ANNAMMA PAILY Vs. THOMAS MARY

JUDGEMENT

(1.) The short point that arises for consideration is whether the Appellate Authority under the Kerala Buildings (Lease and Rent Control) Act, 2 of 1965 can condone the delay in filing an application, for impleading and set aside the abatement of the appeal. On an application to set aside filed after sixty days of the date of abatement even if an application to condone the delay was also filed along with the application to set aside the abatement. The widow of the respondent tenant in a petition for eviction is the petitioner in this Civil Revision. The challenge is against the order of the District Judge, Kottayam dismissing the petitioner's revision against the judgment of the Appellate Authority, Kottayam ordering eviction and reversing the order of the Rent Control Court, Kottayam dismissing the petition for eviction filed by the respondent landlord under S.11(3) of the Kerala Buildings (Lease and Rent Control) Act, 2 of 1965, for short the Act. The decisions of the Appellate Authority allowing the application for impleading, filed after the time insisted by the Rules, and setting aside the abatement of the appeal for not bringing on record the legal representative in time were also challenged before the learned District Judge.

(2.) The petition for eviction was filed under S.11(3) of the Act. The Rent Control Court dismissed that petition. The respondent landlord took up the matter in appeal before the Appellate Authority, Kottayam. Pending the appeal, the tenant died on 27-11-1979. The appeal stood posted to 4-12-1979. On that date, the appellant's counsel reported that the respondent was dead and the case was posted to 18-1-1980 for impleading. On 19-12-1979 the application for impleading was filed. The Appellate Authority allowed that application without ordering notice. On 8-4-1980 the revision petitioner filed an application before the Appellate Authority pointing out that the appeal stood abated as the legal representative was not impleaded within the 15 days time allowed by the Rules. Then on 8-8-1980 the respondent filed an application to set aside the abatement. An application to condone the delay in filing the application to set aside the abatement was also filed. The Appellate Authority disposed of the applications filed by the petitioner and the respondent along with the appeal. (The petitioner's case is that she wanted her application for deciding whether the appeal was abated, to be heard and disposed of preliminarily.) The Appellate Authority rejected the petitioner's contentions and allowed the appeal ordering eviction as prayed for. As the petitioner's revision before the District Judge also met with the same fate, the petitioner has approached this Court with this Civil Revision.

(3.) Admittedly, the application for impleading was made after the 15 days time allowed as per the Kerala Buildings (Lease and Rent Control) Rules for impleading the legal representatives of the deceased party. So, on the expiry of 15 days from the date of death of the deceased respondent tenant, the appeal filed against the order of the Rent Control Court and pending before the Appellate Authority stood abated for not impleading the legal representatives in time Then the further question is whether the Appellate Authority can condone the delay in filing the application for impleading and allow the application for setting aside the abatement filed by the appellant landlord. Admittedly, O.22 of the Civil Procedure Code applies to proceedings under the Act. The condonation of delay in filing the applications for impleading and setting aside the abatement is governed by O.22 R.4(5), CPC., which reads: