Prasanth K.P. v. Kunhabdulla and Dr. Jamsheer Abdulla P.K.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 8[TH] DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943** **R.C.REV.NO.99 OF 2021** **AGAINST THE JUDGMENT IN R.C.A.NO.91 OF 2020 AND THE ORDER IN I.A.NO.1 OF 2020 IN R.C.A.NO.91 OF 2020 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), KOZHIKODE, DATED 26.02.2021, ARISING OUT OF THE ORDER IN R.C.P.NO.91 OF 2020 OF THE RENT CONTROL COURT (MUNSIFF-MAGISTRATE), KOZHIKODE, DATED 03.01.2020.** ## **PETITIONER/APPELLANT/RESPONDENT:** **PRASANTH K.P.,AGED 45 YEARS S/O. KANNAN, RESIDING AT KULANGARA PUTHOYOTTIL HOUSE, SARASWATHI BHAVAN, AYANIKKAD P.O., KOYILANDY-673521.** **BY ADV K.V.RASHMI** ## **RESPONDENTS/RESPONDENTS/PETITIONER :** **1 KUNHABDULLA, S/O. MOIDEEN, AGED 62 YEARS, KIZHAKKE PUTHUKKUDI HOUSE, AYANIKKAD P.O., KOYILANDY-673521. 2 DR. JAMSHEER ABDULLA P.K., S/O. KUNHABDULLA, KIZHAKKE PUTHUKKUDI HOUSE, AYANIKKAD P.O., KOYILANDY-673521.** **BY ADVS. SRI.K.LAKSHMINARAYANAN SMT.SATHYASHREE PRIYA EASWARAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION** **ON 08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- RCREV. NO. 99 OF 2021 ## **O R D E R** Anil K. Narendran, J. The petitioner is the respondent-tenant in R.C.P.No.13 of 2019 on the file of the Rent Control Court (MunsiffMagistrate), Payyoli, a petition filed by the respondents herein-landlords, under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the petition schedule shop room, which is occupied by the tenant on the strength of a rental agreement dated 05.10.2017, fixing the monthly rent at the rate of Rs.36,000/-. Before the Rent Control Court, the tenant was set ex-parte. On the side of the landlords, PW1 was examined and Exts.A1 to A3 were marked. By the order dated 03.01.2020, the Rent Control Court allowed R.C.P.No.13 of 2019, granting an order of eviction under Sections 11(2)(b) and 11(3) of the Act. Challenging the order of eviction, the tenant filed R.C.A.No.91 of 2020 before the Rent Control Appellate Authority (District Judge), Kozhikkode, along with I.A.No.1 of 2020, an application filed under Section 5 of Limitation Act, 1963, seeking condonation of delay of 245 -3- RCREV. NO. 99 OF 2021 days in filing the appeal. The Appellate Authority, by order dated 26.02.2021 dismissed I.A.No.1 of 2020. The said order reads thus; “The petitioner is a defaulter in payment of rent. Hence he has not right to contest the matter. A delay of 245 days in filing the appeal. It is a long delay, cannot be condoned for agitating a Rent Control petition by a defaulter. Hence I.A is dismissed.” In view of the order in I.A.No.1 of 2020, the Appellate Authority dismissed R.C.A.No.91 of 2020 as time barred, by the judgment dated 26.02.2021. 2. Feeling aggrieved by the order dated 26.02.2021 in I.A.No.1 of 2020 and the judgment dated 26.02.2021 in R.C.A.No.91 of 2020, the petitioner-tenant is before this Court in this Rent Control Revision filed under Section 20 of the Act. 3. On 14.07.2021, when this revision came up for admission, this Court admitted the matter on file and issued notice to the respondents. In I.A.No.1 of 2021, this Court granted an interim order of stay of the execution proceedings in E.P.No.57 of 2020 in R.C.P.No.13 of 2019 on the file of the Rent Control Court, Payyoli, for a period of three months. 4. Heard the learned counsel for the petitioner and -4- RCREV. NO. 99 OF 2021 also the learned counsel for the respondents. 5. The issue that arises for consideration in this Rent Control Revision is as to whether the impugned order dated 26.02.2021 in I.A.No.1 of 2020 and the judgment dated 26.02.2021 in R.C.A.No.91 of 2020 of the Rent Control Appellate Authority can be sustained in law. 6. I.A.No.1 of 2020 is an application filed by the petitioner-tenant under Section 5 of Limitation Act, 1963 seeking condonation of delay of 245 days in filing R.C.A.No.91 of 2020, an appeal filed before the Rent Control Appellate Authority, under Section 18(1)(b) of the Act. 7. Section 18 of the Kerala Buildings (Lease and Rent Control) Act, deals with appeal. As per Section 18(1)(a) of the Act, the Government may, by general or special order notified in the Gazette, confer on such officers and authorities not below the rank of a Subordinate Judge the powers of appellate authorities for the purposes of this Act in such areas or in such classes of cases as may be specified in the order. As per Section 18(1)(b) of the Act, any person aggrieved by an order passed by the Rent Control Court may, within thirty days from -5- RCREV. NO. 99 OF 2021 the date of such order, prefer an appeal in writing to the Appellate Authority having jurisdiction. In computing the thirty days aforesaid, the time taken to obtain a certified copy of the order appealed against shall be excluded. 