Sudhakaran vs Vasanthakumari Amma
2021 Latest Caselaw 11289 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT

                  THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                                     &

                THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

     THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                           RCRev..No.165 OF 2019

 AGAINST THE ORDER/JUDGMENT IN RCA 16/2007 OF II ADDITIONAL DISTRICT
                          COURT,TRIVANDRUM

 AGAINST THE ORDER/JUDGMENT IN RCP 6/2001 OF MUNSIFF COURT,ATTINGAL


REVISION PETITIONER/S:

                SUDHAKARAN,
                AGED 65 YEARS,
                S/O.APPUKUTTAN, 'THEJUS', KARICHIYAL, ATTINGAL,
                CHIRAYINKEEKIL TALUK, THIRUVANANTHAPURAM DISTRICT.

                BY ADV.SRI.A.B.MOHANAKUMAR

RESPONDENT/S:

      1         VASANTHAKUMARI AMMA,
                W/O.GOPALAKRISHNAN NAIR, RESIDING AT RAGHAVA BHAVAN,
                KARICHAYIL, CHITTATTINKARA DESAM, ATTINGAL VILLAGE,
                THIRUVANANTHAPURAM.

      2         SIVA PRASAD,
                S/O.GOPALAKRISHNAN NAIR, RESIDING AT DO-DO.

      3         PREMEELA,
                D/O.GOPALAKRISHNAN NAIR, RESIDING AT DO-DO.

      4         PRADEEP,
                S/O.GOPALAKRISHNAN NAIR, RESIDING AT DO-DO.

                R1-R4 BY ADV. SRI.D.KISHORE

      THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
      23.03.2021 AND ON 08.04.2021, THE COURT PASSED THE FOLLOWING:
 R.C.Rev.No.165/2019                          2

                                  A.HARIPRASAD
                                               &
                             ZIYAD RAHMAN A.A, JJ.
                        -----------------------------------------------
                                R.C.R.No.165 of 2019
                         ----------------------------------------------
                      Dated this the 8th day of April, 2021

                                        ORDER

Ziyad Rahman A.A., J.

The petitioner herein is the appellant in R.C.A.No.16 of 2007 of

the IInd Additional Rent Control Appellate Authority,

Thiruvananthapuram, which in turn was filed against the order passed

in R.C.P.No.6 of 2001 by Rent Control Court, Attingal.

2. The aforesaid Rent Control Petition was originally filed by

one Gopalakrishnan Nair, who is the husband of the 1 st respondent

herein and the father of respondents 2 to 4. The said petition was filed

seeking eviction of the petitioner herein, under Section 11(3) of the

Kerala Buildings (Lease and Rent Control) Act, 1965, for short the 'Act'.

According to the landlord, the petition schedule property was

purchased by him as per Ext A1 sale deed from one Sulochana, who is

the wife of the revision petitioner/tenant as per sale deed dated

01.06.1999. Later, on 15.05.2000, the petition schedule building was let

out to the revision petitioner on 15.05.2000, for a monthly rent of Rs.

500/-. A lease deed bearing No. 1499/2000 of SRO, Attingal was also

executed between the parties. The period of tenancy mentioned in the

said deed is already expired. Bona fide need urged by the land lord was

that, he requires the petition schedule building to accommodate his

elder son, who is the 2nd respondent herein, for his residence. As the

tenant refused to surrender vacant possession of the building, the rent

control petition was filed.

3. The said Rent Control Petition was resisted by the petitioner

herein by filing an objection. In the objection submitted by the

petitioner/tenant, it was contended that, the document by which the

said Gopalakrishnan Nair obtained title over the property was never

intended to be acted upon. It was contended that the said deed was

executed by the wife of the revision petitioner, namely Sulochana and it

was executed only as security for a loan obtained by her from the said

Gopalakrishnan Nair to the tune of Rs.1,50,000/-. After the trial, the

Rent Control Court rejected the said contention and also found that the

denial of the title raised by the tenant was not bonafide. Further, it was

also found that the need urged by the land lord is only to be accepted

being a genuine one. Accordingly, the Rent Control petition was

allowed and eviction was ordered as per order dated 28.02.2004.

4. Thereafter, the appellant filed R.C.A.No.16 of 2007 before

the 2nd Additional Rent Control Appellate Authority,

Thiruvananthapuram challenging the order passed by the Rent Control

Court. The said appeal was filed along with a petition to condone the

delay of 3 years and 8 days. After hearing both the sides, the Rent

Control Appellate Authority dismissed the application for condoning the

delay, after specifically arriving at the finding that no reasonable

explanation has been offered by the petitioner/tenant for condoning the

delay. Consequent to the dismissal of the petition to condone the delay,

the Rent Control Appeal was also dismissed as per judgment dated

13.07.2007. The aforesaid order is under challenge in this Rent Control

Revision Petition.

5. It is seen that even though the order impugned in this

revision petition is passed on 13.07.2007, this revision petition was

filed on 05.04.2019 only. In order to explain the delay, the petitioner

herein had submitted an affidavit. The relevant portion of the affidavit

submitted along with the revision petition is extracted as follows:

"1] I am the petitioner herein and conversant with the facts of the case. This revision petition is filed to set aside the order dated 13-07-2007 in RCA.No.16/2007 before the 2nd Additional Rent Control Appellate Authority, Thiruvananthapuram, and to direct the said court to consider the RCA on merits.

2] Since the dismissal of the RCA mediators on both sides have been trying for an out of court settlement. On their advice immediate filing of revision was not done.

On failure of mediation efforts application for certified copy of the order in RCA 16/2007 was made on 14-01- 2019. Certified copy was ready on 25-01-2019, and on the same day it was received. For lower court judgment application was submitted on 30.01.2019. Date notified for receipt of the certified copy was 27-02-19, and on the same day it was received.

3] After mediation failed the respondents have threatened with immediate execution of the order in RCP 6/2001 EP.No.53/2006 is pending before the Principal Munsiff's Court, Thiruvananthapuram. In the above circumstances filing of this revision petition has become absolutely necessary."

6. On going through the contents of the affidavit, it can be seen

that, the only reason highlighted by the petitioner/tenant is that, after

dismissal of the Rent Control Appeal, mediators on both sides have

been trying for an out of court settlement. It was on their advice, the

revision petition was not filed immediately after the order of the

appellate authority. It was further contended that, the copy application

for the order in R.C.A.No.16/2007 was filed only on 14.01.2019, that is

after the mediation efforts were failed. Conspicuously, the affidavit

filed by the petitioner is completely silent in respect of the suit filed by

the wife of the petitioner/tenant, and the proceedings in connection

with the same.

7. The affidavit does not even contain the extent of delay

occurred in filing the revision petition, despite the fact that the revision

petition itself was filed against the dismissal of an order passed in

appeal, consequent to the failure on the part of the petition in

explaining the delay caused in the appeal.

8. In response to the affidavit submitted by the revision

petitioner, the respondents 1 to 4 have filed an affidavit pointing out the

sequence of events which led to the filing of this rent control revision

petition after a period of 4726 days. It is discernible from the counter

affidavit that, after the order of eviction, E.P.No.53 of 2006 was filed by

the said Gopalakrishnan Nair, seeking execution of the order. During

the pendency of the execution petition, said Gopalakrishnan Nair

passed away and his legal heirs were impleaded as additional decree

holders. It is also averred about the claim petition submitted by the

wife of the revision petitioner in E.P. No 53 of 2004. It is also pointed

out that, in the said claim petition the petitioner therein i.e the wife of

the revision petitioner herein, apparently raised the very same

contentions urged in all other proceedings. The said claim petition

was filed at a time when the application submitted by the respondents

herein for directing the Ameen to broke open the door for effecting the

delivery of possession, was pending consideration. In the said claim

petition, the wife of the revision petitioner claimed exclusive rights over

the building and the property wherein the building is situated. After

taking evidence, the execution court dismissed the claim petition

holding that the claim petitioner is having no right over the said

building.

9. Against the judgment and decree passed in the said claim

petition, the Revision Petitioner filed appeal before the 1 st Additional

Sub Court, Attingal and later the same was withdrawn, as the claim

petition later filed O.S.No.15 of 2004 before the Sub Court, Attingal.

The said suit was filed contending that Ext.A1 sale deed was never

intended to be acted upon and according to her there was also another

agreement executed by the said Gopalakrishnan Nair, in favour of the

said Sulochana, agreeing to re-convey the property wherein the petition

schedule building is situated. In the light of the above documents, she

sought for re-conveyance of the said property in her favour. The said

suit was dismissed after the trial, with costs to the defendants, who are

respondents herein. It is also a relevant aspect to notice that, during

the trial of the said suit, the agreement relied upon by said Sulochana

styling it as a re-conveyance agreement was sent to Forensic

Laboratory for comparison of the signature of the deceased

Gopalakrsihnan Nair. As per the report from the Forensic Laboratory,

the signatures affixed in the said deed were not that of Gopalakrishnan.

The dismissal of O.S.No.15 of 2004 was in the above circumstances.

10. It is also discernible from the counter of affidavit of the

respondents that, in the mean while, the revision petitioner filed R.C.A

No.16 of 2007 before the 2nd Additional Rent Control Appellate

Authority, Thiruvananthapuram. Thereafter, he filed E.A.No.37 of 2007

before the Execution Court, praying for stay of execution proceedings

till the stay petition pending before the Appellate Authority is

considered. The said petition was dismissed by the execution court and

being aggrieved by the said order, he filed an application before the

District Court, Thiruvananthapuram for transferring the execution

proceedings from Munsiff Court, Attingal to any other court in

Thiruvananthapuram District. The said petition was filed raising

frivolous allegations against the court. The said transfer petition was

allowed and the execution petition was transferred to Principal

Munsiff's Court, Thiruvananthapuram and the same is now pending

consideration before the said court.

