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T.N. Krishnamoorthy Vs. Jagat Textiles, Represented by Its Partner Lalji Bhujpunia - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1981)1MLJ394
AppellantT.N. Krishnamoorthy
RespondentJagat Textiles, Represented by Its Partner Lalji Bhujpunia
Cases ReferredR. Venkatesaachary v. The Judge
Excerpt:
- - somayajulu, raised an objection that this court has no power to review its order, since such a provision is not found in act xviii of 1960. hence the petition bad to be adjourned more than once for further arguments. it is precisely in this view in thirupathi nadar v......reviewed. this petition is filed by invoking the provisions of section 114 and order 47, rule 1, civil procedure code.5. counsel appearing for the respondent-tenant contended that when there are two tenancies, two separate petitions, will have to be filed because each one is a 'building' within the meaning of act xviii of 1960 and when additional accommodation is sought for, it has to be established by the landlord that both the premises are required for his occupation and it cannot be done by filing one petition, and hence the order of remand does not call for any interference.6. mr. t.r. mani, counsel appearing for the petitioner herein, apart from the decision above referred to also relies upon the decision in p. govindaswami naicker v. s.r. kerwar (1969) 2 m. l. j. 452 : :.....
Judgment:
ORDER

T. Sathiadev, J.

1. The landlord is the petitioner herein, who filed a petition under Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960, asking for additional accommodation. He filed I. A. No. 287 of 1979 for amending the petition by stating that due to typographical error, Door No 16, Manjanakara Street, was not mentioned and Door No. 51, Mahal Street, Madurai, alone was mentioned, but the description of the property in the petition would necessarily include both the door numbers.

2. Both the authorities held that (sic) description in the petition would necessarily include both the door numbers (sic) no prejudice could be caused to the tenant by allowing the amendment, because he has already raised his defence in respect of the entire premises leased to him, he being the tenant of both the door numbers. It is a corner building in which, in the major portion, the landlord is carrying on his business. Door No. 16, faces Manjanakara Street, whereas door No. 51 faces Mahal Sixth Street, Madurai.

3. Aggrieved against this order, C. R. P. No. 2612 of 1979 was filed contending that an amendment cannot be allowed and there is no jurisdiction in the authorities to allow such amendments. Counsel appearing for the petitioner by relying upon the decision reported in Ramachandracharyulu v. Rangacharyalu (1926) 51 M. L. J. 418 : : (1926)51MLJ418 : AIR 1926 Mad 1117 was able to convince this Court that the proposed amendment could be allowed. But during the course of hearing, the counsel for the tenant pleaded that it Is not a genuine omission, but knowingly the petition had been filed only for one of the door numbers, and each one of the premises is covered by a separate lease deed and rent was also being paid separately. He relied upon Exhibits B-3 and B-4 to contend that till 1974, rent was being paid separately, and in the manner in which the point is put in the Civil Revision Petition, it was never canvassed before the authorities, and therefore, it will be possible to the tenant to establish that there are two distinctive tenancies, and by amending the petition, he cannot secure additional accommodation in respect of two premises. It is to find out these factual particulars, this matter was remanded, and while so remanding this Court directed that in the event of two separate tenancies being made out, the landlord will have to fits two separate petitions, and he cannot get over this aspect by seeking to amend the petition, and if it is held that it is a common tenancy and entire rent was being paid in lump sum, it will be treated as one lease transaction and then the proposed amendment may be allowed.

4. This review petition is filed by the landlord stating that, there is no need for remand, and even if there are two tenancies, a single petition is maintainable, in view of the Division Beach decision in R. Venkatesachary v. The Judge, Court of Small Causes, Madras (1949) 2 M. L. J. 784 : : (1949)2MLJ784 : AIR 1950 Mad 366 and when such is the position, the amendment, as proposed, cannot be considered as prejudicial to the interests of the tenant or contrary to law. It is also claimed that there is no need to file two separate petitions, and therefore the remand made is unnecessary and hence the order requires to be reviewed. This petition is filed by invoking the provisions of Section 114 and Order 47, Rule 1, Civil Procedure Code.

5. Counsel appearing for the respondent-tenant contended that when there are two tenancies, two separate petitions, will have to be filed because each one is a 'building' within the meaning of Act XVIII of 1960 and when additional accommodation is sought for, it has to be established by the landlord that both the premises are required for his occupation and it cannot be done by filing one petition, and hence the order of remand does not call for any interference.

6. Mr. T.R. Mani, counsel appearing for the petitioner herein, apart from the decision above referred to also relies upon the decision in P. Govindaswami Naicker v. S.R. Kerwar (1969) 2 M. L. J. 452 : : (1969)2MLJ452 and the decision in S. Gopalakrishna Chetty v. Ganeshan : [1976]1SCR273 .

