Velichikulangara Abdul Asees v. Chelakkad Srajul Huda Dars (R.C.RevNos.116 of 2022 and 125 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 20[TH] DAY OF JULY 2022 / 29TH ASHADHA, 1944** ## **R.C.REV.NO.116 OF 2022** **AGAINST THE JUDGMENT DATED 08.04.2022 IN R.C.A.NO.48 OF 2021 ON THE FILE OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE, WHICH WAS AN APPEAL FROM THE ORDER DATED 02.09.2019 IN R.C.I.A NO.341 OF 2019 IN R.C.P.NO.13 OF 2017 ON THE FILE OF THE RENT CONTROL COURT(MUNSIFF OF PERAMBRA), KOZHIKODE** ## **REVISION PETITIONER:** **VELICHIKULANGARA ABDUL ASEES AGED 62 YEARS S.O.KUNHAMMED HAJEE, AGED 62 YEARS, ERAVATTUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA - 673 525 BY ADVS. G.RANJU MOHAN M.SANTHI (K/868/2011)** ## **RESPONDENT:** **CHELAKKAD SRAJUL HUDA DARS, MADDRASSA REPRESENTED BY ITS PRESIDENT, SHAFEEQ THANGAL, AGED ABOUT 44 YEARS, S.O.T.K.HASHIM KOYA THANGAL, THACHAMKUNNATH HOUSE, KUTTIPRAM AMSOM, CHELAKKAD DESOM, VATALARA TALUK, KOZHIKODE DISTRICT, KERALA STATE, PIN-673506, PIN - 673506 BY ADVS. ZUBAIR PULIKKOOL(K/1214/1995) (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20.07.2022, ALONG WITH R.C.Rev.NO.125/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.R.Nos.116 & 125 of 2022 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 20[TH] DAY OF JULY 2022 / 29TH ASHADHA, 1944** **R.C.REV.NO.125 OF 2022** **AGAINST THE JUDGMENT DATED 08.04.2022 IN R.C.A NO.47 OF 2021 ON THE FILE OF RENT CONTROL APPELLATE AUTORITY, KOZHIKODE, WHICH WAS AN APPEAL FROM THE ORDER DATED 02.09.2019 IN R.C.I.A NO.340 OF 2019 IN R.C.P.NO.13 OF 2017 ON THE FILE OF THE RENT CONTROL COURT(MUNSIFF OF PERAMBRA) KOZHIKODE** ## **REVISION PETITIONERS:** **VELICHIKULANGARA ABDUL ASEES AGED 62 YEARS S.O.KUNHAMMED HAJEE, AGED 62 YEARS, ERAVATTUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA - 673 525 BY ADVS. G.RANJU MOHAN M.SANTHI (K/868/2011)** ## **RESPONDENTS:** **CHELAKKAD SRAJUL HUDA DARS, MADDRASSA, REPRESENTED BY ITS PRESIDENT, SHAFEEQ THANGAL, AGED ABOUT 44 YEARS, S/O.T.K.HASHIM KOYA THANGAL, THACHAMKUNNATH HOUSE, KUTTIPRAM AMSOM, CHELAKKAD DESOM, VATALARA TALUK, KOZHIKODE DISTRICT, KERALA STATE, PIN-673506. BY ADV. ZUBAIR PULIKKOOL(K/1214/1995) (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20.07.2022, ALONG WITH R.C.Rev.NO.116 OF 2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.R.Nos.116 & 125 of 2022 ## **O R D E R** ## Ajithkumar, J This Rent Control Revision petitions under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 are filed by the respondent-tenant in R.C.P.No.13 of 2017 on the file of the Rent Control Court(Munsiff), Perambra. He challenges the order of the Rent Control Appellate Authority(District Judge), Kozhikode in I.A No.1 of 2022 in RCA No.48 of 2021 and also the consequent dismissal of the appeal. 2. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent who filed a caveat. 3. R.C.P No.13 of 2017 was filed by the respondent seeking eviction of the petitioners from the petition schedule premises. The R.C.P was allowed ex parte on 30.11.2017 ordering eviction of the petitioner. He filed IA No.341 of 2019 to set aside the ex parte order and also I.A. No.340 of 2019 seeking to condone the delay of 207 days in filing the former application. The respondent had resisted those applications by filing objections. The Rent Control Court after considering the 4 ## R.C.R.Nos.116 & 125 of 2022 matter in detail dismissed the applications essentially on the ground that Section 5 of the Limitation Act, 1963 was not applicable to the proceedings before the Rent Control Court. That view was taken by following the decision in **Ratheesh v. A.M Chacko and others [2018 (4) KLT 814]** . 4. It is seen that the petitioner has filed an original petition O.P.(RC) No.168 of 2019 before this court alleging that even before furnishing him with a certified copy of the said order, steps to effect delivery were being taken. That original petition was, however, dismissed on 13.09.2021 by recording the submission of the learned counsel for the petitioner that the matter has become infructuous since a copy of the order was already furnished. It was thereafter, that the petitioner filed RCA No.48 of 2021 along with IA No.1 of 2021 before the Appellate Authority. There was a delay of 710 days in filing the appeal. So he filed I.A.No.1 of 2021 seeking to condone the delay for the reasons stated in the affidavit filed in support of that I.A. The Appellate Authority examined the petitioner as PW1 and received in evidence Exts. A1 to A3, which are medical records relating to the treatment the petitioner for 3 months from 5 R.C.R.Nos.116 & 125 of 2022 5.7.2018. After considering the evidence and hearing both sides, IA No.1 of 2021 was dismissed holding that the delay was not properly explained. Resultant, R.C.A No.48 of 2021 was also dismissed. 5. The learned counsel appearing for the petitioner would submit that there occurred delay, not due to the laches on the part of the petitioner. However, the Rent Control Court dismissed IA Nos.340 and 341 of 2019 taking note of the law then in vogue that Section 5 of the Limitation Act does not apply to the proceedings under the Kerala Buildings (Lease and Rent Control) Act. That view taken by this Court in **Ratheesh v. A.M Chacko** (supra) was overruled in **Hamsa.K.K. and others v. Athikottu Snehaletha and others [2020 (6) KLT 722]** . It is therefore contended that the Appellate Authority should have taken that into account and enabled the petitioner to contest the R.C.P on merits. But it is alleged that the Appellate Authority without appreciating the matter properly, dismissed the application to condone the delay in filing RCA No.48 of 2021. 6. PW1 had deposed before the Appellate Authority about the reasons for the delay. However, the Appellate 6 ## R.C.R.Nos.116 & 125 of 2022 Authority did not believe him and proceeded to dismiss I.A No. 1 of 2021. The learned counsel appearing for the respondent would contend that the attempt of the petitioner is to protract the matter by stating one or the other reasons and hence the reasons stated by PW1 before the Appellate Court cannot be given much importance. It is also contended that rent for a considerable period is in arrears and without making payment of such arrears of rent, the petitioner has been taking convenient steps with the sole object of continuing on the premises. 7. 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 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 7 R.C.R.Nos.116 & 125 of 2022 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. 8. 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 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. 9. In **Collector, Land Acquisition v. Katiji [(1987) 2** 8 ## R.C.R.Nos.116 & 125 of 2022 **SCC 107]** , in the context of Section 5 of the limitation Act, 1963, 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. ## 10. In **Esha Bhattacharjee v. Raghunathpur Nafar** **Academy [(2013) 12 SCC 649]** 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 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. Para.21 of the judgment reads thus; “21. From the aforesaid authorities the principles that can broadly be culled out are: 9 R.C.R.Nos.116 & 125 of 2022 21.1 There should be a liberal, pragmatic, justiceoriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2 The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3 Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4 No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5 Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6 It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 10 R.C.R.Nos.116 & 125 of 2022 21.7 The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8 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. 21.9 The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10 If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11 It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 11 R.C.R.Nos.116 & 125 of 2022 21.12 The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13 The State or a public body or an entity representing a collective cause should be given some acceptable latitude.” 11. In **Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC 34]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party 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 **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 [(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 prejudice, calls for a liberal 12 R.C.R.Nos.116 & 125 of 2022 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. 12. In the light of the principle of law laid down in the aforesaid decisions what requires to decide is whether or not there was sufficient cause for the delay in filing the appeal. Having considered the materials on record and heard the learned counsel on either side, we are of the view that the Appellate Authority did not properly appreciate the evidence and materials on record and decide that question in its proper perspective. Of course, there was a delay of 710 days in filing the appeal. It is to be noted that in the meantime, the petitioner had filed O.P.(RC) No.168 of 2019 before this Court in the matter for which he had to spend some time. 13. Taking all such matters into account, we are of the view that the delay in filing RCA No.48 of 2021 should have been condoned by the Appellate Authority. But while doing so, the fact that rent for a considerable period is remained unpaid cannot be lost sight of. In the circumstances, we allow these Revision Petitions. 13 ## R.C.R.Nos.116 & 125 of 2022 Order dated 8.4.2022 in I.A. No. 1 of 2021 is set aside. That I.A. as well as R.C.A. No. 47 of 2021 is allowed on the condition that the petitioner shall deposit or pay the entire arrears of rent within a period of one month from today. On such payment, the Rent Control Court will restore R.C.P.No.13 of 2017 on file and proceed with in accordance with the law. ## **Sd/ANIL K.NARENDRAN JUDGE** **Sd/-** **P.G. AJITHKUMAR JUDGE** PV