Kerala High Court
Susanth vs Sidharthan on 7 July, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
RCREV. NO. 95 OF 2022
AGAINST THE ORDER DATED 05/02/2019 IN R.C.P.NO.32 OF 2015
OF TEH RENT CONTROL COURT (MUNSIFF), CHAVAKKAD
AND THE JUDGMENT DATED 24/03/2022 IN R.C.A.NO.85 OF 2020
OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL
DISTRICT COURT -IV, THRISSUR
REVISION PETITIONER:
SUSANTH, AGED 35 YEARS
S/O.KOMBAN BABURAJ, GURUVAYUR AMSOM, MAMMIYUR
DESOM, CHAVAKKAD TALUK, GURUVAYUR P.O.,
THRISSUR - 680 101.
BY ADV. SRI. V.A.VINOD
RESPONDENT:
SIDHARTHAN, AGED 62 YEARS
S/O.THARAYIL APPUNNI, IRINGAPRAM AMSOM,
CHOOLPRAM DESOM, CHAVAKKAD TALUK, KOTTAPPADI
P.O., THRISSUR - 680 505.
BY ADV.SRI.P.RAMACHANDRAN
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 07.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
-2-
R.C.R.No.95 of 2022
ORDER
Anil K. Narendran, J.
The petitioner, who is the respondent-tenant in
R.C.P.No.32 of 2015 on the file of the Rent Control Court
(Munsiff), Chavakkad, a petition filed by the respondent herein-
landlord under Sections 11(2)(b) and 11(3) of the Kerala
Buildings (Lease and Rent Control) Act, 1956, seeking eviction
of the tenant from the petition schedule shop room. On receipt
of notice, the tenant entered appearance before the Rent
Control Court and filed counter. However, when the matter was
listed for trial, the learned counsel for the tenant reported no
instructions. Therefore, the Rent Control Court passed an ex-
parte order of eviction in R.C.P.No.32 of 2015, on 05.02.2019.
On 28.02.2019, the tenant filed I.A.No.1520 of 2019, for setting
aside the ex-parte order of eviction in R.C.P.No.32 of 2015.
Since I.A.No.1520 of 2019 was not supported by an application
for condonation of delay, the Rent Control Court dismissed the
same by the order dated 29.01.2020. On 19.02.2020, after
obtaining a certified copy of that order, the tenant filed
R.C.A.No.85 of 2020 before the IVth Additional Rent Control
Appellate Authority (Additional District Judge), Thrissur,
R.C.R.No.95 of 2022
challenging the original order of the Rent Control Court, i.e., the
ex-parte order of eviction dated 05.02.2019 in R.C.P.No.32 of
2015. That appeal was accompanied by I.A.No.3 of 2020, an
application filed under Section 5 of the Limitation Act, 1963
seeking condonation of delay of 465 days in filing that appeal,
to which the landlord filed counter. After considering the rival
contentions, the Appellate Authority, by the impugned order
dated 24.03.2022, dismissed I.A.No.3 of 2022, on the ground
that the tenant has not shown sufficient cause for condoning the
delay in filing the appeal. Paragraphs 9 to 15 of the said order
read thus;
"9. Points 1 and 2: Contention of the petitioner is that
he had filed IA.1520/2019 before the Rent Control
Court, Chavakkad for setting aside the impugned order
which was passed exparte in RCP.32/2015. According
to him, the said petition was dismissed by the Rent
Control Court. He claimed that the appeal was not filed
by him in time since he had filed IA.1520/2019 before
the Rent Control Court.
10. The petitioner has claimed that he is entitled for
the benefit of Sec.13 of the Limitation Act. Sec.13 of
the Limitation Act deals with exclusion of time in cases
where leave to sue or appeal as a pauper is applied for.
On going through the records, it is seen that the matter
does not come under the scope of Sec.13 of the
Limitation Act.
11. The present petition was filed on 15.06.2020.
Petitioner is however entitled for exemption of the
period after 15.03.2020, in view of the decision of the
R.C.R.No.95 of 2022
Hon'ble Supreme Court passed in re: cognizance for
extension of Limitation (SC) reported in ILR 2021 (4)
Kerala 1. But he has to show explanation for the delay
caused prior to 15.03.2020.
12. The only contention of the petitioner is that he did
not file appeal in view of his filing IA.1520/2019. It is
evident from the petition that he came up with the RCA
after dismissal of IA.1520/2019 by the Rent Control
Court. In spite of the same, the petitioner did not
disclose the date of dismissal of IA. 1520/2019. During
hearing of this petition, the learned counsel for the
petitioner submitted that he was bonafide proceeding
with IA.1520/2019 and that petition was dismissed by
the Rent Control Court on 29.01.2020 with an order
that the said petition was filed with delay which cannot
be condoned by the Rent Control Court. The learned
counsel submitted that the court was relying upon the
dictum then prevailing on that aspect. The learned
counsel argued that the petitioner is therefore entitled
for an exclusion of the time during which he was
proceeding with IA.1520/2019 before the Rent Control
Court. However, the order in IA.1520/2019 is not
produced by him in this matter. As stated above, the
learned counsel for the petitioner submitted that
IA.1520/2019 was dismissed on 29.01.2020.
13. The learned counsel for the respondent argued that
even if the argument of the learned counsel for the
petitioner is accepted, then also he is not entitled for a
favourable order in this petition. The learned counsel
for the respondent submitted that the petitioner did not
properly explain the delay caused even after
29.01.2020. It is to be noted that the petitioner is duty
bound to explain the delay of each and every day.
14. On going through the certified copy of
the impugned order produced along with the appeal, it
is seen that the application for copy of the impugned
order was given only on 31.01.2020. It is seen that the
copy was delivered on 19.02.2020. The petitioner did
not opt to prefer appeal till 15.03.2020 (The period of
R.C.R.No.95 of 2022
limitation thereafter is condoned as per in re:
cognizance for extension of Limitation (SC) reported in
ILR 2021(4) Kerala 1). No specific reason is stated by
the petitioner for not doing the same. Therefore, it
appears that intention of the petitioner is to delay the
matter further.
15. Considering all the above, it is found that the
petitioner did not show any sufficient ground to
condone the delay caused in filing RCA 85/2020. The
petition is therefore only to be dismissed. Considering
the facts and circumstances, petitioner is also liable for
the costs. Points are answered accordingly."
In view of the dismissal of I.A.No.3 of 2020 seeking condonation
of delay, the Appellate Authority by the judgment 24.03.2022
dismissed R.C.A.No.85 of 2020.
2. Challenging the aforesaid order in I.A.No.3 of 2020
and the judgment in R.C.A.No.85 of 2020 dated 24.03.2022 of
the Rent Control Appellate Authority and also the order dated
05.02.2019 of the Rent Control Court in R.C.P.No.32 of 2015,
the tenant is before this Court in this Rent Control Revision,
invoking the revisional jurisdiction of this Court under Section
20 of the Act.
3. On 22.06.2022, when this Rent Control Revision
came up for admission, this Court issued notice on admission to
the respondent-landlord. The learned counsel for the petitioner-
tenant was permitted to take out notice to the landlord through
R.C.R.No.95 of 2022
his counsel before the Munsiff's Court, Chavakkad, where
E.P.No.247 of 2020 in R.C.P.No.32 of 2015 is pending
consideration.
4. Heard the learned counsel for the petitioner-tenant
and also the learned counsel for the respondent-landlord.
5. The issue that arises for consideration in this Rent
Control Revision is as to whether any interference is warranted
on the orders of the authorities below, i.e., the order dated
24.03.2022 in I.A.No.3 of 2020 and the judgment dated
24.03.2022 in R.C.A.No.85 of 2020 of the Rent Control Appellate
Authority and also the order dated 05.02.2019 of the Rent
Control Court in R.C.P.No.32 of 2015.
6. The learned counsel for the petitioner-tenant would
submit that the orders of the authorities below are perverse and
patently illegal, which require interference in exercise of the
revisional jurisdiction of this Court under Section 20 of the Act.
7. On the other hand, the learned counsel for the
respondent-landlord would contend that since the interlocutory
application, i.e., I.A.No.1520 of 2019, filed by the tenant for
setting aside the ex-parte order of eviction was not supported
by an application for condonation of delay, the Rent Control
R.C.R.No.95 of 2022
Court cannot be found fault with in rejecting the same by the
order dated 29.01.2020. Thereafter, the tenant filed an appeal
under Section 18(1)(b) of the Act challenging the ex-parte order
of eviction dated 05.02.2019 in R.C.P.No.32 of 2015, which was
accompanied by I.A.No.3 of 2020 seeking condonation of delay
of 465 days in filing that appeal. After considering the rival
contentions, the Appellate Authority rightly found that the
petitioner has not offered sufficient cause for condoning the
delay in filing the appeal.
8. 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
R.C.R.No.95 of 2022
judgment of the High Court in ascertaining or computing the
prescribed period may be sufficient cause within the meaning of
this Section.
9. 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.
10. 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
R.C.R.No.95 of 2022
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.
11. 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. Para.21 of the judgment reads thus;
"21. From the aforesaid authorities the principles that can
broadly be culled out are:
21.1 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.
R.C.R.No.95 of 2022
21.2 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.
