Dismissed

M.v.Abdul Gafoor v. Ramla

Kerala HC6 Aug 2018RCRev./264/2018

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a revision petition challenging the dismissal of an application to set aside an ex parte eviction order. The court held that the appellant's repeated defaults and failure to substantiate his medical certificate demonstrated wilful neglect and mala fide intent to delay.

What did the court decide?

Order dismissing the revision petition. The application to set aside the ex parte eviction order is deemed dismissed.

M.v.Abdul Gafoor Vs Ramla — Landlord and Tenant | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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MONDAY, THE 6TH DAY OF AUGUST 2018 / 15TH SRAVANA, 1940

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R.C. Rev..No. 264 of 2018

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AGAINST THE ORDER/JUDGMENT IN RCA 212/2017 of RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE DATED 18-07-2018 AGAINST THE ORDER IN I.A. NO.2076 OF 2017 IN RCP 106/2013 of RENT CONTROL/PRL. MUNSIFF COURT-I, KOZHIKODE-I DATED 14-11-2017

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REVISION PETITIONER(S)/APPELLANT/RESPONDENT:

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M.V.ABDUL GAFOOR, S/O.P.N.HASSAN KOYA, A.V.HOUSE, NAGARAM AMSOM, DESOM, KOZHIKODE TALUK, PIN-673 001.

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BY ADV.SRI.E.NARAYANAN

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RESPONDENT(S)/RESPONDENT/PETITIONER :

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RAMLA, D/O.POKKER HAJI, LAILA QUARTERS, KUMMANGODE AMSOM, KAKKAVALLY DESOM, VATAKARA TALUK, VATAKARA P.O., PIN-673 101.

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06-08-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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RCRev..No. 264 of 2018

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: 2 :

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APPENDIX

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PETITIONER'S ANNEXURES:

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ANNEXURE A1: DISCHARGE SUMMARY DATED 13.05.2017 ISSUED FROM MALABAR HOSPITALS, KOZHIKODE TO ADV. KISHORE BHAKTHA.

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ANNEXURE A2: THE PRESCRIPTION ISSUED BY DR. C.K.N PANIKER ISSUED TO ADV. KISHORE BHAKTHA.

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RESPONDENT'S ANNEXURES: NIL

/TRUE COPY/

PS TO JUDGE.

K. HARILAL & ANNIE JOHN, JJ.

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------------------------------------------R.C.R No. 264 of 2018

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-----------------------------------------Dated this the 6^th day of August, 2018.

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ORDER

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K. Harilal,J.

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The revision petitioner herein is the respondent/tenant in RCP No. 106 of 2013 on the file of the Munsiff's Court, Kozhikode. The aforesaid Rent Control Petition was filed by the respondent herein under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act.

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This revision petition has been filed challenging the concurrent findings of the courts below, whereby an application filed by the revision petitioner herein to set aside an ex parte order of eviction has been dismissed.

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According to the revision petitioner, the RCP was included in the ready list for trail on 02.06.2017. Since the counsel appearing for the revision petitioner had to undergo a surgery and he was advised to take rest, he could not appear for conducting the case. Therefore, I.A. No. 1695 of 2017 was filed seeking to remove the RCP from the list. As per the order in I.A No. 1695 of 2017, the case was adjourned to 16.06.2017, for adducing evidence. In the meantime, from 14.06.2017 onwards, the petitioner was suffering from viral fever and as per the instruction of the doctor he had to take rest and therefore, he could not appear on 16.06.2017 in the court. Due to the non-appearance of

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the revision petitioner and his counsel, he was set ex parte and an ex parte order was passed on 27.06.2017. According to the revision petitioner, there was no wilful laches or negligence on the part of the revision petitioner or his counsel in appearing before the Court. Hence, he prayed for setting aside the ex parte order of eviction passed against him.

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The respondent strongly opposed the said application contending that the reasons stated for non-appearance is false and the application sans bona fides . When the case was included in the list on all previous occasions, the revision petitioner filed applications to remove the Rent Control Petition from the list. Thereafter, the case was again put in the list on two occasions; but, the revision petitioner failed to appear before the court and an ex parte order of eviction was passed. Those ex parte orders were set aside on the application filed by the revision petitioner as I.A Nos. 2549 of 2014 and 1831 of 2015 respectively. The Rent Control Court has allowed the application to set aside the ex parte orders in both occasions and thereafter, the case was again included in the list for trial on 02.06.2017. Though the case was adjourned from 02.06.2017 to 16.06.2017 for trial on the application of the revision petitioner, there was no representation for the revision petitioner. According to the respondent, the revision petitioner wilfully refused to appear before the Court on the day when the case was

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posted for trial and his intention was to protract the trial with an ulterior motive to continue in occupation of the tenanted premises as far as possible, Therefore, in view of the previous conduct of the revision petitioner in conducting the case, he is not entitled to get the ex parte order set aside.

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Heard the learned counsel for the revision petitioner.

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It is not in dispute that earlier the case was included in the list for trial and removed from the list on the application filed by the revision petitioner. Thereafter, when the case was again included in the list twice, he failed to appear before the Court and he was set ex parte twice and an order of eviction was passed against him. But, those ex parte orders were set aside on the applications filed by the revision petitioner as I.A. Nos.2549 of 2014 and 1831 of 2015 respectively. Thus, we prima facie find that the previous conduct of the revision petitioner is not satisfactory and therefore, it cannot be held that the petitioner was conducting the case without due diligence.

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The Rent Control Petition was put in the list for trial on 02.06.2017 and on the application to remove the case from the list on the ground that the lawyer was undergoing a surgery, the Rent Control Petition was posted to 16.06.2017. On that day, neither the revision petitioner nor the lawyer was present before the Court. In that circumstances, the case was posted to 27.06.2017 and an ex parte order

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of eviction was passed on that day. It is the case of the petitioner that the Rent Control Petition was sought to be adjourned from 02.06.2017 for the reason that his lawyer was undergoing a surgery. As regards the non-appearance of the revision petitioner or the counsel on 16.06.2017, his case is that he was suffering from viral fever and he was advised to take rest. It is pertinent to note that even if he was laid up, due to viral fever, he would have made arrangements to make a representation by a lawyer or he would have made an application for adjourning the case, stating his bad health condition to appear before the Court on 16.06.2017. Though the case was again posted to 27.06.2017, the petitioner failed to appear before the Court and convince the court as to the cause for his non-appearance on 16.06.2017. Needless to say that it was incumbent upon the revision petitioner to satisfy the court as to the sufficient cause for his nonappearance.

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It is true that he has filed a medical certificate stating that he was laid up from 14.06.2017 and that he was advised to take rest. But the revision petitioner has not chosen to enter the witness box to testify the cause of non-appearance and to offer himself for cross examination by the respondent. Thus, neither the revision petitioner nor the doctor who issued the medical certificate was examined to prove the medical certificate. Therefore, the courts below are justified in placing no

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reliance on the medical certificate. Thus, there is absolutely no evidence to prove sufficient cause for the non-appearance of the revision petitioner on 16.06.2017. The absence of sufficient cause for the nonappearance on 16.06.2017 coupled with the wilful slackness in the previous conduct of the revision petitioner in prosecuting the case would give rise to an irresistible inference that he wilfully evaded from appearing before the court so as to cause delay in the disposal of the Rent Control Petition. It is reasonably presumed that the delay was caused with a mala fide intention to continue in occupation of the petition schedule shop room as far as possible. We take notice of the fact that the Rent Control Petition was filed in the year 2013.

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On the above analysis, we find that he miserably failed to satisfy the courts below with sufficient cause for his non-appearance, when the case was called on for trial and there is no illegality or impropriety in the concurrent findings of the courts below, whereby the application to set aside the ex parte order stands dismissed.

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This RCR is dismissed accordingly.

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K. HARILAL, JUDGE.

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ANNIE JOHN, JUDGE.

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M.v.Abdul Gafoor v. Ramla

Case brief

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M.v.Abdul Gafoor v. Ramla

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