K. Jyothish Kumar v. K. P. Hameed

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 24TH DAY OF JULY 2014/2ND SRAVANA, 1936 OP (RC).No. 96 of 2014 () -------------------------AGAINST THE ORDER DATED 18.6.2014 IN I.A.NO.4023/13 AND I.A.4024/2013 IN RCP 78/2013 BEFORE THE RENT CONTROL COURT/ADDL. MUNSIFF-I, KOZHIKODE PETITIONER(S)/RESPONDENT: ----------------------------------------- K.JYOTHISH KUMAR, AGED 70 YEARS S/O RAGHAVAN, CHARTERED ACOUNTANT PANNIYANKARA AMSOM DESOM, KOZHIKODE 673001 BY ADVS.SRI.NIRMAL. S SMT.VEENA HARI RESPONDENT(S)/PETITIONER: ----------------------------------------- K.P.HAMEED, AGED 46 YEARS S/O IBRAHIM, SAFAHA MANZIL BEHIND MUDHAKARA MOSQUE HALUVA BAZAR, KOZHIKODE 673001 THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 24-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (RC).No. 96 of 2014 -------------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS : ---------------------------------- EXHIBIT P1 : TRUE COPY OF THE RCP 78/2013 DATED 11-06-2013 EXHIBIT P2 : TRUE COPY OF THE COMMISSION REPORT DATED 13-06-2013 EXHIBIT P3 : TRUE COPY OF THE NOTICE FOR DAMAGES EXHIBIT P4 : TRUE COPY OF THE LEASE AGREEMENT DATED 01-04-2014 EXHIBIT P5 & :TRUE COPY OF THE RENT RECEIPTS ISSUED DATED 05-06-2014 EXHIBIT P5(a) & 10-07-2014 EXHIBIT P6 & : TRUE COPY OF THE I.A NO 4023/2013 AND I.A 4024/2013 EXHIBIT P6(a) EXHIBIT P7 & : TRUE COPY OF THE COUNTER STATEMENTS IN I.A.4023/2013 EXHIBIT P7(a) AND I.A 4024/2013 DATED 12-02-2014 EXHIBIT P8 & : TRUE COPY OF THE ORDER IN I.A NO 4023/2013 AND I.A EXHIBIT P8(a) 4024/2013 IN RCP 78/2013 DAED 18-01-2014 EXHIBIT P9 : SERIES TRUE COPY OF THE RENT RECEIPTS ISSUED TO THE RESPONDENT RESPONDENT'S EXHIBITS : ----------------------------------- NIL //TRUE COPY// P.A. TO JUDGE ## **K.T.SANKARAN & ANIL K. NARENDRAN, JJ.** -------------------------------------- O.P.(R.C.)No.96 of 2014 -------------------------------------- Dated this the 24th day of July, 2014 ## **Anil K.Narendran, J.** ## _**JUDGMENT**_ The landlord is the petitioner in this O.P.(R.C.) filed under Article 227 of the Constitution of India, to set aside Exhibits P8 and P8(a) orders passed by the Rent Control Court, Kozhikode, in I.A.Nos.4023 of 2013 and 4024 of 2013 in R.C.P.No.78 of 2013. 2. The landlord filed R.C.P.No.78 of 2013 before the Rent Control Court, under Sections 11(2)(b), 11(4)(i) and 11(4) (ii) of the Kerala Buildings (Lease and Rent Control) Act, seeking eviction of the respondent/tenant from the petition schedule shop rooms. OP(RC) No.96/2014 2 3. According to the landlord, a shop bearing number 9/84 was leased out to the tenant on 1.3.2009, on a lease amount of ₹3,250/-, which was enhanced to ₹3,250/- from October 2012, onwards. Another shop bearing number 9/83 was also leased out to the tenant on 1.2.2011 on a lease amount of ₹2,500/-, which was enhanced to ₹2,750/- from October 2012, onwards. The tenant defaulted payment of rent from January 2013, onwards. Further, the tenant sublet the tenanted premises and also used the said premises in such a manner to reduce its value materially and permanently. The landlord filed Exhibit P1 Rent Control Petition before the Rent Control Court, in which a commission was taken out on 13.6.2013. The Commissioner submitted Exhibit P2 report, after inspecting the petition schedule shop rooms. 4. On 21.8.2013, the tenant entered appearance and filed vakalath in the R.C.P. The Rent Control Court posted the OP(RC) No.96/2014 3 case to 8.10.2013 for deposit of arrears of rent and for filing counter. As the tenant failed to deposit the arrears of rent and to file counter, an ex-parte order of eviction was passed on 31.10.2013. The landlord filed E.P.No.179 of 2013 before the execution court, to execute the ex-parte order of eviction, which was filed on 6.12.2013. 5. On 13.12.2013, the tenant filed I.A.Nos.4023 of 2013 and 4024 of 2013 in R.C.P.No.78 of 2013, i.e., Exhibits P6 and P6(a) applications, to set aside the ex-parte order of eviction passed by the Rent Control Court and also to condone the delay of 30 days in filing the application to set aside the exparte order. 6. On 18.12.2013, the tenant filed vakalath in E.P.No.179 of 2013 and the execution petition was posted to 6.2.2014 for filing counter. As no counter was filed, delivery was ordered on 6.2.2014 and the execution petition was posted OP(RC) No.96/2014 4 to 19.2.2014 for report. On 28.2.2014, delivery was effected with Police aid. 7. On 12.2.2014, the landlord filed Exhibits P7 and P7 (a) objections to Exhibits P6 and P6(a) applications. The Rent Control Court after hearing both sides, allowed Exhibits P6 and P6(a) applications by Exhibits P8 and P8(a) orders dated 18.6.2014. By the said orders, the Rent Control Court condoned the delay of 30 days in filing the petition to set aside the exparte order and also to set aside the ex-parte order of eviction passed in R.C.P.No.78 of 2013, on payment of ₹500/- as costs. It is aggrieved by Exhibits P8 and P8(a) orders of the Rent Control Court, the petitioner/landlord is before us in this O.P. (R.C.). 8. We heard the argument of the learned counsel for the petitioner/landlord. The learned counsel contended that in the absence of any sufficient cause shown for condonation of the OP(RC) No.96/2014 5 delay of 30 days in filing the application to set aside the exparte order and also sufficient reason for non-appearance on the day the ex-parte order of eviction was passed, the Rent Control Court ought to have dismissed Exhibits P6 and P6(a) applications. The learned counsel further pointed out that, after getting delivery of the petition schedule shop rooms, the landlord had to spend almost ₹65,000/- towards repair and cleaning charges of the said rooms, electricity charges, etc. Thereafter, the landlord let out those rooms to one Abdul Samad, from April 2014 onwards, vide Exhibit P4 lease agreement. We have considered the submissions made at the Bar. 9. In R.C.P.No.78 of 2013, the Rent Control Court passed an ex-parte order of eviction on 31.10.2013, as the tenant failed to deposit the arrears of rent and to file counter to the R.C.P. Thereafter, on 6.12.2013 the landlord filed OP(RC) No.96/2014 6 E.P.No.179 of 2013 before the execution court to execute the ex-parte order of eviction in the R.C.P. On 13.12.2013, the tenant filed Exhibits P6 and P6(a) applications in R.C.P.No.78 of 2013 to condone the delay of 30 days in filing the application to set aside the ex-parte order of eviction and also to set aside the ex-parte order of eviction passed by the Rent Control Court. On 18.12.2013, the tenant has filed vakalath in E.P.No.179 of 2013. As no counter was filed in the execution petition, delivery was ordered on 6.2.2014 and the execution petition was posted to 19.2.2014 for report. On 28.2.2014, delivery was effected with Police aid. In the meantime, the landlord filed Exhibits P7 and P7(a) objections to Exhibits P6 and P6(a) applications, on 12.2.2014. 10. In **N. Balakrishnan v. M. Krishnamurthy (1998 (7) SCC 123)** the Apex Court has held as follows; _“9. It is axiomatic that condonation of delay is_ OP(RC) No.96/2014 7 _a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower_ OP(RC) No.96/2014 8 _Court.”_ 11. In the affidavits accompanying Exhibits P6 and P6(a) applications, the tenant has shown sufficient cause for the condonation of 30 days delay in filing the application to set aside the ex-parte order and also sufficient reason for non-appearance on the date the ex-parte order of eviction was passed. He has also produced medical certificate in order to show that, on account of ailment he was advised to take complete bed rest and hence he could not contact his lawyer and give instructions. He came to know about the ex-parte order only when he reached the office of his lawyer and thereafter, Exhibits P6 and P6(a) petitions were filed before the Rent Control Court. After considering the objections raised by the landlord, the Rent Control Court accepted the explanation offered by the tenant as sufficient for condonation of the delay of 30 days in filing the application to set aside the ex-parte OP(RC) No.96/2014 9 order of eviction. Such exercise of discretion by the Rent Control Court is neither arbitrary nor perverse, warranting interference of this Court under Article 227 of the Constitution of India. 12. The learned counsel for the petitioner/landlord contended that, as the delivery of the petition schedule shop rooms were already effected on 28.2.2014, the Rent Control Court ought not to have allowed the petition to set aside the exparte order of eviction. Exhibits P6 and P6(a) applications filed by the tenant were pending consideration before the Rent Control Court from 13.12.2013 onwards. It was only on 12.2.2014, the landlord filed Exhibits P7 and P7(a) objections to Exhibits P6 and P6(a) applications. While so, delivery was ordered on 6.2.2014 and the execution petition was posted to 19.2.2014 for report. Later, delivery was effected with Police aid on 28.2.2014. The mere fact that, during the pendency of OP(RC) No.96/2014 10 Exhibits P6 and P6(a) applications the landlord has taken delivery of the tenanted premises in execution of the ex-parte order of eviction will not, in any manner, prevent the Rent Control Court from setting aside that ex-parte order, once that court is satisfied that sufficient reason exist for the nonappearance of the tenant on the day the ex-parte order was passed. Therefore, once the Rent Control Court is satisfied that there is sufficient reason for the non-appearance of the tenant, there is no legal impediment in setting aside the ex-parte order of eviction, even after the landlord has taken delivery of the tenanted premises in execution. After considering the objections raised by the landlord, the Rent Control Court accepted the reason offered by the tenant for non-appearance on the day the ex-parte order of eviction was passed. Such exercise of discretion by the Rent Control Court is neither arbitrary nor perverse, warranting interference of this Court under Article OP(RC) No.96/2014 11 227 of the Constitution of India. We find absolutely no illegality, irregularity or impropriety in Exhibits P8 and P8(a) orders passed by the Rent Control Court. In the result, O.P.(R.C.) is dismissed. No order as to costs. **K.T.SANKARAN JUDGE** **ANIL K. NARENDRAN JUDGE** csl