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O.R. Seshadri and ors. Vs. B. Sundarsana Gupta - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P. Nos. 817, 819, 992, 1001 and 1013 of 1981
Judge
Reported inAIR1982Mad23
ActsTamil Nadu Buildings (Lease and Rent Control) Rules, 1961 - Rule 17; Presidency Small Cause Courts Act, 1882 - Sections 10
AppellantO.R. Seshadri and ors.
RespondentB. Sundarsana Gupta
Cases ReferredIn Venugopal Naidu v. Third Judge of Small Cause Court
Excerpt:
.....against the orders of eviction passed by the rent controller the tenants preferred appeals to the appellate authority but, by an order, the chief judge, court of small causes, madras withdrew those appeals to his file and disposed them of. that order of the chief judge, court of small causes, madras was challenged in the revision petitions before the high court.; the main question that arose for consideration was whether the chief judge, court of small causes, madras has t he jurisdiction under rule 17 of the rules framed under the tamil nadu buildings (lease and rent control) act to transfer the pending appeals to his own file and dispose of the same ; held, rule 17 of the rules framed under the tamil nadu building (lease and rent control) act effects a departure from its earlier..........also placed by the learned counsel for the respondent on the decision in venugopal naidu v. third judge of small cause court, madras, (lq49) i mad lj 471(air 1949 mad 776).5.it is not disputed that unless the transferring authority had the power of transfer the transferee authority will not have the power to entertain and dispose of the appeal so transferred, it is in this context that the rules relating to transfer of appeals before the appellate authorities h~4,s to be considered. originally, under the provisions of s. 8(1) of the madras house rent control order 1941, the collectors of the concerned districts and the collector of madras for the city of madras were constituted as appellate authorities and since the appellate authorities so constituted was just one, the provision for a.....
Judgment:
1. These revisions at the instance of the tenants in occupation of 1porlions of door No. 12, subramania Mudali St., Madras 1, belonging to the respondent herein, are directed against the orders of eviction passed by the authorities below against the petitioners on applications filed by the respondent

herein under Section 14(1)(b) of the Tamil Nadu Buildings (Lease and RentControl) Act, 18,of 1960, as amended by Act 23 of 1973 (hereinafter referred to as the Act). According to the case of the respondent, he is residing in a rented premises at door No. 10, Subramania. Mudali St., Madras 1, and carrying on business at door No. 15, Ramakrishna Street, Madras 1, and door No. 46 An person St., Madras 1, which are also rented premises and that in March 1978, he purchased the property in the occupation of the petitioners and others for the purpose of his own use and occupation after reconstructing the same to suit his needs. The further case of the respondent was that the building is an old and dilapidated 19th century construction and that he was desirous of demolishing it and putting up a new pucca building. The respondent also claimed that he had sufficient means to undertake the process of demolition and reconstruction and that he had also applied for the sanctioned plan and other requirements. Claiming that he the building in the occupation of the petitioners for the immediate purpose of demolition and reconstruction and giving an undertaking as contemplated by the provisions of the Act, the respondent filed applications for eviction against the petitioners under S. 14(1)(b) of the Act. An additional ground of willful default in the payment 6f rents was also put forth by the respondent against the petitioners in C.'R. P. Nos. 1001 and 1013 of 1981.

2.The petitioners resisted these applications contending that the respondent had no,intention of either demolishing or reconstructing the building and that the respondent had also not secured the necessary plans and estimates in that regard. The claim of the respondent that' he had sufficient resources to undertake the process of demolition and reconstruction was disputed by the petitioners. The condition of the building, according to the petitioners, was good and that the building did not require demolition and, therefore, the requirement of the respondent under S. 14(1)(b) of the Act was not bona fide.

