Skip to content


M.S. Hameed Vs. Kanniammal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1981)1MLJ477
AppellantM.S. Hameed
RespondentKanniammal
Cases ReferredArunachalam v. Lt. Col. Srinivasan
Excerpt:
- .....in r.c.o.p. no. 1 of 1973 to set aside--the ex parte order of eviction and on 8th july, 1980. the rent controller passed a conditional order setting aside the ex parte order of eviction directing the petitioner to pay rs. 25 as costs to the landlord respondent on or before 16th july, 1980. however, the petitioner did not pay the costs within the time granted by the rent controller with the result i. a. no. 3 of 1979 was dismissed on 17th july, 1980, as the costs had not been paid. it is the correctness of the order that is challenged by the tenant in the course of the civil revision petition preferred under section 115 of the code of civil procedure.2. even before the civil revision petition was numbered., an objection was raised by the office as regards the maintainability of the civil.....
Judgment:

V. Ratnam, J.

1. The tenant in R.C.O.P. No. 1 of 1973 is the petitioner in this Civil Revision Petition which is directed against the order dismissing his application in LA. No. 3 of 1979 praying for the setting aside of an ex parte order of eviction on the ground of non-payment of costs as directed. There is no dispute that the petitioner is a tenant within the meaning of the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960) (as amended by Act XXIII of 1973) (hereinafter referred to as the Act). On 16th December, 1978, an ex parte order of eviction was passed against the petitioner. Thereafter, the petitioner filed I.A. No. 3 of 1979 in R.C.O.P. No. 1 of 1973 to set aside--the ex parte order of eviction and on 8th July, 1980. the Rent Controller passed a conditional order setting aside the ex parte order of eviction directing the petitioner to pay Rs. 25 as costs to the landlord respondent on or before 16th July, 1980. However, the petitioner did not pay the costs within the time granted by the Rent Controller with the result I. A. No. 3 of 1979 was dismissed on 17th July, 1980, as the costs had not been paid. It is the correctness of the order that is challenged by the tenant in the course of the civil revision petition preferred under Section 115 of the Code of Civil Procedure.

2. Even before the civil revision petition was numbered., an objection was raised by the office as regards the maintainability of the civil revision petition under Section 115 of the Code of Civil Procedure, in matters falling under the Act. However, on the strength of a decision of this Court, reported in Arunachalam v. Lt. Col. Srinivasan (1968) 1 M.L.J. 435 : : (1968)1MLJ435 . Justice Nainar Sundaram was persuaded to direct the office to number the civil revision petition subject to the question of the maintainability of the civil revision petition being decided by the learned Judge before whom the matter is ultimately posted for disposal after hearing both parties comprehensively. The learned Judge has also directed that the question of the maintainability may be heard first before the merits are gone info and that it will not be open to the petitioner to voice forth a grievance that the revision having been admitted should not be thrown out on the ground of non-maintainability at a later stage. Though a case of this kind can be easily disposed of by a consideration of the merits thereof, yet out of respect to the learned Judge who had directed the question of maintainability of the civil revision petition to be decided in the course of the final hearing, that matter is being gone into.

3. On the question of maintainability of the civil revision petition, the learned Counsel for the petitioner strongly relies upon the decision in Arunachalam v. Lt. Col. Srinivasan (1968) 1 M.L.J. 435 : : (1968)1MLJ435 , and contends that a civil revision as has been filed in the present case is not only maintainable, but competent as well. Before considering the question whether the civil revision petition is maintainable, it is necessary to notice the important and relevant provisions of the Act briefly touching upon appeals and revisions under the Act. Sections 10 and 14 of the Act enable a landlord to secure an order for eviction against a tenant if he satisfies the Rent Controller that grounds mentioned therein are available to him to secure such an order. Under Section 23 of the Act, provision for the preferring of an appeal against the order passed by a Pent Controller has been made. Section 25 of the Act enables a person aggrieved by an order of the appellate authority to invoke the revisional jurisdiction of this Court in order that the correctness, regularity, legality or propriety of any decision or order passed may be considered and appropriate orders either modifying, annulling, reversing or remitting for reconsideration can be passed. A consideration of the provisions of the Act would, therefore, prima facie disclose that apart from the remedies provided for under the Act, there is no other remedy which can be availed of by a person aggrieved by an order passed by the authorities under the Act. A detailed reference as well as a consideration of those provisions would only reinforce that conclusion. Under Section 23(1) (a) of the Act, the Government is empowered to constitute authorities for purposes of entertaining and disposing of appeals against orders of eviction passed by the Rent Controllers. Section 23(1) (b) of the Act prescribes a period of fifteen days as the time within which such an appeal should be preferred excluding however the time taken to obtain certified copy of the order appealed against. Section 23(2) confers powers of stay on the appellate authority pending the decision on the appeal. The scope of the powers of the appellate authority as well as the mode of disposal of appeals are indicated in Section 23(3) of the Act. Section 23(4) of the Act is important and that Section runs thus:

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 Paw, except as provided in Section 25.

