Kunhayamu Alias Kunhappu ... vs K.Jayalakshmi
2022 Latest Caselaw 5816 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
                       R.C.REV.NO.94 OF 2020
 AGAINST THE ORDER DATED 02.06.2020 IN R.C.A.No.7 OF 2019 OF
THE RENT CONTROL APPELLATE AUTHORITY(DISTRICT JUDGE), MANJERI
AGAINST THE ORDER DATED 18.01.2018 IN R.C.P.No.35 OF 2017 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 (PO), EDAKKARA AMSOM DESOM,
          NILAMBUR TALUK, MALAPPURAM-679 331.
          BY ADV.
          R.RAJESH KORMATH


RESPONDENTS:

    1     K.JAYALAKSHMI
          AGED 64 YEARS
          WIFE OF KARUMAMBOYIL ASOKAN,KARUMAMBOYIL VEEDU,
          CHUNGATHARA P.O.CHUNGATHARA AMSOM DESOM,
          NILAMBUR TALUK, MALAPPURAM-679 334.
    2     DHARMAN,
          AGED 71 YEARS
          SON OF KANDAN ALIAS APPU, KARUMAMBOYIL VEEDU,
          CHUNGATHARA P.O., CHUNGATHARA AMSOM DESOM,
          NILAMBUR TALUK, MALAPPURAM-679 334.
          BY ADVS.
          SRI.R.SUDHISH
          SMT.M.MANJU

     THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 19.05.2022, THE COURT ON 31.05.2022 DELIVERED THE
FOLLOWING:
                                     2

R.C.R.No.94 of 2020

                                ORDER

Ajithkumar, J

The tenant is the petitioner. Respondents-landlords filed

R.C.P No.35 of 2017 before the Rent Control Court (Munsiff),

Manjeri seeking eviction of the petitioner from the petition

schedule shop room under section 11(2)(b), 11(3) and 11(4)(v)

of the Kerala Buildings (Lease and Rent Control) Act, 1965.

Petitioner remained ex parte and therefore the Rent Control

Court after recording evidence on the part of the respondents

passed an ex parte order of eviction on 18.01.2018. An appeal

under Section 18(1)(b) of the Act was filed by the petitioner

before the Rent Control Appellate Authority (District Judge),

Manjeri as RCA No.7 of 2019. There was a delay of 368 days in

filing the appeal. The Appellate Authority as per order dated

02.06.2020 in I.A.No.236 of 2019 dismissed the application for

condonation of delay. Consequently the appeal was also

dismissed. Challenging the said orders, the petitioner has filed

this revision under section 20 of the Act.

2. On 01.07.2020, this court stayed the proceedings in

E.P.No.610 in R.C.P.No.35 of 2017 for a period of six weeks.

R.C.R.No.94 of 2020

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. The respondents alleged in the Rent Control Petition

that the petitioner defaulted payment of rent at the rate of

Rs.750/- per day from November 2017 onwards and that he

ceased to occupy the petition schedule rooms for the past two

years. Further plea of the respondents was that they need

vacant possession of the petition schedule shop rooms for the

son of the 1st respondent to start a dealership business in

medicine. The Rent Control Court on finding that the petitioner,

despite receiving notice, failed to appear before the court, set

him ex parte. On recording the oral evidence of the 2 nd

respondent and receiving in evidence Ext. A1 series and C1, the

Commissioner's report, the Rent Control Court ordered eviction

on all the three grounds.

5. The petitioner stating that he knew about the order of

eviction only when he received a notice in the execution petition,

filed petition for setting aside the ex parte order of eviction

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along with an application to condone delay.

6. RCA No.56 of 2018 was filed in the meantime with

respect to a connected Rent Control proceedings where also

there was delay. In that appeal, the Appellate Authority(District

Judge), Manjeri as per order dated 20.09.2019 took the view

that the Rent Control Court did not have the power to condone

delay. For that, the Appellate Authority relied on the decision in

Ratheesh v. A.M.Chacko and another [2018 (5) KHC 35].

