A. Narayana Rao v. Vengara Achuthan — 1983 DIGILAW 300 (KER)

ORDER S.K. Kader, J. 1. A tenant against whom an exparte order for eviction was passed by the Rent Controller, Cannanore, which was confirmed in appeal and upheld in revision seeks to revise the revisional order passed by the District Judge in R.C.R.P No. 74 of 1980. 2. Strongly attacking this order, the learned advocate appearing for the petitioner urged only the following points: (i) the courts below seriously erred in holding that the rent control appeal 74 of 1979 was barred by limitation: (ii) the courts below failed to consider on merits the bona fide requirement pleaded by the landlord. 3. The landlord respondent herein - instituted a proceeding on 18-2-'78 under S.11(2) and (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 before the Rent Control Court, Cannanore. The tenant revision petitioner resisted this proceeding filing a counter denying the plea of the landlord that he requires the building bona fide for his occupation. After the application was posted for hearing, it underwent several adjournments. On 3-4-1979, an application filed on behalf of the revision petitioner for adjournment of the case, on the ground that he was laid up in a hospital sustaining a fracture following an accident, was dismissed by the Rent Control Court after hearing both sides. Subsequently, as the counsel appearing for the tenant reported that he has no instruction to proceed with the case, the tenant was declared exparte. 4. In support of the petition, the landlord was examined as PW 1 and Exts. A1 to A4 were marked. The learned Rent Controller on a consideration of the evidence on record found that the tenant committed wilful default in payment of rent and that the landlord proved that he bona fide requires the building for own occupation and allowed the petition under S.11(2) and (3) of the Act. On 29-5-1979, the revision petitioner filed an application before the Rent Control Court under S.23(1) (h) of the Act praying that the exparte order passed against him may be set aside and the case may be posted for enquiry afresh. Thereafter the revision petitioner filed an appeal R.C.A. No. 74 of 1979 on 11-8-1979 before the Rent Control Appellate Authority. 5. Thereafter the revision petitioner filed an appeal R.C.A. No. 74 of 1979 on 11-8-1979 before the Rent Control Appellate Authority. 5. The appellate authority dismissed the appeal holding that the appeal was barred by limitation as it was filed beyond 30 days of the date of the order and the appeal was incompetent as it was not accompanied by a certified copy of the order and also on the ground that on the merits of the case, the landlord bona fide requires the building for his own occupation. 6. Against this appellate order R.C.R.P. No. 74 of 1980 was filed before the District Judge, Tellicherry, on 7-6-1980. The learned District Judge, after hearing both sides and on a consideration of the materials on record, dismissed the same confirming the finding of the Rent Control Court and the appellate court. 7. In support of the first point, the learned advocate appearing for the petitioner contended that at the time when the order in question was passed the rule that was in force was R.11(8) of the Rules, 1959 as it stood prior to 24th May, 1979, when it was amended deleting from the last sentence that portion relating to the communication of the order to the parties. It was contended by the counsel that this right to get a copy of the order conferred under the said rule cannot be taken away by subsequent amendment of this Rule in 1979. On the other hand, the learned advocate appearing for the respondent contended that this is a procedural rule and it has got certainly retrospective effect and therefore the revision petitioner was not entitled to receive a copy of the order as the rule was amended on 24-5-1979 and that it was under a mistake that a copy of the order was served on him by the Rent Control Court. 8. There cannot be any serious dispute about the position of law in this regard. Exparte order of eviction was passed by the Rent Control Court on 3-4-1979 and on that day the rule in force was R.11(8), as it stood before the amendment in 1979. As per sub-r.(8) of that Rule, "the decision arrived at by the Accommodation Controller, the Rent Control Court or the Appellate Authority as the case may be, shall be communicated to the parties concerned". As per sub-r.(8) of that Rule, "the decision arrived at by the Accommodation Controller, the Rent Control Court or the Appellate Authority as the case may be, shall be communicated to the parties concerned". The Counsel for the petitioner further contended that this sub-rule relating to the communication of the order to the parties applied only to an exparte decision and not to a decision arrived at by the Accommodation Controller, Rent Control Court or the Appellate Authority as the case may be on hearing both sides. Even a casual reading of this sub-r.(8) of R.11 is sufficient to reject this contention, as of no substance or merit. It is clear from sub-r.(8) of the above said Rule that the decision whether it is exparte or not arrived at by the Accommodation Controller, Rent Control Court or the Appellate Authority, as the case may be, shall be communicated to the parties concerned. It is true, a vested right obtained by the revision petitioner cannot be taken away by subsequent amendment of the Rule. But the relevant question for consideration is whether the appeal filed by the revision petitioner was barred by limitation. The period of limitation is prescribed under S.18(1)(b) of the Act which clearly states that any person aggrieved by an order passed by the Rent Control Court may prefer an appeal in writing to the Appellate Authority having jurisdiction within 30 days from the date of the order. Admittedly, appeal in the instant case was filed only on 11-6-1979 much beyond the period of limitation prescribed, under S.18(1)(b). In this regard, it was argued by the counsel for the petitioner that, as it was the old R.11(8) that was applicable to the petitioner, in computing the period of limitation the petitioner is entitled to get the period taken by the court in communicating the order to him excluded, as provided in clause (b) of sub-s.(1) of S.18. It was argued that the words "date of such order" appearing in clause (b) of sub-s.(1) of S.18 must be construed to mean 'date of communication of such order', that the order was received by the party only on 27-5-1979 and therefore he was entitled to file the appeal within 30 days from the date of the receipt of the order and the time taken by the court in communicating the order to the petitioner should be excluded. There is nothing in S.18 of the Act or R.11(8) of the Rules, 1959 which either expressly or impliedly showing or indicating that the relevant date for computing the period of limitation of 30 days is the date of receipt of the order. If there has been negligence or delay on the part of the authorities concerned in serving an order under the old rules on the parties concerned, it is open to the aggrieved parties to point out this to the court and file an application for getting the period of limitation prescribed under S.18(1)(b) condoned, as it is clear that the period of limitation prescribed under S.18(1)(b) is 30 days from the date of the order and not 30 days from the date of the receipt of the order. Admittedly, appeal has not been filed within 30 days from the date of the order and on application for condoning the delay has been filed. Therefore the question whether the new rule is retrospective or not is of no consequence in this case. 9. The next point argued is that the courts below did not consider the plea of bona fide requirement pleaded by the landlord on merit. In support of this contention, the counsel cited the following decisions: (1) Chari Vijayan v. Achuthan Vasu ( 1973 KLT 849 ) and (2) Kochuvelu v. Varkey ( 1968 KLT 462 ). Relying on these decisions, the counsel vehemently contended that the courts below ought to have weighed the materials available in the case, eventhough it was an exparte decision and this has not been done by all the courts below; whereas learned advocate appearing for the respondent pointed out that all the three courts below have duly considered all the points involved in this case on merits and therefore it is not proper for this Court to interfere with such a concurrent finding. The counsel for the revision petitioner, submitted that the 5 courts below had not considered the objections filed by the revision petitioner. It is true that the first court has not duly considered the objections in detail. The question for consideration before the Rent Control Court was whether the landlord bona fide requires the building for his own occupation. The burden to prove this is on the landlord. The landlord himself has been examined as PW 1 and Exts. A1 to A4 were marked on his side. The question for consideration before the Rent Control Court was whether the landlord bona fide requires the building for his own occupation. The burden to prove this is on the landlord. The landlord himself has been examined as PW 1 and Exts. A1 to A4 were marked on his side. This evidence both oral and documentary has been duly considered by this first court and found that the landlord has succeeded in proving that he bona fide requires the building for his own occupation and the tenant has committed wilful default in payment of rent. Both the appellate court and the revisional court concurred with the findings of the Rent Control Court. This revision has, therefore, absolutely no merit and the same is hereby dismissed without costs.