Mathew Cyriac v. Indira Chacko

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY ,THE 17TH DAY OF DECEMBER 2018 / 26TH AGRAHAYANA, 1940** **RCRev..No. 119 of 2016** **AGAINST THE JUDGMENT IN RCA 29/2012 DATED 5.12.15 of THE ADDITIONAL DIST. JUDGE-V AND RENT CONTROL APPELLATE COURT, ERNAKULAM IN I.A NO.7497/2010 AND I.A NO.7594/2011 IN RCP NO.124/2009 OF THE III ADDL. MUNSIFF'S AND RENT CONTROL COURT, ERNAKULAM DATED 16.01.2012.** ## **REVISION PETITIONER/S:** **MATHEW CYRIAC, AGED 54 YEARS, S/O.C.J.KURIAKOSE, CHENNOTH HOUSE, N.PJRA-39, NEW KALAVATH ROAD, PALARIVATTOM, COCHIN-25.** **BY ADVS. SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** ## **RESPONDENT/S:** **SMT.INDIRA CHACKO AGED 69 YEARS, W/O.LATE C.J.CHACKO, NEDUMTHAKIDIYIL HOUSE, NO.32/2327, PALARIVATTOM, PIN-682 025, EDAPPALLY SOUTH VILLAGE, KANAYANNUR.** **BY ADVS. SRI.G.SREEKUMAR (CHELUR)** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No. 119 of 2016** **2** ## **O R D E R** ## **K.HARILAL, J,** **The revision petitioner is the tenant, who is confronting with an** _**ex parte**_ **order of eviction passed against him by the Rent Control Court. Aggrieved by the said** _**ex parte**_ **order of eviction, he had preferred R.C.A No.29/2012 before the Rent Control Appellate Authority, Ernakulam and after considering the legality and correctness of the order passed by the Rent Control Court, the Appellate Authority also concurred with the findings of the Rent Control Court and dismissed the appeal. Thus, the legality and propriety of the concurrent findings, whereby, the application, seeking to set aside the** _**ex parte**_ **order of eviction stands dismissed, are assailed in this revision petition. (The parties are referred to as in the Rent Control petition.)** **2. The respondent filed I.A No.7497/2010, seeking to set aside the** _**ex parte**_ **order of** **RCRev..No. 119 of 2016** **3** **eviction with I.A No.7594/2011 to condone delay of 12 days in filing the petition to set aside the** _**ex parte**_ **order of the Rent Control Court. The petitioner resisted the said application contending that, there was no reason to set aside the** _**ex parte**_ **order and there was no sufficient cause to condone the delay of 12 days in filing the application to set aside the** _**ex parte**_ **order. After considering the rival pleas, the Rent Control Court dismissed the application to condone delay in I.A No.7594/2011 on finding that there was no sufficient cause to condone the delay and consequently, I.A No.7497/2010 was also dismissed.** **3. Heard the learned counsel for the petitioner.** **4. It is true that there is a delay of 12 days in filing the petition to set aside the** _**ex parte**_ **order. Though, the delay is short, the question to be considered is whether the Rent** **RCRev..No. 119 of 2016** **4** **Control Court has jurisdiction and power to condone the delay in filing the application to set aside the** _**ex parte**_ **order, if the said application was filed after 15 days.** **5** . **The aforesaid question was considered and the legal position has been well settled by the decision of this Court in** _**Ratheesh v. A.M.Chacko and Another [2018 (5) KHC 35]**_ **. In the aforesaid decision, this Court held as follows :-** ## **9. The aforenoted submissions of the** **learned counsel for the petitioner, canvassing for a position that Sec.5 of the Limitation Act is applicable to the proceedings in a Rent Control Court, are not entertainable by this Court when the Supreme Court holds it otherwise. That apart, we do not find merit in the submissions of the learned counsel. What Sec.23(1)(h) of the KBLR Act provides is not that order IX rule 13 of CPC is applicable to a proceedings before the Rent Control Court or appellate authority.** **RCRev..No. 119 of 2016** **5** **What Sec.23(1) provides is only that the accommodation controller, the rent control court and the appellate authority shall have the powers which are vested in a court under the Code of Civil Procedure when trying a suit in respect of the matters enumerated in clauses (a) to (k). Clause (h) reads 'setting aside** _**ex parte**_ **orders'. It is specifically provided in Sec.23(1) that the aforesaid three authorities shall have such powers subject to such conditions and limitations as may be prescribed. Sec.31(1) of the KBLR Act provides that the government may make rules to carry out the purposes of the said Act. Sec.31(2)(d) provides that such rules may provide for setting aside** _**ex parte**_ **orders passed under the KBLR Act. In exercise of the powers conferred by Sec.31, the government made the Kerala Buildings (Lease and Rent Control) Rules, 1979 (KBLR Rules for short). Rule 13(3) reads as under :** **In any case in which an order is passed ex parte against a tenant or a landlord, the tenant or the landlord, as the case may be, may within fifteen days from the date of receipt of the order** **RCRev..No. 119 of 2016** **6** **apply to the Accommodation Controller or the Rent Control Court, as the case may be, by whom the order was passed, for an order to set aside, and if the tenant or the landlord satisfies the Accommodation Controller or the Rent Control Court, as the case may be, that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the application was called on for hearing, the Accommodation Controller or the Rent Control Court, as the case may be, shall make such order as it deems fit, an order passed against the tenant or landlord, as the case may be, and shall appoint a day for proceeding with the application.** **If there are grounds to do so, an** _**ex parte**_ **order is set aside by a Rent Control Court not under Order IX Rule 13 of CPC, but under Rule 13(3) of the KBLR Rules. Therefore the learned counsel for the petitioner cannot be heard to say that in view of Order IX Rule 13(2) of CPC as amended by the High Court of Kerala, Sec.5 of the Limitation Act applies to applications for setting aside** _**ex parte**_ **orders.** **RCRev..No. 119 of 2016** **7** **10. The period of limitation prescribed by Rule 13(3) of the KBLR Rules for seeking to set aside an** _**ex parte**_ **order is 15 days from the date of receipt of the order. It is held by this court that the expression "date of receipt of the order" appearing in Rule 13(3) has to be read as "date of knowledge of the order". The decisions holding so are Moorthy v. Ramachandran[1] and Selvi v. Nataraja Mudaliyar[2] .** **11. We may refer to another provision. An application to implead the legal representatives of a party to the rent control proceedings shall be filed within 30 days from the date of death of the person concerned as provided by Rule 10 of the KBLR Rules. The proviso to Rule 10 provides that the appellate authority may in appropriate cases condone the delay in filing the application to implead the legal representatives. No such proviso is attached to Rule 13(3). There is no provision in the KBLR Act or the KBLR Rules under which the delay in filing an application to set aside an** _**ex parte**_ **order can be condoned.** **RCRev..No. 119 of 2016** **8** **6. In view of the legal proposition settled by this Court, we find that the Rent Control Court has no jurisdiction and power to condone the delay in filing the application to set aside an** _**ex parte**_ **order of eviction. It follows that there is no illegality or impropriety in the reasoning, whereby the Rent Control Court dismissed the application to set aside the** _**ex parte**_ **order also. Hence this revision petition fails and the same is dismissed accordingly.** **The learned counsel for the revision petitioner sought for one year time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioner is given 9 months' time from today to vacate the tenanted premises on the following conditions :-** **1. The revision petitioner/ tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he** **RCRev..No. 119 of 2016** **9** **will vacate the petition schedule shop room within eight months from today.** **2. The revision petitioner/ tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default.** **3. In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondent/ landlord will be at liberty to proceed with the execution of the eviction order.** **Sd/-** **K.HARILAL JUDGE** **Sd/-** **ANNIE JOHN** **JUDGE** SB/RKM/18/12/18