The petitioner realising that the same would be the fate of his

application to condone the delay filed along with his application

to set aside the ex parte order in R.C.P No. 35 of 2017, he

abandoned the said applications and thereafter filed R.C.A No.7

of 2019 along with I.A.No.236 of 2019. The Appellate Authority

considered that application in detail and held that the reasons

stated by the petitioner were not acceptable or sufficient to

condone the delay. The Appellate Authority placed reliance on

the principles laid down by the Apex court in Esha

Bhattacharjee v. Managing Committee of Raghunathpur

Nafar Academy and others [(2013) 12 SCC 649] in order to

conclude that the delay was not condonable.

R.C.R.No.94 of 2020

7. The learned counsel appearing for the petitioner

would submit that in the circumstances obtained in this case,

which are so peculiar, the Appellate Authority without looking for

any oral or documentary evidence, should have held that the

reason set forth by the petitioner for the delay was genuine. The

petitioner had been paying the admitted rent without there

having much delay and therefore it could not be expected that

he could have afforded not to appear before the court if he really

knew about the pendency of the case. It is contended that

having there been an earlier Rent Control Petition with respect

to the petition schedule premises he was under the impression

that the notice he received was in that proceedings and that

prevented him from immediately approaching the court or his

lawyer. But on realising the real facts, he immediately

approached the Rent Control Court with applications to set aside

the order of eviction and to condone the delay. Since the

position of law then, on account of the decision in Ratheesh

(supra) the petitioner has no other option than approaching the

appellate authority to challenge the order of eviction on merits

after not pressing the said applications. Those facts would

R.C.R.No.94 of 2020

certainly establish the predicament of the petitioner and also his

diligence in approaching the court to have his grievance

redressed. The learned counsel appearing for the petitioner

would submit that the order of eviction passed by the Rent

Control Court does not satisfy the requirements of a valid

judgment as delineated in Balraj Taneja v. Sunil Madan

[(1999) 8 SCC 396] and for that reason also, the same has to

be annulled.

8. The learned counsel appearing for the respondent, on

the other hand, would contend that in the absence of any

evidence to justify that the petitioner was really prevented by

sufficient cause from approaching the court in time, the

impugned order of the Appellate Authority cannot be said to be

faulty. The learned counsel by placing reliance on Maniben

Devraj Shah v. Municipal Corporation of Brihan Mumbai

[(2012) 5 SCC 157] contended that the delay, on no account,

is condonable. The learned counsel further would submit that

the respondent adduced sufficient evidence to prove their pleas

in the Rent Control Petition and on acting upon such evidence,

the order of eviction was passed. It is true that the Rent Control

R.C.R.No.94 of 2020

Court did not in so many words state the reasons for arriving at

the conclusion that an order of eviction should be the result, but

the Court positively found that the case put forth by the

petitioners was sufficiently proved and resultantly only eviction

was ordered. In the absence of any counter-evidence, the said

order satisfies the requirements of a valid judgment. The

learned counsel would further submit that the lapse on the part

of the court cannot be made a reason to set aside the order

thereby putting the respondent at peril. The learned counsel

derived our attention to the maxim 'actus curiae neminem

gravabit' which means that the act of the Court shall prejudice

no one. For that the learned counsel placed reliance on the

decision in Shakuntala Bai v. Narayan Das, 2004 (5) SCC

772.

9. In Shakuntala Bai, the question considered was

whether the legal representatives are entitled to defend further

proceedings, like an appeal, after the death of the plaintiff to the

estate of whom the benefit under the decree has accrued and,

there arises a challenge to that benefit. It was held in that

context,

R.C.R.No.94 of 2020

"In normal circumstances after passing of the decree by the Trial Court, the original landlord would have got possession of the premises. But if he does not and the tenant continues to remain in occupation of the premises it can only be on account of the stay order passed by the appellate court. In such a situation, the well known maxim 'actus curiae neminem gravabit' that 'an act of the court shall prejudice no man' shall come into operation. Therefore, the heirs of the landlord will be fully entitled to defend the appeal preferred by the tenant and claim possession of the premises on the cause of action which had been originally pleaded and on the basis whereof the lower Court had decided the matter and had passed the decree for eviction."

