IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944
R.C.REV.NO.94 OF 2020
AGAINST THE ORDER DATED 02.06.2020 IN R.C.A.No.7 OF 2019 OF
THE RENT CONTROL APPELLATE AUTHORITY(DISTRICT JUDGE), MANJERI
AGAINST THE ORDER DATED 18.01.2018 IN R.C.P.No.35 OF 2017 OF
THE RENT CONTROL COURT (MUNSIFF), MANJERI
REVISION PETITIONER:
KUNHAYAMU ALIAS KUNHAPPU (MAHMOOD AHAMMED)
AGED 52 YEARS
(CORRECT AGE OF THE PETITIONER),
SON OF KUNHIMUHAMMED, PALLIYALITHODY HOUSE,
EDAKKARA (PO), EDAKKARA AMSOM DESOM,
NILAMBUR TALUK, MALAPPURAM-679 331.
BY ADV.
R.RAJESH KORMATH
RESPONDENTS:
1 K.JAYALAKSHMI
AGED 64 YEARS
WIFE OF KARUMAMBOYIL ASOKAN,KARUMAMBOYIL VEEDU,
CHUNGATHARA P.O.CHUNGATHARA AMSOM DESOM,
NILAMBUR TALUK, MALAPPURAM-679 334.
2 DHARMAN,
AGED 71 YEARS
SON OF KANDAN ALIAS APPU, KARUMAMBOYIL VEEDU,
CHUNGATHARA P.O., CHUNGATHARA AMSOM DESOM,
NILAMBUR TALUK, MALAPPURAM-679 334.
BY ADVS.
SRI.R.SUDHISH
SMT.M.MANJU
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 19.05.2022, THE COURT ON 31.05.2022 DELIVERED THE
FOLLOWING:
2
R.C.R.No.94 of 2020
ORDER
Ajithkumar, J The tenant is the petitioner. Respondents-landlords filed R.C.P No.35 of 2017 before the Rent Control Court (Munsiff), Manjeri seeking eviction of the petitioner from the petition schedule shop room under section 11(2)(b), 11(3) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Petitioner remained ex parte and therefore the Rent Control Court after recording evidence on the part of the respondents passed an ex parte order of eviction on 18.01.2018. An appeal under Section 18(1)(b) of the Act was filed by the petitioner before the Rent Control Appellate Authority (District Judge), Manjeri as RCA No.7 of 2019. There was a delay of 368 days in filing the appeal. The Appellate Authority as per order dated 02.06.2020 in I.A.No.236 of 2019 dismissed the application for condonation of delay. Consequently the appeal was also dismissed. Challenging the said orders, the petitioner has filed this revision under section 20 of the Act.
2. On 01.07.2020, this court stayed the proceedings in E.P.No.610 in R.C.P.No.35 of 2017 for a period of six weeks. 3 R.C.R.No.94 of 2020 That order was extended from time to time and is still in force.
3. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondents.
4. The respondents alleged in the Rent Control Petition that the petitioner defaulted payment of rent at the rate of Rs.750/- per day from November 2017 onwards and that he ceased to occupy the petition schedule rooms for the past two years. Further plea of the respondents was that they need vacant possession of the petition schedule shop rooms for the son of the 1st respondent to start a dealership business in medicine. The Rent Control Court on finding that the petitioner, despite receiving notice, failed to appear before the court, set him ex parte. On recording the oral evidence of the 2 nd respondent and receiving in evidence Ext. A1 series and C1, the Commissioner's report, the Rent Control Court ordered eviction on all the three grounds.
5. The petitioner stating that he knew about the order of eviction only when he received a notice in the execution petition, filed petition for setting aside the ex parte order of eviction 4 R.C.R.No.94 of 2020 along with an application to condone delay.
