Prasanth K.P vs Kunhabdulla
2021 Latest Caselaw 18440 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
          THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                     &
                THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943
                         R.C.REV.NO.99 OF 2021

AGAINST THE JUDGMENT IN R.C.A.NO.91 OF 2020 AND THE ORDER IN
 I.A.NO.1 OF 2020 IN R.C.A.NO.91 OF 2020 OF THE RENT CONTROL
      APPELLATE AUTHORITY (DISTRICT JUDGE), KOZHIKODE,
DATED 26.02.2021, ARISING OUT OF THE ORDER IN R.C.P.NO.91 OF
    2020 OF THE RENT CONTROL COURT (MUNSIFF-MAGISTRATE),
                KOZHIKODE, DATED 03.01.2020.
PETITIONER/APPELLANT/RESPONDENT:

          PRASANTH K.P.,AGED 45 YEARS
          S/O. KANNAN, RESIDING AT KULANGARA PUTHOYOTTIL
          HOUSE, SARASWATHI BHAVAN, AYANIKKAD P.O.,
          KOYILANDY-673521.

           BY ADV K.V.RASHMI



RESPONDENTS/RESPONDENTS/PETITIONER :

     1     KUNHABDULLA,
           S/O. MOIDEEN, AGED 62 YEARS, KIZHAKKE PUTHUKKUDI
           HOUSE, AYANIKKAD P.O., KOYILANDY-673521.

     2     DR. JAMSHEER ABDULLA P.K.,
           S/O. KUNHABDULLA, KIZHAKKE PUTHUKKUDI HOUSE,
           AYANIKKAD P.O., KOYILANDY-673521.

          BY ADVS.
                SRI.K.LAKSHMINARAYANAN
                SMT.SATHYASHREE PRIYA EASWARAN

      THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON   08.09.2021,   THE    COURT    ON    THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                   -2-

RCREV. NO. 99 OF 2021



                               ORDER

Anil K. Narendran, J.

The petitioner is the respondent-tenant in R.C.P.No.13 of

2019 on the file of the Rent Control Court (Munsiff-

Magistrate), Payyoli, a petition filed by the respondents

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

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

eviction of the petition schedule shop room, which is occupied

by the tenant on the strength of a rental agreement dated

05.10.2017, fixing the monthly rent at the rate of

Rs.36,000/-. Before the Rent Control Court, the tenant was

set ex-parte. On the side of the landlords, PW1 was examined

and Exts.A1 to A3 were marked. By the order dated

03.01.2020, the Rent Control Court allowed R.C.P.No.13 of

2019, granting an order of eviction under Sections 11(2)(b)

and 11(3) of the Act. Challenging the order of eviction, the

tenant filed R.C.A.No.91 of 2020 before the Rent Control

Appellate Authority (District Judge), Kozhikkode, along with

I.A.No.1 of 2020, an application filed under Section 5 of

Limitation Act, 1963, seeking condonation of delay of 245

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days in filing the appeal. The Appellate Authority, by order

dated 26.02.2021 dismissed I.A.No.1 of 2020. The said order

reads thus;

"The petitioner is a defaulter in payment of rent. Hence he has not right to contest the matter. A delay of 245 days in filing the appeal. It is a long delay, cannot be condoned for agitating a Rent Control petition by a defaulter. Hence I.A is dismissed."

In view of the order in I.A.No.1 of 2020, the Appellate

Authority dismissed R.C.A.No.91 of 2020 as time barred, by

the judgment dated 26.02.2021.

2. Feeling aggrieved by the order dated 26.02.2021 in

I.A.No.1 of 2020 and the judgment dated 26.02.2021 in

R.C.A.No.91 of 2020, the petitioner-tenant is before this Court

in this Rent Control Revision filed under Section 20 of the Act.

3. On 14.07.2021, when this revision came up for

admission, this Court admitted the matter on file and issued

notice to the respondents. In I.A.No.1 of 2021, this Court

granted an interim order of stay of the execution proceedings

in E.P.No.57 of 2020 in R.C.P.No.13 of 2019 on the file of the

Rent Control Court, Payyoli, for a period of three months.

4. Heard the learned counsel for the petitioner and

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also the learned counsel for the respondents.

5. The issue that arises for consideration in this Rent

Control Revision is as to whether the impugned order dated

26.02.2021 in I.A.No.1 of 2020 and the judgment dated

26.02.2021 in R.C.A.No.91 of 2020 of the Rent Control

Appellate Authority can be sustained in law.

6. I.A.No.1 of 2020 is an application filed by the

petitioner-tenant under Section 5 of Limitation Act, 1963

seeking condonation of delay of 245 days in filing

R.C.A.No.91 of 2020, an appeal filed before the Rent Control

Appellate Authority, under Section 18(1)(b) of the Act.

7. Section 18 of the Kerala Buildings (Lease and Rent

Control) Act, deals with appeal. As per Section 18(1)(a) of the

Act, the Government may, by general or special order notified

in the Gazette, confer on such officers and authorities not

below the rank of a Subordinate Judge the powers of appellate

authorities for the purposes of this Act in such areas or in

such classes of cases as may be specified in the order. As per

Section 18(1)(b) of the Act, any person aggrieved by an order

passed by the Rent Control Court may, within thirty days from

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the date of such order, prefer an appeal in writing to the

Appellate Authority having jurisdiction. In computing the thirty

days aforesaid, the time taken to obtain a certified copy of the

order appealed against shall be excluded.

8. In Gopakumar v. Ancy Thankachan Philip

[2019 (3) KHC 760] a Division Bench of this Court held

that, an Appellate Authority under Section 18 of the Kerala

Buildings (Lease and Rent Control) Act, 1965 is a District

Judge, enjoined to adjudicate cases in accordance with the

mandate of the Code of Civil Procedure, 1908 and the

provisions of the Limitation Act, 1963 are applicable to the

proceedings before the Appellate Authority. However, the Act

being a special law, regard must be had to the provisions in

Section 29(2) of the Limitation Act.

9. 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

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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.

10. 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

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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.

11. 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.

12. 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

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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.

13. In Esha Bhattacharjee, after summerising the

principles applicable while dealing with an application for

condonation of delay, the Apex Court added some more

guidelines taking note of the present day scenario, that 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. 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.

14. Though the expression 'sufficient cause' employed

in Section 5 of the Limitation Act 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

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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.

15. In Woolcombers of India Ltd. v.

Woolcombers Workers Union [(1974) 3 SCC 318] the

Apex Court, while considering the challenge made against an

award under Section 11 of the Industrial Disputes Act, 1947,

held that the giving of reasons in support of their conclusions

by judicial and quasi judicial authorities when exercising initial

jurisdiction is essential for various reasons. Firstly, it is

calculated to prevent unconscious unfairness or arbitrariness

in reaching the conclusions. The very search for reasons will

put the authority on the alert and minimise the chances of

unconscious infiltration of personal bias or unfitness in the

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conclusion. The authority will adduce reasons which will be

regarded as fair and legitimate by a reasonable man and will

discard irrelevant or extraneous considerations. Secondly, it is

a well known principle that justice should not only be done but

should also appear to be done. Unreasoned conclusions may

be just but they may not appear to be just to those who read

them. Reasoned conclusions, on the other hand, will have also

the appearance of justice. Thirdly, it should be remembered

that an appeal generally lies from the decisions of judicial and

quasi judicial authorities to the Apex Court by special leave

granted under Article 136. A judgment which does not

disclose the reasons, will be of little assistance to the court.

The court will have to wade through the entire record and find

for itself whether the decision in appeal is right or wrong.

Therefore, the Apex Court emphasised that judicial and quasi

judicial authorities should always give the reasons in support

of their conclusions.

16. In English v. Emery Reimbold and Strick Ltd.

[(2002) 1 WLR 2409] the Court of Appeal held that, a

judicial decision which affected the substantive rights of the

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parties should be reasoned, although some judicial decisions,

e.g., interlocutory case management decisions, did not require

reasons; that, while a judge was not obliged to deal with

every argument or identify or explain every factor which

weighed with him, the issues the resolution of which were

vital to his conclusion should be identified and the manner in

which he resolved them briefly but clearly explained, so that

the judgment enabled the parties and any appellate tribunal

readily to analyse the reasoning essential to his decision.

17. In Assistant Commissioner, Commercial Tax

Department v. Shukla and Brothers [(2010) 4 SCC 785]

the Apex Court held that, the principle of natural justice has

twin ingredients; firstly, the person who is likely to be

adversely affected by the action of the authorities should be

given notice to show cause thereof and granted an

opportunity of hearing and secondly, the orders so passed by

the authorities should give reason for arriving at any

conclusion showing proper application of mind. Violation of

either of them could in the given facts and circumstances of

the case, vitiate the order itself. Such rule being applicable to

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the administrative authorities certainly requires that the

judgment of the court should meet with this requirement with

higher degree of satisfaction.

18. In Shukla and Brothers the Apex Court held

further that, a litigant who approaches the court with any

grievance in accordance with law is entitled to know the

reasons for grant or rejection of his prayer. Reasons are the

soul of orders. Non-recording of reasons could lead to dual

infirmities; firstly, it may cause prejudice to the affected party

and secondly, more particularly, hamper the proper

administration of justice. These principles are not only

applicable to administrative or executive actions, but they

apply with equal force and, in fact, with a greater degree of

precision to judicial pronouncements. A judgment without

reasons causes prejudice to the person against whom it is

pronounced, as that litigant is unable to know the ground

which weighed with the court in rejecting his claim and also

causes impediments in his taking adequate and appropriate

grounds before the higher court in the event of challenge to

that judgment.

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19. In the instant case, the extent of delay in filing

R.C.A.No.91 of 2020 is 245 days, which was sought to be

condoned by filing I.A.No.1 of 2020 under Section 5 of the

Limitation Act. In the impugned order dated 26.02.2021 in

I.A.No.1 of 2020, the Appellate Authority has not even

adverted to, either the explanation offered by the tenant for

condonation of delay or the objection of the landlords against

condonation of delay. Instead, in the order dated 26.02.2021,

the Appellate Authority has stated that, since the petitioner-

tenant is a defaulter in payment of rent, who has no right to

contest the matter, the long delay of 245 days in filing the

appeal cannot be condoned for agitating a Rent Control Appeal

by a defaulter.

20. In view of the law laid down in Shukla and

Brothers [(2010) 4 SCC 785], in the order passed on an

application for condonation of delay filed under Section 5 of

the Limitation Act, the Rent Control Appellate Authority should

give brief reasons for arriving at a conclusion as to whether

the appellant has shown 'sufficient cause' for the condonation

of delay in filing the appeal, after adverting to the explanation

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offered by the appellant for condonation of delay and also the

contentions raised in the objection filed by the respondents,

showing proper application of mind.

21. Section 20 of the Kerala Buildings (Lease and Rent

Control) Act, 1965 deals with revision. As per Section 20(1) of

the Act, in cases where the Appellate Authority empowered

under Section 18 is a Subordinate Judge, the District Court,

and in other cases the High Court may, at any time, on the

application of any aggrieved party, call for and examine the

records relating to any order passed or proceedings taken

under this Act by such authority for the purpose of satisfying

itself as to the legality, regularity or propriety of such order or

proceedings, and may pass such order in reference thereto as

it thinks fit.

22. In view of the provisions under Section 20(1) of the

Act, in a revision petition filed against any order passed or

proceedings taken under the Act by the Appellate Authority,

this Court has to record its satisfaction as to the legality,

regularity or propriety of such order or proceedings. A cryptic

order passed by the Appellate Authority, like the one which is

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impugned in this Rent Control Revision, virtually makes the

revisional jurisdiction of this Court nugatory and ineffective,

inasmuch as, such an order which does not disclose any

reasons will be of little assistance to this Court, while

analysing the reasoning essential to such a decision.

23. The learned counsel for the respondents-landlords

would submit that the petitioner-tenant has kept the monthly

rent of the petition schedule shop room, in terms of Ext.A1

rent deed in arrears. Non-payment of monthly rent by the

tenant and his continued occupation of the petition schedule

shop room is causing serious prejudice to the landlords. The

attempt made by the tenant, who was set ex parte before the

Rent Control Court, is only to protract the matter stating one

reason or other.

24. Section 12 of the Kerala Buildings (Lease and Rent

Control) Act deals with payment or deposit of rent during the

pendency of proceedings for eviction. As per sub-section (1)

of Section 12, 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

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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 sub-section (2) of Section 12, 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 sub-

section (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.

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25. As per sub-section (3) of Section 12 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 sub-section (4) of Section 12, 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.

26. A tenant who fails to pay or to deposit 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 Appellate Authority, has

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to be dealt with appropriately, in accordance with the

provisions under Section 12 of the Act. But, that is not a

reason for rejecting the application for condonation of delay,

filed under Section 5 of the Limitation Act, by a cryptic order

like the one impugned in this Rent Control Revision, virtually

making the revisional jurisdiction of this Court nugatory and

ineffective. The Appellate Authority had adopted a casual and

callous approach in handling the application for condonation of

delay. We deprecate in the strongest words the casual and

callous approach adopted by the Appellate Authority in

handling I.A.No.1 of 2020 filed for condonation of delay in

filing R.C.A.No.91 of 2020.

27. In the result, this Rent Control Revision is allowed

by setting aside the order dated 26.02.2021 of Rent Control

Appellate Authority, Kozhikode, in I.A.No.1 of 2020 and also

the judgment dated 26.02.2021 in R.C.A.No.91 of 2020, for

the aforesaid reasons, and the matter is remanded to

Appellate Authority for fresh consideration of I.A.No.1 of 2020

in R.C.A.No.91 of 2020, taking note of the law laid down in

the decisions referred to supra and also the observations

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contained hereinbefore. The Appellate Authority shall pass a

reasoned order in I.A.No.1 of 2020 in R.C.A.No.91 of 2020, as

expeditiously as possible, at any rate, within a period of one

month from the date of appearance of both parties, who shall

appear before the Appellate Authority, on 22.09.2021.

Sd/-

ANIL K.NARENDRAN, JUDGE

Sd/-

K. BABU, JUDGE

AV/10/9