K.T.Sankaran, J. The Rent Control Petition No.25 of 2004 on the file of the Rent Control Court, Tirur was filed by the respondent against the petitioner under Section 11(3) and 11(4) (ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the “Act”). The Rent Control Court allowed the Rent Control Petition under Section 11(3) but dismissed it under Section 11(4)(ii) of the Act. Challenging the order of the Rent Control Court under Section 11(3) of the Act, the petitioner/tenant filed R.C.A.No.29 of 2005 on the file of the Rent Control Appellate Authority, Tirur. The Rent Control Appeal was posted for hearing on several occasions. However, it was adjourned and it was finally posted to 21.11.2013. On that day, the appellant/tenant was absent and his counsel reported no instructions. The Appellate Authority dismissed the appeal for default on 21.11.2013. The appellant/tenant filed I.A.No.4696 of 2013 for restoration of the appeal which was dismissed for default. It is submitted that the application was filed on 27.11.2013, ie., within seven days of the date on which, the appeal was dismissed for default. The Appellate Authority dismissed I.A.No.4696 of 2013 by the order dated 03.04.2014, which is under challenge in this Rent Control Revision.
2. The Appellate Authority dismissed the application for restoration on the ground that the appeal was adjourned on several occasions, after listing the appeal for hearing on 14.08.2013 and also on the ground that the tenant did not produce any document to prove the averment that he was ill on the date on which, the appeal was posted for hearing.
3. It is to be noted that the application for restoration was filed within time and within one week of the date of the dismissal of the appeal. Going by the decision of the Hon'ble Supreme Court, it cannot be presumed that there was willful default, particularly when the application for restoration was filed within a short time.
4. We are of the view that the Appellate Authority should have allowed the application. Though the application was filed on 27.11.2013, it was disposed of only on 03.04.2014. The respondent/landlord opposed the application, filed a counter and argued the matter, which resulted in delay of the disposal of the application for restoration. We are of the view that atleast to save time, the respondent/landlord should not have opposed the application for restoration of the appeal. The opposition made by the landlord made things worse for him and the disposal of the appeal was delayed on that ground.
5. We set aside the order dated 03.04.2014 in I.A.No.4696 of 2013 and allow the said application and restore the appeal to file, on condition that the petitioner/tenant shall pay costs of `2,000/- to the respondent/landlord within one month from today and also pay rent at the enhanced rate of `1,000/- from July, 2014 onwards. The fixation of the rent at `1,000/- would be subject to the result of any order that may be passed by the Rent Control Court fixing the fair rent. The Appellate Authority shall dispose of the appeal on the merits as expeditiously as possible and every endeavour shall be made to dispose of the appeal within three months from the date of receipt of a copy of this order. The parties shall appear before the Appellate Authority on 21.07.2014.
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K.T.SANKARAN, JUDGE Sd/-
A.MUHAMED MUSTAQUE, JUDGE ln /True copy/ P.A. to Judge