IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 SA.No. 218 of 2000(A) --------------------- AS.90/1995 of ADDL.DISTRICT COURT,KOTTAYAM OS.439/1993 of MUNSIFF COURT, CHANGANACHERRY .................... APPELLANT(S): -------------- KOYAKUTTY, S/O SAVA RAWTHER, THENGANATHADATHILPURAYIDOM, MADAPPALLY MURI, DO, VILLAGE, CHANGANACHERRY. BY ADV. SRI.PAUL KURIAKOSE RESPONDENT(S): --------------- 1. DHARMAN NAIR, S/O KRISHNA PILLAI, KRISHNAVILASATHU, MADAPPALLY MURI, MADAPPALLY VILLAGE, CHANGANACHERRY TALUK 2. PONNAMMA W/O DHARMAN NAIR, KRISHNAVILASAM HOUSE, MADAPPALLY P.O., CHANGANACHERRY. 3. SOBHANA D/O DHARMAN NAIR, RESIDING AT PARVATHIMANDIRAM, PUZHAVATHU .P.O., CHANGANACHERRY. 4. KRISHNAKUMAR, S/O DHARMAN NAIR, KRISHNAVILASAM HOUSE, MADAPPALLY, CHANGANACHERRY. 5. JYOTHI D/O DHARMAN NAIR, KRISHNAVILASAM HOUSE, MADAPPALLY P.O. CHANGANACHERRY. R2 TO R5 BYADV. SRI.M.NARENDRA KUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08 / 07/ 2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN .J - - - - - - - - - - - - - - - - - - - S.A.No.218 of 2000 A - - - - - - - - - - - - - - - - - - - - - - - Dated this the 08th day of July, 2011 J U D G M E N T The tenant who suffered concurrent orders of eviction with liability to pay arrears of rent has come up in appeal. The parties and facts are hereinafter referred to as they are arrayed before the Trial Court. 2. It is not in dispute that the tenant was inducted into the possession as per Ext. A1 dated 17.09.1992. The monthly rent fixed was Rs.500/- .It is alleged in the plaint that rent has been kept in arrears from December 1992. The plaintiff has issued a notice namely Ext.A2 dated 06.10.1993 terminating tenancy. Since the defendant has neither paid the arrears of rent nor vacated the premises, the plaintiff was constrained to lay the suit. 3. The suit was resisted by the defendant pointing out that he had made additional construction to the building and had spent a good amount for the same. He also disputed the allegation regarding the default in payment of :-2-: S.A.No.218 of 2000 A rent. He expressed readiness to pay arrears of rent if any found due. He also disputed the validity of notice terminating the tenancy. On the basis of these contentions, he prayed for dismissal of the suit. 4. On the above pleadings, trial court raised necessary issues. The plaintiff was examined as PW1 and Exts.A1 to A4 were marked. The Trial Court on appreciation of the materials found the allegations to be true and also found that the tenant was liable to be evicted. Accordingly a decree was passed in favour of land lord. 5. The aggrieved tenant carried the matter in appeal as AS 90/1995 before the District Court, Kottayam. The Lower Appellate Court considered the submission made before it. That infact the Trial Court decree was an ex parte decree and tenant did not have sufficient opportunity to put forward his contentions. After considering the said contention, the lower appellate court found that there were no tenable contentions which the tenant could raise :-3-: S.A.No.218 of 2000 A against decree for eviction and it will be a futile exercise to remand the matter for the purpose of enabling the tenant to adduce evidence. However the Lower Court accepted the money order receipts produced by the tenant and found that the amounts covered by these receipts were paid towards the rent. The receipts were marked as Ext.B1 series. Order of eviction was confirmed and the appeal was dismissed. Before this Court Notice is being issued on the following decision of Law. i. whether a trial court is not bound to proceed under one of the modes prescribed by Order IX of the Code of Civil Proceedure in a situation where the defendant is declared ex parte? ii. whether the judgment and decree of the courts below are not vitiated by violation of the principles of Natural Justice? iii. whether the procedure adopted by the trial court in the present case in proceeding to dispose of the suit on the merits, in the absence of the defendant after rejecting the application for adjournment made on his behalf, is not vitiated by a total lack of jurisdiction? iv. whether exhibit B-1 series money order receipts do not cut at the root of the case set up by :-4-: S.A.No.218 of 2000 A the respondent plaintiff and render his testimony as PW-1 unworthy of credence? 