Allowed

Prasanth K.P., v. Kunhabdulla

Kerala HC4 Dec 2021RCRev./148/2021

Case brief

AI extract

What is this about?

A tenant challenged refusal to condone delay in an eviction appeal. The Court condoned the 42-day delay, set aside the rejection and consequential dismissal, and restored the appeal. It held that the landlords' rent-deposit application could not be entertained before delay was condoned and the appeal admitted.

What did the court decide?

Delay of 42 days condoned; rejection order and consequential dismissal set aside; eviction appeal restored, with time-bound disposal directions.

Prasanth K.P., Vs Kunhabdulla — Landlord and Tenant | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN

¶4

¶5

THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR SATURDAY, THE 4^TH DAY OF DECEMBER 2021 / 13TH AGRAHAYANA, 1943

¶6

R.C.REV.NO.148 OF 2021

¶7

AGAINST THE ORDER DATED 16.10.2021 IN I.A.NO.1 OF 2020 IN R.C.A.NO.91 OF 2020 AND JUDGMENT DATED 16.10.2021 IN R.C.A.NO.91

¶8

OF 2020 OF THE RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE,

¶9

AGAINST THE ORDER DATED 03.01.2020 IN R.C.P.NO.13 OF 2019 OF THE

¶10

RENT CONTROL COURT, PAYYOLI

¶11

REVISION PETITIONER:

¶12

PRASANTH K.P., AGED 45 YEARS

¶13

S/O. KANNAN, RESIDING AT KULANGARA PUTHOYOTTIL HOUSE, SARASWATHI BHAVAN, AYANIKKAD P.O, KOYILANDY-673 521

¶14

BY ADV K.V.RASHMI

¶15

RESPONDENTS:

¶16

1 KUNHABDULLA, AGED 62 YEARS

¶17

S/O. MOIDEEN, KIZHAKKE PUTHUKKUDI HOUSE, AYANIKKAD P.O, KOYILANDY-673 521

¶18

2 DR. JAMSHEER ABDULLA P.K, S/O. KUNHABDULLA, KIZHAKKE PUTHUKKUDI HOUSE, AYANIKKAD P.O, KOYILANDY-673 521

¶19

BY ADVS. LAKSHMI NARAYANAN SATHYA SREEPRIYA

¶20

THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶21

R.C.REV.NO.148 OF 2021

¶22

¶23

ORDER

¶24

Anil K. Narendran, J.

¶25

The petitioner is the respondent-tenant in R.C.P.No.13 of 2019 on the file of the Rent Control Court (Munsiff), Payyoli, a petition filed by the respondents herein-landlords, under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule shop room, and the appellant in R.C.A No.91 of 2020 filed before the Rent Control Appellate Authority (District Judge), Kozhikode challenging the ex parte order of eviction dated 03.01.2020 of the Rent Control Court in R.C.P.No.13 of 2019. The tenant filed R.C.A No.91 of 2020 before the Appellate Authority along with I.A.No.1 of 2020, under Section 5 of the Limitation Act, 1963, seeking an order to condone the delay of 245 days in filing that appeal. That interlocutory application was dismissed by the order dated 26.02.2021. The said order reads thus;

¶26

“The petitioner is a defaulter in payment of rent. Hence he has not right to contest the matter. A delay of 245 days in filing the appeal. It is a long delay, cannot be condoned for agitating a Rent Control petition by a

¶27

¶28

R.C.REV.NO.148 OF 2021

¶29

defaulter. Hence I.A is dismissed.” In view of the order in I.A.No.1 of 2020, the Appellate Authority dismissed R.C.A.No.91 of 2020 as time barred, by the judgment dated 26.02.2021.

¶30

2 . Challenging the order dated 26.02.2021 of the Appellate Authority in I.A.No.1 of 2020 and the judgment dated 26.02.2021 in R.C.A.No.91 of 2020, the tenant filed R.C.Rev.No.99 of 2021 before this Court. That Rent Control Revision was disposed of by the order dated 08.09.2021. Paragraphs 19 to 22, 26 and 27 of the said order read thus;

¶31

“19. In the instant case, the extent of delay in filing R.C.A.No.91 of 2020 is 245 days, which was sought to be condoned by filing I.A.No.1 of 2020 under Section 5 of the Limitation Act. In the impugned order dated 26.02.2021 in I.A.No.1 of 2020, the Appellate Authority has not even adverted to, either the explanation offered by the tenant for condonation of delay or the objection of the landlords against condonation of delay. Instead, in the order dated 26.02.2021, the Appellate Authority has stated that, since the petitioner-tenant is a defaulter in payment of rent, who has no right to contest the matter, the long delay of 245 days in filing the appeal cannot be condoned for agitating a Rent Control Appeal by a defaulter.

¶32

In view of the law laid down in Assistant Commissioner, Commercial Tax Department v.

¶33

R.C.REV.NO.148 OF 2021

¶34

¶35

Shukla and Brothers [(2010) 4 SCC 785] , in the order passed on an application for condonation of delay filed under Section 5 of the Limitation Act, the Rent Control Appellate Authority should give brief reasons for arriving at a conclusion as to whether the appellant has shown ‘sufficient cause’ for the condonation of delay in filing the appeal, after adverting to the explanation offered by the appellant for condonation of delay and also the contentions raised in the objection filed by the respondents, showing proper application of mind.

¶36

Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 deals with revision. As per Section 20(1) of the Act, in cases where the Appellate Authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit.

¶37

In view of the provisions under Section 20(1) of the Act, in a revision petition filed against any order passed or proceedings taken under the Act by the Appellate Authority, this Court has to record its satisfaction as to the legality, regularity or propriety of such order or proceedings. A cryptic order passed by the Appellate Authority, like the one which is impugned in this Rent Control Revision, virtually makes the revisional

¶38

R.C.REV.NO.148 OF 2021

¶39

¶40

jurisdiction of this Court nugatory and ineffective, inasmuch as, such an order which does not disclose any reasons will be of little assistance to this Court, while analysing the reasoning essential to such a decision.

¶41

xxx xxx xxx

¶42

A tenant who fails to pay or to deposit 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 Appellate Authority, has to be dealt with appropriately, in accordance with the provisions under Section 12 of the Act. But, that is not a reason for rejecting the application for condonation of delay, filed under Section 5 of the Limitation Act, by a cryptic order like the one impugned in this Rent Control Revision, virtually making the revisional jurisdiction of this Court nugatory and ineffective. The Appellate Authority had adopted a casual and callous approach in handling the application for condonation of delay. We deprecate in the strongest words the casual and callous approach adopted by the Appellate Authority in handling I.A.No.1 of 2020 filed for condonation of delay in filing R.C.A.No.91 of 2020.

¶43

In the result, this Rent Control Revision is allowed by setting aside the order dated 26.02.2021 of Rent Control Appellate Authority, Kozhikode, in I.A.No.1 of 2020 and also the judgment dated 26.02.2021 in R.C.A.No.91 of 2020, for the aforesaid reasons, and the

¶44

R.C.REV.NO.148 OF 2021

¶45

¶46

matter is remanded to Appellate Authority for fresh consideration of I.A.No.1 of 2020 in R.C.A.No.91 of 2020, taking note of the law laid down in the decisions referred to supra and also the observations contained hereinbefore. The Appellate Authority shall pass a reasoned order in I.A.No.1 of 2020 in R.C.A.No.91 of 2020, as expeditiously as possible, at any rate, within a period of one month from the date of appearance of both parties, who shall appear before the Appellate Authority, on 22.09.2021. ”

¶47

3 . After the order of remand the Appellate Authority

¶48

by the order dated 16.10.2021 dismissed with cost I.A.No.1 of 2020 in R.C.A.No.91 of 2020 on the ground that there is

¶49

no reason for the delay from 02.02.2020 to 15.03.2020 (42 days) and the appellant-tenant is a defaulter in payment of huge arrears of rent amounting to Rs.11,25,000/- from March 2019 to September 2021, who is running a workshop in the tenanted premises. In the said order the Appellate Authority found that the tenant filed the petition is a dilatory tactics only to delay the execution proceedings and hence the delay cannot be condoned. In view of the above order in I.A.No.1 of 2020, the Appellate Authority dismissed R.C.A.No.91 of 2020 as time barred, by the judgment dated 16.10.2021.

¶50

R.C.REV.NO.148 OF 2021

¶51

¶52

4 . Challenging the order dated 16.10.2021 in

¶53

I.A.No.1 of 2020 in R.C.A.No.91 of 2020 of the Rent Control Appellate Authority, Kozhikode and the judgment dated 16.10.2021 of the Appellate Authority in R.C.A.No.91 of 2020, the petitioner-tenant is before this Court in this Rent Control Revision filed under Section 20 of the Act.

¶54

5 . On 05.11.2021, when this Rent Control Revision

¶55

came up for admission, this Court issued urgent notice by speed post to the respondents, returnable within three weeks. Registry was directed to call for a report from the Rent Control Appellate Authority, Kozhikode, after furnishing a copy of the Rent Control Revision. By that order, Registry was directed to call for LCR in R.C.A.No.91 of 2020 . In I.A.No.1 of 2021, this Court granted an interim order staying

¶56

the execution proceedings in E.P.No.57 of 2020 in R.C.P.No.13 of 2019 on the file of the Munsiff-Magistrate Court, Payyoli and also the proceedings pursuant to the order dated 16.102021 in I.A.No.1 of 2020 in R.C.A.No.91 of 2020

¶57

before the Rent Control Appellate Authority, Kozhikode, for a period of one month.

¶58

6. Pursuant to the order o f this Court dated

¶59

¶60

R.C.REV.NO.148 OF 2021

¶61

05.11.2021, the report dated 26.11.2021 of the District Judge, Kozhikode, who is the Rent Control Appellate Authority, is placed on record.

¶62

The respondents-landlords have filed a counter

¶63

affidavit in I.A.No.1 of 2021, wherein it is contended that the Appellate Authority rightly dismissed I.A.No.1 of 2020 filed by the tenant, since the period of delay of 42 days from 02.02.2020 to 15.03.2020 remained unexplained and no cogent reason is put forth by the tenant to condone the said delay. In the counter affidavit, it is pointed out that, the landlords have filed I.A.No.4 of 2021 in R.C.A.No.91 of 2020, invoking the provisions under Section 12 of the Act for recovery of admitted arrears of rent. In that application, the Appellate Authority passed an order dated 05.10.2021, whereby the tenant was directed to remit the arrears of rent. The tenant has not complied with that order. Instead, he has rushed to this Court by filing the present Rent Control Revision and obtained stay of execution proceedings.

¶64

Heard the learned counsel for the petitioner-

¶65

tenant and also the learned counsel for the respondentslandlords.

¶66

R.C.REV.NO.148 OF 2021

¶67

¶68

The learned counsel for the petitioner-tenant

¶69

would contend that the reasoning of the Rent Control Appellate Authority in its order dated 16.10.2021 in I.A.No.1

¶70

of 2020 in R.C.A.No.91 of 2020 is per se arbitrary and patently illegal and it is even contrary to the law laid down by this Court in the order dated 08.09.2021 in R.C.Rev.No.99 of 2021, in the context of Section 12 of the Kerala Buildings (Lease and Rent Control) Act and Section 5 of the Limitation Act. The learned counsel would also point out that, even after the dismissal of R.C.A.No.91 of 2020 as time barred, the Appellate Authority posted I.A.No.4 of 2021 filed by the landlords under Section 12 of the Act to 06.11.2021.