7. In the decision in R. Venkatesachary v. The Judge Court of Small Causes, Madras : AIR1950Mad366 , in respect of a matter arising under Tamil Nadu Act XV of 1945, is was held that though the definition of a building in the Act includes a portion, of the building, it does not mean that the owner of a house, portions of which have been let separately, cannot file an application for obtaining possession of the entire house as a building. What is sufficient for the landlord is not the question, but whether he requires the entire building 'bona fide' for his occupation has to be decided.

8. In the decision in P. Govindaswami Naicker v. S.R. Kerwar (1969) 2 M. L. J. 452, it was held that there is no need for distinct petitions against each of the tenants to be filed, because of the definition 'building' in respect of which the relief is asked for against several tenants and the real question is whether there has been any prejudice caused by the procedure adopted by filing a single petition, and there could be no impediment in filing a single petition, by the landlord in respect of several tenancies in the same building.

9. In the decision in S.M. Gopalakrishna Chetty v. Ganeshan : [1976]1SCR273 in respect of a matter arising under Act XVIII of 1960, the contention raised that a single petition with regard to different tenancies cannot be filed, was repelled by holding:

Mr. Natesan faintly submitted that a single petition with regard to two different tenancies, although in the same premises, one for residential and the other for non-residential purpose, is not maintainable. We do not find any substance in such a contention when the tenancy is one.

10. Mr. Somayajulu, by referring to the decision reported in T.N. Unnamalai Achi v. V. Saminatha Pathar (1980) 93 LW 404 contends that clubbing together in an eviction petition of residential and non-residential premises is not permissible, and that in the said case, there were three different premises; two being residential and the third one non-residential, and this Court held:

Merely because a consolidated rent is being paid for the three premises from a particular point of time, it is not permissible for the landlord to club the three premises together for seeking the relief against the tenant only under Section 10(3)(a)(i) of the Act.

By clubbing the three premises, together, the landlord cannot seek the eviction of the tenant from the non-residential premises when he has not put forth a case for that relief.

11. In the light of the two decisions particularly the decision in P. Govindaswami Naicker v. S.R. Kerwar (1969) 2 M. L. J. 452 : : (1969)2MLJ452 and the decision in P. Venkatesachary v. The Judge, Court of Small Causes, Madras : AIR1950Mad366 and the decision of the Supreme Court M. Gopalakrishna Chetty v. Ganeshan : [1976]1SCR273 it cannot any longer be pleaded that a landlord cannot file a single petition in respect of different tenancies, particularly when the same tenant is in occupation of the concerned premises. The Supreme Court has held that a single petition with regard to more than one tenancy in the same premises is maintainable, when the tenancy is one.

12. It was pleaded in this case that a monthly rent of Rs. 680 was being paid for both the tenancies by single payment. But it is only in the civil revision petition, it is pleaded that there were different tenancies, and that this aspect requires to be investigated. But for this claim this Court would have confirmed the concurrent findings of the two statutory authorities.

13. In view of the decision rendered by the Supreme Court and that of the Division Bench, above referred to the decision reported in T. N Unnamalai Achi v. Saminatha Pathar (1980) 93 LW 404 can have no application. The right of a landlord who seeks for additional accommodation to file a single petition in respect of different tenancies, having been held to be a proper petition, the tenant can no longer claim that the proposed amendment cannot be allowed.

14. It was just before orders could be pronounced allowing the review petition, in view of the binding decisions above referred to, Mr. Somayajulu, raised an objection that this Court has no power to review its order, since such a provision is not found in Act XVIII of 1960. Hence the petition bad to be adjourned more than once for further arguments.

15. Mr. Somayajulu, relied upon the decision reported in S.J.S. Fernandes v. V. Ranganayakalu Chetty : AIR1953Mad236 which arises under 1949 Act, wherein it was held that inasmuch as the Act contains no provision for review, there can be no question of any inherent power in the Court, and the Code of Civil Procedure not being applicable, there is no scope for reviewing the order passed by this Court in revision. When the provisions of the Civil Procedure Code are not made applicable in a self contained enactment, there is no scope for invoking Section 114 or Order 47, Rule 1, Code of Civil Procedure. Inherent powers of a Court would not extend to exercise of the power of review which practically results in hearing an appeal by the same functionary who had decided the case; and such a power can be exercised only if it is specifically provided for. There is no concept for inherent power vested in a judicial Officer to review his own order. Hence, it was held that a review petition is not maintainable in respect of the proceedings initiated under Madras Buildings (Lease and Rent Control) Act, 1949.

16. He would then refer to the decision in P.N. Thakershi v. Pradyumansinghji : [1970]2SCR462 wherein it was held that the power to review is act an inherent power and it must be conferred by law either specifically or by necessary implication. When there is no provision in the Act conferring such a power of review, it cannot be exercised. Thus by relying on these two decisions, he would contend that there being no provision in T. N. Act XVIII of 1960, to review an order passed under Section 25 of the Act, the present petition deserves to be dismissed.

17. For the proposition that the provisions of the Civil Procedure Code are not applicable in respect of proceedings initiated under Act XVII of 1960, he refers to the decision reported in Seethalakshmi Ammal v. Rajammal (1965) 1 MLJ 287 wherein it was held that a Rent Controller is not a Court and Civil Procedure Code is not applicable. In the decision in Syed Hanifa v. Muhammad Khalifulla : AIR1970Mad39 it was held similarly, that the order of a Rent Controller is not an order of a civil Court, and therefore, no revision would lie under Section 115 of the Civil Procedure Code. In the decision in Abdul Wahid Sahib v. Dewanjee Abdul Khader Sahib (1947) 1 M. L. J. 201 : : AIR1947Mad297 : 60 L W 199 : ILR (1941) Mad 43 AIR 1947 Mad 400 dealing with the applicability of Section 24 of the Code of Civil Procedure in respect of proceedings under Act XV of 1946, it was held true the Rent Controller is a 'persona designata', and therefore it is not a Court subordinate to the High Court, and the provision under the Civil Procedure Code could not be invoked. IN the decision in Rayala Corporation (Madras) v. Syed Bawker & Co.. Madras : AIR1957Mad385 it was held by the Division Bench, that the Controllers under 1949 Act are no doubt persons belonging to the judicial service, ... bus when they hear any petition filed under the said Act, they are not Courts, and therefore, the Code of Civil Procedure will not cover these proceedings. In the decision reported in Rajam Ayyar v. Pavanambal (1949) M LJ 4(sic)9 : 62 L. W. 145 : AIR 1949 Mad 787, it was held that a revision under Section 115 of tae Civil Procedure Code, would not lie because the appellate authority acting under the said Act, is a 'persona designata'.

18. In the decision in Devichand Moolchand v. Dhanraj Kantilal (1948) 1 M. L. J. 276 : : (1948)1MLJ276 : 61 LW 267 : AIR 1949 Mad. 53 a Division Bench held that the previsions of the Code of Civil Procedure would not apply, and in the absence of any such provision there can be no relief, and the necessity for a rule to be made providing in appropriate cases for the bringing on record of legal representative on the death of the original applicant was also pointed out.

19. In the decision in T.C. Chennakesayalu v. Mansukhlal (1966) 1 MLJ 300 it was held that under Act XVIII of 1960, Civil Procedure Code, is not applicable as such as to the Rent Controller, and that he can only exercise the powers to the extent provided under Rule 26 of the Rules framed under the Act.

20. In the decision reported in K.R. Sankar v. Buvanambalammal : AIR1971Mad368 , a division Bench of this Court held that the Controller is not a 'Court', and the investiture of power under Section 2(3) of this Act is on a persona designata and not on a Court.

21. Mr. T.R. Mani, counsel for the petitioner refers to the decision reported in Usman Koya v. Muthukrishnan (1977) TLNJ 273 wherein it was held that the Rent Controller and the Appellate Authority, though 'persona designata' they exercise only quasi-judicial powers and therefore they have the jurisdiction to rectify the mistake particularly regarding the re-deposit of the amount regarding which there was an error committed by the petitioner.

22. In the decision in Thirupathi Nadar v. Kandaswami Nadar (1968) 81 L. W. 642 while dealing with the scope of the powers under Section 25 of the Act, this Court held that the District Court functioning under Section 25 of the Act not being a Tribunal acting persona designata, but being one functioning as an ordinary civil Court, can apply the provisions of the Code of Civil Procedure, as the procedure provided in the Code should be followed by it in all proceedings before it, as a Court exercising civil jurisdiction.

23. These decisions have been placed to contend that when the provisions of the Code of Civil Procedure would not apply to proceedings initiated under Act XVIII of 1960; the filing of this review petition by invoking Section 114 and Order 47, Rule 1, Civil Procedure Code, is erroneous, and therefore the petition itself not being maintainable, there can be no consideration of any of the points canvassed in this petition.

