P. N. Hareesh v. A. C. Francis

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 13[TH] DAY OF OCTOBER 2021/21ST ASWINA, 1943** **RCREV. NO. 96 OF 2021** **AGAINST THE JUDGMENT DATED 04/03/2021 IN R.C.A.NO.2/2020 OF IV[TH] ADDITIONAL RENT CONTROL APPELLATE AUHTORITY (DISTRICT COURT-IV), THRISSUR ARISING OUT OF THE ORDER DATED 26/11/2018 IN R.C.P.NO.50/2016 OF RENT CONTROL COURT (PRINCIPAL MUNSIFF),THRISSUR.** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **P.N.HAREESH,AGED 41 YEARS S/O. KARUMATHIL NARAYANAN, VADOOKKARA DESOM, KOORKANCHERY VILLAGE, THRISSUR-680004.** **BY ADV V.A.VINOD** ## **RESPONDENT/RESPONDENT/PETITIONER:** **A.C.FRANCIS, AGED 75 YEARS S/O. ELAVATHINGAL CHERIYAN, KANIPPAYUR VILLAGEDESOM, THALAPPILLY TALUK, THRISSUR-680502.** **BY ADVS.P.FAZIL JAYASREE MANOJ SAJU THALIATH JITHIN PAUL VARGHESE ANN MARY FRANCIS** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 13.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- RCREV. NO. 96 OF 2021 ## **ORDER** ## Anil K. Narendran, J. The petitioner is the respondent-tenant in R.C.P.No.50 of 2016, a petition filed by the respondent herein-landlord before the Rent Control Court (Principal Munsiff), Thrissur under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule room, on the ground of arrears of rent. The Rent Control Court, by the order dated 26.11.2018 granted an ex-parte order of eviction, directing the tenant to put the landlord in possession of the petition schedule room, within a period of two months, under Section 11(2)(b) of the Act, from the date of that order. Paragraph 3 and also the operative portion of that order read thus; - “3. Respondent entered into appearance and filed counter. The matter came up special list on 8.10.2018. The petitioner filed proof affidavit. He was examined as PW1. Exts.A1 to 4 were marked. Respondent's name was called. The respondent was absent and there was no representation. The respondent was set exparte. The evidence of PW1 together with Exts.A1 to A4 proves the petitioner's case. There is no contra evidence adduced in this case. The evidence of PW1 is unchallenged. The Rent Control Court Petition is liable to be allowed. -3- RCREV. NO. 96 OF 2021 In the result, Rent Control Petition is allowed as follows: 1. The respondent is hereby directed to put the landlord in possession of the petition schedule property within a period of 2 months under section 11(2)(b) of Kerala Buildings (Lease and Rent Control) Act, from the date of this order. 2. Order under section 11(2)(b) is subject to the provision of section 11(2)(c) of Kerala Buildings (Lease and Rent Control) Act. 3. The petitioner is entitled to recover and realize the entire costs of the proceedings from the respondent.” 2. The tenant filed I.A.No.143 of 2019 in R.C.P.No.50 of 2016 seeking an order to set aside the ex-parte order of eviction. That application was dismissed by the order dated 03.12.2019 for the reason that it was filed beyond 15 days. Thereafter, the tenant filed R.C.A.No.2 of 2020 before the IV[th] Additional Rent Control Appellate Authority (IV[th] Additional District Judge), Thrissur, along with I.A.No.1 of 2020 seeking an order to condone the delay of 300 days in filing that appeal. The interlocutory application was dismissed by the order dated 04.03.2021. Consequently, R.C.A.No.2 of 2020 was also dismissed by the judgment dated 04.03.2021. 3. Feeling aggrieved by the judgment dated 04.03.2021 of the Appellate Authority in R.C.A.No.2 of 2020 -4- ## RCREV. NO. 96 OF 2021 and also the ex-parte order of eviction dated 26.11.2018 of the Rent Control Court in R.C.P.No.50 of 2016, the petitionertenant is before this Court in this revision filed under Section 20 of the Act. 4. On 22.07.2021, when this Rent Control Revision came up for admission, this Court admitted the matter on file and issued urgent notice by speed post to the respondent returnable within three weeks. In I.A.No.1 of 2021, this Court granted an interim stay of execution of the order dated 26.11.2018 in R.C.P.No.50 of 2016 of the Rent Control Court, Thrissur, which was confirmed in the judgment dated 04.03.2021 in R.C.A.No.2 of 2020 of the Rent Control Appellate Authority, Thrissur. 5. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlord. 6. The Rent Control Court, by the order dated 26.11.2018, granted an ex parte order of eviction in R.C.P.No.50 of 2016, and directed the tenant to put the landlord in vacant possession of the petition schedule room within two months from the date of that order, under Section -5- RCREV. NO. 96 OF 2021 11(2)(b) of the Act. The tenant filed I.A.No.143 of 2019, seeking an order to set aside the ex parte order of eviction dated 26.11.2018 in R.C.P.No.50 of 2016. The Rent Control Court, by the order dated 03.12.2019, dismissed I.A.No.143 of 2019 on the ground that the same was filed beyond 15 days. The tenant filed R.C.A.No.2 of 2020 before the Appellate Authority along with I.A.No.1 of 2020 seeking an order to condone the delay of 300 days in filing that appeal. The Appellate Authority by the order dated 04.03.2021 dismissed I.A.No.1 of 2020 on the ground that the intention of the tenant in filing such an application was only to drag the matter further. In the said order, a copy of which is placed on record as Annexure 1 along with I.A.No.2 of 2021, the Appellate Authority noticed that on an earlier occasion the tenant was set ex parte in R.C.P.No.50 of 2016 and the Rent Control Court allowed that application and set aside the ex parte order of eviction. 7. Admittedly, the Rent Control Court dismissed I.A.No.143 of 2019 filed by the tenant to set aside the ex parte order of eviction dated 26.11.2018 in R.C.P.No.50 of -6- ## RCREV. NO. 96 OF 2021 2016, on the ground that that application was filed beyond 15 days and that, the provisions of Section 5 of the Limitation Act, 1963 are not applicable to proceedings before the Rent Control Court. 8. In **Ratheesh v. A.M. Chacko [2018 (5) KHC 35]** , a Division Bench of this Court held that the provisions under the Limitation Act, 1963 are not applicable in proceedings before the Rent Control Court under the Kerala Buildings (Lease and Rent Control) Act, 1965. 9. In **Hamsa K.K. and others v. Athikottu Snehaletha and others [2020 (6) KHC 609]** a Full Bench of this Court held that the decision of the Division Bench in **Ratheesh** does not lay down the correct law. The Full Bench noticed that, the Kerala Buildings (Lease and Rent Control) Act, 1965 being a special and a local law does not expressly exclude the provisions of Limitation Act, 1963. Therefore, under normal circumstances, Section 5 of the Limitation Act, 1963 would apply to proceedings under the Rent Control Act, if the Rent Control Court is a 'court'. The Full Bench noticed that, in **Mukri Gopalan v. Cheppilat Puthanpurayil** -7- RCREV. NO. 96 OF 2021 **Aboobacker [(1995) 5 SCC 5]** the Apex Court had occasion to consider whether the Rent Control Appellate Authority under Section 18 of the Rent Control Act has the power to condone delay in filing appeal after the expiry of period of limitation or rather whether Section 29(2) of the Limitation Act would apply to such proceedings. After referring to the notification by which the District Judges having jurisdiction over the areas within which the provisions of the Rent Control Act have been extended were given the power of the Appellate Authorities, for the purpose of the said Act, and having found that the Appellate Authority is not a _persona designata_ , the Apex Court held that the Rent Control Appellate Authorities functions as a ‘court’. 10. In **Hamsa K.K.** , the Full Bench noticed that, Section 3(1) of the Rent Control Act, which deals with constitution of Rent Control Courts, may at first blush give an impression that the intention of the legislature was to appoint a person as Rent Control Court. But, by virtue of the notification, SRO 390/1973, issued by the Government of Kerala, the Principal Munsiff and Additional Munsiff of a -8- RCREV. NO. 96 OF 2021 jurisdictional area is appointed as the Rent Control Court. Even in the case of Appellate Authorities under Section 18 of the Rent Control Act, there is a conferment of power to the District Judge to function as Appellate Authorities. Section 2 of the Kerala Civil Courts Act, 1957 deals with classification of subordinate civil courts. Therefore, when there is reference to Munsiff in Section 3(1) of the Rent Control Act, it would necessarily mean court of a Munsiff, just like that of a court of District Judge. Therefore, when a District Judge as referred in Section 18 of the Rent Control Act is considered as a court, the same principle applies when a Munsiff is appointed as a Rent Control Court. The Full Bench held that the appointment of a Munsiff as Rent Control Court is not as a _persona designata_ or a quasi judicial authority. The Full Bench, therefore, approved the judgment in **Abdul Rehiman v. Hameed Hassan Peruvad and others [1995 (2) KLT 794]** , as laying down the correct law, wherein, a learned Single Judge of this Court, after following **Mukri Gopalan** , held that the Rent Control Court is a ‘court’ and is not acting as _persona designata_ . -9- RCREV. NO. 96 OF 2021 11. In **Hamsa K.K.** , the Full Bench noticed that, in **Om Prakash v. Ashwani Kumar Bassi [(2010) 9 SCC 183]** , when the Rent Controller appointed by the State Government was a member of Punjab Civil Services, it was held to be an appointment as a _persona designata_ , who would not be entitled to apply for the provisions of Section 5 of the Limitation Act. In that case, **Mukri Gopalan** was distinguished on facts, since in **Mukri Gopalan** , the District Judges were discharging the functions of the Appellate Authority and entitled to resort to Section 5 of the Limitation Act. The scheme of the Rent Control Act and the rules framed thereunder envisages speedy disposal of the cases pending before it. If the Legislature intended to exclude the provisions of the Limitation Act, being conscious of Section 29(2) of the said Act, could have expressly excluded the said provision. Having not done so, application of the Limitation Act has to be inferred. Therefore, the Full Bench held that, the Rent Control Court is not a _persona designata_ . The Rent Control Court is a court and in the absence of any express exclusion, Section 29(2) of the Limitation Act applies. Consequently, the Rent -10- RCREV. NO. 96 OF 2021 Control Court has the power to condone delay under Section 5 of the Limitation Act. Therefore, the decision of the Division Bench in **Ratheesh** does not lay down the correct law. 12. The Limitation Act, 1963 was enacted by the Parliament to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith. Section 5 of the Act deals with extension of prescribed period in certain cases. As per Section 5, any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. As per Explanation to Section 5, the fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. 13. It is well settled that the Law of Limitation is founded on public policy to ensure that the parties to a -11- ## RCREV. NO. 96 OF 2021 litigation do not resort to dilatory tactics and seek legal remedy without delay. In an application filed under Section 5 of the Limitation Act, the court has to condone the delay if sufficient cause is shown. Adopting a liberal approach in condoning the delay is one of the guiding principles, but such liberal approach cannot be equated with a licence to approach the court-at-will disregarding the time limit fixed by the relevant statute. The acts of negligence or inaction on the part of a litigant do not constitute sufficient cause for condonation of delay. Therefore, in the matter of condonation of delay, sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay. ## 14. In **Collector, Land Acquisition v. Katiji [(1987)** **2 SCC 107 : AIR 1987 SC 1353]** , in the context of Section 5 of the Limitation Act, 1963, a Two-Judge Bench of 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 -12- RCREV. NO. 96 OF 2021 the institution of courts. 15. In **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** a Two-Judge Bench of the Apex Court while summerising the principles applicable while dealing with an 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. [See: Para.21] 16. In **Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC 34]** a Division Bench of this Court held that, though the expression 'sufficient cause' employed in Section 5 of the Limitation Act, 1963 is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, as held by the Apex -13- RCREV. NO. 96 OF 2021 Court in **Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107]** , the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play, as held by the Apex Court in **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013)** **12 SCC 649]** . Inordinate delay, which attracts doctrine of prejudice, warrants strict approach, whereas, a delay of short duration or few days, which may not attract doctrine of prejudice, calls for a liberal delineation. An application for condonation of delay should be drafted with careful concern and no court shall deal with such an application in a routine manner. 