IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 RCRev..No. 118 of 2008() ------------------------ RCA.36/2004 & RCA.NO.4/2005 of IIND ADDL.RENT CONTROL APPELLATE AUTHORITY, TRIVANDRUM RCP.43/2003 of THE RENT CONTROL COURT,TRIVANDRUM .................... REVISION PETIITONER/ IST RESPONDENT -------------------------------- MOHAMMED ABDUL KHADER, S/O.HAJI MOHAMMED HANEEFA, T.C.9/2016, SHALINI KURUP'S LANE, SASTHAMANGALAM, THIRUVANANTHAPURAM. BY ADV. SRI.P.GOPALAKRISHNAN NAIR RESPONDENTS/ APPELLANTS & 2ND RESPONDENT ------------------------------------------ 1. ABUSALI, S/O.LATE SHAHUL HAMEED, P.P.2/148, VALSALAYAM, EDAKKODU, NEMOM P.O, PRAVACHAMBALAM, THIRUVANANTHAPURAM. 2. V.SURENDRAN, M/S.RADHA DISTRIBUTOR WEIGH AND MEASURES EQUIPMENTS, ANKALA AMMAN COIL STREET, CHALAI, THIRUVANANTHAPURAM. 3. S.KABEER, S/O.LATE SHAHUL HAMEED, THOTTUMKARA VEEDU, KARICHARA, PALLIPPURAM, THIRUVANANTHAPURAM DISTRICT. ADV. SRI.K.S.HARIHARAPUTHRAN FOR R2 SRI.GEORGE MATHEW FOR R2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 01/12/2008, ALONG WITH RCR NO. 120 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.1135/2008 IN RCR.NO.118/2008 ------------- DISMISSED Sd/- P.R.RAMAN, JUDGE. 1/12/2008 Sd/- T.R.RAMACHANDRAN NAIR, JUDGE. P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ. ------------------------------- R.C.R.NOS.118 & 120 OF 2008 ------------------------------- Dated this the 1st day of December,2008 O R D E R Raman,J. These two revisions arise out of the common judgment in R.C.A.Nos.36/2004 and 4/2005 on the file of the Rent Control Appellate Authority, Thiruvananthapuram. R.C.P. No.43/2003 is a petition for eviction filed by the revision petitioner herein under Sections 11(2)(b), 11(4)(i), 11(4)(ii) and 11(4(iv) of the Kerala Buildings (Lease and Rent Control) Act. The Rent Control Court ordered eviction under Sections 11(2)(b) and 11(4)(iv) of the Act. 2. The briefly stated facts are as follows: The petitioner's father and father's brother by Ext.A20 have purchased the tenanted premises and the southern portion was in occupation of the petitioner's father and the northern portion was in occupation of the father's brother. Petitioner's father's brother however rented out his portion to one Shahul Hameed. Petitioner's -2- R.C.R.No.118 & 120/2008 father continued to occupy his portion. By virtue of Ext.A2 settlement deed the petitioner became the owner of the property belonged to his father. The petitioner's father's brother died and the property devolved upon his wife and children, who in turn assigned their right in favour of the petitioner by Ext.A1. Thus the petitioner became the absolute owner of the entire premises. Shahul Hameed died and his right devolved upon counter petitioners 1 and 2. There was also an allegation in the rent control petition that the tenanted premises were sub leased in favour of the 3rd counter petitioner, besides defaulting the payment of rent. The lst counter petitioner, who is the brother of the 2nd counter petitioner, did not contest the matter. He was set ex parte. Subsequently, he filed an application I.A.No.4135/2004 to set aside the ex parte order inter alia contending that he did not receive the notice in the rent control proceedings. The Rent Control Court found that actually notice was issued showing his name 'Kabeer' but he refused to accept the same. His contention was that his name is Ahammed Kabeer. But -3- R.C.R.No.118 & 120/2008 the Rent Control Court found that even though in some documents his name is shown as Ahammed Kabeer, in the electoral identity card it is shown as Kabeer only. The alleged sub tenant was contesting the matter. But the rent control court held that the lst counter petitioner had notice about these proceedings. It was also observed that the lst counter petitioner was away at Coimbatore and doing independent business and had no interest as such in the tenanted premises for contest. In these circumstances, it was found that there was valid notice to the lst counter petitioner and dismissed the I.A., against which an appeal, R.C.A.No.4/2005 was filed. After setting the lst counter petitioner ex parte based on the evidence let in by the parties, the Rent Control Court adjudicated the matter and allowed the rent control petition under Sections 11 (2)(b) and 11(4)(iv) of the Act, against which the counter petitioners 2 and 3 preferred an appeal, R.C.A.No.34/2004. Since the contention was raised disputing the relationship of landlord -tenant and since the Rent Control Court relied on the affidavit -4- R.C.R.No.118 & 120/2008 filed by the lst counter petitioner to hold that the dispute of landlord-tenant relationship is not bona fide and since the lst counter petitioner was set ex parte, the matter was remanded to the Rent Control Court so as to give him an opportunity of being heard in the matter and thus allowed both the appeals, against which the present revision petitions are filed. 