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

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 986 of 1982
Judge
Reported inAIR1983Mad55
ActsTamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 23
AppellantM.P. Appulu
RespondentA. Fatima Lohra and anr.
Appellant AdvocateK. Vaitheeswaran, Adv.
Respondent AdvocateK. Sengottian, Adv.
Cases ReferredT.N. Krishnamurthi 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 and liabilities of the party or not. it can never be the intendment of the act that an affected party cannot have recourse to remedies by way of appeal and revision, as against interlocutory orders, which are either illegal or incorrect or 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..........by the supreme court in , (cited above) does not go to theextent 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 incumbetant to find out whether a particular interlocutory order passed would affect the rights or liabilities of the party or not. to illustrate, if a tenat has started demolishing portions of the building to cause loss to.....
Judgment:
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 the 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 S. 23 of Tamil Nadu Act 18 of 1960, and hence, the order passed in C. M. A. 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 the landladies sought for appointment of an advocate, Commisioner 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. 675 and 679 of 1978, and not the entire building. The appeal is confined to the order in I. A. 262 of 1980 in R. C. O. P. 675 of 1978. The prmises 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, and one of them 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 was passed by the appellate authority has now 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. Sivasubramania, (1981) 2 Mad LJ 206 : (AIR 1981 NOC 171) and Chinnaraja Naidu v. Bavani Bai. (1981) 2 Mad LJ 354, the appellate order deserves to be set aside.

4. This court following the decision of the Supreme Court in Central Bank of India Lttd. v. Gokal Chand, and Bant Singh

Gill v. Shanti Devi, 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 eventhough Mr. Vaitheeswaran, learned counsel for the petitioner herein, has taken considerable efforts to place before this court all these authorities, it is not necessary to restate what have been referred to in those decisions. The decision rendered by the Supreme Court in , (cited above) 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 incumbetant to find out whether a particular interlocutory order passed would affect the rights or liabilities of the party or not. To illustrate, if a tenat has started demolishing portions of the building to cause loss to the land-lord, the landlord has the right to seek for eviction for acts of waste committed (S. 10(a)(iii)) and tto 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 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 remedy, and that he can establish it in the final hearing, could be of no benefit to landlord, because, by that time, sizable portion of building could be demolished or impaired in value. It can be never be the intendment of the Act that an affected party cannot have recourse to remedies by way of appeal and revision, as against interlocutory orders, which are either illegal or incorrect or 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 note 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 Naidu v. Bavani Bai (1981) 2 Mad LJ 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 maintainibility of an appeal filed against an interlocutory order, it is incumbent upon the court to firstascertain 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 inSec. 36(c)

fortheappointmentofanAdvocate Commissioner to inspect the properties, but it only related to the appointment of Commissioner to examine witnesses. Whereas, under Act 18 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 Section 23 of 1973 Act 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 Mad LJ 287, and T. K. Chenna Kesavalu v. Mansukhlal, (1966) 1 Mad LJ 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 C. P. C. is not applicable in the absence of a specific power, there is bar to appoint and 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 it 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 essentail 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 subletting, commiting 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 by 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 resoting 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 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 ascrain 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 at the interlocutory stageis 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 lie.

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 portin 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 devolop from the foundation and extend to the other portions which are above ground. In a building with two floors where cracks have already devoloped 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 its 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 fitt 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 insepction and report is to be related 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, lanladies 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. Sengottiah straightway stated that instead of an Advocate, the 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 greatly 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 confirming 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 Condition of the building. Even otherwise, 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 seperately including appurtenant areas, the relief granted in an I.A. could not be beyond the property decribed 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. Krishnamurthi v. Jagat Textiles, Madurai, (1981) 1 Mad L.J 394, and building he can ask for a report for the building when he owns. Furthermore, when the appartment 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.

14. Revision dismissed.


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