IRSHAD P.T.P. and ASMABI.C.T. and UDAIF.P.T.P. and UBAID.P.T.P. v. VELIYAMPRA PRAKASHAN and JUNAID.P.T.P.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 7[TH] DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943** **R.C.REV. NO. 29 OF 2022** **AGAINST THE JUDGMENT DATED 30.11.2021 IN R.C.A.NO.17 OF 2020 OF THE RENT CONTROL APPELLATE AUTHORITY (PRINCIPAL DISTRICT JUDGE), THALASSERY, THE ORDER DATED 11.10.2019 IN R.C.P.NO.12 OF 2015 AND THE ORDER DATED 14.01.2020 IN I.A.NOS.3011 & 3012 OF 2019 IN R.C.P.NO.12 OF 2015 OF THE RENT CONTROL COURT (MUNSIFF), THALIPARAMBA** ## **REVISION PETITIONERS:** - **1 IRSHAD.P.T.P** **AGED 33 YEARS, S/O. MAYANKUTTY, KALLOORIYAKATH, 'IRSHAD', NEAR SWARAJ PLY WOOD, PAPPINISSERI WEST, PAPPINISSERI AMSOM DESOM, KANNUR TALUK, KANNUR DISTRICT, PIN-670561.** - **2 ASMABI.C.T.,** - **AGED 52 YEARS, W/O. MAYANKUTTY, KALLOORIYAKATH, '˜IRSHAS', NEAR SWARAJ PLY WOOD, PAPPINISSERI WEST, PAPPINISSERI AMSOM DESOM, KANNUR TALUK, KANNUR DISTRICT, PIN-670561.** - **3 UDAIF.P.T.P** **AGED 43 YEARS, S/O.MAYANKUTTY, POOVANKULAM, THOTTAM PUTHIYAPURAYIL, SAFA BAKERY, DHARMASALA JUNCTION, MORAZHA AMSOM, KANOOL DESOM, KANOOL.P.O, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670567.** - **4 UBAID.P.T.P AGED 40 YEARS, S/O.MAYANKUTTY, POOVANKULAM, THOTTAM PUTHIYAPURAYIL, 'IRSHAS', NEAR SWARAJ PLY WOOD, PAPPINISSERI AMSOM DESOM, KANNUR TALUK, KANNUR DISTRICT, PIN-670561.** **BY ADVS.** **R.SURENDRAN** - **S.MAYUKHA** 2 ## **R.C.Rev.No.29 of 2022** ## **RESPONDENTS:** - **1 VELIYAMPRA PRAKASHAN AGED 49 YEARS, S/O.SHANKARAN, VELIYAMPRA HOUSE, NARATH AMSOM DESOM, P.O. NARATH, KANNUR TALUK, KANNUR DISTRICT, PIN-670601.** - **2 JUNAID.P.T.P** **AGED 36 YEARS, S/O.MAYANKUTTY, POOVANKULAM, THOTTAM PUTHIYAPURAYIL, 'IRSHAS', NEAR SWARAJ PLY WOOD, PAPPINISSERI AMSOM DESOM, KANNUR TALUK, KANNUR DISTRICT, PIN-670561. BY ADV P.U.SHAILAJAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 **R.C.Rev.No.29 of 2022** ## **O R D E R** ## Ajithkumar, J. Rent Control Petition No.12 of 2015 was filed by the landlord-1[st] respondent before the Rent Control Court (Munsiff), Taliparamba seeking an order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The R.C.P. was allowed as per order dated 11.10.2019. The original tenant died during pendency of the rent control petition and therefore supplemental respondents 3 to 7 were impleaded. The appeal filed under Section 18(1) (b) of the Act by the tenants before the Rent Control Appellate Authority (District Judge), Thalassery, was dismissed as per judgment dated 30.11.2021. This petition under Section 20 of the Act is filed by the tenants-appellants 1 to 4 challenging the said the judgment and also the order of the Rent Control Court. 2. The rent control petition was filed contending that the landlord was in bonafide need of the petition schedule shop room for the purpose of conducting a garment business 4 **R.C.Rev.No.29 of 2022** for his wife. The petitioners resisted the R.C.P. challenging the bonafides of the need put forward by the landlord and contending that the landlord was in possession of several other buildings in his possession and also claiming the benefit of the second proviso to Section 11(3) of the Act. 3. The Rent Control Court examined PW1 & PW2 and marked Exts.A1 to A8 on the side of the 1[st] respondentlandlord. Ext.B1 was seen marked on the side of the petitioner. Exts.X1 to X4 were also marked. After considering the said evidence, the Rent Control Court held that the need urged by the landlord was bonafide and accordingly eviction was ordered. 4. In the appeal, the petitioners herein took up, inter alia, the contention that the order of eviction passed by the Rent Control Court was an exparte one and liable to be set aside. Further, the order of eviction was challenged on merits. The Appellate Authority, after considering the rival contentions, dismissed the appeal. 5. The petitioner in the meanwhile had filed 5 ## **R.C.Rev.No.29 of 2022** I.A.No.3012 of 2019 for setting aside the order of the Rent Control Court dated 11.10.2019 stating that it was an exparte order, along with I.A.No.3011 of 2019 for condonation of delay. The Rent Control Court dismissed the application for condonation of delay holding that the provisions of Section 5 of the Limitation Act are not applicable to the rent control proceedings, for which, the decision in **Ratheesh v. A.M. Chacko and others [2018 (4) KLT SN 49]** was relied on. 6. In **S.P.Deepak v. B.Govardhanan Nair [2021 (6) KLT 708]** , this Court considered applicability of Section 5 of the Limitation Act and held as follows: '8. The learned Rent Control Court relied on **Ratheesh** (supra) to hold that it has no powers for condoning delay and consequently dismissed the application. In **Ratheesh** a two-Judge Bench of this Court held that the Limitation Act would not apply to the proceedings under the Kerala Buildings (Lease and Rent Control) Act, 1965. **Ratheesh** was decided on the premises that the rule laid down in **Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker [(1995) 5 SCC 5 : 1995 (2) KLJ 136 : 1995 ICO 6]** that the appellate authority while acting under Section 18 of the Kerala 6 **R.C.Rev.No.29 of 2022** Buildings (Lease and Rent Control) Act has the power to condone delay in filing appeal after the expiry of period of limitation has been overruled in **M.P.Steel Corporation v. Commissioner of Central Excise [(2015) 7 SCC 58 : 2015 (3) KLJ 147 : 2015 ICO 548]** . What held in **M.P.Steel Corporation** was that in the light of the three-Judge Bench judgments in **Consolidated Engg. Enterprises v. Irrigation Department [(2008) 7 SCC 169 : 2008 ICO 2372]** and **Commissioner of Sales Tax v. Parson Tools and Plants [(1975) 4 SCC 22 : 1975 ICO 552]** the Limitation Act will not apply to quasi-judicial bodies or Tribunals and to the extent **Mukri Gopalan** (supra) is in conflict with the said judgments is not good law. The correctness of judgment in **Ratheesh** insofar it held that the whole of Section 29(2) of the Limitation Act comes within the sweep of the overruling in **M.P.Steel Corporation** was doubted when **K.K.Hamsa’s** case came up for hearing before the Division Bench and accordingly it has been referred to a larger Bench for consideration. The question whether Section 5 of the Limitation Act applies to rent control proceedings was thus considered by a Full Bench of this Court in **K.K. Hamsa.** ' 9. The Full Bench after detailed deliberation held as regards applicability of Section 5 of the Limitation Act to the Appellate Authority in paragraph 15 as; 7 **R.C.Rev.No.29 of 2022** 'In **Gopakumar v. Ancy Thankachan Philip [2019 (3) KHC 760 : 2019 (3) KLJ 509 : 2019 ICO 1273]** , a Division Bench of this Court after considering the judgments of the Apex Court in **M.P. Steel Corporation** (supra) as well as in **Mukri Gopalan's** case (supra) held that the judgment in **Ratheesh's** case (supra) shall not be taken as an authority to hold that Section 5 of the Limitation Act cannot be invoked by the Appellate Authority under the Act. **Ratheesh** (supra) was decided on the premise that in **M.P.Steel Corporation** (supra), the Apex Court has held that the judgment in **Mukri Gopalan** (supra) is not good law. In fact, in **Ratheesh** (supra), the Division Bench failed to notice that **Mukri Gopalan** (supra) was decided taking into account two specific issues. One is that the Appellate Authority under Section 18 of the Rent Control Act is a Court and therefore Limitation Act would apply, and secondly that **Parsons Tools** (supra) was decided on its own facts and statutory scheme, or else Section 29(2) would have applied to quasi judicial bodies or Tribunals. In **M.P.Steel Corporation** (supra), the Apex Court held that the second part of the finding in **Mukri Gopalan** (supra) was not good law. The first part was in fact approved in **M.P.Steel Corporation** (supra). Hence, we are of the view that the judgment in **Ratheesh** (supra) does not lay down the correct law and to that extent, stands overruled.' 8 **R.C.Rev.No.29 of 2022** 10. The Full Bench also posed the question whether Rent Control Court is a "Court" in order to apply the provisions of Section 29(2) of the Limitation Act. The Full Bench on this point held that the Rent Control Court is not a persona designata; it is a Court and in the absence of any express exclusion, Section 29(2) of the Limitation Act applies. Consequently, the Rent Control Court has the power to condone delay under Section 5 of the Limitation Act.' 7. In the light of the above, the order of the Rent Control Court dated 14.01.2020 in I.A.No.3011 of 2019 in R.C.P.No.12 of 2015 is wrong and liable to be set aside. 8. Even though the learned counsel appearing for the respondents-tenant reported no instructions when the petition came up for evidence, the Rent Control Court proceeded to dispose of the rent control petition, without affording further opportunity to the respondents. Having considered the submissions of the counsel on both sides and perused the order dated 11.10.2019 of the Rent Control Court, we find that the order is practically an exparte one. 9. In the above circumstances, we deem it appropriate to allow this original petition by setting aside the 9 ## **R.C.Rev.No.29 of 2022** order of the Rent Control Court dated 14.01.2020 in I.A.Nos.3011 and 3012 of 2019 and the order of eviction in R.C.P.No.12 of 2015 and consequently, the judgment of the Appellate Authority in R.C.A.No.17 of 2020. 10. The original petition is accordingly allowed by setting aside the orders of the Rent Control Court in I.A.Nos.3011 and 3012 of 2019, order dated 11.10.2019 in R.C.P.No.12 of 2015 and the judgment of the Appellate Authority dated 30.11.2021 in R.C.A.No.17 of 2020. The R.C.P. is restored on file. Both the parties will appear before the Rent Control Court (Munisff), Thaliparamba, on 28.02.2022. The Rent Control Court will dispose of the rent control petition, in accordance with law, after affording an opportunity to both sides to adduce evidence, as expeditiously as possible, at any rate, within a period of 4 (four) months from 28.02.2022. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr