Hymavathy K.K vs Rajani V.N
2021 Latest Caselaw 16622 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                             &
          THE HONOURABLE MRS. JUSTICE M.R.ANITHA
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
                  OP (RC) NO. 77 OF 2021

AGAINST THE ORDER IN I.A.NO.1787 OF 2019 IN I.A.NOS.522 &
 523 OF 2019 IN R.C.A.NO.163 OF 2014 OF THE RENT CONTROL
     APPELLATE AUTHORITY, THALASSERY DATED 30.03.2021
PETITIONER/S:

         HYMAVATHY K.K,
         AGED 51 YEARS
         D/O LATE KEEZHOTH MUNDANI BHARGAVI,
         NO OCCUPATION, RESIDING AT KUMARAN QUARTERS,
         (PO) PERUMTHATTIL, KOROTH PEEDIKA,
         THALASSERY- 670 107

         BY ADVS.
         P.SAJU
         R.SUDHEER
         JISHA P.C.
         R.PRATHEESH (ARANMULA)
         RAJEESH V.R.


RESPONDENT/S:

    1    RAJANI V.N.,
         D/o. LATE KUMARAN, AGED 58 YEARS, RETIRED
         TEACHER, ROHINI MANDIRAM, (PO) PERUMTHATTIL,
         THALASSERY TALUK. 670 107.

    2    DR.KUSUMAM,
         W/O DR.BHASKARAN, AGED 56 YEARS, PHYSICIAN,
         SREE PUTHIYANGADI (PO), KOZHIKODE - 673 021
 O.P.(RC)NO.77 OF 2021
                             -2-



     3     V.N.SREELATHA
           AGED 53 YEARS, D/O LATE KUMARAN, SCIENTIFIC
           ASSISTANT, SANTHI, KESAVADASAPURAM,
           THIRUVANANTHAPURAM- 695 004

     4     DR.ANITHA
           D/O LATE KUMARAN, AGED 53 YEARS, AYURVEDIC
           DOCTOR, ROHINI MANDIRAM, (PO) PERUMTHATTIL,
           THALASSERY TALUK 670 107

     5     DR. ASHALATH V.N.
           D/O LATE KUMARAN, AGED 51 YEARS, ROHINI
           MANDIRAM, (PO) PERUMTHATTIL, THALASSERY TALUK-
           670 107

           BY ADVS.
           U.P.BALAKRISHNAN
           K.R.AVINASH (KUNNATH)




      THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION
ON 11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 O.P.(RC)NO.77 OF 2021
                                -3-



                          JUDGMENT

Anil K. Narendran, J.

The petitioner is one of the legal heirs of the respondent-

tenant in R.C.P.No.18 of 2013 on the file of the Rent Control

Court (Munsiff), Thalassery, a petition filed by the respondents

herein-landlords under Section 11(2)(b) and 11(3) of the

Kerala Buildings (Lease and Rent Control) Act, 1965, seeking

eviction of the tenant from the petition schedule building. That

rent control petition was allowed by Ext.P1 order dated

22.08.2014 and the tenant was directed to surrender vacant

possession of the petition schedule building within one month

from the date of order, failing which the landlords are at liberty

to get the order executed through the process of court. The

tenant was given liberty to deposit the entire arrears of rent

with interest and costs, within one month from the date of

order, and on such deposit, the tenant was given liberty to get

the order of eviction issued under Section 11(2)(b) of the Act,

vacated. The original tenant challenged Ext.P1 order by filing

R.C.A.No.163 of 2014 before the Rent Control Appellate

Authority (Additional District Judge-III), Thalassery. During the O.P.(RC)NO.77 OF 2021

pendency of that appeal, the original tenant died on

20.12.2017. By Ext.P3 order dated 09.07.2018, the appellate

authority dismissed R.C.A.No.163 of 2014 as abated, since the

learned counsel appearing for the appellant filed a memo

stating that nobody had approached him after the death of the

appellant and hence, no steps taken. The petitioner herein filed

I.A.Nos.522 of 2019 and 523 of 2019, seeking an order to

restore and re-admit R.C.A.No.163 of 2014 and also to condone

the delay of 231 days in filing the application for restoration.

