High Court of KeralaDivision Bench2021-01-29Revision petitions allowed; ex-parte eviction o...

RCRev Nos. 29 of 2019 & 61 of 2019: Abdu K & Afsal v. Nazar, Safeera, Ashraf, Jamsheer C.P., Shammer P

Case / Petition Number:RCRev Nos.29 of 2019 and 61 of 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Hariprasad
T. V. Anilkumar
Judgment Date: 2021-01-29
Court Decision / Holding: Revision petitions allowed. I.A Nos.1346 & 1347 of 2017 in R.C.P. 162/2012 are allowed. The ex-parte order of eviction against the revision petitioners is set aside. Parties are directed to appear before the Rent Control Court, Kozhikode on 22 February 2021. The Rent Control Court shall dispose of the matter on merits before 30 May 2021. All pending interlocutory applications stand closed.
Final Disposition: Revision petitions allowed; ex-parte eviction order set aside; matter remitted for merits before Rent Control Court with directions and timeline to dispose by 30 May 2021; interlocutory applications closed.

Parties to the Case

Appellants / Petitioners

Abdu K
Afsal

Respondents

Nazar
Safeera
Ashraf
Jamsheer C.P
Shammer P

Legal Representation & Advocates

Counsels for Petitioners

• V. V. Surendran
• P. A. Harish

Counsels for Respondents

• M. Shajna
• K. M. Firoz

Case Synopsis & Summary

Two interconnected rent-control revision petitions were heard by a Division Bench of the Kerala High Court. The petitioners, Abdu K and Afsal, tenants under respondents Nazar and Safeera and others, challenged eviction orders issued under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. An ex-parte eviction order was passed when the tenants did not appear; they subsequently moved I.A.s to set aside the order and sought condonation of delay under Section 5 of the Indian Limitation Act. The Rent Control Court rejected the delay condonation application, and both the Rent Control Appellate Authority and the court below held there was no jurisdiction to condone delay. The petitioners pressed two revision petitions. The judgment notes that Ratheesh v. A.M.Chacko was relied upon by some decisions but was doubted by a Division Bench and referred to a Full Bench. The Full Bench in Hamsa K.K v. Athikottu Snehaletha held that delay can be condoned if sufficient cause is shown, and the Rent Control Court can exercise such discretion. After hearing arguments, the High Court allowed the revision petitions, set aside the ex-parte eviction against the petitioners, and remanded the matter for merits before the Rent Control Court with a timeline. All pending interlocutory applications were closed.

Provisions of Law Cited

Kerala Buildings (Lease and Rent Control) Act, 1965, Section 11(3)Indian Limitation Act, 1963, Section 5

Legal Doctrines & Maxims

Ratheesh v. A.M.Chacko (2018) KLJ 841 — ratio not correctly laid down; later overruled by Full Bench
Hamsa K.K v. Athikottu Snehaletha (Full Bench) ILR 2020 (4) Kerala 959 — condonation of delay possible on showing sufficient cause; Rent Control Court can exercise discretion

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contended that the ex-parte eviction order was pronounced in their absence; they moved two applications under Section 5 of the Limitation Act seeking condonation of delay in filing to set aside the ex-parte order. They argued that condonation of delay is permissible where there is sufficient cause, citing the evolving jurisprudence led by Hamsa K.K. v. Athikottu Snehaletha and that Ratheesh v. A.M.Chacko should not bar meritorious challenges on delay.