3. We have heard the learned counsel appearing for the petitioner Sri P.Gopalakrishnan Nair and also the learned counsel appearing on behalf of the respondents. 4. The learned counsel for the petitioner would contend that there was no need to remand the case to the Rent Control Court. Since the entire evidence was available, the Appellate Authority ought to have decided the case on merits. The respondents on the other hand would contend that the Appellate Authority having exercised its discretion in the matter and gave an opportunity to the lst counter petitioner to contest the matter, this Court may not interfere with the order under revision. -5- R.C.R.No.118 & 120/2008 5. So the first question that arises for consideration is whether the lst counter petitioner should be given an opportunity to contest the matter at this stage and whether the order setting him ex parte is liable to be set aside. In this connection it has to be noticed that the very allegation in the rent control petition besides the other grounds urged is sub lease. It is true that the alleged sub lease was found against the lst counter petitioner. But the 2nd counter petitioner is the brother of the lst counter petitioner and both of them are children of the original tenant, Shahul Hameed, the petitioner's father's brother. The lst counter petitioner is found to be doing independent business at Coimbatore and has no special interest as such in the tenanted premises to be protected. That the relationship of the counter petitioners 1 and 2 as brothers is beyond dispute, that they succeeded to the estate of the deceased tenant, Shahul Hameed, that the 2nd counter petitioner had been contesting the matter and that the lst counter petitioner did not have any interest adverse to that of the 2nd counter petitioner are also facts which are -6- R.C.R.No.118 & 120/2008 not seriously in dispute. Thus there was effective representation in the RCP, when the 2nd counter petitioner has contested the matter. Further when notice was issued to the first counter petitioner, he refused to accept the same. The only ground for refusal, according to him, was that the name shown in the cover was Kabeer instead of Ahammed Kabeer. But he was known as Kabeer as is evident from the electoral identity card. At any rate, when he was issued a notice of the proceeding pending before the Rent Control Court wherein his own brother (the 2nd counter petitioner) is contesting the matter, it cannot be said that he was totally ignorant of the proceedings and nothing prevented him from appearing before the court and contesting the same. On an over all consideration of the entire factual aspects, we find that the lst counter petitioner had sufficient opportunity to contest the matter. But he having not availed the same cannot be heard to contend that the order setting him ex part is liable to be set aside and he is entitled for one more opportunity to contest the matter. If that be so, there is no merit in the appeal -7- R.C.R.No.118 & 120/2008 R.C.A.No.4/2005. Accordingly, the order of remand passed so as to give an opportunity to the lst counter petitioner is clearly erroneous and we set aside the same. Since the Appellate Authority has not considered the order passed by the Rent Control Court under Sections 11(2)(b) and 11(4)(iv) on merits, the proper course open is to send back the case to the Appellate Authority for fresh consideration and disposal of R.C.A.No.36/2004. We do so. The Appellate Authority will dispose of the appeal in accordance with law, as expeditiously as possible, at any rate within a period of three months. Appeals are disposed of as above. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.