On 11.07.2019, the Appellate Authority dismissed those

applications for default, since there was no representation. The

petitioner herein filed I.A.No.1787 of 2019, seeking an order to

restore I.A.Nos.522 of 2019 and 523 of 2019. The landlords

filed counter, opposing the restoration of those interlocutory

applications. On the side of the petitioner herein, Exts.A1 to A3

were marked. After considering the rival contentions, the

Appellate Authority by Ext.P6 order dated 30.03.2021

dismissed I.A.No.1787 of 2019 on the ground that, the

petitioner has stated no valid reasons for restoring I.A.Nos.522

of 2019 and 523 of 2019 in R.C.A.No.163 of 2014. Feeling

aggrieved by Ext.P6 order of the Appellate Authority dated O.P.(RC)NO.77 OF 2021

30.03.2021, the petitioner is before this Court in this original

petition filed under Article 227 of the Constitution of India,

seeking an order to set aside Ext.P6 order of the Appellate

Authority in I.A.No.1787 of 2019 in I.A.Nos.522 and 523 of

2019 in R.C.A.No.163 of 2014 and to direct the Appellate

Authority to restore I.A.Nos.522 of 2019 and 523 of 2019 and

to consider those applications on merits. The petitioner has also

sought for an order directing the Appellate Authority to

consider Exts.P8 and Ext.P9 interlocutory applications filed to

set aside abatement and to implead her as the supplementary

appellant and thereafter, to dispose of R.C.A.No.163 of 2017 on

merits.

2. On 06.07.2021, when this original petition came up

for admission, Shri.Balakrishnan U.P., the learned counsel, took

notice on admission for respondents 1 to 4. This Court issued

urgent notice on admission to the 5th respondent by speed Post.

The petitioner was also permitted to take out notice to the 5 th

respondent through her counsel in E.P.No.423 of 2014 in

R.C.P.No.18 of 2013 on the file of the Munsiff's Court,

Thalassery.

3. On 30.07.2021, this Court granted an interim order O.P.(RC)NO.77 OF 2021

staying all further proceedings pursuant to Ext.P1 order dated

25.08.2014 of Rent Control Court, Thalassery in R.C.P.No.18 of

2013 and also the further proceedings in E.P.No.423 of 2014 in

R.C.P.No.18 of 2013 on the file of Munsiff's Court, Thalassery,

for a period of two weeks.

4. Respondents 1 to 4 have filed counter affidavit,

opposing the reliefs sought for in this original petition. They

would contend that, though the original tenant died on

20.12.2017, no steps were taken till 09.07.2018, despite

several chances given by the Appellate Authority to implead her

legal heirs. Hence, the Appellate Authority dismissed the appeal

for default on 09.07.2018. Thereafter, the petitioner herein

filed I.A.Nos.522 of 2019 and 523 of 2019, seeking an order to

re-admit the appeal and for condonation of delay of 231 days in

filing such application. Those applications were dismissed for

default. There is huge arrears of rent and the attempt of the

petitioner is only to protract the matter.

5. Heard the learned counsel for the petitioner and also

the learned counsel for respondents 1 to 5.

6. The issue that arises for consideration in this original

petition is as to whether any interference is warranted on O.P.(RC)NO.77 OF 2021

Ext.P6 order dated 30.03.2021 of the Rent Control Appellate

Authority in I.A.No.1787 of 2019, in exercise of the

supervisory jurisdiction of this Court under Article 227 of the

Constitution of India.

7. The tenant of the petition schedule building filed

R.C.A.No.163 of 2014 before the Rent Control Appellate

Authority, Thalassery, challenging the order of eviction granted

by the Rent Control Court, Thalassery in R.C.P.No.18 of 2013.

During the pendency of that appeal, the tenant, who was

undergoing treatment for thyroid cancer, died on 20.12.2017.

In the affidavit filed in support of I.A.Nos.522 of 2019 and 523

of 2019, it is stated that the tenant was bedridden due to

paralysis and she was having a permanent disability of 66%.

8. To decide the legality of Ext.P6 order of the

Appellate Authority, this Court need not consider the question

as to whether the petitioner has offered sufficient cause for

condonation of delay of 231 days in filing the application for

restoration of R.C.A.No.163 of 2014. It is for the Appellate

Authority to consider that question, once I.A.Nos.522 of 2019

and 523 of 2019 are restored to file.

