IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 RCRev..No. 191 of 2008() ------------------------ RCA.139/2007 of D.C. & SESSIONS COURT,KOZHIKODE RCP.92/2001 of ADDL.M.C.,KOZHIKODE-I .................... REVISION PETITIONER/APPELLANT IN R.C.A./PETITIONER --------------------------------------------------- P.H.THAHA,S/O LATE HAMEED KUNHU, KASABA AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S): --------------- 1. SUDHA DEVADAS, W/O DEVADAS,RESIDING AT KASABA AMSOM, KARIAKUNNU DESOM, KOZHIKODE TALUK. 2. LATHA RAJKUMAR, W/O RAJKUMAR, IN DO.DO. 3. SHYLA RAMAKRISHNAN, W/O LATE RAMAKRISHNAN,IN DO........DO...... 4. ASWIN RAMAKRISHNAN, S/O DO... IN DO... 5. SAROJINI RAMAKRISHNAN, D/O DO..IN DO... (*)6. SHARAFUDHEEN, S/O LATE HAMEED KUNHU, BUSINESS, RESIDING AT KASABA AMSOM, KARIAKUNNU DESOM, KOZHIKODE TALUK. (*)7. ABDUL RAHSEED,S/O . DO. IN DO. (*)8. SAIFUDHEEN, S/O DO IN DO. (*)9. PUTHENPARAMBIL SAHEED, S/O DO IN DO. (*)10. NAZEEMA, D/O DO. IN DO... DO... (*)11. AMINA KUNHU, D/O DO. IN DO.... RCRev..No. 191 of 2008() (*)12. HASEENA, W/O LATE YOONUSKUTTY, PUTHENVILA HOUSE, (THULAVARSHA VILA), P.O. EDAVA, NEAR RAILWY STATION, THIRUVANANTHAPURAM DISTRICT. (*)13.YOOSNA, D/O DO. MINOR AGED 16, REPRESENTED BY GUARDIAN MOTHER, REPRESENTED NO.12, HASEENA,IN DO. (*)14.YOOSUF, S/O DO MINOR AGED 12, REPRESENTED BY GUARDIAN MOTHER, RESPONDENT NO.12, HASEENA, IN DO. (*) (RESPONDENT NOS.6 TO 14 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER VIDE ORDER DATED 19/08/2008 IN I.A.NO.1860/2008) ADV. SRI.KKM.SHERIF FOR R1-5 SRI.LAL K.JOSEPH FOR R1-5 SRI.A.A.ZIYAD RAHMAN FOR R1-5 SMT.SHEENA SAMUEL FOR R1-5 SRI.P.MURALEEDHARAN (THURAVOOR) FOR R1-5 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 15/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.1782/2008 IN R.C.R. No.191/2008 DISMISSED. SD/-P.R.RAMAN, JUDGE SD/-T.R.RAMACHANDRAN NAIR, JUDGE 15/10/2008 \\TRUE COPY// P.A TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R No. 191 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of October, 2008. O R D E R Ramachandran Nair, J. This revision petition is filed by one of the tenants in R.C.P.No.92/2001 of the Rent Control Court, Kozhikode. He was the appellant in R.C.A.No.139/2007 before the Rent Control Appellate Authority, Kozhikode. Respondents 1 to 5 are the landlords who claimed eviction against the predecessor-in-interest of the petitioner herein and respondents 6 to 14 are the other legal heirs of the original tenant. The petitioner herein filed I.A.No.1345/2007 in R.C.P.No.92/2001 to set aside the ex-parte order of eviction. I.A.No.1074/2007 was filed by respondents 6 to 14 herein, who are the other legal representatives of the original tenant to set aside the ex-parte order of eviction passed against them. Both these applications were heard and disposed of by a common order by the Rent Controller. Only the petitioner herein filed appeal from the dismissal of I.A.No.1345/2007 filed by him. Therefore, as against the others, the order of eviction has become final. The Appellate Authority having concurred with the order passed by the Rent Controller, the petitioner has filed this RCR 191/2008 -2- revision petition invoking Section 20 of the Kerala Buildings (Lease & Rent Control), Act, 1965 (for short 'the Act'). 2. Both the authorities below have found that the petitioner herein has not established sufficient cause for setting aside the ex-parte order of eviction. The authorities below have pointed out various circumstances to justify the said conclusion. It was found that even though maximum indulgence was shown to the petitioner, he was successfully protracting the proceedings for seven years. 3. We heard learned Senior Counel Shri S.V.Balakrishna Iyer, for the petitioner and Shri K.K.M. Sheriff, learned counsel for the landlords. On behalf of respondents 1 to 5, a counter affidavit has also been filed traversing the averments of the petitioner and to show that there has been contumacious conduct on the part of the petitioner in protracting the proceedings. The relevant facts which emerge from the pleadings and the orders under challenge are the following: 4. The eviction petition was filed under Sections 11(4)(ii) and 11(8) of the Act. The original tenant was one Hameed Kunhu who was arrayed as respondent in the eviction petition. After his appearance before the Rent Control Court, but before filing the objection to the Rent Control Petition, he died on 26.3.2002. His death was reported only on 20.7.2002. The RCR 191/2008 -3- petitioner herein filed I.A.No.4269/2002 to implead him as supplemental second respondent. The landlords filed I.A.No.4270/2002 to direct him to furnish the name and address of the remaining legal heirs of the original tenant, if any, which was allowed on 8.4.2003. The application filed by the petitioner herein seeking impleadment as additional 2nd respondent, was allowed on 10.7.2003. After successive postings, when the matter came up for hearing on 4.8.2003 the petitioner herein filed an affidavit showing the names of seven persons as legal heirs. But he furnished the addresses of only three among them stating that the addresses of others are not known to him. The remaining legal heirs were impleaded as per order in I.A.No.4402/2003 on 5.3.2004. Service was effected to them by newspaper publication. As they failed to appear on the date so published, they