21.3 Substantial justice being paramount and pivotal
the technical considerations should not be given
undue and uncalled for emphasis.
21.4 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.
21.5 Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant
fact.
21.6 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 so that in the ultimate eventuate there is no
real failure of justice.
21.7 The concept of liberal approach has to
encapsule the conception of reasonableness and it
cannot be allowed a totally unfettered free play.
21.8 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.
21.9 The conduct, behaviour and attitude of a party
relating to its inaction or negligence are relevant
R.C.R.No.95 of 2022
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.
21.10 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.
21.11 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.
21.12 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.
21.13 The State or a public body or an entity
representing a collective cause should be given some
acceptable latitude."
12. 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 haphazard manner harbouring the
notion that the courts are required to condone delay on the
R.C.R.No.95 of 2022
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. Para.22 of the judgment reads thus;
"22. To the aforesaid principles we may add some more
guidelines taking note of the present day scenario. They
are:--
22.1 An application for condonation of delay should
be drafted with careful concern and not in a
haphazard 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.
22.2 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.
22.3 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.
22.4 The increasing tendency to perceive delay as a
non-serious matter and, hence, lackadaisical
propensity can be exhibited in a nonchalant manner
requires to be curbed, of course, within legal
parameters."
13. In Rafeek and another v. K. Kamarudeen and
R.C.R.No.95 of 2022
another [2021 (4) KHC 34 : (2021) 2 RCR (Rent) 223 :
2021 AIR CC 2752] a Division Bench of this Court in which
one among us [Anil K. Narendran, J] was a party 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.
14. In the instant case, as already notice hereinbefore,
the tenant filed I.A.No.1520 of 2019 before the Rent Control
Court on 28.02.2019, seeking an order to set aside the ex-parte
order of eviction dated 05.02.2019 in R.C.P.No.32 of 2015.
R.C.R.No.95 of 2022
However, that application was not accompanied by an
application for condonation of delay. In the affidavit filed in
support of that application, the tenant has taken a contention
that, the application is filed within the period of limitation, if the
period is calculated from the date of knowledge of the ex-parte
order of eviction. Instead of dismissing that application on
technicalities, the Rent Control Court ought to have directed the
tenant to file an application for condonation of delay, showing
sufficient cause for the delay. Such a course was not adopted by
the Rent Control Court. After the dismissal of that interlocutory
application, instead of challenging that order before the
appropriate forum, the tenant thought it fit to challenge the
original order, i.e., the ex-parte order of eviction dated
05.02.2019, by filing an appeal under Section 18(1)(b) of the
Act before the Rent Control Appellate Authority. That appeal was
filed with a delay of 465 days. However, the tenant was
prosecuting I.A.No.1520 of 2019 filed before the Rent Control
Court on 28.02.2019, till 29.01.2020. After the dismissal of
I.A.No.1520 of 2019, the tenant filed copy application on
31.01.2020 for obtaining a certified copy of the ex-parte order
of eviction dated 05.02.2019. He obtained certified copy of that
R.C.R.No.95 of 2022
order on 19.02.2020. Thereafter, the tenant filed R.C.A.No.85
of 2020 before the Rent Control Appellate Authority on
15.06.2020. In view of the decision of the Apex Court In
Re:cognizance for Extension of Limitation [2021 (5) KHC 508],
in computing the period of limitation for any suit, appeal,
application or proceedings, period from 15.03.2020 till
02.10.2021 shall stand excluded.
15. Having considered the averments in the affidavit filed
in support of the application for condonation of delay and the
law laid down in the decisions referred to supra, we find that
this is a fit case in which the delay in filing the appeal ought to
have condoned by the Appellate Authority, especially when the
application originally filed by the tenant to set aside the ex parte
order of eviction dated 05.02.2019 was one filed on 28.02.2019.
16. In such circumstances, this Rent Control Revision is
allowed by setting aside the order dated 05.02.2019 in
R.C.P.No.32 of 2015 and the order dated 29.01.2020 in
I.A.No.1520 of 2019 in R.C.P.No.32 of 2015 of the Rent Control
Court, Chavakkad; the order dated 24.03.2022 in I.A.No.3 of
2020 in R.C.A.No.85 of 2020 and also the judgment dated
24.03.2022 in R.C.A.No.85 of 2020 of the Rent Control Appellate
R.C.R.No.95 of 2022
Authority, Thrissur. The Rent Control Court is directed to dispose
of R.C.P.No.32 of 2015 on merits, as expeditiously as possible,
at any rate, within a period of three months from the date of
receipt of a certified copy of this order.
Both parties are directed to appear before the Rent Control
Court, Chavakkad on 20.07.2022.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
AV/8/7