24. The Rules framed under Act XVIII of 1960 provide for the procedure to be followed by the Rent Controller and the Appellate Authority and deal with certain aspects of the procedure to be followed in certain contingencies. When such a provision is made about the procedure to be followed, in the light of plethora of authorities which have been placed, it is quite obvious that the provisions of the Civil Procedure Code, as such, cannot be invoked while dealing with the petitions arising under Act XVIII of 1960.

25. Mr. T.R. Mani, counsel for the petitioner contends that the decisions relied upon pertain to the exercise of powers by the Rent Controller or the Appellate Authority, who are the creatures of the statute, but so far as the High Court is concerned, it exercises powers which is not confined to what is found under Section 25, and it possesses inherent powers and therefore a review is maintainable. If it be held that there can be no inherent power of review by a Court, even then since the High Court has to adopt the procedure under Civil Procedure Code, the power of review is available, and in this case, the petition filed is maintainable. It is to highlight this point, he refers to Section 2(3) of the Act which deals with definition of 'Controller' which means any person appointed by Government by notification. Section 23(1) of the Act deals with appeals and only such officers and authorities, as notified by Government by general or special order can function as appellate authority. Under Section 23(4), the decision of the Appellate Authority and subject to such decision, an order of the Controller shall be final and shall not be liable to be called in question in any 'Court of law' except as provided under Section 25 of the Act. He would then refer to Section 18 of the Act wherein it is provided that when execution is taken, the order passed by the Controller and Appellate Authority is to be treated as an order of a civil Court and for the purpose of execution the Controller shall have all the powers of a civil Court. Lastly coming to Section 25 which provides for revision to this Court against the order of the Appellate Authority, he emphasises on the power being conferred in 'the High Court'. It is 'the High Court' that has been conferred with a wide power to be exercised to go into the regularity of the proceedings or the correctness or legality or propriety of the decisions passed by the Appellate Authority and it is open to this Court to modify, annual, reverse or remit for reconsideration any of the matters and such an application is to be filed to the High Court.

26. The point taken has to be considered by first referring to nature of personnel who are to exercise powers under the Act in the first two stages. Any 'person' can be appointed as a 'Controller' by notification. It is not necessary that it should be a Court. Equally in respect of an appellate authority, 'any officer or authority' can function as Appellate Authority. These two categories of functionaries can be notified by the Government under the Act. Invariably Judicial Officers are being appointed, but that would not mean that the power exercised by them is that of a Court, and that is why this Court has held in more than one decision that they are 'persona designata'.

27. But when a revision is to be filed under Section 25 of the Act, it is not to a notified 'person or officer or authority' who or which is to exercise the revisional power but, it is 'the High Court', which entertains the revision petitions. When the High Court has been conferred with powers to entertain the revision under Section 25 of the Act, as held in Thirupathi Nadar v. Kandaswami Nadar (1968) 81 LW 642 when a Court is invested with powers to adopt the procedure applicable to it, there is necessity for invoking the Code of Civil Procedure. No procedure having been contemplated in the Rules, to be adopted by the High Court and when the High Court is a Court of record, the necessary implication is, the Court will have to decide the revision petitions by following the Civil Procedure Code. In the decision, it has been hitherto held that the High Court is a 'persona designata' under the Act, or that when the matter is further taken up to the highest Court of the land, it would function as a 'persona designata' under the Act. As for those decisions wherein it was held that Section 115 of the Code of Civil Procedure cannot be invoked they are all cases which arose under 1949 Act, wherein a similar provision as in Section 25 of the Act, had not been incorporated. No provision for a revision to the High Court was provided for in that Act. When revisions were sought to be filed against orders passed by 'persona designata', they were rightly repelled.

28 Mr. Somayajulu, has no doubt referred to Section 18 of the Act, wherein it is stated that an order passed under Section 25 executed by the Controller has to be trested as an order of a civil Court, and for that purpose, the Controller shall have all the powers of a civil Court, and therefore if the power is exercised under Section 25 as that of a civil Court, there is no need to mention in Section 18 that such an order is to be treated as an order of a civil Court. But for this solitary objection, he has sot been able to point out any other section in the Act or any rule framed thereunder, wherein there is prohibition against the High Court adopting the Code of Civil Procedure, while disposing of the revision petition under Section 25 of the Act. In Section 18, orders passed by the Controller and the Appellate Authority, being orders passed by 'persona designata' there was the need to state that while executing such orders, it has to be treated as if they are orders of a civil Court. Orders passed under Section 25 of the Act will have to be executed only by the Controller, who is a notified person, but who is to function with all the powers of a civil Court while executing orders. It is in this context, Section 25 is clubbed with other sections which pertain to order passed by a heirarchy of forums, to construe all of them alike relating to powers to be exercised by him. Hence as contended be Mr. Somayajulu, Section 18 of the Act, cannot be construed as to indicate that the older passed under Section 25 is not an order of Court and is equatable to orders passed by Controllers and Appellate Authorities. Section 18 of the Act cannot therefore be taken as a basis for holding that in disposing of revision petitions, under Section 25 of the Act, the High Court is not to adopt the Code of Civil Procedure. No Court can function without an established and prescribed procedure. If the Act or Rules framed thereunder prescribes a procedure to be followed which is different from the procedure which is adopted by the Court, then this contention of Mr. Somayajalu, could have some force.

