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1996 DIGILAW 382 (KER)

Abdul Razaak v. R K Kartha

1996-09-10

K.G.BALAKRISHNAN, K.NARAYANA KURUP

body1996
ORDER K. Narayana Kurup, J. 1. The tenant is the revision petitioner. The revision is directed against the judgment of the Rent Control Appellate Authority in R.C.A. No. 179 of 1990 confirming the order of the Rent Control Court dismissing I.A. No. 6694 of 1989 in R.C.P. No. 10 of 1988. The respondent landlord is the owner of the petition schedule shop room bearing No. XLI/1127-C, First Floor in Paramara Shopping Centre, Ernakulam. where the tenant is conducting a Barber Shop. The said room was taken by the tenant on rental arrangement with the landlord with effect from 1.5.1982 on monthly rent of Rs. 500/- for a period of 5 years. Since the tenant failed to pay the arrears of rent of Rs. 2,500/- as well as the rent from 1.6.1984, the landlord caused Ext. A-1 lawyer's notice to be sent through Registered Post Acknowledgement Due. Since the tenant neither paid the arrears of rent nor handed over the vacant possession of the petition schedule room in spite of Ext. Al, the landlord filed R.C.P. 10 of 1988 before the Rent Control Court seeking eviction of the tenant on the ground of arrears of rent. Though the Rent Control Court issued notice to the tenant, he refused to accept the same on the specious plea that his name is wrongly mentioned in the notice and accordingly he was set ex parte and an order of eviction was passed by the Rent Control Court directing him to surrender vacant possession of the petition schedule room to the landlord. The tenant thereupon filed I.A. 6694 of 1989 to set aside the ex parte order which was dismissed by order dated 24.8.1990 finding that his refusal twice to accept the notice is without any justification and sufficient cause. On appeal, the Rent Control Appellate Authority by judgment dated 6.3.1993 in R.C.A. 179 of 1990 dismissed the same holding that there is proper service of the notice as contemplated under R.22 of the Kerala Buildings (Lease and Rent Control) Rules (for short 'the Rules') and that the tenant has not shown any sufficient cause for his non-appearance. This C.R.P. is directed against the judgment of the Rent Control Appellate Authority dismissing the appeal of the tenant as already noticed. 2. This C.R.P. is directed against the judgment of the Rent Control Appellate Authority dismissing the appeal of the tenant as already noticed. 2. The sheet anchor of the case of the tenant before this court was that the landlord while filing R.C.P. 10/1988 has mentioned the name of the tenant as K.A. Andru which was purposefully so given with a view to obtain an ex parte order, whereas his correct name in M.A. Abdul Razack. 3. Having heard learned counsel on both sides at length, we are not satisfied that the revision petitioners tenant is entitled to succeed in this petition. According to the tenant, the landlord filed the Rent Control Petition showing "one M.A. Abdul Razaak" and the order of eviction obtained by the landlord against the said Andru is not executable against him. The tenant has a further case that no Process Server of the court ever came to his shop with a notice of the Rent Control Petition and that the landlord had influenced the Process Server so as to return the notice with the endorsement thereon that the tenant refused to accept the notice with the intention of getting an ex parte order of eviction. The question, therefore, is whether there is any substance in the aforesaid contention of the tenant. On a perusal of the record produced in this case, we are satisfied that the tenant is known by name M.A. Andru and his contention to the contrary is meant to protract the proceedings at any cost. Ext. B2 is the postal acknowledgment addressed to the tenant in the address "M.A. Andru, Malabar Saloon, Pramara Shopping Centre, Cochin". Ext. B2 is seen signed by the tenant on 4.12.1987. The address given in Ext. B2 is the address of the petitioner as M.A. Andru and not Abdul Razaak. The tenant has no case that it was not he who signed Ext. B2. Further, Ext.B3 photo copy of the kychit executed by the petitioner in the presence of the Sub Inspector of Police, Ernakulam North Police Station shows that the petitioner's name in M.A. Andru, S/o. Abdul Rahiman. Similarly, Ext. B4 proceedings of the Tahsildar, Accommodation Controller, Kanayannur dated 17.6.1987 would further show that the petitioner's name is "Abdul Rahiman @ Andru." In the face of the clinching evidence thus disclosed, we have no hesitation in holding that the petitioner's name is 'Andru'. Similarly, Ext. B4 proceedings of the Tahsildar, Accommodation