were set ex-parte by order dated 27.3.2004. The case was listed for trial on 16.6.2004. The petitioner herein filed an application for issuance of an Advocate Commission and the other respondents filed an application to set aside the ex-parte order passed against them. The case was removed from the list and the application for issuance of Commission was allowed and the application to set aside the ex-parte order against the others was also allowed. After completing various steps, the matter was listed for trial on 14.1.2005, on which date the petitioner herein sought for adjournment on RCR 191/2008 -4- the ground of illness of his counsel. The court below accepted the request and posted the matter on 19.1.2005, on payment of cost of Rs.250/-. On 19.1.2005 the petitioner and his counsel were absent and the cost was not paid. The other tenants were also not present. Evidence on behalf of the landlords was recorded and the matter was posted to 27.1.2005 for orders and the Rent Control Petition was allowed on that date. On the application of the petitioner to set aside the ex-parte order, the court allowed the same and again the matter was posted to 1.4.2006 for evidence. On that day he filed an application for removing the case from the list, which was not allowed by the Rent Control Court. The chief examination of the third respondent was taken on that day and she was not cross examined. The Rent Control Petition was allowed on 12.4.2006. I.A.Nos.1191/2006 and 1219/2006 were respectively filed by the tenants for setting aside the ex- parte order and these applications were allowed by the Rent Control Court on 9.8.2006 on payment of cost. Since the other tenants did not deposit the cost, I.A.No.1219/2006 filed by them was dismissed and the order of eviction became final. The matter was again listed for trial on 11.9.2006. On that day an application for adjournment was moved on behalf of the third respondent herein, as she was abroad. The Rent Control Court rejected that application and the petition was dismissed for default. RCR 191/2008 -5- Application for restoration was filed by the landlords. The case was restored by order dated 25.10.2006 and was listed for trial on 13.2.2007 after publication. The evidence of the landlords was recorded and the matter was posted for orders on 28.2.2007. The petitioner herein was not present and did not lead evidence. Thereafter, on 5.3.2007 I.A.No.1074/2007 was filed by the other legal representatives/tenants to set aside the ex-parte order against them and the present petitioner filed I.A.No.1345/2007 for setting aside the ex-parte order against him, on 21.3.2007. These two applications were heard by the Rent Control Court which were dismissed by a common order dated 3.11.2007. 5. Shri S.V. Balakrishna Iyer, learned Senior Counsel appearing for the petitioner submitted that when the application for restoration was allowed, the petitioner herein had no notice of the same and it is because of the above fact that he could not appear when the matter was posted for evidence on 13.2.2007. It is pointed out that in that view of the matter, the authorities below ought not have considered the previous proceedings to enter findings against him. It is therefore submitted that an opportunity may be given to contest the matter on merits and lead evidence before the Rent Control Court. RCR 191/2008 -6- 6. Learned counsel for the landlords, contested the above argument by pointing out that the notice on the application for restoration was given to the counsel for the petitioner who refused to accept the same. The very same counsel appeared throughout the proceedings and the ploy adopted was to refuse the notice by proposing the notice to be served directly to the party through court again, to delay the proceedings. It is submitted that since the counsel had not relinquished his engagement at any time, the notice to the counsel itself was sufficient. Apart from that, it is pointed out that the Rent Control Court and the Appellate Authority have found that when the matter was listed for evidence on 13.2.2007, this was published well in advance with the name of the counsel and therefore as there was no relinquishment of his engagement, the said contentions cannot be accepted. 7. Both the authorities below referred to the provisions of Order III C.P.C., particularly sub-rule (2) of Rule 4 which reads as follows: “(2) Every such appointment shall be filed in Court and shall for the purposes of sub-rule (1), be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.” Going by the same, unless and until the appointment of the pleader is RCR 191/2008 -7- terminated as provided under the rules, it can only be presumed that the counsel was appearing for the party throughout. Therefore, the authorities below concluded that the refusal of the counsel to accept notice itself will amount to service of notice and there was no obligation on the landlords to reach out to the petitioner herein or the other tenants by taking fresh notice in the proceedings. When the party was represented by the counsel, the notice on the restoration petition ought to have been accepted by him rather than refusing to accept the notice and putting an obligation on the landlords again to take out a notice through court. The appointment of the counsel was subsisting. Therefore, the service of notice to