ABDUL REHIMAN Vs. HAMEED HASSAN PERUVAD

JUDGEMENT

(1.) This is a petition filed under Art.227 of the Constitution. Petitioner is a tenant of shop rooms bearing door Nos.KP8/573 and 574 of Kumbala Panchayat owned by the first respondent. According to him, he took the shop rooms on a monthly rent of Rs. 10/- in the year 1950. While so, first respondent filed RCP No. 17/86 before the second respondent - the Rent Controller for recovery of the building as per the provisions contained in S.11(2), 11(3), 11(4)(ii), and 11(4)(iv) of Kerala Buildings (Lease and Rent Control) Act here-in-after referred to as the Act. On receipt of notice from the Rent Control Court, petitioner - the tenant filed Ext. P2 written statement of defence. He disputed the claim of the landlord that the rent is in arrears, that the landlord required the building bona fide for his own occupation, that the tenant is using the building in such a manner as to destroy or reduce its value or utility permanently and that the building needs reconstruction. The case stood posted in the special list for trial to 23-11-1988. When the matter came up for trial on that day, petitioner's counsel reported no instruction. Consequently, the Rent Control Court adjourned the case to 24-11-1988. On that day the landlord was examined and on the basis of that evidence, Rent Control Petition was decided in favour of the landlord. The tenant was served with a copy of that order. Immediately thereafter he filed LA. No.464/1989 praying for setting aside the ex parte order and to afford the tenant a reasonable opportunity of let in evidence. Since that petition was filed beyond the time prescribed under the Rule, he moved LA No.463/1989 under S.5 of the Limitation Act for condoning the delay caused in filing the petition to set aside the order. The Rent Control Court dismissed the petition under 35 of the Limitation Act. on the view that S.5 is not applicable to rent control proceedings. In this view, the application to set aside the ex parte order was dismissed holding that it was filed beyond the time prescribed as per the Rules. As per the Rule's, a petition to set aside the ex parte order has to be made within 15 days. Aggrieved by the above orders passed by the Rent Control Court, tenant has come up with this original petition under Art.227 of the Constitution.

(2.) The question that arises for consideration in this original petition is whether the Rent Control Court was justified in dismissing the applications filed by the tenant for setting aside the ex parte decision and for condoning the delay caused in filing that application without considering them on merits. S.23 of the Act makes certain provisions of the Code of Civil Procedure applicable to proceedings before the Rent Control Court. Clause 1(h) of that Section provides that the Rent Control Court has the powers which are vested in a court under the Code of Civil. Procedure for setting aside ex parte orders. The provision of the Code of Civil Procedure mentioned therein is that contained in O.9 R.13 of the Code. Clause.2 of O.9 R.13 as per the Kerala Amendment makes S.5 of the Limitation Act applicable to applications for setting aside ex parte orders passed against the defendant/ respondent. A combined reading of S.23(1)(h) of the Act and O.9 R.13 of the Code of Civil Procedure shows that a respondent in a proceeding before the Rent Control Court has got the right to get the ex parte order set aside and in exercise of that right if delay has been occasioned a petition under S.5 of the Limitations Act can be filed and the Rent Control Court is bound to entertain that application on merits. In other words, when a respondent in a Rent Control Proceedings files an application for setting aside an ex parte order passed against him together with a petition under S.5 of the Limitation Act to condone the delay caused therein, the Rent Control Court should consider that petition on merits and is bound to dispose of the same not on the ground that it is not maintainable. In the instant case, the Rent Control Court erroneously took the view that I.A.No.463/1989 filed under S.5 of the Limitation Act is not maintainable. In that erroneous view, the said application is happened to be dismissed. According to me, the step taken by the Rent Control Court was one refusing to exercise its jurisdiction in accordance with law.

(3.) Learned, counsel representing the respondent raised an argument that the decision of the Supreme Court in Gopalan v. Aboobacker ( 1995 (2) KLT 205 ) wherein the learned Judge took the view that the Appellate Authorities under S.18 of the Act are not persona designata, will not apply to the Rent Control Court in view of the different phraseology used in S.18 and 3 of the Act. In S.18, it is provided that the Government may by general or special order notified in the Gazette confer on such officers and authorities not below the rank of a Subordinate Judge, the powers of the Appellate Authorities for the purpose of this Act. The notification contemplated therein can confer powers on Officers and Authorities not below the rank of Subordinate Judge. Subordinate Judge happened to be an Officer in the hierarchy of Judicial Officers and so the Subordinate Judge or the District Judge, as the case may be, nominated to exercise the powers not as persona designata. According to counsel, that will not come to the rescue of the petitioner herein because Presiding Officer of the Rent Control Court namely, the Rent Controller can only be a persona designata, as seen in S.3(1) of the Act. S.3(1) of the Act states that Government may, by notification in the Gazette appoint a person who is or is qualified to be appointed, a Munsiff to be the Rent Controller for such local area as may be specified therein. When persons other than those who are holding the post of Munsiffs and who are qualified to be appointed Munsiff can be appointed, as Rent Controller, the Rent Control Court cannot according to learned counsel be considered as a Court as understood in the common parlance but can only be persona designata. I find it difficult to accept this argument. The powers of the Rent Control Court are dealt with in the various sections of the Act. A petition for eviction of the tenant is to be filed before the Rent Control Court. That Rent Control Court namely, the Officer who holds the Office is to dispose of the matter and is to adjudicate upon the rights between the landlord and the tenant. The decision of the Rent Control Court is appealable to the Appellate Authority which has now been held to be not a persona designata. In order to constitute a Court, an essential condition is that the said court should have the powers to give a decision or a definite judgment which has finality and authoritativeness. A decision rendered by the Rent Control Court has finality and authoritativeness unless it is varied or modified by Appellate or Revisional Authorities as constituted under the Act. In Virindar Kumar Satyavadi v. The State of Punjab ( 1955 (2) SCR 1013 ), the distinguishing features of a Court from a quasi judicial tribunal has been given in the following terms:-