Mary George v. Santhoshkumar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN FRIDAY, THE 16TH DAY OF JUNE 2017/26TH JYAISHTA, 1939 RCRev..No. 356 of 2012 ---------------------------------AGAINST THE JUDGMENT IN RCA 48/2009 of II ADDL. RENT CONTROL APPELLATE AUTHORITY, KOLLAM, DATED 08.06.2012 AGAINST THE ORDER IN RCP 49/2008 of PRL.M.C., KOLLAM, DATED 29.09.09 REVISION PETITIONER/RESPONDENT/PETITONER : - -------------------------------------------------------------------------------- MARY GEORGE, AGED 77, W/o LATE GEORGE, ANCHUPILAM VEEDU, MURUNTHAL, THRIKKADAVU VILLAGE, KOLLAM. BY ADV. SRI.VARGHESE C.KURIAKOSE RESPONDENT/APPELLANT/RESPONDENT : - ------------------------------------------------------------------ SANTHOSHKUMAR, AGED 54, S/o BHARATHAN, SANTHI VIHAR, MURUNTHAL, PERINADU P.O., KOLLAM. R1 BY ADV. SRI.N.DHARMADAN (SR.) R1 BY ADV. SMT.D.P.RENU THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 16-06-2017 ALONG WITH RCR 288/2014. THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DMR/- ## **K. HARILAL & P. SOMARAJAN, JJ.** ------------------------------------------------ R.C.R.No.356 of 2012 & R.C.R.No.288 of 2014 -----------------------------------------------Dated this the 16[th] day of June, 2017 ## O R D E R ## **K. Harilal, J.** R.C.R.No.356/2012 is filed challenging the judgment in R.C.A.No.48/2009 on the files of the Rent Control Appellate Authority, Kollam, whereby the Appellate Authority reversed the order of eviction passed by the Rent Control Court under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). R.C.R.No.288/2014 is filed challenging the judgment passed by the Appellate Authority in B.R.C.Appeal No.22/2012 on the files of the Appellate Authority, Kollam and the orders passed in I.A.No.1174/2012 filed therein, whereby the Appellate Authority dismissed the Appeal and application seeking condonation of 1008 days delay in filing the appeal, respectively. B.R.C.Appeal.No.22/2012 was filed challenging the order dismissing the claim for reconstruction of the petition schedule building under Section 11(4)(iv) of the Act. Thus, these revision petitions arose from the judgment passed by the Rent Control Court, Kollam, in R.C.R.Nos.356/12 & 288/14 2 R.C.P.No.49/2008. Therefore, these Rent Control Revison Petitions are heard together and disposed of accordingly. 2. The parties are referred to as in the Rent Control Petition. The landlord filed the Rent Control Petition, seeking an order of eviction, under Sections 11(2)(b), 11(3) and 11(4) (iv) of the Act. According to the landlord, the building from which the tenant was sought to be evicted was an old fashioned dilapidated building, which requires reconstruction. It is also contended that the rent fell in arrears from February 2008 onwards. Further, it was averred that the landlady's son is a Software Engineer presently working abroad. But, he intends to return to his hometown and he _bona fide_ needs the petition schedule building to start a Computer Software Consultancy. 3. The tenant resisted the aforesaid claim contending that the petition schedule building is a strong one which does not require reconstruction. Similarly, the need projected by the landlady is a ruse for eviction only. As regards the arrears of rent, it was contended that he offered rent by sending money order, but the landlady refused to accept it so as to make it a ground for eviction. 3 R.C.R.Nos.356/12 & 288/14 4. On the aforesaid contention, both parties adduced evidence and after considering the evidence, on record, the Rent Control Court allowed the claim under Section 11(3) of the Act and rejected the claims under Sections 11(4)(iv) and 11(2)(b) of the Act. 5. Feeling aggrieved, the tenant alone filed R.C.A.No.48/2009 before the Appellate Authority against that part of the order allowing the claim under Section 11(3) of the Act. Needless to say, the landlady has not chosen to file an appeal against the rejection of the claim of eviction under Sections 11(2)(b) and 11(4)(iv) of the Act. After re-appreciating the evidence, on record, the Appellate Authority reversed the findings of the Rent Control Court under Section 11(3) of the Act and allowed the appeal. 