K.K. Chandramohandas v. Betty John and Johnkutty Y.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM MONDAY, THE 20[TH] DAY OF SEPTEMBER 2021 / 29TH BHADRA, 1943 OP (RC) NO. 211 OF 2019** **AGAINST THE ORDER DATED 10.06.2019 IN I.A.NOS.9344 & 9345 OF 2018 IN RCP.NO.87 of 2017 OF RENT CONTROL COURT (III ADDITIONAL MUNSIFF), ERNAKULAM** ## **PETITIONER/PETITIONER/RESPONDENT:** **K.K.CHANDRAMOHANDAS AGED 71 YEARS S/O.KRISHNAN, 73, SUBHASH NAGAR, EDAPPALLY P.O., KOCHI-682 024, PRESENTLY DOING BUSINESS BY NAME SUNETRA OPTICALS, DOOR NO.C.C.35/587 E2, UNITED PLAZA BUILDING, PALARIVATTOM, JANATHA JUNCTION, OPP. TO MAIN ENTRANCE OF JAWAHARLAL NEHRU INTERNATIONAL STADIUM, KALOOR, KOCHI.** **BY ADVS. K.K.MOHAMED RAVUF SRI.P.CHANDRASEKHAR** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** **1 BETTY JOHN W/O.JOHNKUTTY, NEDIYAZHIYATHU HOUSE, MYIAMKULAM, KULAKKADA VILLAGE, KOTTARAKKARA PIN 691506 AND PRESENTLY RESIDING AT ALAN VILLA, VIJAYA ROAD, BEHIND HOTEL WYTE FORTE, MARADU P.O., ERNAKULAM, REPRESENTED BY POWER OF ATTORNEY HOLDER JOHNKUTTY.Y., PIN-682 304.** -2- OP (RC) NO. 211 OF 2019 **2 JOHNKUTTY.Y., S/O.LATE YOHANNAN, NEDIYAZHIYATHU HOUSE, MYLAMKULAM, KULAKKADA VILLAGE, KOTTARAKKARA PIN 691 506 AND PRESENTLY RESIDING AT ALAN VILLA, VIJAYA ROAD, BEHIND HOTEL WYTE FORTE, MARADU P.O., ERNAKULAM, PIN-682 304.** **R BY ADV.SRI.ALIAS M.CHERIAN** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 20.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- OP (RC) NO. 211 OF 2019 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner is the tenant in R.C.P.No.87 of 2017 on the file of the Rent Control Court (III[rd] Additional Munsiff), Ernakulam, a petition filed by the respondents hereinlandlords under Sections 11(2) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule shop room. In that Rent Control Petition, the tenant filed I.A.No.9344 of 2018, an application under Order IX Rule 13 of the Code of Civil Procedure, 1908, seeking an order to set aside the exparte order of eviction dated 03.10.2018. The tenant has also filed I.A.No.9345 of 2018, under Section 5 of the Limitation Act, 1963 seeking an order to condone the delay of 45 days in filing the application to set aside the ex-parte order of eviction. The Rent Control Court dismissed those applications, vide Ext.P6 common order dated 10.06.2019, relying on the law laid down by a Division Bench of this Court in **Ratheesh** ## **v. A.M. Chacko and another [2018 (5) KHC 35]** . 2. On 13.12.2019, when this original petition came up for admission, this Court admitted the matter on file and -4- OP (RC) NO. 211 OF 2019 issued notice to the respondents by speed post. This Court granted interim stay of all further proceedings pursuant to Ext.P6 order dated 10.06.2019 in I.A.Nos.9344 and 9345 of 2018 in R.C.P.No.87 of 2017 of the Rent Control Court, Ernakulam, for a period of one month. The said interim order, which was extended from time to time, is still in force. 3. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondents-landlords. 4. The issue that arises for consideration in this original petition is as to whether any interference is warranted on the order dated 10.06.2019 of the Rent Control Court in I.A.Nos.9344 and 9345 of 2018 in R.C.P.No.87 of 2017, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 5. The Rent Control Court rejected the aforesaid applications by the order dated 10.06.2019, relying on the decision of a Division Bench of this Court in **Ratheesh v. A.M. Chacko and another [2018 (5) KHC 35]** , wherein it was held that the provisions under Section 5 of the Limitation Act, 1963 are not applicable to proceedings before the Rent Control Court. -5- OP (RC) NO. 211 OF 2019 6. In **Hamsa K.K. and Others v. Athikottu Snehaletha and others [2020(6) KHC 609]** a Full Bench of this Court 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. Therefore, the Full Bench held that **Ratheesh (supra)** does not laid down the correct law. 7. In the instant case, the petitioner filed I.A.No. 9344 of 2018, an application under Order IX Rule 13 of the Code of Civil Procedure seeking an order to set aside the exparte order of eviction dated 03.10.2018 in R.C.P.No.87 of 2017. That application was accompanied by I.A.No.9345 of 2018, an application filed under Section 5 of the Limitation Act, seeking an order to condone the delay of 45 days in filing the former application. By the impugned order, i.e., Ext.P6 order dated 10.06.2020, the Rent Control Court dismissed I.A.No.9345 of 2018, relying on the judgment of the Division Bench of this Court in **Ratheesh [2018 (5) KHC 35]** , wherein it was held that the provisions under -6- OP (RC) NO. 211 OF 2019 Section 5 of the Limitation Act are not applicable to proceedings before the Rent Control Court. Consequently, I.A.No.9344 of 2018 filed for setting aside the ex-parte order of eviction was also dismissed. 8. In view of the law laid down by the Full Bench of this Court in **Hamsa K.K.** , conclusion is irresistible that the reasoning of the Rent Control Court in Ext.P6 order, while dismissing I.A.No.9345 of 2018 filed for condonation of delay of 45 days, cannot be sustained, since the Rent Control Court has the power to condone the delay under Section 5 of the Limitation Act. 9. 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. 10. In **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** the Apex Court while summerising the principles applicable while dealing with an -7- OP (RC) NO. 211 OF 2019 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. 