Madhavi Amma v. Shailaja S. Menon

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR &** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930** **RCRev..No. 308 of 2007** **--------------------------------(AGAINST THE COMMON ORDER DATED 12/07/2007 PASSED BY THE VITH ADDITIONAL DISTRICT COURT AND RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM IN IA NO. 1202/2007 AND 1203/2007 IN RCA NO. 73/2006 AND RCA NO. 79/2006)** ## **REVISION PETITIONER/PETITIONER/APPELLANT/RESPONDENT** **------------------------------------------------------------------------------------------** **MADHAVI AMMA, WIFE OF SREEDHARA MENON, AGED 75, THUNDATHIL HOUSE, OLD PADMA PRESS BUILDING, KISHAT ROAD, THRIPPUNITHURA NOW RESIDING AT KATTAPPILLIL HOUSE, VATTEKUNNU, CHOTTANIKKARA P.O.** **BY ADV. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN** ## **RESPONDENTS: RESPONDENT/RESPONDENT/PETITIONER** **------------------------------------------------------------------------------------** **SHAILAJA S.MENON, S/O.D.S.UNNITHAN, AGED 35 YEARS, 'DURGA NIVAS, CHAKKANKULANGARA, THRIPPUNITHURA, REPRESENTED BY HER POWER OF ATTORNEY HOLDER AND MOTHER, SHARADAMMA UNNITHAN.** **BY ADV. SRI.M.S.UNNIKRISHNAN** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11/03/2008, THE COURT ON 07/04/2008 THE SAME DAY PASSED THE FOLLOWING:** ## **K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== R.C.R.No.308 of 2007 ======================== Dated this the 7[th] day of April, 2008.** ## **ORDER** ## **Ravindran,J.** The tenant in R.C.P.No.177 of 2004 on the file of the IIIrd Additional Munsiff & Rent Control Court, Ernakulam is the petitioner. The respondent is the landlord. The landlord sought to evict the petitioner from the petition schedule building under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the "Act" for short. Though the tenant had filed her objections and was contesting the Rent Control Petition, as she did not appear on 15.10.2005 on which day the Rent Control Petition stood posted for evidence, she was set ex parte and an order of eviction under Section 11(3) of the Act was passed on 17.10.2005. The tenant filed I.A.No.9598 of 2005 to set aside the ex parte order passed against her in RCR 308/07 -: 2 :- R.C.P.No.177 of 2004. By order passed on 3.4.2006, the Rent Control Court dismissed I.A.No.9598 of 2005. 2. Aggrieved by the order dismissing I.A.No.9598 of 2004 in R.C.P.No.177 of 2004, the tenant filed R.C.A.No.73 of 2006 in the Court of the Additional District Judge and Rent Control Appellate Authority, Ernakulam. The tenant also filed R.C.A.No.79 of 2006 challenging the ex parte order of eviction passed by the Rent Control Court on 17.10.2005 in R.C.P.No.177 of 2004. By a common judgment delivered on 15.1.2007 the Appellate Authority allowed the appeals, setting aside the ex parte order of eviction passed on 17.10.2005 and the order in I.A.No.9598 of 2005 on condition that the tenant shall deposit or pay to the respondent/land lord the sum of Rs.2,000/- as costs on or before 30.1.2007. There was a further condition that on failure to deposit/pay the costs, the appeals shall stand dismissed. The Appellate Authority also directed that if the costs ordered is deposited/paid, the Rent Control Court shall take up the case and dispose of the same in accordance with law within two months from 15.2.2007 on which date, the parties were to appear before the Rent Control Court. The appeals stood posted to 30.1.2007 RCR 308/07 -: 3 :- to verify whether the costs ordered has been paid or not. Since the tenant did not pay or deposit the costs, by order passed on 9.2.2007, the appeals were dismissed with costs. 3. Thereafter, on 10.4.2007 the tenant filed two applications, I.A.No.1202 of 2007 in R.C.A.No.73 of 2006 and R.C.A.No.79 of 2006 seeking a review of the order dated 9.2.2007 dismissing the appeals and I.A.No.1203 of 2007 seeking extension of time to deposit the costs. In the affidavit filed in support of the said applications, the tenant contended that though the sum of Rs.2,000/- ordered to be paid as costs was tendered to the Counsel for the respondent/land lord, he refused to accept the same and thereupon, a lodgment schedule was obtained for depositing the costs in court but the clerk of the Counsel omitted to deposit the costs in time. It was submitted that the failure to pay the costs on or before 30.1.2007 was not willful or negligent and therefore the order passed on 9.2.2007 dismissing the appeals may be reviewed. The respondent/ landlord contested the said applications contending inter alia that the applications have been filed only to protract the proceedings, that the appeals were posted to 30.1.2007 to verify whether the RCR 308/07 -: 4 :- tenant has paid or deposited the costs, that on 30.1.2007 the Appellate Authority directed the tenant to deposit the costs and posted the appeals to 7.2.2007, that the appeals stood posted to 9.2.2007 as the tenant had not deposited the costs even on 7.2.2007 and that as he did not pay/deposit the costs, the appeals were dismissed on 9.2.2007. The land lord further contended that I.A.No.1202 of 2007, the application for review, filed more than 30 days from the date of the order is barred by limitation. It was further contended that the tenant has not applied to condone the delay in filing the petition for review. The Appellate Authority, after hearing the counsel appearing on either side held that I.A.No.1202 of 2007, the application for review, is barred by limitation. The