8. In **Gopakumar v. Ancy Thankachan Philip [2019 (3) KHC 760]** a Division Bench of this Court held that, an Appellate Authority under Section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965 is a District Judge, enjoined to adjudicate cases in accordance with the mandate of the Code of Civil Procedure, 1908 and the provisions of the Limitation Act, 1963 are applicable to the proceedings before the Appellate Authority. However, the Act being a special law, regard must be had to the provisions in Section 29(2) of the Limitation Act. 9. 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 -6- RCREV. NO. 99 OF 2021 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. 10. It is well settled that the Law of Limitation is founded on public policy to ensure that the parties to a 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 -7- RCREV. NO. 99 OF 2021 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. 11. In **Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107]** , in the context of Section 5 of the limitation Act, 1963, 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 lifepurpose for the existence of the institution of Courts. 12. In **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** 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 -8- RCREV. NO. 99 OF 2021 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. 13. In **Esha Bhattacharjee** , after summerising the principles applicable while dealing with an application for condonation of delay, the Apex Court added some more guidelines taking note of the present day scenario, that an application for condonation of delay should be drafted with - careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 14. Though the expression ‘sufficient cause’ employed in Section 5 of the Limitation Act 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 Court in **Katiji [(1987) 2 SCC 107]** , the concept of liberal -9- RCREV. NO. 99 OF 2021 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 [(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. 15. In **Woolcombers of India Ltd. v. Woolcombers Workers Union [(1974) 3 SCC 318]** the Apex Court, while considering the challenge made against an award under Section 11 of the Industrial Disputes Act, 1947, held that the giving of reasons in support of their conclusions by judicial and quasi judicial authorities when exercising initial jurisdiction is essential for various reasons. Firstly, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfitness in the -10- RCREV. NO. 99 OF 2021 conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Secondly, it is a well known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Thirdly, it should be remembered that an appeal generally lies from the decisions of judicial and quasi judicial authorities to the Apex Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the court. The court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong. Therefore, the Apex Court emphasised that judicial and quasi judicial authorities should always give the reasons in support of their conclusions. 16. In **English v. Emery Reimbold and Strick Ltd. [(2002) 1 WLR 2409]** the Court of Appeal held that, a judicial decision which affected the substantive rights of the -11- RCREV. NO. 99 OF 2021 parties should be reasoned, although some judicial decisions, e.g., interlocutory case management decisions, did not require reasons; that, while a judge was not obliged to deal with every argument or identify or explain every factor which weighed with him, the issues the resolution of which were vital to his conclusion should be identified and the manner in which he resolved them briefly but clearly explained, so that the judgment enabled the parties and any appellate tribunal readily to analyse the reasoning essential to his decision. 17. In **Assistant Commissioner, Commercial Tax Department v. Shukla and Brothers [(2010) 4 SCC 785]** the Apex Court held that, the principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to -12- RCREV. NO. 99 OF 2021 the administrative authorities certainly requires that the judgment of the court should meet with this requirement with higher degree of satisfaction. 18. In **Shukla and Brothers** the Apex Court held further that, a litigant who approaches the court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher court in the event of challenge to that judgment. -13- RCREV. NO. 99 OF 2021 19. In the instant case, the extent of delay in filing R.C.A.No.91 of 2020 is 245 days, which was sought to be condoned by filing I.A.No.1 of 2020 under Section 5 of the Limitation Act. In the impugned order dated 26.02.2021 in I.A.No.1 of 2020, the Appellate Authority has not even adverted to, either the explanation offered by the tenant for condonation of delay or the objection of the landlords against condonation of delay. Instead, in the order dated 26.02.2021, the Appellate Authority has stated that, since the petitionertenant is a defaulter in payment of rent, who has no right to contest the matter, the long delay of 245 days in filing the appeal cannot be condoned for agitating a Rent Control Appeal by a defaulter. 20. In view of the law laid down in **Shukla and Brothers [(2010) 4 SCC 785]** , in the order passed on an application for condonation of delay filed under Section 5 of the Limitation Act, the Rent Control Appellate Authority should give brief reasons for arriving at a conclusion as to whether the appellant has shown ‘sufficient cause’ for the condonation of delay in filing the appeal, after adverting to the explanation -14- RCREV. NO. 99 OF 2021 offered by the appellant for condonation of delay and also the contentions raised in the objection filed by the respondents, showing proper application of mind. 21. 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. 22. In view of the provisions under Section 20(1) of the Act, in a revision petition filed against any order passed or proceedings taken under the Act by the Appellate Authority, this Court has to record its satisfaction as to the legality, regularity or propriety of such order or proceedings. A cryptic order passed by the Appellate Authority, like the one which is -15- RCREV. NO. 99 OF 2021 impugned in this Rent Control Revision, virtually makes the revisional jurisdiction of this Court nugatory and ineffective, inasmuch as, such an order which does not disclose any reasons will be of little assistance to this Court, while analysing the reasoning essential to such a decision. 23. The learned counsel for the respondents-landlords would submit that the petitioner-tenant has kept the monthly rent of the petition schedule shop room, in terms of Ext.A1 rent deed in arrears. Non-payment of monthly rent by the tenant and his continued occupation of the petition schedule shop room is causing serious prejudice to the landlords. The attempt made by the tenant, who was set _ex parte_ before the Rent Control Court, is only to protract the matter stating one reason or other. 24. Section 12 of the Kerala Buildings (Lease and Rent Control) Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per sub-section (1) of Section 12, 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 -16- RCREV. NO. 99 OF 2021 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 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 sub-section (2) of Section 12, 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 subsection (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. -17- RCREV. NO. 99 OF 2021 25. As per sub-section (3) of Section 12 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, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. As per sub-section (4) of Section 12, 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. 26. A tenant who fails to pay or to deposit 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 Appellate Authority, has -18- RCREV. NO. 99 OF 2021 to be dealt with appropriately, in accordance with the provisions under Section 12 of the Act. But, that is not a reason for rejecting the application for condonation of delay, filed under Section 5 of the Limitation Act, by a cryptic order like the one impugned in this Rent Control Revision, virtually making the revisional jurisdiction of this Court nugatory and ineffective. The Appellate Authority had adopted a casual and callous approach in handling the application for condonation of delay. We deprecate in the strongest words the casual and callous approach adopted by the Appellate Authority in handling I.A.No.1 of 2020 filed for condonation of delay in filing R.C.A.No.91 of 2020. 27. In the result, this Rent Control Revision is allowed by setting aside the order dated 26.02.2021 of Rent Control Appellate Authority, Kozhikode, in I.A.No.1 of 2020 and also the judgment dated 26.02.2021 in R.C.A.No.91 of 2020, for the aforesaid reasons, and the matter is remanded to Appellate Authority for fresh consideration of I.A.No.1 of 2020 in R.C.A.No.91 of 2020, taking note of the law laid down in the decisions referred to supra and also the observations -19- RCREV. NO. 99 OF 2021 contained hereinbefore. The Appellate Authority shall pass a reasoned order in I.A.No.1 of 2020 in R.C.A.No.91 of 2020, as expeditiously as possible, at any rate, within a period of one month from the date of appearance of both parties, who shall appear before the Appellate Authority, on **22.09.2021** . Sd/- **ANIL K.NARENDRAN, JUDGE** Sd/- **K. BABU, JUDGE** AV/10/9