IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 234 of 2008()
1. M.E.MUSTHAQ, S/O.LATE T.N.P.P.MOHAMMED
... Petitioner
2. M,E.JABAIR, S/O.LATE T.N.P.P.
3. M.E.SULFEEKKAR,
Vs
1. KARYAT KUNHAMMAD HAJI,
... Respondent
For Petitioner :SRI.BOBY MATHEW
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :19/09/2008
O R D E R
P.R.Raman &
T.R. Ramachandran Nair, JJ.
- - - - - - - - - - - - - - - - - - - - - - - -
R.C.R. Nos.234 & 235 of 2008
- - - - -- - - - - - - - - - - - - - - - - - - - -
Dated this the 19th day of September, 2008.
O R D E R
Raman, J.
Two revision petitions are filed by the tenants, since there are tenants
two buildings against which the Rent Control Court ordered eviction of
both the tenanted premises. The tenanted premises is part and parcel of a
large structure consisting of two rooms. One is used as a hotel and the
other as a kitchen. The landlord sought eviction under Sections 11(2)(b),
11(3), 11(4)(i) and 11(4)(iii) of Act 2 of 1965. The revision petitioners
herein, however, did not contest the matter by adducing any evidence. But
the landlord adduced evidence and based on the evidence on record, the
Rent Control Court ordered eviction on all the grounds. Against the said
order of eviction, the revision petitioners filed appeals. The Appellate
Court dismissed the appeals, against which the present revision petitions are
filed.
2. Learned counsel for the petitioners would contend that sufficient
opportunity was not given to the petitioners for adducing evidence in the
matter. As a matter of fact, the first issue that was raised for consideration
RCR 234 & 235/2008 -2-
before the Appellate Authority was as to whether there was any such denial
of opportunity to the petitioners to adduce evidence. In that regard, the
Appellate Authority found that the petitioners had in fact filed an
application under Order XI Rule 13 of the Code of Civil Procedure which
was posted for evidence on different dates and ultimately it was dismissed
for default. They did not prefer any appeal or revision therefrom. Thus,
the default order became final. Therefore, when they filed an appeal against
the ex-parte order of eviction, they can only raise the contentions based on
the available evidence and not that they were denied an opportunity. The
Appellate Authority also placed reliance on the decision of this court in
Bava @ Asees v. Madhavan and others (1995 (2) KLJ 706) as also the
decision of the Supreme Court in P.N. Abdul Azeez v. Shareefa Beevi
(AIR 1996 (2) KLJ 630). Thereafter, the Appellate Authority considered
each of the grounds on which the order of eviction is passed and after
reappreciating the evidence, it came to the same conclusion as the one
reached by the Rent Control Court. We do not find any reason to disagree
with the said finding. The entire evidence on record has been reappreciated
by the Appellate Authority once again. It was found that the order of
eviction passed on each of the grounds is justified. The contention that they
RCR 234 & 235/2008 -3-
were denied an opportunity, is not open to be raised since the petition filed
under Order XI Rule 13 has been dismissed for default, against which no
proceedings were taken by the petitioners. In such circumstances, this
contention also fails.
In the result, we find no merit in the revision petitions. They are
accordingly dismissed.
( P.R.Raman, Judge.)
(T.R. Ramachandran Nair, Judge.)
kav/