Kunhayamu Alias Kunhappu ... vs K.Jayalakshmi
2022 Latest Caselaw 5812 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
         THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                 &
          THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
   TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944
                       RCREV. NO. 95 OF 2020
AGAINST THE ORDER DATED 02.06.2020 IN R.C.A.NO.29 OF 2019 OF
THE RENT CONTROL APPELLATE AUTHORITY(DISTRICT JUDGE), MANJERI
 AGAINST THE ORDER DATED 08.01.2018 IN I.A.NO.13 OF 2018 IN
   R.C.P.No.43 OF 2015 OF THE RENT CONTROL COURT(MUNSIFF),
                              MANJERI
REVISION PETITIONER:

          KUNHAYAMU ALIAS KUNHAPPU (MAHMOOD AHAMMED)
          AGED 52 YEARS
          (CORRECT AGE OF THE PETITIONER),
          SON OF KUNHIMUHAMMED, PALLIYALITHODY HOUSE,
          EDAKKARA (P.O), EDAKKARA AMSOM DESOM,
          NILAMBUR TALUK, MALAPPURAM-679 331.
          BY ADV.
          R.RAJESH KORMATH


RESPONDENTS:

    1     K.JAYALAKSHMI
          AGED 64 YEARS
          WIFE OF ASOKAN, CHUNGATHARA P.O., KARUMAMBOYIL
          VEEDU, CHUNGATHARA AMSOM DESOM, NILAMBUR TALUK,
          MALAPPURAM-679334.
    2     SUNIL,
          AGED 48 YEARS
          SON OF VIJAYAN, KARUMAMBOYIL VEEDU,
          CHUNGATHARA P.O., CHUNGATHARA AMSOM DESOM,
          NILAMBUR TALUK, MALAPPURAM-679334, REPRESENTED BY
          POWER OF ATTORNEY HOLDER FIFTH-RESPONDENT, NAMELY,
          DHARMAN KARUMAMBOYIL.
    3     SUJA,
          AGED 46 YEARS
          DAUGHTER OF VIJAYAN, KARUMAMBOYIL VEEDU,
          CHUNGATHARA P.O., CHUNGATHARA AMSOM DESOM,
          NILAMBUR TALUK, MALAPPURAM-679334.
                                 2

R.C.R.No.95 of 2020

     4       DIVAKARAN,
             AGED 74 YEARS
             SON OF KANDAN ALIAS APPU, KARUMAMBOYIL VEEDU,
             CHUNGATHARA P.O., CHUNGATHARA AMSOM DESOM,
             NILAMBUR TALUK, MALAPPURAM-679334.
     5       DHARMAN,
             AGED 71 YEARS
             SON OF KANDAN ALIAS APPU, KARUMAMBOYIL VEEDU,
             CHUNGATHARA P.O., CHUNGATHARA AMSOM DESOM,
             NILAMBUR TALUK, MALAPPURAM-679334.
     6       PREETHI,
             AGED 54 YEARS
             WIFE OF RAJENDRAN, KARUMAMBOYIL VEEDU,
             CHUNGATHARA P.O., CHUNGATHARA AMSOM DESOM,
             NILAMBUR TALUK, MALAPPURAM-679334.
     7       AMBIKA,
             AGED 57 YEARS
             WIFE OF MOHANDAS, KARUMAMBOYIL VEEDU,
             CHUNGATHARA P.O., CHUNGATHARA AMSOM DESOM,
             NILAMBUR TALUK, MALAPPURAM-679334.
     8       MONISHA,
             AGED 32 YEARS
             DAUGHTER OF MOHANDAS, KARUMAMBOYIL VEEDU,
             CHUNGATHARA P.O., CHUNGATHARA AMSOM DESOM,
             NILAMBUR TALUK, MALAPPURAM-679 334.
     9       ANIL KUMAR,
             AGED 31 YEARS
             SON OF MOHANDAS, KARUMAMBOYIL VEEDU,
             CHUNGATHARA P.O., CHUNGATHARA AMSOM DESOM,
             NILAMBUR TALUK, MALAPPURAM-679 334.
             RESPONDENTS 7 TO 9 ARE THE LEGAL REPRESENTATIVES
             OF DECEASED-SIXTH-RESPONDENT BEFORE THE COURT
             BELOW).
             BY ADVS.
             SMT.M.MANJU
             SRI.R.SUDHISH

     THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 19.05.2022, THE COURT ON 31.05.2022 DELIVERED THE
FOLLOWING:
                                        3

R.C.R.No.95 of 2020

                                    ORDER

Ajithkumar, J

The tenant is the revision petitioner. The respondent-landlord

filed R.C.P.No.43 of 2015 before the Rent Control Court (Munsiff),

Manjeri seeking eviction of the petitioner from the petition

schedule shop room under Section 11(4)(ii) of the Kerala Buildings

Lease and Rent Control Act, 1965. The petitioner filed a counter

statement refuting the allegations in the Rent Control Petition.

Respondents have filed I.A No.13 of 2018 under Section 12 of the

Act with the allegation that the petitioner has defaulted payment

of rent since October 2015 at the rate of Rs.750/- per day. The

petitioner contended that the daily rent was Rs.572/- only. Rent

Control Court as per order dated 08.01.2018 directed the

petitioner to pay an amount of Rs.2,61,404/- which was the rent

at the rate of Rs.572/- per day from 10.06.2015 onwards. The

petitioner filed R.C.A No.29 of 2019 under Section 18(1)(b) of the

Act before the Rent Control Appellate Authority (District judge),

Manjeri along with an application under Section 5 of the Limitation

Act,1963 to condone the delay of 619 days. The Appellate

Authority as per order dated 02.06.2020, dismissed that

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application. Consequently, the appeal was also dismissed.

Challenging the same, the petitioner filed this revision under

Section 20 of the Act.

2. On 01.07.2020, this court stayed the proceedings in

E.P.No.194 of 2018 in R.C.P.No.43 of 2015 for a period of six

weeks. That order was extended from time to time and is still in

force.

3. Heard the learned counsel appearing for the petitioner

and also the learned counsel appearing for the respondents.

4. Respondents filed R.C.P.No.43 of 2015 seeking eviction

of the petitioner under Section 11(4)(ii) of the Act. After filing the

counter-statement, wherein the petitioner contended that the rate

of rent was Rs.572/- per day, the respondents had filed I.A.No.13

of 2018 invoking the provisions of Section 12 of the Act. A

statement of objection was filed by the petitioner who is the 1 st

respondent in the R.C.P admitting that the rent was at the rate of

Rs.572/- per day, but contended that Rs.2,61,404/- was already

deposited towards arrears of rent. Taking that into account, Rent

control court on 08.01.2018, directed the petitioner-tenant to pay

or deposit admitted arrears of rent, at the rate of Rs.572/- per day

R.C.R.No.95 of 2020

from 06.10.2015 after deducting an amount of Rs.2,61,404/-

within two weeks from the said date. It was further ordered that

failing such deposit, the respondents-landlords shall be put in

vacant possession of the petition schedule premises.

5. It is seen that I.A.No.1260 of 2018 was filed by the

petitioner seeking review of that order. There was a delay of 63

days in filing the review petition. Rent Control Court as per order

dated 07.11.2018, condoned the delay and allowed the review

petition. The respondents took up the matter in appeal before the

Rent Control Appellate Authority. On 20.09.2019, the Appellate

Authority allowed the appeal, the main reason being Rent Control

Court had no jurisdiction to condone the delay in the light of the

decision of this court in Ratheesh v. A.M.Chacko and another

[2018 (5) KHC 35]. It was in the said circumstances, the

petitioner had filed R.C.A No.29 of 2019 to impugn the order dated

08.01.2018 of the Rent Control Court. By that time, there

occurred a delay of 619 days and therefore the petitioner had filed

I.A. No.1456 of 2019 under Section 5 of the Limitation Act seeking

to condone that delay.

6. The Appellate Authority took the view that the appeal

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being one against an order under Section 12(1) of the Act, it is not

maintainable for which reliance was placed on Central Bank of

India Ltd. v. Gokul Chand [AIR 1967 (SC) 799],

P.M.Thankappan v. Muhammed Kutty and others [1969 KLT

104] and Devayani v. Officer Receiver [2005 KHC 1910]. It

was also held that the reason stated for the condonation of the

delay was insufficient.

7. learned counsel appearing for the petitioner would

submit that the Appellate Authority should have appreciated that

the delay occurred only because of the fluid state of the law on the

point as to whether Section 5 of the Limitation Act would have

application to the proceedings under the Act. The order dated

08.01.2018 was reviewed and recalled by the Rent Control Court

after condoning the delay as per the order dated 07.11.2018.

When the said order was challenged, the Appellate Authority took

the view that the delay was erroneously condoned by the Rent

Control Court and resultantly the review petition was dismissed.

The only way out then for the petitioner to get his grievance

redressed was to file an appeal challenging the legality of the

order dated 08.01.2018. Since the review petition and the appeal

R.C.R.No.95 of 2020

thereon were being pursued in the meantime, the Appellate

Authority should have condoned the delay. The learned counsel

also would submit that the Appellate Authority went wrong in

considering the merits of the appeal while deciding the application

for condonation of delay. It is his further contention that the order

of the Rent Control Court dated 08.01.2018 has the eventual

effect of evicting the petitioner from the petition schedule shop

room and therefore the same is an appealable one, for which he

placed reliance on the decision of this Court in Sidharthan v.

Hassankutty Haji [1994 (2) KLT 419].

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 an extension of the 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

R.C.R.No.95 of 2020

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.

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,

R.C.R.No.95 of 2020

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.

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 concept 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

R.C.R.No.95 of 2020

application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

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 the liberal approach has to encapsulate 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

R.C.R.No.95 of 2020

delineation.

21.9 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 the balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of a 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 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 the law of limitation. 21.12 The entire gamut of facts is 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

R.C.R.No.95 of 2020

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. An application for condonation of delay should not be

dealt with in a routine manner on the basis 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 in 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."

R.C.R.No.95 of 2020

13. In Rafeek and another v. K. Kamarudeen and

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

concept 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 the doctrine of prejudice, warrants a strict approach,

whereas, a delay of short duration or a few days, which may not

attract the doctrine of prejudice, calls for a liberal delineation. a

routine manner.

14. The instant case falls well nigh within the ratio of

Shyamal Kanti Danda v. Chunilal Choudhary [1984 (4) SCC

345]. That was a case where, on almost similar facts, the Apex

Court held that application praying for condonation of delay of 386

R.C.R.No.95 of 2020

days in preferring the appeal, on the ground that he was

prosecuting, under legal advice, a remedy for setting aside the ex

parte decree under Order 9, Rule 13 of the Code, but the Court

was unable to grant relief, should be allowed. In that case, the

respondent filed a suit against the petitioner for his eviction from

the premises occupied by him. The petitioner contested the suit as

per his written statement. After evidence on either side was

recorded and closed, the learned Munsiff set down the suit for

hearing oral arguments on which date the respondent was present

but the petitioner and his advocate were absent. The learned

Munsiff proceeded to deliver the judgment on merits. The

application for setting aside what was styled as ex parte decree

under Order 9, Rule 13 of the Code was moved on behalf of the

petitioner came to be dismissed as not maintainable. After an

unsuccessful appeal, the petitioner filed an appeal against the ex

parte decree in the Court of the District Judge, Alipore. He filed an

application praying for condonation of delay of 386 days in

preferring the appeal on the ground that he was prosecuting under

legal advice a remedy in another civil Court, for setting aside the

ex parte decree under Order 9, Rule 13 of the Code, but as that

R.C.R.No.95 of 2020

Court was unable to grant relief, the time spent bona fide in

prosecuting that remedy must be excluded in computing the

period of limitation. On the said fact situation, the Apex Court held

that the delay was liable to be condoned.

15. Going by the proposition of law laid down by the Apex

court and also this court in the aforementioned decisions, it may

be said that this is a case, where a lenient view is to be taken.

But, it may not be incongruous to say that though the Apex Court

has taken a lenient view while condoning delay in filing an appeal,

yet that discretion has been taken only after considering the

merits of the case so that the merit shall not become a casualty.

In the case in hand, the contents of the Appeal Memorandum do

not portray a fit case to take a lenient view in condoning the

delay.

16. The Order of the Rent Control Court dated 08.01.2018

in all respects is an order under Section 12(1) of the Act. It

contains a direction to the petitioner-tenant to deposit admitted

arrears of rent and also the rent during the pendency of the

proceedings within two weeks from the date of the order. The

learned counsel for the petitioner would submit that in the light of

R.C.R.No.95 of 2020

further direction therein that in the event of non - compliance, the

petitioner should surrender vacant possession of the premises, it

amounted to an executable order and if it is taken as executable

order, it is appealable.

17. Relying on the decision reported in Central Bank of

India Ltd. v. Gokal Chand [AIR 1967 SC 799] this Court in

Sathyaseelan and Others v. Chengot Abdul Samad and

Others [2021 (1) KLT 795] held that an interlocutory order is

subject to appeal under Section 18 of the Act, provided it affects

some right or liability of a party.

18. This court in Suvarna v. Ibrahimkutty and Others

[2021 (6) KHC 250] explained that the consequences provided

under Section 12(3) of the Act follows when there occurred a

default by the tenant in complying with the direction in an order

passed under Section 12(1) and (2), for deposit or payment of the

admitted arrears of rent. On the date stipulated for effecting such

payment, by virtue of that order, the tenant becomes fully aware

that, unless sufficient cause has not been shown for the default

committed, the consequence of stoppage of the proceedings and

direction to put the landlord in possession of the building, under

R.C.R.No.95 of 2020

Section 12(3) would follow automatically. Thus a consequence of

summary eviction under Section 12(3) of the Act would follow only

if the order directing the tenant to deposit the rent admitted to be

in arrears is not paid or sufficient reason for non-payment is not

shown. Simply because it has been observed in the impugned

order that in the case of nonpayment of the arrears, the tenant

has to surrender vacant possession, the order would not become

an enforceable one. Therefore, the contention of the petitioner

that the order dated 08.01.2018 has the character of an

executable order cannot be countenanced. As a matter of fact, on

the failure of the petitioner to make payment as per the direction

in the order dated 8.1.2018 and to explain any reason for the

nonpayment, the court proceeded to pass an order under Section

12(3) of the Act on 05.02.2018. The said facts speak for itself that

the order dated 08.01.2018 is an order under 12(1) of the Act and

is not an appealable one. The said aspect cannot be lost sight of

while considering the question of condonation of delay. In that

view of the matter, it cannot be said that the Appellate Court went

wrong in taking into account the non appealability of the order

dated 08.01.2018 while deciding I.A.No.1456 of 2019 in R.C.A

R.C.R.No.95 of 2020

No.29 of 2019.

We, therefore, are of the view that the Appellate Authority

rightly had dismissed I.A.No. 1456 of 2019 and consequently

R.C.A.No.29 of 2019 also. In exercise of the discretionary

jurisdiction of this court under Section 20 of the Act, it is not

possible for interfering with such an order. It follows that this Rent

Control Revision is liable to be dismissed. Hence we dismiss the

Rent Control Revision.

Sd/-

ANIL K.NARENDRAN JUDGE

Sd/-

P.G. AJITHKUMAR JUDGE PV