IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 13TH MARCH 2008 / 23RD PHALGUNA 1929 RCRev.No. 367 of 2007() ------------------------ AGAINST THE ORDER DATED 05/12/2007 IN IA.4390/2007 IN RCA.93/2007 of VI ADDL.DISTRICT COURT, ERNAKULAM IA.2702/2006 in RCP.167/2005 of III ADDL.MUNSIFF & RENT CONTROL COURT, ERNAKULAM .................... APPELLANT/APPELLANT/RESPONDENT: ------------------------------------------------ SAMEER KATHURIA, AGED 35 YEARS, S/O. LATE SUBHASH KATHURIA, 40/6930, M.G.ROAD, ERNAKULAM, COCHIN-18. BY ADV. SRI.S.SREEKUMAR RESPONDENTS: RESPONDENT/RESPONDENT: ----------------------------------- 1. C.A. LATHEEF, AGED 51 YEARS, S/O. ABDULLA, CHETTIPARAMBIL, S.R.M.ROAD, ERNAKULAM VILLAGE, KANAYANNUR TALUK,ERNAKULAM DIST COCHIN-17. 2. BEENA, AGED 43 YEARS, W/O. C.A.LATHEEF, CHETTIPARAMBIL, S.R.M.ROAD, ERNAKULAM VILLAGE, KANAYANNUR TALUK,ERNAKULAM DIST COCHIN-17. BY ADV. SRI.A.V.THOMAS THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Order on IA 3190/07 in RCR 367 of 2007 --------------------------------------- Dismissed. Sd/- K.Balakrishnan Nair,Judge. Sd/- P.N.Ravindran,Judge. 13/3/2008 K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== R.C.R.No. 367 of 2007 ======================== Dated this the 13th day of March, 2008. ORDER Balakrishnan Nair,J. The tenant is the revision petitioner. The land lords are the respondents. The Rent Control Petition was filed under Sections 11(3), 11(4)(i) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as the "Act"). Before the Rent Controller, the tenant could not file counter statement in time. So he was set ex parte and the order of eviction was passed on 8.2.2006. He filed I.A.No.2703 of 2006 to set aside the ex parte order. I.A.No.2701 of 2006 was filed to condone the delay in filing the petition to set aside the ex parte order. I.A.No.2702 of 2006 was filed to accept the counter statement, which was not filed in time. The Rent Controller heard all these petitions and dismissed them by order dated 12.7.2006. The petitioner submitted that his counsel informed him of the said RCR 367/07 -: 2 :- development and told him that he has applied for certified copy of the order. 2. The petitioner is a businessman who undertakes frequent travels throughout India. Occasionally he used to contact his counsel to know whether the certified copy has been received. Finally on enquiry with another counsel, he was told in June, 2007 that there cannot be a delay of about one year to get the copy. Immediately, he approached his counsel and he was told by him that his clerk left him, who was dealing with the matter and therefore, he was not in a position to say anything about the copy application. Immediately, he approached his present counsel to enquire into the matter and it was found that no applications were seen filed for certified copies of the orders in the above mentioned interlocutory applications. Thereupon his new counsel applied for certified copies of the orders on 28.6.2007. The copies were received on 17.9.2007. Soon thereafter on 21.9.2007, R.C.A.No.93 of 2007 was filed against the orders in I.A.No.2701 of 2006 and I.A.No.2702 of 2006. There was a delay of 435 days in filing the appeal. So, he filed I.A.No.4390 of 2007 before the appellate Authority for condoning RCR 367/07 -: 3 :- the above delay. The petitioner submits that the delay in filing the counter statement before the Rent Controller was because of an accident in which he suffered injuries while he was in Delhi in January, 2006. In fact, he filed a petition to set aside the ex parte order without much delay. There was only a delay of 18 days in filing that application. It was rejected without any justifiable ground. The delay in moving the appellate authority was only because of the delay from the part of his counsel. Therefore, the petitioner may not be penalised and he may be given a chance to contest the matter on merits, it is submitted. 3. The respondents/land lords have filed a detailed counter affidavit vehemently opposing the prayers of the petitioner. According to them, the petitioner is a habitual defaulter. The claim of the petitioner regarding the accident, etc., lacks credence. They also rely on the deposition of the petitioner in a connected civil suit wherein he deposed in March, 2007 that against the dismissal of the Rent Control Petition, he has not filed any appeal. This would show that he never intended to file an appeal. Other contentions are also raised. 4. We heard learned counsel on both sides. Going by the RCR 367/07 -: 4 :- principles laid down by the Apex Court in Collector, Land Acquisition, Anantnag v. Katiji - A.I.R. 1987 S.C. 1353, we feel that the delay should be condoned, but on terms. We also feel that since there was only a delay of 18 days in filing the application to set aside the ex parte order, the application should have been normally allowed. So to avoid the litigation at different levels, we feel that the matter should be remitted to the Rent Controller with a direction to dispose of the matter expeditiously. 5. Having regard to the facts of the case, the petitioner should be directed to pay Rs.10,000/- towards costs to the counsel for the respondents. The learned counsel for the respondents fairly submitted that the petitioner may be directed to pay one-fourth of the costs to the Kerala High Court Legal Services Committee. We order that if the petitioner pays Rs.7,500/- to the counsel for the respondents and Rs.2,500/- to the Kerala High Court Legal Services Committee, within two weeks from today, the order in I.A.No.4390 of 2007 in R.C.A.No.93 of 2007 shall stand set aside and the I.A. and the appeal shall stand allowed. We also order that the orders RCR 367/07 -: 5 :- impugned in R.C.A.No.93 of 2007 shall also stand set aside and the Rent Control Petition shall be restored to files of the Rent Controller. The parties shall appear before the Rent Controller on 1.4.2008. The counter statement filed by the petitioner shall be received. The Rent Controller shall proceed with the Rent Control Petition and dispose of the matter finally as expeditiously as possible. Needless to say, if the cost as directed above is not paid in time, this order shall stand recalled and the orders impugned shall revive. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 14/3