Syamalakumari, Gomathi Amma, Reshma Raj and Shyam Raj v. Vijayalakshmi Amma and Jayakumari Pillai

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 RCRev..No. 248 of 2009() -----------------------AGAINST THE ORDER DATED 07/07/2009 IN CF. 2005 /2009 IN UNNUMBERED RCA........../2009 OF RENT CONTROL APPELLATE AUTHORITY, KOLLAM RCP.21/2007 OF RENT CONTROL COURT, KOLLAM .................... ## REVISION PETITIONER/APPELLANT/LEGAL REPRESENTATIVE 1. SYAMALAKUMARI,, W/O.LATE RAJENDRAN, AGED 37 YEARS, THEKKEVILATHEKKATHIL, NJARACKAL, PERINAD P.O., KOLLAM. 2. GOMATHI AMMA, W/O.MADHAVAN NAIR, AGED 68 YEARS, THEKKEVILATHEKKATHIL, NJARACKAL, PERINAD P.O., KOLLAM. 3. RESHMA RAJ,D/O.LATE RAJENDRAN, AGED 15 YEARS (MINOR), THEKKEVILATHEKKATHIL, NJARACKAL, PERINAD P.O., KOLLAM. 4. SHYAM RAJ, S/O.LATE RAJENDRAN, AGED 12 YEARS(MINOR), THEKKEVILATHEKKATHIL, NJARACKAL, PERINAD P.O., KOLLAM. (REVISION PETITIONERS NOS.3 AND 4 REP. BY THEIR MOTHER AND NEXT FRIEND SMT.SYAMALAKUMARI - IST REVISION PETITIONER). - BY ADV. SRI.P.GOPAKUMARAN NAIR - SRI.N.K.SUBRAMANIAN RESPONDENT(S): PETITIONERS ## 1. VIJAYALAKSHMI AMMA, - D/O.PONNAMMA AMMA, RESIDING AT PALIYAZHIKATHU VEEDU, NJARACKAL, PERINAD, KOLLAM. 2. JAYAKUMARI PILLAI, D/O.VIJAYALAKSHMI AMMA, NOW RESIDING AT NANDU NIVAS, KUMARAPURAM, THIRUVANANTHAPURAM, FROM VIJAYA BHAVAN, NJARACKAL, PERINADU, KOLLAM. ADV. SRI.R.S.KALKURA FOR R1 & R2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 7-12-2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## ORDER ON IA. 3160 OF 2009 ## DISMISSED 7-12-2010 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- N.K.BALAKRISHNAN, JUDGE. (TRUE COPY) PS TO JUDGE. ## **PIUS C. KURIAKOSE & P.S. GOPINATHAN, JJ.** ----------------------------------------------RCR. No. 248 of 2009 ----------------------------------------------Dated this the 7th day of December, 2010 ## **O R D E R** ## **Pius C.Kuriakose, J.** Two legal questions arise for decision in this revision. First, whether it is obligatory that an appeal preferred under Section 18 of Act 2 of 1965 should be accompanied a certified copy of the impugned order passed by the Rent Control Court. Second, whether the carbon copy of the order issued to a party in terms of Rule 239(3) of the Civil Rules of Practice qualifies as a certified copy for the purposes of appeal. 2. In the instant case, the rent control appeal was preferred by one Rajendran, the original tenant (the predecessor in interest of the revision petitioners) on the strength of a carbon copy issued to him. A separate petition was also filed seeking reception of the appeal without certified copy and undertaking to produce the certified copy RCR.248/09 -2- as and when the same is received. The tenant's advocate received the certified copy on 22-5-2009 and produced the same before the Rent Control Appellate Authority with a memo on 5-6-2009. In the meanwhile, the original tenant Sri.Rajendran (the appellant) passed away on 22-4-2009. It appears that information regarding Rajendran's demise was not intimated to the counsel. The learned Appellate Authority by its order dated 7-7-2009 rejected the appeal on the ground that the appeal filed on the basis of the carbon copy more than 30 days after the receipt of the same, was barred by limitation. According to the revision petitioners, they did not have information about the rejection of the appeal immediately. They got information much later through a friend of Rajendran and thereafter only they could approach an advocate for advice. It is accordingly that the present revision is filed challenging the judgment of the Rent Control Appellate Authority rejecting the appeal on the ground of limitation. RCR.248/09 -3- 3. Various grounds are raised in this revision. It is urged that the original tenant filed appeal on the strength of the carbon copy of the impugned order only because urgent orders were necessary for stay of the execution proceedings which had been initiated in the meanwhile. It is urged that it is obligatory that all appeals should be accompanied by certified copy of the order appealed against and that a separate application was filed in the appeal seeking time for production of the certified copy. It is urged that as a matter of fact, certified copy of the order was produced before the Appellate Authority on 5-6-2009 and if the period of limitation was calculated on the basis of that certified copy the appeal would have been well within the period of limitation (30 days). It is urged that in view of the special petition filed by the tenant seeking time for production of certified copy, the learned Appellate Authority should have calculated the period of limitation on the basis of the certified copy produced though subsequently. It is urged RCR.248/09 -4- that if the appeal filed on the strength of the carbon copy was found to be barred by limitation, such a finding should have been entered at the earliest opportunity and the appellant tenant should have been given time to cure the defect if necessary by filing a petition for condonation of delay. The said course having not been adopted, prejudice has been occasioned to the present tenants. It is urged that at the time of rejection of the appeal the original tenant was dead and gone. As the legal representatives of the original tenant the revision petitioners had a right to get themselves impleaded as additional appellants they could not exercise that right as the appeal was rejected even before the expiry of three months from the date of death of the original tenant. 