ABDUL HAKKIM Vs. ARUMUGHAM

JUDGEMENT

(1.) Although apparently by the order dated 13-2 1991 of the learned single Judge the petition falls in the category of a referred matter, going through the bio data of the proceedings of this petition we shudder to observe that the rent control proceedings (as many as 10-9, 12, 13, 14, 15, 16, 17, 18, 19 and 20/78) taken up by the landlord respondent, wherein as far back as in 1978 - 79 the evidence of the landlord in chief having been over, those proceedings were part heard at the stage of cross examination of the landlord which was not then completed have remained in abeyance as a consequence of further orders. The landlord has been kept away from the right of trial, in the teeth of the consistent finding that he and his counsel could not remain present because they were coming to Alathur from Palghat and were prevented due to the puncture of the tyres of their vehicle, they could reach the Court only at 12.30 p.m. and by the time all the rent control petitions were dismissed for their absence. Throughout the further travel of these proceedings the fact that both the landlord and his counsel could not attend in time due to the tyre puncture of their vehicle would have to be referred and highlighted as an undisturbed situation.

(2.) The proceedings, as stated above stand on the file of the Rent Controller, Alathur for eviction of the present petitioner and other occupants under S.11 of the Kerala Buildings (Lease & Rent, Control) Act. On the day in question (as stated above) on 23-3-1979 both the respondent landlord and his counsel could not remain present. All the applications came to be dismissed which could be understood to be under the provisions of O.9 R.8 of the Code of Civil Procedure.

(3.) It is contended that the respondent landlord did not file any appeal to the appellate authority but instead approached the same authority by Interlocutory Application No. 394 of 1979. The application is styled to have been presented under S.23(h) of the Act and R.13(3) of the Kerala Buildings (Lease & Rent Control) Act praying for setting aside the said dismissal of the petitions. This petition was opposed by the petitioner tenant. The contention was that there was no legal power or jurisdiction which could be only under S.23(h) of the Act and the R.13(3) of the Kerala Buildings (Lease and Rent Control) Rules. The remedy was, the tenant contended, only an appeal under S.18 of the Act. The Rent Controller by the order dated 23-8-1979 granted the applications, granted the first ground regarding the absence of the landlord by observing that the landlord and his counsel could not and for sufficient cause attend the Court. In this connection the Rent Control authority also emphasized total absence of contrary evidence in regard thereto.