6. Learned counsel appearing for the appellant pointed out that the decree is infact an ex parte decree and the defendant has been deprived of an opportunity to substantiate his contentions to establish that the land lord is not entitled to an order of eviction. Learned counsel pointed out that the decree can only be treated as one passed under Order 17 Rule 2 CPC . The observation made by the Lower Appellate Court that no purpose would be served by remanding the case to the Trial Court for enabling the defendant to adduce evidence is not justified. Learned counsel submitted that an opportunity may be given to the defendant to adduce evidence in support of his contentions. 7. Though the arguments may look very attractive at the first blush on a deeper consideration, it is felt that no practical purpose will be served by remanding the matter to the Trial Court. The case was listed for trial to :-5-: S.A.No.218 of 2000 A 18.11.1994. Petition filed for adjournment was filed and was dismissed on the same day. Trial commenced. PW1 was examined and Exts.A1 to A4 were marked. The evidences of plaintiff was closed. The next day it is claimed that defendant filed IA 1984/94 seeking to have the evidence reopened. The main grievance is that it was after the judgment in the case that order was passed dismissing the petition. The complaint is that thereby defendant was deprived of an opportunity to substantiate his contentions that the plaintiff is not entitled for decree for eviction. In support of his contention that decree can be treated only as an exparte decree, the learned counsel for the appellant relied with following decisions reported in Prakash Chander Manchanda and another, appellants Vs. Smt. Janaki Manchanda, respondents [AR1987 SCC 42], Shanmughan Vs. Federal Bank [1987 1 KLT SN39 Page 23], M.V.George Vs. S.M.S Traders [1980 KLT 307]. 8. One can have no doubt regarding the fact that :-6-: S.A.No.218 of 2000 A disposal of the Trial Court can be treated only to be one under Order 17 Rule 2. 9. But the question remains as to what purpose will be served by remanding the matter to the Trial Court to enable the tenant to adduce evidence in support of his contentions. The amendment of section 106 of Transfer of Property Act precludes challenge the validity of that notice of termination on technical grounds. The Lower Appellate Court has in fact considered necessity for remanding any trial. It was found that no purpose will be served by remanding the matter because going by the averments in the written statement no tenable contentions have been made out. As rightly noted by the Lower Appellate Court, the main contention appears to be that the defendant had made certain additional construction expending huge amounts. 10. Lower appellate court has accepted the money order receipts produced by the defendant and has given :-7-: S.A.No.218 of 2000 A credited to the amounts towards the arrears of rent. Even after that, lower court found that there was arrears. Lower appellate court was justified in coming to the conclusion that defendant cannot resist eviction on any legal grounds. 11. Therefore even assuming that defendant was deprived of an opportunity to adduce any evidence in support of his contentions , it cannot be said that any serious prejudice has been caused by the decree as confirmed by the appellate court. In view of these facts, it will be a futile exercise to remand the case to the Trial court simply for the sake of enabling defendant to adduce evidence. Further one has to notice that the litigation started in 1993 and nearly two decades has elapsed. Tenant has been enjoying the benefit for this period also. 12. There are no grounds made out to interfere with the judgment and decree of the lower court by this Court. 13. In the above circumstances, learned counsel appearing for the appellant prayed that some time may be :-8-: S.A.No.218 of 2000 A granted for vacating the premises. The prayer seems to be reasonable and just. While confirming the judgment and decree of the court below, the tenants are given six months time from 01.08.2011 to vacate on condition that they should file an affidavit stating that they shall unconditionally vacate the premises on or before the expiry of six months from 01.08.2011, within three weeks from today and continue to pay Rs.500/- (Rupees five Hundred only) as occupational charges till they vacate. There will be no order as to costs. P.BHAVADASAN JUDGE kkj