4. Sri. P.Gopakumaran Nair, learned counsel for the revision petitioner addressed us strenuously on the basis of the various grounds raised in the appeal memo. According to him, all appeals are expected to be filed on the strength RCR.248/09 -5- of certified copy of the judgment, order or decree as the case may be. The provision for filing appeals by utilizing carbon copy is only an enabling provision to provide for emergent situations where stay of the impugned decree or order is absolutely necessary. Referring to Rule 6A of Order 20 C.P.C. Mr. Gopakumaran Nair submitted that even though there is a provision for preferring an appeal on the strength of the last paragraph of the judgment and a certificate issued by the court to the effect that decree is not drawn up, yet period of limitation will not run against the party because of filing of that appeal and period of limitation will have to be calculated on the basis of the certified copy of the decree only. Reliance was placed by Mr. Gopakumaran Nair on the judgment of K.G.Balakrishnan, J. (as he then was) in Chuppan Nadar v. Sreedharan Thampi, 1992(2) KLT 665. Mr.Gopakumaran Nair relied also on another judgment of this Court authored by K.T.Thomas, J. in Thatha v. Paru, 1985 KLT 1069 and submitted that there RCR.248/09 -6- is a distinction in law between certified copies of judgments and carbon copies. Mr. Gopakumaran Nair relied also on the judgment of P.K.Balasubramanyan, J. as a Judge of this Court in Reghunathan Nambiar v. Janu, 1995(1) KLT 843 to argue that just because an earlier appeal was dismissed for default for non-production of printed copy, subsequent appeal accompanied by printed copy will not be precluded. 5. All the submissions of Mr. Gopakumaran Nair were resisted by R.S.Kalkura on behalf of the respondents landladies. Relying on the judgment of a Division Bench of This Court in Asst. Engineer v.Entheenkutty, 1982 KLT 851 Mr. Kalkura submitted that once it is shown that a carbon copy has been issued to a party time will start to run. Mr. Kalkura relied also on the observations in the judgment of Paripoornan, J. as a judge of this Court in Oommen v. Moran Mar Baselius Mar Thoma Mathews, 1984 KLT 553 in support of his arguments. Mr. Kalkura tried to fortify his submissions by another judgment of this Court in RCR.248/09 -7- Muhammed v. Munsiff, Tirur, 1997(2) KLT 412 wherein this court after referring to rule 239(3) and 196 of the Civil Rules of Practice has indicated that for the purpose of appeals carbon copies are as good as any other certified copies. 6. We have very anxiously considered the rival submissions addressed at the Bar. As indicated in the beginning, the question to be decided by us is whether production of a certified copy of the order is mandatory for appeals under Section 18 and whether a carbon copy issued under Rule 239(3) of the Civil Rules of Practice will qualify as a certified copy. The judgment of this Court in Chuppan Nadar v. Sreedharan will not be of assistance to the revision petitioners. The above judgment only lays down that Rule 6A(2)(a) of Order 20 CPC only enables the party to prefer an appeal on the basis of the last paragraph of the judgment (decretal portion of the judgment) and that for the purposes of Order 41 Rule 1 CPC the last paragraph shall be treated as decree. But that does not mean that just because a RCR.248/09 -8- party has obtained the last paragraph of the judgment with certification under Rule 6A(2) to the effect that the decree has not been drawn up the party is obliged to file the appeal on the strength of the said paragraph of the judgment. The party need file appeal only on the basis of the certified copy of the judgment and decree obtained by him. In the present case, the party had filed an appeal on the basis of the carbon copy issued to him under Rule 239(2) and was able to secure interim orders staying execution proceedings in that appeal. The judgment of this Court in Reghunathan Nambiar v. Janu 1995(1) KLT 843 is also distinguishable on facts. That was a case where the appeal preferred by the party was dismissed for default due to non-production of the printed copy of the judgment. Later instead of seeking restoration of that appeal the appellant filed a fresh appeal accompanied by the printed copy of the judgment and certified copy of the decree and importantly the