IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
MONDAY, THE 4TH DAY OF JULY 2022 / 13TH ASHADHA, 1944
RCREV. NO. 33 OF 2021
AGAINST THE JUDGMENT DATED 26.09.2019 IN R.C.A.NO.101/2011
ON THE FILES OF THE IV ADDITIONAL RENT CONTROL APPELLATE
AUTHORITY, THRISSUR
REVISION PETITIONERS/APPELLANTS/RESPONDENTS:
1 VENUGOPAL (LATE), AGED 65 YEARS
S/O VETTATH KOTTILINGAL NARAYANAN,
DECEASED ON 07/11/2019,
REPRESENTED BY THE LEGAL HEIRS.
2 CHANDRIKA VENUGOPALAN, AGED 63 YEARS
W/O LATE VENUGOPALAN,
KOTTILINGAL HOUSE, KANDANASERRY VILLAGE,
KANDANASERRY DESOM, THALAPILLY TALUK,
THRISSUR DISTRICT-680102.
3 VIBEESH, AGED 40 YEARS
S/O LATE VENUGOPALAN,
KOTTILINGAL HOUSE, KANDANASERRY VILLAGE,
KANDANASERRY DESOM, THALAPILLY TALUK,
THRISSUR DISTRICT-680102.
4 VIJEESH, AGED 38 YEARS
S/O LATE VENUGOPALAN,
KOTTILINGAL HOUSE, KANDANASERRY VILLAGE,
KANDANASERRY DESOM, THALAPILLY TALUK,
THRISSUR DISTRICT-680102.
5 VINEESH, AGED 36 YEARS
S/O LATE VENUGOPALAN,
KOTTILINGAL HOUSE, KANDANASERRY VILLAGE,
KANDANASERRY DESOM, THALAPILLY TALUK,
THRISSUR DISTRICT-680102.
RCREV. NOs. 33 & 37 OF 2021
2
BY ADVS.
V.V.JOY
SMT.LEKSHMI P. NAIR
RESPONDENT/RESPONDENT/PETITIONER:
HRISHIKESHAM TOURIST HOME
GURUVAYOOR REP. BY MG. PARTNER, MADHAVAN,
S/O. VALIYARA PADINJAREKKARA RAMAN,
KANDANASERRY VILLAGE, KANDANASERRY DESOM,
THALAPILLY TALUK, THRISSUR DISTRICT.
BY ADVS.
SRI.N.SUKUMARAN (SR.)
SRI.S.SHYAM
SRI.V.K.BALACHANDRAN
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD
ON 04.07.2022, ALONG WITH R.C.R.NO.37/2021, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
RCREV. NOs. 33 & 37 OF 2021
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
MONDAY, THE 4TH DAY OF JULY 2022 / 13TH ASHADHA, 1944
RCREV. NO. 37 OF 2021
AGAINST THE JUDGMENT DATED 26.09.2019 IN
R.C.A.NO.136/2011 ON THE FILES OF THE IV ADDITIONAL RENT
CONTROL APPELLATE AUTHORITY, THRISSUR
I.A.NOS.5064/2010 & 5065/2010 IN RCP NO.142/2005 ON THE
FILES OF THE RENT CONTROL COURT, CHAVAKKAD
REVISION PETITIONERS/APPELLANTS/PETITIONERS:
1 CHANDRIKA VENUGOPALAN, AGED 63 YEARS
W/O. LATE VENUGOPALAN, KOTTILINGAL HOUSE,
KANDANASERRY VILLAGE, KANDANASERRY DESOM,
THALAPILLY TALUK, THRISSUR DISTRICT - 680 102.
2 VIBEESH, AGED 40 YEARS
S/O. LATE VENUGOPALAN, KOTTILINGAL HOUSE,
KANDANASERRY VILLAGE, KANDANASERRY DESOM,
THALAPILLY TALUK, THRISSUR DISTRICT - 680 102.
3 VIJEESH, AGED 38 YEARS
S/O. LATE VENUGOPALAN, KOTTILINGAL HOUSE,
KANDANASERRY VILLAGE, KANDANASERRY DESOM,
THALAPILLY TALUK, THRISSUR DISTRICT - 680 102.
4 VINEESH, AGED 36 YEARS
S/O. LATE VENUGOPALAN, KOTTILINGAL HOUSE,
KANDANASERRY VILLAGE, KANDANASERRY DESOM,
THALAPILLY TALUK, THRISSUR DISTRICT - 680 102.
BY ADV V.V.JOY
RCREV. NOs. 33 & 37 OF 2021
4
RESPONDENT/RESPONDENT/RESPONDENT:
HRISHIKESHAM TOURIST HOME,
GURUVAYOOR, REP. BY MG. PARTNER, MADHAVAN,
S/O. VALIYARA PADINJAREKKARA RAMAN,
KANDANASERRY VILLAGE, KANDANASERRY DESOM,
THALAPILLY TALUK, THRISSUR DISTRICT.
BY ADVS.
SRI.N.SUKUMARAN (SR.)
SRI.V.K.BALACHANDRAN
SRI.S.SHYAM
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 04.07.2022, ALONG WITH R.C.R.NO.33/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RCREV. NOs. 33 & 37 OF 2021
5
ORDER
Anil K. Narendran, J.