6. RCA No.56 of 2018 was filed in the meantime with respect to a connected Rent Control proceedings where also there was delay. In that appeal, the Appellate Authority(District Judge), Manjeri as per order dated 20.09.2019 took the view that the Rent Control Court did not have the power to condone delay. For that, the Appellate Authority relied on the decision in Ratheesh v. A.M.Chacko and another [2018 (5) KHC 35]. The petitioner realising that the same would be the fate of his application to condone the delay filed along with his application to set aside the ex parte order in R.C.P No. 35 of 2017, he abandoned the said applications and thereafter filed R.C.A No.7 of 2019 along with I.A.No.236 of 2019. The Appellate Authority considered that application in detail and held that the reasons stated by the petitioner were not acceptable or sufficient to condone the delay. The Appellate Authority placed reliance on the principles laid down by the Apex court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others [(2013) 12 SCC 649] in order to conclude that the delay was not condonable. 5 R.C.R.No.94 of 2020
7. The learned counsel appearing for the petitioner would submit that in the circumstances obtained in this case, which are so peculiar, the Appellate Authority without looking for any oral or documentary evidence, should have held that the reason set forth by the petitioner for the delay was genuine. The petitioner had been paying the admitted rent without there having much delay and therefore it could not be expected that he could have afforded not to appear before the court if he really knew about the pendency of the case. It is contended that having there been an earlier Rent Control Petition with respect to the petition schedule premises he was under the impression that the notice he received was in that proceedings and that prevented him from immediately approaching the court or his lawyer. But on realising the real facts, he immediately approached the Rent Control Court with applications to set aside the order of eviction and to condone the delay. Since the position of law then, on account of the decision in Ratheesh (supra) the petitioner has no other option than approaching the appellate authority to challenge the order of eviction on merits after not pressing the said applications. Those facts would 6 R.C.R.No.94 of 2020 certainly establish the predicament of the petitioner and also his diligence in approaching the court to have his grievance redressed. The learned counsel appearing for the petitioner would submit that the order of eviction passed by the Rent Control Court does not satisfy the requirements of a valid judgment as delineated in Balraj Taneja v. Sunil Madan [(1999) 8 SCC 396] and for that reason also, the same has to be annulled.
8. The learned counsel appearing for the respondent, on the other hand, would contend that in the absence of any evidence to justify that the petitioner was really prevented by sufficient cause from approaching the court in time, the impugned order of the Appellate Authority cannot be said to be faulty. The learned counsel by placing reliance on Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai [(2012) 5 SCC 157] contended that the delay, on no account, is condonable. The learned counsel further would submit that the respondent adduced sufficient evidence to prove their pleas in the Rent Control Petition and on acting upon such evidence, the order of eviction was passed. It is true that the Rent Control 7 R.C.R.No.94 of 2020 Court did not in so many words state the reasons for arriving at the conclusion that an order of eviction should be the result, but the Court positively found that the case put forth by the petitioners was sufficiently proved and resultantly only eviction was ordered. In the absence of any counter-evidence, the said order satisfies the requirements of a valid judgment. The learned counsel would further submit that the lapse on the part of the court cannot be made a reason to set aside the order thereby putting the respondent at peril. The learned counsel derived our attention to the maxim 'actus curiae neminem gravabit' which means that the act of the Court shall prejudice no one. For that the learned counsel placed reliance on the decision in Shakuntala Bai v. Narayan Das, 2004 (5) SCC
772.
9. In Shakuntala Bai, the question considered was whether the legal representatives are entitled to defend further proceedings, like an appeal, after the death of the plaintiff to the estate of whom the benefit under the decree has accrued and, there arises a challenge to that benefit. It was held in that context, 8 R.C.R.No.94 of 2020 "In normal circumstances after passing of the decree by the Trial Court, the original landlord would have got possession of the premises. But if he does not and the tenant continues to remain in occupation of the premises it can only be on account of the stay order passed by the appellate court. In such a situation, the well known maxim 'actus curiae neminem gravabit' that 'an act of the court shall prejudice no man' shall come into operation. Therefore, the heirs of the landlord will be fully entitled to defend the appeal preferred by the tenant and claim possession of the premises on the cause of action which had been originally pleaded and on the basis whereof the lower Court had decided the matter and had passed the decree for eviction."
10. In this revision the legality, regularity and propriety of order in I.A No.236 of 2019 alone are in challenge. Hence that principle has no application in this case. What the learned counsel for the petitioner would urge is that considering the shoddy nature of the order of eviction in R.C.P No. 35 of 2017, the delay should have been condoned by the Appellate Authority. True, the rules or procedure are only hand-maid of justice and not its mistress. The rules of procedure are made to 9 R.C.R.No.94 of 2020 advance the cause of justice and not to defeat it. It was held in Balraj Taneja (supra), "Whether it is a case which is contested by the defendants by filing a written statement, or a case which proceeds ex parte and is ultimately decided as an ex parte case, or is a case in which the written statement is not filed and the case is decided under O.8 R.10, the Court has to write a judgment which must be in conformity with the provisions of the Code or at least set out the reasoning by which the controversy is resolved."
11. The order of the Rent Control Court dated 18.01.2018 is an ex parte one. Facts are stated in it. But reasons in detail are not stated in it for finding there existed grounds for eviction which are invoked by the respondent to get vacant possession of the tenanted premises. Be that as it is, the legality or not of that order is not a question in this Revision and therefore it may not be appropriate or permissible for us to delve much into that matter. The courts may be able to look into the merits of the case in a limited extent, while deciding an application for condonation of delay. But the sole criteria to allow or disallow an application under section 5 of the Limitation Act, 1963 shall not 10 R.C.R.No.94 of 2020 be the merits of the main proceedings. It is always obligatory on the part of the persons seeking to condone delay to satisfactorily explain the reason for the delay. In that course, it is possible for the court to take into account the merits of the case as one of the factors.
