R.Srinivasaiah Vs C.Viswanathan

Prayer : This petition to set aside the fair order and decreetal order in IA No.1 of 2019 in IA No.12 of 2015 in RCA No.1 of 2013 on the file of Rent Control Appellate Authority Cum Prl Sub Judge, Hosur dated 25.07.2019.

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For Petitioner(s): Ms. V.Srimathi For Respondent(s): Ms.K.Sathiya for M/s.Shivakumar & Suresh(R2&R3)

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O R D E R

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Heard Ms.V.Srimathi, learned counsel for the petitioner and Ms.K.Sathiya for M/s.Shivakumar & Suresh, learned counsel appearing for the respondents 2 and 3.

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The learned counsel for the respondents 2 and 3 would submit that they had

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vacated the property and handed over the possession of the same to the first respondent and they are not contesting the Revision. Notice to the first respondent had been returned with an endorsement that the first respondent is not residing in the said property.

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It is to be noted that the address of the respondents is the demised property in the Rent Control Proceedings and it is the case of the petitioner that pursuant to the Execution Petition, the petitioner has taken possession of the property and has also been recorded by the Court.

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Under the impugned order, a petition filed by the first respondent under order 41 Rule 19 to set aside the exparte order of dismissal in I.A. No. 12 of 2015 in RCA No. 1 of 2013 and to restore the I.A. No. 12 of 2015 had been allowed on payment of cost of Rs.1000/- to the respondents. The first respondent had suffered an order of eviction by the Rent Control Court as early as on 10.09.2013 and his appeal filed against the same came to be dismissed for default on 13.12.2015. Thereafter, he had taken out an application in I.A. No. 12 of 2015 for restoration and the same came to be dismissed by the Court again for default on 23.08.2016. In the interregnum, the petitioner had instituted an Execution Proceeding, in which an exparte order was also passed and the first respondent had also taken R.E.A. Nos. 13 and 14 of 2014 to stay the execution proceeding and reject the Execution Petition, which came to be dismissed on 18.06.2014. Against the same, the first respondent had preferred a Revision in CRP No.

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2746 of 2015 and by the order dated 28.09.2015 the same was also disposed of with a direction to dispose the Execution Petition in accordance with law within a period of six(6) weeks. Pursuant to which, the Execution Petition was proceeded with recording delivery on 13.07.2017 the Execution Petition was also terminated on 17.07.2017.

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In such view of the matter, without any application for restoration of possession, the adjudication of the appeal itself becomes innocuous. The Rent Control Proceedings were initiated on the ground of different user and on the act of waste in which the first respondent had suffered an order of eviction. Even in support of the pleadings as seen from the affidavit filed in support of the application to restore the IA which was dismissed for default, it could be seen that the first respondent was not diligent enough in prosecuting his rights. The possession from the first respondent has also been taken in accordance with law and there has been no challenge to the said proceedings.

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In such view of the matter, this Court finds that the order impugned herein passed in restoring IA No. 12 of 2015 which was dismissed for default, which itself is an application to restore the RCA which was also dismissed for default. The first respondent had also not taken any further steps in prosecuting the termination of the execution proceedings which only brings the Court to the conclusion that the first respondent had given up his rights to retain his tenancy in the premises.

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