Kerala High Court
Safar Ahamad vs Mattummal Muhammad Hashim on 29 January, 2024
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR. JUSTICE G.GIRISH
MONDAY, THE 29TH DAY OF JANUARY 2024 / 9TH MAGHA, 1945
RCREV. NO. 21 OF 2024
AGAINST THE ORDER IN RCP 112/2021 OF PRINCIPAL MUNSIFF COURT
KOZHIKODE-I
RCA 167/2023 OF DISTRICT COURT & SESSIONS COURT, KOZHIKODE
REVISION PETITIONER/APPLICANT IN IA NO.2/2023 IN RCA
NO.167/2023 AND APPELLANT IN RCA NO.167/2023 ON THE FILE OF
RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE AND RESPONDENT IN
RCP NO.112/2021 OF RENT CONTROL COURT, KOZHIKODE:
SAFAR AHAMAD
AGED 61 YEARS
S/O AHAMAD, HOUSE NO 53, AYALPAKAVEDI, THIRUTIYAD,
KAATHIL KUNNU AMSOM DESOM,KOZHIKODE TALUK,
PIN - 673004
BY ADVS.
SWAPNALEKHA K.T.
P.JAYA
N.G.SUNIL
RESPONDENT/RESPONDENT IN IA NO.2/2023 IN RCA NO.167/2023 ON
THE FILE OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE AND
PETITIONER IN RCP NO.112/2021 OF RENT CONTROL COURT,
KOZHIKODE
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R.C.(Rev).No.21 of 2024
MATTUMMAL MUHAMMAD HASHIM
AGED 51 YEARS
S/O. ABOOBACKER KOYA HAJI, RESIDING AT KASABA
AMSAM, KARRIA KUNNU DESAM, KOZHIKODE TALUK,
PIN - 673002
BY ADVS.
P.JERIL BABU(K/806/2009) CAVEATOR
SRINATH GIRISH(K/340/1994)
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON 29.01.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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R.C.(Rev).No.21 of 2024
ORDER
G. Girish, J.
The dismissal of R.C.A.No.167 of 2023 by the Rent Control Appellate Authority, Kozhikode, consequential to the dismissal of I.A.No.2 of 2023, a petition filed under Section 5 of the Limitation Act to condone the delay of 425 days in filing appeal, are under challenge in this revision at the instance of the tenant in R.C.P.No.112 of 2021 of the Rent Control Court, Kozhikode.
2. On 13.07.2022, the Rent Control Court, Kozhikode passed an ex parte order in R.C.P.No.112 of 2021 directing the revision petitioner/tenant to surrender vacant possession of the petition schedule room to the respondent/landlord, under Sections 11(3), 11(4)(ii), 11(4)(iii) and 11(4)(v) of the Kerala Buildings (Lease and Rent) Control Act, 1965.
3. The petition filed by the revision petitioner to set aside the above ex parte order, was dismissed for default. Another petition filed by the revision petitioner for the restoration of the above petition, also resulted in dismissal for default. Thereupon, the revision petitioner filed a review petition against the order of dismissal of the petition to restore the restoration petition, which also met with the same fate. Having failed in the attempts to get the ex parte order passed by the Rent Control Court set aside, the 4 R.C.(Rev).No.21 of 2024 revision petitioner filed R.C.A.No.167 of 2023 along with I.A.No.2 of 2023 for the condonation of delay of 425 days in filing the appeal, before the Rent Control Appellate Authority, Kozhikode. The learned Appellate Authority dismissed the delay condonation petition on 10.01.2024 with the observation that the revision petitioner did not adduce any evidence in support of the reasons stated for the delay and hence, it was not possible to entertain the appeal with huge unexplained delay. Accordingly, by a consequential judgment of the same day, R.C.A.No.167 of 2023 was also dismissed. It is aggrieved by the above orders that the revision petitioner is before this Court.
4. Right from the very beginning, the revision petitioner had been stating that the gastro-intestinal ailment suffered by his counsel leading to prolonged treatment was the reason why he could not make appropriate applications to set aside the ex parte order passed against him by the Rent Control Court in R.C.P.No.112 of 2021. In the delay condonation petition filed as I.A.No.2 of 2023 before the Rent Control Appellate Authority also, the Revision Petitioner has stated the same reason for the delay in filing the appeal in time. However, he did not produce any medical records before the Appellate Authority in support of the ailment of his counsel, to substantiate the contention that there were sufficient reasons for the delay which occasioned in the filing of appeal. It is 5 R.C.(Rev).No.21 of 2024 by pointing out the above failure of the revision petitioner to substantiate the reasons for the delay, that the learned Appellate Authority dismissed the delay condonation petition as well as the Rent Control Appeal.
