V. V. Abdul Nazar v. K. V. Muhammed Mohaseen

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 14[TH] DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943** **R.C.REV. NO.84 OF 2021** **AGAINST THE JUDGMENT OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), KOZHIKODE IN RCA NO.134 OF 2019 DATED 30.01.2021 AND THE ORDER IN RCP 128/2018 DATED 30.11.2018 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF-I), KOZHIKODE** ## **REVISION PETITIONER/S:** **V. V. ABDUL NAZAR, AGED 59 YEARS, S/O. MOOSA HAJI, SHABANA MANZIL, THOTTUMARAM, POKKUNNU P.O., VALAYANAD, KOZHIKODE.** **BY ADV T.V.NEEMA** ## **RESPONDENT/S:** **K.V. MUHAMMED MOHASEEN, AGED 48 YEARS, S/O. ABDU RAHIMAN KOYA, PUTHIYAPONMANICHINDAKATHU, NAGARAM AMSOM, DESOM, KOZHIKODE - 673 003.** **BY ADVS. K.M.FIROZ M.SHAJNA** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.REV. NO.84 OF 2021 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the respondent-tenant in R.C.P. No.128 of 2018 on the file of the Rent Control Court (Principal MunsiffI), Kozhikode, a petition filed by the respondent hereinlandlord under Sections 11(2)(b), 11(3), 11(4)(i) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 seeking eviction of the tenant from the petition schedule shop room. Though the tenant entered appearance, no counter affidavit was filed in R.C.P.No.128 of 2018. The landlord was examined as PW1 and Exts.A1 and A2 were marked on his side. The report and sketch of the Advocate Commissioner were marked as Exts.C1 and C1(a). 2. The Rent Control Court, by the order dated 30.11.2018, allowed R.C.P.No.128 of 2018. Paragraphs 3 to 5 and also the operative portion of that order read thus; - “3. Respondent entered appearance. No counter was filed. 4. On the side of the petitioner, he himself was examined as PW1. Exts.A1 and A2, C1 series were marked. 5. Heard the counsel for the petitioner. In the result, petition is allowed as follows: R.C.REV. NO.84 OF 2021 3 1. Respondent is directed to put the petitioner in vacant possession of the petition schedule shop room within one month from the date of this order under Sections 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act. 2. The order passed under Section 11(2)(b) of the Act is subject to Section 11(2)(c) of the Act. 3. Respondent is directed to pay costs of the proceedings to petitioner.” (underline supplied) 3. The tenant filed I.A.No.552 of 2019, seeking an order to set aside the ex parte order of eviction dated 30.11.2018 in R.C.P.No.128 of 2018, along with I.A.No.551 of 2019 seeking an order to condone the delay of 48 days in filing I.A.No.552 of 2019. The Rent Control Court, by a common order dated 10.07.2019, dismissed I.A.No.551 of 2019 for condonation of delay, as not maintainable, relying on the decision of a Division Bench of this Court in **Ratheesh v. A.M.** **Chacko [2018 (5) KHC 35]** , wherein it was held that the provisions under the Limitation Act, 1963 are not applicable in proceedings before the Rent Control Court under the Kerala Buildings (Lease and Rent Control) Act, 1965. On account of dismissal of I.A.No.551 of 2019, the Rent Control Court R.C.REV. NO.84 OF 2021 4 dismissed I.A.No.552 of 2019 for setting aside the ex parte order of eviction, as barred by limitation. 4. Challenging the common order of the Rent Control Court dated 10.07.2019 in I.A.Nos.551 and 552 of 2019 in R.C.P.No.128 of 2018, the tenant filed R.C.A. No.134 of 2019 before the Rent Control Appellate Authority, Kozhikode, along with I.A.No.2492 of 2019 for condonation of delay of 325 days. The Appellate Authority, by order dated 30.01.2021 [wrongly titled as judgment] dismissed I.A.No2492 of 2019 for default. The said order reads thus; “Petitioner and counsel are continuously absent, making representation through another. The settlement also not reported so far. Hence petition is dismissed for default.” Since I.A.No.2492 of 2019 stands dismissed for default, the Appellate Authority, by the judgment dated 30.01.2021, dismissed R.C.A.No.134 of 2019 as time barred. The said judgment reads thus; “I.A.No2492 of 2019 dismissed for default. Appeal is time barred and is dismissed accordingly.” 5. Feeling aggrieved by the order and judgment of the Appellate Authority dated 30.01.2021 in I.A.No.2492 of 2019 and R.C.A.No.134 of 2019 and also the order of the Rent R.C.REV. NO.84 OF 2021 5 Control Court dated 30.11.2018 in R.C.P.No.128 of 2018, the tenant has filed this Rent Control Revision, under Section 20 of the Act. 6. On 01.07.2021, when this Rent Control Revision came up for admission, this Court issued urgent notice on admission by speed post to respondent, returnable by 16.07.2021. In I.A.No.1 of 2021, this Court granted an interim stay of execution of the order of eviction in R.C.P.No.128 of 2018 of the Rent Control Court (Principal Munsiff-I), Kozhikode, for a period of one month. The said interim order, which was extended from time to time, is still in force. 7. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlord. 8. 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 R.C.REV. NO.84 OF 2021 6 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. 