Kerala High Court
K.M.Abdul Samad vs Muhamed Rafi Saithalavi on 29 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
MONDAY,THE 29TH DAY OF NOVEMBER 2021/8TH AGRAHAYANA,1943
R.C.REV.NO.141 OF 2021
AGAINST THE JUDGMENT DATED 23.09.2020 IN R.C.A.NO.166 OF
2019 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT
JUDGE), KOZHIKODE AND THE ORDER DATED 13.08.2019 IN
I.A.NO.2081 OF 2019 IN R.C.P.NO.186 OF 2018 OF THE RENT
CONTROL COURT (PRINCIPAL MUNSIFF-I), KOZHIKODE
REVISION PETITIONER:
K.M.ABDUL SAMAD,
AGED 63 YEARS, S/O. M.ALI KOYA, ROOM NO.8/16,
R.C.ROAD, NEAR TAGORE CENTENARY HALL,
NAGARAM AMSOM & DESOM, KOZHIKODE-673 032.
BY ADVS.
SRI.K.M.FIROZ
SMT.M.SHAJNA
RESPONDENT:
MUHAMMED RAFI SAITHALAVI
AGED 51 YEARS, S/O. SAITHALAVI, THOTTUNGAL
VALAPPIL, GRAND HOUSE, FRANCIS ROAD, NAGARAM
AMSOM AND DESOM, KOZHIKODE TALUK, PIN-673 001.
BY ADV SRI.G.SREEKUMAR (CHELUR)
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 29.11.2021, ALONG WITH R.C.Rev.NO.142 OF 2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.C.Rev.Nos.141 & 142 of 2021 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
MONDAY,THE 29TH DAY OF NOVEMBER 2021/8TH AGRAHAYANA, 1943
R.C.REV.NO.142 OF 2021
AGAINST THE ORDER DATED 23.09.2020 IN R.P.NO.1 OF 2020 IN
I.A.NO.2834 OF 2019 IN R.C.A.NO.166 OF 2019 OF THE RENT
CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE) KOZHIKODE AND
THE ORDER DATED 26.11.2019 IN R.C.P.NO.186 OF 2018 OF THE
RENT CONTROL COURT (PRINCIPAL MUNSIFF-I), KOZHIKODE
REVISION PETITIONER:
K.M.ABDUL SAMAD
AGED 63 YEARS, S/O. M.ALI KOYA, ROOM NO.8/16,
R.C.ROAD, NEAR TAGORE CENTENARY HALL, NAGARAM
AMSOM AND DESOM, KOZHIKODE-673 032.
BY ADVS.
SRI.K.M.FIROZ
SMT.M.SHAJNA
RESPONDENT:
MUHAMMED RAFI SAITHALAVI
AGED 51 YEARS, S/O. SAITHALAVI, THOTTUNGAL
VALAPPIL, GRAND HOUSE, FRANCIS ROAD, NAGARAM
AMSOM AND DESOM, KOZHIKODE TALUK, PIN-673 001.
BY ADV SRI.G.SREEKUMAR (CHELUR)
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 29.11.2021, ALONG WITH R.C.Rev.NO.141 OF
2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.C.Rev.Nos.141 & 142 of 2021 3
ORDER
Anil K. Narendran, J.
The petitioner in R.C.Rev.Nos.141 of 2021 and 142 of
2021 is the respondent-tenant in R.C.P.No.186 of 2018 on the
file of the Rent Control Court (Principal Munsiff-I), Kozhikode, a
petition filed by the respondent herein-landlord, under Section
11(3) of the Kerala Buildings (Lease and Rent Control) Act,
1965, seeking an order for the eviction of the tenant from the
petition schedule building. Before the Rent Control Court, the
landlord filed I.A.No.2081 of 2019, an application under Section
12 of the Act, seeking an order directing the tenant to pay
admitted arrears of rent as on the date of the order and
continue to pay rent for the subsequent period, and in case of
default, stop further proceedings in R.C.P.No.186 of 2018,
under Section 12(3) of the Act. In that interlocutory application,
the Rent Control Court passed the order dated 13.08.2019,
whereby the tenant was directed to pay admitted rent at the
rate of Rs.1,325/-, within four weeks from the date of that
order. The said order was followed by the order dated
26.11.2019 in R.C.P.No.186 of 2018, whereby the Rent Control
Court stopped further proceedings in that matter, invoking the
provisions under Section 12(3) of the Act, and the tenant is
directed to put the landlord in vacant possession of the petition
schedule building.
