Abdul Salam KP v Mullapalli Alavi

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 30[TH] DAY OF JUNE 2022 / 9TH ASHADHA, 1944** **OP (RC) NO. 102 OF 2022** **AGAINST THE ORDER DATED 06.04.2022 IN I.A NO.2 OF 2021 IN R.C.A No.34 of 2021 OF THE RENT CONTROL APPELLATE AUTHORITY(DISTRICT JUDGE), THALASSERY** ## **PETITIONER/RESPONDENT:** **ABDUL SALAM KP AGED 63 YEARS S/O MUHAMMED, JAMEELAS, VELAM ROAD, KAYARALAM AMOSM DESOM, P.O. MAYYIL, THALIPARAMB TALUK, KANNUR PIN - 670602 BY ADV. K.RAJESH SUKUMARAN** ## **RESPONDENTS/PETITIONER:** **MULLAPALLI ALAVI AGED 64 YEARS S/O.ABOOBACKER, PROPRIETOR ALAVI STOES, KAYARALAM AMSOM VELOM DESOM, P.O. MAYYIL, THALIPARAMB TALUK, KANNUR PIN - 670602 BY ADVS. ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH)(K/1364/2003) M.K.SUMOD(K/116-F/1988)** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 30.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 OP(RC) No.102 of 2022 ## **J U D G M E N T** ## Anil K. Narendran, J The petitioner filed R.C.P.No.42 of 2018 before the Rent Control Court (Munsiff), Kannur under Section 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 seeking eviction of the respondent herein-tenant from the petition schedule shop room. The petitioner has filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the constitution of India, feeling aggrieved by Ext.P9 order, whereby I.A No.2 of 2021 filed by the appellant-tenant in R.C.A No.34 of 2021, seeking an order to condone the delay of 704 days in filing that appeal, which is one filed against the order dated 30.08.2019 of the Rent Control Court in R.C.P.No.42 of 2018, stands allowed for the reasons stated therein, on payment of a cost of Rs.4,000/- on or before 18.05.2018. 2. On 20.05.2022, when this original petition came up for admission, this court issued urgent notice on admission by speed post to the respondent, returnable within two weeks. 3. Heard the learned counsel for the petitioner-landlord and also the learned counsel for the respondent-tenant. 3 OP(RC) No.102 of 2022 4. During the course of arguments, the learned counsel for the petitioner-landlord would point out that the tenant has kept the rent in respect of the petition schedule shop room in arrears from November 2017 onwards. The learned counsel would also point out that, before the Rent Control Court, the tenant has not raised any dispute on the rate of rent. The landlord shall file an application before the Appellate Authority under Section 12 of the Act (in case not already filed), seeking an order directing the tenant to deposit admitted arrears of rent and continue to pay rent for the subsequent period. The learned counsel for the respondenttenant would submit that, the tenant requires a breathing time to pay the arrears of rent. 5. The Limitation Act, 1963 was enacted by the Parliament to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith. Section 5 of the Act deals with extension of prescribed period in certain cases. As per Section 5, any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the 4 OP(RC) No.102 of 2022 Court that he had sufficient cause for not preferring the appeal or making the application within such period. As per Explanation to Section 5, the fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section. 6. It is well settled that the Law of Limitation is founded on public policy to ensure that the parties to a litigation do not resort to dilatory tactics and seek legal remedy without delay. In an application filed under Section 5 of the Limitation Act, the court has to condone the delay if sufficient cause is shown. Adopting a liberal approach in condoning the delay is one of the guiding principles, but such liberal approach cannot be equated with a licence to approach the court-at-will disregarding the time limit fixed by the relevant statute. The acts of negligence or inaction on the part of a litigant do not constitute sufficient cause for condonation of delay. Therefore, in the matter of condonation of delay, sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay. 5 OP(RC) No.102 of 2022 7. In **Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107]** , in the context of Section 5 of the limitation Act, 1963, the Apex Court held that, the expression ‘sufficient cause’ employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, that being the life-purpose for the existence of the institution of courts. 