Vasan Health Care Private Limited v. Heleema Mohammed and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY ,THE 11TH DAY OF SEPTEMBER 2018 / 20TH BHADRA, 1940** **RCRev..No. 285 of 2018** **AGAINST THE ORDER DATED 04.08.2018 IN I.A. NO.4000 OF 2018 IN RCA 22/2018 of THE RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM** **AGAINST THE ORDER DATED 12.01.2018 IN RCA 3/2017 of THE RENT CONTROL COURT, ERNAKULAM** ## **REVISION PETITIONER/APPELLANT:** **VASAN HEALTH CARE PRIVATE LIMITED, NO.70 WESTMINISTER, 4TH FLOOR, DR.R.K SALAI, MYLAPORE, CHENNAI, TAMIL NADU, PIN-600004 REPRESENTED BY ITS GENERAL MANAGEROPERATIONS KERALA MR.V.BALAJI** ## **BY ADV. SHAJI CHIRAYATH** ## **RESPONDENTS/RESPONDENTS:** **1 HELEEMA MOHAMMED, AGED 68 YEARS, WIFE OF LATE MR.V.M MOHAMMED, RESIDINGAT BAITHUL,HAMD ALUVA WEST VILLAGE ALUVA P.O., ERNAKULAM-683101** **2 SHEREENA MOHAMMED, AGED 46 YEARS, DAUGHTER OF LATE MR.V.M.MOHAMMED, RESIDING AT BAITHUL HAMD, ALUVA WEST VILLAGE, ALUVA (P.O), ERNAKULAM, PIN- 683101.** **3 ZAINAD MOHAMMED, AGED 32 YEARS, DAUGHTER OF LATE MR.V.M.MOHAMMED, RESIDING AT BAITHUL HAMD, ALUVA WEST VILLAGE, ALUVA (P.O), ERNAKULAM, PIN- 683101.** **RCRev..No. 285 of 2018 & RCRev..No. 300 of 2018** **-:2:-** **4 SHABEER MOHAMMED, AGED 34 YEARS, SON OF LATE MR.V.M.MOHAMMED, RESIDING AT BAITHUL HAMD, ALUVA WEST VILLAGE, ALUVA (P.O), ERNAKULAM, PIN- 683101.** **5 SULEKHA THASNEEM, AGED 30 YEARS, WIFE OF MR.SHABEER MOHAMMED, RESIDING AT BAITHUL HAMD, ALUVA WEST VILLAGE, ALUVA (P.O), ERNAKULAM, PIN- 683101.** - **6 SIRAJ MOHAMMED, AGED 42 YEARS, SON OF LATE MR.V.M.MOHAMMED, RESIDING AT CHAMBAKASSERY KADAVU, ALUVA WEST VILLAGE, ALUVA (P.O), ERNAKULAM, PIN- 683101.** - **7 RAHNA KASSIM, AGED 41 YEARS, WIFE OF MR.SHABEER MOHAMMED, RESIDING AT CHAMBAKASSERY KADAVU, ALUVA WEST VILLAGE, ALUVA (P.O), ERNAKULAM, PIN- 683101.** - **8 HISHAM SAIFUDDIN, AGED 28 YEARS, SON OF MR.SHEREENA MOHAMMED, RESIDING AT BAITHUL HAMAD, ALUVA WEST VILLAGE, ALUVA (P.O), ERNAKULAM, PIN- 683101.** **BY ADVS. SRI. RADHAKRISHNAN T.K., CAVEATOR SRI.T.K.RADHAKRISHNAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11.09.2018, ALONG WITH RCRev..300/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No. 285 of 2018 & RCRev..No. 300 of 2018** **-:3:-** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY ,THE 11TH DAY OF SEPTEMBER 2018 / 20TH BHADRA, 1940** ## **RCRev..No. 300 of 2018** **AGAINST THE ORDER DATED 04.08.2018 IN I.A. NO.4000 OF 2018 IN RCA 22/2018 of THE RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM** **AGAINST THE ORDER DATED 12.01.2018 IN RCA 3/2017 of THE RENT CONTROL COURT, ERNAKULAM** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **VASAN HEALTHCARE PRIVATE LIMITED, NO.70, WESTMINISTER, 4TH FLOOR, DR. R.K SALAI, MYLAPORE, CHENNAI, THAMILNADU, PIN-600 004, REP BY ITS GENERAL MANAGER- OPERATIONS KERALA MR.V. BALAJI** **BY ADVS.SHAJI CHIRAYATH** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** **1 HELEEMA MOHAMMED, AGED 68 YEARS,W/O. LATE V.M. MOHAMMED RESIDING AT BAITHUL HAMD, ALUVA WEST VILLAGE, ALUVA P.O.,ERNAKULAM, PIN-6830101. 2 SHEREENA MOHAMMED, AGED 46 YEARS DAUGHTER OF LATE MR. V.M. MOHAMMED, RESIDING AT BAITHUL HAMD, ALUVA WEST VILLAGE, ALUVA P.O., ERNAKULAM , PIN -686101.** **3 ZAINAD MOHAMMED, AGED 32 YEARS, DAUGHTER OF LATE V.M. MOHAMMED RESIDING AT BAITHUL HAMD, ALUVA WEST VILLAGE, ALUVA P.O., ERNAKULAM PIN 683101.** **RCRev..No. 285 of 2018 & RCRev..No. 300 of 2018** **-:4:-** - **4 SHABER MOHAMMED, AGED 34 YEARS,** **S/O.OF LATE V.M. MOHAMMED RESIDING AT BAITHUL HAMD, ALUVA WEST VILLAGE, ALUVA P.O., ERNAKULAM PIN 683101.