The 1st petitioner in R.C.R.No.33 of 2021 is the respondent-tenant in R.C.P.No.142 of 2005 on the file of the Rent Control Court (Munsiff), Chavakkad, which is one filed by the respondent herein-landlord seeking eviction of tenant from the petition schedule shop room. Before the Rent Control Court, the tenant entered appearance and filed a counter, opposing the order of eviction sought for. On the side of the landlord, its Managing Partner was examined as PW1. There was no cross examination by the tenant. The Rent Control Court passed an ex-parte order of eviction on 08.10.2007. The tenant filed an interlocutory application to set aside the ex-parte order of eviction. That application was allowed by the order dated 17.10.2007, on payment of a cost of Rs.500/-. But the cost was not paid and as a result, that application was dismissed. The tenant took up the matter before the Rent Control Appellate Authority, Thrissur. That appeal was allowed RCREV. NOs. 33 & 37 OF 2021 6 and the parties were directed to appear before the Rent Control Court on 30.07.2010. However, the tenant failed to appear before the Rent Control Court on that day and he was again set ex-parte, by the order dated 30.07.2010. The tenant filed I.A.No.5065 of 2010, an application to set aside the ex- parte order of eviction, along with I.A.No.5064 of 2010 for condonation of delay of 62 days. The landlord opposed that application by filing counter. The tenant was examined as RW1. After considering the rival contentions, the Rent Control Court, by the order dated 29.03.2011 dismissed both the applications, with cost. Challenging the said order of the Rent Control Court, the tenant filed R.C.A.Nos.101 of 2011 and 136 of 2011 before the IV Additional Rent Control Appellate Authority, Thrissur. Those appeals ended in dismissal by the judgment dated 26.09.2019, which is under challenge in these Rent Control Revisions filed under Section 20 of the Act.
2. On 09.02.2022 when R.C.R.No.33 of 2021 came up for admission, this Court admitted the matter on file. In I.A.No.1 of 2021 in R.C.R.No.33 of 2021, this Court granted RCREV. NOs. 33 & 37 OF 2021 7 an interim order staying all further proceedings in R.C.A.No.101 of 2011 for a period of four months.
3. On 16.02.2021, when R.C.R.No.37 of 2021 came up for admission, this Court admitted the matter on file. In I.A.No.1 of 2021 in R.C.R.No.37 of 2021, this Court granted an interim order staying all further proceedings in R.C.A.No.136 of 2011 for a period of two months.
4. After the dismissal of R.C.A.Nos.101 of 2011 and 136 of 2011, the tenant died and his legal heirs have filed these Rent Control Revisions, who are arrayed as petitioners 2 to 5.
5. Heard the learned counsel for the petitioners- tenants and also the learned counsel for the respondent- landlord.
6. The issue that arises for consideration in these Rent Control Revisions is as to whether any interference is warranted, on the orders of the authorities below, whereby the applications filed by the original tenant to set aside the ex-parte order and also for condonation of delay stand RCREV. NOs. 33 & 37 OF 2021 8 dismissed.
7. The learned counsel for the petitioners would point out that the extent of delay in filing the application for condonation of delay was only 62 days. Valid reasons have been stated in the affidavit filed in support of the application for condonation of delay, for the delay of 62 days.
8. On the other hand, the learned counsel for the respondent would point out that the tenant was originally set ex-parte in the year 2007 and it is thereafter that, for the second time he was set ex-parte in the year 2019.
9. 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 RCREV. NOs. 33 & 37 OF 2021 9 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.
10. 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 RCREV. NOs. 33 & 37 OF 2021 10 required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay.
11. 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.
12. 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 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 RCREV. NOs. 33 & 37 OF 2021 11 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]
13. 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 prejudice, calls for a liberal delineation. An application for condonation of delay should be drafted with careful concern RCREV. NOs. 33 & 37 OF 2021 12 and no court shall deal with such an application in a routine manner.
14. The Rent Control Petition is of the year 2005. The tenant was originally set ex-parte in the year 2007. Thereafter, for the second time he was set ex-parte in the year 2019. Though the extend of delay in filing the application to set aside the ex-parte order of eviction is only 62 days, the default on the part of the tenant has caused prejudice to the landlord, on account of the delay in final disposal of R.C.P.No.142 of 2005.
15. Viewed in the light of the law laid in the decisions referred to supra, we find that the legal heirs of the tenants can be given an opportunity to contest the Rent Control Petition on merits, however, on payment of a cost of Rs.10,000/- to the respondent-landlord.
In such circumstances, these Rent Control Revisions are disposed of on payment of a cost of Rs.10,000/- by the petitioners-tenants, payable to the respondent-landlord, within a period of three weeks from the date of receipt of a certified copy of this order. On such payment, 62 days delay in filing RCREV. NOs. 33 & 37 OF 2021 13 I.A.No.5064 of 2010 will stand condoned and I.A.No.5065 of 2010 will stand allowed, thereby setting aside the ex-parte order of eviction in R.C.P.No.142 of 2005. Thereafter, the Rent Control Court shall finally dispose of R.C.P.No.142 of 2005, as expeditiously as possible, at any rate, within a period of three months.
The petitioners-tenants shall file an application for getting themselves impleaded in R.C.P.No.142 of 2005 before the Rent Control Court.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
P.G. AJITHKUMAR, JUDGE AS