8. In **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** the Apex Court while summerising the principles applicable while dealing with an application for condonation of delay held that, the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. The Apex Court held further that, there is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. Para.21 of the judgment reads thus; 6 OP(RC) No.102 of 2022 “21. From the aforesaid authorities the principles that can broadly be culled out are: 21.1 There should be a liberal, pragmatic, justiceoriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2 The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3 Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4 No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5 Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6 It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7 The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. 7 OP(RC) No.102 of 2022 21.8 There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9 The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10 If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11 It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12 The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13 The State or a public body or an entity representing a collective cause should be given some acceptable latitude.” ## 9. In **Esha Bhattacharjee** , after summerising the 8 OP(RC) No.102 of 2022 principles applicable while dealing with an application for condonation of delay, the Apex Court added some more guidelines taking note of the present day scenario, that an application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. Para.22 of the judgment reads thus; “22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: 22.1 An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2 An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3 Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and 9 OP(RC) No.102 of 2022 collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4 The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.” 10. In **Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC 34 : (2021) 2 RCR (Rent) 223 : 2021 AIR CC 2752]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party held that, though the expression ‘sufficient cause’ employed in Section 5 of the Limitation Act, 1963 is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, as held by the Apex Court in **Katiji [(1987) 2 SCC 107]** , the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play, as held by the Apex Court in **Esha Bhattacharjee [(2013) 12 SCC 649]** . Inordinate delay, which attracts doctrine of prejudice, warrants strict approach, whereas, a delay of short duration or few days, which may not attract doctrine of prejudice, calls for a liberal delineation. An application for condonation of delay should be drafted with careful concern and 10 OP(RC) No.102 of 2022 no court shall deal with such an application in a routine manner. 11. In the instant case, the Appellate Authority, after considering the rival contentions, condoned the delay of 704 days in filing R.C.A No.34 of 2021, by a detailed order on 06.04.2022, on payment of a cost of Rs.4,000/-. The tenant has already paid that amount. Now R.C.A is pending consideration before the Appellate Authority. In such circumstances, at this point of time, we need not go into the legality or otherwise of Ext.P9 order. However, considering the facts and circumstances of the case, in the light of the law laid down in the decisions referred to supra, we deem it appropriate to direct the tenant to pay a further sum of Rs.5,000/-, towards cost, within a period of two weeks from the date of receipt of a copy of this judgment. 12. Regarding arrears of rent, the submission made by the learned counsel for the petitioner-landlord is that, the tenant has not raised any dispute before the Rent Control Court on the rate of rent. On the other hand, the submission made by the learned counsel for the respondent-tenant is that the tenant requires breathing time to pay arrears of rent. 13. Section 12 of the Act deals with payment or deposit of 11 OP(RC) No.102 of 2022 rent during the pendency of proceedings for eviction. As per Section 12(1), no tenant against whom an application for eviction has been made by a landlord under Section 11, shall be entitled to contest the application before the Rent Control Court under that Section, or to prefer an appeal under Section 18 against any order made by the Rent Control Court on the application, unless he has paid or pays to the landlord, or deposits with the Rent Control Court or the Appellate Authority, as the case may be, all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. As per Section 12(2), the deposit under sub-section (1) shall be made within such time as the court may fix and in such manner as may be prescribed and shall be accompanied by the fee prescribed for the service of notice referred to in sub-section (4). As per the proviso to Section 12(2), the time fixed by the court for the deposit of the arrears of rent shall not be less than four weeks from the date of the order and the time fixed for the deposit of 12 OP(RC) No.102 of 2022 rent which subsequently accrues due shall not be less than two weeks from the date on which the rent becomes due. As per Section 12(3) of the Act, if any tenant fails to pay or to deposit the rent as aforesaid, the Rent Control Court or the Appellate Authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. As per Section 12(4), when any deposit is made under sub-section (1), the Rent Control Court or the Appellate Authority, as the case may be, shall cause notice of the deposit to be served on the landlord in the prescribed manner, and the amount deposited may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him to the Rent Control Court or the Appellate Authority in that behalf. 14. The liability of a tenant under Section 12(1) of the Act, against whom an application for eviction has been made by a landlord under Section 11, or who prefer an appeal under Section 18 of the Act, against any order made by the Rent Control Court on an application made by a landlord under Section 11, is limited 13 OP(RC) No.102 of 2022 to all arrears of rent admitted by the tenant to be due in respect of the building, up to the date of payment or deposit, and he shall continue to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. 15. The object of the provisions of Section 12(1) of the Act is to deny the defaulting tenant the right to contest the application for eviction before the Rent Control Court, or to prefer an appeal under Section 18 of the Act against any order made by the Rent Control Court on an application made by a landlord under Section 11, unless he pays to the landlord, or deposits with the Rent Control Court or the Appellate Authority, as the case may be, all arrears of rent admitted by him to be due in respect of the building, up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. 16. Section 12(2) of the Act enjoins a tenant to deposit the 14 OP(RC) No.102 of 2022 admitted rent under sub-section (1), within such time as the court may fix and in such manner as may be prescribed. The time fixed by the court for the deposit of the arrears of rent and the time fixed for the deposit of rent which subsequently accrues due shall not be less than that specified in the proviso to Section 12(2). As per the statutory mandate of Section 12(1), on an application filed by the landlord under Section 12, the Rent Control Court or the Appellate Authority, as the case may be, has to order payment or deposit of arrears of rent admitted by the tenant to be due in respect of the petition schedule building, up to the date of payment or deposit and the tenant shall also be directed to continue to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, regardless of the relief sought for in that application. 17. As already noticed hereinbefore, the object of the provisions of Section 12(1) of the Act is to deny the defaulting tenant the right to contest the application for eviction before the Rent Control Court, unless he pays to the landlord, or deposits with the Rent Control Court, all arrears of rent admitted by him to 15 OP(RC) No.102 of 2022 be due in respect of the building, up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court. 18. The submission made by the learned counsel for the petitioner-landlord is that the landlord shall file an application before the Rent Control Appellate Authority in R.C.A.No.34 of 2021, under Section 12 of the Act (in case not already filed) invoking the provisions under Section 12 of the Act, along with a certified copy of this judgment. In such circumstances, this original petition is disposed of by imposing a further cost of Rs.5,000/- on the respondent-tenant for condonation of delay of 704 days in filing R.C.A No.34 of 2021 and by directing the Rent Control Appellate Authority, Thalassery to consider and pass appropriate orders on the application of the landlord, who is the respondent in R.C.A No.34 of 2021, under Section 12 of the Act, within a period of two months, after affording the tenant a reasonable opportunity to file objections. Since the Rent Control Petition is of the year 2018, the Appellate Authority shall finally dispose of R.C.A No.34 of 2021 as 16 OP(RC) No.102 of 2022 expeditiously as possible, at any rate, within a further period of one month. **Sd/ANIL K.NARENDRAN JUDGE** **Sd/P.G. AJITHKUMAR JUDGE** PV 17 OP(RC) No.102 of 2022 ## **APPENDIX OF OP (RC) 102/2022** **PETITIONER'S EXHIBITS Exhibit1 COPY OF THE REVIEW PETITION Exhibit P2 COPY OF THE COUNTER IN REVIEW PETITION Exhibit P3 COPY OF THE ORDER DATED 31.08.2021 IN RP 3092/2019 Exhibit P4 COPY OF THE AFIDAVIT AND PETITION IN I.A 02/2021 Exhibit5 COPY OF THE COUNTER STATEMENT IN IA 02/2021 Exhibit P6 COPY OF THE AFFIDAVIT AND PETITION IN IA 04/2022 Exhibit P7 COPY OF THE COUNTER STATEMENT IN IA 04/2022 Exhibit P8 COPY OF THE ORDER IN IA 04/2022 IN IA 02/2021 IN RCA 34/2021 Exhibit P9 COPY OF THE ORDER IN IA 02/2021 IN RCA 34/2021**