High Court of KeralaDivision Bench2018-12-10Revision petition allowed; appellate order set ...

REENA P v THEKKAYIL MAHAMOOD YOOSUF

Case / Petition Number:RCRev..No. 104 of 2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Annie John
Judgment Date: 2018-12-10
Court Decision / Holding: The revision petition is allowed; the Rent Control Appellate Authority’s order dismissing the appeal is set aside. The petitioner is required to pay Rs. 10,000 to the respondent or his counsel by 01.02.2019, and the parties shall appear before the Rent Control Court on 15.02.2019. The Rent Control Court shall dispose of the matter within three months from the date of appearance.
Final Disposition: Revision petition allowed; appellate order set aside; payment of Rs. 10,000; appearance and disposal timeline set.

Parties to the Case

Appellants / Petitioners

REENA P, W/O T.M.RAGHUNATHAN

Respondents

THEKKAYIL MAHAMOOD YOOSUF

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. C. Chacko (Parathanam)

Counsels for Respondents

• Sri Alex M. Scaria
• Smt. Saritha Thomas

Case Synopsis & Summary

This is a Rent Control Revision petition (RCRev. No. 104 of 2018) filed by Reena P challenging the judgment dated 16 March 2018 in RCA No. 5/2018 of the Rent Control Appellate Authority, Kalpetta, and the order dated 6 February 2017 in RCP 4/2016 of the Rent Control Court, Kalpetta. The revision arose from an ex parte dismissal in the RCP after the revision petitioner allegedly could not attend the trial on 6 November 2017 due to rheumatic arthritis and bed rest from 1 to 10 November 2017. The respondent opposed the petition on the grounds of limitation and asserted that the revision petition was filed belatedly; they also argued that the revision petition lacked locus standi and that the advocate had no instructions on that date. The Rent Control Appellate Authority had held the petition time-barred and dismissed the appeal. The High Court, however, found that there were substantial grounds for restoration: the IA No. 1480/2017 was filed within 14 days of the ex parte order and can be treated as within time; the lack of instructions was not a valid ground to deny restoration; and law on sufficient cause and remedy under the Kerala Rent Act permits restoration. The Court set aside the Appellate Authority’s order and allowed the revision with conditions, including payment of Rs 10,000 to the respondent and a timeline for disposal within three months.

Provisions of Law Cited

Kerala Buildings (Lease and Rent Control) Act, 1965 – Section 12Code of Civil Procedure, Order 9 Rules 9 and 13Limitation Act, 1963

Legal Doctrines & Maxims

Sufficient cause is a question of fact depending upon the circumstances of each case.
Locus standi (standing) as a prerequisite to represent in proceedings.
Duty of advocate to inform client before reporting no instructions (L. Venkata Krishna Reddy)

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants argued that the revision petitioner was prevented from attending the Rent Control Court on 6 November 2017 due to severe rheumatic arthritis and was bed ridden from 1 to 10 November 2017. They contended there was no wilful negligence and that the RCP was ex parte only due to genuine illness and lack of instructions on listing day. They asserted that IA No. 1480/2017 was filed on 24 November 2017 within 14 days of the ex parte order, and that difficulties with vakalat and representation should not defeat restoration. They relied on the principle of sufficient cause, and on L. Venkata Krishna Reddy to emphasise that failure to provide notice to clients before reporting no instructions cannot justify dismissal. They also argued that there is no statutory requirement to remit the entire amount at the revisional stage under Section 12 of the Kerala Buildings (Lease and Rent Control) Act, 1965, and that the appellate order should be revisited on merits rather than time-bar.

Contentions of Respondents

The respondents argued that the petition was barred by limitation and that IA 1480/2017 was filed belatedly on 30 November 2017. They contended that the counsel had no vakalat on the date of listing and therefore the revision petitioner had no locus standi to represent, which should render restoration untenable. They asserted that the Appellate Authority correctly held the revision time-barred and that the reasons for non-appearance, including counsel’s lack of instructions, cannot override the limitation period. They emphasized that the petition was filed late and that there was inaction and delay in prosecuting the matter, which justified dismissal.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
L. Venkata Krishna Reddy (Died) and others v. M. Anjinappa (Died) and others	2010 3 ALD 389	Positive	Cited to support the proposition that advocates must notify clients before reporting no instructions; failure to do so is not a valid ground for restoration.

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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 K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY ,THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940** ## **RCRev..No. 104 of 2018** **AGAINST THE JUDGMENT DATED 16-03-2018 IN RCA 5/2018 of THE RENT CONTROL APPELLATE AUTHORITY, KALPETTA** **AGAINST THE ORDER DATED 06-02-2017 IN RCP 4/2016 of RENT CONTROL COURT, KALPETTA** **- REVISION PETITIONER(APPELLANT/PETITIONER RESPONDENT IN THE COURTS BELOW):** **REENA P, W/O T.M.RAGHUNATHAN, AGED 50, NEAR REST HOUSE,KALPETA NORTH P.O., KALPETA AMSOM AND DESOM,VYTHIRI TALUK, WAYANAD DISTRICT-673 122.** **BY ADV. SRI.P.C.CHACKO(PARATHANAM)** **- RESPONDENT/(RESPONDENT /RESPONDENT PETITIONER IN THE COURTS BELOW):** **THEKKAYIL MAHAMOOD YOOSUF, AGED 52, THEKKAYIL HOUSE,CHERUVANCHERRY P.O., CHERUVANCHERY VILLAGE,THALASSERY TALUK, KANNUR DISTRICT - 670650.** **BY ADVS.SRI.ALEX.M.SCARIA SMT.SARITHA THOMAS** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No. 104 of 2018** **-:2:-** ## **O R D E R** ## **ANNIE JOHN, J.** **The revision petitioner is the respondent in R.C.P. No.4 of 2016 on the files of the Rent Control Court, Kalpetta was listed for trial on 06.11.2017. On that day, the revision petitioner could not attend before the Court, since she was laid up due to rheumatic arthritis.** **2.The case of the revision petitioner is that she could not attend the court on the day when the case was listed as she was laid up due to rheumatic arthritis. In fact, the RCP was listed for trial on 06.11.2017. According to the petitioner, she was bed ridden from 01.11.2017 to** ## **RCRev..No. 104 of 2018** ## **-:3:-** **10.11.2017 and she was not in a position to move around. There was no wilful negligence on her part in not attending before court on that day. She has got very serious contentions in the Rent Control Petition. The records would show that on the date when the case was listed for trial i.e, on 06.11.2017, the learned counsel for the petitioner reported that no instructions were received from the petitioner. Hence the Rent Control Court, Kalpetta made her** _**ex parte**_ **and the RCP was allowed on 10.11.2017.** **3. The learned counsel for the respondent strongly opposed the application by stating that the revision petitioner is having her shop just opposite to the court and near to the residence of the counsel and she is also** ## **RCRev..No. 104 of 2018** ## **-:4:-** **having her residence near to the shop and also contended that this petition was filed only on 30.11.2017. So, it is barred by Limitation Act,1963. On this account, we have perused the judgment of the Rent Control Appellate Authority and wherein it was stated that the case was listed on 06.11.2017 and on that day, the learned counsel for the revision petitioner reported that no instruction from the part of the revision petitioner and the Rent Control Court, Kalpatta has made the revision petitioner herein** _**ex parte**_ **and the R.C.P. was allowed on 10.11.2017.** **4. The learned counsel for the respondent has strenuously argued on this point that the Interlocutory Application was filed only on 30.11.2017. But, as per the judgment of the Rent Control Appellate** ## **RCRev..No. 104 of 2018** ## **-:5:-** **Authority that the I.A. No.1480 of 2017 was filed on 24.11.2017 i.e., within 14 days from the date of the** _**ex parte**_ **order. 5. The learned counsel for the respondent has pointed out that, even though the application was filed on 24.11.2017, the counsel had no vakalath. So, it was returned for curing the defect and after curing the defect, the petition was returned only on 30.11.2018. The reason is that on the date, the case was listed, the learned counsel for the revision petitioner reported that he has no instruction. According to the learned counsel for the respondent, the revision petitioner has no** _**locus standi**_ **, to represent the case, as he has no instruction. We do not agree with the argument of the learned counsel for the** **-:6:-** ## **RCRev..No. 104 of 2018** **respondent, because the petition was filed on 24.11.2017. It is true that it was returned for curing the defect and can be treated as filed within the time i.e., from the 14[th] day after the** _**ex parte**_ **order.** **6. In** _**L. Venkata Krishna Reddy (Died) and others v. M. Anjinappa (Died) and others**_ **[1] , it is held that in an application under Order 9 Rules 9 and 13, Advocate is duty bound to put his client on notice before reporting no instructions and the failure of the lower court to issue notice to the petitioners before recording no instructions reported by their counsel is not a valid ground for restoration of the same. As per Order 9 Rule 9 of CPC, a party against whom an order of dismissal for default is passed** 1 2010 3 ALD 389 ## **RCRev..No. 104 of 2018** ## **-:7:-** **has to satisfy the Court that there was sufficient cause for his non-appearance on the date when the default occurred. Thus, the existence of sufficient cause for the non-appearance of the party is a condition precedent. It is well settled that 'sufficient cause' is a question of fact depending upon the circumstances of each case. What is sufficient cause has to be made out only on the basis of specific pleading supported by acceptable evidence. 7. The contention of the respondent is that the petitioner has not duly prosecuted the matter and his intention was only to delay the proceedings which is borne out from the way he had presented before the court through the counsel. It may be true that the petitioner resides nearby the court; but it will not be** ## **RCRev..No. 104 of 2018** ## **-:8:-** **sufficient enough to reject the application, which was filed by the revision petitioner, within the time i.e., within the prescribed period of limitation.** **8. Another argument was that under Section 12 of the Kerala Buildings (Lease and Rent Control)Act,1965, the revision petitioner has to remit the entire amount before prosecuting the revision. But, there is no provision thereto, which was pointed out to show that at the revisional stage, the revision petitioner has to remit the entire amount and therefore, the argument advanced by the respondent herein also cannot be accepted.** **9. On going through the facts and circumstances and the arguments on the either side, we find that the Appellate** **-:9:-** ## **RCRev..No. 104 of 2018** **Authority has taken a negative approach in finding that the petition was filed after expiry of period of limitation. We also disagree with the decision, which was taken by the Appellate Authority forthwith with regard to this fact. Therefore, we interfere with the judgment of the Rent Control Appellate Authority and set aside the order dismissing the appeal.** **10. In the result, the appeal is allowed, on payment of Rs.10,000/-(Rupees ten thousand only) either to the respondent or his counsel and production of the receipt thereof before the Rent Control Court on or before 01.02.2019. The parties shall appear before the Rent Control Court on 15[th] February, 2019 and the Rent Control Court shall dispose of the matter, within a period of three** ## **RCRev..No. 104 of 2018** ## **-:10:-** **months from the date of appearance.** **This revision petition is allowed** **accordingly.** **Sd/-** DST **K.HARILAL JUDGE Sd/ANNIE JOHN JUDGE** //True Copy// P.A. To Judge