Abdul Rahiman vs Hameed Hassan Peruval and Others

K. Sreedharan, J.—This is a petition filed under Article 227 of the Constitution. Petitioner is a tenant of shop rooms bearing door Nos. K.P. 8/573 and 574 of Kumbala Panchayath owned by the first Respondent. According to him, he took the shop rooms on a monthly rent of Rs. 10 in the year 1950. While so, first Respondent filed R.C.P. No. 17/86 before the second Respondent-the Rent Controller for recovery of the building as per the provisions contained in Sections 11(2), 11(3), 11(4)(ii) and 11(4)(iv) of Kerala Buildings (Lease and Rent Control) Act here-in-after referred to as the Act. On receipt of notice from the Rent Control Court, Petitioner the tenant filed Ext. P-2 written statement of defence. He disputed the claim of the landlord that the rent is in arrears, that the landlord requires the building bona fide for his own occupation, that the tenant is using the building in such a manner as to destroy or reduce its value or utility permanently and that the building needs reconstruction. The case stood posted in the special list for trial to 23rd November 1988. When the matter came up for trial on that day, Petitioners counsel reported no instruction. Consequently, the Rent Control Court adjourned the case to 24th November 1988. On that day the landlord was examined and on the basis of that evidence, Rent Control Petition was decided in favour of the landlord. The tenant was served with a copy of that order. Immediately thereafter he filed I.A. No. 464/1989 praying for setting aside the ex parte order and to afford the tenant a reasonable opportunity of let in evidence. Since that petition was filed beyond the time prescribed under the Rule, he moved I.A. No. 463/1989 u/s 5 of the Limitation Act for condoning the delay caused in filing the petition to set aside the order. The Rent Control Court dismissed the petition u/s 5 of the Limitation Act on the view that Section 5 is not applicable to rent control proceedings. In this view, the application to set aside the ex parte order was dismissed holding that it was filed beyond the time prescribed as per the Rules. As per the Rules, a petition to set aside the ex parte order has to be made within 15 days. Aggrieved by the above orders passed by the Rent Control Court, tenant has come up with this Original Petition under Articl 227 of the Constitution.

The question that arises for consideration in this original petition is whether the Rent Control Court was justified in dismissing the applications filed by the tenant for setting aside the ex parte decision and for condoning the delay caused in filing that application without considering them on merits. Section 23 of the Act makes certain provisions of the CPC applicable to proceedings before the Rent Control Court. Clause 1(h) of that section provides that the Rent Control Court has the powers which are vested in a Court under the CPC for setting aside ex parte orders. The provision of the CPC mentioned therein is that contained in Order 9, Rule 13 of the Code. Clause 2 of Order 9, Rule 13 as per the Kerala Amendment makes setion 5 of the Limitation Act applicable to applications for setting aside ex parte orders passed against the Defendant/Respondent. A combined reading of Section 23(1)(h) of the Act and Order 9, Rule 13 of the CPC shows that a Respondent in a proceeding before the Rent Control Court has got the right to get the ex parte order set aside and in exercise of that right if delay has been occasioned a petition u/s 5 of the Limitation Act can be filed and the Rent Control Court is bound to entertain that application on merits. In other words, when a Respondent in a Rent Control Proceedings files an application for setting aside an ex parte order passed against him together with a petition u/s 5 of the Limitation Act to condone the delay caused therein, the Rent Control Court should consider that petition on merits and is bound to dispose of the same not on the ground that it is not maintainable. In the instant case, the Rent Control Court erroneously took the view that I.A. No. 463/1989 filed u/s 5 of the Limitation Act is not maintainable. On that erroneous view, the said application is happened to be dismissed. According to me, the step taken by the Rent Control Court was one refusing to exercise its jurisdiction in accordance with law.

Learned Counsel representing the Respondent raised an argument that the decision of the Supreme Court in Gopalan v. Aboobacker 1995 (2) KLT 295 wherein the learned Judge took the view that the Appellate Authorities u/s 18 of the Act are not persona designata, will not apply to the Rent Control Court in view of the different phraseology used in Sections 18 and 3 of the Act. In Section 18, it is provided that 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 the Appellate Authorities for the purpose of this Act. The notification contemplated therein can confer powers on officers and Authorities not below the rank of Subordinate Judge. Subordinate Judge happened to be an Officer in the hierarchy of Judicial Officers and so the Subordinate Judge or the District Judge, as the case may be, nominated to exercise the powers not as persona designata. According to counsel, that will not come to the rescue of the Petitioner herein because Presiding Officer of the Rent Control Court namely, the Rent Controller can only be a persona designata, as seen in Section 3(1) of the Act. Section 3(1) of the Act states that Government may, by notification in the Gazette, appoint a person who is or is qualified to be appointed, a Munsiff to the Rent Controller for such local area as may be specified therein. When persons other than those who are holding the post of Munsiffs and who are qualified to be appointed Munsiff can be appointed as Rent Controller, the Rent Control Court cannot according to learned Counsel be considered as a Court as understood in the common parlance but can only be persona designata. I find it difficult to accept this argument. The powers of the Rent Control Court are dealt with in the various sections of the Act. A petition for eviction of the tenant is to be filed before the Rent Control Court. That Rent Control Court namely, the Officer who holds the Office is to dispose of the matter and is to adjudicate upon the rights between the landlord and the tenant. The decision of the Rent Control Court is appealable to the Appellate Authority which has now been held to be not a persona designata. In order to constitute a Court, an essential condition is that the said Court should have the powers to give a decision or a definite judgment which has finality and authoritativeness. A decision rendered by the Rent Control Court has finality and authoritativeness unless it is varied or modified by Appellate or Revisional Authorities as constituted under the Act. In Shri Virindar Kumar Satyawadi Vs. The State of Punjab, , the distinguishing features of a Court from a quasi-judicial tribunal has been given in the following terms:

It may be stated broadly that what distinguishes a Court from a quasi-judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declares the rights of parties in a definite judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of the Authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court.

In view of this statement of law which has been followed in 1995 (2) KLT 205, it is too late in the day to raise a contention that Rent Control Court is not a Court but is a persona designata.

Reference was made by the learned Counsel representing the Respondent to the decision in Kunjali Hassn Kurupu v. Abdul Sathar Sait 1963 KLT 407 to contend that the Rent Control Court is only a persona designata. In that case the Munsiff who was trying a petition filed by the landlord u/s 11 of the Act clubbed a small-cause suit filed by the landlord for recovery of the arrears of rent along with it. Both were allowed by him. The tenant who was aggrieved by the order passed u/s 11 of the Act took up the matter in appeal before the Appellate Authority. He challenged the decree passed in the small cause suit in revision before this Court. While disposing of this Revision, the learned Single Judge disapproved the procedure adopted by the learned Rent Control Court in clubbing the procedure under the Act with the small cause suit. In such a state of affairs, this Court took the view that the Rent Control Court is only a persona designata. In view of the Supreme Court decision referred to earlier, I do not think that the said decision is of any assistance to the Respondent as on today.

Even conceding for arguments that the Rent Control Court is a persona designata, he is having the powers under Order 9, Rule 13 of the CPC in entertaining an application for setting aside an ex parte order. Order 9, Rule 13 makes it clear that Section 5 of the Limitation Act applies to a petition filed for setting aside an ex parte order. In this view of the matter question as to whether Rent Control Court is matte question as to whether Rent Centrol Court is exercising the jurisdiction as persona designata or not is of no conequence because the Rent Control Court has to exercise the powers under Order 9, Rule 13 of the Code of Civil Procedure.

Another argument advanced by the learned Counsel representing the Respondent is that the orders passed by the Rent Control Court are final orders affecting rights of the tenant. So those orders ought to have been challenged before the Appellate Forum. Since the Appellate Authority was not approached by the tenant, this original petition, according to him, should be dismissed without prejudice to the Petitioner''s right to move the Appellate Authority. The Appellate Authority as per the Supreme Court decision referred to earlier is having the power to condone the delay. So if an appeal is filed by the tenant with a petition to condone the delay that application would have to be considered by the Appellate Authority. This argument appears to be quite attractive. But I am not in a position to accept the same. The Appellate Authority, if moved, will have to consider whether the view taken by the Rent Control Court is proper or not. Thereupon the matter has to be remitted back to the Rent Control Court for decision on merits. Such a circuitous procedure is not to be adopted in this case where this Court entertained the Original Petition way back in March, 1989 and kept it pending here up to September, 1995. After this long lapse of time if this Court is to dismiss the Original Petition holding that the Petitioner has got alternate remedy, the same will result in injustice to the Petitioner. So I do not think it proper to non-suit the Petitioner on the ground that he has got alternate remedy of appeal.

Petitioner was denied right to contest the petition filed by the landlord u/s 11 of the Act on a wrong understanding of the jurisdiction by the Rent Control Court regarding the petition to set aside the ex parte order. The Rent Control Court refused to examine whether the petition filed u/s 5 of the Limitation Act was supported by valid grounds. In such situation, I think it proper to set aside the orders passed by the Rent Control Court dismissing I.A. Nos. 463/1989 and 464/1989 in R.C.P. 17/1986. Rent Control Court is directed to take back the above-mentioned interlocutory applications and to dispose of the same in accordance with law. Parties are directed to appear before the Rent Control Court on 25th September 1995.

Original Petition is allowed in the above terms.