Biju George vs Biju George
2021 Latest Caselaw 1018 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

             THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                                &

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

    THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942

                       RCRev..No.6 OF 2021

AGAINST THE ORDER IN RCA NO.45/2020 DATED 22.12.2020 CONSEQUENT TO
THE DISMISSAL OF I.A.NO.1/2020 ON THE FILES OF THE DISTRICT JUDGE
 (RENT CONTROL APPELLATE AUTHORITY)ERNAKULAM WHICH AROSE FROM THE
ORDER DATED 3.7.2019 IN R.C.P. NO.12/2018 OF THE FILES OF THE RENT
                     CONTROL COURT, ERNAKULAM.



REVISION PETITIONER/APPELLANT IN RCA/RESPONDENT IN RCP:

             BIJU GEORGE,
             AGED 46 YEARS
             S/O. LATE GEORGE, THERIPARAMBIL HOUSE, C/O.GLENWOOD
             FURNITURE, THAMMANAM P.O., PALARIVATTOM KARA,
             POONITHURA VILLAGE, KANAYANNUR TALUK, ERNAKULAM
             DISTRICT.

             BY ADVS.
             SRI.VARGHESE C.KURIAKOSE
             SRI.P.J.JOSE
             SHRI.SUSANTH SHAJI

RESPONDENT/RESPONDENT IN RCA/PETITIONER IN RCP:

             RAJU ABRAHAM, AGED 61 YEARS,
             S/O.ABRAHAM, RESIDING AT CHAKKITTAYIL VELIYIL VEEDU,
             MELPADAM P.O., MANNAR VILLAGE, CHENGANNUR TALUK,
             ALAPPUZHA DISTRICT, NOW EMPLOYED AT AL-RAWABI DIARY
             CO., LLC P.O. BOX NO.44645, ABU-DABI, UAE, REP. BY
             HIS POWER OF ATTORNEY HOLDER, ROY ABRAHAM, AGED 55
             YEARS, S/O. ABRAHAM, RESIDING AT CHAKKITTAYIL VELIYIL
             VEEDU, MELPADAM P.O., MANNAR VILLAGE, CHENGANNUR
             TALUK, ALAPPUZHA DISTRICT-689686.

             R1 BY ADV. SRI.V.N.SUNIL KUMAR

     THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
12-01-2021, THE COURT ON 14-01-2021 PASSED THE FOLLOWING:
 RCRev.6 of 2021                  2


                            O R D E R

Dated this the 14th day of January 2021

...

Kunhikrishnan, J

This Revision is filed challenging the order

dated 22.12.2020 in R.C.A.No.45 of 2020 of the

District Judge & Rent Control Appellate Authority,

Ernakulam, by which the above Rent Control Appeal

was dismissed in the light of the fact that the

application to condone the delay of 451 days in

filing the appeal was dismissed as per order dated

22.12.2020 in I A No.1/2020 in the above appeal.

2. The brief facts are like this:-

The Revision Petitioner is the respondent in

R.C.P.No.12 of 2018 on the file of the Rent

Control Court, Ernakulam. The above Rent Control

Petition was filed by the respondent herein

seeking eviction on the grounds envisaged under

Sections 11(2)(b), 11(3) and 11(4)(i) of the

Kerala Buildings (Lease & Rent Control) Act, 1965

(for short 'the Act').

3. Pending the above application, the

respondent herein filed an application under

Section 12(1) of the Act to direct the tenant to

deposit the admitted arrears of rent worth

Rs.10,12,000/-. The Rent Controller, after hearing

both sides, directed the petitioner herein to

remit the admitted rent arrears at the rate of

Rs.25,000/- from February 2017 till the date

within 30 days from the date on which the order

was passed. Admittedly, the respondent/revision

petitioner did not deposit the arrears. The matter

came up for consideration on 3.7.2019. On that

date, the revision petitioner appeared through a

counsel. The counsel for the revision petitioner

prays time to deposit the amount. Hence, the Rent

Controller passed an order under Section 12(3) of

the Act to surrender vacant possession of the

petition schedule building to the landlord

forthwith. This order was passed on 3.7.2019.

4. Thereafter, an appeal was filed before the

Appellate Authority on 27.10.2020 under Section 18

of the Act, along with an application to condone

the delay of 451 days in filing the appeal.

5. The revision petitioner's main contention

in the delay condonation petition was that the

copy application filed by him for getting the

certified copy of the impugned order was rejected

due to a mistake of his counsel. It is also

contended that the petitioner was not intimated

properly by his counsel. According to the revision

petitioner, he came to know about the real

situation only when the Court Amin came to his

doorstep with a delivery warrant. After that, he

contacted his lawyer and filed a fresh copy

application on 19.10.2020. After obtaining the

copy, he filed the appeal. Therefore, the

petitioner prayed for condoning the delay.

6. The respondent herein filed a counter

affidavit in the delay condonation petition. The

respondent contended that there is no sufficient

reason to condone the delay of 451 days. The

respondent also denied the averments in the

petition that the petitioner is not aware of the

rejection of the earlier copy application. It is

specifically stated in the counter affidavit that

there was a direction to the petitioner to appear

before the execution court on 20.8.2020, and he

was personally present on that date, and on that

date, the execution court enquired about the

possibility of a settlement. The respondent

contended that, at least on 20.8.2020, the

revision petitioner was aware of the delivery

proceedings, and he could have taken steps for

filing an appeal. The respondent herein contended

that, Rs.11,75,000/- is the arrears of rent with

respect to the rent control petition schedule

building. The respondent submitted that the delay

may not be condoned in the facts and circumstances

of this case.

7. After hearing both sides, the appellate

authority dismissed the delay condonation petition

and consequently, the appeal also was dismissed.

8. Aggrieved by the above, this Rent Control

Revision is filed.

9. Heard the learned counsel for the revision

petitioner and the learned counsel for the

respondent.

10. The learned counsel for the revision

petitioner reiterated his contentions raised

before the Rent Control Appellate Authority. The

counsel submitted that he had got very serious

arguments on merit. The counsel submitted that

substantial justice is paramount and pivotal; the

technical considerations should not be given undue

and uncalled for emphasis. The counsel submitted

that 'sufficient cause' should be understood in

their proper spirit, philosophy and purpose. The

counsel submitted that a liberal approach is necessary

while condoning the delay. The sum and substance of

the argument is that a meritorious case may not

be dismissed at the threshold on the ground of

delay.

11. The counsel for the respondent submitted

that there is no sufficient cause for condoning

the delay of 451 days. The counsel contended that,

the petitioner was aware of the execution

proceedings and even the delivery order passed by

the execution court. The counsel submitted that

there are arrears of rent from 2017 onwards. The

Rent Control Court only directed to pay the

admitted arrears at the rate of Rs.25,000/- from

February 2017. Even after the order passed by the

Rent Control Court under Section 12(3) of the Act,

the rent arrears are not paid by the revision

petitioner. The counsel submitted that, when the

Amin appointed by the court visited the place to

effect the delivery, the inmates of the building

informed that the building is entrusted to them by

the revision petitioner on payment of huge amount

and without getting those amount, they will not

vacate the premises. The Amin submitted a

report before the execution court informing

that, there is obstruction from the son of the

petitioner. The counsel for the respondent

submitted that, the petitioner sublet the

building to others and enjoying the rent

received from them. The counsel for the

respondent submitted that, the respondent who

is the landlord is suffering without getting

even the admitted arrears. In such situation,

this Court may not interfere with the impugned

order.

12. The principle to be followed while

considering an application under Section 5 of

the Limitation Act is considered by the Apex

Court and this Court in several judgments. In

Esha Bhattacharjee v. Managing Committee of

Reghunathpur Nafar Academy and Others

[2013(12)SCC 649], the Apex Court summarized

the principles to be followed while dealing

with an application for condonation of delay.

The relevant portion of the above judgment

reads thus:

"21. From the aforesaid authorities the principles that can broadly be culled out are:

                         i)    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.

ii) 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.

                         iii) Substantial                 justice                 being
                  paramount         and       pivotal           the        technical
                  considerations           should       not    be     given       undue
                  and uncalled for emphasis.

iv) 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.

v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

vi) 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 to that in the ultimate eventuate there is no real failure of justice.

vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

viii) 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.

                        ix) 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 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.

                      x)      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.

xi) 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.

xii) 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.

xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:-

a) An application for condonation of delay should be drafted with careful concern and not in a half hazard 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.

b) 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.

c) 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.

d) The increasing tendency to perceive delay as a non - serious matter and, hence, lackadaisical propensity can be exhibited in a non - challant manner requires to be curbed, of course, within legal parameters."

13. Bearing in mind the above principles, we

have to consider this appeal. Admittedly, the

petition is filed by the respondent for

eviction under Section 11(2)(b), 11(3) and

11(4)(i) of the Act. The order under Section

12(1) of the Act was passed on 27.5.2019.

