IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 1227 of 2002()
1. BALACHANDRA PANICKER,
... Petitioner
2. K.V.JAYACHANDRA PANICKER,
Vs
1. ABDUL RAHIMAN,
... Respondent
For Petitioner :SRI.O.V.ABRAHAM
For Respondent :SRI.T.B.THANKAPPAN
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :13/07/2009
O R D E R
PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ.
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C.R.P.No.1227 OF 2002
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Dated this the 13th day of July, 2009
ORDER
Pius C.Kuriakose, J.
Under challenge in this revision petition under Section 20 of
the Rent Control Act filed by the landlord is the judgment of the
rent control appellate authority confirming the order passed by
the rent control court under Section 11(2)(c) and vacating the
eviction order passed by the rent control court under Section 11
(2)(b) for the first time.
2. We have heard the submissions of Sri.B.Jayasankar,
learned counsel for the revision petitioner and those of
Sri.T.B.Thankappan, learned counsel for the respondent tenant.
We were taken through the order of the rent control court as
well as the judgment of the rent control appellate authority.
Sri.Jayasankar would assail the order of the rent control court
and the judgment of the rent control appellate authority very
forcefully. Sri.Jayasankar submitted that deposit and application
under Section 11(2) (c) has to be filed within a period of one
CRP.No.1227/2002 2
month from the date of the order of the rent control court unless
specified otherwise in the order. Here it was filed more than two
years thereafter. Explanation offered by the respondent tenant
was that “due to certain unavoidable, inevitable and unforeseen
circumstances” he could not contact his advocate. Very serious
objections were filed to the application and it was specifically
contended that no sufficient reason is made out by the tenant for
not moving the rent control court under Section 11(2)(c) within
the statutory period of one month. Sri.Jayasankar submitted
that it is only after receiving notice of the execution petition,
which itself was filed by the landlord about three years after the
order of eviction was passed by the rent control appellate
authority, that the respondent tenant thought in terms of making
deposits and filing application under Section 11(2)(c). No
evidence whatsoever was adduced by the respondent tenant for
showing that he was prevented by sufficient reasons in moving
the court on time.
3. Sri.T.B.Thankppan, learned counsel for the respondent
would support the order of the rent control court and the
judgment of the rent control appellate authority. He reminded us
CRP.No.1227/2002 3
of the contours of our jurisdiction under Section 20 and
submitted that there is no warrant at all for invoking the
revisional jurisdiction. Judicial discretion vested in the rent
control court was rightly exercised by that court. The learned
counsel submitted that it is trite that order of eviction under
Section 11(2)(b) is a tentative eviction order which is liable to
be vacated the moment the tenant deposits the arrears of rent
and costs. Sri.Jayasankar also submitted that amount deposited
was in fact far in excess of the total arrears of rent, interest and
costs due as on the time of the deposit.
4. In reply Sri.Jayasankar would place strong reliance on
the judgment of this court in Mohan v. Parameswaran
Namboodiripad(1992 (1) KLJ 164).
5. We have anxiously considered the rival submissions
addressed at the Bar in the light of the judgment of this court in
Mohan v.Parameswaran Namboodiripad(supra). The ratio
emerging from the judgment in the above case is that there is
no legal right vested in a tenant to have the time for making
deposit under Section 11(2)(c) extended beyond the statutory
time of one month. The legal right if at all is confined to making
CRP.No.1227/2002 4
an application to the court for exercising its discretion for
allowing further time. The power is discretionary and hence the
demands that the rent control court should adopt a principled
approach in granting or refusing to grant further time. The
power to grant further time presupposes that the relief of
extending time for making application under Section 11 (2)(c) is
equitable and calls for balancing of equities between the parties.
In the instant case the respondent tenant was expected to make
the deposits and move the rent control court under Section 11
(2) (c) within a period of one month of the judgment of the rent
control appellate authority since that authority had not specified
any particular time for making the deposits. The respondent did
not move the rent control court within one month. In fact the
respondent waited till he received notice of the execution
proceedings which was some three years after the rent control
appellate authority had passed the order of eviction. Despite the
inordinate delay, the respondent had not stated any specific
reason for getting the time extended. In stead, he had only
stated that “due to unavoidable, inevitable and unforeseen
circumstances” he could not contact his advocate and hence he
CRP.No.1227/2002 5
was not able to file application early. The counter affidavit filed
by the revision petitioner landlord in fact highlights that the
respondent tenant had not given any specific reason for the delay
which had been caused in the mater. In the light of the above
counter affidavit, it was obligatory on the part of the respondent
tenant to have adduced evidence before the rent control court
and satisfied that court that he had genuine reason for not
moving that court earlier within the statutory period of one
month.
6. On going through the proceedings paper of the rent
control court and the order passed by that court, it appears to us
that the approach of that court in deciding the application under
Section 11(2)(c) filed by the respondent was a little casual.
That court, in our opinion, should have insisted that the
respondent adduces evidence. The principle that power
vested in the court is discretionary and that judicial discretion is
to be exercised not in a casual manner, unfortunately was
missed by the appellate authority also. We are of the view that
the I.A.No.4161/1996 has to be reconsidered by the rent control
court in the light of this judgment and the principles of law laid
CRP.No.1227/2002 6
down by this court in Mohan’s case (supra), which we are
approving.
7. Result is that we set aside the order of the rent control
court and the judgment of the appellate authority which are
impugned in this revision petition and remand I.A.
No.4161/1996 to the rent control court. That court is directed to
take fresh decision in the I.A. after affording opportunity to the
respondent to adduce evidence. Enquiry will be completed and
revised order will be passed by the rent control court at the
earliest and at any rate within four months of receiving a copy of
this judgment.
Transmit the records forthwith to the rent control court.
Parties will appear before the rent control court on 3/8/2009.
PIUS.C.KURIAKOSE,JUDGE
P.Q.BARKATH ALI, JUDGE
dpk
CRP.No.1227/2002 7
PIUS.C.KURIAKOSE &
P.Q.BARKATH ALI, JJ.
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C.R.P.No.1227 OF 2002
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O R D E R
13TH JULY 2007