VIMALA DEVI v. NARAYANAN NAIR — 1981 DIGILAW 38 (KER)

Judgment :- 1. The revision petitioner was the petitioner in RCP. 21 of 1979 filed before the Rent Control Court, Muvattupuzha, for eviction of the respondent and his brother from a building which was taken on rent from the petitioner. The respondent was the 2nd respondent therein and his brother, the 1st respondent. Though notice was served, neither of the respondents appeared for hearing on the date fixed The petition was thereafter posted to 26 6-1979 for petitioner's evidence. An ex parte order of eviction was passed on the evidence given by the petitioner. The petitioner took out execution. Then the present respondent alone, filed an application to set aside the exparte order passed against him on 18-2-1980, as J.A. No. 456 of 1980. This application was resisted by the petitioner on two grounds (1) the application was barred by limitation not having been filed within 15 days of the passing of the eviction order and (2) that there were no sufficient grounds to set aside the ex parte order. The Rent Control Court held against the plea of limitation. It agreed with the petitioner's; case of absence of sufficient grounds to set aside the ex parte order and hence dismissed the petition. 2. Aggrieved by this order, the respondent filed R.C.A. No.52 of 1980. The appellate authority confirmed the finding of the Rent Control Court that sufficient grounds were not made out to set aside the ex parte order and left open the question of limitation. In revision, the District Court held against the petitioner on the question of limitation and set aside the finding regarding absence of grounds and remitted the case back to the Rent Control Court, Muvattupuzha, for fresh enquiry and disposal on the ground that the respondent was not given sufficient opportunity to make available to the Court necessary evidence in support of his plea that he could not be present on the hearing date. It is this order of the revisional Court that is under challenge in this revision petition. 3. The petitioner's counsel submits that the Court below committed an error of law and of jurisdiction in holding that there was no bar of limitation and also in setting aside the concurrent findings of fact that sufficient grounds were not made out to allow the application. 3. The petitioner's counsel submits that the Court below committed an error of law and of jurisdiction in holding that there was no bar of limitation and also in setting aside the concurrent findings of fact that sufficient grounds were not made out to allow the application. The respondent's counsel meets the plea of limitation with the submission that the revisional Court should not have allowed the plea of limitation to be raised since the petitioner did not file an appeal against the finding on the question of limitation by the Rent Control Court. According to him, the revisional Court had only given an opportunity to the respondent to adduce fresh evidence to prove the case put forward by him and this can never be characterised as a finding tainted with jurisdictional error. 4. The respondent's counsel is not justified in his submission that the petitioner cannot raise the plea of limitation in revision. It was not necessary for the petitioner to file a separate appeal against the finding relating to limitation, because he had secured substantive relief when the application to set aside the ex parte order was dismissed. It is settled law that a party aggrieved by a finding and who succeeds substantively in the suit can challenge the correctness of the findings against him in an appeal filed by the aggrieved party. Therefore, I hold that the petitioner is well within his rights in canvassing the correctness of the finding on the plea of limitation in this revision. 5. The plea of limitation is based on S.16 of the Kerala Buildings (Lease and Rent Control) Act, 1965, tor short the Act, and R.11(8) and 13(3) of the Kerala Buildings (Lease and Rent Control) Rules. The Court below held against the petitioner on the plea of limitation based on R.11(8) as it stood prior to its amendment in 1979. The learned Judge appears to have overlooked the change in the rule. The Court below held against the petitioner on the plea of limitation based on R.11(8) as it stood prior to its amendment in 1979. The learned Judge appears to have overlooked the change in the rule. R.11(8) as it stood before 24th May 1979 when the new rule came into force read as follows: "(8) The Accommodation Controller, Rent Control Court or the Appellate Authority deciding, the dispute shall recorded a brief note of evidence of the parties and witnessess who attend, and upon the evidence so recorded, and after consideration of any documentary evidence produced , by the parties, a decision shall be given in accordance with justice, equity and good conscience by the Accommodation Controller, Rent Control Court or Appellate Authority. The decision given shall be reduced to writing. In the absence of any party duly summoned to attend, the dispute may be decided ex parte The decision arrived at by the Accommodation Controller, ;the Rent Control Court or the. Appellate Authority as the case may be, shall be communicated to the parties concerned". The last sentence in the above rule was added by SRO. 261/61 in the Kerala Gazette dated 19-12-1961- In the new rule that came into force on the 24th May 1979 the last sentence that "the decision arrived at by the Accommodation Controller, the Rent Control Court or the Appellate Authority as the case may be, shall be communicated to the parties concerned" was omitted and the other parts were kept in tact The difference is telling. The obligation to communicate the order is not in force now. Ex parte order in this case was passed on 26-6-1979. Therefore it is the new rule that applies to the case. All the submissions made on the requirement of communication of (he order to the respondent are rendered inconsequential because of this deletion. R.13(3) of the rules makes it obligatory on the party who seeks to get an ex parte order set aside to file an application within 15 days from the date of receipt of the order. The application in this case was made only on 18-2-1980 which is clearly barred under R.13 (3). 6. R.13(3) of the rules makes it obligatory on the party who seeks to get an ex parte order set aside to file an application within 15 days from the date of receipt of the order. The application in this case was made only on 18-2-1980 which is clearly barred under R.13 (3). 