IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 RCRev..No.205 of 2009 -------------------------- RCA.3/2009 of VI ADDL.DISTRICT COURT & RCAA, ERNAKULAM RCP.2/2007 of III ADDL.M.C.EKM (RENT CONTROL) (IA 4777/2008) .................... REVISION PETITIONER/APPELLANT -------------------------------------- M.V. FRANCIS, OOMMEN, AGED 56 YEARS, S/O. M.O. VARGHESE, MELAMPARAMBIL AGENCIES, ROHIT CHAMBERS, NEAR MALAYALA MANORAMA, S.A. ROAD, ERNAKULAM, KOCHI-16. (RESIDING AT MELAMPARAMBIL, PODIYADI P.O., THIRUVALLA - 689110) BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE RESPONDENT(S)/RESPONDENT: ----------------------------------- POORNIMA KURIAN AGED 26, D/O. BIJOY VARGHESE, AGED 26 YEARS, PUTHENPURACKAL HOUSE, SHENOYS ROAD, ERNAKULAM VILLAGE, KALOOR P.O., KOCHI-17. SRI.K.G.SARATH KUMAR SRI.RAJKUMAR (CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------ R. C. R. No.205 of 2009 ------------------------------------------------ Dated this the 8th day of September, 2009 ORDER Pius C. Kuriakose, J Under challenge in this revision petition filed under Section 20 of Act 2 of 1965 filed by the tenant is the judgment of the Rent Control Appellate Authority confirming order passed by the Rent Control Court dismissing his application to set aside an ex parte order of eviction passed against him. The case of the revision petitioner/tenant was that though the correct posting date of the RCP was 11/06/08, the Registered Clerk of the Advocate who was appearing for him before the Rent Control Court noted the same mistakenly as 13/06/08. Therefore, neither he nor his R. C. R. No.205 of 2009 -2- counsel were present on 11/06/08 when the case was called by the Rent Control Court leading to the passage of the ex parte order of eviction. The Rent Control Court and the Appellate Authority, however, did not become inclined to accept the explanation offered by the revision petitioner/tenant for his absence on 11/06/08. This was because in the memo which was issued by the tenant's counsel against payment of a sum of Rs.1,000/- which had been ordered by the Rent Control Court as costs for granting adjournment of the RCP, the posting date was noted as 11/06/08 itself. According to the Rent Control Court and the Appellate Authority, in the teeth of that memo wherein posting date is mentioned as 11/06/08, it is idle for the tenant to contend that the posting date was noted wrongly as 13/06/08 in the R. C. R. No.205 of 2009 -3- diary kept by the clerk of the counsel. 2. Sri.P.Martin Jose, the learned counsel for the revision petitioner and Sri.Rajkumar, the learned counsel for the landlord have addressed us extensively in support of their rival positions. It has been noticed by the Rent Control Appellate Authority itself in its judgment in paragraph No.8 that courts are expected to take a liberal approach while dealing with applications for setting aside orders passed ex parte. The policy of law is always that causes should be allowed to be adjudicated on merits rather than decided on technicalities. We feel that the explanation offered by the revision petitioner that the clerk of his Advocate in the court below noted the posting date wrongly as 13/06/08 and that his and his counsel's absence on 11/06/08 when the case was called was R. C. R. No.205 of 2009 -4- due to such wrong posting date noted by the clerk is not a totally improbable one. We feel that probabilities are equal when examine correctness of the rival versions. Having regard to the principle that causes should be adjudicated as far as possible on their merits, we give the benefit of doubt to the tenant. At the same time, we are not inclined to grant such benefit unconditionally. 3. The result of the above discussions is therefore, as follows:- 1) The order of the Rent Control Court and the judgment of the Appellate Authority dismissing the applications filed by the tenant will stand set aside and I.A. No.4777/08 in RCP.2/07 will stand allowed subject to the following conditions:- a) The revision petitioner pays a sum of R. C. R. No.205 of 2009 -5- Rs.6,000/- (amount equal to one month's rent payable for the building) to the respondent either directly or through her counsel in this Court within seven days. b) Revision petitioner will pay a further amount of Rs.1,000/- to the Kerala Mediation Centre within the same time limit through its Nodal Officer. 4. The order allowing I.A. No.4777/08 will become operative only if both the payments are made on time. The revision petitioner is permitted to file memos against payment of amounts before the Rent Control Court. Once the Rent Control Court notices the memos, that court will specially list the RCP No.2/07 in the month of October, 2009, if necessary, by publishing the additional special list for the purpose and ensure that the RCP is disposed of on merits by the end of October, 2009. It is made clear that if R. C. R. No.205 of 2009 -6- amounts are not paid as ordered above, the impugned order and judgment will stand confirmed and the RCR will stand dismissed. 5. This RCR is disposed of subject to the above conditions. PIUS C. KURIAKOSE JUDGE K. SURENDRA MOHAN JUDGE kns/-