9. In **Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in **Rukmini Amma Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499]** the Apex Court reiterated that even the wider language of Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench agreed with the view of the Three-Judge Bench in **Rukmini Amma Saradamma** that the word ‘propriety’ does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it. 10. The Rent Control Court, by the order dated R.C.REV. NO.84 OF 2021 7 30.11.2018, allowed R.C.P.No.128 of 2018, and directed the tenant to put the landlord in vacant possession of the petition schedule shop room within one month from the date of this order, under Sections 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act. The tenant filed I.A.No.552 of 2019, seeking an order to set aside the ex parte order of eviction dated 30.11.2018 in R.C.P.No.128 of 2018, along with I.A.No.551 of 2019 seeking an order to condone the delay of 48 days in filing I.A.No.552 of 2019. The Rent Control Court, by a common order dated 10.07.2019, dismissed I.A.Nos.551 and 552 of 2019, relying on the decision of a Division Bench of this Court in **Ratheesh [2018 (5) KHC 35]** . 11. In **Ratheesh** , a Division Bench of this Court held that the provisions under the Limitation Act, 1963 are not applicable in proceedings before the Rent Control Court under the Kerala Buildings (Lease and Rent Control) Act, 1965. 12. In **Hamsa K.K. and others v. Athikottu Snehaletha and others [2020 (6) KHC 609]** a Full Bench of this Court held that the decision of the Division Bench in **Ratheesh** does not lay down the correct law. The Full Bench R.C.REV. NO.84 OF 2021 8 noticed that, the Kerala Buildings (Lease and Rent Control) Act, 1965 being a special and a local law does not expressly exclude the provisions of Limitation Act, 1963. Therefore, under normal circumstances, Section 5 of the Limitation Act, 1963 would apply to proceedings under the Rent Control Act, if the Rent Control Court is a 'court'. The Full Bench noticed that, in **Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker [(1995) 5 SCC 5]** the Apex Court had occasion to consider whether the Rent Control Appellate Authority under Section 18 of the Rent Control Act has the power to condone delay in filing appeal after the expiry of period of limitation or rather whether Section 29(2) of the Limitation Act would apply to such proceedings. After referring to the notification by which the District Judges having jurisdiction over the areas within which the provisions of the Rent Control Act have been extended were given the power of the Appellate Authorities, for the purpose of the said Act, and having found that the Appellate Authority is not a _persona designata_ , the Apex Court held that the Rent Control Appellate Authorities functions as a ‘court’. R.C.REV. NO.84 OF 2021 9 13. In **Hamsa K.K.** , the Full Bench noticed that, Section 3(1) of the Rent Control Act, which deals with constitution of Rent Control Courts, may at first blush give an impression that the intention of the legislature was to appoint a person as Rent Control Court. But, by virtue of the notification, SRO 390/1973, issued by the Government of Kerala, the Principal Munsiff and Additional Munsiff of a jurisdictional area is appointed as the Rent Control Court. Even in the case of Appellate Authorities under Section 18 of the Rent Control Act, there is a conferment of power to the District Judge to function as Appellate Authorities. Section 2 of the Kerala Civil Courts Act, 1957 deals with classification of subordinate civil courts. Therefore, when there is reference to Munsiff in Section 3(1) of the Rent Control Act, it would necessarily mean court of a Munsiff, just like that of a court of District Judge. Therefore, when a District Judge as referred in Section 18 of the Rent Control Act is considered as a court, the same principle applies when a Munsiff is appointed as a Rent Control Court. The Full Bench held that the appointment of a Munsiff as Rent Control Court is not as a _persona designata_ or a quasi judicial R.C.REV. NO.84 OF 2021 10 authority. The Full Bench, therefore, approved the judgment in **Abdul Rehiman v. Hameed Hassan Peruvad and others** **[1995 (2) KLT 794]** , as laying down the correct law, wherein, a learned Single Judge of this Court, after following **Mukri Gopalan** , held that the Rent Control Court is a ‘court’ and is not acting as _persona designata_ . 14. In **Hamsa K.K.