3. Since all the applications for eviction related to the same building and the landlord was one and the same and common questions had to be decided, all the applications for eviction were heard together. Before the Rent Controller (IX Judge, Court of Small Causes), Madras, the respondent examined himself as P. W. 1 and another as P. W. 2, and relied upon Exs. P. 1 to P. 45 while on behalf of the petitioners, R. Ws. 1 to 8 were examined and Exs. R. I to R. 15, were marked. On a consideration of the oral as well as the documentary evidence, the learned Rent Controller found that the respondent bad not established that the petitioners in C. R. Ps. 1001 and 1013 of 1981 committed willful default in the payment of rents. As regards. the requirement of the respondent for demolition and reconstruction, the Rent Controller was satisfied that the respondent had sufficient means and that the condition of the building was also such as to deserve demolition and that the respondent bona fide required the premises for demolition and reconstruction. On these con, collusions, the applications for eviction were ordered. Aggrieved by this, the petitioners preferred H. R. A. Nos. 2141, 2142, 2138, 2125 and 2126 of 1979 to the Appellate Authority (IV Judge, Court of Small Causes), Madras. By an order dated 12-8-1980, the Chief Judge, Court of Small Causes, Madras, withdrew these appeals to his file and proceeded to dispose them of. On an exhaustive reconsideration of the oral as well as documentary evidence, the Appellate Authority (Chief Judge, Court of Small Causes), Madras found that the age as well as the existing condition of the building required that the building should be demolished, that the respondent had also established his means for undertaking the process of demolition and reconstruction and had also taken steps in that regard and that the requirement of the respondent was also bona fide. It was also further pointed Out by the Appellate Authority that the respondent had already taken possession of a portion vacated by another tenant and had demolished that also and that would further establish the bona fide requirement of the respondent. On these conclusions, the order for eviction was upheld and the appeals were dismissed. It is the correctness of this order that is challenged in these civil revision petitions:

4. Though the findings of the authorities below with reference to the age and condition of the building and also the other aspects to be taken into account in dealing with an application under Sec. 14(1)(b) of the Act are fully supported by the materials on record, yet, the learned Advocate-General appearing for the petitioners raises a technical objection with reference to the disposal of the appeals by the learned Chief Judge of the Court of Small Causes, Madras. L' is pointed out by the learned Advocate-General that the withdrawal by transfer of the appeals pending before the IV Judge of the Court of Small Causes, Madras bv the Chief Judge of the Court of Small Causes, Madras to his own file is not in accordance with R. 17 of the Rules framed under the Act, under which the Principal Judge, City Civil. Court, Madras, alone is empowered to effect such a transfer and, therefore, the Chief Judge of, the Court of Small Causes, did not have the jurisdiction to deal with 'the appeals on transfer. It is also further submitted that R. 17 does not contemplate any transfer on administrative grounds, as has been done in the present case, and, therefore, the transfer of the pending appeals and the subsequent disposal of them by the Chief Judge of the Court of Small Causes is without jurisdiction. Reliance in this connection is also placed upon the judgment in Malls. South Service Centre v. M/s. A. Nazar Ali and Sons, C. R. P. No. 3114 of 1980, D/- 5-3-1981. On the other hand, the learned counsel for the respondent points out that R. 17 (ii) is wide ' enough to include transfer on administrative grounds from the file of one appellate authority to another and that in the present case, the Chief Judge of the Court of Small Causes has powers under S. 10 of the Presidency Small Cause Courts Act, 1882, 'as well to regulate the business of court' and, therefore, the redistribution of work by the Chief Judge of the Court of Small Causes, cannot be taken exception to. Strong reliance in this connection is also placed by the learned counsel for the respondent on the decision in Venugopal Naidu v. Third Judge of Small Cause Court, Madras, (lq49) I Mad LJ 471

(AIR 1949 Mad 776).

5.It is not disputed that unless the transferring authority had the power of transfer the transferee authority will not have the power to entertain and dispose of the appeal so transferred, It is in this context that the rules relating to transfer of appeals before the appellate authorities h~4,s to be considered. Originally, under the provisions of S. 8(1) of the Madras House Rent Control Order 1941, the Collectors of the concerned districts and the Collector of Madras for the city of Madras were constituted as Appellate Authorities and since the Appellate Authorities so constituted was just one, the provision for a transfer was not in contemplation at all. However, after the Madras Buildings (Lease and Rent Control) Act 25 of 1949 came into force, Rule 12 provided for transfer of applications before Rent Controllers and also appeals before the appellate authorities. Personal interest Of the Controller in- any case filed before him was the ground upon which the concerned appellate authority was empowered to transfer any case to any Other Controller within his jurisdiction. Likewise, personal interest of the Appellate Authority in an appeal filed before him or the filing of an appeal against an order passed by the Appellate Authority as a Controller were made grounds upon which the Provincial Government was empowered to transfer the appeal to the file of another Appellate Authority. These rules were later amended and Rules 7 and 10 provided for the transfer of a case from the file of one Controller to that of another and the transfer of an appeal from the appellate authority to another.

Rules 7 and 10 were again subsequently amended by G. 0. Ms. No. 1908 (General Q dated 5-8-1948. Rult: 7 vested the power of transfer of a case from the file of one Controller to that of another on the concerned Appellate Authority on two grounds, namely, (1) personal interest of the Controller in the case pending before him and a report to that effect by him to the Appellate Authority; and (2) on an application for, transfer by any party in the case, if 'the Appellate Authority is satisfied that there are sufficient grounds for transfer. Rule 10 enabled the Provincial Government to transfer an appeal from the file of one Appellate Authority to another again on two groaners, namely, (1) personal interest of the Appellate Authority in the appeal and a report to that effect by it to the Provincial Government, and (2) on an application for transfer by any party in the appeal, if the Provincial Government are satisfied that sufficient grounds existed for such transfer. This was the position when the Madras Buildings (Lease and Rent Control) Act 25 of 1949 took effect repealing the Madras Buildings (lease and Rent Control) Act 15 of 1946. By G. 0. No. 1764 Public (General) dated 28-6101, Rules 10 and 13 were framed under the Madras Buildings (Lease and Rent Control) Act 25 of 1949, providing for the transfer of A case from the file of one Controller to that of one Appellate Authority to another. The grounds upon. which the powers could be exercised under Rules 10 and 13 for transfer of a case from the file of one Controller to that of another and that of an appeal from the file of one appellate authority to another remained the same as before. This remained so till the coming into force of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960. In G. 0. No. 1856 Home dated. 3-6-1961, Rules were framed under the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960.

Rules 20 and 21 provided for transfer of proceedings from one Controller to another. Under Rule 20 the Appellate Authority or the Chief Judge, Court of Small Causes, Madras, was empowered to transfer a case from the file of one Controller two another within its or his jurisdiction on three grounds, namely, (1) administrative grounds, or (2) personal interest of the Controller in the case and a report by him to that effect; or (3) on an application for transfer by any party in the case, if the appellate authority or the Chief Judge, Court of Small Causes, Madras, is satisfied that there are sufficient grounds for the transfer. Rule 21 enabled the District Court exercising jurisdiction under Section 25 of the Act at any stage to transfer cases from the file of one Controller to another within its jurisdiction. Rule 24 provided that the High Court may transfer an appeal pending before one Appellate Authority to another Appellate Authority on two grounds, namely, (1) if the Appellate Authority before whom the appeal is pending is personally interested in the matter and reports the matter to the High Court; and (2) if. on an 'Allocation for transfer by any party in the appeal or otherwise, the High court satisfied that there are sufficient grounds for such transfer. These rules Continued to remain in forceps till the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, were substantially amender by the Tamil Nadu Act 23 of 1973, and the new rules were framed in G. 0. Ms. No. 2529 Home dated 28-10-1974. Rule 14, providing for a transfer of proceedings from one Controller to another is the same as R. 20 of the rules framed under Tamil Nadu Act 1 & -of 1960. Rule 17 of the rules framed under the Act runs as follows -

"The Principal Judge, City Civil Court, Madras, in respect of cases arising in the City of Madras and the District courts in respect of other cases, may transfer an appeal from the file Of the appellate authority before whom the appeal is pending to that of any other appellate authority-

(i) if the appellate authority before whom the appeal is pending is personally interested in the appeal and reports the matter to the District Court, or the "Principal Judge, City Civil Court, Madras, as the case may be; or

(11) if, on an application for transfer by any party in the appeal or otherwise, the District Court or the Principal Judge, City Civil Court, Madras is satisfied that there are sufficient 'grounds for such transfer."

Rule 17 of the Rules framed under the Act effects a departure from its earlier counterpart, namely, Rule 24 of the rules framed under Tamil Nadu Act 18 of 1960 in that the Principal Judge, City Civil Court, Madras, with reference to cases arising in the city of Madras and the District Courts with reference to other cases have been designated as the authorities who On exercise the power of transfer which had earlier been vested in the High Court ruder Rule 24 of the Rules framed ender Tamil Nadu Act 18 of 1960, with reference to appeals both in the city of Madras and also in the districts. The grounds do course remained basically the same both in Rule 17 of the rules framed ruder the Act and under R. 24 of the rules framed under Tamil Nadu Act 18 of 1960. Having regard to the conferment of the power of transfer on specified authorities exercisable only on the enumerated grounds, the power of transfer cannot be exercised otherwise than in conformity with Rule 17 of the rules amid under the Act.

6. An argument was raised that Rule. 17 of the Ruts framed under the Act, as it stands, may not include the power of transfer if appeals from one, appellate authority to another depending upon the exigencies of workload before the Appellate authorities. But, in my view, such a restricted interpretation of the power of transfer is not warranted, as the use of the expression 'otherwise, occurring in Rule 17 of the rules framed under the Act would contemplate other reasons like the need for the redistribution of workload of appeals amongst the different Appellate Authorities. Thus interpreted, the power of transfer under Rule 17 of the rules framed under the Act would be available even in a case where the appellat-21, authority before whom the appeal pending is not personally interested and no application for transfer by any partly, in the appeal has been made, but the District Court or the Principal Judge, City Civil Court, Madras, is satisfied that there are sufficient grounds for such transfer. One of such sufficient grounds for such transfer would be the accumulation of appeals before the particular Appellate Authority and the non-availability of sufficient appeals for disposal before another Appellate authority. In order to effect a fair and equitable distribution of the appeals before the several Appellate Authorities and to secure a speedier disposal of the appeals, the power of transfer could be spelt out even from the terms of the Rule 17 of the Rules framed under the Act, as it stands. Therefore, in the present cases there was sufficient reasons forth transfer of appeals from the file of the IV Judge of the Court of Small Causes to the file of the Chief Judge of the Court of Small Causes, in the sense that it became necessary to relieve the IV Judge of the Court of Small Causes from the heavy workload of undisposed of appeals on his file.

But then the question is if the ground for transfer had existed whether the Power of transfer had been exercised by the authority empowered by the Rules. It is not in dispute in this case that Principal Judge, City Civil Court, Madras had not exercised the power of transfer under Rule 17 of the rules framed under the Act, but that it was the Chief Judge, of the Court of Small Causes, Madras, who ordered the transfer from the file of the IV Judge of the Court of Small Causes, to his own. This is certainly not in accordance with Rule 17 of the rules framed under the Act, which has specified not only the authority which can exercise the power, but also the grounds on which such transfer can be made. In M/s. South Service Centre v. M/s. V. Nazar Ali and Sons, C. R. P; No. 3114 of 1980, D/- 5-3-1981 (Mad), a similar question arose for consideration, namely, whether the transfer of an appeal pending under the provisions of the Act from the file of the III Judge, Court of Small Causes to that of the VI Judge, Court of Small Causes by an order of the Chief Judge, of the Court of Small Causes was valid and it was held that the Chief Judge of the Court of Small Causes, Madras, cannot exercise powers of transfer under Rule 17 of the Rules framed under the Act. In the present case,the grounds existed, but the authority which exercised the power of transfer was not an authority competent to do so under Rule 17 of the Rules framed under the Act and, therefore, consequent to the exercise of such powers the transferee Court, namely, the Chief Judge, of the Court of Small Causes could not have had jurisdiction to dispose of the appeals.

7. The question is, whether S. 10 of the Presidency Small Cause Courts Act 1882 can be invoked in the present case. Section 4 of the Presidency Small Cause Courts Act, 1882 defines a 'Small Cause Court, as meaning the Court of Small rases constituted under this Act in the towel of Calcutta, Madras or Bombay, as the case may be. Section 10 providing for the distribution of the business of the Presidency Small Cause Courts can ordinarily have application only for the 'distribution of the work before the Court which functions as the Presidency Small Cause Court either at Calcutta, Madras or Bombay. The functioning of the Judges of the Court of Small Causes at Madras either as Rent Controllers or as Appellate Authorities is not referable to in any of the provisions under the Presidency Small Cause Courts Act 1882, bultley are functionaries under the provisions of the Tamil Nadu Buildings ~(Lease and Rent Control) Act which is a self-contained enactment providing for all matters dealt with by its provisions. It cannot, therefore, be stated that even while functioning under the provisions of the Act, the Rent Controllers and the Appellate Authorities would also function under the provisions of the Presidency Small Cause Courts Act 1882. It is only by a notification of the Government that the Judges of the Courtly of Small Causes have been designated as the Rent Controllers as well as Appellate authorities. It might have been others as well in which case it cannot be said that the provisions of the Presidency Small Cause Courts Act would apply even to them. It 'is, therefore, not possible to accept the contention, of the learned counsel for the respondent that S. 10 of the . Presidency Small Cause Courts Act 1882, would enable Chief Judge of the - Court of Small Causes, Madras, to effect transfer of an appeal preferred under the provisional of the Act from the file of one appellate authority to another without resort to Rule 17 of the rules framed under the Act.

8. The learned counsel for the respondent further submitted that if there is no regulation of the business of the appellate authorities in accordance with Section 10 of the Presidency Small Cause Courts Act 1882, all the appellate authorities constituted under the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, as amended by Act 23 of 1973, have to sit together and dispose of the appeals preferred before them. It is not possible to accept this contention either. The notification appointing the appellate authorities does not say that all 'the Judges of the Court of Small Causes at Madras excluding the VI, VII and VII1 Judges together are constituted as appellate authorities. A plain reading shows that the notification constitutes each Judge of the Court of Small Causes, excepting the VI, VII and VIII Judges as appellate authorities and if% on~ of such appellate authorities had season over an appeal preferred under the provisions of the Act, then it would be the competent authority to deal with it and dispose of the same without reference to other similar appellate authorities. No doubt, there is no provision made for the distribution of the appeals amongst the several appellate authorities constituted under the Act, by that cannot take away the power of the appellate authorities constituted under the Act to deal with appeals which are properly before them as a result of the distribution of such work, which is part of the process of the hearing of the appeal itself It may be that all the appellate authorities have only one office for the purpose of preferring the appeals before them, namely, the office of the Court of Small Causes, Madras, but then the distribution of the appeals amongst the several appellate authorities has necessarily to be done only by that office.

It is by this practice that the appeals are posted before different appellate authorities as a result of the process of distribution of the work. So long as each appellate authority has been designated as an appellate authority by itself, there is no need for a group disposal, as it were, of all appeals by all the appellate authorities, as con-tended for by the learned counsel for the respondent.

9. In Venugopal Naidu v. Third Judge of Small Cause Court, Madras (1949) 1 Mad LJ 471: (AIR 1949 Mad 776) though there was no order of eviction as such against the petitioner ' yet he purported to file an appeal on 5-4-1948 to the Chief Judge, Court of Small Causes, Madras, who transferred the appeal to the III Judge, of the Court of Small Causes, -Madras for disposal before whom an objection was raised that he had no jurisdiction. This objection was overruled and that was also upheld by this Court. It has to be noticed that prior to 1-3-1948, the Chief Judge of the Court of Small Causes, was the appellate authority for purposes of appeals under the provisions of the Act. But on and from 1-3-1948, the 'Court of Small Causes' was substituted for the 'Chief Judge of the Court of Small Causes'. That would mean that without specifying any particular Judge of the Court of Small Causes as the appellate authority the entire Court of Small Causes as a Court was designated as the appellate authority, and in order to prevent practical difficulties in giving effect to such an interpretation, it became necessary to refer to S. 10 of the Presidency Small Cause Courts Act, 1882 to include appeals under the Madras Buildings (Lease and Rent Control) Act 15 of 1946, also within the meaning of the expression of 'the business of the Court' That is not the position at present where amongst the Judges of the Court of Small Causes, some have been designated as Rent Controllers, while others have been appointed as appellate authorities and tile Court of Small Causes consisting of several Judges is functioning at the same time as the Rent Controller as well as the appellate authority through different Judges. Under these circumstances, the decision relied on by the learned counsel for the respondent cannot have any application and does not assist him in any manner.

10. For the aforesaid reasons, the proceedings before the Chief Judge of the Court of Small Causes, at Madras (one of the appellate authorities under the Act), in the absence of an order for the transfer of the appeals by the Principal Judge, City Civil Court, Madras, cannot be said to have taken place before an authority which had the jurisdiction to deal with it on transfer from the file of the IV Judge of the Court of Small Causes, Madras, before whom the appeals were originally pending. Consequently, the orders passed by the Chief Judge of the Court of Small Causes Madras in H.R.A. Nos. 2141, 2142, 2138, 2125 & 2126 of 1979 are set aside and the appeals are remanded to the file of the IV Judge, Court of Small Causes, Madras to be dealt with on the merits on or before 31-7-1981.' The civil revision petition are allowedly No costs.

11. Petitions allowed


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