¶71

Per contra, the learned Counsel for the respondents-landlords would content that the Appellate Authority has stated valid reasons to dismiss I.A.No.1 of 2020 filed by the tenant seeking an order to condone the delay in filing R.C.A.No.91 of 2020. The reasoning of the Appellate Authority in the impugned order dated 16.10.2021 is neither perverse nor patently illegal, which warrants no interference in this revision filed under Section 20 of the Act. Since the tenant had defaulted payment of arrears of rent

¶72

R.C.REV.NO.148 OF 2021

¶73

¶74

amounting to Rs.11,25,000/-, the Appellate Authority cannot be found fault with in dismissing I.A.No.1 of 2020, without condoning the delay of 42 days in filing R.C.A.No.91 of 2020

¶75

and consequently dismissing that appeal as barred by limitation.

¶76

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 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.

¶77

R.C.REV.NO.148 OF 2021

¶78

¶79

It is well settled that the Law of Limitation is

¶80

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.

¶81

In Collector, Land Acquisition v. Katiji

¶82

[(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

¶83

R.C.REV.NO.148 OF 2021

¶84

¶85

life-purpose for the existence of the institution of Courts.

¶86

In Esha Bhattacharjee v. Raghunathpur Nafar

¶87

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 liberal delineation.

¶88

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 half-hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on

¶89

¶90

R.C.REV.NO.148 OF 2021

¶91

merits is seminal to justice dispensation system. 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.

¶92

Though the expression ‘sufficient cause’ employed in Section 5 of the Limitation Act 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.

¶93

In Re:Cognizance for Extension of Limitation

¶94

[2021 (5) KHC 508] a Three-Judge Bench of the Apex

¶95

R.C.REV.NO.148 OF 2021

¶96

¶97

Court held that in computing the period of limitation for any suit, appeal, application or proceedings, the period from 15.03.2020 till 12.10.2021 shall stand excluded.

¶98

In view of the order of the Apex Court In Re:Cognizance for Extension of Limitation the extend of delay that has to be condoned in I.A.No.1 of 2020 in R.C.A.No.91 of 2020 is only 42 days. As held by the Apex Court in Esha Bhattacharjee [(2013) 12 SCC 649] the delay of short duration may not attract the doctrine of prejudice, which calls for a liberal delineation. On the other hand, inordinate delay, which attracts doctrine of prejudice, warrants strict approach.

¶99

19. In Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC 34] , a decision relied on by the learned counsel for the respondents-landlords, following the law laid down by the Apex Court in Esha Bhattacharjee [(2013) 12 SCC 649] this Court held that there is a distinction between inordinate delay and a delay of short duration or few days. For to the former, i.e., inordinate delay, the doctrine of prejudice is attracted whereas, to the latter, i.e., delay of short duration or few days the doctrine of

¶100

R.C.REV.NO.148 OF 2021

¶101

¶102

prejudice may not be attracted. That apart, the first one

¶103

warrants strict approach whereas the second calls for a liberal delineation.

¶104

20. In the impugned order dated 16.10.2021, in order to dismiss I.A.No.1 of 2020 in R.C.A.No.91 of 2020, the Rent Control Appellate Authority relied on the decision of the Apex Court in Ramachandran v. State of Kerala [1997 (7) SCC 556] , wherein the Apex Court held that law of limitation may harshly affect particular party, but it has to be applied with all its rigour, when the statute so prescribed and the courts have no power to extend the period of limitation on equitable grounds. In that case, the Apex Court was dealing with the challenge made against an order whereby an application filed by the State of Kerala to condone the delay of 565 days in filing an appeal against the judgment and decree of the Sub Court, Kollam was condoned by this Court without recording any satisfaction that the explanation for the delay was either reasonable or satisfactory, which is essential prerequisite to condonation of delay.

¶105

In the instant case, the extent of delay that has to be condoned in I.A.No.1 of 2020 in R.C.A.No.91 of 2020 is

¶106

¶107

R.C.REV.NO.148 OF 2021

¶108

only 42 days, if the period specified in the order of the ThreeJudge Bench of the Apex Court In Re:Cognizance for extension of limitation [2021 (5) KHC 508] is excluded. In the affidavit filed in support of I.A.No.1 of 2020, the tenant has stated that he is an acute cardiac patient, who was under the treatment of doctors at Medical College Hospital, Kozhikode, with I.P.No.27964-Cardio Unit-II. He was advised and referred for bypass surgery. But due to his ill health, the same was deferred. Due to chest pain, he was admitted at Medical College Hospital, Kozhikode, on 13.07.2020. He had undergone angioplasty for the time being and discharged on 24.07.2020 with strict medication and complete bed rest. In I.A.No.1 of 2020, which was originally filed for condonation of delay of 245 days, the landlords have filed a counter statement contending that no documents were produced by the tenant to prove that he is a cardiac patient and was under treatment. Since the tenant has not paid rent from March 2019 onwards, he has no right to file appeal and contest the case. If the delay is condoned and appeal is admitted without payment of arrears of rent, the tenant will make further arrears and will conduct the

¶109

R.C.REV.NO.148 OF 2021

¶110

¶111

appeal at the expense of the landlord.

¶112

Section 12 of the Act deals with payment or

¶113

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 Appellate Authority, 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 Section 12(2), the deposit under sub-section (1) shall be made within such time as the court 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

¶114

R.C.REV.NO.148 OF 2021

¶115

¶116

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 or the Appellate Authority in that behalf.

¶117

Section 12(1) of the Act enjoins a tenant, against whom an application for eviction has been made by a

¶118

R.C.REV.NO.148 OF 2021

¶119

¶120

landlord under Section 11, to pay to the landlord, or deposit with the Rent Control Court, 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 continue to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court, in order to contest that application for eviction before the Rent Control Court. Similarly, Section 12(1) of the Act enjoins a tenant, in order 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, to pay the landlord, or deposits with the Appellate Authority, all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment

¶121

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 Appellate Authority.

¶122

24. The liability of a tenant under Section 12(1) of the Act, against whom an application for eviction has been made by a landlord under Section 11, or who prefer an appeal

¶123

R.C.REV.NO.148 OF 2021

¶124

¶125

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, is limited to 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 he shall continue to pay or 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.

¶126

25. In Pochappan Narayanan v. Gopalan [1990

¶127

(2) 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) 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

¶128

R.C.REV.NO.148 OF 2021

¶129

¶130

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 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

¶131

R.C.REV.NO.148 OF 2021

¶132

¶133

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

¶134

In paragraph 26 of the order dated 08.09.2021 in R.C.Rev.No.99 of 2021 this Court held that, a tenant who fails to pay or to deposit 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

¶135

R.C.REV.NO.148 OF 2021

¶136

¶137

rent which may subsequently become due in respect of the

¶138

building, until the termination of the proceedings before the Rent Control Appellate Authority, has to be dealt with appropriately, in accordance with the provisions under Section 12 of the Act. But, that is not a reason for rejecting the application for condonation of delay, filed under Section 5 of the Limitation Act , by a cryptic order like the one impugned in this Rent Control Revision, virtually making the revisional jurisdiction of this Court nugatory and ineffective.

¶139

27. Contrary to the law laid down by this Court in the order dated 08.09.2021 in R.C.Rev.No.99 of 2021, the Appellate Authority dismissed I.A.No.1 of 2020, by the impugned order dated 16.10.2021, on the ground that there is no reason for the delay from 02.02.2020 to 15.03.2020 and that, the tenant who is a defaulter in payment of huge arrears of rent amounting to Rs.11,25,000/-, has filed the petition as a dilatory tactics, only to delay the execution proceedings. The affidavit filed by the tenant in support of I.A.No.1 of 2020 cannot be said to be one drafted in a causal manner harbouring the notion that the courts are required to condone the delay on the bedrock on the principle that

¶140

R.C.REV.NO.148 OF 2021

¶141

¶142

adjudication of a lis on merits is seminal to justice dispensation system. Considering the fact that the extent of delay sought to be condoned is only 42 days, and since the tenant has furnished the I.P. number of cardio unit-II of the Medical College Hospital, Kozhikode, in the affidavit filed in support of I.A.No.1 of 2020, in order to show that he is a cardiac patient undergoing treatment at that hospital, we are of the view that the tenant has offered sufficient cause for condonation of delay in filing R.C.A.No.91 of 2020. Therefore, the reasoning of the Appellate Authority in the impugned order dated 16.10.2021 in I.A.No.1 of 2020 in R.C.A.No.91 of 2020, which is per se arbitrary and patently illegal, warrants interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act.

