notification conferred the powers of appellate authorities on District Judges in supersession of all previous notification on the subject. The respondent then filed I. A. No. 2729/93 before the 1st Additional District Judge to set aside the ex parte order. The petitioners have contended that the application should have been filed before the Subordinate Judge's Court who passed the order of eviction. This plea was rejected and the First Additional District Judge by the impugned order held that the powers of the appellate authority now vest with District Court, and therefore, an application to set aside ex parte order could be entertained only by an appellate authority invested with such powers under the Act This C. R. P. is directed against that order.

(2.) The short question that arises for consideration is whether an application to set aside an ex parte order is to be entertained by the original appellate authority who passed the eviction order in spite of the charge of jurisdiction effected by the statutory notification. The counsel for the petitioners contended that R.16(3) of the Kerala Buildings (Lease and Rent Control) Rules, 1979 is the relevant provision, which enables a party to file an application to set aside an ex parte order passed by the appellate authority. It is pointed out that such an application is to be filed before the appellate authority who has passed the order. Therefore an application filed before the appellate authority who got powers subsequent to the passing of the original order of eviction is not maintainable. R.16(3) of the Kerala Buildings (Lease and Rent Control) Rules reads as follows:

(3.) The provisions of the Code of Civil Procedure are generally applicable to proceedings before the Rent Control Authorities. S.150 of the Civil Procedure Code deals with general powers of the civil court in case there is transfer of business. S.150 reads as follows: