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2021 DIGILAW 563 (KER)

Rafeek S/o Younus Kunju v. K. Kamarudeen S/o Kasim Kunju

2021-06-22

ANIL K.NARENDRAN, M.R.ANITHA

body2021
ORDER : 1. The revision petitioners are the respondents in R.C.A. No. 39 of 2018 on the file of the Rent Control Appellate Authority, Kollam (District Judge, Kollam), arising out of the order of the Additional Rent Control Court, Kollam in R.C.P. No. 2 of 2013, an application filed by them under Sections 11(3) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965 seeking eviction of the respondents herein from the petition schedule building bearing Nos. 921 and 927, which form part of a two storied commercial building situated at Kottiyam Junction, in the land comprised in Re. Sy. No. 314/44, Block No. 27 of Thazhuthala Village. Before the Rent Control Court, R.C.P. No. 2 of 2013 was tried along with the connected matters, i.e. R.C.P. Nos. 20 of 2014 and 21 of 2014. By a common order dated 28.01.2019, the Rent Control Court allowed R.C.P. No. 2 of 2013, ordering eviction of the respondents from the petition schedule property, under Section 11(3) of the Act. The relief under Section 11(8) of the Act was not pressed and therefore, the Rent Control Court disallowed relief under Section 11(8). 2. Challenging the order of eviction in R.C.P. No. 2 of 2013, the respondents herein filed R.C.A. No. 39 of 2018 before the Rent Control Appellate Authority, Kollam, along with I.A. No. 2089 of 2018, an application under Section 5 of the Limitation Act, 1963, seeking condonation of 2 days delay in filing that appeal. That application was supported by an affidavit sworn to by the 1st appellant, who is the 1st respondent herein. The revision petitioners, who are the respondents before the Rent Control Appellate Authority, filed their objection to the application for condonation of delay. The Rent Control Appellate Authority, by the order dated 28.01.2019 in I.A. No. 2089 of 2018, condoned the delay of 2 days in filing R.C.A. No. 39 of 2018. Feeling aggrieved by the said order, the petitioners are before this Court in this revision petition filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act. 3. On 25.06.2019, when this revision petition came up for admission, this Court issued notice on admission by speed post to the respondents. 4. Heard the learned counsel for the revision petitioners and also the learned counsel for the respondents. 3. On 25.06.2019, when this revision petition came up for admission, this Court issued notice on admission by speed post to the respondents. 4. Heard the learned counsel for the revision petitioners and also the learned counsel for the respondents. The learned counsel for the revision petitioners has made available for the perusal of this Court a copy of the delay condonation application, i.e. I.A. No. 2089 of 2018 along with a copy of the objection. 5. The issue that arises for consideration in this revision petition is as to whether any interference is warranted on the order dated 28.01.2019 of the Rent Control Appellate Authority in I.A. No. 2089 of 2018, whereby the delay of 2 days in filing R.C.A. No. 39 of 2018 stands condoned. 6. The learned counsel for the revision petitioners would contend that, though the extent of delay is only 2 days, the Rent Control Appellate Authority committed a grave mistake in condoning the delay, in the absence of any sufficient cause shown in the affidavit filed in support of I.A. No. 2089 of 2018, which is one sworn to by the 1st appellant/the 1st respondent herein. The affidavit does not contain specific pleadings as to his alleged illness, nature of treatment, etc. or any sufficient cause which prevented the 2nd appellant/the 2nd respondent herein from filing the appeal in time. The Appellate Authority has not even adverted to the contentions raised in that regard, in the objection filed by the revision petitioners. 7. Per contra, the learned counsel for the respondents would contend that, though the Appellate Authority, while condoning the delay of 2 days in filing R.C.A. No. 39 of 2018 has not adverted to the contentions raised by the revision petitioners in their objection to I.A. No. 2089 of 2018, in the impugned order dated 28.01.2019 the Appellate Authority has stated that the respondents herein had shown sufficient cause for condonation of delay. Considering the fact that the extent of delay is only 2 days, no interference is warranted on the impugned order of the Appellate Authority. 8. Section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965 deals with appeal. Considering the fact that the extent of delay is only 2 days, no interference is warranted on the impugned order of the Appellate Authority. 8. Section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965 deals with appeal. As per Section 18(1)(a) of the Act, the Government may, by general or special order notified in the Gazette, confer on such officers and authorities not below the rank of a Subordinate Judge the powers of appellate authorities for the purposes of this Act in such areas or in such classes of cases as may be specified in the order. As per Section 18(1)(b) of the Act, any person aggrieved by an order passed by the Rent Control Court may, within thirty days from the date of such order, prefer an appeal in writing to the Appellate Authority having jurisdiction. In computing the thirty days aforesaid, the time taken to obtain a certified copy of the order appealed against shall be excluded. 9. In Gopakumar vs. Ancy Thankachan Philip, 2019 (3) KHC 760 , a Division Bench of this Court held that, an Appellate Authority under Section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965 is a District Judge, enjoined to adjudicate cases in accordance with the mandate of the Code of Civil Procedure, 1908 and the provisions of the Limitation Act, 1963 are applicable to the proceedings before the Appellate Authority. However, the Act being a special law, regard must be had to the provisions in Section 29(2) of the Limitation Act. 10. The Limitation Act, 1963 was enacted by the Parliament to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith. Section 5 of the Act deals with extension of prescribed period in certain cases. As per Section 5, any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. As per Explanation to Section 5, the fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section. 11. It is well settled that the Law of Limitation is founded on public policy to ensure that the parties to a litigation do not resort to dilatory tactics and seek legal remedy without delay. In an application filed under Section 5 of the Limitation Act, the court has to condone the delay if sufficient cause is shown. Adopting a liberal approach in condoning the delay is one of the guiding principles, but such liberal approach cannot be equated with a licence to approach the court-at-will disregarding the time limit fixed by the relevant statute. The acts of negligence or inaction on the part of a litigant do not constitute sufficient cause for condonation of delay. Therefore, in the matter of condonation of delay, sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay. 12. In Collector, Land Acquisition vs. Katiji, (1987) 2 SCC 107 , in the context of Section 5 of the limitation Act, 1963, the Apex Court held that, the expression ‘sufficient cause’ employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner, which sub-serves the ends of justice, that being the life-purpose for the existence of the institution of Courts. 13. In Esha Bhattacharjee vs. Raghunathpur Nafar Academy, (2013) 12 SCC 649 the Apex Court while summerising the principles applicable while dealing with an application for condonation of delay held that, the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. The Apex Court held further that, there is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. Para-21 of the judgment reads thus: “21. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. Para-21 of the judgment reads thus: “21. From the aforesaid authorities the principles that can broadly be culled out are: 21.1 There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2 The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3 Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4 No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5 Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6 It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7 The concept of liberal approach has to en-capsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8 There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9 The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10 If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.10 If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11 It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12 The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13 The State or a public body or an entity representing a collective cause should be given some acceptable latitude.” 14. In Esha Bhattacharjee, after summerising the principles applicable while dealing with an application for condonation of delay, the Apex Court added some more guidelines taking note of the present day scenario, that an application for condonation of delay should be drafted with careful concern and not in a half-hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. Para-22 of the judgment reads thus: “22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:- 22.1 An application for condonation of delay should be drafted with careful concern and not in a half-hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2 An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3 Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4 The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.” 15. 22.4 The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.” 15. Though the expression ‘sufficient cause’ employed in Section 5 of the Limitation Act, 1963 is adequately elastic to enable the courts to apply the law in a meaningful manner, which sub-serves the ends of justice, as held by the Apex Court in Katiji (1987) 2 SCC 107 , the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play, as held by the Apex Court in Esha Bhattacharjee (2013) 12 SCC 649 . Inordinate delay, which attracts doctrine of prejudice, warrants strict approach, whereas, a delay of short duration or few days, which may not attract doctrine of prejudice, calls for a liberal delineation. An application for condonation of delay should be drafted with careful concern and no court shall deal with such an application in a routine manner. 16. In Woolcombers of India Ltd. vs. Woolcombers Workers Union, (1974) 3 SCC 318 the Apex Court, while considering the challenge made against an award under Section 11 of the Industrial Disputes Act, 1947, held that the giving of reasons in support of their conclusions by judicial and quasi judicial authorities when exercising initial jurisdiction is essential for various reasons. Firstly, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfitness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Secondly, it is a well known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Thirdly, it should be remembered that an appeal generally lies from the decisions of judicial and quasi judicial authorities to the Apex Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the court. Reasoned conclusions, on the other hand, will have also the appearance of justice. Thirdly, it should be remembered that an appeal generally lies from the decisions of judicial and quasi judicial authorities to the Apex Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the court. The court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong. Therefore, the Apex Court emphasised that judicial and quasi judicial authorities should always give the reasons in support of their conclusions. 17. In English vs. Emery Reimbold and Strick Ltd. (2002) 1 WLR 2409 the Court of Appeal held that, a judicial decision which affected the substantive rights of the parties should be reasoned, although some judicial decisions, e.g. interlocutory case management decisions, did not require reasons; that, while a judge was not obliged to deal with every argument or identify or explain every factor which weighed with him, the issues the resolution of which were vital to his conclusion should be identified and the manner in which he resolved them briefly but clearly explained, so that the judgment enabled the parties and any appellate tribunal readily to analyse the reasoning essential to his decision. 18. In Assistant Commissioner, Commercial Tax Department vs. Shukla and Brothers, (2010) 4 SCC 785 the Apex Court held that, the principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the court should meet with this requirement with higher degree of satisfaction. 19. In Shukla and Brothers the Apex Court held further that, a litigant who approaches the court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. 19. In Shukla and Brothers the Apex Court held further that, a litigant who approaches the court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher court in the event of challenge to that judgment. 20. In the instant case, though the extent of delay in filing R.C.A. No. 39 of 2018 is only 2 days, in the impugned order dated 28.01.2019 the Appellate Authority has not even adverted to the contentions raised in the objection filed by the revision petitioners that, the affidavit filed in support of I.A. No. 2089 of 2018, which is one sworn to by the 1st appellant/the 1st respondent herein, does not contain specific pleadings as to his alleged illness, nature of treatment, etc. or any sufficient cause which prevented the 2nd appellant/the 2nd respondent herein from filing the appeal in time. 21. In view of the law laid down by the Apex Court in Esha Bhattacharjee (2013) 12 SCC 649 , an application for condonation of delay should be drafted with careful concern and not in a half-hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. Such an application should be drafted with careful concern and no court shall deal with the same in a routine manner. 22. Such an application should be drafted with careful concern and no court shall deal with the same in a routine manner. 22. In view of the law laid down in Shukla and Brothers (2010) 4 SCC 785 , the order passed by the Rent Control Appellate Authority, on an application for condonation of delay filed under Section 5 of the Limitation Act, should give brief reasons for arriving at a conclusion that the appellants have shown ‘sufficient cause’ for condonation of delay in filing the appeal, after adverting to the contentions raised in the objection filed by the respondents, showing proper application of mind. The respondents in an application for condonation of delay are entitled to know the reasons for rejection of their objections. 23. Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 deals with revision. As per Section 20(1) of the Act, in cases where the Appellate Authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. 24. In view of the provisions under Section 20(1) of the Act, in a revision petition filed against any order passed or proceedings taken under the Act by the Appellate Authority, this Court has to record its satisfaction as to the legality, regularity or propriety of such order or proceedings. A cryptic order passed by the Appellate Authority, like the one which is impugned in this revision petition, virtually makes the revisional jurisdiction of this Court nugatory and ineffective, inasmuch as, such an order which does not disclose any reasons will be of little assistance to this Court, while analysing the reasoning essential to such a decision. 25. A cryptic order passed by the Appellate Authority, like the one which is impugned in this revision petition, virtually makes the revisional jurisdiction of this Court nugatory and ineffective, inasmuch as, such an order which does not disclose any reasons will be of little assistance to this Court, while analysing the reasoning essential to such a decision. 25. Viewed in the light of the law laid down in the decisions referred to supra, the impugned order of the Rent Control Appellate Authority dated 28.01.2019, which does not disclose brief reasons for arriving at a conclusion that the appellants have shown ‘sufficient cause’ for condonation of delay in filing the appeal, after adverting to the contentions raised in the objection filed by the respondents, showing proper application of mind, cannot be sustained in law. Such a cryptic order passed by the Appellate Authority suffer from vice arbitrariness. Since giving of reasons is an essential element of administration of justice, such an order passed by the Appellate Authority must speak on its face. 26. In the result, this revision petition allowed by setting aside the order dated 28.01.2019 of the Rent Control Appellate Authority, Kollam in I.A. No. 2089 of 2018 in R.C.A. No. 39 of 2018 for the aforesaid reason, thereby directing the Appellate Authority to reconsider that application and pass appropriate orders, taking note of the law laid down in this judgment. The petitioners and the respondents shall appear before the Rent Control Appellate Authority, on 07.07.2021. The Appellate Authority shall dispose of I.A. No. 2089 of 2018 in R.C.A. No. 39 of 2018, as expeditiously as possible, at any rate, within a period of four weeks from the date of appearance.