¶143

It is pertinent to note that, even before passing any orders in I.A.No.1 of 2020 filed by the tenant for condonation of the delay in filing R.C.A.No.91 of 2020, the Appellate Authority passed an order dated 05.10.2021 in I.A.No.4 of 2021 filed by the landlords under Section 12 of the Act, whereby the tenant is required to pay an amount of Rs.11,25,000/- within a period of 4 weeks and that

¶144

R.C.REV.NO.148 OF 2021

¶145

¶146

interlocutory application was listed to 06.11.2021. The procedure adopted by the Appellate Authority is per se arbitrary and illegal, since no application under Section 12 of the Act can be entertained in a Rent Control Appeal filed by the tenant, under Section 18(1)(b) of the Act, against the order of eviction passed by the Rent Control Court under Section 11(3) of the Act, along with an application under Section 5 of the Limitation Act, unless and until that appeal is admitted on file after condonation of the delay in filing the appeal. The Appellate Authority has to deal with the application for condonation of delay, as a condition precedent for entertaining an application filed by the landlord under Section 12 of the Act.

¶147

In the above circumstances, we find no reason to sustain the impugned order dated 16.10.2021 of the Rent Control Appellate Authority, Kozhikode, in I.A.No.1 of 2020 in R.C.A.No.91 of 2020 and also the consequential judgment dated 16.10.2021 in R.C.A.No.91 of 2020, whereby that appeal stands dismissed as time barred.

¶148

In the result, this Rent Control Revision is allowed by setting aside the order of the Rent Control Appellate

¶149

¶150

R.C.REV.NO.148 OF 2021

¶151

Authority, Kozhikode, dated 16.10.2021 in I.A.No.1 of 2020 in R.C.A.No.91 of 2020 and also the judgment dated 16.10.2021 in R.C.A.No.91 of 2020. I.A.No.1 of 2020 in R.C.A.No.91 of 2020 is allowed by condoning the delay of 42 days in filing R.C.A.No.91 of 2020 and that appeal is restored to file. The Appellate Authority shall proceed with R.C.A.No.91 of 2020 and also the interlocutory applications filed in that appeal, including I.A.No.4 of 2021 filed by the landlords under Section 12 of the Act, and pass appropriate orders thereon, strictly in accordance with law.

¶152

The learned counsel for the respondents-landlords would submit that R.C.A.No.91 of 2020 filed by the tenant arises out of an order of eviction passed by the Rent Control Court in the year 2020 in a Rent Control Petition of the year 2019. The 1^st respondent is a senior citizen aged 62 years and the tenant has defaulted payment of arrears of rent amounting to more than Rs.11 lakhs. Therefore, a time bound consideration of R.C.A.No.91 of 2020 and the connected interlocutory applications, including I.A.No.4 of 2021 filed by the landlords under Section 12 of the Act, is highly essential.

¶153

R.C.REV.NO.148 OF 2021

¶154

¶155

In such circumstances, we deem it appropriate to direct

¶156

the Rent Control Appellate Authority, Kozhikode to dispose of R.C.A.No.91 of 2020 as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this order. The Appellate Authority shall pass appropriate orders in I.A.No.4 of 2021, strictly in accordance with law, taking note of the law laid down by this Court in Suvarna v. Ibrahimkutty and others [2021 (6) KHC 250] , as expeditiously as possible, at any rate, within a period of two months.

¶157

Registry to return LCR to the Rent Control Appellate Authority, Kozhikode, by messenger.

¶158

Sd/-

¶159

ANIL K. NARENDRAN, JUDGE

¶160

Sd/-

¶161

P.G. AJITHKUMAR,

¶162

JUDGE