IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 CRP.No. 1227 of 2002() ---------------------- RCA.74/1998 of I ADDL.DISTRICT COURT, ERNAKULAM RCP.112/1988 of I ADDL.M.C.,ERNAKULAM (IA. 4161 /1996) .................... REVN. PETITIONER(S): APPELLANTS/RESPONDENTS: -------------------------------------------- 1. BALACHANDRA PANICKER, S/O.VELAYUDHAN ELAYIDOM, KUTTANAPPILLIL HOUSE, VENNALA KARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK. 2. K.V.JAYACHANDRA PANICKER, S/O.VELAYUDHAN ELAYEDOM, KUTTANAPPILLIL HOUSE, VENNALA KARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK. BY ADV.SRI.B JAYASANKAR BY ADV. SRI.O.V.ABRAHAM SRI.L.RAJESH NARAYAN RESPONDENT(S): RESPONDENT/PETITIONER: ------------------------------------- ABDUL RAHIMAN, S/O.MADATHIPARAMBIL ISMAIL, VENNALA KARA, EDAPPALLY SOUTH VILLAGE. ADV. SRI.T.B.THANKAPPAN FOR R SMT.K.DEEPA FOR R SMT.ASMI.V.A. FOR R THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. ------------------------ C.R.P.No.1227 OF 2002 ------------------------ Dated this the 13th day of July, 2009 ORDER Pius C.Kuriakose, J. Under challenge in this revision petition under Section 20 of the Rent Control Act filed by the landlord is the judgment of the rent control appellate authority confirming the order passed by the rent control court under Section 11(2)(c) and vacating the eviction order passed by the rent control court under Section 11 (2)(b) for the first time. 2. We have heard the submissions of Sri.B.Jayasankar, learned counsel for the revision petitioner and those of Sri.T.B.Thankappan, learned counsel for the respondent tenant. We were taken through the order of the rent control court as well as the judgment of the rent control appellate authority. Sri.Jayasankar would assail the order of the rent control court and the judgment of the rent control appellate authority very forcefully. Sri.Jayasankar submitted that deposit and application under Section 11(2) (c) has to be filed within a period of one CRP.No.1227/2002 2 month from the date of the order of the rent control court unless specified otherwise in the order. Here it was filed more than two years thereafter. Explanation offered by the respondent tenant was that “due to certain unavoidable, inevitable and unforeseen circumstances” he could not contact his advocate. Very serious objections were filed to the application and it was specifically contended that no sufficient reason is made out by the tenant for not moving the rent control court under Section 11(2)(c) within the statutory period of one month. Sri.Jayasankar submitted that it is only after receiving notice of the execution petition, which itself was filed by the landlord about three years after the order of eviction was passed by the rent control appellate authority, that the respondent tenant thought in terms of making deposits and filing application under Section 11(2)(c). No evidence whatsoever was adduced by the respondent tenant for showing that he was prevented by sufficient reasons in moving the court on time. 3. Sri.T.B.Thankppan, learned counsel for the respondent would support the order of the rent control court and the judgment of the rent control appellate authority. He reminded us CRP.No.1227/2002 3 of the contours of our jurisdiction under Section 20 and submitted that there is no warrant at all for invoking the revisional jurisdiction. Judicial discretion vested in the rent control court was rightly exercised by that court. The learned counsel submitted that it is trite that order of eviction under Section 11(2)(b) is a tentative eviction order which is liable to be vacated the moment the tenant deposits the arrears of rent and costs. Sri.Jayasankar also submitted that amount deposited was in fact far in excess of the total arrears of rent, interest and costs due as on the time of the deposit. 4. In reply Sri.Jayasankar would place strong reliance on the judgment of this court in Mohan v. Parameswaran Namboodiripad(1992 (1) KLJ 164). 5. We have anxiously considered the rival submissions addressed at the Bar in the light of the judgment of this court in Mohan v.Parameswaran Namboodiripad(supra). The ratio emerging from the judgment in the above case is that there is no legal right vested in a tenant to have the time for making deposit under Section 11(2)(c) extended beyond the statutory time of one month. The legal right if at all is confined to making CRP.No.1227/2002 4 an application to the court for exercising its discretion for allowing further time. The power is discretionary and hence the demands that the rent control court should adopt a principled approach in granting or refusing to grant further time. The power to grant further time presupposes that the relief of extending time for making application under Section 11 (2)(c) is equitable and calls for balancing of equities between the parties. In the instant case the respondent tenant was expected to make the deposits and move the rent control court under Section 11 (2) (c) within a period of one month of the judgment of the rent control appellate authority since that authority had not specified any particular time for making the deposits. The respondent did not move the rent control court within one month. In fact the respondent waited till he received notice of the execution proceedings which was some three years after the rent control appellate authority had passed the order of eviction. Despite the inordinate delay, the respondent had not stated any specific reason for getting the time extended. In stead, he had only stated that “due to unavoidable, inevitable and unforeseen circumstances” he could not contact his advocate and hence he CRP.No.1227/2002 5 was not able to file application early. The counter affidavit filed by the revision petitioner landlord in fact highlights that the respondent tenant had not given any specific reason for the delay which had been caused in the mater. In the light of the above counter affidavit, it was obligatory on the part of the respondent tenant to have adduced evidence before the rent control court and satisfied that court that he had genuine reason for not moving that court earlier within the statutory period of one month. 6. On going through the proceedings paper of the rent control court and the order passed by that court, it appears to us that the approach of that court in deciding the application under Section 11(2)(c) filed by the respondent was a little casual. That court, in our opinion, should have insisted that the respondent adduces evidence. The principle that power vested in the court is discretionary and that judicial discretion is to be exercised not in a casual manner, unfortunately was missed by the appellate authority also. We are of the view that the I.A.No.4161/1996 has to be reconsidered by the rent control court in the light of this judgment and the principles of law laid CRP.No.1227/2002 6 down by this court in Mohan's case (supra), which we are approving. 7. Result is that we set aside the order of the rent control court and the judgment of the appellate authority which are impugned in this revision petition and remand I.A. No.4161/1996 to the rent control court. That court is directed to take fresh decision in the I.A. after affording opportunity to the respondent to adduce evidence. Enquiry will be completed and revised order will be passed by the rent control court at the earliest and at any rate within four months of receiving a copy of this judgment. Transmit the records forthwith to the rent control court. Parties will appear before the rent control court on 3/8/2009. PIUS.C.KURIAKOSE,JUDGE P.Q.BARKATH ALI, JUDGE dpk CRP.No.1227/2002 7 PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. ------------------------ C.R.P.No.1227 OF 2002 ------------------------ O R D E R 13TH JULY 2007