IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 RCRev..No. 120 of 2006() -------------------------------- RCA.1/2006 of DISTRICT COURT, THALASSERY RCP.14/2003 of MUNSIFF COURT, PAYYANNUR (IA 753 of 2005 IN RCP 14/2003) .................... REVISION PETITIONER/APPELLANT/RESPONDENT: ------------------------------------------------------------- P.V. PRASAD, S/O. P.V. KUNHIKANNAN, AGED 48 YEARS, PAYYANNUR AMSOM DESOM, KANNUR DISTRICT. BY ADV. MR.M.V.AMARESAN RESPONDENTS: ----------------------- 1. S. PRABHAKARAN SHENOY, S/O. SREEDHARAN SHENOY, PAYYANNUR AMSOM DESOM, KANNUR. 2. S. RADHAKRISHNAN SHENOY, S/O. SREEDHARAN SHENOY, PAYYANNURN AMSOM DESOM, KANNUR. 3. GOWRI, W/O. KUNHIKANNAN, PAYYANNUR AMSOM DESOM, KANNUR. 4. P.V. KUNHIKANNAN, S/O. P.V.KUNHIKANNAN, PAYYANNUR AMSOM DESOM, KANNUR. 5. KADAMBATH PADMANABHAN, PAYYANNUR AMSOM DESOM, KANNUR. BY ADV. MR.GRASHIOUS KURIAKOSE ADV. MR.M.M.ANTO THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCR No. 120 of 2006 ORDER IN I.A. No 810 of 2006 IN RCR No. 120 of 2006 Dismissed. 10.2.2009 Sd/ PIUS C. KURIAKOSE, JUDGE Sd/ C.K. ABDUL RAHIM, JUDGE /True copy/ P.A. to Judge PIUS C. KURIAKOSE, J. & C.K. ABDUL RAHIM ~~~~~~~~~~~~~~~~~~~~ R.C.R. No. 120 OF 2006 ~~~~~~~~~~~~~~~~~~~~ Dated this the 10th day of February, 2009 ORDER PIUS C. KURIAKOSE, J The tenant/respondent in the rent control petition, in which grounds of arrears of rent [11 (2) (b)], bonafide own occupation [11 (3)] and sub letting [11 (4) (i)] are invoked, is the revision petitioner. On getting notice from the rent control court, he entered appearance and filed statement of objections. However, on the day RCP was special listed for trial (15.3.2005), he failed to appear before the court. Accordingly, he was set ex parte and an order of eviction, as prayed for, was passed against him. Within 15 days of that order he filed I.A. 753/2005 for getting the ex parte order set aside. It was averred by him, through the affidavit in support of the I.A. that he was laid up due to acute gastro-enteritis and that he has been treated by Dr. Sameer of Payyannur co-operative hospital. No medical evidence was produced along with the application in support of the averments. However, subsequently the petitioner produced a medical certificate (Ext. A1) issued by Dr. A.M. Unnikrishan of Mukunda hospital, Payyannur. The certificate was to the effect that the petitioner was treated for gastro- enteritis by Dr. Unnikrishnan. The respondent/landlord filed serious RCR No. 120 of 2006 : 2 : objections to the I.A. which was enquired into by the rent control court. At the enquiry the medical certificate was got marked and the petitioner got himself examined as PW1. The trial court noticed that contrary to what was stated in the affidavit Ext. A1 was issued by Dr. Unnikrishnan and the testimony of the petitioner was that it was not Dr. Sameer, the doctor mentioned in the affidavit who had treated him, but it was Dr. Unnikrishnan. The inconsistency in the pleaded case and the case which pursued in evidence regarding the petitioner's ailment on the day previous to the special listing of the RCP, was noticed by the rent control court which concluded that the application is not bonafide and that the version of the petitioner is not believable. Accordingly, I.A. was dismissed. In appeal the learned appellate authority on re appreciating the pleadings of the parties and the evidence adduced by the petitioner would concur with the conclusion of the rent control court and dismissed the appeal. 2. We have heard the submissions of Sri. M.V. Amaresan, learned counsel for the petitioner and those of Sri. Grashious Kuriakose, learned counsel for the respondent/landlord. Sri. Amaresan would submit that name of Dr. Sameer came to be mentioned in the affidavit due to a mistake committed by the pleader's clerk while copying down the petition which was dictated to him by the advocate concerned. He argued that the observation of the learned appellate authority that in the RCR No. 120 of 2006 : 3 : evidence also the petitioner testified that he was treated by Dr. Sameer is wrong. The learned counsel has read over to us the relevant portions of PW1's testimony. The learned counsel highlighted that there is no counter evidence at all to the evidence adduced by the petitioner. The counsel requested that even if it be in terms, an opportunity be given to the petitioner to substantiate his contentions raised in the R.C.P. Lest, the petitioner should be compelled to vacate the building even without an adjudication of the RCP. The submissions of Sri. Amaresan were stiffly opposed by Sri. Grashious Kuriakose. According to him, the findings entered by the rent control court and the appellate authority are reasonable findings based on evidence and pleadings of the petitioner himself and there is no warrant for correcting them within the contours of the court of this jurisdiction. 3. We have considered the rival submissions. It is true that there is inconsistency in the case pleaded by the petitioner and the case which was sought to be proved by adducing evidence. But, we feel that the version of the petitioner that a mistake had crept in while drafting the petition and mentioning the name of the doctor is not altogether improbable. More over, it is the policy of law that as far as possible, all cases should be adjudicated on their merits rather than decided on technical reasons at the threshold itself. We feel that an opportunity should be given to the petitioner to substantiate his case but at the RCR No. 120 of 2006 : 4 : same time we decline to grant without imposing terms. Resultantly, order passed in RCP 14/03 by the rent control court and the order passed by the appellate authority in RCA 1/06 are set aside and I.A. 753/2005 will stand allowed on condition that the revision petitioner pays a sum of Rs.3,000/- (Rupees Three thousand only) by way of cost to the respondent either directly or through their counsel either before the Rent Control Court or before this Court within 3 weeks. Once payment is made and receipt is produced by the petitioner, the rent control court will restore the RCP back to file and will include the RCP for trial on an early date in the special list and will try and dispose of the RCP giving top priority. Since it is not disputed before us that pursuant to interim order passed by this Court entire arrears found by R.C. court has been discharged by the petitioner, the only further direction is that the petitioner shall continue to pay the rent which falls subsequently before the rent control court proceedings are finally disposed. PIUS C. KURIAKOSE, JUDGE C.K. ABDUL RAHIM, JUDGE kmd