subsequent appeal was well within the period of limitation calculated on RCR.248/09 -9- the basis of the certified copy of the decree. We feel that it is the judgment of Thomas, J. in Thatha v. Paru, 1985 KLT 1069 and that of the Division Bench in Joint Agrl. Marketing Advisor v. Baby, 1982 KLT 850 which offers better guidance for answering the issues correctly. The judgment of the Division Bench is to the effect that a carbon copy issued to a party under Rule 239(3) of the Civil Rules of Practice will be sufficient for the purposes of filing appeal and period of limitation should be reckoned with reference to the carbon copy even if subsequently the party has obtained a regular certified copy. Justice Thomas in Thatha v. Paru, 1985 KLT 1069 noticed the distinction between carbon copies issued under Rule 239(3) of Civil Rules of Practice and regular certified copies. The learned Judge relies on the judgment of the Division Bench in Joint Agrl. Marketing Advisor v. Baby, 1982 KLT 850 and holds that for all practical purposes including the purpose of preferring appeal, carbon copy is as good as a regular certified copy. Carbon copies issued RCR.248/09 -10- under Rule 239(3) are copies duly certified by the court and enjoys presumptions under Section 79 of the Evidence Act regarding the genuineness of the copy as a copy of the original. It is very clear to us also that for all practical purposes the carbon copy issued to the original tenant in this case on the basis of an oral request and urgent application submitted immediately after the order was passed by the Rent Control Court for the specific purpose of preferring an appeal is as good as any other certified copy on the basis of which the appeal could have been preferred. The one distinction that is always noticed between carbon copies and regular certified copies is that regular certified copies will have appended to them table of costs prepared on the basis of cost statements which are given to the court by the party only within a period of seven days from the date of the judgment or order. This is a case where the original tenant was issued with a carbon copy for the purpose of preferring the appeal and he did prefer the RCR.248/09 -11- appeal. In such a situation, the question of limitation is to be answered on the basis of the carbon copy and not on the basis of the certified copy subsequently produced. The position could have been different if the original tenant did not prefer any appeal on the basis of the carbon copy that was issued to him and waited till he obtained the certified copy and preferred the appeal on the strength of the certified copy. 7. The argument of Mr. Gopakumaran Nair that the court below could have granted some time to prefer an application for condonation of delay though attractive cannot be accepted in this case. This is because evidently there was nobody before the court below when the impugned order was passed as admittedly the appellant was dead and gone. We answer both the legal questions in favour of the respondents. According to us, the appeal was barred by limitation and the court below was correct in its view that the appeal was liable to be rejected as barred. RCR.248/09 -12- 8. At the same time, we have another good reason to set aside the impugned order. We notice as already indicated, at the time when the impugned order was passed by the learned Appellate Authority the appellant was dead and gone and the impugned judgment in that way is a judgment passed against a dead party. We set aside the impugned judgment on that reason and remit the RCA back to the Rent Control Appellate Authority. However, this will be subject to certain conditions. 1) The rent payable for the building will stand tentatively re-fixed with effect from 1-1-2011 at Rs.1000/per mensem. This re-fixation is tentative and it is open to either party to move the Rent Control Court for fixation of fair rent under section 5. 2) The revision petitioners shall pay a sum of Rs.2500/as cost to the landladies through the landladies' counsel in this court within three weeks from today. - 3) The revision petitioner shall pay equal amount to the RCR.248/09 **==> picture [21 x 9] intentionally omitted <==** Kerala High Court Legal Services Committee also within the same period. 4) The order of remand which we have passed will become operative only if the Appellate Authority notices payment of both the above amounts on time and an assurance filed by the revision petitioners that they will pay rent at the rate of Rs.1000/- per mensem till fair rent is fixed regularly with effect from 1-1-2011. 5) Once this judgment becomes operative it will be open to the revision petitioners to get themselves impleaded in the rent control appeal and there will be a direction to the Rent Control Appellate Authority to consider and dispose of the appeal on merits at the earliest. ## **(PIUS C.KURIAKOSE, JUDGE)** ## **(P.S. GOPINATHAN, JUDGE)** ksv/-