2. Challenging the order passed by the Rent Control
Court in I.A.No.2081 of 2019 in R.C.P.No.186 of 2018, the
tenant filed R.C.A.No.166 of 2019 before the Rent Control
Appellate Authority (District Judge), Kozhikode, under Section
18(1)(b) of the Act. That appeal was filed along with
I.A.No.2834 of 2019, an application filed under Section 5 of the
Limitation Act, 1963 seeking an order to condone the delay of
40 days. In that application for condonation of delay, the
Appellate Authority passed an order dated 16.09.2020. which
reads thus;
"Respondent appeared and filed counter. The appeal is
filed against the order of payment of rent under Section
12(3) of the Act. The petitioner has not paid arrears of
rent so far. He has not filed any counter in that petition.
The petition is allowed on deposit of/payment of
Rs.50,000/- as arrears of rent within 7 days. To
23.09.2020."
3. The aforesaid order was followed by the order dated
23.09.2020 in the application for condonation of delay, which
reads thus;
"The petitioner has not complied with the order by
payment of arrears of rent. The admitted arrears
according to the respondent is Rs.95,934/- from
01.06.2013 to 06.2019, at the rate of Rs.1,325/-. A
portion of the amount of arrears of rent has ordered to
pay [sic: has been ordered to be paid] for condoning the
delay. Still, the petitioner has not paid it. He is the
defaulter in payment of rent. So he is not entitled to
continue the matter by way of rent control appeal. Hence
the petition is dismissed."
4. By the judgment dated 23.09.2020, the Appellate
Authority dismissed R.C.A.No.166 of 2019 as time barred. The
said judgment reads thus;
"I.A.No.2834 of 2019 is dismissed. The R.C.A. is barred by
limitation. Hence dismissed."
5. Seeking review of the order dated 16.09.2020 in
I.A.No.2834 of 2019 in R.C.A.No.166 of 2019, the tenant filed
R.P.No.1 of 2020, which ended in dismissal by the order dated
23.09.2020. The Appellate Authority dismissed the review
petition on the ground that there is no error apparent on the
face of record. The Appellate Authority observed that the
petitioner has not produced any receipt for payment of arrears
of rent. He is a defaulter of payment of rent, who has no right
to continue the appeal filed under Section 18(1)(b) of the Act,
in view of the provisions under Section 12. Since the petitioner
is not ready to clear off the arrears of rent to continue the
appeal, the delay cannot be condoned.
6. The petitioner-tenant is before this Court in
R.C.Rev.No.141 of 2021, under Section 20 of the Act,
challenging the judgment dated 23.09.2020 of the Appellate
Authority in R.C.A.No.166 of 2019. The petitioner-tenant filed
R.C.Rev.No.142 of 2021 before this Court challenging the order
dated 23.09.2020 of the Appellate Authority in R.P.No.1 of 2020
in I.A.No.2834 of 2019 in R.C.A.No.166 of 2019.
7. On 25.10.2021, when R.C.Rev.No.141 of 2021 came
up for admission, this Court issued urgent notice on admission
by speed post to the respondent, returnable within three weeks.
In I.A.No.1 of 2021 this Court passed an interim order staying
the operation and execution of the order dated 26.11.2019 of
the Principal Munsiff Court-I, Kozhikode in E.P No.152 of 2020
in R.C.P.No.186 of 2018, for a period of one month. In
R.C.Rev.No.142 of 2021, this Court issued urgent notice on
admission by speed post to the respondent, returnable within
three weeks.
8. Heard the learned counsel for the petitioner-tenant
and also the learned counsel for the respondent-landlord.
9. The learned counsel for the petitioner-tenant would
contend that the impugned judgment and order of the Appellate
Authority are vitiated by total non-application of mind. The said
judgment and order are issued without properly appreciating
the legal and factual contentions raised by the tenant.
10. Per contra, the learned counsel for the respondent-
landlord would contend that the impugned judgment and order
of the Appellate Authority are perfectly legal, which warrants no
interference in exercise of the revisional jurisdiction of this
Court under Section 20 of the Act. In view of the provisions
under Section 12 of the Act, the Appellate Authority cannot be
found fault with in dismissing the interlocutory application filed
by the tenant for condonation of delay and dismissing the Rent
Control Appeal as time barred, for the reasons stated in the
impugned judgment and order.
11. The learned counsel for the respondent-landlord has
also raised a contention that R.C.A.No.166 of 2019 filed by the
tenant is not maintainable under Section 18(1)(b) of the Act.
12. We do not propose to consider the aforesaid
contention of the landlord in these Rent Control Revisions, since
the scope of these revisions is only the legality of otherwise of
the impugned judgment and order of the Appellate Authority
whereby R.C.A.No.166 of 2019 filed by the tenant stands
dismissed as time barred, without condoning the delay of 40
days in filing that R.C.A. Therefore, the contention of the
landlord as to maintainability of R.C.A.No.166 of 2019 is left
open.
13. Section 12 of the Act deals with payment or deposit
of rent during the pendency of proceedings for eviction. As per
Section 12(1), no tenant against whom an application for
eviction has been made by a landlord under Section 11, shall be
entitled to contest the application before the Rent Control Court
under that Section, or to prefer an appeal under Section 18
against any order made by the Rent Control Court on the
application, unless he has paid or pays to the landlord, or
deposits with the Rent Control Court or the Appellate Authority,
as the case may be, all arrears of rent admitted by the tenant
to be due in respect of the building up to the date of payment
or deposit, and continues to pay or to deposit any rent which
may subsequently become due in respect of the building, until
the termination of the proceedings before the Rent Control
Court or the Appellate Authority, as the case may be. As per
Section 12(2), the deposit under sub-section (1) shall be made
within such time as the court may fix and in such manner as
may be prescribed and shall be accompanied by the fee
prescribed for the service of notice referred to in sub-section
(4). As per the proviso to Section 12(2), the time fixed by the
court for the deposit of the arrears of rent shall not be less than
four weeks from the date of the order and the time fixed for the
deposit of rent which subsequently accrues due shall not be less
than two weeks from the date on which the rent becomes due.
As per Section 12(3) of the Act, if any tenant fails to pay or to
deposit the rent as aforesaid, the Rent Control Court or the
Appellate Authority, as the case may be, shall, unless the
tenant shows sufficient cause to the contrary, stop all further
proceedings and make an order directing the tenant to put the
landlord in possession of the building. As per Section 12(4),
when any deposit is made under sub-section (1), the Rent
Control Court or the Appellate Authority, as the case may be,
shall cause notice of the deposit to be served on the landlord in
the prescribed manner, and the amount deposited may, subject
to such conditions as may be prescribed, be withdrawn by the
landlord on application made by him to the Rent Control Court
or the Appellate Authority in that behalf.
14. In Joy Daniel v. N.A. Ibrahimkutty and others
[2020 (2) KHC 543], on the question as to whether Section
12(1) of the Kerala Buildings (Lease and Rent Control) Act casts
an obligation on the tenant to pay the admitted arrears of rent
in order to contest an appeal filed challenging an order under
Section 12(3), which is to the effect of stoppage of the
proceedings and directing the tenant to put the landlord in
possession of the premises, a Full Bench of this Court held that,
Section 12(1) provides such an obligation only in the case of an
application under Section 11 or in the case of an appeal
preferred under Section 18 against an order passed by the Rent
Control Court on an application under Section 11.
15. In Pochappan Narayanan v. Gopalan [1990 (2)
KLT 1] one of the contentions put forward by the learned
counsel for the landlord was that, payment or deposit of arrears
of rent admitted by the tenant to be due is a condition
precedent which has to be satisfied by the tenant, before he
can prefer an appeal against an order of eviction made by the
Rent Control Court. Reliance was placed on the language of
Section 12(1) of the Kerala Buildings (Lease and Rent Control)
Act, which provides that no tenant shall be entitled to prefer an
appeal under Section 18 against an order of eviction made by
the Rent Control Court unless he has paid or deposited all
arrears of rent admitted by the tenant to be due till the date of
preferring the appeal. The Division Bench found that the right of
appeal against an order of eviction made by the Rent Control
Court is not conferred by Section 12 of the Act. The right of
appeal is conferred by Section 18. Section 12 imposes certain
obligations on the tenant of paying or depositing admitted rent
during the pendency of the proceedings for eviction, and the
consequences for committing default in fulfilling those
obligations. The word 'prefer' used in Section 12(1) is not to
convey the same meaning with which it has been employed in
Section 18, which confers a right of appeal against an order of
the Rent Control Court. The word 'prefer' not having been
defined in the Act, it has to be assigned the ordinary meaning
having regard to the context in which the said word is used.
The meaning of the word 'prefer' given in Black's Law
Dictionary, Fifth Edition is "to bring before; to prosecute; to try;
to proceed with". It is therefore clear that the word 'prefer' can
be used in the context of Section 12(1) for conveying the
lodging of the appeal or prosecution of the appeal or proceeding
with the appeal. Section 12(3) of the Act, which speaks of the
consequences of the failure to pay or deposit the rent as
contemplated by Sections 12(1) and (2), says that all further
proceedings should be stopped and an order made directing the
tenant to put the landlord in possession of the building. The
consequence contemplated is not dismissal of the appeal on the
ground that it is not maintainable but only to stop all further
proceedings in the appeal. Therefore, the Division Bench held
that the word 'prefer' has been used in Section 12(1) of the Act
not to convey the lodging of the appeal but to convey that the
appeal already lodged in accordance with Section 18 shall not
be proceeded with or prosecuted further if the conditions
specified in Section 12(1) are not fulfilled. Paying or depositing
of all arrears of rent admitted by the tenant is not a condition
precedent for presenting an appeal under Section 18 of the Act.
The appeal gets properly lodged when the same is presented in
accordance with Section 18 of the Act.