Controller, Kanayannur dated 17.6.1987 would further show that the petitioner's name is "Abdul Rahiman @ Andru." In the face of the clinching evidence thus disclosed, we have no hesitation in holding that the petitioner's name is 'Andru'. He has already received the lawyer's notice addressed to him in the name of M.A. Andru. Therefore the petitioner cannot now turn round and say that his name is not Andru, but Abdul Razaak. Under the above circumstances, the refusal of the petitioner to accept the notice from the Rent Control Court can only be termed as wilful and without any justification. On a scrutiny of the records produced in this case, it is seen that the petitioner refused to accept the notice sent to him wherein his name was shown as 'Andru'. Under the said circumstances, the Process Server was left with no other alternative than to effect service of notice by affixture, which is perfectly valid and the petitioner cannot be heard to say that there was no proper service of notice from the Rent Control Court. 4. Learned counsel for the tenant has raised various other contentions as well. According to the learned counsel, there is no proper service of notice of the Rent Control Petition. On a perusal of the pleadings, we find that such a case was never pressed in to service by the tenant earlier. The case of the tenant was that no Process Server ever came to his shop which was found to be not true by the Rent Control Court. The endorsement of the Process Server regarding refusal by the petitioner to accept the notice and the subsequent affixture of notice in the petition schedule room is attested by an independent witness and no attempt is made by the tenant to examine the witnesses. Accordingly, we are of the view that notice from the Rent Control Court has been duly served on the petitioner. On his refusal to accept the notice properly addressed, the only course open was to service notice by affixture which has been duly done in the instant case. The tenant has a further case that no summons as contemplated under R.11 of the Rule was served on him and hence the proceedings are vitiated. On his refusal to accept the notice properly addressed, the only course open was to service notice by affixture which has been duly done in the instant case. The tenant has a further case that no summons as contemplated under R.11 of the Rule was served on him and hence the proceedings are vitiated. This contention of the tenant ever-looks the provisions of R.22 of the Rules under which parties are entitled to notice only and summons is to be issued only to witnesses. It is also contended that the absence of affidavit by the process Server is fatal to the Rent Control Petition. This again proceeds on a legal mis-conception as going by the Rules, there is no obligation cast on the process Server to file an affidavit. All that is contemplated is filing of a report by the Process Server which report has been duly filed by him. 5. Learned Rent Control Appellate Authority, however, is of the view that the Rent Control Court ought not to have admitted Ext. B3 and B4 in evidence at all on the ground that they are only certified copies and not original. We do not think that the stand taken by the Appellate Authority can be legally justified having regard to the fact that the proceedings before the Rent Control Court is of a summary nature and any hyper technical approach to the rules of evidence in the matter will frustrate the very object of the Act. Therefore, we are of the view that Exts. B3 & B4 also could be looked into for deciding the matter in issue. Even eschewing Exts. B3 and B4, Ext. B2 shows that the notice issued in the name of M.A. Andra was received by the petitioner in the address given in Ext. B2 which will go to show that the petitioner is also known by name 'M.A. Andra'. Thus, on the whole, we are satisfied that the tenant - revision petitioner is also known by name 'M.A. Andru' and that his contention that he is known only by name 'M.A. Abdul Razaak' is false. We find no illegality or irregularity in the proceedings of the court below in holding that there is proper service of notice as contemplated under R.22 of the Rules and that the tenant has not justified his absence on account of any sufficient cause. We find no illegality or irregularity in the proceedings of the court below in holding that there is proper service of notice as contemplated under R.22 of the Rules and that the tenant has not justified his absence on account of any sufficient cause. The ex parte order of eviction does not call for any interference in exercise of the revisional power conferred under S.20 of the Act. In the result, we dismiss the C.R.P.