6. Heard Shri C.Varghese Kuriakose, the learned counsel for the revision petitioner and Shri.N.Dharmadan, the learned Senior Counsel, appearing for the respondent. Shri C.Varghese Kuriakose advanced arguments assailing the grounds under which the court below passed the impugned judgment and order under challenge. The learned Senior Counsel, R.C.R.Nos.356/12 & 288/14 4 Shri.Dharmadan, vehemently opposed the arguments advanced by other counsel and advanced arguments to justify the reasonings whereby the Appellate Authority allowed the appeal and dismissed the application to condone the delay in filing the appeal. 7. Going by the findings of the Appellate Authority, it could be seen that the Appellate Authority reversed the findings under Section 11(3) of the Act mainly on the reason that at the time of hearing the appeal, admittedly, the landlady has six other rooms in her possession and she has not chosen to prefer an appeal against the rejection of the claim under Section 11(4)(iv) of the Act. We have meticulously gone through the aforesaid reasoning. Going by the pleadings, it could be seen that the grounds under Sections 11(3) and 11(4)(iv) are pleaded separately and independently. There is no case that the landlady wants to occupy the petition schedule shop room after reconstruction. In other words, the reconstruction and the _bona fide_ need are not linked together in the pleadings. But, at the same time, the landlady herself admitted that she got evicted six other tenants and she has those vacant rooms in her possession. In view of the R.C.R.Nos.356/12 & 288/14 5 availability of six other rooms in the possession of the landlady, the Appellate Court arrived at a finding that she can very well accommodate her son in those rooms for starting the consultancy and thereby the need claimed by the landlady cannot be said to be a _bona fide_ one. We do not find any reason to interfere with the said finding as the same appears to be reasonable and rationale. 8. In the above view, we also confirm with the findings of the Appellate Authority in R.C.A.No.48/2009 and the Appellate Authority is justified in reversing the findings of the Rent Control Court under Section 11(3) of the Act in R.C.P.No.49/2008. Therefore, R.C.R.No.356/2012 will stand dismissed. 9. Coming to R.C.R.No.288/2014, B.R.C.Appeal No.22/2012 was filed before the Appellate Authority with I.A.No.1174/2012 seeking to condone the delay of 1008 days in filing the appeal. But, the Appellate Authority dismissed the said I.A. on a finding that the landlady failed to satisfy sufficient cause for condoning the delay. Consequently, B.R.C.Appeal No.22/2012 was also dismissed. R.C.R.Nos.356/12 & 288/14 6 10. The learned Senior Counsel for the respondent advanced arguments to justify the reason for dismissal of the said application by the Appellate Authority. To fortify the arguments the learned counsel cited **Abdul Gafoor M.C. v. K.Abdurahiman and Another** [2015 (3) KHC 775 and **Basawaraj & Anr. v. The Spl. Land Acquisition Officer** [AIR 2014 Supreme Court 746]. 11. In the matter of condoning delay, a liberal view is the rule with certain exceptions. In **S.Ganesharaju (dead)** ## **through L.R's & Anr. v. Narasamma (dead) through L.R.s** **& others** (2013) 11 SCC 341, a Bench comprising of two Judges of the Supreme Court, laid down certain guidelines in the matter of condoning the delay. According to the said guidelines, as we held above, in the matter of condoning delay, a liberal view is the rule with certain exceptions. The exceptions would fall under lack of _bona fides,_ concocted explanations, _mala fide_ intention, etc. 12. Going by the impugned order passed in the Interlocutory Application, we find that the reason stated for rejecting the application would not fall under any of the exceptions in the aforesaid decision. At the most, it can be R.C.R.Nos.356/12 & 288/14 7 held that there is some laches on the part of the landlord in preferring the appeal and she opened her eyes only after the dismissal of R.C.A.No.48 of 2009. Since the reason for delay does not fall under the exceptions, we are taking a lenient view and I.A.No.1174 of 2012 in BRC Appeal No.22 of 2012, on the files of the District Court, Kollam, will stand allowed on payment of 10,000/- as costs to the respondent/tenant or the₹ Counsel appearing for the respondent and on filing of a memo to that effect before the Appellate Authority, within a period of three weeks from the date of receipt of a copy of this order. On compliance, B.R.C.Appeal No.22/2012 will stand restored to the files. The Appellate Authority shall dispose of the Appeal on merits, within a period of three months from the date of receipt of a copy of this order. ## **K. HARILAL (JUDGE)** ## **P. SOMARAJAN (JUDGE)** DMR/-