SAJYAN and JAYAKUMAR v. PETER DAMIEN

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ``` & ``` ``` THE HONOURABLE MRS. JUSTICE C.S. SUDHA ``` ``` MONDAY, THE 11[TH] DAY OF JULY 2022 / 20TH ASHADHA, 1944 ``` ``` R.C.REV.NO.70 OF 2021 ``` ``` AGAINST THE ORDER DATED 17.07.2019 IN I.A.NO.933 OF 2018 IN RCA 17/2018 OF THE RENT CONTROL APPELLATE AUTHORITY-IV, KOTTAYAM, CONFIRMING THE ORDER DATED 31.10.2016 IN R.C.P.NO.5 OF 2015 OF THE RENT CONTROL COURT, ETTUMANOOR. ``` ## **`REVISION PETITIONERS:`** ## **`1 SAJAYAN`** ## **`AGED 59 YEARS`** ``` S/O. LATE.V.K. MADHAVAN, CENTRAL LETHER WORK BUILDING NO. 414/XXII, ETTUMANOOR PANCHAYATH CENTRAL JUNCTION, ETTUMANOOR P.O. KOTTAYAM DIS- TRICT. ``` ## **`2 JAYAKUMAR,`** ``` AGED 57 YEARS ``` ``` S/O. LATE.V.K. MADHAVAN, CENTRAL LETHER WORK BUILDING NO. 414/XXII, ETTUMANOOR PANCHAYATH CENTRAL JUNCTION, ETTUMANOOR P.O. KOTTAYAM DIS- TRICT. ``` ``` BY ADVS. ``` ``` M.V.THAMBAN SMT.THARA THAMBAN SRI.B.BIPIN SRI.ARUN BOSE SRI.R.REJI ``` R.C.Rev.No.70 of 2021 2 ## **`RESPONDENT:`** ``` PETER DAMIEN ``` ``` AGED 67 YEARS ``` ``` S/O. LATE C.L. JOSEPH, CHIRAYIL HOUSE, KIZHAK- KUMBHAGOM KARA, ETTUMANOOR VILLAGE, ETTUMANOOR P.O. ``` ``` NOW RESIDING ABROAD AND IS REPRESENTED BY HIS POWER OF ATTORNEY HOLDER AUGUSTINE F, AKKARA ALIAS AKKARA FRANCIS AUGUSTINE, 75 YEARS, HOUSE NO. 2/581/2, PANOKKARAN ROAD, KANIYA- MANGALAM P.O. THRICHUR 680 027. ``` ``` BY ADV R.VENUGOPAL ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOW- ING: ``` R.C.Rev.No.70 of 2021 3 ## **ORDER** ## **Anil K. Narendran, J.** The petitioners are the respondents-tenants in R.C.P.No.5 of 2015 on the file of the Rent Control Court (Munsiff), Ettumanoor, a petition filed by the respondent herein-landlord, under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking an order of eviction of the tenants from the petition schedule shop rooms on account of arrears of rent. The tenants entered appearance and filed objection in the RCP. After considering the rival contentions, the Rent Control Court by the order dated 31.10.2016 allowed the RCP, by directing the tenants to vacate the petition schedule shop rooms and put the landlord in vacant possession of the same, within one month from the date of that order, and the tenants are at liberty to deposit the arrears of rent with interest at the rate of 6% per annum and cost of the litigation, within one month from the date of that order, in order to get the same vacated under Section 11(2)(c) of the Act. Challenging the order of eviction granted by the Rent Control Court in R.C.P.No.5 of 2015, the tenants filed R.C.A.No.17 of 2018 before the Additional Rent Control Appellate Authority-IV (Additional District Judge-IV), Kottayam. The said R.C.Rev.No.70 of 2021 4 appeal was accompanied by I.A.No.933 of 2018, an application filed under Section 5 of the Limitation Act, 1963 seeking an order of condonation of delay of 475 days in filing that appeal. By the order dated 17.07.2019, the Appellate Authority dismissed I.A.No.933 of 2018, on the ground that the provision under Section 5 of the Limitation Act has no application to rent control proceedings. Challenging the aforesaid order of the Rent Control Appellate Authority, the tenants filed this Rent Control Revision before this Court on 23.03.2021, invoking the revisional jurisdiction of this Court under Section 20 of the Act. 3. On 31.03.2021, when this Rent Control Revision came up for admission, this Court admitted the matter on file and issued notice to the respondent. 4. Heard the learned counsel for the petitioners-tenants and also the learned counsel for the respondent-landlord. 