P.Krishna Kumar, J
1. The petitioner suffered an ex parte order of eviction [Ext.R2(a)] dated 31.01.2015 under section 11(3) of the Kerala Buildings (Lease and Rent
Control) Act, 1965 (‘the Act’, for short). On 18/02/2015, he filed an application to set aside the ex parte order. As the said application was filed
without a petition to condone the delay, the court dismissed the application by Ext.P4 order. The court also rejected the explanation offered by the
petitioner for setting aside the ex parte order i.e., the petitioner was under the impression that the matter would be settled by the opposite party.
2. The petitioner filed an appeal against the said order. He alleges that the appeal was transferred to the Additional District Court, Irinjalakkuda from
the District Court, Thrissur and it was not intimated to the petitioner and consequently, the appeal was dismissed for default. In the meantime, the
person who initiated the rent control proceedings died, and the petitioner was unable to trace out the details of his legal heirs. As a result, the
application submitted by the petitioner for readmitting the appeal was also dismissed for default, it is contended. Resultantly, he filed a petition to
condone the delay of 1535 days for restoring the application for readmitting the appeal, and it was also dismissed by the Appellate Authority as per
Ext.P12 order on the finding that there are no reasonable grounds to condone the delay.
3. The present original petition is filed against Ext.P12 order contending that the delay occasioned as mentioned above was not purposeful and, hence,
the petitioner should be permitted to contest the matter on merit.
4. Heard Sri.G.Sreekumar (Chelur), the learned counsel appearing for the petitioner and Sri.R. Rajesh Kormath, the learned counsel
appearing for the respondents.
5. Sri. G.Sreekumar (Chelur) submitted that the person who originally initiated the rent control proceedings had no title to the property as Ext.P2 sale
deed in his name is not a genuine document and that there is no landlord-tenant relationship between him and the respondents. Even according to the
purported landlord’s account, the petitioner was put in possession of the building on the very day the sale deed was executed, based on an oral
rental arrangement. This fact alone exposes the falsity of his claim, it is urged.
6. Refuting the above submissions, Sri.R.Rajesh Kormath submitted that the petitioner has no bona fides and he has filed the present petition in
collusion with his wife, who had executed the sale deed in favour of the predecessor in interest of the present respondents. The learned counsel
further pointed out that the petitioner moved the court by waking up from his slumber only when the execution petition was filed, and thus, there is no
reason to condone the delay of nearly five years.
7. After considering the submissions of both sides and the orders passed by the Rent Control Appellate Authority and the Rent Control Court, we find
no apparent illegality in the said orders. The records reveal that the petitioner failed to diligently contest the matter. Furthermore, the explanation
offered for condoning the delay is unconvincing. Nevertheless, we remain cognizant of the consistent stand of this court on condoning delay. As a
general principle, delay will be condoned unless it smacks malafide, and the parties will be permitted to raise their contentions on merit, provided the
opposing party is adequately compensated for the losses incurred due to the delay.
8. We would have left the matter here by setting aside the impugned order on cost but for a grave irregularity that caught our
attention. Significantly, Ext.R2(a), the ex parte order of eviction, reveals that the Rent Control Court allowed the application with no discussion of the
merits of the materials presented before the court. After summarizing the contents of the eviction petition, the court passed the order in the following
lines:
“3. Respondent filed objection denying all the allegations in the petition. According to the respondent the agreement entered into between the parties in
O.S.No.770/2010 on the file of the Hon'ble Sub Court, Palakkad is only as a security for the debt due by him to the petitioner. He sold 20 ¼ cents of property to a
third party with the consent of the petitioner and his friend.
4. When the case came up for trial, the respondent remained exparte. Petitioner filed proof affidavit. Exts.A1 to A8 were marked. Ext.A1 is the sale deed No.164/2009.
Ext.A2 is the rent agreement dated 17.08.2009. Ext.A3 is the exchange agreement. Ext.A4 is the copy of lawyer notice. Ext.A5 is the postal receipt. Ext.A6 is the postal
acknowledgment card. Ext.A7 is the reply notice and Ext.A8 is the compromise petition filed in O.S.770/2010.
5. The unrebutted evidence adduced by the petitioner entitled him an order for getting vacant possession of the building.
In the result, petition is allowed with costs directing the respondent to surrender vacant possession of the petition schedule house to the petitioner within two
months and on failure of the same allowing the petitioner to secure vacant possession of the petition scheduled building by the due execution of the order.â€
(emphasis added)
It is evident from paragraph 5 that the court passed the eviction order solely because the evidence presented remained unrebutted. However, the court
failed to examine the nature and sufficiency of this unrebutted evidence in relation to the relief sought. When a court proceeds ex parte, it merely
signifies that the case will continue without the presence of the opposing party. Even in ex parte proceedings, the court remains equally bound to
return a considered order just as it would in a contested case. The absence of the opposite party does not exempt the court from adhering to the
fundamental legal principles. The court will grant an order in favour of a litigant only if he successfully establishes his right or the liability of the
opposite party. The burden of the litigant to prove his case to the satisfaction of the court is not vanished by the absence of the opposite party. Equally,
the court is not expected to blindly pass an order in favour of the prosecuting party for the fault of the defending side.