** , the Full Bench noticed that, in **Om Prakash v. Ashwani Kumar Bassi [(2010) 9 SCC 183]** , when the Rent Controller appointed by the State Government was a member of Punjab Civil Services, it was held to be an appointment as a _persona designata_ , who would not be entitled to apply for the provisions of Section 5 of the Limitation Act. In that case, **Mukri Gopalan** was distinguished on facts, since in **Mukri Gopalan** , the District Judges were discharging the functions of the Appellate Authority and entitled to resort to Section 5 of the Limitation Act. The scheme of the Rent Control Act and the rules framed thereunder envisages speedy disposal of the cases pending before it. If the Legislature intended to exclude the provisions of the Limitation Act, being conscious of Section 29(2) of the R.C.REV. NO.84 OF 2021 11 said Act, could have expressly excluded the said provision. Having not done so, application of the Limitation Act has to be inferred. Therefore, the Full Bench held that, the Rent Control Court is not a _persona designata_ . The Rent Control Court is a court and in the absence of any express exclusion, Section 29(2) of the Limitation Act applies. Consequently, the Rent Control Court has the power to condone delay under Section 5 of the Limitation Act. Therefore, the decision of the Division Bench in **Ratheesh** does not lay down the correct law. 15. In view of the law laid down in the decision of the Full Bench in **Hamsa K.K. [2020 (6) KHC 609]** , the common order of the Rent Control Court dated 10.07.2019 dismissing I.A.No.551 of 2019 in R.C.P.No.128 of 2018 filed for condonation of delay of 48 days, as not maintainable, and I.A.No.552 of 2019 as barred by limitation, relying on the decision in **Ratheesh [2018 (5) KHC 35]** , cannot be sustained in law. 16. 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 R.C.REV. NO.84 OF 2021 12 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 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. 17. 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 R.C.REV. NO.84 OF 2021 13 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 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. 18. In **Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107 : AIR 1987 SC 1353]** , in the context of Section 5 of the Limitation Act, 1963, a Two-Judge Bench of 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 life-purpose for the existence of the institution of courts. 19. In **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** a Two-Judge Bench of 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 R.C.REV. NO.84 OF 2021 14 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 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. [See: Para.21] 20. In **Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC 34]** a Division Bench of this Court held that, though the expression 'sufficient cause' employed in Section 5 of the Limitation Act, 1963 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 **Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107]** , the concept of liberal 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 v. Raghunathpur Nafar Academy [(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 R.C.REV. NO.84 OF 2021 15 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. 21. In the instant case, as evident from the order of the Appellate Authority dated 30.01.2021 in I.A.No.2492 of 2019, though the learned counsel for the tenant was absent on 30.01.2021, when that interlocutory application was taken up for consideration, he was represented by another counsel. The question involved in R.C.A.No.134 of 2019, i.e., whether the Rent Control Court has the power to condone delay under Section 5 of the Limitation Act, is covered in favour of the tenant, by the decision of the Full Bench in **Hamsa K.K. [2020 (6) KHC 609]** . 22. In such circumstances, this Rent Control Revision is allowed by setting aside the judgment and order dated 30.01.2021 of the Rent Control Appellate Authority (District Judge), Kozhikode, in I.A.No.2492 of 2019 and R.C.A.No.134 of 2019. The appellate authority shall dispose of I.A.No.2492 of 2019 and R.C.A.No.134 of 2019 within a period of one R.C.REV. NO.84 OF 2021 16 month from the date of appearance of the parties. Based on the orders passed in that interlocutory application, the Appellate Authority shall consider R.C.A.No.134 of 2019 and finally dispose of the same within a further period of two months. 23. The learned counsel for the respondent-landlord would point out that the petitioner-tenant has kept in arrears the monthly rent of the petition schedule shop room. 24. Section 12(1) of the Act enjoins a tenant, against whom an application for eviction has been made by a landlord under Section 11, to pay to the landlord, or deposit with the Rent Control Court, 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 continue to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court, in order to contest that application for eviction before the Rent Control Court. Similarly, Section 12(1) of the Act enjoins a tenant, in order to prefer an appeal under Section 18 of the Act against any order made by the Rent Control Court on an R.C.REV. NO.84 OF 2021 17 application made by a landlord under Section 11, to pay the landlord, or deposits with the Appellate Authority, 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 Appellate Authority. 25. Therefore, it is for the respondent-landlord to file an application under Section 12 of the Act before the Rent Control Appellate Authority, which shall be dealt with appropriately by the Rent Control Court, after affording a reasonable opportunity to the tenant to file counter. Both parties shall appear before the Rent Control Appellate Authority, Kozhikode, on **29.10.2021** . ## **ANIL K.NARENDRAN, JUDGE** Sd/- ## **K. BABU, JUDGE** MIN