Kerala High Court
Ratheesh vs A.M.Chacko on 4 October, 2018
Author: K.Harilal
Bench: K.Harilal
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR. JUSTICE A.M.BABU
THURSDAY ,THE 04TH DAY OF OCTOBER 2018 / 12TH ASWINA, 1940
RCRev..No. 44 of 2017
RCA 26/2014 of RENT CONTROL APPELLATE AUTHORITY (DISTRICT
jUDGE),KALPETTA DATED 18-10-2016
RCP 17/2009 of RENT CONTROLLER (MUNSIFF MAGISTRATE),
SULTHAN BATHERI DATED 15-12-2014
REVISION PETITIONER/APPELLANT/RESPONDENT NO.2:
RATHEESH
S/O. C.M. RAGHAVAN, NELLIPURAYIL HOUSE, AGED 33
YEARS, THAZHEANGADI, CHEPPALA,
KALANADIKOLLY,PULPALLY VILLAGE, SULTHANBATHERY.
BY
SRI.ALEX.M.SCARIA
SMT.SARITHA THOMAS
RESPONDENTS/RESPONDENTS/LANDLORD & RESPONDENT NO.1:
1 A.M.CHACKO
S/O. MATHAI, AGED 64 YEARS, EDAKUDIYIL
HOUSE,PULPALLY VILLAGE, SULTHANBATHERY TALUK,
WAYANAD.-673579
2 C.M. RAGHAVAN
AGED 57 YEARS, S/O. MADHAVAN CHETTIAR,
NELLIPURAYIL HOUSE, AGED 33 YEARS,
CHEPPALA,KALANADIKOLLY, PULPALLY VILLAGE,
SULTHANBATHERY.-673579
BY
SRI.RENJIT GEORGE
SRI.K.SHAJ
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
13.8.2018 ALONG WITH RCRev.45/2017, THE COURT ON 04.10.2018
PASSED THE FOLLOWING:
RCR.44 & 45/17
2
CR
K.HARILAL & A.M.BABU, JJ.,
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R.C.R. Nos 44 & 45 of 2017
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Dated : 4th October, 2018
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ORDER
A.M.Babu, J
1.We refer to the parties as they are shown in the revision petitions.
2.The 1st respondent filed R.C.P.17/2009 before the rent control court, Sulthan Bathery. It was filed seeking eviction of the 2nd respondent from three rooms in a building. Those rooms bear door Nos VI/522, VI/526 and VI/528. Eviction was sought under Sec.11(2)(b) and (3) of the Kerala Buildings (Lease and Rent Control) Act (for short the KBLR Act). The 2nd respondent contended that he was not the tenant of the room bearing door No.VI/522. He contended further that he was not RCR.44 & 45/17 3 aware as to who the tenant of the said room was. The 1st respondent filed I.A.204/2013 to implead the petitioner as a party to the rent control petition. The petitioner is the son of the 2 nd respondent. It was alleged in I.A.204/2013 that the 2nd respondent, who was the tenant of the said room too, had inducted the petitioner in possession of it. Impleading of the petitioner was sought to avoid technical objections in the execution proceedings. The petitioner was given notice in the application to implead him. He did not respond to the notice. He was impleaded. The rent control court allowed the rent control petition and directed the petitioner and the 2 nd respondent to vacate the premises. It was an ex parte order so far as the petitioner was concerned.
3.The petitioner filed I.A.236/2014 to get the ex parte order against him set aside. He filed I.A.235/2014 requesting to condone the delay in RCR.44 & 45/17 4 filing I.A.236/2014. He contended that he was not served with summons in the rent control petition, nor a copy of the petition. The 1 st respondent contended that the petitioner evaded the summons. It was also contended that the petitioner was aware of the proceedings. According to the 1st respondent, the petitioner filed I.A.235/2014 and I.A.236/2014 only to protract the proceedings and delay the execution of the order of eviction.
4.The rent control court accepted the contentions of the 1st respondent and dismissed both the applications of the petitioner. The petitioner filed two appeals before the appellate authority, Kalpetta. R.C.A.25/2014 was filed against the dismissal of I.A.235/2014. R.C.A.26/2014 was filed against the order dismissing I.A.236/2014. The appellate authority agreed with the rent control court and dismissed both the appeals. The petitioner filed R.C.R.44/2017 challenging the dismissal of R.C.A.26/2014. He filed RCR.44 & 45/17 5 R.C.R.45/2017 against the dismissal of R.C.A.25/2014.
5.Heard Sri.Alex M.Scaria, the learned counsel for the petitioner and Sri.K.Shaj, the learned counsel for the 1st respondent.
6.The petitioner suffered an ex parte order of eviction at the hands of the rent control court. He moved an application to get the ex parte order set aside. But there was delay in filing the said application. Therefore the petitioner moved another application to condone the delay. Condonation of delay was sought under Sec.5 of the Limitation Act. The learned counsel for the 1st respondent has submitted that the Limitation Act does not apply to proceedings before rent control courts. Therefore, according to the learned counsel, the application of the petitioner seeking condonation of delay was not maintainable. The learned counsel relied on the RCR.44 & 45/17 6 decision of the apex court in M.P.Steel Corporation v. Commissioner of Central Excise [(2015) 7 SCC 58].
7. The apex court in Mukri Gopalan v. Cheppilat Puthenpurayil Aboobacker (AIR 1995 SC 2272) held that the Limitation Act was applicable to appeals filed under Sec.18 of the KBLR Act. In M.P.Steel Corporation (supra) the apex court holds that the said dictum in Mukri Gopalan (supra) is not in agreement with the dictum laid down by a three- judge bench of the apex court in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department (AIR 2009 SC [supp] 396). The apex court states in M.P.Steel Corporation (supra) that in Consolidated Engineering Enterprises (supra) it is unequivocally held that the three-judge bench decision in Commissioner of Sales Tax, Uttar Pradesh v. M/s Parson Tools and Plants, Kanpur (AIR 1975 SC 1039) is an authority for the proposition that the Limitation Act will RCR.44 & 45/17 7 not apply to quasi judicial bodies or tribunals. It is ultimately held in M.P.Steel Corporation (supra) that the dictum in Mukri Gopalan (supra), mentioned above, is no longer good law. In view of M.P.Steel Corporation (supra) it should be held that the Limitation Act is not applicable to proceedings under the KBLR Act before a rent control court. Therefore I.A.235/2014 filed by the petitioner under Sec.5 of the Limitation Act was not maintainable.
8. We note below the submissions of the learned counsel for the petitioner. Sec.23 (1)(h) of the KBLR Act makes order IX rule 13 of CPC applicable to set aside ex parte orders in rent control proceedings. As per notification No.B1-3312/1958 dated 7.4.1959 published in Kerala Gazette No.23, part-III, dated 9.6.1959, the High Court of Kerala made certain amendments to the 1 st schedule of the Code of Civil Procedure. One of the amendments made was substitution of rule 13 of RCR.44 & 45/17 8 order IX of CPC in place of the then existing rule. Sub-rule (2) of the substituted rule 13 of order IX of CPC provides that the provisions of Sec.5 of the Indian Limitation Act, 1908 shall apply to applications under sub-rule (1). The reference to Sec.5 of the Indian Limitation Act, 1908 in order IX rule 13(2) of CPC, as amended by the High Court of Kerala, shall be construed as a reference to Sec.5 of the Limitation Act, 1963, which is now in force, in view of Sec.8 of the General Clauses Act. Sub-rule (2) of rule 13 of order IX of CPC making the provisions of Sec.5 of the Limitation Act applicable to the applications under sub-rule (1) of rule 13 survived the subsequent amendments to the Code of Civil Procedure made by the Parliament as the local amendment was not inconsistent with the Central Act. Thus, order IX rule 13 of CPC as applicable in the State of Kerala is a package taking in Sec.5 of the Limitation Act as well. Therefore Sec.5, Limitation Act, applies to an application RCR.44 & 45/17 9 to set aside an ex parte order in a rent control proceedings.
9. The aforenoted submissions of the learned counsel for the petitioner, canvassing for a position that Sec.5 of the Limitation Act is applicable to the proceedings in a rent control court, are not entertainable by this court when the Supreme Court holds it otherwise. That apart, we do not find merit in the submissions of the learned counsel. What Sec.23(1) (h) of the KBLR Act provides is not that order IX rule 13 of CPC is applicable to a proceedings before the rent control court or appellate authority. What Sec.23(1) provides is only that the accommodation controller, the rent control court and the appellate authority shall have the powers which are vested in a court under the Code of Civil Procedure when trying a suit in respect of the matters enumerated in clauses (a) to (k). Clause
(h) reads 'setting aside ex parte orders'. It is RCR.44 & 45/17 10 specifically provided in Sec.23(1) that the aforesaid three authorities shall have such powers subject to such conditions and limitations as may be prescribed. Sec.31(1) of the KBLR Act provides that the government may make rules to carry out the purposes of the said Act. Sec.31(2)
(d) provides that such rules may provide for setting aside ex parte orders passed under the KBLR Act. In exercise of the powers conferred by Sec.31, the government made the Kerala Buildings (Lease and Rent Control) Rules, 1979 (KBLR Rules for short). Rule 13(3) reads as under :
In any case in which an order is passed ex parte against a tenant or a landlord, the tenant or the landlord, as the case may be, may within fifteen days from the date of receipt of the order apply to the Accommodation Controller or the Rent Control Court, as the case may be, by whom the order was passed, for an order to set aside, and if the tenant or the landlord satisfies the Accommodation Controller or the Rent Control Court, as the case may be, that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the application was called on for hearing, the Accommodation Controller or the Rent Control Court, as the case may be, shall make such order as it deems fit, an order passed against the tenant or landlord, as RCR.44 & 45/17 11 the case may be, and shall appoint a day for proceeding with the application.