29. At this juncture, it will be relevant to note that under Section 34 of the Act, Government by notification, can make Rules. Section 34(2)(b) enables Rules to be made regarding 'the procedure to be followed by Controllers and Appellate Authorities in the performance of their functions'. Clauses (c), (d) and (e) to said sub-section, deal with issue of notices, setting aside ex parte orders; and bringing on record legal representatives in respect of proceedings taken under the Act; and Clause (f) enables framing of Rules regarding procedure to be followed in taking possession of the building, and finally Clause (g) prescribes the fee leviable in respect of Applications and Appeals under the Act.

30. The Rules framed deal only regarding the procedure to be followed by the Controllers and Appellate Authorities, and on the other aspect covered by Clauses (c) to (g) of Section 34(2) of the Act. When the Legislature has enabled the Government to prescribe Rules only for Controllers and Appellate Authorities as to the procedure to be followed by them, it is clear that regarding the procedure to be followed by the High Court while entertaining a revision under Section 25 of the Act, it has to adopt the procedure which it follows in respect of proceedings instituted before it. Being fully aware of the applicability of the Civil Procedure Code in the High Court, it has refrained from any other procedure being formulated for disposal of revisions by it. The intend-ment of the Legislature being quite clear, the provisions of the Code of Civil Procedure would be applicable.

31. Further it is indisputable that the High Court being a Court of Record, and in all its proceedings, it follows a prescribed procedure the necessary implication is that the provisions of the Code of Civil Procedure alone would apply. It is precisely in this view in Thirupathi Nadar v. Kandasami (1968) 81 LW 642 the passage in Telephone Co. v. Postmaster-General L. R. (1913) A. C. 546 at 562, was relied upon which is to the effect:

Where by statute matters are referred to the determination of a Court of record with no further provision, the necessary implication is, I think that the Court will determine the matter as a Court. Its jurisdiction is enlarged but ail the incidents of such jurisdiction including the right of appeal from its decisions remain the same.

In Adaikkappa Chetti v. Chandrasekhara Thevar LR (1947) 74 IA 264 : 61 LW 52 : (1948) 1 M. L. J. 4 : : AIR1948Mad336 : A. I. R. 1948 P. C. 12 : which was also relied upon in She decision in Thirupathi Nadar's case (1968) 81 LW 642, the relevant passage is:

The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto....

32. The power of revision conferred under Section 25 of the Act is on 'the High Court' and while entertaining the revision it exercises the power of a Court created under the. Constitution. It is not a 'persona designata' When power is conferred on a Court, and no other special procedure is prescribed for disposal of matters under a particular statute as held in P.M. Thakershi v. Pradyu Mansinghji AIR 1 70 SC 1273 by such conferment of power, there is necessary implication that the Code of Civil Procedure would apply and in turn the power of review would fee available to this Court.

33. Therefore the procedure to be followed in disposing of revision under Section 25 of the Act, being governed by the provisions of the Code of Civil Procedure, the power of review having been conferred therein expressly this review petition is maintainable.

34. The decision of the Supreme Court in S.M. Gopalakrishna Chetty v. Ganeshan (1976) 1 SCJ 358 : A. IR 975 SC 1750 and the division Bench decision of this Court in R. Venkatesaachary v. The Judge, Court of Small Causes, Madras : AIR1950Mad366 are to the effect that a single petition can He in respect of different tenancies provided it is in respect of the same 'building'. Hence the amendment proposed and which has been ordered by the two statutory authorities is confirmed, and the Rent Controller can further proceed to dispose of the matter on its merits, without the need to go into the question of finding out at this stage of amendment of petition, as to whether there is a single tenancy or two tenancies. It there is need to consider whether there is a single tenancy or two tenancies for the proper disposal of the petition in it's merits, it will be a different matter. For the purpose of carrying out the amendment, the direction already is sued not being necessary, it results in confirmation of the order of the Appellate Authority, and in the dismissal of the Civil Revision Petition No. 2612 of 1979. To this effect the review petition is allowed.


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