Legal Advice Received After Expiry Of Statutory Appeal Period Not Ground To Condone Delay: Kerala High Court

Justice P.B. Suresh Kumar and Justice P.G. Ajithkumar observed that if delay was condoned based on subsequent legal advice received by a party, then that would defeat the purpose of Limitation Act.

“Subsequent legal advice cannot be accepted as a cause, much less any sufficient cause, to condone the delay in instituting a proceedings in terms of Section 5 of the Limitation Act, for if the subsequent legal advice is accepted as the cause to condone the delay in instituting a proceedings, the same would defeat the very object of the Limitation Act, viz, that every remedy should remain alive only till the expiry of the period fixed by the legislature which is a principle founded on public policy.”

The second rent control revision petition was dismissed by the Court relying upon Section 15 of the Rent Control Act. The Court noted that Section 15 was based on the principle of Estoppel, that is, even if a party suffers from an adverse order in an earlier proceeding, if the order has become final, then the same issue cannot be re-agitated in a subsequent proceeding between the same parties.

“Section 15 of the Act does not appear to be a provision which enables a party to a proceedings under the Act who suffered an adverse order on an issue in an earlier proceedings or at an earlier stage of the same proceedings, to re-agitate the said issue. On the other hand, according to us, the spirit of Section 15 of the Act which is founded on a principle of issue estoppel, is that a party who suffered an adverse order on a germane issue shall not be permitted to re-agitate the same.”

Background Facts

The petitioner in the first rent control petition was a tenant and challenged title of the landlord in the eviction petition. The challenge to the title of landlord was found against, for lack of bona fide, and the petition was disposed on merits. The petitioner failed to prefer an appeal on time and filed appeal only after receiving subsequent legal advice. The delay in filing appeal was not condoned and appeal was dismissed. The petitioner preferred thus preferred this petition before the High Court against the order of dismissal by the appellate authority.

The second rent control revision petition was preferred by the revision petitioner contending that the earlier order regarding the title of the landlord does not prevent her from re-agitating the same issue again. This was also dismissed by the appellate authority based on the principles of res judicata. Hence this petition before the High Court was moved.

Findings of the Court

The Court dismissed both the revision petitions. The first plea was dismissed stating that the appeal was barred by Limitation Act. Court found that the appeal was preferred on receiving subsequent legal advice only. It noted that if receiving subsequent legal advice was taken as a ground for delay condonation, then the purpose of Limitation Act would be defeated. The Court noted that the remedy available to the petitioner had expired and that an appeal cannot be preferred stating that legal advice was obtained after the limitation period.

In the second rent control revision petition, the Court relied upon the Apex Court decision in C.V. Rajendran v. N.M. Muhammed Kunhi (2002) and stated that a question which was agitated by a party to a proceeding at one stage of the proceedings cannot be re-agitated at a later stage of the proceedings under the Rent Control Act. Relying upon Bharathi v. Vinod S. Sivasudha (2007) and Vannatham Veettil Moidu v. Vannatham Veettil Yoonus (2022), the Court stated that a tenant who obtained an adverse final order in a rent control proceeding cannot re-agitate the same issue in a subsequent proceeding. Based on the above decisions, the Court concluded thus:

“In the light of the decision of the Apex Court in C.V. Rajendran, the decision of the Full Bench in Bharathi and the decision of the Division Bench in Vannatham Veettil Moidu, it has to be held that the findings rendered in earlier proceedings or in earlier stages of the same proceedings on issues arising between the parties to a proceedings under the Act, which are germane for consideration, cannot be re-agitated by the parties.”

On the above findings, the Court noted that the title of the landlord was already decided as a preliminary issue and had become final. It noted that a party who receives an adverse order in an earlier rent control proceeding or in an earlier stage of the same rent control proceeding cannot re-agitate the same issue in a subsequent proceeding. Thus, the Court held that the petitioner cannot re-agitate on the title of landlord u/s 15 of the Rent Control Act as it had attained finality.

Based on the above observations, the Court dismissed both the revision petitions.

Counsel for the Petitioner: Advocate G.S. Reghunath, P.C. Haridas, P.S Govind

Counsel for the respondents: Advocates Manu Vyasan Peter P.B.Krishnan, Sabu George

Citation: 2023 LiveLaw (Ker) 533

Case title: R.C.REV. No. 137 and 153 of 2023

Case number: Mallika v Sree Mutharamman Temple Trust

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