Moorthy, A.K. vs Ramachandran, D.

T.L. Viswanatha Iyer, J.—The Order of the Court was pronounced by Viswanatha Iyer, J.-Petitioner is the tenant of a residential building belonging to the Respondent, the rent being Rs. 500 per month. The landlord issued notice of eviction on 21st November 1989 alleging arrears of rent from 1st June 1988 and claiming vacant possession of the premises on the ground of his bona fide need for own occupation. The tenant-Petitioner replied refuting the claim for arrears of rent pointing out that periodical payments had been made and that rent was due only for a lesser period. He also pointed out that the landlord had granted him eleven months time to vacate the house on 20th October 1989, that it was not practicable for him to vacate within the period of one month mentioned in the notice and that he wanted atleast six months more to vacate. He stated that he will not in any case, overstay the eleven months'' time already allowed by the landlord. At the same time, he mentioned that if the landlord chose to go ahead with his petition for eviction he will not have any alternative but to resist the same according to law.

The landlord filed the petition for eviction on 10th January 1990. The tenant filed his written statement on 12th November 1990 in which he claimed that he had cleared the rent up to June 1989, and that subsequent payments were not made; only because the landlord''s mother refused to receive the rent. He also contended that there was no bona fides in the claim of bona fide need set up by the landlord. He pointed out that he was ready to vacate, provided sufficient time was allowed to complete the religious ceremonies and formalities in connection with the death of his wife on 3rd June 1990.

After the written statement was filed, the matter was posted to 1st December 1990 for trial and then to 14th December 1990, on which date it was ordered to be included in the special list for trial on 8th January 1991. On that date, the, tenant-Petitioner and his Counsel were absent. The landlord was examined, exhibits were marked and the petition for eviction was allowed. This ex parte order was sought to be set aside by the Petitioner by filing I.A. No. 2444 of 1991 on 22nd March 1991 together with an application I.A. No. 2443 of 1991 for condonation of the delay of forty-three days in filing the said application. Petitioner''s case was that he had been informed by his Counsel that the case stood adjourned from 14th December 1990 to 8th March 1991. In the meanwhile, he was suffering from hypertension and had been advised bed rest. He was therefore unable to participate in the trial on 8th March 1991. He sent messenger to his advocate on 5th March 1991 to seek an adjournment on 8th March 1991. Accordingly an application was filed for the purpose on 6th March 1991. His advocate waited in Court on 8th March 1991 for the case to be called, and knew only then that the case had been disposed of on 8th January 1991 itself. He realised the mistake committed in his office in noting the case as having been posted on 8th March 1991 when actually it had been adjourned to 8th January 1991. The Petitioner was informed, and the aforesaid applications were filed. I.A. No. 2443 of 1991 was supported by the affidavit of the advocate himself while I.A. No. 2444 of 1991, the other application, was supported by the affidavit of the Petitioner.

Both these applications were opposed by the landlord. The Petitioner examined himself in support of the contentions as set forth in the affidavits of himself and his advocate. But the Rent Control Court held that there was no corroborative evidence regarding the mistake committed in the advocate''s office, the advocate''s clerk not having been examined. He noted that in the A diary, the posting on 8th January 1991 had been legibly and clearly noted. The case was one included in the special list. The Court could not therefore find his way to accept the affidavit or the oral testimony of the Petitioner, or the affidavit of the advocate. He held further that Rule 13(3) of the Kerala Buildings (Lease and Rent Control) Rules, 1979 (the Rules) required a petition to set aside an ex parte order to be filed within fifteen days from the date of receipt of the order". Since the application to set aside the ex parte order had been filed beyond that date, it deserved dismissal on this short, preliminary ground. Both the applications were accordingly dismissed. The Appellate Authority before whom these orders were challenged observed that as per the decisions of this Court, the Rent Control Court did not possess any power to condone the delay in filing an application to set aside an ex parte order, the Limitation Act as such being inapplicable to the proceedings before that Court. The appeal was therefore dismissed. The orders of the Rent Control Court and of the Appellate Authority are under challenge in this revision petition.

Counsel for the Petitioner submits that there was no delay at all in filing I.A. No. 2444 of 1991, to set aside the ex parte order passed on 8th January 1991. According to him, the terminus a quo for a petition to set aside an ex parte order is the date of knowledge of the order. In this case, neither he nor his Counsel had knowledge of the fact that the case had been posted to 8th January 1991, both of them being under the mistake and misapprehension that the case stood posted only to 8th March 1991. Therefore, time runs only from 8th March 1991 when Counsel for the first time had knowledge of the ex parte order passed on 8th January 1991. The application filed within fifteen days thereof is well within the time prescribed by Rule 13(3).