the counsel was sufficient. Under Order III Rule 5, “Any process served on the pleader who has been duly appointed to act in Court for any party or left at the office or ordinary residence of such pleader, and whether the same is for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the pleader represents, and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person.” The refusal on the part of the counsel will amount to proper service of notice in such circumstances. The view taken by the authorities below on this aspect, therefore, cannot be said to be perverse warranting interference in these RCR 191/2008 -8- proceedings. When notice was ordered on the restoration petition and when it was offered to the counsel, he refused to take notice. As the engagement was still surviving as on that day, the court below was right in concluding that as the application to restore a suit or a petition is in continuation of such suit or petition, the Advocate was under duty to receive the notice issued to him on behalf of the party. 8. Learned counsel for the petitioner submitted that what happened on the previous occasions ought not have been considered by the authorities below while considering the application to set aside the ex-parte order. We cannot accept the said argument for more reasons than one. This is a case where the Rent Control Petition was filed in 2001 and it was protracted till 2007 during which time twice the court had set aside the ex-parte orders in favour of the petitioner and other tenants for enabling them to contest the matter on merits. The matter was listed for trial to 13.2.2007 after nearly 3 ½ months after the Rent Control Petition was restored to file. There is no dispute about the fact that names of the counsel appearing for the petitioner was shown in the list published. There is no case that they had not noticed the same. Therefore, neither the counsel nor the petitioner could plead that they were unaware of the proceedings. Apart from that, in support of the application for setting aside the ex-parte order, no evidence was given by RCR 191/2008 -9- the petitioner and he did not offer himself for examination in support of his averments. Both the authorities below have considered another aspect, viz. that the very same counsel was appearing throughout and through him alone the petition to set aside the ex-parte order was filed. One of the circumstances relied upon is that in the application filed by the other tenants, they have averred that they knew about the ex-parte order of eviction from the petitioner herein. They filed I.A.No.1074/2007 on 5.3.2007 whereas the petitioner filed the application to set aside the ex-parte order only on 21.3.2007. Therefore, the court below was of the view that it is clear that the petitioner was watching the proceedings from outside and was deliberately absenting himself in order to file application thereafter to set aside the ex-parte order. Several times indulgence was shown by the court to the petitioner and the other tenants. Even when the matter was finally taken up for evidence, the petitioner has chosen to absent himself. There is no worthwhile reason pointed out to explain the absence on the crucial date when the matter was listed for trial on 13.2.2007. Thus, it is a case where the petitioner could not satisfactorily explain the reasons for setting aside the ex-parte order. 9. Both the authorities below have concurred in their view that the reasons pointed out to set aside the ex-parte order are not sufficient. As RCR 191/2008 -10- already noticed, no evidence was adduced in support of the application. Apart from that, the order of eviction against the other legal heirs have become final. They have not challenged the order passed by the Rent Control Court refusing to set aside the ex-parte order by filing appeal before the Rent Control Appellate Authority. Only the petitioner herein alone had filed the appeal. Therefore, the order of eviction against him has also become final. In exercise of the revisional jurisdiction, we will not be justified in substituting our own views to that of the authorities below. 10. Therefore, revision petition is dismissed. Learned Senior Counsel for the petitioner sought for a larger time for the petitioner to vacate the premises. He pleaded for granting nine months time. Learned counsel for the landlords fairly agreed with the above submission. Therefore, we grant nine months from today to the petitioner to vacate the premises. The same will be subject to the following conditions: i) That the entire arrears of rent, if any, shall be deposited before the Execution Court within a period of one month from today and the petitioner shall also file an affidavit within the said time undertaking to give vacant possession of the tenanted premises on or before the expiry of the period of nine months from today, i.e. on or before 15.7.2009. RCR 191/2008 -11- ii) that the tenant shall not induct any third party into the premises; iii) that an amount equivalent to the rent towards use and occupation of the building shall be regularly paid by the tenant until vacant possession is given; and iv) that if for any reason the tenant fails to comply with the aforesaid conditions, the order of eviction passed by the court below will forthwith become enforceable. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/