This section recognises and gives effect to the finality of the decisions of the Rent Controller as well as the appellate authority subject to such finality being questioned by a revision under Section 25 of the Act. Section 23(4) deals with not only the finality of the orders passed by the appellate authority and the Controller, but also lays down an interdict against such orders being questioned in any Court of Law except in the manner provided under Section 25 of the Act. Section 25 rims thus:

The High Court may, on the application of any person aggrieved by an order of the Appellate Authority, call for and examine the record of the appellate authority, to satisfy itself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein and if, in any case, it appears to the High Court that any such decision or order should be modified, annulled reversed or remitted for reconsideration, it may pass orders accordingly.

Under Section 25(1), provision is made for the High Court calling for and examining the record of the appellate authority as well as the regularity, correctness, legality or propriety of any decision or order passed therein. Very wide are the powers of the High Court in revising such orders as it is open to the High Court to modify annul, reverse, or remit for reconsideration. A reading of Sections 23 and 25 of the Act would indicate that as against the order of the Rent Controller, an appeal would lie under Section 23(1) (b) and against such an order, a revision would be competent and maintainable under Section 25 of the Act. That is why Section 23(4) declares the finality of the decisions of the appellate authority and the Rent Controller and provides further that those orders cannot be called in question except as provided in Section 25 of the Act. The effect of this provision is that if an appealable order has not been appealed against as contemplated under Section 26(1) (b) of the Act, that order attains finality. likewise, an appellate order if not revised in the manner provided for under Section 25 of the Act, cannot be later questioned in any Court of Taw. In the present case, it is not in dispute that an appeal would lie against the ex parte order of eviction passed against the petitioner under Section 23(1) (b)of the Act. If such an order had not been appealed against in the manner and within the time provided for under Section 23(1) (b) of the Act, then under Section 23(4), such an order becomes final and cannot be questioned in any Court of Taw. On this ground alone, it must be held that the petitioner has completely misconceived his remedy by coming to this Court under Section 115 of the Code of Civil Procedure.

4. Yet another aspect may now be noticed. Section 115 of the Code of Civil Procedure provides for the exercise of the powers of revision by this Court with reference to cases decided by any Court 'subordinate to the High Court and in which no appeal lies thereto'. It has been uniformity held that the Rent Controller as well as the appellate authority are persona designata. and are not Courts stricto sensu and therefore the revisional jurisdiction under Section 115 of the Code of Civil Procedure cannot be strictly invoked by a tenant with reference to matters arising out of orders passed by the Rent Controllers as well as appellate authorities. The Act sets up a complete machinery for the investigation of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depends and as provided for under Section 23, the Act makes the, orders final, subject only to a revision under Section 25 of the Act. It would therefore, be not proper to fall back upon Section 115 of the Code of Civil Procedure as if the Rent Controllers and appellate authorities functioning under the Act are civil Courts amenable and subject to the revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure.

5. Reference may now be made to certain decisions which have a bearing on this question. In Rai Brij Raj Krishna and Anr. v. S. K. Shaw and Brothers : [1951]2SCR145 . the Supreme Court had to consider the maintainability of a suit questioning before the civil Court the correctness of the order of a Controller functioning under the provisions of the Bihar 'Buildings (Lease Rent and Eviction) Control Act (III of 1947). An application was filed for an order of eviction against the tenants for having fallen into arrears of rent for the months of March, April and May, 1942. In spite of the fact that the tenants, who had earlier sent the rent by money order which was returned, had deposited the rent upto the period in question, the Rent Controller passed an order for eviction against the tenants holding that by reason of the nonpayment of the rent, they had rendered themselves liable to be evicted. On appeal to the Commissioner, the order of the Rent Controller was upheld and thereupon the tenants filed a suit questioning the validity of the order of the Controller. The suit was dismissed and the dismissal was also confirmed on appeal. But on further appeal to the High Court of Patna, the High Court decreed the suit. Thereafter the landlord preferred a further appeal to the Supreme Court. The Supreme Court referred to Section 18 of that Act providing for an appeal to an aggrieved person against the order of the Controller and relied upon Section 18(3) as well to the effect that the decision of the Commissioner and subject only to such decision, an order of the Controller shall be final and shall not be liable to be questioned in any Court of Law whether in a suit or other proceeding by way of appeal or revision and ultimately held that the Act had entrusted the Controller with a jurisdiction to find non-payment and to order eviction and that even if the Controller may be assumed to have wrongly decided the question of the non-payment of rent, which by no means is clear, his order cannot be questioned in a civil Court. Again in Central Bank of India v. Gokal Chand : [1967]1SCR310 . the Supreme Court had occasion to construe Section 38(1) of the Delhi Rent Control Act (LIX of 1958) which reads thus:

An appeal shall lie from every order of the Controller made under this Act to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the Official Gazette.

The question that arose before the Supreme Court was whether the dismissal of an application by a tenant for the issue of a Commission was appealable under Section 38(1) referred to above. The Tribunal held that no appeal lay under Section 38(1) of the Delhi Rent Control Act (LIX of 1958) from the order of the Rent Controller refusing the issue of a Commission. The High Court also expressed its agreement with this view and thereupon the tenant appealed to the Supreme Court by special leave. In dealing with the scope of the right of appeal under Section 38(1) of the Delhi Rent Control Act, 1958, the Supreme Court observes thus:

The object of Section 38(1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of Section 38(1), the words 'every order of the Controller made under this Act', though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. In a pending proceeding the Controller may pass many interlocutory orders under Sections 36 and 37, 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 relevancy of a question. 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. The Legislature could not have intended that the parties would be harassed with endless expense and delay by appeals from such procedural orders. It is open to any party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order, in the main proceeding. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the Controller under the Act. liven an interlocutory order passed under Section 37(2) is an order passed under the Act and is subject to appeal under Section 38(1) provided it affects some right or liability of any party. Thus, an order of the Rent Controller refusing to set aside an ex parte order is subject to appeal to the Rent Control Tribunal (underlining mine). Similar considerations have induced the Courts to give a limited construction on the apparently wide words, of other statutes conferring rights of appeal. Section 202 of the Indian Companies Act, 1913 confers a right of appeal 'from any order or decision made or given in the matter of winding up of a company by the Court'. In Shankarlal Aggarwal v. Shankarlal Poddar : [1964]1SCR717 . this Court decided that these words, though wide, would exclude merely procedural orders or those which did not affect the right or liabilities of parties.

These observations of the Supreme Court are apposite and are clearly applicable to the instant case. The refusal of the Rent Controller to set aside the ex parte order of eviction by the dismissal of the application to set aside the ex parte order for non-payment of costs within the time granted was an order which was subject to an appeal to the appellate authority and therefore could not be revised under Section 115 of the Code of Civil Procedure.

5. Natarajan, J., in S.R. No. 55328 of 1979, dated 17th August, 1979, had occasion to consider a similar question with reference to the maintainability of a civil revision petition at the instance of a tenant against the order of the Rent Controller refusing to reissue the warrant of commission to a Commissioner appointed in the proceedings. The learned Judge held that no doubt the Rent Controller had been conferred powers of a civil Court under Section 18-A of the Act in matters relating to the appointment of a Commissioner in any proceedings pending before him, but that such conferment will not convert the Rent Controller into a civil Court and therefore the, Rent Controller cannot be equated to a civil Court to enable the High Court to entertain a civil revision petition under Section 115 of the Code of Civil Procedure. It was also further pointed out by the learned Judge, after referring to the decision of the Supreme Court referred to already, that the remedy of the aggrieved party in such circumstances would be to ventilate his grievances regarding such an order in the appeal preferred by him against the final order passed by She Rent Controller. Ultimately the learned judge held that a revision will not lie and directed the papers to be returned to the counsel on record. However, in Arunachalam v. Lt. Col. Srinivasan (1968) 1 M.L.J. 435 : : (1968)1MLJ435 . Justice Ramaprasada Rao, as he then was, had occasion to deal with a similar objection. In that case, the landlord filed an application under Section 14 of the Act which was dismissed for default and later restored on an application supported by an affidavit sworn to by the advocate for the landlord. Against that order, a civil revision petition was filed to this Court. An objection was raised with; reference to the maintainability of the civil revision petition which was dealt with by the learned judge in the following terms:

