Poyiloor Muslim Jamayath represented by its Secretary M. Abdulla Moula vs V.D. Mohandas

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN THURSDAY, THE 21ST DAY OF JANUARY 2016/1ST MAGHA, 1937 RCRev..No. 344 of 2014 () -------------------------- AGAINST THE ORDER/JUDGMENT IN RCA 21/2013 of RENT CONTROL APPELLATE AUTHORITY, WAYANAD, KALPETTA DATED 29-10-2014 I.A.NOS.416 AND 417 OF 2013 IN RCP NO.21/2011 OF THE RENT CONTROL COURT, SULTHANBATHERY REVISION PETITIONER(S)/APPELLANT/PETITIONER: ----------------------------------------------------------- POYILOOR MUSLIM JAMAYATH, REPRESENTED BY ITS SECRETARY M. ABDULLA MOULAVI S/O.AHAMMED HAJI, AGED 67 YEARS, MANDATH HOUSE THRIPPRANGODE AMSOM DESOM, THALASSERY TALUK KANNUR DISTRICT BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S)/RESPONDENT/RESPONDENT: ------------------------------------------------------ V.D.MOHANDAS, AGED 53 YEARS S/O.DAMODHARAN, SBP-4/24 3L STUDIO, SULTHANBATHERY P.O R1 BY ADV. SRI.JIKKU SEBAN GEORGE R1 BY ADV. SRI.N.ANAND R1 BY ADV. SRI.ARUN AJAY SHANKAR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 21-01-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **P.N. Ravindran & K. Ramakrishnan, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - R.C.R.No.344 of 2014 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 21[st] January, 2016** ## **O R D E R** ## **K. Ramakrishnan, J.** The landlord/petitioner in I.A.Nos.416 and 417 of 2013 in R.C.P.No.21 of 2011 on the file of the Rent Control Court, Sulthanbathery is the revision petitioner herein. 2. The petitioner filed R.C.P.No.21 of 2011 for eviction of the tenant from the petition schedule building under sections 11(3) and 11 (4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The respondent appeared and filed counter statement. When the case was posted in the special list on 16.1.2013, neither the petitioner nor his counsel was present. So, the Rent Control Court dismissed the petition for default. Thereafter, the revision petitioner filed I.A.No.416 of 2013 to restore the rent control petition dismissed for default along with I.A.No.417 of 2013 to condone the delay of 70 days in filing the restoration petition. It is alleged in the petition that the case was entrusted to a lawyer at Kozhikode who in turn engaged a junior lawyer at Sulthanbathery to represent him in the matter with instructions to inform him when the case is included in the special list. But the lawyer omitted to note the fact of inclusion of the case in the special list. Consequently, it was not informed to the lawyer at RCR 344/2014 2 Kozhikode and to the revision petitioner and so he could not appear on that particular date. On account of their absence the petition happened to be dismissed for default. It is also alleged in the petition that there was no wilful laches or negligence on the part of the petitioner as such and the affidavit itself was filed by the counsel to whom the case was entrusted taking the responsibility on him. The respondent filed a counter denying the allegations and prayed for dismissal of the application. The rent control court, by a common order, dismissed the applications stating that no sufficient reasons were stated for the delay. Aggrieved by the same, the revision petitioner filed R.C.A.No.21 of 2013 on the file of the Rent Control Appellate Authority , Wayanad at Kalpetta which was made over to the Addl. Rent Control Appellate Authority and the Addl. Rent Control Appellate Authority dismissed the appeal confirming the order of dismissal made by the rent control court. Aggrieved by the same, the present revision petition has been filed by the petitioner in the rent control petition. 3. Heard Dr.George Abraham, learned counsel appearing for the revision petitioner and Shri Arun Ajay Sankar, who proposed to appear for the respondent. Since the respondent appeared, the revision petition was admitted and heard and disposed of on merits today itself. 4. Learned counsel for the revision petitioner submitted that RCR 344/2014 3 there was no willful laches on the part of the revision petitioner in not appearing on the date when the case was posted. In fact, it was due to non-intimation of inclusion of the case in the list that he could not appear. Further, this was admitted by the counsel by filing an affidavit as well. He has got a fair chance to succeed in the petition. 5. On the other hand, learned counsel for the respondent submitted that there is no bonafides in filing the application. They ought to have enquired about the same which they have not done and there is a duty cast on the lawyer to inform his client. The courts below were perfectly justified in dismissing the applications. 6. We have gone through the allegations in the petition and also in the counter filed by the parties which were furnished to us by the learned counsel appearing for both parties and also perused the reasons given by the courts below in the impugned order and the judgment respectively. The fact that the case was posted in the special list on 16.1.2013 and on account of the non appearance of the revision petitioner and his counsel, the petition happened to be dismissed for default, is not in dispute. It is true, before publishing the case in the list, a preliminary list will be published and thereafter only the final list will be published with the names of the counsel appearing and there is a duty cast on the counsel to note the same and inform the client, so as to make them equip to conduct the case on the listed RCR 344/2014 4 day. But it is seen from the affidavit filed by the counsel himself that since the counsel to whom it was entrusted at Sulthanbathery had failed to inform the same, he could not inform the client and that resulted in non-appearance of the party. So, it is clear from this that the party cannot be found fault for the non-appearance on the date on which it was posted for trial in the special list and it was due to the mistake committed by the counsel to note the posting date that the party could not appear and conduct the case. Only when they came to know about the same, they could file an application for restoration and that has been explained in the affidavit filed by the counsel who appeared for the petitioner as well. 7. It is true that the Hon'ble Supreme Court in some of the cases observed that the delay in filing applications and appeal should not be taken very lightly and unless sufficient cause is given, the same cannot be allowed and that it was extracted by the appellate authority in paragraph 12 of the judgment, viz. **M.R.Tyagi v. Sri Devi Sahai Gautam** (Civil Appeal No.3241/2006 dated 2.8.2006). But at the same time, the Hon'ble Supreme Court also held in the decision reported in **Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others** (2013 KHC 4725) that while considering the delay application, there should be a liberal, pragmatic, justice-oriented, non-pedantic approach and the courts are RCR 344/2014 5 not supposed to legalise injustice but are obliged to remove injustice. The term “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective t the obtaining fact situation. 8. In this case, it is clear from the affidavit filed by the counsel who appeared for the party that it was due to his laches that the party could not appear. On account of that laches the party should not suffer as well. But at the same time, the petitioner is also having a moral obligation to enquire about the case and its progress with the counsel and that laches have to be considered by this court. That has caused inconvenience to the other party as well. So, considering these aspects, this court feels that the courts below should have taken a lenient view, as the laches cannot be totally fastened on the party but it was on account of the laches on the part of the counsel that the party could not appear and even if any inconvenience is caused on account of the laches, that should have been compensated by awarding sufficient costs. We feel that discretion ought to have been exercised in favour of the petitioner by awarding a reasonable cost which we fix as Rs.5,000/-, out of which Rs.2,500/- can be paid to the counsel appearing for the respondent in this court and the balance amount of Rs.2,500/- can be deposited with the Kerala State Mediation RCR 344/2014 6 and Conciliation Centre, Ernakulam. So, the revision petition is allowed on payment of cost of Rs.5,000/- out of which a sum of Rs.2,500/- is to be paid to the learned counsel appearing for the respondent in this court and the balance amount is to be deposited with the Kerala State Mediation and Conciliation Centre, Ernakulam, within a period of one week from today and produce proof of payment of such amounts before this court within that time. If the cost is not paid as directed above, the revision petition will stand dismissed. On noticing the payment of cost as directed above, the Registry is directed to communicate this order to the court below at the earliest. On restoration of the rent control petition, the court below is directed to expedite disposal of the case at the earliest possible time considering the fact that the case is of the year 2011. The revision petition is allowed as above. ## **( P.N. Ravindran, Judge)** ## **(K. Ramakrishnan, Judge)** ## **kav/** The direction in the High Court order dated 21.1.2016 in RCR No.344/2014 to pay cost of Rs.2,500/- (Rupees Two Thousand and RCR 344/2014 7 five hundred only) to the Kerala State Mediation and Conciliation Centre, Ernakulam and Rs.2,500/- (Rupees Two Thousand and five hundred only) to the counsel on behalf of the respondent in the High Court is complied with by the revision petitioner within the time stipulated in the order, vide Receipt No.3268 dated 27.1.2016 and memo dated 27.1.2016 bearing c.f.no.321/2016 respectively. Sd/- Registrar (Judicial)