5. The revision petitioner has produced before this Court the original medical records regarding the gastro-intestinal ailment of his counsel and the prolonged treatment undergone for the same at Government Medical College, Kozhikode. It is argued by the learned counsel for the revision petitioner that the Rent Control Appellate Authority did not accept the above records when it were sought to be produced in R.C.A.No.167 of 2023.
6. Having regard to the facts revealed from the above medical records produced by the Revision Petitioner in support of his contention regarding the ailment and prolonged treatment of his counsel, which according to him caused the delay in filing appeal against the order in R.C.P No.112 of 2021, and the submissions of the learned counsel for the Revision Petitioner, we are of the view that the Rent Control Appellate Authority has to decide the delay condonation petition filed by the Revision Petitioner as I.A.No.2 of 2023, after taking into account of the above documents as well. Therefore, the orders under challenge in this revision are liable to be set aside, and the matter to be remitted back to the Rent Control 6 R.C.(Rev).No.21 of 2024 Appellate Authority, Kozhikode, for fresh disposal of I.A No.2 of 2023 in R.C.A No.167 of 2023.
In the result, the revision petition is disposed of as follows:
(i) The order dated 10.01.2024 of the Rent Control Appellate Authority, Kozhikode in I.A No.2 of 2023 in R.C.A No.167 of 2023, and the consequential judgment of the same day, dismissing R.C.A No.167 of 2023, are hereby set aside.
(ii) The matter is remitted back to the Rent Control Appellate Authority, Kozhikode, for fresh disposal of I.A No.2 of 2023 in R.C.A No.167 of 2023, after considering the documents, which the Revision Petitioner will be producing before the said Authority, within a period of three weeks from today, and affording opportunity to both parties to address arguments.
(iii) The Registry shall immediately return the original medical records produced by the Revision Petitioner before this Court, after retaining the photocopies of those documents.
(iv) In the event of failure of the Revision Petitioner to produce the documents before the Rent Control Appellate Authority, Kozhikode, within three weeks from today, the said Authority shall proceed with I.A No.2 of 2023 in R.C.A No.167 of 2023 and pass appropriate orders, taking note of such omissions, if any.7 R.C.(Rev).No.21 of 2024
(v) The execution proceedings in R.C.P No.112 of 2021, will stand stayed till the Rent Control Appellate Authority, Kozhikode passes fresh orders in I.A No.2 of 2023 in R.C.A No.167 of 2023, as per the directions aforesaid.
(sd/-) ANIL K. NARENDRAN, JUDGE (sd/-) G. GIRISH, JUDGE jsr/vgd 8 R.C.(Rev).No.21 of 2024 APPENDIX OF RCREV. 21/2024 PETITIONER ANNEXURES ANNEXURE A1 ORIGINAL COLONOSCOPY REPORT OF SWAPNALEKHA OF GOVERNMENT MEDICAL COLLEGE HOSPITAL, KOZHIKODE DATED 8.11.2021 ANNEXURE A2 ORIGINAL OUT PATIENT CARD OF GOVERNMENT MEDICAL COLLEGE HOSPITAL, KOZHIKODE DATED 19.10.2021 ANNEXURE A3 ORIGINAL OUT PATIENT CARD OF GOVERNMENT MEDICAL COLLEGE HOSPITAL, KOZHIKODE DATED 28.11.2023 ANNEXURE A4 ORIGINAL OUT PATIENT TICKET ISSUED BY MEDICAL COLLEGE KOZHIKODE DATED 29.10.2021 ANNEXURE A5 ORIGINAL OUT PATIENT CASE SHEET ISSUED BY DISTRICT CO-OPERATIVE KOZHIKODE DATED 31.8.2022 ANNEXURE A6 ORIGINAL OUT PATIENT CASE SHEET ISSUED BY DISTRICT CO-OPERATIVE KOZHIKODE DATED 3.9.2022 ANNEXURE A7 ORIGINAL OUT PATIENT CARD ISSUED BY GOVERNMENT MEDICAL COLLEGE, KOZHIKODE DATED 28.9.2022 ANNEXURE A8 ORIGINAL CASE RECORD ISSUED BY GOVERNMENT MEDICAL COLLEGE, KOZHIKODE DATED 14.10.2022 ANNEXURE A9 ORIGINAL DOCTOR PRESCRIPTION ISSUED BY GOVERNMENT MEDICAL COLLEGE, KOZHIKODE DATED 28.11.2023