17. In the instant case, in view of the law laid down by the Full Bench of this Court in **Hamsa K.K [2020 (6) KHC 609]** the order of the Rent Control Court in rejecting I.A.No.143 of 2019 in R.C.P.No.50 of 2016, thereby declining to set aside the ex parte order of eviction dated 26.11.2018 in that Rent Control Petition, cannot be sustained in law. In such circumstances, we find that the order of the Rent Control Appellate Authority dated 04.03.2021 in dismissing I.A.No.1 of -14- RCREV. NO. 96 OF 2021 2020 in R.C.A.No.2 of 2020 and also the judgment of the Appellate Authority dated 04.03.2021 whereby R.C.A.No.2 of 2020 stand dismissed as belated, cannot also be sustained in law. 18. Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 deals with revision. As per Section 20(1) of the Act, in cases where the Appellate Authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. 19. In **Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in **Rukmini Amma** -15- RCREV. NO. 96 OF 2021 ## **Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499]** the Apex Court reiterated that even the wider language of Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench agreed with the view of the Three-Judge Bench in **Rukmini Amma Saradamma** that the word ‘propriety’ does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it. 20. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the reasoning of the Rent Control Court and the Appellate Authority in the order/judgment impugned in this Rent Control Revision are patently illegal, which suffers from legal infirmity, warranting interference under Section 20 of the Act. 21. In such circumstances, this Rent Control Revision is allowed by setting aside the ex parte order of eviction granted by the Rent Control Court, Thrissur dated 26.11.2018 in -16- RCREV. NO. 96 OF 2021 R.C.P.No.50 of 2016 and also the judgment of the Rent Control Appellate Authority, Thrissur dated 04.03.2021 in R.C.A.No.2 of 2020. Accordingly, R.C.P.No.50 of 2016 is restored to file and the Rent Control Court, Thrissur is directed to dispose of the same as expeditiously as possible, at any rate, within a period of four months from the date of appearance of the parties. 22. The learned counsel for the respondent-landlord would point out that the petitioner-tenant has kept rent of the petition schedule room in arrears. On the other hand, the learned counsel for the petitioner-tenant would submit that the tenant has already cleared the arrears of rent. 23. Section 12 of the Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per Section 12(1), 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 -17- RCREV. NO. 96 OF 2021 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 Section 12(2), 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 by the fee prescribed for the service of notice referred to in sub-section (4). As per the proviso to Section 12(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. As per Section 12(3) 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, -18- RCREV. NO. 96 OF 2021 stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. As per Section 12(4), 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. 24. Section 12(1) 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. Similarly, Section 12(1) of the Act enjoins a -19- ## RCREV. NO. 96 OF 2021 tenant, in order to prefer an appeal under Section 18 of the Act against any order made by the Rent Control Court on an application made by a landlord under Section 11, to pay the landlord, or deposits with the Appellate Authority, 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 Appellate Authority. 25. In case there is any arrears of rent, it is for the respondent-landlord to file an application under Section 12 of the Act before the Rent Control Court, which shall be dealt with appropriately by that court, strictly in accordance with the provisions under Section 12 of the Act. Both parties shall appear before the Rent Control Court, Thrissur, on **09.11.2021.** ## **Sd/ANIL K. NARENDRAN, JUDGE** ## **Sd/-** ## **K. BABU, JUDGE** AV