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2021 Supreme(Online)(KER) 3288
HIGH COURT OF KERALA
A. Hariprasad, T.V. Anilkumar, JJ
M.K. Faisal – Appellant
Versus
Vikas Chacko – Respondent
OP (RC).No.2 OF 2019
For the Appellants/Petitioners: B. Premnath, Mani Govinda Marar
For the Respondents: Nirmal V Nair
The Rent Control Court is empowered to invoke Section 5 of the Limitation Act to condone delays in filing applications to set aside ex parte orders.
Headnote:The petitioner challenged orders passed by the Rent Control Court dismissing applications to set aside an ex parte eviction order and condone the delay in filing such applications, which were based on the Kerala Building (Lease and Rent Control) Act, 1965. The Rent Control Court had previously held it lacked authority to invoke Section 5 of the Limitation Act. The primary issue was whether the Rent Control Court possesses the power to invoke Section 5 of the Limitation Act to condone delay. The court referred to a Full Bench decision which answered the question in the affirmative, establishing that the Rent Control Court is empowered to condone such delays. Exts.P4 and P5 orders are set aside. The Rent Control Court is directed to consider the applications properly and if the applications are considered in favour of the tenant, the Rent Control petition shall be disposed within a period of three months.
| Table of Content |
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| 1. procedural history of eviction petition and dismissal of delay condonation application. (Para 1 , 2) |
| 2. rent control court's authority to condone delay under the limitation act. (Para 3) |
THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 22.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
J U D G M E N T
A.HARIPRASAD, J.
Heard the learned counsel for the petitioner and respondent.
2. The petitioner is the tenant/respondent in R.C.P.No.14/2015 before the Rent Control Court (Munsiff Magistrate), Sulthanbathery. The respondent/landlord filed an eviction petition urging grounds under Sections 11(2) and 11(3) of the Kerala Building (Lease and Rent Control) Act, 1965. The tenant was set ex parte and an eviction order was passed. The tenant filed Exts.P2 and P3 applications to set aside the ex parte order and to condone delay in filing such application. Those applications were dismissed by Exts.P4 and P5 orders, finding that the Rent Control Court has no authority to invoke Section 5 of the Limitation Act on the basis of the decision in Ratheesh V. vs. A.M. Chacko and anr. (2018(5) KHC 35). Exts.P4 and P5 orders are challenged in this proceedings.
3. A question whether Rent Control Court is having power to invoke Section 5 of the Limitation Act was referred to a Full Bench and the Bench answered the question in the affirmative by order dated 03.12.2020 in Faisal v. Vikas Chacko (2020(6) KLT 722). In the light of the decision by the Full Bench, we are of the view that the Rent Control Court has to consider the applications to set aside the ex parte order and to condone delay on merits. In the result, Exts.P4 and P5 orders are set aside. The Rent Control Court is directed to consider the applications properly and if the applications are considered in favour of the tenant, the Rent Control petition shall be disposed within a period of three months. In the meantime, the landlord is free to move the Rent Control court for directing the tenant to deposit arrears of rent, if any. It is made clear that the order of stay of execution will continue till the disposal of the applications. All pending interlocutory applications are closed.