11. In the instant case, the extent of delay sought to be condoned in I.A.No.9345 of 2018 is only 45 days. Considering the facts and circumstances of the case, as borne out from the pleadings and materials on record, in the light of the law laid down in the decisions referred to as above, we find that the said delay in filing I.A.No.9344 of 2018 can be condoned and consequently I.A.No.9344 of 2018, the application to set aside the ex-parte order of eviction, can also be allowed, by setting aside the order dated 10.06.2019, thereby restoring R.C.P.No.87 of 2017 to file. 12. The learned counsel for the respondents-landlords -8- OP (RC) NO. 211 OF 2019 would submit that the petitioner-tenant has kept the monthly rent in arrears for a considerably long period. 13. Section 12 of the Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per sub-section (1) of Section 12, 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 A ppellate A uthority, 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 subsection (2) of Section 12, the deposit under sub-section (1) shall be made within such time as the c ourt may fix and in such manner as may be prescribed and shall be accompanied -9- OP (RC) NO. 211 OF 2019 by the fee prescribed for the service of notice referred to in sub-section (4). As per the proviso to sub-section (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 rent which subsequently accrues due shall not be less than two weeks from the date on which the rent becomes due. 14. As per sub-section (3) of Section 12 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 sub-section (4) of Section 12, 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. -10- OP (RC) NO. 211 OF 2019 15. Sub-section (1) of Section 12 of the Act enjoins a tenant, against whom an application for eviction has been made by a landlord under Section 11, to pay to the landlord, or deposit with the Rent Control Court, 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 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, in order to contest that application for eviction before the Rent Control Court. 16. The liability of a tenant under sub-section (1) of Section 12 of the Act, against whom an application for eviction has been made by a landlord under Section 11, is limited 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. The object of the provisions under subsection (1) of Section 12 of the Act is to deny the defaulting -11- OP (RC) NO. 211 OF 2019 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 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. Sub-section (2) of Section 12 of the Act enjoins a tenant to deposit the 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 subsection (2) of Section 12. 17. The learned counsel for the petitioner-tenant would submit that the tenant shall pay arrears of rent, if any, without any further delay and that he shall continue to pay rent for the subsequent period, during the pendency of the Rent Control Petition. -12- OP (RC) NO. 211 OF 2019 18. The above submission made by the learned counsel for the petitioner-tenant is recorded. In case of any default on the part of the petitioner-tenant in paying arrears of rent, as above, the respondents-landlords shall file an application before the Rent Control Court under Section 12 of the Act, which shall be dealt with appropriately by that court, strictly in accordance with law. 19. The learned counsel for the respondents-landlords would point out that since the Rent Control Petition is of the year 2017, a time bound consideration of the same is highly essential. 20. Having considered the submissions made by the learned counsel on both sides, the original petition is allowed by setting aside Ext.P6 order dated 10.06.2019. Accordingly, I.A.No.9345 of 2018 is allowed by condoning the delay of 45 days and consequently I.A.No.9344 of 2018 is also allowed by setting aside the ex-parte order of eviction dated 03.10.2018 in R.C.P.No.87 of 2017, thereby restoring that Rent Control Petition to file. 21. Since the Rent Control Petition is of the year 2017, the Rent Control Court shall finally dispose of R.C.P.No.87 of -13- OP (RC) NO. 211 OF 2019 2017, as expeditiously as possible, at any rate, within a period of five months from **13.10.2021** on which date both parties shall appear before the Rent Control Court, Ernakulam. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/VIJU ABRAHAM, JUDGE** AV/22/9 -14- OP (RC) NO. 211 OF 2019 ## **APPENDIX OF OP (RC) 211/2019** ## **PETITIONER EXHIBITS** **EXHIBIT P1** **TRUE COPY OF THE RCP NO.87/2017 FILED BY THE RESPONDENTS BEFORE THE RENT CONTROL COURT, ERNAKULAM.** - **EXHIBIT P2** **TRUE COPY OF THE IA NO.9344/2018 IN RCP NO.87/2017 FILED BY THE PETITIONER BEFORE THE RENT CONTROL COURT, ERNAKULAM.** - **EXHIBIT P3** **TRUE COPY OF THE IA NO.9345/2018 IN RCP NO.87/2017 FILED BY THE PETIITONER BEFORE THE RENT CONTROL COURT, ERNAKULAM.** ## **EXHIBIT P4** **THE TRUE COPY OBJECTION FILED BY THE RESPONDNETS IN IA NO.9344/2018 IN RCP NO.87/2017 BEFORE THE RENT CONTROL COURT, ERNAKULAM.** - **EXHIBIT P5** **TRUE COPY OBJECTION FILED BY THE RESPONDENTS IN IA NO.9345/2018 IN RCP NO.87/2017 BEFORE THE RENT CONTROL COURT, ERNAKULAM.** - **EXHIBIT P6** **TRUE COPY OF THE COMMON ORDER DATED 10.06.2019 IN IA NO.9344/2018 AND 9345/2018 IN RCP NO.87/2017 OF RENT CONTROL COURT, ERNAKULAM.**