Thereafter, the order under Section 12(3) of

the Act was passed on 3.7.2019. Thereafter, the

rent control appeal was filed on 27.10.2020

with an application to condone the delay of 451

days in preferring the appeal. The appellate

court dismissed the delay condonation petition

with the following observations:

"8. In the above matter, no oral evidence is adduced by the petitioner. On going through the affidavit filed by the petitioner in support of the petition, it is discernible that the affidavit is silent regarding the date of filing of the earlier application for getting the certified copy of the impugned order or the date of it's rejection. Averments in the affidavit even do not show the date on which the petitioner came to know about the impugned order passed by the court below. The affidavit of the petitioner is very vague on all these crucial aspects. The date on which the petitioner received notice regarding the execution petition is also not stated by the petitioner in the affidavit. So, it is evident that the petitioner is suppressing the material facts and the court is left in dark regarding those aspects. Reply affidavit filed by the petitioner would show that, on 20.8.2020, he appeared before the execution court for the purpose of settlement. It is difficult to perceive that he was quite ignorant about the purpose of his

appearance before the execution court. Atleast on that day he could have made arrangements to file the appeal. But that is not seen done. Even going by his version, the copy application for getting the impugned order was filed only on 19.10.2020. So it is reasonable to think that the petitioner was grossly negligent in prosecuting the matter. It is well established that ignorance of law is not an excuse."

14. We see no reason to interfere with the

above well considered order of the appellate

authority. Without paying the admitted arrears

of rent, the petitioner approached before the

court with an appeal along with an application

to condone the delay of 451 days. No oral

evidence was adduced by the petitioner to

substantiate the case. The counsel for the

petitioner submitted that, he was not able to

adduce oral evidence because of non functioning

of the court due to Covid-19 pandemic. But even

the averments in the affidavit filed by the

petitioner to condone the delay are not

convincing. The affidavit is silent regarding

the date of filing of copy application to get

the certified copy of the impugned order or the

date on which it was rejected. There is no

averment in the affidavit even to know the date

on which the petitioner came to know about the

impugned order passed by the court below. The

affidavit filed by the petitioner to condone

the delay of 451 days is so vague on all

crucial aspects. It is an admitted fact that,

the petitioner appeared before the execution

court on 20.8.2020 for the purpose of

settlement. As rightly concluded by the

appellate authority, it is difficult to

perceive that the petitioner was quite ignorant

about the purpose of his appearance before the

execution court. Even thereafter, no appeal was

filed. As per the averments in the affidavit,

the copy application was filed only on

19.10.2020.

15. It is true that the endorsement of the

Amin in the report submitted by him before the

execution court need not be considered while

considering this revision. But, it will be

beneficial to find out the bonafide of the

petition to condone the delay. A certified copy

of the report of the Amin by which the delivery

warrant was returned was made available to the

court by the counsel for the respondent. In the

report, the Amin specifically stated that two

families are residing on the first and second

floor of the building, and they informed the

Amin that they are occupying the building on

payment of huge amount to the petitioner

herein. At this juncture, it is relevant to

note that one of the grounds for eviction in

the Rent control petition is a sublease. The

counsel for the petitioner insisted to consider

the petition on merit also. The admitted

arrears as per the order under Section 12(1) of

the Act is about Rs.10,12,000/- as on that

date. The order under Section 12(3) of the Act

was passed on 3.7.2019. Thereafter, the appeal

was filed only on 27.10.2020. Even now,

according to the counsel for the respondent,

the arrears of rent is not paid. As per the

order under Section 12(1), the admitted arrears

is Rs.23,000/- per month.

16. An application to condone the delay has

to be considered in the light of the principles

laid down by the Apex Court in Esha

Bhattacharjee's case (supra). After going

through the affidavit accompanying the petition

under Section 5 of the Limitation Act to

condone the delay in filing the appeal before

the appellate authority, we are of the opinion

that, there is no sufficient cause for

condoning the huge delay of 451 days. The

affidavit is so vague. Substantial justice is

to be done not only to the petitioner but to

the respondent landlord also. In the facts and

circumstances of this case, we see no reason to

interfere with the impugned order passed by the

appellate authority.

Therefore, this Rent Control Revision is

dismissed. No order as to costs.

Sd/-

A.HARIPRASAD JUDGE

Sd/-

                                      P.V.KUNHIKRISHNAN
pkk                                         JUDGE