9. Indeed, the burden of proof of the party who approached the court will not be hefty when his averments stand undisputed in an ex parte proceeding.
Only a prima facie proof of the relevant facts constituting the cause of action would suffice, and the court would grant him such relief as to which he
may in law be found entitled [see Rameshchand Arda v. Anil Panjwani AIR (2003 SC 2508)]. Even in such cases, the the court can issue a
favourable order only if it is satisfied about the existence of the right/liability in question. When the opposite party is set ex parte, he is not forbidden to
take part in the further proceedings of the case. It is open to him to join and participate in the proceedings at a later stage by accepting the events
which had taken place in the interregnum as they stand [see Arjun Singh v. Mohindra kumar (AIR 1964 SC 1993)]. This also shows that the court
cannot mechanically pass an order in favour of the plaintiff/petitioner in an ex parte proceeding.
10. Ordinarily, although the judgment/final order is passed ex parte, the court will provide in the judgment/order a summary of pleadings, points for
determination and findings therein after succinctly discussing oral as well as documentary evidence. Ext.R2(a) order is an exception to that standard
practice.
11. In this context, it is relevant to read sub-rule (8) of Rule 11 of the Kerala Buildings (Lease and Rent Control) Rules, 1979,
which describes the manner in which the Rent Control Court (as well as the Accommodation Controller and the Appellate Authority) has to arrive at a
final decision. Sub-rule (8) expressly permits the Rent Control Court to decide a dispute ex parte. The said provision also does not prescribe a different
course in the case of ex parte orders. Sub-clause (8) reads thus:
“(8) The Accommodation Controller, Rent Control Court or the Appellate Authority deciding the dispute shall record a brief note of the evidence adduced by the
parties and witness 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 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.â€
(emphasis added)
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The term “the dispute may be decided ex parte†means the dispute must be decided in the manner provided in the said provision, when the party
duly summoned fails to attend. In other words, the decision should be in writing and it must be made after considering the oral or documentary
evidence produced in the case. It must also be in accordance with justice, equity and good conscience.
12. Besides the procedural and conventional requirements in passing ex parte judgment or orders, Section 11 of the Act itself unequivocally provides
that an eviction order can be passed by the Rent Control Court only if it is satisfied that the claim of the landlord is bona fide. For illustration, Rule 2(b)
provides that if the Rent Control Court is satisfied that the tenant has not paid the rent due by him, it shall make an order directing the tenant to put the
landlord in possession, subject to the satisfaction of certain other conditions. In respect of sub-sections (3), (4), (7) and (8) of SectionÂ
11 of the Act, sub-section 10 provides as follows:
“The Rent Control Court shall, if it is satisfied that the claim of the landlord under sub-sections (3), (4), (7) or sub-section (8) is bonafide make an order directing
the tenant to put the landlord in possession of the building……………â€
(emphasis added)
13. In short, the satisfaction of the court as to the genuineness of the claim made by the landlord is a concomitant element of a valid order of eviction
under the Act. An order passed under the Act without arriving at such satisfaction is a nullity and unsustainable in law. We make it clear that it is not
the form of expression of the court about the satisfaction of the existence of a bona fide claim but the manner in which the court arrived at such a
conclusion that matters. It need not be stated in so many words. However, there should be some reasoning from which such satisfaction could even
be inferred.
14. Regrettably, the ex parte order in this case fails to demonstrate such satisfaction, and hence, we are unable to uphold it for that reason as well.
Although the petitioner does not directly challenge the order on the above ground, when this court noticed such a grave irregularity from the records
produced before it, it is necessary to set aside the same and relegate the parties to the trial court, rather than readmitting the appeal.
15. However, considering the fact that the eviction petition was filed in the year 2011 and the petitioner was not so vigilant in defending the matter, the
original petition is disposed of as follows:
1. Ext.R2(a) order is set aside.
2. The parties shall appear before the Rent Control Court on 27/02/2025.
3. The petitioner will be permitted to contest the matter on merit, on condition that he should  deposit Â
Rs.15,000/-  (Rupees  Fifteen Thousand only) as cost in the Rent Control Court within thirty days fromÂ
today, which shall be released to the respondents on filing a proper application. If the petitioner herein complies with the above direction, the order
setting him ex parte will be treated as recalled. If he fails to do so, the court can proceed afresh from the stage it set the petitioner ex parte. The
respondents will be at liberty to adduce fresh evidence, if advised.
4. The Rent Control Court shall make all efforts to dispose of the matter on or before 11/04/2025.