Learned Counsel for the respondent however states that no civil revision petition can be entertained against an order made by the Rent Controller under Rule 18(3). It is suggested that as an appeal lay against an order passed by the Rent Controller under Rule 18(3), a revision against the said order of the Rent Controller ought not to he entertained. Section 25 is one amongst many Sections in the Madras Buildings Act, 1960 which Act itself is a beneficial piece of legislation. It cannot assumed or presumed by necessary implication that the jurisdiction of this Court as a revisional Court otherwise than under Section 25, of the Madras Buildings Act, 1960, would be excluded by reason of an express provision like Section 25 of the Madras Buildings Act. Mr. G. N. Chari would also put it on the ground that this civil revision petition can be entertained by this Court under Section 115 of the Code of Civil Procedure. In my opinion, Section 115 of the Civil Procedure Code, and Section 25 of the Madras Buildings Act, are mutually exclusive and the revisional jurisdiction of this Court under Section 115, Civil Procedure Code, is always available to interfere with an order of the kind before me. I am therefore satisfied that he civil revision petition is maintainable.

Apparently, the learned Judge's attention was not drawn to the judgment of the Supreme Court referred to earlier, as otherwise, the learned Judge would have, concluded that the proper remedy of the landlord petitioner even in that case would only be an appeal under Section 23(1) (b) of the Act and not by way of a civil revision petition under Section 115 of the Code of Civil Procedure. The scope, and effect of Section 23(4) of the Act also do not appear to have been brought to the notice of the learned Judge which declares the finality of proceedings before the Rent Controller as well as the appellate authority and they being liable to be questioned only in the manner provided for under Section 25 of the Act which, in my view, as stated already, leaves no room for any doubt with reference to the applicability of the order passed in that case as well as in the present case. Further, the learned Judge also does not appear to have envisaged the possibility of Section 23(1) (b) and Section 25 of the, Act being rendered dead letters, if a revision against every order of the Rent Controller as well as the appellate authority is entertained under Section 115 of Code of Civil Procedure. Though the inapplicability of the jurisdiction of this Court under Section 115 of the Code of Civil Procedure, cannot be a matter of either assumption or presumption as stated by the learned Judge, yet in view of the specific statutory provisions referred to already, such a conclusion is inevitable and the orders of the Rent Controller or the appellate authority constituted under the Act cannot be questioned under Section 115 of the Code of Civil Procedure. As pointed out already, the Act is a self-contained Act containing provisions for appeal as well as revision and enabling an aggrieved party to challenge the correctness of orders passed by the authorities under the Act in the manner provided thereunder and no more. Consequently, resort to Section 115 of the Code of Civil Procedure in matters or proceedings arising out of the provisions of the Act cannot be had to test the correctness of the orders passed under the Act. Therefore, it may not be appropriate even to characterise the provisions of Section 115 of the Code of Civil Procedure and Section 25 of the Act as mutually exclusive and to hold that the revisional power under Section 115 of the Code of Civil Procedure, is always available even with reference to the matters arising under the provisions of the Act under which special, but limited provisions are made to question the correctness of orders passed under the provisions of that Act. In view of these considerations, the civil revision petition filed by the petitioner purporting to be under Section 115 of the Code of Civil Procedure, cannot be entertained in this Court and consequently has to be dismissed.

7. Even on the merits, the petitioner has not made out any case. The Rent Controller had, in the exercise of his discretion, imposed a condition on the petitioner that he should pay a sum of Rs. 25 as costs on or before 16th July, 1980 and this order was passed on 8th July, 1980, and the petitioner had ample time to pay this paltry amount. However, the petitioner did not choose to avail himself of the opportunity so afforded and did not pay the costs as directed. The Rent Controller had, therefore, no other option except to dismiss the application. The exercise of the discretion initially and the later dismissal of the application by the Rent Controller for non-compliance with the conditions imposed are perfectly in order and cannot be said to suffer from any infirmity or illegality. Therefore, the dismissal of the application filed by the petitioner in I.A. No. 3 of 1979 is sustainable even otherwise on the, merits. Consequently, the civil revision petition fails and is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //