Allowed

K.M.Abdul Samad v. Muhamed Rafi Saithalavi

Kerala HC29 Nov 2021RCRev./142/2021

Case brief

AI extract

What is this about?

The High Court in revision held that payment of arrears is not a condition precedent to preference of an appeal under Section 18. Section 12 applies only to contests under Section 11 or appeals against Section 11 orders. The court allowed the revisions, set aside the appellate order requiring rent deposit for condonation, and restored the appeal.

What did the court decide?

Impugned judgment and order of the Rent Control Appellate Authority set aside; R.C.A. No. 166 of 2019 restored to file; I.A. No. 2834 of 2019 allowing condonation of 40 days delay; landlord directed t

K.M.Abdul Samad Vs Muhamed Rafi Saithalavi — Civil Procedure and Limitation | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY,THE 29^TH DAY OF NOVEMBER 2021/8TH AGRAHAYANA,1943

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R.C.REV.NO.141 OF 2021 AGAINST THE JUDGMENT DATED 23.09.2020 IN R.C.A.NO.166 OF

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2019 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), KOZHIKODE AND THE ORDER DATED 13.08.2019 IN I.A.NO.2081 OF 2019 IN R.C.P.NO.186 OF 2018 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF-I), KOZHIKODE

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REVISION PETITIONER:

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K.M.ABDUL SAMAD,

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AGED 63 YEARS, S/O. M.ALI KOYA, ROOM NO.8/16, R.C.ROAD, NEAR TAGORE CENTENARY HALL, NAGARAM AMSOM & DESOM, KOZHIKODE-673 032.

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BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA

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RESPONDENT:

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MUHAMMED RAFI SAITHALAVI

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AGED 51 YEARS, S/O. SAITHALAVI, THOTTUNGAL VALAPPIL, GRAND HOUSE, FRANCIS ROAD, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK, PIN-673 001. BY ADV SRI.G.SREEKUMAR (CHELUR)

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THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 29.11.2021, ALONG WITH R.C.Rev.NO.142 OF 2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.C.Rev.Nos.141 & 142 of 2021 2

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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MONDAY,THE 29^TH DAY OF NOVEMBER 2021/8TH AGRAHAYANA, 1943

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R.C.REV.NO.142 OF 2021

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AGAINST THE ORDER DATED 23.09.2020 IN R.P.NO.1 OF 2020 IN I.A.NO.2834 OF 2019 IN R.C.A.NO.166 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE) KOZHIKODE AND THE ORDER DATED 26.11.2019 IN R.C.P.NO.186 OF 2018 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF-I), KOZHIKODE

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REVISION PETITIONER:

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K.M.ABDUL SAMAD

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AGED 63 YEARS, S/O. M.ALI KOYA, ROOM NO.8/16, R.C.ROAD, NEAR TAGORE CENTENARY HALL, NAGARAM AMSOM AND DESOM, KOZHIKODE-673 032.

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BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA

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RESPONDENT:

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MUHAMMED RAFI SAITHALAVI

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AGED 51 YEARS, S/O. SAITHALAVI, THOTTUNGAL VALAPPIL, GRAND HOUSE, FRANCIS ROAD, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK, PIN-673 001.

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BY ADV SRI.G.SREEKUMAR (CHELUR)

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 29.11.2021, ALONG WITH R.C.Rev.NO.141 OF 2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.C.Rev.Nos.141 & 142 of 2021 3

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O R D E R

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Anil K. Narendran, J.

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The petitioner in R.C.Rev.Nos.141 of 2021 and 142 of 2021 is the respondent-tenant in R.C.P.No.186 of 2018 on the file of the Rent Control Court (Principal Munsiff-I), Kozhikode, a petition filed by the respondent herein-landlord, under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking an order for the eviction of the tenant from the petition schedule building. Before the Rent Control Court, the landlord filed I.A.No.2081 of 2019, an application under Section 12 of the Act, seeking an order directing the tenant to pay admitted arrears of rent as on the date of the order and continue to pay rent for the subsequent period, and in case of default, stop further proceedings in R.C.P.No.186 of 2018, under Section 12(3) of the Act. In that interlocutory application, the Rent Control Court passed the order dated 13.08.2019, whereby the tenant was directed to pay admitted rent at the rate of Rs.1,325/-, within four weeks from the date of that order. The said order was followed by the order dated 26.11.2019 in R.C.P.No.186 of 2018, whereby the Rent Control Court stopped further proceedings in that matter, invoking the

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R.C.Rev.Nos.141 & 142 of 2021 4

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provisions under Section 12(3) of the Act, and the tenant is directed to put the landlord in vacant possession of the petition schedule building.