11. From all the above proceedings, as revealed from the

counter affidavit filed by the respondents herein, it is evident that, right

from the inception, various kinds of tactics were being played by the

revision petitioner for prolonging the execution of the order of eviction.

It is true that the original suit filed as O.S.No.15 of 2004 and the claim

petition before the execution court were submitted not by the revision

petitioner, but it was filed by his wife. However, it is evident that, the

revision petitioner was also instrumental for filing such original suit

and claim petition before the respective courts. This is because, in all

the aforesaid proceedings including the Rent Control Petition, the

contentions raised by the revision petitioner as well his wife are one

and the same. The specific case advanced by the revision petitioner

is that Ext.A1 sale deed does not confer any title upon

Sri.Gopalakrishnan Nair, the original decree holder. It was also

contended that, the said Gopalakrishnan Nair had also executed

another agreement in favour of the wife of the revision petitioner,

agreeing to re-convey the property, which is the subject matter in the

Rent Control Petition. It is to be noted in this regard that, in all the

proceedings, the said contentions were found to be incorrect. Apart

from the above, it is discernible that in O.S.No.15 of 2004, as part of the

trial, a report from the Forensic Laboratory was also happened to be

obtained, wherein, it was specifically found that the signature

contained in the agreement of re-conveyance, alleged to have been

executed by said Gopalakrishnan Nair, was not genuine. In addition to

the above, during the course of the argument, the learned counsel for

the revision petitioner, further submitted that, he did not approach this

Court with revision petition earlier, as they were enjoying an order of

injunction in the suit pending before the Sub Court, Attingal. The suit

referred to by the Learned Counsel is O.S.No.15 of 2004, which was

filed by his wife. Therefore, it is evident that, all the said proceedings

were at the instance of the petitioner herein or with his connivance. It

is also to be noted in this regard that, despite the fact that there were

several proceedings at the instance of the revision petitioner as well as

his wife, before various authorities, nothing is mentioned in the

affidavit filed by the revision petitioner in support of the revision

petition. It is true that no period of limitation prescribed for a revision

petition under Section 20 of the Act. However, it is categorically held

by a Full Bench of this Court in a judgment in Moideen Koya v.

Kunhammed Haji [1999 (2) KLT 646], to the effect that, even

though, no period of delay is prescribed for filing the revision under

Section 20 of the Act, the parties have to file the same within a

reasonable period of 90 days. It was also observed that, even though

no separate application is necessary, the delay has to be explained in

the form of an affidavit and the Court while considering the revision

petition can take into consideration the explanation offered by the

revision petitioners for the delay in filing the revision. Therefore, the

contents of the affidavit filed along with the revision petition is having

some relevance and the revision petitioner is bound to explain the

reasons for the delay properly in the said affidavit. This is particularly

so, when the delay in filing the revision petition is huge. It is evident

that the delay in this case is 4726 days. However, the affidavit filed in

explanation of the delay does not contain any details. Conspicuously,

the proceedings which took place during the period from the date of

passing the order and till the filing of revision petition are not seen

mentioned in the affidavit, despite the fact that, all those proceedings

are having relevance while considering the question of sustainability of

the explanation for the delay. The aforesaid aspects were revealed only

through the counter affidavit filed by the respondents herein. Thus it is

evident that, there is a calculated attempt on the part of the revision

petitioner to suppress material facts. The past conduct of the revision

petitioner also reveals unjustifiable and unwanted delaying tactics for

prolonging the proceedings of eviction instituted by the respondents as

early as in the year 2001.

12. It is also relevant to note that, the basic contentions raised

by the revision petitioner in Rent Control Proceedings is also in

connection with a re-conveyance agreement alleged to have been

executed by the deceased Goplalakrishnan Nair, in favour of the wife of

the revision petitioner. The said document was found to be a bogus

document by a competent civil court and the said finding has become

final. Therefore, there is no merit in this revision petition.

13. In the above circumstances, the revision petition is devoid of

merits and the same is hereby dismissed.

14. It is also to be noted that, on account of the unjustifiable and

mala fide attempts on the part of the revision petitioner, he could

prolong the matter for the past 20 years. This revision petition itself is

filed after 11 years of the order passed by the Appellate Authority.

Further the same was without properly explaining the delay and also

by suppressing material facts. Such practice by a litigant cannot be

tolerated. In the above circumstances, this Court is of the opinion that,

dismissal of this revision petition has to be with costs to the

respondents herein. In the facts and circumstances of the case,

Rs.10,000/- is awarded as costs to the respondents herein, which shall

be paid by the petitioner herein within a period of one month from the

date of receipt of copy of this judgment. Accordingly, the revision

petition is dismissed with costs as mentioned above.

Sd/-

A.HARIPRASAD (JUDGE)

Sd/-

DG                                        ZIYAD RAHMAN A.A. (JUDGE)