Appellate Authority however considered the prayer in I.A.No.1203 of 2007 on the merits and held that the tenant was originally given time upto 30.1.2007 for payment of costs, that on 30.1.2007 time was granted till 7.2.2007 to deposit the costs and that as the tenant did not deposit the costs even on 9.2.2007, he is not entitled to any relief. In that view of the matter, the Appellate Authority also held that extension of time sought for cannot be granted. The applications were RCR 308/07 -: 5 :- therefore dismissed by order passed on 12.7.2007. The order passed by the Rent Control Court in I.A.No.9598 of 2005 in R.C.P.No.177 of 2004 and the common order passed by the Appellate Authority in I.A.No.1202 of 2007 and I.A.No.1203 of 2007 in R.C.A.No.73 of 2006 and R.C.A.No.79 of 2006 are under challenge in this revision petition filed under Section 20 of the Act. 4. We heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. The learned counsel for the petitioner contended that even in cases where conditional orders are passed requiring the parties to do a thing within a particular time and further provides that the application, suit or appeal shall stand dismissed if what is required to be done is not done within the time so fixed, the court has jurisdiction if sufficient cause is made out, to extend the time even in cases where the application for extension of time is filed after the expiry of the time originally fixed. Reliance was placed on the decision of the Apex Court in **Mahanth Ram Das** v. **Ganga Das** - A.I.R. 1961 S.C. 882, the decision of a Full Bench of the Allahabad High Court in **Gobardhan Singh v.** RCR 308/07 -: 6 :- **Barsati** - A.I.R. 1972 Allahabad 249 and of this Court in **Abdulkhader** v. **Abdulrahiman** - 1988 (1) K.L.J. 435. Per contra, the learned counsel appearing for the respondent land lord contended that no grounds have been made out warranting interference with the orders under challenge, that the building does not now exist and that the petitioner has vacated the building and shifted her residence from Chottanikkara where the petition schedule building is situated to Tripunithura where she is presently residing with her son. The learned counsel for the respondent also placed reliance on the order passed by the Court of the Principal Munsiff of Ernakulam in E.P.No.649 of 2005 in O.S.No.1305 of 1999 in support of the said submission. 6. We have considered the rival submissions made at the Bar. The Appellate Authority had by order passed on 15.1.2007 given an opportunity to the tenant to contest the Rent Control Petition on the merits. The Appellate Authority allowed the appeals filed by the petitioner subject to deposit/payment of costs which was fixed at Rs.2,000/-. The costs had to be paid/deposited on or before 30.1.2007 and there was a stipulation in the judgment of the Appellate Authority that if the RCR 308/07 -: 7 :- tenant fails to pay or deposit the costs on or before 30.1.2007, the appeals will stand dismissed. The appeals were thereafter called on for further orders on 30.1.2007. Based on the submission of the tenant's counsel that the learned counsel for the land lord did not receive the costs when it was tendered for payment, the Appellate Authority granted time till 7.2.2007 to deposit the costs. However, the tenant did not deposit the costs on or before 7.2.2007. On 7.2.2007, the appeals were adjourned to 9.2.2008. Since the tenant had not deposited the costs, on 9.2.2007, the appeals were dismissed. The order passed by the Appellate Authority on 12.7.2007 discloses that the Appellate Authority did not dismiss the petition for extension of time on the ground that it was belatedly filed after the time fixed for payment of costs expired. Hence, it is not necessary to consider the impact of the decisions cited by the learned counsel for the petitioner. The Appellate Authority dismissed the application for review on two grounds. The first ground was that the application is time barred. The second was that no grounds exist to review the order passed on 9.2.2007 dismissing the appeals. The Appellate Authority had taken note of the conduct of the tenant RCR 308/07 -: 8 :- in not depositing the costs even within the extended time granted by the court on two occasions. We find no error, much less any error of law in the order passed by the Appellate Authority. Though the Rent Control Court had dismissed the application for setting aside the ex parte order of eviction, the appeal therefrom was allowed by the Appellate Authority subject of course to payment of costs. Since the tenant did not avail the opportunity to pay or deposit the costs even within the extended time granted by the Appellate Authority, the Appellate Authority was not inclined to review its order or to extend the time. 7. In the facts and circumstances of the case disclosed from the orders under challenge and having regard to the conduct of the petitioner, we are of the opinion that the petitioner is not entitled to any relief in this revision petition. The conduct of the petitioner discloses that her attempt was only to protract the proceedings before the Rent Control Court. In our opinion, the applications for review and for extension of time were rightly dismissed by the Appellate Authority. We agree with the reasons and conclusions of the Appellant Authority. RCR 308/07 -: 9 :- In the result, the revision petition fails and it is dismissed. No costs. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 17/3