6. The bar of limitation is attempted to be still got over by the respondent's counsel with the plea that the period of fifteen days has to be reckoned from the date of receipt of the order and that in this case the date of receipt of the order can only be when the respondent received notice in the execution petition. This submission is rested on the wording of S.16. S.16 reads as follows: "15. Orders of Rent Control Court to be pronounced in open Court. Every order passed by a Rent Control Court under this Act shall be pronounced in open Court on the day on which the case is finally heard, or on some future day on which due notice shall be given to the parties." Considerable stress was placed on the words "of which due notice shall be given to the parties". The petition was originally posted on a day prior to 26-6-1979. On that day, the petition was adjourned to 26-6-1979 to enable the petitioner to adduce ex parte evidence. The respondent was not given notice of this adjournment since he was ex parte. It is contended that since the respondent was not given notice of this adjourned date, there is no compliance with the requirements of S.16 of due notice being given to the parties. The respondent's counsel submits that the Act, which is enacted for the benefit of the tenants and to prevent unreasonable eviction should be liberally construed in favour of the tenants and if so done non-compliance with the mandatory provision contained in S.16 should render the order of eviction passed ex parte bad. 7. S.16, as I see it, requires the Rent Control Court to pronounce its orders in open Court on the day on which the case is finally heard. If the case is adjourned to a future date notice of such adjournment also should be given to the parties. 7. S.16, as I see it, requires the Rent Control Court to pronounce its orders in open Court on the day on which the case is finally heard. If the case is adjourned to a future date notice of such adjournment also should be given to the parties. This section does not oblige the Rent Control Court to give notice to a party who did not appear on the first hearing date, of every subsequent hearing date. The normal rule in such cases is that a party who had notice of the hearing date and who is set ex parte is presumed in law to have constructive notice of all future hearing dates also. The wording of S.16 of the Act is similar to the wording in the Civil Procedure Code so far as this aspect of the case is concerned. Similar is the provision in Order XX R.1 (1) of the C. P. C. which reads: "The Court, after the case has been heard, shall pronounce judgment in open Court, on some future day, and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders." The insistence on a separate notice being given to parties who did not appear on the first hearing date and who were declared exparte would effectively retard the proceedings of the Court and is never intended by the statute. Therefore, the argument built on S 16 also has to fail. In the result, I hold that the application to set aside the ex parte order in this case is barred by limitation. The Court below committed an error of jurisdiction in holding against the plea of limitation. 8. A consideration on the merits does not strictly arise in view of my finding regarding the plea of limitation. However for the completeness of the judgment, I shall refer to the merits also. The case put forward in the application is that the process server who took the summons to the respondent made him understand that that summons related to another suit pending between the same parties. However for the completeness of the judgment, I shall refer to the merits also. The case put forward in the application is that the process server who took the summons to the respondent made him understand that that summons related to another suit pending between the same parties. It is seen that the petitioner had filed O.S. No. 5 of 1976 against respondent alleging trespass At the time when the process server went to him with the summons, the respondent was, according to him, serving food in his hotel. He accepted the summons on being told by the process server that it related to another suit. The Rent Control Court and the Appellate Authority have found on the evidence adduced that the plea put forward by the respondent cannot be accepted. I refrain from going into the details of the evidence because of the concurrent findings. The revisional court was persuaded to direct remand of the case because according to it the respondent was denied an opportunity to examine two witnesses; one among them being the process server. According to the petitioner's counsel the revisional Court exceeded its jurisdiction in remanding the case. In my view, this submission is well founded. S.20 enables a revisional court to call for and examine records relating to an order passed or proceedings taken under the Act to satisfy itself as to the legality, propriety or irregularity of the proceedings. The revisional court has not found on the evidence available that the concurrent findings of fact arrived at by the authorities below were wrong The case was remanded to enable the respondent to adduce additional evidence. It is not necessary in this case to find out whether the revisional court has powers to take additional evidence or to direct additional evidence to be taken if the concurrent findings of fact arrived at by two courts of facts are not perverse or unreasonable. It cannot be said that the Rent Control Court was wrong in declining the request to examine additional witnesses. A discretion properly exercised by that Court cannot be lightly set at naught by the revisional Court unless strong case is made out of failure of justice or other circumstances proved which render such decision illegal. Here, there is documentary evidence that the summons was duly served by the process server. No useful purpose will therefore be served by examining the process server. Here, there is documentary evidence that the summons was duly served by the process server. No useful purpose will therefore be served by examining the process server. The findings of fact arrived at by the two Courts, according to me, were proper in the circumstances of the case and for this reason the order of remand was not justified. 9. The respondent's counsel at this stage submitted that a case of fraud could be effectively made out only if an opportunity was given to the respondent to adduce additional evidence. The question whether an ex parte order could be set aside on the ground of fraud by filing an interlocutory application in these proceedings is open to doubt. Anyway, request by the respondent that he be given an opportunity to set out and establish a case of fraud played upon him by the process server and the petitioner and to remit the case for that purpose cannot be granted. The revisional jurisdiction of this Court under S.115 CPC. is limited to the examination of the jurisdictional error and sometimes of law affecting jurisdiction committed by the Court below. There is none. On merits, ! hold that the Court below exceeded its jurisdiction under S.20 in not accepting the concurrent findings of fact arrived at by the Rent Control Court and the appellate Court. In the result, I set aside the order of the Court below and direct the respondent to give vacant possession of the property to the petitioner by 2-6-1981. The CRP is thus allowed. No costs.