If there are grounds to do so, an ex parte order is set aside by a rent control court not under order IX rule 13 of CPC, but under rule 13(3) of the KBLR Rules. Therefore the learned counsel for the petitioner cannot be heard to say that in view of order IX rule 13(2) of CPC as amended by the High Court of Kerala, Sec.5 of the Limitation Act applies to applications for setting aside ex parte orders.
10.The period of limitation prescribed by rule 13(3) of the KBLR Rules for seeking to set aside an ex parte order is 15 days from the date of receipt of the order. It is held by this court that the expression "date of receipt of the order"
appearing in rule 13(3) has to be read as "date of knowledge of the order". The decisions holding so are Moorthy v. Ramachandran (1992 (2) KLT 206) RCR.44 & 45/17 12 and Selvi v. Nataraja Mudaliyar (1994 (1) KLT
82).
11.We may refer to another provision. An application to implead the legal representatives of a party to the rent control proceedings shall be filed within 30 days from the date of death of the person concerned as provided by rule 10 of the KBLR Rules. The proviso to rule 10 provides that the appellate authority may in appropriate cases condone the delay in filing the application to implead the legal representatives. No such proviso is attached to rule 13(3). There is no provision in the KBLR Act or the KBLR Rules under which the delay in filing an application to set aside an ex parte order can be condoned.
12.On a perusal of the case records we find that summons was not issued to the petitioner after he was impleaded in the proceedings. But the proceedings were not unknown to him. As he RCR.44 & 45/17 13 himself admits, he was given notice in the application to implead him. He was therefore aware of the proceedings. He even filed an application for removing the case from the special list. That means he was watching the proceedings. It should therefore be taken that he knew about the ex parte order on the date of its pronouncement itself. That must be why he did not give any date in his application to condone the delay as the date of knowledge of the ex parte order. He should have filed the said application within 15 days from the date of the order. But he did not. There was a delay of 39 days even according to him. The said delay is fatal to his application for setting aside the ex parte order as Sec.5 of the Limitation Act is not applicable to condone the delay. The application of the petitioner to condone the delay was not maintainable and therefore the same was liable to be dismissed. Consequently, the application to set aside the ex parte order was also liable to RCR.44 & 45/17 14 be dismissed. Both the revisions therefore deserve only a dismissal.
13.We find it appropriate to write a few lines more. The petitioner is the son of the 2nd respondent. They reside under the same roof as stated by the rent control court and the appellate authority. The son claims himself to be the tenant of room No.VI/522. The contention of the father was that he was not aware as to who was the tenant of the said room. The father who gave evidence as RW1 in the main proceedings when cornered in cross- examination had to admit that he was the tenant of the said room and that he did not surrender his tenancy. The father suffered two ex parte orders of eviction and got both those orders set aside. The son received notice in the application to implead him, but did not choose to appear. As we have already indicated, he was watching the proceedings. It is clear that the father and son did all that they could do to protract the RCR.44 & 45/17 15 proceedings. They were successful also in prolonging the proceedings. Such prolongation can no longer be permitted. In O.P(R.C)157/2014 filed by the son (petitioner), a division bench of this court remarked that his was a clear attempt to protract the rent control proceedings. Thus, there has already been an adverse remark on the petitioner by this court that he has been attempting to protract the proceedings. In these circumstances, we are in agreement with the finding of the appellate authority that there was no bona fides in prosecuting the applications and the appeals by the petitioner. We find no reason to interfere with the concurrent findings of the rent control court and the appellate authority.
14.We dismiss both the revision petitions with costs.
K.HARILAL Judge A.M.BABU Mrcs/17.9. Judge