C. K. RAMA Vs. ABDULLA KUNHI

JUDGEMENT

(1.) Heard both sides. The Revision Petitioner is the tenant. The first respondent filed a petition for eviction of the shop room on the grounds of arrears of rent, bona fide need and cessation of occupation. According to the landlord, the second respondent was inducted into possession of the petition schedule shop room for a ground rent of Rs. 14/- as per a registered koolichit. According to the landlord, he bona fide needs the building to start a stationery shop therein as he has no job or employment and he has returned from Gulf, where he was working, for permanent settlement at his native place. It was also alleged that the tenant has ceased to occupy the shop room for more than six months without any reasonable cause.

(2.) The tenant filed a counter denying the allegations. The allegation regarding bona fide need was also disputed. The allegation regarding cessation of occupation was also disputed and denied. The landlord had taken out an ex parte commission also. On 20th August, 1994, the case was listed fur trial, but was adjourned to 23-8-1994 as there was no sitting on 20th August, 1994. Since the tenant was laid up with rheumatic polio arthrites, he could not contact his counsel and the counsel, in turn, reported 'no instruction'. The tenant was, therefore, set ex parte. The Rent Controller, alter examining PW 1 and marking Exts. A1 to A4 and C1, passed an order, ordering eviction on the ground that there is no contra evidence to the evidence let in by the landlord. At the time of hearing, learned counsel for the tenant placed before us two applications filed by him on 19-9-1994 before the Rent Controller, one to set aside the ex parte order passed against him on 23-8-1994 under S.23(1)(h) of the Kerala Buildings (Lease & Rent Control) Act and the other to condone the delay in filing the petition to set aside the ex parte order against the tenant. Both the petitions were returned by the court raising the question of maintainability of the petition under R.13(3) of the Kerala Buildings (Lease & Rent Control) Rules. Though a week's time was granted to cure the defects, the counsel, without re - presenting the petitions, filed an appeal under S.18 of the Act before the Appellate Authority. The Appellate Authority dismissed the appeal on the ground that the order of the Rent Controller is correct since the Rent Controller had ordered eviction on the basis of ex parte evidence adduced by the landlord and in the absence of rebuttal evidence on the side of the tenant. The Appellate Authority has also observed that since the tenant has not cared to have the ex parte order set aside, there is no possibility of having contra evidence on record and, therefore, there is no scope for interfering with the order of the Rent Controller. Aggrieved by the order of the Appellate Authority, the tenant has preferred the above revision before this court.

(3.) As noticed earlier, the tenant has filed two petitions before the Rent Controller, one to set aside ex parte order, and the other to condone the delay in filing the petition to set aside the ex parte order, which were returned by the office noting defects. Without representing the same, the tenant has preferred an appeal under S.18 of the Act. S.23(1)(h) of the Act hays that the appellate authority shall have the powers which are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of matters listed therein as (a) to (k). The matter under clause (h) deals with setting aside ex parte order. The tenant, under S.23(i)(h) of the Act could have invited an order from the Rent Controller. However, without inviting such an order, he preferred an appeal before the Appellate Authority, on the advice of his counsel. We are of the view that the mistake of the counsel should not be put against his client. We are also of the view that in matters like this, an opportunity must he given to the tenant or the landlord, as the case may he to contest the case on merits. Courts also should pass orders on merits in such cases. The Rent Controller, in this case, has ordered eviction on the simple ground that there is no contra evidence on the side of the tenant. The Appellate Authority also fell into the same error. As rightly pointed out by counsel for the landlord, the tenant was not diligent in prosecuting the case. We are of the view that the tenant was acting on the advice of his counsel and. therefore, we are of the view that the landlord can he compensated for the latches on the part of the tenant. We, therefore, direct the tenant to pay a sum of Rs. 2,000/- to Mr. A. K. Basheer, Advocate appearing for the landlord within three weeks from today.