Sheela Raphael and Others vs Rajan and Others

P.A. Mohammed, J.—The subject-matter of these revision petitions is an eviction proceeding u/s 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short ''the Act''). These two revisions are filed by the legal representatives of the deceased tenant of the building sought lo be evicted. The Respondents are their landlords. C.R.P. No. 1084 of 1991 is against an order in I.A. No. 1106/90 in R.C.A. No. 176 of 1990. By the said order the Appellate Authority dismissed an Application filed by the Petitioners to implead the legal representatives of the tenant on the ground that it was belated. In view of the dismissal of the said application the Appellate Authority dismissed the appeal R.C.A. No. 176 of 1990. It is against the said order dated 8th April 1991 C.R.P. No. 1461 of 1991 has been filed.

Heard the Counsel for the Petitioners and the Respondents.

The substantial question which requires to be decided in these revisions is whether the rejection of the application to implead the legal representatives of the Appellant-tenant by the Rent Control Appellate Authority is sustainable in law. The Appellant in R.C.A. No. 176 of 1990 died on 5th October 1990. The application, I.A. No. 1106 of 1990 was filed on 12th November 1990. The Rent Control Appellate Authority dismissed this application holding thus:

This is an application to implead the legal representatives of the Appellant who died on 5th October 1990. The prescribed period for filing such an application is fifteen days from the date of death of the person concerned. This application is belated.

Rule 10 of the Kerala Buildings (Lease and Rent Control) Rules, 1979, as originally stood is as follows:

Every application for making the legal representative or the legal representatives of a deceased person, party to a proceeding under the Act shall be preferred within 15 days from the date of the death of the person concerned.

The following proviso was added to the above rule as per the amendment made on 28th August 1991:

Provided that where the application for impleadment is filed by legal representatives who are not in the party array, the Appeallate Authority may in appropriate cases condone the delay in filing applications.

Thus Rule 10 as it stands now confers powers on the Rent Control Appellate Authority to condone the delay in filing application for impleadment of the legal representatives in appropriate cases.

The Counsel for the Petitioners brought to our notice the decision of the Division Bench of this Court in Pankajakshi Amma v. Sarojam 1993 (2) KLT 313. The relevant portion of the said judgment is extracted here under:

In this context we may also have to refer to G.O. (Ms.) No. 31/91/Hsg., dated 28th August 1991 issued by the Government of Kerala, Housing (G) Department, which was published in the Kerala Gazette Extra ordinary only on 29th August 1991. In that notification, the Government of Kerala has issued an amendment to Rule 10 of the Kerala Buildings (Lease and Rent Control) Rules, 1979 by adding proviso to Rule 10. That proviso reads as follows:

* * * * Explanatory note contained in the said notification states that the above said amendment is issued consequent to the decision of this Court in C.R.P. No. 2427 of 1990, and to remove the hardship caused in several cases. In view of the said amendment to Rule 10 of the Rules by adding the proviso, it will therefore be clear that in a proceeding arising under the Rent Control Act, for bringing the legal representatives en record, the delay can be condoned, if there is sufficient cause.

The Division Bench, after analysing the relevant provisions, ultimately held thus:

We accordingly hold that whenever applications falling u/s 22 of the Rent Control Act read with Rule 10 of the Rules made thereunder, come up before the Rent Controller or the appellate authority or the revisional authority, there can be no difficulty in going into the question of sufficient cause as envisaged u/s 5 of the Limitation Act, and this is because of the special provisions contained in Order XXII, Rule 9(3), which are expressly made applicable by Section 22 of the Rent Control Act itself.

The question that pointedly arises in this case is whether the proviso to Rule 10 can be made applicable to the pending cases. As pointed out above, this proviso came into force on 28th August 1991 as evident from the decision referred to above. The application for impleadment was rejected by the Rent Control Appellate Authority on 8th April 1991. Therefore the Counsel for the Respondents argues that the proviso has no retrospective operation and therefore it cannot be made applicable to the present set of facts. The question relevant in this context is not the nature of the rights created but its applicability in cases pending before different authorities at the time of commencement of the amendment adding the proviso to Rule 10. As against the order rejecting application for impleadment by the Rent Control Appellate Authority the tenants filed the present Revision Petitions before this Court u/s 20 of the Act. That means, the order passed by the appellate authority has not become final or conclusive. It is still pending adjudication before this Court. Therefore the benefits under the proviso to Rule 10 can be made available to the Petitioners by this Court in exercise of its revisional power u/s 20.

The Supreme Court in Dhannalal v. D.P. Vijayyargija 1996 (2) KLT 283 (S.C.) dealt with a similar situation where the applicability of the amended Sub-section (3) to Section 166 of the Motor Vehicles Act in pending cases came up for consideration. There the Supreme Court made the following observation:

The matter will be different if any claimant having filed a petition for claim beyond time which has been rejected by the Tribunal or the High Court, the claimant does not challenge the same and allows the said judicial order to become final. The aforesaid Amending Act shall be of no help to such claimant. The reason being that a judicial order saying that such petition of claim was barred by limitation has attained finality. But that principle will not govern cases where the dispute as to whether petition for claim having been filed beyond the period of twelve months from the date of the accident is pending consideration either before the Tribunal, High Court or this Court. In such cases, the benefit of amendment of Sub-section (3) of Section 166 should be extended.

(emphasis supplied)

Inasmuch as the present revision petitions were pending before this Court when the amendment to Rule 10 came into force, we are of the view that the amendment will apply in the present case.

In view of what is said above, the impugned orders in both the revisions are set aside. We allow the revision Petitioners to file application for condonation of delay under the proviso to Rule 10 within a period of two weeks from the date of receipt of the records by the Appellate Authority. We direct the Rent Control Appellate Authority to decide the application for condonation of delay in filing the application for impleadment on merits and in accordance with law within two weeks thereafter. In the event of condoning the delay, the Appellate Authority shall dispose of the appeal after hearing both parties expeditiously, at any rate within a period of two months from the date of taking decision by the Appellate Authority on the application for condonation. In order to pave the way for early disposal, we direct both parties to appear before the Appellate Authority on 25th January 1999. The office is directed to transmit the records forthwith. The revision petitions are disposed of as above.

*A reproduction from ILR (Kerala Series).