Rule 13(3) reads:

13(3). In any case in which an order is passed ex parte, against a tenant or a landlord, the tenant or the landlord, as the case may be, may within fifteen days from the date of receipt of the order apply to the Accommodation Controller or the Rent Control Court, as the case may be, by whom the order was passed, for an order to set aside, and if tenant or the landlord satisfies the Accommodation Controller or the Rent Control Court, as the case may be, that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the application was called on for hearing, the Accommodation Controller or the Rent Control Court, as the case may be, shall make such order as it deems fit, an order passed against this tenant or landlord, as the case may be, and shall appoint a day for proceeding with the application.

Provided that no order shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party.

It applies to proceedings before the Accommodation Controller as well as the Rent Control Court. It provides that an application to set aside an ex parte order shall be filed within fifteen days from the "date of receipt of the order". Time therefore runs from the date of receipt of the order. But the rules nowhere provide for service of a copy of the order, either of the Accommodation Controller or of the Rent Control Court, on the parties concerned. Such a requirement existed as part of Rule 11(8) in the Rules of 1959, which were in force before they were replaced by the Rules of 1979, with effect from 24th May 1979. This requirement was however deleted from the corresponding Rule 11(8) of the 1979 Rules. Accordingly this Court held in Vimaladevi v. Narayanan Nair 1991 KLT 408 that under the rules as they stand now, there is no obligation to communicate, the order to the parties concerned. Rule 13(3) as it stands at present is in pari materia with the erstwhile Rule 13(3) of the 1959 Rules, though, the latter (though not without its faults) had more clarity and was more elegant in its drafting. It was in accord with Rule 11(8) of the 1959 Rules that the then Rule 13(3) provided the terminus a quo as date of receipt of the order. But then, the rule making authority omitted to make consequential amendments to Rule 13(3) when the provision in Rule 11(8) for service of a copy of the order was deleted, with the result Rule 13(3) provides for the running of time from the date of receipt of the order, when as a matter of fact there is no question of the parties concerned receiving a copy of the order, unless they apply for a certified copy. The rule provides a puzzle and an anomaly which have got to be resolved by this Court, in exercise of its interpretative powers.

It is now well recognised that if a statute leads to absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. Tirath Singh Vs. Bachittar Singh and Others, and State of Madhya Pradesh Vs. Azad Bharat Finance Co. and Another, Legislative enactments, much less delegated legislation, are not always drafted with perfect clarity. When a defect appears in the language of a provision a Judge cannot fold his hands and plead helplessness. He must sit to work on the constructive task of finding a reasonable meaning for the provision in consonance with the legislative intent and justice. As Lord Denning observed, he must give force and life to she intent of the legislature. Defects in legislative drafting are not uncommon. Bennion therefore states:

It is presumed that the legislator intends the Court to apply a construction which rectifies any error in the drafting of an enactment, where this is required to give effect to the legislator''s intention.

(Statutory Interpretation, page 337)

The text of an enactment may be corrupted or garbled in many ways, inter alia, by the inclusion of unwanted words. The duty of the Court is to rectify the text so as to give it the intended meaning. In considering a section of this nature, when the Court has to make the meaning of the statute clear, it should prefer that construction which is more in consonance with reason and justice. Ramaswamy Nadar Vs. The State of Madras, It is equally well established by a host of decisions, down from Meydon''s case (1554) 3 Co. Rep. 7a that for the purpose of ascertaining the object and the intent of the legislature, reference may be had to the previous law on the subject. We need not multiply authorities, except to state that it is the function of the Court to look at the text of the statute and if it discloses a patent absurdity or defect, to remedy the same by adopting a construction which will accord with the legislative intent ; in so far as it is discernible, as also reason and justice.

The rule before us is one made in exercise of the power of delegated legislation. The phrase ''date of receipt of the order'' does not carry any meaning, in the absence of a provision for service of a copy of the order in the 1979 Rules. What we are dealing with is a period of limitation, and ordinarily, knowledge of the right is an important consideration in the running of time against a person. An interpretation which stresses on knowledge therefore appears to be consonant with reason and justice. This is all the more so when the period of limitation prescribed is absolute without any provision enabling extension of the period for sufficient cause.

The previous state of the law is also a pointer to the aforesaid view. The erstwhile Rule 11(8) provided for service of a copy of the order on the parties. In that context, Rule 13(3) provided for the running of time from the date of receipt of the order. Knowledge of the order was thus considered as the primary consideration for the running of time. Though the obligation to serve copy of the order has been dispensed with, Rule 13(3) stands unchanged. But we do not find any intention on the part of the rule making authority, to alter the previous state of the law treating knowledge as the paramount consideration for the purpose of Rule 13(3). There is nothing in the new rules indicative of an intention to the contrary to make the date of the order the crucial date, as contended by Counsel for the Respondent. We are therefore of the view that having regard to the legislative history, and also having regard to the dictates of reason and justice, the expression "date of receipt of the order", which otherwise is defective and meaningless, has to be read as "date of knowledge of the order".

Thomas, J. had taken a similar view in his decision in Appukuttan v. Rent Controller 1987 (2) KLT 932. But Counsel for the Respondent maintains that this decision cannot stand in the light of the subsequent decision of a Division Bench of this Court in Radhakumari v. Sukumaran 1991 (1) K.L.J. 352, where while dealing with Rule 10 of the Rules, relating to filing of applications for impleading the legal representatives of a deceased party, the Bench refused to read the expression "date of death" as equivalent to "date of knowledge of death". The Bench observed that it was impermissible to supply or ignore words we do not however, find anything in the said decision overruling the view of Thomas, J. in Appukuttan''s case 1987 (2) KLT 932. The Bench was concerned with the expression "date of death" which is definite and absolute. It was in that context they observed that the Court cannot add the words "of knowledge" to the expression used by the rule making authority. That is not the case with us. Here we are confronted with a clumsily drafted rule and an expression, which on the face of the rules, carries no meaning whatsoever and its irreconcilable with the other relevant provisions thereof. It does not carry any sense in the absence of a provision for communication of the order in the rules. If we omit the words "of receipt" in the expression, we will be committing the same sin which the Division Bench frowned upon in Radhakumari''s case 1991 (1) K.L.J. 352, by omitting words which are there. What we are attempting is an interpretative process of the words with reference to the context and the presumed legislative intent as discernible from the anterior history, besides reason and justice. Such a process is not unknown to law as we have already pointed out. In fact it is called upon to be done as otherwise we will be left with a nebulous expression carrying no meaning whatsoever.

We therefore hold that the time for filling an application for setting aside an ex parte order under Rule 13(3) runs from the date of knowledge of the order.

Knowledge can either be of the party or of his Counsel. The date of knowledge of either of these persons constitutes the starting point of the period of limitation. There is no difficulty when the party himself has knowledge of the order. Equally so, when he has engaged Counsel and Counsel has knowledge of the proceedings. In fact, a Counsel can be presumed to have knowledge of all the orders passed by the Court in the proceedings in which he is appearing. His knowledge as pleader is binding on the party and is imputed to him as well. [See Chunilal Nathubhai Vs. Abdul Razak Shaikh and Another, The same rule must apply when the party, though duly served with notice, chooses not to appear he may then be imputed with knowledge of the orders passed by the Court in his absence. But it may happen as happened in this case, that the party as well as his lawyer actually had no knowledge of a particular order in peculiar circumstances. In that event, and in that event alone, could it be stated that there was no knowledge justifying a petition within fifteen days from the date of actual knowledge. But such a plea of absence of knowledge when the party has appeared through Counsel will require strong, cogent .and irrefutable evidence to convince the Court that both the party and his Counsel did not actually have knowledge of the order.

The question to be considered therefore is whether we should accept the case of the Petitioner that neither he nor his Counsel had knowledge of the order passed on 8th January 1991 because of the mistake committed in Counsel''s office in noting the date of posting as 8th March 1991 instead of 8th January 1991. This does require very convincing evidence, because as pointed out by the authorities below, the posting of the case on 8th January 1991 had been legibly and clearly written in the A diary besides the inclusion of the case in the ready list. The Petitioner has supported his case with his own affidavit as well as oral testimony. His Counsel has also sworn to a very detailed affidavit regarding the mistake committed in his office. True, neither the Counsel nor his clerk was examined, but the fact remains that a senior Counsel has sworn to an affidavit and taken the blame upon himself and his office. Another circumstance which appeals to us is that an application was filed on 6th March 1991 supported by a medical certificate that the Petitioner was not well and unable to take part in the proceedings on 8th March 1991. That application is among the records. A senior Counsel like the one appearing for the Petitioner is not likely to have sworn to an affidavit and taken upon himself the responsibility for the mistake committed in his office unless the facts were true. We are therefore inclined, on the fads of this case, to accept the affidavit of the Counsel, and to hold that himself and the Petitioner had knowledge of the ex parte order only on 8th March 1991 when he made enquiries after he appeared in Court and found that the case was not being taken up.

If this be the position, the petition filed on 22nd March 1991 to set aside the ex parte order was in time. There is no question of delay or of any condonation thereof in filing the same.

We allow the civil revision petition. We set aside the orders of the authorities below. I.A. No. 2444 of 1991 is allowed and R.C.P. No. 3 of 1990 is restored to file. I.A. No. 2443 of 1991 is dismissed as unnecessary. Since the eviction is sought on the ground of bona fide need, an expeditious disposal of the petition is called for. The Rent Control Court will therefore dispose of R.C.P. No. 3 of 1990 within a period of three months from the date of receipt of the records.

Communicate a copy of this order, and the records, forthwith to the Munsiff-Rent Control Court, Thiruvananthapuram.