IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 RCRev..No. 210 of 2009() ------------------------ RCA.4/2009 of ADDL.DISTRICT COURT, KOZHIKODE RCP.36/2007 of MUNSIFF COURT, QUILANDY .................... REVISION PETITIONER/ APPELLANT/RESPONDENT: ----------------------------------------- JAYARAMAN, S/O.PALANIANDI, ROOM NO. BP-5/27, MAIN ROAD, BALUSSERY, BALUSSERY AMSOM AND DESOM OF KOYILANDY TALUK. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S)/ RESPONDENT/PETITIONER: ------------------------------------- BAPPANKOYA, S/O.ALI, RESIDING OF KINARULLATHIL HOUSE, BALUSSERY AMSOM DESOM OF KOYILANDY TALUK. ADV. SRI.K.B.SIVARAMAKRISHNAN FOR R THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No. 210 OF 2009 ------------------------ Dated this the 10th day of November, 2009 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed under Section 20 by the tenant is the order of the Rent Control Appellate Authority dismissing the application for condonatiin of delay caused in the matter of filing the appeal and also the consequent judgment of the Appellate Authority dismissing the Rent Control Appeal itself. The delay caused in the matter of filing the appeal was 192 days. The delay was sought to be explained by the tenant by stating that the task of obtaining certified copy of the order of the Rent Control Court was entrusted by him to his counsel, who defended him before the Rent Control Court and that communication regarding the obtainment of copy of the order was not received by him from the office of the counsel. The landlord filed objection to the application for condonation of delay contending inter alia that the explanation offered is not genuine. The petitioner did not adduce any evidence in support of his RCR.No.210/2009 2 application for condonation of delay. It appears that it was conceded by the petitioner that the application can be decided on the basis of the affidavits filed by the parties. The Appellate Authority was not inspired by the explanation offered by the petitioner. The Appellate Authority referred to the judgment of the Supreme Court in Vedabai alias Vaijayantabai – Baburao Patil v. Shantaram Baburao Patil and others (AIR 2001 SC 2582) and found that in the instant case the delay was inordinate and therefore, the consideration that condoning the delay will cause prejudice to the landlord was to be taken into account. Accordingly, the Appellate Authority held that the no sufficient case was made out by the tenant for condoning the delay and dismissed the I.A. and consequently the appeal also. 2. We have heard the submissions of Sri.P.A.Harish, learned counsel for the revision petitioner and Sri.K.B.Shivaramakrishnan, learned counsel for the respondent. Sri.Harish submitted that the adjudication of the Rent Control Appeal on its merit may be facilitated atleast by imposing terms on the revision petitioner. He pointed out that the need projected by the landlord in the context of sub section (3) of RCR.No.210/2009 3 Section 11 was that the landlord's son wants to carry on business not only in the petition schedule premises, but also another room which was subject matter of another RCA (RCA No.96/2008). Since that RCA is pending, the landlord will not be able to accomplish the projected need unless that RCA is also disposed of in favour of the landlord. Sri.Shivaramakrishnan would quickly respond to the above submission of Sri.Harish saying that it is not the same business which is proposed to be conducted by the landlord's son in these two rooms. Separate businesses are proposed to be conducted in these two rooms. Therefore, if the room which is subject matter of the present Rent Control Revision is got vacated, it will be possible for the landlord's son to carry on one of the proposed businesses. Sri.Shivaramkrishan further submitted that idea of preferring the appeal against the order of the Rent Control Court struck the tenant only at a later stage. As soon as the decision of the Rent Control Court was known, the tenant approached the landlord and sought for three months time to vacate the premises. The landlord very graciously allowed seven months time. Now the landlord is cheated by the tenant. No indulgence RCR.No.210/2009 4 be shown to such a tenant, so submitted by the learned counsel. 3. We have very anxiously considered the rival submissions addressed at the Bar. We have kept in mind the judicial precedents governing exercise of jurisdiction by this court under Section 5 of the Indian Limitation Act including the judgment of the Supreme Court in Collector, Land Acquisition Anantnag and another v. Mst.Katiji and others (AIR 1987 Supreme Court 1353). After all, the defeated tenant has a right of appeal under Section 18 of Act 2 of 1965. Even though the petitioner did not adduce any evidence to substantiate the explanation offered by him for condoning the delay, we are of the view that his explanation that his counsel (or the counsel's clerk) did not promptly informed him about the obtainment of certified copy of the order of the Rent Control Court is not improbable. At any rate, it is clear to our mind that the revision petitioner did not receive intimation even if the same was sent by the counsel's office on time. At the same time, we find some merit in the submission of Sri.Shivaramakrishnan that the averments in the affidavit sworn to by the tenant in support of his application for RCR.No.210/2009 5 condonation of delay were not specific. Under the above circumstances, we are of the view that relief can be given to the petitioner only on stringent terms. We notice that current monthly rent of Rs.500/- being paid by the revision petitioner to the landlord is far below the rent which the building may fetch if the same is let out today. Under the above circumstances, we decide that one of the conditions to be imposed for granting relief to the petitioner is refixation of monthly rent prospectively subject to the right of either sides to move the competent court for fixation of fair rent. Accordingly, we decide the RCR issuing the following directions: 1). The order of the Rent Control Appellate Authority dismissing I.A. No.58/2009 as well as its judgment dismissing the appeal in RCA No.4/2009 are set aside. 2). I.A. 58/2009 will stand allowed and RCA will stand restored to file subject to the following conditions; i). Monthly rent payable by the revision petitioner for the subject building will stand refixed tentatively with effect from 1st December, 2009 at Rs.1000/- per RCR.No.210/2009 6 month. This refixation is without prejudice to the right of either of the parties to move the competent court for fixiation of fair rent. ii). The Revision Petitioner shall pay a sum of Rs.2,500/- to the respondent either directly or through the respondent's counsel in this court on or before 25/11/2009. iii). The Revision Petition shall pay a sum of Rs.500/- to the Kerala Medication Centre within the same time limit. iv). Receipts against the two payments mentioned above shall be produced by the revision petitioner before the Rent Control Appellate Authority. 3). The present judgment setting aside the order dismissing the application for condondation of delay and restoring the appeal will become operative only if the two payments are made within the time limit. Once it is noticed that the above order has become RCR.No.210/2009 7 operative, the Appellate Authority will restore the appeal and dispose of the RCA in accordance with law at the earliest. It will be ensured that the RCA is disposed of finally within one month thereafter. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk