Thirunilath Gangadharan vs Thirunilath Gangadharan
2021 Latest Caselaw 2613 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

             THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                                &

             THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

      FRIDAY, THE 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942

                      OP (RC).No.112 OF 2019

    AGAINST THE ORDERS DATED 06.06.2019 IN IA NO.2451/2017 AND
     2452/2017 IN RCP NO.41/2016 OF RENT CONTROL COURT,TIRUR


PETITIONER/PETITIONER/RESPONDENT:

             THIRUNILATH GANGADHARAN,S/O. KAKKU MASTER,
             AGED 67 YRS, TIRUR AMSOM DESOM, POST TIRUR,
             TIRUR TALUK, MALAPPURAM DISTRICT

             BY ADV. SRI.C.M.MOHAMMED IQUABAL

RESPONDENTS/RESPONDENTS/PETITIONERS:

      1      SAFIYA,AGED 54 YRS,
             W/O. MECHERI ABOOBACKER, TIRUR AMSOM,
             THUMARAKKAVU DESOM, POST TIRUR, TIRUR TALUK,
             MALAPPUARAM DISTRICT, PIN - 676 101

      2      ANSAS,AGED 33 YRS,
             S/O. MECHERI ABOOBACKER, TIRUR AMSOM,
             THUMARAKKAVU DESOM, POST TIRUR, TIRUR TALUK,
             MALAPPUARAM DISTRICT, PIN - 676 101

      3      ANSEERA,AGED 32 YRS
             D/O. MECHERI ABOOBACKER, TIRUR AMSOM,
             THUMARAKKAVU DESOM, POST TIRUR, TIRUR TALUK,
             MALAPPUARAM DISTRICT, PIN - 676 101

      4      MUHAMMED HASID,AGED 28 YRS
             S/O. MECHERI ABOOBACKER, TIRUR AMSOM, THUMARAKKAVU
             DESOM, POST TIRUR, TIRUR TALUK, MALAPPUARAM DISTRICT,
             PIN - 676 101

      5      HASEENA,AGED 24 YEARS
             D/O. MECHERI ABOOBACKER, TIRUR AMSOM,
             THUMARAKKAVU DESOM, POST TIRUR, TIRUR TALUK,
             MALAPPUARAM DISTRICT, PIN - 676 101
 OP(RC) No.112 of 2019            2

       6       MUHAMMED HASIM,AGED 15 YRS
               S/O. MECHERI ABOOBACKER, TIRUR AMSOM,
               THUMARAKKAVU DESOM, POST TIRUR, TIRUR TALUK,
               MALAPPUARAM DISTRICT, PIN - 676 101

               [RESPONDENT BY GUARDIAN AND MOTHER 1ST RESPONDENT]

               R2, R4 BY ADV. SRI.JAMSHEED HAFIZ
               R2, R4 BY ADV. SMT.T.S.SREEKUTTY

     THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON
22.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(RC) No.112 of 2019                    3




                            [OP (RC).112/2019]


                                 JUDGMENT

Dated this the 22nd day of January 2021

Hariprasad, J.

Heard the learned counsel for the petitioner and respondents.

2. Petitioner is the respondent/tenant in R.C.P. No. 41 of 2016 before

the Rent Control Court, Tirur. He was sought to be evicted by the

respondents/landlords under Sections 11(3) and 11(4)(v) of the Kerala Buildings

(Lease and Rent Control) Act, 1965 (in short, "B.R.C. Act"). Petitioner remained

absent at the time of trial and he was set exparte. Ext.P1 is the order of eviction

passed against the petitioner exparte. Petitioner filed Ext.P3 application to set

aside the exparte order along with Ext.P2 application to condone the delay in

filing the application. Rent Control Court dismissed the delay condonation

petition and consequently the petition to set aside the exparte order finding that

the ratio in Ratheesh v. A.M.Chacko and another (2018 (5) KHC 35) clearly

shows that the Rent Control Court has no authority to invoke power under

Section 5 of the Limitation Act. The decision in Ratheesh's case was doubted

and referred to a Full Bench. A Full Bench of this Court in Hamsa K.K. and

others v. Athikottu Snehaletha and others (2020 (6) KHC 609) by judgment

dated 03.12.2020 found that the decision in Ratheesh's case is legally incorrect.

In short, the Rent Control Court in an appropriate case has power to invoke

Section 5 of the Limitation Act. In the light of the above Full Bench decision the

order passed by the court below is not sustainable.

In the result, Exts.P6 and P7 orders passed by the Rent Control

Court are set aside. We direct the Rent Control Court, Tirur to dispose of Exts.P2

and P3 applications on merit within a period of one month from the date of

receipt of a copy of this judgment. There shall be an order of stay of execution of

Ext.P1 order until disposal of the above applications.

Sd/-

A.HARIPRASAD

JUDGE

Sd/-

T.V.ANILKUMAR

JUDGE

cks

APPENDIX OF OP (RC) 112/2019 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE ORDER DATED 21.2.2018 IN R.C.P.NO. 41/2016 OF THE RENT CONTROL COURT, TIRUR

EXHIBIT P2 THE TRUE COPY OF I.A.2451/2018 IN RCP 41/2016 OF THE RENT CONTROL COURT, TIRUR DATED 19.11.2018

EXHIBIT P3 THE TRUE COPY OF I.A.2452/2018 IN RCP 41/2016 OF THE RENT CONTROL COURT, TIRUR DATED 19.11.2018

EXHIBIT P4 THE TRUE COPY OF THE COUNTER IN I.A.2451/2018 IN RCP 41/2016 OF THE RENT CONTROL COURT, TIRUR DATED 25.2.2019

EXHIBIT P5 THE TRUE COPY OF THE COUNTER IN I.A.2452/2018 IN RCP 41/2016 OF THE RENT CONTROL COURT, TIRUR DATED 25.2.2019

EXHIBIT P6 THE TRUE COPY OF THE ORDER IN I.A.2451/2017 IN RCP 41/2016 OF THE RENT CONTROL COURT, TIRUR DATED 6.6.2019

EXHIBIT P7 THE TRUE COPY OF THE ORDER IN I.A.2452/2017 IN RCP 41/2016 OF THE RENT CONTROL COURT, TIRUR DATED 60602019

EXHIBIT P8 THE TRUE COPY OF E.P.NO. 174/2018 IN RCP 41/2016 OF THE MUNSIFF COURT, TIRUR DATED 4.7.2018

EXHIBIT P9 THE TRUE COPY OF THE COUNTER OF THE PETITIONER IN E.P.NO.174/2018 IN RCP 41/2016 OF THE MUNSIFF COURT, TIRUR DATED 4.4.2019 Respondents' exhibits:NIL