5. The issue that arises for consideration in this Rent Control Revision is as to whether any interference is warranted on the order of the Appellate Authority dated 17.07.2019 in I.A.No.933 of 2018 in R.C.A.No.17 of 2018, invoking the revisional jurisdiction of this Court under Section 20 of the Act. R.C.Rev.No.70 of 2021 5 6. The learned counsel for the petitioners-tenants would contend that the reasoning of the Appellate Authority while dismissing I.A.No.933 of 2018 cannot be sustained in law, in view ## of the law laid down by the Division Bench of this Court in **Gopakumar G. and others v. Ancy Thankachan Philip and others [2019 (3) KHC 760]** . 7. Per contra, the learned counsel for the respondentlandlord would contend that the law laid down by the Division Bench in **Gopakumar G. [2019 (3) KHC 760]** has no application to the facts of the case on hand. In support of the said contention, the learned counsel would place reliance on the decision of the Constitution Bench in **I.C. Golaknath and others** **v. State of Punjab [AIR 1967 SC 1643]** and also the judgment of this Court in **Indira Gandhi Memorial General Marketing Society Ltd. v. Roys Abraham and another [2017 (3) KLT 858]** on the doctrine of prospective overruling. 8. This Court in **Gopakumar G. [2019 (3) KLT 346]** held that an Appellate Authority under Section 18 of the Kerala Buildings (Lease and Rent Control) Act is a District Judge, enjoined to adjudicate cases in accordance with the mandate of R.C.Rev.No.70 of 2021 6 the Civil Procedure Code, 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 judgment of this Court in **Gopakumar G. [2019 (3) KLT 346]** is one rendered on 25.06.2019. The order of the Appellate Authority, which is impugned in this Rent Control Revision, is one rendered on 17.07.2019, whereby I.A.No.933 of 2018 in R.C.A.No.17 of 2018 stands dismissed on the ground that the Appellate Authority has no power to condone the delay. The reasoning of the Appellate Authority in the said order is squarely against the law laid down by the Division Bench in **Gopakumar G** . **[2019 (3) KLT 346]** . In such circumstances, we find no reason to sustain the order dated 17.07.2019 of the Appellate Authority in I.A.No.933 of 2018 in R.C.A.No.17 of 2018. In the result, the Rent Control Revision is allowed by setting aside the order dated 17.07.2019 in I.A.No.933 of 2018, for the aforesaid reason. The Appellate Authority is directed to reconsider I.A.No.933 of 2018 in R.C.A.No.17 of 2018 on merits R.C.Rev.No.70 of 2021 7 and pass a reasoned order, after adverting to the legal and factual contentions raised by both sides, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **C.S. SUDHA JUDGE** yd R.C.Rev.No.70 of 2021 8 ## **`APPENDIX`** ## **`PETITIONERS’ ANNEXURES:`** ``` ANNEXURE I CERTIFIED COPY OF THE ORDER DATED 20.09.2021 IN E.A.NO.2 OF 2021 IN E.P.NO.10 OF 2018 IN R.C.P.NO.5 OF 2015 OF THE HON’BLE RENT CONTROL COURT, ETTUMANOOR. ANNEXURE II TRUE COPY OF THE EXECUTION PETITION AS E.P.NO.40 OF 2021 ON THE FILE OF THE MUNSIFF COURT, ETTUMANOOR. ANNEXURE III CERTIFIED COPY OF THE ORDER DATED 23.10.2021 IN E.P.NO.40 OF 2021 IN R.C.P.NO.5 OF 2015 OF MUNSIFF COURT, ETTUMANOOR. ANNEXURE IV CERTIFIED COPY OF THE DELIVERY KAI CHIT IN E.P.NO.40 OF 2021 OF MUNISFF COURT, ETTUMANOOR. ANNEXURE V NOTARISED AFFIDAVIT BY SRI.E.M. SURESH, ADVOCATE, ETTUMANOOR, COUNSEL OFR THE PETITIONER HEREIN BEFORE THE COURT BELOW DATED 10.11.2021. ``` ## **`RESPONDENT’S ANNEXURES:`** ``` ANNEXURE R1 CERTIFIED COPY OF THE JUDGMENT DATED 22.06.2018 IN O.P.(RC) NO.56 OF 2018 OF THE HON’BLE HIGH COURT OF KERALA. ANNEXURE R2 CERTIFIED COPY OF THE ORDER DATED 31.07.2018 IN RP NO.543 OF 2018 IN O.P.(RC) NO.56 OF 2018 OF THE HON’BLE HIGH COURT OF KERALA. ```