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Challenging the order passed by the Rent Control Court in I.A.No.2081 of 2019 in R.C.P.No.186 of 2018, the tenant filed R.C.A.No.166 of 2019 before the Rent Control Appellate Authority (District Judge), Kozhikode, under Section 18(1)(b) of the Act. That appeal was filed along with I.A.No.2834 of 2019, an application filed under Section 5 of the Limitation Act, 1963 seeking an order to condone the delay of 40 days. In that application for condonation of delay, the Appellate Authority passed an order dated 16.09.2020. which reads thus;

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“Respondent appeared and filed counter. The appeal is filed against the order of payment of rent under Section 12(3) of the Act. The petitioner has not paid arrears of rent so far. He has not filed any counter in that petition. The petition is allowed on deposit of/payment of Rs.50,000/- as arrears of rent within 7 days. To 23.09.2020.”

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The aforesaid order was followed by the order dated 23.09.2020 in the application for condonation of delay, which reads thus;

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R.C.Rev.Nos.141 & 142 of 2021 5

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“The petitioner has not complied with the order by payment of arrears of rent. The admitted arrears according to the respondent is Rs.95,934/- from 01.06.2013 to 06.2019, at the rate of Rs.1,325/-. A portion of the amount of arrears of rent has ordered to pay [sic: has been ordered to be paid] for condoning the delay. Still, the petitioner has not paid it. He is the defaulter in payment of rent. So he is not entitled to continue the matter by way of rent control appeal. Hence the petition is dismissed.”

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By the judgment dated 23.09.2020, the Appellate Authority dismissed R.C.A.No.166 of 2019 as time barred. The said judgment reads thus;

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“I.A.No.2834 of 2019 is dismissed. The R.C.A. is barred by limitation. Hence dismissed.”

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Seeking review of the order dated 16.09.2020 in I.A.No.2834 of 2019 in R.C.A.No.166 of 2019, the tenant filed

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R.P.No.1 of 2020, which ended in dismissal by the order dated 23.09.2020. The Appellate Authority dismissed the review petition on the ground that there is no error apparent on the face of record. The Appellate Authority observed that the petitioner has not produced any receipt for payment of arrears of rent. He is a defaulter of payment of rent, who has no right to continue the appeal filed under Section 18(1)(b) of the Act, in view of the provisions under Section 12. Since the petitioner

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R.C.Rev.Nos.141 & 142 of 2021 6

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is not ready to clear off the arrears of rent to continue the appeal, the delay cannot be condoned.

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The petitioner-tenant is before this Court in R.C.Rev.No.141 of 2021, under Section 20 of the Act, challenging the judgment dated 23.09.2020 of the Appellate Authority in R.C.A.No.166 of 2019. The petitioner-tenant filed R.C.Rev.No.142 of 2021 before this Court challenging the order dated 23.09.2020 of the Appellate Authority in R.P.No.1 of 2020 in I.A.No.2834 of 2019 in R.C.A.No.166 of 2019.

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On 25.10.2021, when R.C.Rev.No.141 of 2021 came up for admission, this Court issued urgent notice on admission by speed post to the respondent, returnable within three weeks. In I.A.No.1 of 2021 this Court passed an interim order staying the operation and execution of the order dated 26.11.2019 of the Principal Munsiff Court-I, Kozhikode in E.P No.152 of 2020 in R.C.P.No.186 of 2018, for a period of one month. In R.C.Rev.No.142 of 2021, this Court issued urgent notice on admission by speed post to the respondent, returnable within three weeks.

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Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlord.

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R.C.Rev.Nos.141 & 142 of 2021 7

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The learned counsel for the petitioner-tenant would contend that the impugned judgment and order of the Appellate Authority are vitiated by total non-application of mind. The said judgment and order are issued without properly appreciating the legal and factual contentions raised by the tenant.

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Per contra, the learned counsel for the respondentlandlord would contend that the impugned judgment and order of the Appellate Authority are perfectly legal, which warrants no interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. In view of the provisions under Section 12 of the Act, the Appellate Authority cannot be found fault with in dismissing the interlocutory application filed by the tenant for condonation of delay and dismissing the Rent Control Appeal as time barred, for the reasons stated in the impugned judgment and order.

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The learned counsel for the respondent-landlord has also raised a contention that R.C.A.No.166 of 2019 filed by the tenant is not maintainable under Section 18(1)(b) of the Act.

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We do not propose to consider the aforesaid contention of the landlord in these Rent Control Revisions, since

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the scope of these revisions is only the legality of otherwise of

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R.C.Rev.Nos.141 & 142 of 2021 8

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the impugned judgment and order of the Appellate Authority whereby R.C.A.No.166 of 2019 filed by the tenant stands dismissed as time barred, without condoning the delay of 40 days in filing that R.C.A. Therefore, the contention of the landlord as to maintainability of R.C.A.No.166 of 2019 is left open.

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Section 12 of the Act deals with payment or deposit of rent during the pendency of proceedings for eviction. As per Section 12(1), no tenant against whom an application for eviction has been made by a landlord under Section 11, shall be entitled to contest the application before the Rent Control Court under that Section, or to prefer an appeal under Section 18 against any order made by the Rent Control Court on the application, unless he has paid or pays to the landlord, or deposits with the Rent Control Court or the A ppellate A uthority , as the case may be, all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. As per

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R.C.Rev.Nos.141 & 142 of 2021 9

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Section 12(2), t he deposit under sub-section (1) shall be made within such time as the c ourt may fix and in such manner as may be prescribed and shall be accompanied by the fee prescribed for the service of notice referred to in sub-section (4). As per the proviso to Section 12(2), the time fixed by the court for the deposit of the arrears of rent shall not be less than four weeks from the date of the order and the time fixed for the deposit of rent which subsequently accrues due shall not be less than two weeks from the date on which the rent becomes due. As per Section 12(3) of the Act, if any tenant fails to pay or to deposit the rent as aforesaid, the Rent Control Court or the Appellate Authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. As per Section 12(4), when any deposit is made under sub-section (1), the Rent Control Court or the Appellate Authority, as the case may be, shall cause notice of the deposit to be served on the landlord in the prescribed manner, and the amount deposited may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him to the Rent Control Court

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R.C.Rev.Nos.141 & 142 of 2021 10

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or the Appellate Authority in that behalf.

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In Joy Daniel v. N.A. Ibrahimkutty and others

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[2020 (2) KHC 543] , on the question as to whether Section 12(1) of the Kerala Buildings (Lease and Rent Control) Act casts an obligation on the tenant to pay the admitted arrears of rent in order to contest an appeal filed challenging an order under Section 12(3), which is to the effect of stoppage of the proceedings and directing the tenant to put the landlord in possession of the premises, a Full Bench of this Court held that, Section 12(1) provides such an obligation only in the case of an application under Section 11 or in the case of an appeal preferred under Section 18 against an order passed by the Rent Control Court on an application under Section 11 .

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In Pochappan Narayanan v. Gopalan [1990 (2)

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KLT 1] one of the contentions put forward by the learned counsel for the landlord was that, payment or deposit of arrears of rent admitted by the tenant to be due is a condition precedent which has to be satisfied by the tenant, before he can prefer an appeal against an order of eviction made by the Rent Control Court. Reliance was placed on the language of Section 12(1) of the Kerala Buildings (Lease and Rent Control)

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R.C.Rev.Nos.141 & 142 of 2021 11

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Act, which provides that no tenant shall be entitled to prefer an appeal under Section 18 against an order of eviction made by the Rent Control Court unless he has paid or deposited all arrears of rent admitted by the tenant to be due till the date of preferring the appeal. The Division Bench found that the right of appeal against an order of eviction made by the Rent Control Court is not conferred by Section 12 of the Act. The right of appeal is conferred by Section 18. Section 12 imposes certain obligations on the tenant of paying or depositing admitted rent during the pendency of the proceedings for eviction, and the consequences for committing default in fulfilling those obligations. The word 'prefer' used in Section 12(1) is not to convey the same meaning with which it has been employed in Section 18, which confers a right of appeal against an order of the Rent Control Court. The word 'prefer' not having been defined in the Act, it has to be assigned the ordinary meaning having regard to the context in which the said word is used. The meaning of the word 'prefer' given in Black's Law Dictionary, Fifth Edition is “ to bring before; to prosecute; to try; to proceed with". It is therefore clear that the word 'prefer' can be used in the context of Section 12(1) for conveying the

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R.C.Rev.Nos.141 & 142 of 2021 12

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lodging of the appeal or prosecution of the appeal or proceeding with the appeal. Section 12(3) of the Act, which speaks of the consequences of the failure to pay or deposit the rent as contemplated by Sections 12(1) and (2), says that all further proceedings should be stopped and an order made directing the tenant to put the landlord in possession of the building. The consequence contemplated is not dismissal of the appeal on the ground that it is not maintainable but only to stop all further proceedings in the appeal. Therefore, the Division Bench held that the word 'prefer' has been used in Section 12(1) of the Act not to convey the lodging of the appeal but to convey that the appeal already lodged in accordance with Section 18 shall not be proceeded with or prosecuted further if the conditions specified in Section 12(1) are not fulfilled. Paying or depositing of all arrears of rent admitted by the tenant is not a condition precedent for presenting an appeal under Section 18 of the Act.

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The appeal gets properly lodged when the same is presented in accordance with Section 18 of the Act.

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In Suvarna v. Ibrahimkutty and others [2021

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(6) KHC 250] a Division Bench of this Court held that the

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object of the provisions of Section 12(1) of the Act is to deny

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R.C.Rev.Nos.141 & 142 of 2021 13

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the defaulting tenant the right to contest the application for eviction before the Rent Control Court, or to prefer an appeal under Section 18 of the Act against any order made by the Rent Control Court on an application made by a landlord under Section 11, unless he pays to the landlord, or deposits with the Rent Control Court or the Appellate Authority, as the case may be, all arrears of rent admitted by him to be due in respect of the building, up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be.

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In Suvarna the Division Bench reiterated the law laid down in Pochappan Narayanan that, before the consequences contemplated by Section 12(3) of the Act can ensue, the conditions specified in Section 12(1) and (2) have to be satisfied. It is therefore clear that, before any steps can be taken under Section 12(3) for making an order against the tenant who has committed default in paying or making the deposit as contemplated by Section 12(1), the procedure prescribed by Section 12(2) has to be satisfied. A tenant who

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R.C.Rev.Nos.141 & 142 of 2021 14

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does not fulfil the obligations imposed on him by Section 12(1) cannot be visited with the penal consequences contemplated by Section 12(3), unless all the conditions specified by Section 12(2) are satisfactorily fulfilled. Even after the court acts in accordance with Section 12(2) and the tenant still commits default, the tenant has to be given one more opportunity of showing cause as to why penal consequences contemplated by Section 12(3) should not be imposed on him. It is only when the court is not satisfied with the cause shown that it can pass an order stopping all further proceedings and directing the tenant to put the landlord in possession of the building.

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In the instant case, R.C.A.No.166 of 2019 filed by the tenant before the Appellate Authority, under Section 18(1) (b) of the Act, was accompanied by I.A.No.2834 of 2019 filed under Section 5 of the Limitation Act, seeking an order to condone the delay of 40 days.

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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

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R.C.Rev.Nos.141 & 142 of 2021 15

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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.

¶88

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

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R.C.Rev.Nos.141 & 142 of 2021 16

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condonation of delay, sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay.

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In Collector, Land Acquisition v. Katiji [(1987) 2

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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 of the institution of courts.

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In Esha Bhattacharjee v. Raghunathpur Nafar

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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

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R.C.Rev.Nos.141 & 142 of 2021 17

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liberal delineation.

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In Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC 34] a Division Bench of this Court 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.

¶98

When the extent of delay in R.C.A.No.166 of 2019, which was sought to be condoned in I.A.No.2834 of 2019 filed under Section 5 of the Limitation Act is only 40 days, the Appellate Authority went wrong in directing the tenant to

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R.C.Rev.Nos.141 & 142 of 2021 18

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deposit Rs.50,000/- towards arrears of rent, as a condition for condonation of delay. Admittedly, R.C.A.No.166 of 2019 is not an appeal filed by the tenant under Section 18 of the Act against any order made by the Rent Control Court on an application made by a landlord under Section 11. Therefore, the provisions under Section 12(1) of the Act has no application in the proceedings before the Appellate Authority in R.C.A.No.166 of 2019. When the extent of delay sought to be condoned is only 40 days, the Appellate Authority ought not to have imposed such onerous condition for condonation of delay. Considering the explanation offered in the affidavit filed in support of I.A.No.2834 of 2019 in R.C.A.No.166 of 2019 the Appellate Authority ought to have condoned the delay without imposing any condition. In such circumstances, we find that the impugned judgment and order of the Rent Control Appellate Authority, Kozhikode cannot be sustained in law.

¶101

In the result, these Rent Control Revisions are allowed by setting aside the impugned judgment and order of the Rent Control Appellate Authority, Kozhikode, thereby restoring R.C.A.No.166 of 2019 to file and allowing I.A.No.2834 of 2019 in R.C.A.No.166 of 2019 by condoning the delay of 40

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R.C.Rev.Nos.141 & 142 of 2021 19

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days in filing the appeal.

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Since the contention raised by the respondentlandlord that R.C.A.No.166 of 2019 filed by the petitionertenant is not maintainable under Section 18(1)(b) of the Act is left open, the landlord shall raise such a contention before the Appellate Authority, which shall be dealt with appropriately by the Appellate Authority, as a preliminary issue, and a decision taken thereon within one month from the date of production of a certified copy of this order.

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In case the decision on the preliminary issue is against the landlord, the Appellate Authority shall finally dispose of R.C.A.No.166 of 2019 as expeditiously as possible, at any rate, within a further period of three months.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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dkr

K.M.Abdul Samad v. Muhamed Rafi Saithalavi

Case brief

What is this about?

What did the court decide?

K.M.Abdul Samad v. Muhamed Rafi Saithalavi

Case brief

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What did the court decide?

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