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M.P. Appulu Vs. A. Fatima Zohra and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1982)2MLJ340
AppellantM.P. Appulu
RespondentA. Fatima Zohra and anr.
Cases ReferredT.N. Krishnamoorthy v. Jagat Textiles
Excerpt:
.....rights and the liabilities of a party to a proceeding, an appeal could be entertained apart from appeals filed as against final orders, therefore, there being no prohibition contemplated about appeals being filed against interlocutory orders, it is incumbent to find out whether a particular interlocutory order passed, would affect the rights or liabilities of the party or not. when eviction of a tenant could be secured on grounds like sub-letting, committing of acts of waste, using for different purpose, demolition and reconstruction etc. unless the report submitted by the commissioner, deals with the condition of the entire building as well, it would not be sufficient to inspect only the portion occupied by one of the tenants. even for the tenant, it would be unwise for him) to occupy..........gokul chand's case : [1967]1scr310 , does not go to the extent of holding that there could be no appeal filed whatsoever, as against any interlocutory order, to the appellate authority constituted under the act. in fact, it has been clearly held by the supreme court that if an interlocutory order results in affecting the rights and the liabilities of a party to a proceeding, an appeal could be entertained apart from appeals filed as against final orders, therefore, there being no prohibition contemplated about appeals being filed against interlocutory orders, it is incumbent to find out whether a particular interlocutory order passed, would affect the rights or liabilities of the party or not. to illustrate, if a tenant has started demolishing portions of the building to cause loss to.....
Judgment:
ORDER

T. Sathiadev, J.

1. Tenant is the petitioner herein. Aggrieved against the appointment of a Commissioner to inspect the entire building, this revision petition is filed on the ground that the order of appointment of Commissioner pending disposal of a petition for eviction relates only to a procedural aspect and therefore, as against the order of the Rent Controller, no appeal lies to the appellate authority under Section 25 of Tamil Nadu Act XVIII of 1960, and hence, the order passed in C.M.A. No. 122 of 1980, having been passed without jurisdiction, requires to be set aside.

2. It is the admitted case between the parties that both the tenant and he landladies sought for appointment of an Advocate-Commissioner to inspect the properties. The, Rent Controller passed orders only in the application filed by the landladies directing that the properties to be inspected are the properties described only in R.C.O.P. Nos. 675 and 679 of 1978 and not the entire building. The appeal is confined to the order in I.A. No. 283 of 1980 in R.C.O.P. No. 675 of 1978. The premises involved in this petition is one of the portions of the main building and the petitioner herein occupies a portion of the ground floor. There are four other tenants in the building, of which one of them1 had already vacated. The tenants involved in two other R.C.O.P. Nos. 683 and 685 of 1978, having agreed to vacate, orders of eviction have been already passed. In this petition, the landladies have sought for eviction of the tenant on the ground that the building is required for demolition and reconstruction.

3. The main dispute now revolves round the point as to whether the Advocate-Commissioner could submit his report in respect of the entire building or it should be confined only to the premises involved in the R.C.O.P. Tenant absolutely has no objection to the Advocate-Commissioner inspecting the premises in his occupation. The order now passed by the appellate authority has resulted in the further point being taken that, since the order passed by the Rent Controller, appointing a Commissioner relates to a procedural aspect, in the light of the decision rendered by this Court in Lakshmiammal v. Sivasubramaniam (1981) 2 M.L.J. 206 : 94 L.W. 366 and Chinnaraju Naidu v. Bavani Bai (1981) 2 M.L.J. 354, the appellate order deserves to be set aside.

4. This Court following the decision of the Supreme Court in Central Bank v. Gokal Chand : [1967]1SCR310 and Bant Singh GUI v. Shanthi Devi and Anr. : [1969]1SCR615 , held that it is only against final orders passed, appeals could be preferred and that by entertaining appeals as against interlocutory orders, it only results in protraction of proceedings, which will have to be avoided. Since this Court has already dealt with elaborately by referring to all the conceivable authorities on this point, in the two decisions above referred to, even though Mr. Vaitheeswaran, learned Counsel for the petitioner herein, had taken considerable efforts to place before this Court all those authorities, it is not necessary to restate what have been referred to in those decisions. The decision rendered by the Supreme Court in Gokul Chand's case : [1967]1SCR310 , does not go to the extent of holding that there could be no appeal filed whatsoever, as against any interlocutory order, to the appellate authority constituted under the Act. In fact, it has been clearly held by the Supreme Court that if an interlocutory order results in affecting the rights and the liabilities of a party to a proceeding, an appeal could be entertained apart from appeals filed as against final orders, Therefore, there being no prohibition contemplated about appeals being filed against interlocutory orders, it is incumbent to find out whether a particular interlocutory order passed, would affect the rights or liabilities of the party or not. To illustrate, if a tenant has started demolishing portions of the building to cause loss to the landlord, the landlord has the right to seek for eviction for acts of waste committed Section 10(a)(iii) and to establish as to what was going on and to prevent further loss to property, unless he gets an order for an Advocate-Commissioner to inspect the property, it would highly prejudice his rights. In spite of impressing upon the Rent Controller of the imminent need for the appointment of Commissioner, if it is rejected, to hold that until the main proceeding is over, he would have no right to file an appeal to seek a remedy, and that he can establish it in the final hearing, could be of no benefit to landlord because, by that time, sizable portions of building could be demolished or impaired in value. It can never be the intendment of the Act, that an affected party, cannot have recourse to remedies by way of appeal1 and revision, as against interlocutory orders, which are either illegal or incorrect ox ordered without jurisdiction, etc. It is only to. prevent frivolous appeals being filed as against interlocutory orders, it was thought that only against final orders, appeals could be filed, but at the same time taking mote of interlocutory orders which may affect the rights and liabilities of parties, it has been held that, against such orders, an appeal would necessarily lie. Taking note of this aspect, in Chinnaraju Nadu v. Bavani Bai (1981) 2 M.L.J. 354, this Court, has held that, as against the interlocutory orders passed therein, an appeal would lie.

5. Hence, it has to be held that, in each and every case, before rejecting, where preliminary objection is taken about the maintainability of an appeal filed against an interlocutory order; it is incumbent upon the Court to first ascertain whether it is an order which had affected the rights or liabilities of the parties, and which by agitating only at the stage of the main matter, would prejudice his rights.

6. The next contention of Mr. Vaitheeswaran is that, the Supreme Court dealing with the appointment of a Commissioner to inspect the property, in respect of a matter which arises under Delhi Rent Control Act having held that such an order is only of procedural nature, the present order, is no different from the same. Mr. Sengottian, learned Counsel appearing for the landladies, would state that under the Delhi Act, there was no provision made in Section 36(c) for the appointment of an Advocate-Commissioner to inspect the properties but it only related to the appointment of Commissioner to examine witnesses. Whereas, under Act XVIII of 1960 under Section 18(A) itself a right to get a Commissioner appointed to inspect the properties having been incorporated by way of amendment under Act XXIII of 1973, the scope of this right statutorily conferred had not been properly understood in the earlier two decisions. He refers to Rule 19 of the Rules, which deals with the inspection of the property by the Commissioner.

7. Section 18(A) came to be introduced because of the decisions rendered by this Court in Seethalakshmi Ammal v. Rajammal (1965) 1 M.L.J. 287, and T.K. Chenna Kesavalu v. Mansukhalal and Ors. (1966) 1 M.L.J. 300, wherein, it was held that the Act being a Code by itself and when Rule 26 enabled only inspection by the authority and since Civil Procedure Code, is not applicable in the absence of a specific power, there is bar to appoint an Advocate-Commissioner to inspect the property.

8. A Commissioner appointed by Court, inspecting the property, whether it be found as a part of the Rules or part of the Act itself, in essence is only one of the procedural aspects taken in the disposal of the main matter. When such a right had been given under the Act, it has to be treated as one of the essential steps that would require to be taken for rendering a decision in the main petition. When eviction of a tenant could be secured on grounds like sub-letting, committing of acts of waste, using for different purpose, demolition and reconstruction etc., the right to get an early report or a faithful report as to what was existing at the relevant point of time should not be underestimated. It cannot be understood in the perspective in which an application is filed to examine a witness on commission, which was considered in the Supreme Court decision. There are circumstances in which, it is only a Commissioner inspecting the property promptly and recording timely assessment, of what obtains relating to the building, could alone assist Courts to decide correctly. If such prompt actions are not taken, it may destroy the valuable rights of the parties. It may so happen, when a landlord high-handedly starts pulling down a portion of the main building, the tenant would be greatly interested in securing a Commissioner appointed forthwith. If the right of tenant to have access to stair-case is obstructed, he is most interested in seeking appointment of the Commissioner and secure immediate relief, for restoring amenities, which is assured to him under Section 17 of the Act. In such similar circumstances, if an application for appointment of Commissioner is not properly understood and appreciated and resulted in dismissal of the application, to hold that an appeal would not lie, would result in taking away this right, which is enshrined in the Act itself.

9. The acid test to find out whether an appeal would lie or not is to ascertain whether the order, if allowed to remain, would affect the rights and liabilities of that party, and is of such a nature that the aspect sought to be established in the interlocutory stage is one which, though to some extent can be established in the main matter, would due to its rejection at this stage, prejudice his valuable rights. If the appellate Court finds that what is sought to be established in the I.A. cannot await the disposal of the main matter, it would also be a case where an appeal would necessarily he.

10. The landladies have initiated proceedings against the tenant on the ground that the building requires to be demolished and reconstructed. To establish that the entire building requires to be inspected. Unless the report submitted by the Commissioner, deals with the condition of the entire building as well, it would not be sufficient to inspect only the portion occupied by one of the tenants. Here again, it will be useful to illustrate about the futility of preparing a report only for a particular portion of the building. Invariably, cracks develop from the foundation and extend to the other portions which are above ground. In a building with two floors where cracks have already developed in the ground floor, by inspecting only the second floor, it would not be possible to evict the said tenant, if the report is confined only to his portion. Even for the tenant, it would be unwise for him) to occupy the top floor, if the first floor and the ground floor are unsafe to be occupied. It will be in his own interests, to get a correct report as to whether the building is fit enough to be demolished or not. In matters of this nature, unless at the appropriate time, a Commissioner submits a report, it will not be possible even for the Rent Controller, to correctly decide the matter. If inspection and report is to be relegated to final hearing stage, it would further delay the matter.

11. It is then contended that this is an aspect which could be established when the main petition is heard and disposed of. No doubt landladies will have to establish about the condition of the building and they may even examine an expert engineer. But such] evidence would be characterised as motivated or interested, whereas by appointing a Commissioner, dispassionate report could be secured at the appropriate time. Rather, Mr. Sengottian, stainghtway stated that instead of an Advocate, a qualified Engineer may be appointed; to submit a report on the condition of the entire building, and that the landladies are prepared for the same. This only shows that there is an imminent need for the inspection of the property, so that, the exact condition of the building could be established. The tenant is in occupation of the ground floor, and if by chance, a portion of the upstairs is to slide down, it would greately affect not only the continued occupation, but it may even result in the personal safety of himself and his family being affected. Hence, instead of looking at the application as one filed for appointment of Commissioner, the emphasis, should be laid in all such applications, to find out as to whether the refusal or the ordering of the relief asked for, would affect the rights and liabilities of the parties and if it is an order of such nature appeal is maintainable. When some of the other tenants have already agreed to vacate, any delay in ascertaining the condition of the entire building, would deprive the correct evidence being secured at the appropriate time. The appeal filed against the order confining the report of the Commissioner only to the petition-premises was maintainable, and hence, the revision petition is liable to be dismissed. It is now open to the parties to ask for a qualified Engineer to be appointed as Commissioner, so that, the report secured could enable the Rent Controller to correctly decide about the condition of the building. Even otherwise, the Advocate-Commissioner will have to submit his report on the entire building, as asked for by the landladies.

12. Yet another point taken is that, when under Section 2(2) 'building' is defined as a part of a building let separately including appurtenant areas, the relief granted in an I.A. could not be beyond the property described in the petition. This contention overlooks the fact that, if the entire building belongs to one landlord, he has the right to institute proceedings against more than one tenant by a single petition, as held in T.N. Krishnamoorthy v. Jagat Textiles, Madurai Town : (1981)1MLJ394 , and hence he can ask for a report for the building which he owns. Furthermore, when the appurtenant portions would also form, part of the building in question, the report to be prepared about the condition of his building, would be with reference to the whole building and need not be only for the portion occupied by the tenant.

13. In this view, the Civil Revision Petition is dismissed. No costs.


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