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2021 Supreme(Online)(KER) 21439
HIGH COURT OF KERALA
A.HARIPRASAD, T.V.ANILKUMAR, JJ
THIRUNILATH GANGADHARAN, – Appellant
Versus
SAFIYA, – Respondent
OP (RC)/112/2019
SRI.C.M.MOHAMMED IQUABAL, SRI.JAMSHEED HAFIZ, SMT.T.S.SREEKUTTY
The Rent Control Court has the authority to invoke Section 5 of the Limitation Act to set aside ex-parte orders in appropriate cases.
Headnote:
Eviction - Rent Control - Kerala Buildings (Lease & Rent Control) Act, 1965, Sections 11(3), 11(4)(v) - Implicit authority of Rent Control Court to invoke Section 5 of the Limitation Act interpreted to allow setting aside ex-parte eviction orders if meritorious.
Fact of the Case:
The petitioner, a tenant, was evicted ex-parte by the Rent Control Court under the Kerala Buildings (Lease and Rent Control) Act, 1965. The petitioner sought to set aside the eviction order, but his applications were dismissed for delay and lack of authority per previous case law.
Issues: Whether the Rent Control Court possesses the authority to invoke Section 5 of the Limitation Act for delay in filing an application to set aside an ex-parte eviction order.
Ratio Decidendi: The court held that established precedents incorrectly limited the Rent Control Court's authority and clarified that the court can invoke Section 5 of the Limitation Act, thereby allowing for a reconsideration of applications based on merit.
Final Decision: Orders of the Rent Control Court are set aside; applications to be heard on merit.
JUDGMENT
Dated this the 22nd day of January 2021 Hariprasad, J.
Heard the learned counsel for the petitioner and respondents.
2. Petitioner is the respondent/tenant in R.C.P. No. 41 of 2016 before the Rent Control Court, Tirur. He was sought to be evicted by the respondents/landlords under Sections 11 (3) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (in short, “B.R.C. Act”). Petitioner remained absent at the time of trial and he was set exparte. Ext.P1 is the order of eviction passed against the petitioner exparte. Petitioner filed Ext.P3 application to set aside the exparte order along with Ext.P2 application to condone the delay in filing the application. Rent Control Court dismissed the delay condonation petition and consequently the petition to set aside the exparte order finding that the ratio inRatheesh v. A.M.Chacko and another ( 2018 (5) KHC 35 ) clearly shows that the Rent Control Court has no authority to invoke power under Section 5 of the Limitation Act . The decision inRatheesh's case was doubted and referred to a Full Bench. A Full Bench of this Court inHamsa K.K. and others v. Athikottu Snehaletha and others ( 2020 (6) KHC 609 ) by judgment dated 03.12.2020 found that the decision inRatheesh's case is legally incorrect. In short, the Rent Control Court in an appropriate case has power to invoke of the . In the light of the above Full Bench decision the order passed by the court below is not sustainable.
In the result, Exts.P6 and P7 orders passed by the Rent Control Court are set aside. We direct the Rent Control Court, Tirur to dispose of Exts.P2 and P3 applications on merit within a period of one month from the date of receipt of a copy of this judgment. There shall be an order of stay of execution of Ext.P1 order until disposal of the above applications.
Sd/-
A.HARIPRASAD JUDGE Sd/-
T.V.ANILKUMAR JUDGE cks APPENDIX OF OP (RC) 112/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE ORDER DATED 21.2.2018 IN R.C.P.NO. 41/2016 OF THE RENT CONTROL COURT, TIRUR EXHIBIT P2 THE TRUE COPY OF I.A.2451/2018 IN RCP
41/2016 OF THE RENT CONTROL COURT, TIRUR DATED 19.11.2018 EXHIBIT P3 THE TRUE COPY OF I.A.2452/2018 IN RCP
41/2016 OF THE RENT CONTROL COURT, TIRUR DATED 19.11.2018 EXHIBIT P4 THE TRUE COPY OF THE COUNTER IN I.A.2451/2018 IN RCP 41/2016 OF THE RENT CONTROL COURT, TIRUR DATED 25.2.2019 EXHIBIT P5 THE TRUE COPY OF THE COUNTER IN I.A.2452/2018 IN RCP 41/2016 OF THE RENT CONTROL COURT, TIRUR DATED 25.2.2019 EXHIBIT P6 THE TRUE COPY OF THE ORDER IN I.A.2451/2017 IN RCP 41/2016 OF THE RENT CONTROL COURT, TIRUR DATED 6.6.2019 EXHIBIT P7 THE TRUE COPY OF THE ORDER IN I.A.2452/2017 IN RCP 41/2016 OF THE RENT CONTROL COURT, TIRUR DATED 60602019 EXHIBIT P8 THE TRUE COPY OF E.P.NO. 174/2018 IN RCP
41/2016 OF THE MUNSIFF COURT, TIRUR DATED
4.7.2018 EXHIBIT P9 THE TRUE COPY OF THE COUNTER OF THE PETITIONER IN E.P.NO.174/2018 IN RCP
41/2016 OF THE MUNSIFF COURT, TIRUR DATED
4.4.2019