10. In this revision the legality, regularity and propriety

of order in I.A No.236 of 2019 alone are in challenge. Hence

that principle has no application in this case. What the learned

counsel for the petitioner would urge is that considering the

shoddy nature of the order of eviction in R.C.P No. 35 of 2017,

the delay should have been condoned by the Appellate

Authority. True, the rules or procedure are only hand-maid of

justice and not its mistress. The rules of procedure are made to

R.C.R.No.94 of 2020

advance the cause of justice and not to defeat it. It was held in

Balraj Taneja (supra),

"Whether it is a case which is contested by the defendants by filing a written statement, or a case which proceeds ex parte and is ultimately decided as an ex parte case, or is a case in which the written statement is not filed and the case is decided under O.8 R.10, the Court has to write a judgment which must be in conformity with the provisions of the Code or at least set out the reasoning by which the controversy is resolved."

11. The order of the Rent Control Court dated 18.01.2018

is an ex parte one. Facts are stated in it. But reasons in detail

are not stated in it for finding there existed grounds for eviction

which are invoked by the respondent to get vacant possession of

the tenanted premises. Be that as it is, the legality or not of that

order is not a question in this Revision and therefore it may not

be appropriate or permissible for us to delve much into that

matter. The courts may be able to look into the merits of the

case in a limited extent, while deciding an application for

condonation of delay. But the sole criteria to allow or disallow an

application under section 5 of the Limitation Act, 1963 shall not

R.C.R.No.94 of 2020

be the merits of the main proceedings. It is always obligatory on

the part of the persons seeking to condone delay to satisfactorily

explain the reason for the delay. In that course, it is possible for

the court to take into account the merits of the case as one of

the factors.

12. 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 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.

R.C.R.No.94 of 2020

13. 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.

14. 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

R.C.R.No.94 of 2020

of the institution of courts.

15. 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 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

R.C.R.No.94 of 2020

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

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

R.C.R.No.94 of 2020

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

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."

R.C.R.No.94 of 2020

16. 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

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

R.C.R.No.94 of 2020

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."

17. 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

R.C.R.No.94 of 2020

unfettered free play, as held by the Apex Court in Esha

Bhattacharjee [(2013) 12 SCC 649]. Inordinate delay, which

attracts doctrine of prejudice, warrants a strict approach,

whereas, a delay of a short duration or a few days, which may

not attract the doctrine of prejudice, calls for a liberal

delineation. a routine manner.

18. 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 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 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

R.C.R.No.94 of 2020

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 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 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.

19. It is true that no material has been produced by the

petitioner before the Appellate Authority to substantiate his

contention in I.A. No.236 of 2019. But the fact of filing an

application for setting aside the ex parte order of eviction along

with an application to condone the delay is a fact borne by

records and beyond dispute. It is seen that while pending those

R.C.R.No.94 of 2020

applications, only the petitioner filed R.C.A No. 7 of 2019. Of

course, when the respondent stoutly resisted the contentions of

the petitioner, it was his duty to produce materials to properly

explain the reasons for the delay. The delay was of 368 days

cannot be said to be inordinate. As pointed out above

application for condonation of delay and to set aside exparte

order were pending consideration of the Rent Control Court even

when the appeal was filed. A perusal of the records in the case

would reveal that fact. The Appellate Authority should have

taken into account that aspect. It is true, delay cannot be

condoned in routine even if it is of short duration. But applying

the principle in Shyamal Kanti Danda (supra) and taking a

lenient view as allowed by the principle of law laid down by the

Apex Court and this Court in the decisions narrated in paragraph

numbers 14 to 17 above, we are of the view that the delay of

368 days occurred in filing R.C.A No. 7 of 2019 is liable to be

condoned. The order of the Appellate Authority in I.A. No. 236 of

2019 and consequent dismissal of R.C.A. No. 7 of 2019 are

therefore wrong and liable to be set aside.

Hence, this Rent Control Revision is allowed. The order in

R.C.R.No.94 of 2020

I.A. No. 236 of 2019 and consequent dismissal of R.C.A. No. 7

of 2019 of the Appellate Authority (District Judge), Manjeri are

set aside. I.A. No. 236 of 2019 in R.C.A. No. 7 of 2019 stands

allowed. The Appellate Authority will restore R.C.A. No. 7 of

2019 to file and proceed with in accordance with law.

Since the R.C.A. is of the year 2019, the Appellate Authority

shall take every endeavour to dispose of the same, at any rate,

within a period of two months from the date of production of a

certified copy of this order.

Sd/-

ANIL K.NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE PV