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Hyath Basha Vs. Tajan Bi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P. (S.R.) No. 66126 of 1982
Judge
Reported inAIR1983Mad328; (1983)1MLJ277
ActsCode of Civil Procedure (CPC), 1908 - Sections 115;Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 23(3)
AppellantHyath Basha
RespondentTajan Bi
Advocates:R.S. Venkatachair, Adv.
Cases ReferredRethinasami v. Komalavalli
Excerpt:
- - , has held that the appellate authority under section 23 of the act can well be held to be a court for purposes of s.order1. this revision is sought to be filed by the tenant in h. r. c. o. p. 16 of 1980 on the rent controller (principal district munsif), tiruvannamalai, against the order passed by the rent controller dismissing m. p. 9/82 filed by him for reopening the case for the purpose of examining the petitioner's witness viz., the previous landlord's son sri mohan kumar for proving the regular payment of rent.2. it transpires from the impugned order that after examination of the witness on the said of the landlord, the case stood posted on 15-3-1982 and thereafter on 13-4-1982 on which date the tenant represented that he had no witness to be examined on his said. then the case stood posted at the request of both the parties, to 22-4-1982 for arguments, on which date the petitioner took out an.....
Judgment:
ORDER

1. This revision is sought to be filed by the tenant in H. R. C. O. P. 16 of 1980 on the Rent Controller (Principal District Munsif), Tiruvannamalai, against the order passed by the Rent Controller dismissing M. P. 9/82 filed by him for reopening the case for the purpose of examining the petitioner's witness viz., the previous landlord's son Sri Mohan Kumar for proving the regular payment of rent.

2. It transpires from the impugned order that after examination of the witness on the said of the landlord, the case stood posted on 15-3-1982 and thereafter on 13-4-1982 on which date the tenant represented that he had no witness to be examined on his said. Then the case stood posted at the request of both the parties, to 22-4-1982 for arguments, on which date the petitioner took out an application with an affidavit that he intended to examine a witness on his said or the reasons for such intended examination. It was under these circumstances the Court dismissed the petition holding that the present application had been taken by the petitioner for the purpose of dragging the main proceeding. Hence this revision.

3. The office of the High Court has returned this petition requesting the counsel to state how the revision would be maintainable under S. 115, C. P. C., without exhausting the remedy of an appeal provided under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Act 18 of 1960) (hereinafter referred to as the Act). The papers were represented by the counsel stating that as there is confict of opinion as to the maintainability of a civil revision petition under the Act, and as this Court has held that the Rent Controller is also a Civil Court, this revision is competent under Section 115, C. P. C. In support of this contention, he relies on the decision of this Court in E. K. Venkai Mohan v. Dakshinamurthy (1981 - 94 Mad LW 243).

4. The question that arises for my consideration is whether this revision is `maintainable.

5. Section 115(2), C. P. C., enacts that the High Court shall not under this provision very or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. In the present proceedings, the Act provides for an appeal by any person aggrieved by an order passed by the Rent Controller. Now I shall refer to some of the decisions before adverting to the argument of the learned counsel for the petitioner. A question arose before the Supreme Court in Central Bank of India v. Gokalchand : [1967]1SCR310 , whether an appeal would lie against an order passed in an interlocutory application.

In that case, the Supreme Court observed that the words 'every order' occurring in S. 38(1) of the Delhi Rent Control Act, 1958, passed by the Rent Controller, though very wide, do not include interlocutory orders which are merely procedural and do not affect the rights and liabilities of the parties and in a pending proceeding the Controller may pass many interlocutory orders such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevance of a question, and that all these interlocutory orders are steps taken, towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties.

It has been further observed therein that the legislature could not have intended that the parties would be harassed with the endless expenses and delay by appeals from such procedural orders and that it is open to any party to set forth the error, defect or irregularity, if any, in such an order as the ground of objection in his appeal from the final order in the main proceeding.

6. Following the above judgment, I have held in Chinnaraju Naidu v. Bavani Bai 1981 2 MLJ 354 that all interlocutory orders passed through the proceedings under the Act cannot be said to be orders within the meaning of S. 23(1)(b) of the Act and that only the orders that affect the rights and liabilities of the parties, in the sense that they become final orders though passed in interlocutory applications, such as refusing to set aside ex parte orders etc., are appealable and that it is however, open to the parties to set forth the error, defect or irregularity, if any, in such an order as the ground of objection in his appeal from the final order in the main proceedings. See also Appulu v. Fatima Zohra, : AIR1983Mad55 and Lakshmiammal v. V. K. Sivasubramaniam 1981 MLW 366. Therefore, it is clear from the above decisions that unless it is shown that the orders passed in the interlocutory application affect the rights and liabilities of the parties, in the sense that they became final orders, such orders, which are procedural in character, cannot said to be final orders coming within the definition of 'order' occurring in S. 23(2) of the Act.

7. Mr. Venkatachari contends that the authorities under the Act are also Courts and hence a revision would lie against the interlocutory orders passed by the said authorities when the institution of an appeal against such order is barred. In support of his contention, he relied on two decisions of this Court, viz., (1) Venkai Morben v. Dakshinamurthy, : (1981)1MLJ275 : (1981) 94 MLW 243 - judgment of Balasubramanyam, J.; and (2) the judgment of a Division Bench of this Court in Rethinasami v. Komalavalli, : AIR1983Mad45 . In the first cited decision, Balasubramanyam, J., has held that the Appellate Authority under Section 23 of the Act can well be held to be a Court for purposes of S. 5 of the Limitation Act. In Rathinasamy's case, second cited, the Bench has held:

'Though the authorities (The Rent Controller and Appellate Authority under the Act) are not described as Courts, the procedure and final decisions are akin to that of a Court, as observed by the Supreme Court in Jugal Kishore Singh's case : 1967CriLJ1380a . The above view is in tune with the definition of the word 'Court' found in S. 3 of the Madras Court-fees Act, Section 3 of the Evidence Act and S. 20 of the I. P. C.'

Having observed thus, it has been concluded as follows:

'In the result, we hold that for the purpose of Ss. 3, 5 and 29(2), Limitation Act, the Appellate Authority is a Court and S. 5, Limitation Act, is applicable to an appeal preferred by the petitioner herein before the Appellate Authority constituted under Section 23(1)(b), Madras Buildings (Lease and Rent Control) Act (Act 18 of 1960).'

A thorough reading of both the decisions would show that the learned Judges in the above two decisions have held that the Rent Controller and the Appellate Authority are Courts only for the purpose of invoking certain provisions of the Limitations Act. Therefore, the contention of the learned

counsel that the Rent Controller is a Court for all purposes is not tenable and acceptable. For the reasons stated above, I hold that the revision cannot be entertained under S. 115, C. P. C.

8. In this connection, I would also refer to Sec. 23(3) of the Act, which says that the Appellate Authority can also make further enquiry, if he thinks fit, either personally or through the Controller, for arriving at a just decision of the appeal. In other words, he can also take evidence, if necessary. Hence the contention of the learned counsel that as the order herein from letting in further evidence is held to be not appealable, his only remedy is by way of a revision under Section. 115. C. P. C., cannot be countenanced.

9. In the result, I hold that this revision is not maintainable and it is accordingly rejected.

10. Petition dismissed.


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