9. Insofar as I.A.No.1787 of 2019 is concerned, it is O.P.(RC)NO.77 OF 2021

one filed by the petitioner seeking an order to restore

I.A.Nos.522 of 2019 and 523 of 2019 in R.C.A.No.163 of 2014,

which were dismissed for default on 11.07.2019. Admittedly,

the petitioner filed I.A.No.1787 of 2019, seeking restoration of

the aforesaid interlocutory applications, within the period of

limitation. When that application is one filed in time,

considering the fact that the petitioner is one of the legal heirs

of the deceased tenant, who died during the pendency of

R.C.A.No.163 of 2014, while undergoing treatment for thyroid

cancer, as evidenced by Ext.P2 death certificate and Ext.A3

treatment certificate, the Appellate Authority ought to have

taken a lenient view and ordered restoration of I.A.Nos.522 of

2019 and 523 of 2019.

10. In the above circumstances, this original petition is

allowed by setting aside Ext.P6 order dated 30.03.2021 of the

Rent Control Appellate Authority, Thalassery in I.A.No.1787 of

2019 in I.A.Nos.522 of 2019 and 523 of 2019 in R.C.A.No.163

of 2014, thereby restoring I.A.Nos.522 of 2019 and 523 of

2019 back to file. The Appellate Authority is directed to

consider I.A.Nos.522 of 2019 and 523 of 2019 in R.C.A.No.163

of 2014 and also Exts.P8 to P10 applications, with notice to O.P.(RC)NO.77 OF 2021

both sides and pass appropriate orders, as expeditiously as

possible, and at any rate, within a period of one month from

the date of receipt of a certified copy of this judgment.

In case, the aforesaid applications are allowed, the

Appellate Authority shall ensure final disposal of R.C.A.No.163

of 2014, within a further period of three months, since that

appeal arises out of the order of eviction granted by the Rent

Control Court dated 25.08.2014, in a Rent Control Petition of

the year 2013.

Sd/- sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-sd/-

M.R. ANITHA JUDGE

STK O.P.(RC)NO.77 OF 2021

APPENDIX OF OP (RC) 77/2021

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE ORDER DATED 25-08-

2014 IN R.C.P NO.18/2013 ON THE FILES OF RENT CONTROL COURT (MUNSIFF), THALASSERY

Exhibit P2 TRUE COPY OF THE RCA 163/2014 BEFORE THE RENT CON CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT JUDGE III), THALASSERY DATED 25-10-2014

Exhibit P3 TRUE COPY OF THE ORDER DATED 09-07-2018 IN R.C.A NO.163/2014 RENT CON CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT JUDGE III), THALASSERY

Exhibit P4 TRUE COPY OF APPLICATION IN IA 522/2019

Exhibit P5 TRUE COPY OF AFFIDAVIT IN IA 523/2019

Exhibit P6 TRUE COPY OF THE ORDER DATED 30-03-21 IN IA 1787/20 RENT CON CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT JUDGE-III), THALASSERY

Exhibit P7 TRUE COPY OF EP NO.423/2014 ON THE FILE OF MUNSIFF COURT THALASSERY

Exhibit P8 TRUE COPY OF THE AFFIDAVIT IN IA 4/2020 ON THE FILE OF RENT CON CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT JUDGE-III), THALASSERY TO CONDONE DELAY

Exhibit P9 TRUE COPY OF THE AFFIDAVIT IN IA 5/2020 ON THE FILE OF RENT CON CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT JUDGE-III), THALASSERY TO SETASIDE ABATEMENT O.P.(RC)NO.77 OF 2021

Exhibit P10 TRUE COPY OF THE AFFIDAVIT IN IA 6/2020 ON THE FILE OF RENT CON CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT JUDGE-III), THALASSERY TO IMPLEADE SUPPLEMENTARY APPELLANT

Exhibit P11 TRUE COPY OF THE AFFIDAVIT IIN IA 6/2020 ON THE FILE OF RENT CON CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT JUDGE-III), THALASSERY TO AMEND CAUSE TITLE.