** - **5 SULEKHA THASNEEM, AGED 30 YEARS,** **WIFE OF MR. SHABEER MOHAMMED RESIDING AT BAITHUL HAMD, ALUVA WEST VILLAGE, ALUVA P.O., ERNALUKAM PIN 683101.** - **6 SIRAJ MOHAMMED, AGED 42 YEARS,** **SON OF LATE V.M. MOHAMMED, RESIDING AT CHAMBAKASSERY KADAVU, ALUVA WEST VILLAGE, ALUVA P.O., ERNAKULAM PIN 683101.** - **7 RAHNA KASSIAM, AGED 41 YEARS,** **WIFE OF SHABEER MOHAMMED, RESIDING AT CHAMBAKASSERY KADAVU, ALUVA WEST VILLAGE, ALUVA P.O., ERNAKULAM, PIN 683101.** - **8 HISHAM SAIFUDDIN, AGED 28 YEARS** **SON OF MR. SHEREENA MOHAMMED RESIDING AT BAITHUL HAMD, ALUVA WEST VILLAGE, ALUVA P.O., ERNAKULAM PIN 683101** **BY ADVS.SMT.CHITHRA R.SHENOY** **SMT.K.L.SREEDEVI SMT.S.SREEDEVI(ALP) SRI.T.K.RADHAKRISHNAN SRI.T.R.HARIKRISHNAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11.09.2018, ALONG WITH RCRev..285/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No. 285 of 2018 & RCRev..No. 300 of 2018** **-:5:-** ## **O R D E R** ## **[ RCRev. 285/2018,RCRev..300/2018 ]** ## **K. Harilal, J.** Since the parties and the matter in issue involved in these rent control revisions are common, these revision are heard together and disposed of accordingly. ## **R.C.R. No.285 of 2018** 2. This revision has been filed, challenging the order passed in Interlocutory Application No.4000 of 2018 in R.C.A. No.22 of 2018 on the files of the Rent Control Appellate Authority. The said application has been filed under Section 5 of the Limitation Act, 1963, to condone the delay of 128 days in filing the appeal. 3. According to the revision petitioner, the revision petitioner was not a party in Rent Control Petition and the revision petitioner came to know the dismissal of the Rent Control Petition on 16.07.2018, **RCRev..No. 285 of 2018 & RCRev..No. 300 of 2018** **-:6:-** when the Amin appointed by the Execution Court directed him to give vacant possession of the tenanted premises, to the respondents in execution of the order of eviction passed by the Rent Control Court. This is the reason shown for condoning the delay. 4. The respondents resisted the said application, contending that the revision petitioner was fully aware of the order of eviction passed in R.C.P. No.3 of 2017 before 16.07.2018. 5. Both parties adduced evidence and after considering the evidence on record, the Appellate Authority dismissed the said Interlocutory Application, on a finding that the revision petitioner was aware of the order eviction passed in R.C.P. No.3 of 2017 before 16.07.2018. So, the cause of delay averred in the petition lacks _bona fides._ The legality, propriety and correctness of the aforesaid finding, whereby the Appellate Authority dismissed the aforesaid application to condone the delay, are **RCRev..No. 285 of 2018 & RCRev..No. 300 of 2018** **-:7:-** assailed in this revision. 6. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. 7. Going by the impugned order, it could be seen that the sole reason stated for the delay is that the revision petitioner came to know of the proceedings only on 16.07.2018, when the Amin appointed by the Execution Court directed him to give vacant possession of the tenanted premises. The respondents resisted the said contention and produced documentary evidence to falsify the aforesaid contention. It appears that the Appellate Authority has meticulously gone through the documents produced by the respondents more particularly, document Nos.6 to 11 and arrived at a finding that those documents would prove that the revision petitioner was fully aware of the pendency of R.C.P. No.3 of 2017 and the order of eviction passed therein before 16.07.2018, as contended by the **RCRev..No. 285 of 2018 & RCRev..No. 300 of 2018** ## **-:8:-** respondents. So also, it was found that the impugned order would show that the revision petitioner has applied for copy of application of the order, as early as on 12.01.2018 through the same counsel, who filed the present appeal and the copy was delivered on 21.01.2018. Thus, he was fully aware of the order of eviction from 21.01.2018 onwards. But, the appeal was filed with a delay of 128 days though he was fully aware of the order of eviction before 16.07.2018, as contended by the respondents. We do not find fault with the said observation made by the Appellate Authority on the basis of Exts.A6 to A11. 8. But, we are inclined to take a different view, in a different perspective, in the light of the decision laid down by the Supreme Court in _**Naubat Ram v. Addl. Dist. Judge- II, Moradabad**_ [AIR 1987 SC 1352]. Adjudication of a lis on merits is more desirable than dismissal on technicality and ordinarily a litigant does not stand to benefit by **RCRev..No. 285 of 2018 & RCRev..No. 300 of 2018** **-:9:-** lodging an appeal late. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of _mala fides_ , unless it is proved otherwise. A litigant does not stand to benefit by resorting to delay, as it is a serious risk also. In the aforesaid decision, the Hon'ble Supreme Court observed that, when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred rather than dismissal on technical consideration. 9. In the instant case, admittedly, in paragraph 2 of the impugned judgment itself, the Appellate Authority observed that the revision petitioner was not a party in the rent control petition. While considering the application to condone the delay in filing appeal, filed by a party, who was not a party in the rent control petition, liberal view is the general rule. In the instant case, there is no **RCRev..No. 285 of 2018 & RCRev..No. 300 of 2018** ## **-:10:-** material to prove that the revision petitioner willfully caused delay in filing the appeal with a _mala fide_ intention. 10. In the above view, we are inclined to set aside the impugned order dismissing the petition to condone the delay and we do so. Consequently, the delay is condoned and thereby I.A. No.4000 of 2018 in R.C.A. No.22 of 2018 will stand allowed. ## **R.C.R. No.300 of 2018** 11. This revision was filed, challenging the judgment dismissing R.C.A. No.22 of 2018 on a finding that I.A. No.4000 of 2018, the petition filed to condone the delay, has been dismissed by a separate order. Now, we have set aside the said order and the delay stands condoned. Consequently, the order passed in R.C.A. No.22 of 2018 also will stand set aside and the said appeal( R.C.A. No.22 of 2018) is remitted back to the Rent Control Appellate Authority, for consideration and disposal on merits. **RCRev..No. 285 of 2018 & RCRev..No. 300 of 2018** **-:11:-** 12. However, the Rent Control Appellate Authority shall dispose of the appeal, at the earliest, at any rate, within a period of three months from the date of receipt of a copy of this order. These revisions are allowed accordingly. All pending interlocutory applications will stand closed. ## **Sd/-** ## **K.HARILAL** **JUDGE** **Sd/-** **ANNIE JOHN** **JUDGE** DST //True copy// P.A. To Judge