12. 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 an extension of the 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.
11R.C.R.No.94 of 2020
13. 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.
14. 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 courts to apply the law in a meaningful manner, which subserves the ends of justice, that being the life-purpose for the existence 12 R.C.R.No.94 of 2020 of the institution of courts.
15. 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 concept 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.
21.2 The terms "sufficient cause" should be 13 R.C.R.No.94 of 2020 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 encapsulate 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 14 R.C.R.No.94 of 2020 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 the balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of a 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 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 the law of limitation.
21.12 The entire gamut of facts is 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."
15R.C.R.No.94 of 2020
16. 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 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 basis 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 16 R.C.R.No.94 of 2020 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."
17. In Rafeek and another v. K. Kamarudeen and 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 concept of reasonableness and it cannot be allowed a totally 17 R.C.R.No.94 of 2020 unfettered free play, as held by the Apex Court in Esha Bhattacharjee [(2013) 12 SCC 649]. Inordinate delay, which attracts doctrine of prejudice, warrants a strict approach, whereas, a delay of a short duration or a few days, which may not attract the doctrine of prejudice, calls for a liberal delineation. a routine manner.
18. The instant case falls well nigh within the ratio of Shyamal Kanti Danda v. Chunilal Choudhary, 1984 (4) SCC 345. That was a case where, on almost similar facts, the Apex Court held that application praying for condonation of delay of 386 days in preferring the appeal, on the ground that he was prosecuting, under legal advice, a remedy for setting aside the ex parte decree under Order 9, Rule 13 Code, but the Court was unable to grant relief, should be allowed. In that case, the respondent filed a suit against the petitioner for his eviction from the premises occupied by him. The petitioner contested the suit as per his written statement. After evidence on either side was recorded and closed, the learned Munsiff set down the suit for hearing oral arguments on which date the respondent was present but the petitioner and his advocate were absent. The 18 R.C.R.No.94 of 2020 learned Munsiff proceeded to deliver the judgment on merits. The application for setting aside what was styled as ex parte decree under Order 9 Rule 13 of the Code moved on behalf of the petitioner came to be dismissed as not maintainable. After an unsuccessful appeal, the petitioner filed an appeal against the ex parte decree in the Court of the District Judge, Alipore. He filed an application praying for condonation of delay of 386 days in preferring the appeal on the ground that he was prosecuting under legal advice a remedy in another civil Court, for setting aside the ex parte decree under Order 9, Rule 13 of the Code, but as that Court was unable to grant relief, the time spent bona fide in prosecuting that remedy must be excluded in computing the period of limitation. On the said fact situation, the Apex Court held that the delay was liable to be condoned.
19. It is true that no material has been produced by the petitioner before the Appellate Authority to substantiate his contention in I.A. No.236 of 2019. But the fact of filing an application for setting aside the ex parte order of eviction along with an application to condone the delay is a fact borne by records and beyond dispute. It is seen that while pending those 19 R.C.R.No.94 of 2020 applications, only the petitioner filed R.C.A No. 7 of 2019. Of course, when the respondent stoutly resisted the contentions of the petitioner, it was his duty to produce materials to properly explain the reasons for the delay. The delay was of 368 days cannot be said to be inordinate. As pointed out above application for condonation of delay and to set aside exparte order were pending consideration of the Rent Control Court even when the appeal was filed. A perusal of the records in the case would reveal that fact. The Appellate Authority should have taken into account that aspect. It is true, delay cannot be condoned in routine even if it is of short duration. But applying the principle in Shyamal Kanti Danda (supra) and taking a lenient view as allowed by the principle of law laid down by the Apex Court and this Court in the decisions narrated in paragraph numbers 14 to 17 above, we are of the view that the delay of 368 days occurred in filing R.C.A No. 7 of 2019 is liable to be condoned. The order of the Appellate Authority in I.A. No. 236 of 2019 and consequent dismissal of R.C.A. No. 7 of 2019 are therefore wrong and liable to be set aside.
Hence, this Rent Control Revision is allowed. The order in 20 R.C.R.No.94 of 2020 I.A. No. 236 of 2019 and consequent dismissal of R.C.A. No. 7 of 2019 of the Appellate Authority (District Judge), Manjeri are set aside. I.A. No. 236 of 2019 in R.C.A. No. 7 of 2019 stands allowed. The Appellate Authority will restore R.C.A. No. 7 of 2019 to file and proceed with in accordance with law.
Since the R.C.A. is of the year 2019, the Appellate Authority shall take every endeavour to dispose of the same, at any rate, within a period of two months from the date of production of a certified copy of this order.
Sd/-
ANIL K.NARENDRAN, JUDGE Sd/-
P.G. AJITHKUMAR, JUDGE PV