Sudhakaran vs Vasanthakumari Amma And Ors

Ziyad Rahman A.A, J

The petitioner herein is the appellant in R.C.A.No.16 of 2007 of the IInd Additional Rent Control Appellate Authority, Thiruvananthapuram, which in turn was filed against the order passed in R.C.P.No.6 of 2001 by Rent Control Court, Attingal.

The aforesaid Rent Control Petition was originally filed by one Gopalakrishnan Nair, who is the husband of the 1st respondent herein and the father of respondents 2 to 4. The said petition was filed seeking eviction of the petitioner herein, under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, for short the 'Act'. According to the landlord, the petition schedule property was purchased by him as per Ext A1 sale deed from one Sulochana, who is the wife of the revision petitioner/tenant as per sale deed dated 01.06.1999. Later, on 15.05.2000, the petition schedule building was let out to the revision petitioner on 15.05.2000, for a monthly rent of Rs. 500/-. A lease deed bearing No. 1499/2000 of SRO, Attingal was also executed between the parties. The period of tenancy mentioned in the said deed is already expired. Bona fide need urged by the land lord was that, he requires the petition schedule building to accommodate his elder son, who is the 2nd respondent herein, for his residence. As the tenant refused to surrender vacant possession of the building, the rent control petition was filed.

The said Rent Control Petition was resisted by the petitioner herein by filing an objection. In the objection submitted by the petitioner/tenant, it was contended that, the document by which the said Gopalakrishnan Nair obtained title over the property was never intended to be acted upon. It was contended that the said deed was executed by the wife of the revision petitioner, namely Sulochana and it was executed only as security for a loan obtained by her from the said Gopalakrishnan Nair to the tune of Rs.1,50,000/-. After the trial, the Rent Control Court rejected the said contention and also found that the denial of the title raised by the tenant was not bonafide. Further, it was also found that the need urged by the land lord is only to be accepted being a genuine one. Accordingly, the Rent Control petition was allowed and eviction was ordered as per order dated 28.02.2004.

Thereafter, the appellant filed R.C.A.No.16 of 2007 before the 2nd Additional Rent Control Appellate Authority, Thiruvananthapuram challenging the order passed by the Rent Control Court. The said appeal was filed along with a petition to condone the delay of 3 years and 8 days. After hearing both the sides, the Rent Control Appellate Authority dismissed the application for condoning the delay, after specifically arriving at the finding that no reasonable explanation has been offered by the petitioner/tenant for condoning the delay. Consequent to the dismissal of the petition to condone the delay, the Rent Control Appeal was also dismissed as per judgment dated 13.07.2007. The aforesaid order is under challenge in this Rent Control Revision Petition.

It is seen that even though the order impugned in this revision petition is passed on 13.07.2007, this revision petition was filed on 05.04.2019 only. In order to explain the delay, the petitioner herein had submitted an affidavit. The relevant portion of the affidavit submitted along with the revision petition is extracted as follows:

"1] I am the petitioner herein and conversant with the facts of the case. This revision petition is filed to set aside the order dated 13-07-2007 in RCA.No.16/2007 before the 2nd Additional Rent Control Appellate Authority, Thiruvananthapuram, and to direct the said court to consider the RCA on merits.

2] Since the dismissal of the RCA mediators on both sides have been trying for an out of court settlement. On their advice immediate filing of revision was not done. On failure of mediation efforts application for certified copy of the order in RCA 16/2007 was made on 14-01-2019. Certified copy was ready on 25-01-2019, and on the same day it was received. For lower court judgment application was submitted on 30.01.2019. Date notified for receipt of the certified copy was 27-02-19, and on the same day it was received.

3] After mediation failed the respondents have threatened with immediate execution of the order in RCP 6/2001 EP.No.53/2006 is pending before the Principal Munsiff's Court, Thiruvananthapuram. In the above circumstances filing of this revision petition has become absolutely necessary."

On going through the contents of the affidavit, it can be seen that, the only reason highlighted by the petitioner/tenant is that, after dismissal of the Rent Control Appeal, mediators on both sides have been trying for an out of court settlement. It was on their advice, the revision petition was not filed immediately after the order of the appellate authority. It was further contended that, the copy application for the order in R.C.A.No.16/2007 was filed only on 14.01.2019, that is after the mediation efforts were failed. Conspicuously, the affidavit filed by the petitioner is completely silent in respect of the suit filed by the wife of the petitioner/tenant, and the proceedings in connection with the same.

The affidavit does not even contain the extent of delay occurred in filing the revision petition, despite the fact that the revision petition itself was filed against the dismissal of an order passed in appeal, consequent to the failure on the part of the petition in explaining the delay caused in the appeal.

In response to the affidavit submitted by the revision petitioner, the respondents 1 to 4 have filed an affidavit pointing out the sequence of events which led to the filing of this rent control revision petition after a period of 4726 days. It is discernible from the counter affidavit that, after the order of eviction, E.P.No.53 of 2006 was filed by the said Gopalakrishnan Nair, seeking execution of the order. During the pendency of the execution petition, said Gopalakrishnan Nair passed away and his legal heirs were impleaded as additional decree holders. It is also averred about the claim petition submitted by the wife of the revision petitioner in E.P. No 53 of 2004. It is also pointed out that, in the said claim petition the petitioner therein i.e the wife of the revision petitioner herein, apparently raised the very same contentions urged in all other proceedings. The said claim petition was filed at a time when the application submitted by the respondents herein for directing the Ameen to broke open the door for effecting the delivery of possession, was pending consideration. In the said claim petition, the wife of the revision petitioner claimed exclusive rights over the building and the property wherein the building is situated. After taking evidence, the execution court dismissed the claim petition holding that the claim petitioner is having no right over the said building.

Against the judgment and decree passed in the said claim petition, the Revision Petitioner filed appeal before the 1st Additional Sub Court, Attingal and later the same was withdrawn, as the claim petition later filed O.S.No.15 of 2004 before the Sub Court, Attingal. The said suit was filed contending that Ext.A1 sale deed was never intended to be acted upon and according to her there was also another agreement executed by the said Gopalakrishnan Nair, in favour of the said Sulochana, agreeing to re-convey the property wherein the petition schedule building is situated. In the light of the above documents, she sought for re-conveyance of the said property in her favour. The said suit was dismissed after the trial, with costs to the defendants, who are respondents herein. It is also a relevant aspect to notice that, during the trial of the said suit, the agreement relied upon by said Sulochana styling it as a re-conveyance agreement was sent to Forensic Laboratory for comparison of the signature of the deceased Gopalakrsihnan Nair. As per the report from the Forensic Laboratory, the signatures affixed in the said deed were not that of Gopalakrishnan. The dismissal of O.S.No.15 of 2004 was in the above circumstances.

It is also discernible from the counter of affidavit of the respondents that, in the mean while, the revision petitioner filed R.C.A No.16 of 2007 before the 2nd Additional Rent Control Appellate Authority, Thiruvananthapuram. Thereafter, he filed E.A.No.37 of 2007 before the Execution Court, praying for stay of execution proceedings till the stay petition pending before the Appellate Authority is considered. The said petition was dismissed by the execution court and being aggrieved by the said order, he filed an application before the District Court, Thiruvananthapuram for transferring the execution proceedings from Munsiff Court, Attingal to any other court in Thiruvananthapuram District. The said petition was filed raising frivolous allegations against the court. The said transfer petition was allowed and the execution petition was transferred to Principal Munsiff's Court, Thiruvananthapuram and the same is now pending consideration before the said court.

From all the above proceedings, as revealed from the counter affidavit filed by the respondents herein, it is evident that, right from the inception, various kinds of tactics were being played by the revision petitioner for prolonging the execution of the order of eviction.

It is true that the original suit filed as O.S.No.15 of 2004 and the claim petition before the execution court were submitted not by the revision petitioner, but it was filed by his wife. However, it is evident that, the revision petitioner was also instrumental for filing such original suit and claim petition before the respective courts. This is because, in all the aforesaid proceedings including the Rent Control Petition, the contentions raised by the revision petitioner as well his wife are one and the same. The specific case advanced by the revision petitioner is that Ext.A1 sale deed does not confer any title upon Sri.Gopalakrishnan Nair, the original decree holder. It was also contended that, the said Gopalakrishnan Nair had also executed another agreement in favour of the wife of the revision petitioner, agreeing to re-convey the property, which is the subject matter in the Rent Control Petition. It is to be noted in this regard that, in all the proceedings, the said contentions were found to be incorrect. Apart from the above, it is discernible that in O.S.No.15 of 2004, as part of the trial, a report from the Forensic Laboratory was also happened to be obtained, wherein, it was specifically found that the signature contained in the agreement of re-conveyance, alleged to have been executed by said Gopalakrishnan Nair, was not genuine. In addition to the above, during the course of the argument, the learned counsel for the revision petitioner, further submitted that, he did not approach this Court with revision petition earlier, as they were enjoying an order of injunction in the suit pending before the Sub Court, Attingal. The suit referred to by the Learned Counsel is O.S.No.15 of 2004, which was filed by his wife. Therefore, it is evident that, all the said proceedings were at the instance of the petitioner herein or with his connivance. It is also to be noted in this regard that, despite the fact that there were several proceedings at the instance of the revision petitioner as well as his wife, before various authorities, nothing is mentioned in the affidavit filed by the revision petitioner in support of the revision petition. It is true that no period of limitation prescribed for a revision petition under Section 20 of the Act. However, it is categorically held by a Full Bench of this Court in a judgment in Moideen Koya v. Kunhammed Haji [1999 (2) KLT 646], to the effect that, even though, no period of delay is prescribed for filing the revision under Section 20 of the Act, the parties have to file the same within a reasonable period of 90 days. It was also observed that, even though no separate application is necessary, the delay has to be explained in the form of an affidavit and the Court while considering the revision petition can take into consideration the explanation offered by the revision petitioners for the delay in filing the revision. Therefore, the contents of the affidavit filed along with the revision petition is having some relevance and the revision petitioner is bound to explain the reasons for the delay properly in the said affidavit. This is particularly so, when the delay in filing the revision petition is huge. It is evident that the delay in this case is 4726 days. However, the affidavit filed in explanation of the delay does not contain any details. Conspicuously, the proceedings which took place during the period from the date of passing the order and till the filing of revision petition are not seen mentioned in the affidavit, despite the fact that, all those proceedings are having relevance while considering the question of sustainability of the explanation for the delay. The aforesaid aspects were revealed only through the counter affidavit filed by the respondents herein. Thus it is evident that, there is a calculated attempt on the part of the revision petitioner to suppress material facts. The past conduct of the revision petitioner also reveals unjustifiable and unwanted delaying tactics for prolonging the proceedings of eviction instituted by the respondents as early as in the year 2001.

It is also relevant to note that, the basic contentions raised by the revision petitioner in Rent Control Proceedings is also in connection with a re-conveyance agreement alleged to have been executed by the deceased Goplalakrishnan Nair, in favour of the wife of the revision petitioner. The said document was found to be a bogus document by a competent civil court and the said finding has become final. Therefore, there is no merit in this revision petition.

In the above circumstances, the revision petition is devoid of merits and the same is hereby dismissed.

It is also to be noted that, on account of the unjustifiable and mala fide attempts on the part of the revision petitioner, he could prolong the matter for the past 20 years. This revision petition itself is filed after 11 years of the order passed by the Appellate Authority. Further the same was without properly explaining the delay and also by suppressing material facts. Such practice by a litigant cannot be tolerated. In the above circumstances, this Court is of the opinion that, dismissal of this revision petition has to be with costs to the respondents herein. In the facts and circumstances of the case, Rs.10,000/- is awarded as costs to the respondents herein, which shall be paid by the petitioner herein within a period of one month from the date of receipt of copy of this judgment. Accordingly, the revision petition is dismissed with costs as mentioned above.