MUKRI GOPALAN Vs. CHEPPILAT PUTHANPURAYIL ABOOBACKER

JUDGEMENT

(1.) In this appeal by special leave a short but an interesting question falls for determination. It is to the effect whether the appellate authority constituted under S.18 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the 'Rent Act') has power to condone the delay in the filing of appeal before it under the said section. Majority of the Kerala High Court in the case of Jokkim Fernandez v. Amina Kunhi Umma, AIR 1974 Kerala 162, has taken the view that the appellate authority has no such powers. Following the said decisions Division Bench of the Kerala High Court by its judgment and order under appeal has dismissed the revision application moved by the appellant herein whose appeal before the appellate authority was dismissed as time barred and the application for condonation of delay was created to be not maintainable before the appellate authority.

(2.) A few relevant facts leading to these proceedings may now be looked at. The appellant is a tenant occupying the suit premises belonging to respondent landlord. The respondent filed Rent Control Petition No.117/92 before the Rent Control Court, Kannur, Kerala State, seeking eviction of the appellant tenant under S.11(2)(a)(b) and S.11(3) of the Rent Act on the ground of default in payment of rent and bona fide need for the purpose of conducting grocery shop for his son, plaintiff No.2. The Rent Control Court exercising its power under S.11 of the Rent Act, passed an order for possession against the appellant on 28th October, 1993. The appellant applied for certified copy of the said order on 29-10-93. He obtained certified copy of the order on 23-1-93. It is the case of the appellant that he entrusted on 4-12-93 all the relevant papers to his counsel for filing appeal. His counsel called him in the next following week for signing vakalatnama and for completing other formalities relating to filing of appeal. It is the further case of the appellant that he suffered paralytic attack on 5-12-93 and was bed ridden until 27-12-93. On 28-12-93 he came to know for the first time from his counsel that the time for filing appeal had elapsed. It may be noted at this stage that as per S.18(1)(b) of the Rent Act an appeal has to be filed within thirty days from the date of order of Rent Control Court. In computing thirty days, the time taken to obtain a certified copy of the order appealed against has to be excluded. Ultimately the appeal was filed by the appellant on 31-12-1993 before the appellate authority, namely, District Judge, Thalassery under S.18 of the Act. The said appeal was also accompanied by I.A. No.56/94 for condonation of delay supported by the affidavit of the appellant. The appellate authority by its order dated 11th January, 1994 dismissed the appeal as barred by time. The appellate authority took the view that being not a court but a persona designata it has no power to condone the delays in filing appeal by invoking the provisions contained in S.5 of the Limitation Act, 1963. As noted earlier the said order of the appellate authority was confirmed by the High Court in Civil Revision Petition moved by the appellant and that is how the appellant is before us.

(3.) The learned counsel for appellant tenant vehemently contended that the majority view of Kerala High Court in Jokkim Fernandez v. Amina Kunhi Umma (supra) to the effect that S. 29(2) of the Limitation Act cannot apply to the proceeding before the appellate authority under S. 18 of the Rent Act was not correct and that the appellate authority had full powers under S. 29(2) of the Limitation Act to consider on merits the question of condonation of delay in filing appeal as per S. 5 of the Limitation Act. The learned counsel for respondent-landlord on the other hand supported the decision rendered by the High Court.