JEBOY D CUNHE Vs. SUBRAMONIAN

JUDGEMENT

(1.) There are two petitioners in this OP. The petitioners, as well as respondents 5 to 10, are tenants under the 1st respondent (landlord). The landlord initiated proceedings for eviction of the tenants under S.11(2), 11(3), 11(4)(ii) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act (in short, the Act). The Rent Control Court ordered eviction on the ground of arrears of rent (S.11(2) of the Act) by Ext. P1 order dated 26-2-1986. The tenants were directed to surrender vacant possession of the plaint schedule building within one month from the date of the order. The arrears of rent was found to be Rs.11,969.86, inclusive of interest. The tenants deposited Rs.6,000/- within the time ordered by the Rent Control Court. They also filed an application - IA No. 1005 of 1986 - praying for time to deposit the balance. Two months' time was granted. The tenants filed another application - IA No. 2014 of 1986 - for further extension of time for depositing the balance. It was rejected by the Rent Control Court, placing reliance of the decision of this Court in Lakshmi v. Kuppuswamy Chettiar ( 1983 KLT 703 ), and stating that the Rent Control Court can grant extension of time only once and the power under S.11(2)(i) is thereby exhausted. The tenants challenged the order of eviction in RCA No. 83 of 1983 before the Appellate Authority. Admittedly, there was delay in filing the appeal. The tenants filed IA No. 2454 of 1986 for condoning the delay in filing the appeal. By Ext. P2 order dated 28-2-1987, the Appellate Authority held that S.5 of the Indian Limitation Act is inapplicable and dismissed the petition. The said order (Ext. P2) was affirmed in revision by the District Court in RCRP No. 21 of 1988, by order dated 31-1-1990 (Ext. P3). The second application filed for extension of time for deposit of the balance was dismissed by Ext. P4 order dated 21-11-1986, passed in IA No. 2014 of 1986. It is in these circumstances, the petitioners challenge Exts. P2 to P4 orders. There is also a prayer for the grant of a declaration that the petitioners are entitled to further extension of time for paying the balance of arrears of rent. It is also stated that the delay in filing the appeal before the 1st appellate authority merited condonation under S.5 of the Limitation Act.

(2.) When the OP came up for admission, Sankaran Nair, J. passed the following order on 28-6-1990:

(3.) We heard counsel for the petitioners Mr. T. P. Kelu Nambiar. The Appellate Authority, as well as the District Court, have held that the delay caused in filing the appeal before the first Appellate Authority cannot be condoned and that S.5 of the Limitation Act is inapplicable in the case of an appeal filed before the Appellate Authority functioning under the Act. The petitioners' counsel fairly stated that this view of the law is fortified by the majority judgment, of the Full Bench decision of this Court in Jokkim Fernandez v. Amina Kunhi Umma (1973 KLT 138 - F.B.). Counsel submitted that the dissenting judgment in the aforesaid Full Bench decision lays down the law correctly and the majority judgment rendered in the aforesaid decision requires reconsideration. It was argued that S.5, read alongwith S.29(2) of the Limitation Act will show that the Appellate Authority functioning under the Act has got jurisdiction to condone the delay in filing the appeal by virtue of the aforesaid provisions. Another plea, that was raised, was that the Rent Control Court will not become functus officio by granting extension of time for payment once. The court has power to grant extension of time more than once and even repeatedly. In the light of the above submission it was argued that Exts. P2 to P4 orders deserve to be annulled.