K.T.Sankaran, J.
The respondent/landlord filed R.C.P.No.4 of 2013 under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act. The petitioner/tenant is conducting a parallel college in the second floor of the building. The monthly rent fixed was ₹15,000/- which was later enhanced to ₹18,000/-. The Rent Control Petition was disposed of by the order dated 30th October, 2013 (Exhibit P4). On a reading of Exhibit P4 order, it is seen that the tenant entered appearance in the case and though several opportunities were given for payment of admitted arrears of rent, he did not remit the same. Hence, an order was passed under Section 12(3) of the Rent Control Act.
2. The tenant filed I.A.No.853 of 2013 to set aside the ex-parte order dated 30th October, 2013. In the affidavit accompanying the application, it is stated that the case was posted before the Rent Control Court on 22.10.2013 for filing counter and the tenant could not file counter since his wife was admitted in the Regional Cancer Centre, Thiruvananthapuram, and thereafter at the Apollo Cancer Centre, Chennai. It is stated in that affidavit that the tenant was declared ex-parte and an order was passed on 30.10.2013. The application to set aside the ex-parte order was filed on 29.11.2013. The Rent Control Court passed Exhibit P6 order dated 9.4.2014 dismissing I.A.No.853 of 2013. The application was dismissed on the ground that the admitted arrears of rent was not deposited. The Rent Control Court did not consider whether there was sufficient reason for the absence of the tenant before the Rent Control Court or whether he was prevented by sufficient cause from not appearing before court.
3. Admitted arrears of rent would arise only when such admission is made. The tenant has not filed counter and his contention in the case has not been disclosed. Therefore, the order dated 30.10.2013 could only be treated as an ex-parte order. If so, I.A.No.853 of 2013 was maintainable. Therefore, the court below should have considered the question whether the tenant was prevented by sufficient cause from appearing before court on the date fixed for hearing. At that time, the question whether the tenant had deposited the admitted arrears of rent did not arise for consideration.
4. The application to set aside the ex-parte order was filed within time. In the affidavit accompanying the application for setting aside the ex-parte order, it is stated that the wife of the petitioner was suffering from cancer and she was admitted in the Regional Cancer Centre and thereafter, at Apollo Cancer Centre. It would constitute sufficient reason for the non- appearance of the tenant before court. In the interests of justice and in the facts and circumstances of the case, and to avoid further delay, we think it would be just and proper to allow I.A.No.853 of 2013 and set aside the ex-parte order on certain conditions. It is not disputed that the tenant is liable to pay some arrears of rent. According to the landlord, the arrears of rent comes to more than ₹6.5lakhs. Taking into account the facts and circumstances of the case, we are of the view that a condition for deposit of ₹1lakh (Rupees One lakh only) towards admitted arrears of rent can be imposed on the tenant as a condition for setting aside the ex-parte order.
Accordingly, the O.P.(R.C.) is allowed. The order dated 9th April, 2014 in I.A.No.853 of 2013 as well as the order dated 30th October, 2013 in R.C.P.No.4 of 2013 are set aside on condition that the petitioner/tenant shall deposit before the Rent Control Court a sum of ₹1lakh towards the arrears of rent on or before 15th January, 2015. If the tenant fails to comply with the condition to deposit the aforesaid sum of ₹1lakh, the orders passed by the Rent Control Court shall be in force and the O.P. (R.C.) shall be treated as dismissed. If the tenant complies with the condition, the Rent Control Petition shall stand restored, in which case the tenant shall file the counter statement on or before 31.1.2015. We make it clear that we have not considered the question of quantum of admitted arrears of rent and that question is to be decided after the tenant files the counter statement in the Rent Control Petition.
K.T.SANKARAN JUDGE csl P.D.RAJAN JUDGE