Contentions of Respondents

The respondents contended that the Rent Control Court lacked jurisdiction to condone delay under Section 5 of the Limitation Act and that the ex-parte eviction order should stand; they relied on existing precedents against condonation and on the grounds of default.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ratheesh v. A.M.Chacko	2018 (4) KLJ 841	Overruled	Full Bench held that the Ratheesh ratio was not correctly laid down.
Hamsa K.K v. Athikottu Snehaletha	ILR 2020 (4) Kerala 959 (FB)	Positive	Full Bench decision holding that delay can be condoned by Rent Control Court on showing sufficient cause; subsequent decision applied this principle.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942** **RCRev..No.29 OF 2019** **AGAINST THE COMMON JUDGMENT IN RCA 101/2018 DATED 26-07-2018 OF RENT CONTROL APPELLATE AUTHORITY/DISTRICT JUDGE, KOZHIKODE.** **AGAINST THE ORDER IN I.A NO.1346 OF 2017 IN RCP 162/2012 DATED 19-01-2018 OF RENT CONTROLLER/PRINCIPAL MUNSIFF – I, KOZHIKODE.** ## **REVISION PETITIONERS/APPELLANTS/PETITIONERS 1 AND 2 IN I.A/ RESPONDENTS 1 AND 3 IN RCP:** **1 ABDU.K, AGED 48 YEARS, S/O KUTTY HASSAN, RESIDING AT KAZHAKALI HOUSE, KURUVATTUR AMSOM, CHERUVATTA DESOM, P.O PARAMBIL, KOZHIKODE- 673 012.** **2 AFSAL, AGED 44 YEARS, S/O KATHIRI, RESIDING AT ERINGATT HOUSE, KURUVATTUR AMSOM, CHERUVATTA DESOM, P.O PARAMBIL, KOZHIKODE – 673 012.** **BY ADVS.SRI.V.V.SURENDRAN & SRI.P.A.HARISH.** **RESPONDENTS/RESPONDENTS/RESPONDENTS AND 3RD PETITIONER IN I.A AND PETITIONERS AND RESPONDENTS 2, 4 AND 5 IN RCP:** **1 NAZAR, AGED 48 YEARS, S/O.HAMEED SHA, RESIDING AT 32/1642, KAILADIPARAMBA, CHELAVOOR AMSOM DESOM, PO.CHELAVOOR, KOZHIKODE-673571.** R.C.R Nos.29 & 61 of 2019 2 - **2 SAFEERA, AGED 44 YEARS, D/O.P.P.ABOOBACKER, RESIDING AT KAILADIPARAMBA, CHELAVOOR AMSOM DESOM.P.O., CHELAVOOR, KOZHIKODE-673571.** - **3 ASHRAF, AGED 50 YEARS, S/O.ALIKUTTY, RESIDING AT KALATHINGAL HOUSE, KURUVATTOM AMSOM, CHERUVATTA DESOM, PO.PARAMBIL, KOZHIKODE-673012.** - **4 JAMSHEER.C.P, AGED 34 YEARS, S/O.C.P.MAMMUKUTTY, RESIDING AT CHINDAMPOUNATHIL HOUSE, KURUVATTOR AMSOM, CHERUVATTA DESOM, PO.PARAMBIL, KOZHIKODE-673012.** - **5 SHAMMER.P, AGED 34 YEARS, S/O.VANKANAKKIL KOYA, RESIDING AT VANKANAKKIL HOUSE, KURUVATTOR AMSOM, CHERUVATTA DESOM.P.O.PARAMBIL, KOZHIKODE-673012.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION** **ON 29.01.2021, ALONG WITH RCRev.NO.61/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.C.R Nos.29 & 61 of 2019 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942** **RCRev..No.61 OF 2019** **AGAINST THE COMMON JUDGMENT IN RCA 100/2018 DATED 26-07-2018 OF RENT CONTROL APPELLATE AUTHORITY/DISTRICT JUDGE, KOZHIKODE.** **AGAINST THE ORDER IN I.A NO.1347 OF 2017 IN RCP 162/2012 DATED 19-01-2018 OF RENT CONTROLLER/PRINCIPAL MUNSIFF – I, KOZHIKODE.** **REVISION PETITIONERS/APPELLANTS/PETITIONER 1 AND 2 IN I.A AND RESPONDENTS 1 AND 3 IN RCP :** - **1 ABDU K, AGED 48 YEARS,** - **S/O.KUTTY HASSAN, RESIDING AT KAZHAKALI HOUSE, KURUVATTUR AMSOM, CHERUVATTA DESOM, PO.PARAMBIL, KOZHIKODE-673012.** - **2 AFSAL, AGED 44 YEARS, S/O.KATHIRI, RESIDING AT ERINGATT HGOUSE, KURUVATTUR AMSOM, CHERUVATTA DESOM, PO.PARAMBIL, KOZHIKODE-673012.** **BY ADVS.SRI.V.V.SURENDRAN & SRI.P.A.HARISH** R.C.R Nos.29 & 61 of 2019 4 ## **RESPONDENTS/RESPONDENTS/RESPONDENTS AND 3RD PETITIONER IN I.A AND PETITIONERS AND RESPONDENTS 2, 4 AND 5 IN RCP :** - **1 NAZAR, AGED 48 YEARS, S/O.HAMEED SHA, RESIDING AT 32/1642, KAILADIPARAMBA, CHELAVOOR AMSOM DESOM, PO.CHELAVOOR, KOZHIKODE-673571.** - **2 SAFEERA, AGED 44 YEARS, D/O.P.P.ABOOBACKER, RESIDING AT KAILADIPARAMBA, CHELAVOOR AMSOM DESOM.P.O., CHELAVOOR, KOZHIKODE-673571.** - **3 ASHRAF, AGED 50 YEARS, S/O.ALIKUTTY, RESIDING AT KALATHINGAL HOUSE, KURUVATTOM AMSOM, CHERUVATTA DESOM, PO.PARAMBIL, KOZHIKODE-673012.** - **4 JAMSHEER.C.P, AGED 34 YEARS, S/O.C.P.MAMMUKUTTY, RESIDING AT CHINDAMPOUNATHIL HOUSE, KURUVATTOR AMSOM, CHERUVATTA DESOM, PO.PARAMBIL, KOZHIKODE673012.** - **5 SHAMMER.P, AGED 34 YEARS, S/O.VANKANAKKIL KOYA, RESIDING AT VANKANAKKIL HOUSE, KURUVATTOR AMSOM, CHERUVATTA DESOM.P.O.PARAMBIL, KOZHIKODE-673012.** **R1 & R2 BY ADV. SMT.M.SHAJNA R1 & R2 BY ADV. SRI.K.M.FIROZ** ## **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION** **ON 29.01.2021, ALONG WITH RCRev.NO.29/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.C.R Nos.29 & 61 of 2019 5 A.HARIPRASAD & T.V.ANILKUMAR, J J. -------------------------------------- R.C.R Nos.29 & 61 of 2019 -------------------------------------- Dated this the 29th day of January, 2021 ## C O M M O N O R D E R ## A.HARIPRASAD, J Heard the learned counsel for the revision petitioners and the respondents. Since these matters are intrinsically interconnected, we dispose them by this common order. 2. Revision petitioners are the tenants under the respondent Nos.1 and 2. Respondent Nos. 1 and 2 filed a petition for eviction of the revision petitioners urging a ground under Sections 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (in short 'the Act'). When the matter was posted for trial, the revisions petitioners could not attend the R.C.R Nos.29 & 61 of 2019 6 court and therefore an ex-parte order of eviction was passed against them. Thereafter, they filed two applications before the Rent Control Court to set aside the ex-parte order of eviction and to condone delay in filing that application by invoking Section 5 of the Limitation Act. Rent Control Court disposed of the delay condonation application on merits by finding that there is no sufficient cause shown for condonation of delay. 3. Feeling aggrieved, the tenants approached the Rent Control Appellate Authority with two separate rent control appeals. Both the appeals were dismissed by the Rent Control Appellate Authority finding that the Rent Control Court has no jurisdiction to condone delay by invoking Section 5 of the Limitation Act. 4. Even though, the Rent Control Appellate Authority has not placed reliance on Ratheesh v. A.M.Chacko ((2018(4) KLJ 841) , the principle stated therein was applied with reference to some decisions R.C.R Nos.29 & 61 of 2019 7 rendered by the apex court. The ratio in Ratheesh 's case (supra) was doubted by a Division Bench and referred to a Full Bench. The Full Bench in Hamsa K.K v. Athikottu Snehaletha (F.B) (I.L.R 2020 (4) Kerala 959) answered the reference finding that in Ratheesh 's case (supra), law was not correctly laid down. It was also found that the Rent Control Court in an appropriate case can condone delay on establishing sufficient cause. 5. It is brought to our notice that the Rent Control Appellate Authority has not considered the merit of the contentions of the tenants. It mainly disposed of the appeals on some legal principles. 6. After hearing the learned counsel on both sides and having regard to the fact that the delay occurred in filing an application to set aside the ex-parte order of eviction is only six days, we hereby allow the revision petitions and set aside the orders passed by the Rent Control Court and the Appellate Authority. R.C.R Nos.29 & 61 of 2019 8 In the result, the revision petitions are allowed. I.A Nos.1346 & 1347 of 2017 in R.C.P No.162 of 2012 are allowed. The ex-parte order of eviction passed against the revision petitioners is set aside. Parties are directed to appear before the Rent Control Court, Kozhikode on 22nd February, 2021. The Rent Control Court shall dispose of the matter on merits before 30th May, 2021. All pending interlocutory applications will stand closed. A. HARIPRASAD, JUDGE. T.V.ANILKUMAR JUDGE **amk**