IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
RCREV. NO. 95 OF 2022
AGAINST THE ORDER DATED 05/02/2019 IN R.C.P.NO.32 OF 2015
OF TEH RENT CONTROL COURT (MUNSIFF), CHAVAKKAD
AND THE JUDGMENT DATED 24/03/2022 IN R.C.A.NO.85 OF 2020
OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL
DISTRICT COURT -IV, THRISSUR
REVISION PETITIONER:
SUSANTH, AGED 35 YEARS
S/O.KOMBAN BABURAJ, GURUVAYUR AMSOM, MAMMIYUR
DESOM, CHAVAKKAD TALUK, GURUVAYUR P.O.,
THRISSUR - 680 101.
BY ADV. SRI. V.A.VINOD
RESPONDENT:
SIDHARTHAN, AGED 62 YEARS
S/O.THARAYIL APPUNNI, IRINGAPRAM AMSOM,
CHOOLPRAM DESOM, CHAVAKKAD TALUK, KOTTAPPADI
P.O., THRISSUR - 680 505.
BY ADV.SRI.P.RAMACHANDRAN
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 07.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
-2-
R.C.R.No.95 of 2022
ORDER
Anil K. Narendran, J.
The petitioner, who is the respondent-tenant in R.C.P.No.32 of 2015 on the file of the Rent Control Court (Munsiff), Chavakkad, a petition filed by the respondent herein- landlord under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1956, seeking eviction of the tenant from the petition schedule shop room. On receipt of notice, the tenant entered appearance before the Rent Control Court and filed counter. However, when the matter was listed for trial, the learned counsel for the tenant reported no instructions. Therefore, the Rent Control Court passed an ex- parte order of eviction in R.C.P.No.32 of 2015, on 05.02.2019. On 28.02.2019, the tenant filed I.A.No.1520 of 2019, for setting aside the ex-parte order of eviction in R.C.P.No.32 of 2015. Since I.A.No.1520 of 2019 was not supported by an application for condonation of delay, the Rent Control Court dismissed the same by the order dated 29.01.2020. On 19.02.2020, after obtaining a certified copy of that order, the tenant filed R.C.A.No.85 of 2020 before the IVth Additional Rent Control Appellate Authority (Additional District Judge), Thrissur, -3- R.C.R.No.95 of 2022 challenging the original order of the Rent Control Court, i.e., the ex-parte order of eviction dated 05.02.2019 in R.C.P.No.32 of 2015. That appeal was accompanied by I.A.No.3 of 2020, an application filed under Section 5 of the Limitation Act, 1963 seeking condonation of delay of 465 days in filing that appeal, to which the landlord filed counter. After considering the rival contentions, the Appellate Authority, by the impugned order dated 24.03.2022, dismissed I.A.No.3 of 2022, on the ground that the tenant has not shown sufficient cause for condoning the delay in filing the appeal. Paragraphs 9 to 15 of the said order read thus;
"9. Points 1 and 2: Contention of the petitioner is that he had filed IA.1520/2019 before the Rent Control Court, Chavakkad for setting aside the impugned order which was passed exparte in RCP.32/2015. According to him, the said petition was dismissed by the Rent Control Court. He claimed that the appeal was not filed by him in time since he had filed IA.1520/2019 before the Rent Control Court.
10. The petitioner has claimed that he is entitled for the benefit of Sec.13 of the Limitation Act. Sec.13 of the Limitation Act deals with exclusion of time in cases where leave to sue or appeal as a pauper is applied for. On going through the records, it is seen that the matter does not come under the scope of Sec.13 of the Limitation Act.
11. The present petition was filed on 15.06.2020.
Petitioner is however entitled for exemption of the period after 15.03.2020, in view of the decision of the -4- R.C.R.No.95 of 2022 Hon'ble Supreme Court passed in re: cognizance for extension of Limitation (SC) reported in ILR 2021 (4) Kerala 1. But he has to show explanation for the delay caused prior to 15.03.2020.
12. The only contention of the petitioner is that he did not file appeal in view of his filing IA.1520/2019. It is evident from the petition that he came up with the RCA after dismissal of IA.1520/2019 by the Rent Control Court. In spite of the same, the petitioner did not disclose the date of dismissal of IA. 1520/2019. During hearing of this petition, the learned counsel for the petitioner submitted that he was bonafide proceeding with IA.1520/2019 and that petition was dismissed by the Rent Control Court on 29.01.2020 with an order that the said petition was filed with delay which cannot be condoned by the Rent Control Court. The learned counsel submitted that the court was relying upon the dictum then prevailing on that aspect. The learned counsel argued that the petitioner is therefore entitled for an exclusion of the time during which he was proceeding with IA.1520/2019 before the Rent Control Court. However, the order in IA.1520/2019 is not produced by him in this matter. As stated above, the learned counsel for the petitioner submitted that IA.1520/2019 was dismissed on 29.01.2020.
13. The learned counsel for the respondent argued that even if the argument of the learned counsel for the petitioner is accepted, then also he is not entitled for a favourable order in this petition. The learned counsel for the respondent submitted that the petitioner did not properly explain the delay caused even after 29.01.2020. It is to be noted that the petitioner is duty bound to explain the delay of each and every day.
14. On going through the certified copy of the impugned order produced along with the appeal, it is seen that the application for copy of the impugned order was given only on 31.01.2020. It is seen that the copy was delivered on 19.02.2020. The petitioner did not opt to prefer appeal till 15.03.2020 (The period of -5- R.C.R.No.95 of 2022 limitation thereafter is condoned as per in re: cognizance for extension of Limitation (SC) reported in ILR 2021(4) Kerala 1). No specific reason is stated by the petitioner for not doing the same. Therefore, it appears that intention of the petitioner is to delay the matter further.
15. Considering all the above, it is found that the petitioner did not show any sufficient ground to condone the delay caused in filing RCA 85/2020. The petition is therefore only to be dismissed. Considering the facts and circumstances, petitioner is also liable for the costs. Points are answered accordingly." In view of the dismissal of I.A.No.3 of 2020 seeking condonation of delay, the Appellate Authority by the judgment 24.03.2022 dismissed R.C.A.No.85 of 2020.
2. Challenging the aforesaid order in I.A.No.3 of 2020 and the judgment in R.C.A.No.85 of 2020 dated 24.03.2022 of the Rent Control Appellate Authority and also the order dated 05.02.2019 of the Rent Control Court in R.C.P.No.32 of 2015, the tenant is before this Court in this Rent Control Revision, invoking the revisional jurisdiction of this Court under Section 20 of the Act.
3. On 22.06.2022, when this Rent Control Revision came up for admission, this Court issued notice on admission to the respondent-landlord. The learned counsel for the petitioner- tenant was permitted to take out notice to the landlord through -6- R.C.R.No.95 of 2022 his counsel before the Munsiff's Court, Chavakkad, where E.P.No.247 of 2020 in R.C.P.No.32 of 2015 is pending consideration.
4. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlord.
5. The issue that arises for consideration in this Rent Control Revision is as to whether any interference is warranted on the orders of the authorities below, i.e., the order dated 24.03.2022 in I.A.No.3 of 2020 and the judgment dated 24.03.2022 in R.C.A.No.85 of 2020 of the Rent Control Appellate Authority and also the order dated 05.02.2019 of the Rent Control Court in R.C.P.No.32 of 2015.
6. The learned counsel for the petitioner-tenant would submit that the orders of the authorities below are perverse and patently illegal, which require interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act.
7. On the other hand, the learned counsel for the respondent-landlord would contend that since the interlocutory application, i.e., I.A.No.1520 of 2019, filed by the tenant for setting aside the ex-parte order of eviction was not supported by an application for condonation of delay, the Rent Control -7- R.C.R.No.95 of 2022 Court cannot be found fault with in rejecting the same by the order dated 29.01.2020. Thereafter, the tenant filed an appeal under Section 18(1)(b) of the Act challenging the ex-parte order of eviction dated 05.02.2019 in R.C.P.No.32 of 2015, which was accompanied by I.A.No.3 of 2020 seeking condonation of delay of 465 days in filing that appeal. After considering the rival contentions, the Appellate Authority rightly found that the petitioner has not offered sufficient cause for condoning the delay in filing the appeal.
8. 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 period. As per Explanation to Section 5, the fact that the appellant or the applicant was misled by any order, practice or -8- R.C.R.No.95 of 2022 judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section.
9. 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.
10. In Collector, Land Acquisition v. Katiji [(1987) 2 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 -9- R.C.R.No.95 of 2022 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.
11. 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:
21.1 There should be a liberal, pragmatic, justice- oriented, 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.-10-
R.C.R.No.95 of 2022 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.
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 -11- R.C.R.No.95 of 2022 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.
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."
12. In Esha Bhattacharjee, after summerising the principles applicable while dealing with an application for condonation of delay, the Apex Court added some more guidelines taking note of the present day scenario, that an application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the -12- R.C.R.No.95 of 2022 bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. Para.22 of the judgment reads thus;
"22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:--
22.1 An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2 An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3 Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4 The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."
13. In Rafeek and another v. K. Kamarudeen and -13- R.C.R.No.95 of 2022 another [2021 (4) KHC 34 : (2021) 2 RCR (Rent) 223 :
2021 AIR CC 2752] 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 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.
14. In the instant case, as already notice hereinbefore, the tenant filed I.A.No.1520 of 2019 before the Rent Control Court on 28.02.2019, seeking an order to set aside the ex-parte order of eviction dated 05.02.2019 in R.C.P.No.32 of 2015. -14- R.C.R.No.95 of 2022 However, that application was not accompanied by an application for condonation of delay. In the affidavit filed in support of that application, the tenant has taken a contention that, the application is filed within the period of limitation, if the period is calculated from the date of knowledge of the ex-parte order of eviction. Instead of dismissing that application on technicalities, the Rent Control Court ought to have directed the tenant to file an application for condonation of delay, showing sufficient cause for the delay. Such a course was not adopted by the Rent Control Court. After the dismissal of that interlocutory application, instead of challenging that order before the appropriate forum, the tenant thought it fit to challenge the original order, i.e., the ex-parte order of eviction dated 05.02.2019, by filing an appeal under Section 18(1)(b) of the Act before the Rent Control Appellate Authority. That appeal was filed with a delay of 465 days. However, the tenant was prosecuting I.A.No.1520 of 2019 filed before the Rent Control Court on 28.02.2019, till 29.01.2020. After the dismissal of I.A.No.1520 of 2019, the tenant filed copy application on 31.01.2020 for obtaining a certified copy of the ex-parte order of eviction dated 05.02.2019. He obtained certified copy of that -15- R.C.R.No.95 of 2022 order on 19.02.2020. Thereafter, the tenant filed R.C.A.No.85 of 2020 before the Rent Control Appellate Authority on 15.06.2020. In view of the decision of the Apex Court In Re:cognizance for Extension of Limitation [2021 (5) KHC 508], in computing the period of limitation for any suit, appeal, application or proceedings, period from 15.03.2020 till 02.10.2021 shall stand excluded.
15. Having considered the averments in the affidavit filed in support of the application for condonation of delay and the law laid down in the decisions referred to supra, we find that this is a fit case in which the delay in filing the appeal ought to have condoned by the Appellate Authority, especially when the application originally filed by the tenant to set aside the ex parte order of eviction dated 05.02.2019 was one filed on 28.02.2019.
16. In such circumstances, this Rent Control Revision is allowed by setting aside the order dated 05.02.2019 in R.C.P.No.32 of 2015 and the order dated 29.01.2020 in I.A.No.1520 of 2019 in R.C.P.No.32 of 2015 of the Rent Control Court, Chavakkad; the order dated 24.03.2022 in I.A.No.3 of 2020 in R.C.A.No.85 of 2020 and also the judgment dated 24.03.2022 in R.C.A.No.85 of 2020 of the Rent Control Appellate -16- R.C.R.No.95 of 2022 Authority, Thrissur. The Rent Control Court is directed to dispose of R.C.P.No.32 of 2015 on merits, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this order.
Both parties are directed to appear before the Rent Control Court, Chavakkad on 20.07.2022.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
P.G. AJITHKUMAR, JUDGE AV/8/7