IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 210 of 2009()
1. JAYARAMAN, S/O.PALANIANDI, ROOM NO.
... Petitioner
Vs
1. BAPPANKOYA, S/O.ALI, RESIDING OF
... Respondent
For Petitioner :SRI.V.V.SURENDRAN
For Respondent :SRI.K.B.SIVARAMAKRISHNAN
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :10/11/2009
O R D E R
PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ.
------------------------
R.C.R.No. 210 OF 2009
------------------------
Dated this the 10th day of November, 2009
O R D E R
Pius C.Kuriakose, J.
Under challenge in this revision filed under Section 20 by
the tenant is the order of the Rent Control Appellate Authority
dismissing the application for condonatiin of delay caused in the
matter of filing the appeal and also the consequent judgment of
the Appellate Authority dismissing the Rent Control Appeal itself.
The delay caused in the matter of filing the appeal was 192 days.
The delay was sought to be explained by the tenant by stating
that the task of obtaining certified copy of the order of the Rent
Control Court was entrusted by him to his counsel, who defended
him before the Rent Control Court and that communication
regarding the obtainment of copy of the order was not received
by him from the office of the counsel. The landlord filed
objection to the application for condonation of delay contending
inter alia that the explanation offered is not genuine. The
petitioner did not adduce any evidence in support of his
RCR.No.210/2009 2
application for condonation of delay. It appears that it was
conceded by the petitioner that the application can be decided on
the basis of the affidavits filed by the parties. The Appellate
Authority was not inspired by the explanation offered by the
petitioner. The Appellate Authority referred to the judgment of
the Supreme Court in Vedabai alias Vaijayantabai – Baburao
Patil v. Shantaram Baburao Patil and others (AIR 2001 SC 2582)
and found that in the instant case the delay was inordinate and
therefore, the consideration that condoning the delay will cause
prejudice to the landlord was to be taken into account.
Accordingly, the Appellate Authority held that the no sufficient
case was made out by the tenant for condoning the delay and
dismissed the I.A. and consequently the appeal also.
2. We have heard the submissions of Sri.P.A.Harish,
learned counsel for the revision petitioner and
Sri.K.B.Shivaramakrishnan, learned counsel for the respondent.
Sri.Harish submitted that the adjudication of the Rent Control
Appeal on its merit may be facilitated atleast by imposing terms
on the revision petitioner. He pointed out that the need
projected by the landlord in the context of sub section (3) of
RCR.No.210/2009 3
Section 11 was that the landlord’s son wants to carry on business
not only in the petition schedule premises, but also another room
which was subject matter of another RCA (RCA No.96/2008).
Since that RCA is pending, the landlord will not be able to
accomplish the projected need unless that RCA is also disposed
of in favour of the landlord. Sri.Shivaramakrishnan would
quickly respond to the above submission of Sri.Harish saying
that it is not the same business which is proposed to be
conducted by the landlord’s son in these two rooms. Separate
businesses are proposed to be conducted in these two rooms.
Therefore, if the room which is subject matter of the present
Rent Control Revision is got vacated, it will be possible for the
landlord’s son to carry on one of the proposed businesses.
Sri.Shivaramkrishan further submitted that idea of preferring
the appeal against the order of the Rent Control Court struck
the tenant only at a later stage. As soon as the decision of the
Rent Control Court was known, the tenant approached the
landlord and sought for three months time to vacate the
premises. The landlord very graciously allowed seven months
time. Now the landlord is cheated by the tenant. No indulgence
RCR.No.210/2009 4
be shown to such a tenant, so submitted by the learned
counsel.
3. We have very anxiously considered the rival submissions
addressed at the Bar. We have kept in mind the judicial
precedents governing exercise of jurisdiction by this court under
Section 5 of the Indian Limitation Act including the judgment of
the Supreme Court in Collector, Land Acquisition Anantnag and
another v. Mst.Katiji and others (AIR 1987 Supreme Court
1353). After all, the defeated tenant has a right of appeal under
Section 18 of Act 2 of 1965. Even though the petitioner did not
adduce any evidence to substantiate the explanation offered by
him for condoning the delay, we are of the view that his
explanation that his counsel (or the counsel’s clerk) did not
promptly informed him about the obtainment of certified copy of
the order of the Rent Control Court is not improbable. At any
rate, it is clear to our mind that the revision petitioner did not
receive intimation even if the same was sent by the counsel’s
office on time. At the same time, we find some merit in the
submission of Sri.Shivaramakrishnan that the averments in the
affidavit sworn to by the tenant in support of his application for
RCR.No.210/2009 5
condonation of delay were not specific. Under the above
circumstances, we are of the view that relief can be given to the
petitioner only on stringent terms. We notice that current
monthly rent of Rs.500/- being paid by the revision petitioner to
the landlord is far below the rent which the building may fetch
if the same is let out today. Under the above circumstances, we
decide that one of the conditions to be imposed for granting
relief to the petitioner is refixation of monthly rent prospectively
subject to the right of either sides to move the competent court
for fixation of fair rent. Accordingly, we decide the RCR issuing
the following directions:
1). The order of the Rent Control Appellate Authority
dismissing I.A. No.58/2009 as well as its judgment dismissing
the appeal in RCA No.4/2009 are set aside.
2). I.A. 58/2009 will stand allowed and RCA will stand
restored to file subject to the following conditions;
i). Monthly rent payable by the
revision petitioner for the subject building
will stand refixed tentatively with effect
from 1st December, 2009 at Rs.1000/- per
RCR.No.210/2009 6
month. This refixation is without prejudice
to the right of either of the parties to
move the competent court for fixiation of
fair rent.
ii). The Revision Petitioner shall pay a
sum of Rs.2,500/- to the respondent either
directly or through the respondent’s counsel
in this court on or before 25/11/2009.
iii). The Revision Petition shall pay a
sum of Rs.500/- to the Kerala Medication
Centre within the same time limit.
iv). Receipts against the two payments
mentioned above shall be produced by the
revision petitioner before the Rent Control
Appellate Authority.
3). The present judgment setting aside the order
dismissing the application for condondation of delay and restoring
the appeal will become operative only if the two payments are
made within the time limit.
Once it is noticed that the above order has become
RCR.No.210/2009 7
operative, the Appellate Authority will restore the appeal and
dispose of the RCA in accordance with law at the earliest. It will
be ensured that the RCA is disposed of finally within one month
thereafter.
PIUS C.KURIAKOSE,JUDGE
K.SURENDRA MOHAN, JUDGE
dpk