16. In Suvarna v. Ibrahimkutty and others [2021
(6) KHC 250] a Division Bench of this Court held that the
object of the provisions of Section 12(1) of the Act is to deny
the defaulting tenant the right to contest the application for
eviction before the Rent Control Court, or to prefer an appeal
under Section 18 of the Act against any order made by the Rent
Control Court on an application made by a landlord under
Section 11, unless he pays to the landlord, or deposits with the
Rent Control Court or the Appellate Authority, as the case may
be, all arrears of rent admitted by him to be due in respect of
the building, up to the date of payment or deposit, and
continues to pay or to deposit any rent which may subsequently
become due in respect of the building, until the termination of
the proceedings before the Rent Control Court or the Appellate
Authority, as the case may be.
17. In Suvarna the Division Bench reiterated the law
laid down in Pochappan Narayanan that, before the
consequences contemplated by Section 12(3) of the Act can
ensue, the conditions specified in Section 12(1) and (2) have to
be satisfied. It is therefore clear that, before any steps can be
taken under Section 12(3) for making an order against the
tenant who has committed default in paying or making the
deposit as contemplated by Section 12(1), the procedure
prescribed by Section 12(2) has to be satisfied. A tenant who
does not fulfil the obligations imposed on him by Section 12(1)
cannot be visited with the penal consequences contemplated by
Section 12(3), unless all the conditions specified by Section
12(2) are satisfactorily fulfilled. Even after the court acts in
accordance with Section 12(2) and the tenant still commits
default, the tenant has to be given one more opportunity of
showing cause as to why penal consequences contemplated by
Section 12(3) should not be imposed on him. It is only when
the court is not satisfied with the cause shown that it can pass
an order stopping all further proceedings and directing the
tenant to put the landlord in possession of the building.
18. In the instant case, R.C.A.No.166 of 2019 filed by
the tenant before the Appellate Authority, under Section 18(1)
(b) of the Act, was accompanied by I.A.No.2834 of 2019 filed
under Section 5 of the Limitation Act, seeking an order to
condone the delay of 40 days.
19. 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 extension of
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.
20. 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.
21. 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 of the institution of courts.
22. 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 conception 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.
23. In Rafeek and another v. K. Kamarudeen and
another [2021 (4) KHC 34] a Division Bench of this Court
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 conception of reasonableness and it
cannot be allowed a totally unfettered free play, as held by the
Apex Court in Esha Bhattacharjee [(2013) 12 SCC 649].
Inordinate delay, which attracts doctrine of prejudice, warrants
strict approach, whereas, a delay of short duration or few days,
which may not attract doctrine of prejudice, calls for a liberal
delineation. An application for condonation of delay should be
drafted with careful concern and no court shall deal with such
an application in a routine manner.
24. When the extent of delay in R.C.A.No.166 of 2019,
which was sought to be condoned in I.A.No.2834 of 2019 filed
under Section 5 of the Limitation Act is only 40 days, the
Appellate Authority went wrong in directing the tenant to
deposit Rs.50,000/- towards arrears of rent, as a condition for
condonation of delay. Admittedly, R.C.A.No.166 of 2019 is not
an appeal filed by the tenant under Section 18 of the Act
against any order made by the Rent Control Court on an
application made by a landlord under Section 11. Therefore, the
provisions under Section 12(1) of the Act has no application in
the proceedings before the Appellate Authority in R.C.A.No.166
of 2019. When the extent of delay sought to be condoned is
only 40 days, the Appellate Authority ought not to have
imposed such onerous condition for condonation of delay.
Considering the explanation offered in the affidavit filed in
support of I.A.No.2834 of 2019 in R.C.A.No.166 of 2019 the
Appellate Authority ought to have condoned the delay without
imposing any condition. In such circumstances, we find that the
impugned judgment and order of the Rent Control Appellate
Authority, Kozhikode cannot be sustained in law.
25. In the result, these Rent Control Revisions are
allowed by setting aside the impugned judgment and order of
the Rent Control Appellate Authority, Kozhikode, thereby
restoring R.C.A.No.166 of 2019 to file and allowing I.A.No.2834
of 2019 in R.C.A.No.166 of 2019 by condoning the delay of 40
days in filing the appeal.
26. Since the contention raised by the respondent-
landlord that R.C.A.No.166 of 2019 filed by the petitioner-
tenant is not maintainable under Section 18(1)(b) of the Act is
left open, the landlord shall raise such a contention before the
Appellate Authority, which shall be dealt with appropriately by
the Appellate Authority, as a preliminary issue, and a decision
taken thereon within one month from the date of production of
a certified copy of this order.
In case the decision on the preliminary issue is against the
landlord, the Appellate Authority shall finally dispose of
R.C.A.No.166 of 2019 as expeditiously as possible, at any rate,
within a further period of three months.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
