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2018 Supreme(Ker) 637

IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. HARILAL, A.M. BABU, JJ.
Ratheesh S/o. C.M. Raghavan - Petitioners
Versus
A.M. Chacko S/o. Mathai & Ors. - Respondents
R.C.R. Nos 44 & 45 of 2017
Decided On : 04-10-2018

Advocates Appeared:
For the Petitioners: Sri. Alex. M. Scaria, Smt. Saritha Thomas.
For the Respondents: Sri. Renjit George, Sri. K. Shaj.

Headnote:

The Kerala Buildings (Lease and Rent Control) Act, Section11(2)(b) and 11(3) - The Kerala Buildings (Lease and Rent Control) Act, Rule 13(3) - Code of Civil Procedure, O 9 R 13 - Limitation Act, Section 5 - In a Rent Control Petition, if the tenant is set exparte, he has to apply under Rule 13(3)of the Kerala Buildings (Lease and Rent Control) Rules to the Rent Control Court in order to set aside the exparte order and not under O 9 R 13 of the Code of Civil Procedure. Moreover, Section 5 of the Limitation Act does not apply to proceedings of Rent Control Court.

Statement of facts:

The 1st respondent filed R.C.P.17/2009 before the rent control court, Sulthan Bathery seeking eviction of the 2nd respondent under Sec.11(2)(b) and (3) of the Kerala Buildings (Lease and Rent Control) Act. The 2nd respondent contended that he was not a tenant and he was not aware as to who the tenant of the said room was- The rent control court 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 and 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 R.C.R.45/2017 against the dismissal of R.C.A.25/2014.

Finding of the Court:

Even though, summons was not issued to the petitioner after the impleadment, the petitioner was very well aware of the proceedings. He himself admits that he was given notice in the impleading application. He even filed an application for removing the case from the special list. It should therefore be taken that he knew about the ex parte order on the date of its pronouncement itself. The petitioner had not specified any date in his application to condone the delay as to 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

Result: Revisions petitions were dismissed with cost.

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 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 2nd 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 2nd 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 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 1st 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 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 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-jud










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