High Court Kerala High Court

Rosily vs Ittimathew on 9 December, 2010

Kerala High Court
Rosily vs Ittimathew on 9 December, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RCRev..No. 387 of 2010()


1. ROSILY, W/O.NEDUMPILLY CHAKKU,
                      ...  Petitioner

                        Vs



1. ITTIMATHEW, S/O.CHEERANVEETTIL CHERU,
                       ...       Respondent

2. C.U.DAVY, PROPRIETOR,

                For Petitioner  :SRI.V.CHITAMBARESH (SR.)

                For Respondent  :SRI.K.N.PADMAKUMAR

The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.S.GOPINATHAN

 Dated :09/12/2010

 O R D E R
          PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ.
                      ------------------------
                     RCR.No. 387 OF 2010
                      ------------------------

            Dated this the 9th day of December, 2010

                             O R D E R

Pius C.Kuriakose, J.

The landlady challenges in this revision under Section 20

of Act 2 of 1965 the judgment of the rent control appellate

authority, Thrissur, allowing the appeal as well as I.A.

No.2382/2010 which had been filed by the first respondent for

setting aside the ex parte order of eviction which was passed by

the rent control court against him and the 2nd respondent. It is

not the first time that this case reaches this court. We ourselves

had occasion to consider RCR No.325/2010 filed by the first

respondent before this court. We by our order in RCR

No.325/2010 imposed various conditions and directed the

learned appellate authority to consider the issue on merits

upon compliance of the conditions. All the conditions imposed

by us were complied with by the first respondent and it is

thereafter that the learned appellate authority has passed the

impugned judgment allowing I.A. No.2382/2010.

2. Various grounds have been raised in this memorandum

RCR.No.387/2010 2

of revision assailing the judgment of the appellate authority. We

have heard the submissions of Sri.V.Chitambaresh, learned

senior counsel for the petitioner landlady and also those of

Sri.K.P.Padmakumar who took notice on behalf of the first

respondent as directed by us.

3. Mr.Chitambaresh submitted that the learned appellate

authority has passed the impugned judgment mechanically as

though this court by its order in RCR No.325/2010 had directed

that authority to allow the RCA. This court only directed the

learned appellate authority to decide the RCA on merits in

accordance with law. The appellate authority was bound to

consider whether the explanation offered by the first respondent

for his absence on the fateful day when the ex parte order was

passed against him was acceptable. There has been no such

consideration and the appellate authority’s judgment is per se

illegal, irregular and improper. The learned senior counsel also

pointed out that the learned appellate authority has granted relief

to the first respondent without imposing any conditions in view of

the conditions imposed by this court in RCR No. 325/2010. This

court at best had only indicated that the conditions imposed by

RCR.No.387/2010 3

this court also should be taken into account in case the

appellate authority becomes inclined to impose conditions. The

learned counsel highlighted that under the impugned judgment,

the learned appellate authority had granted relief even to the

2nd respondent against whom the ex parte order has already

attained finality.

4. The submissions of the learned senior counsel were

opposed by Sri.K.N.Padmakumar, learned counsel for the

respondents. According to him, there is no justification for

interfering with the impugned judgment within the contours of

Section 20 of Act of 1965.

5. We have considered the rival submissions. We find

some merits in the submissions of Mr.Chitambaresh, learned

senior counsel that the learned appellate authority has not under

the impugned judgment considered the sufficiency of the

explanation offered by the first respondent for his absence on

the fateful day when the ex parte order was passed against

him. We find more merit in the submissions of the learned

senior counsel that the appellate authority erred in granting

relief to the second respondent who had already suffered the

RCR.No.387/2010 4

ex parte order of eviction. However, we are not inclined to

interfere with the impugned judgment completely in view of

those reasons. After all, the learned appellate authority has only

directed consideration of the rent control petition in which

eviction is sought on various grounds by the rent control court

on merits. According to us, what is required is only a

clarification to the effect that the ex parte order has been set

aside only as against the first respondent and that the 2nd

respondent is not entitled to pursue the contentions which he

had filed in the rent control petition.

Subject to the above clarifications, the impugned judgment

is confirmed. We are informed that the rent control court has

already started the trial. We direct the rent control court to

make every endeavour to ensure that trial is completed and

the orders are passed in the rent control petition before the

court closes for Christmas Holidays.

PIUS C.KURIAKOSE,JUDGE

P.S.GOPINATHAN, JUDGE
dpk