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Dosky Machado Vs. Francis Gomes - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1984)2MLJ42
AppellantDosky Machado
RespondentFrancis Gomes
Cases ReferredP.N. Thakersay v. Pradyamansing
Excerpt:
- .....application for eviction was posted in the list. since the respondent-tenant remained ex parte the rent controller has passed an ex parte order of eviction. thereafter, after a lapse of some time, the respondent filed a petition i.a. no 7 of 1981 to set aside the ex parte order of eviction which was opposed by the petitioner-landlord . the rent controller, however, passed, an order setting aside the ex parte order of eviction on condition that the respondent paid a sum of rs. 50 as costs on or before 30th january, 1981, and that on failure, the petition for setting aside the ex parte order would stand dismissed. the respondent did not obey the court's direction and the costs were not paid on or before 30th january, 1981. the result was the petition for setting aside the ex parte order.....
Judgment:

G. Ramanujam, J.

1. These two matters have been posted before us on an order of reference, dated 19th November, 1981, passed by Mohan. J.

2. For the purpose of the determination of the question involved, we will refer to the facts of the case in C.R.P. No 3314 of 1981. The petitioner herein, who is the landlord, filed an application R.C.O.P. No. 80 of 1979 for eviction of the respondent on certain grounds The application for eviction was posted in the list. Since the respondent-tenant remained ex parte the Rent Controller has passed an ex parte order of eviction. Thereafter, after a lapse of some time, the respondent filed a petition I.A. No 7 of 1981 to set aside the ex parte order of eviction which was opposed by the petitioner-landlord . The Rent Controller, however, passed, an order setting aside the ex parte order of eviction on condition that the respondent paid a sum of Rs. 50 as costs on or before 30th January, 1981, and that on failure, the petition for setting aside the ex parte order would stand dismissed. The respondent did not obey the Court's direction and the costs were not paid on or before 30th January, 1981. The result was the petition for setting aside the ex parte order stands dismissed.

3. Thereafter, the respondent filed an application, LA. No. 39 of 1981 under Sections 148 and 151, Civil Procedure Code, for extension of time after receiving the order in I.A. No. 7 of 1981. I.A. No 39 of 1981 filed under Sections 148 and 151, Civil Proccedure Code for extension of time granted in I.A. No. 7 of 1981 by reviewing the said order was taken up for consideration by the Rent Controller. The said petition was opposed by the petitioner herein on the ground that the Rent Controller has no power to invoke Sections 148 and 151, Civil Procedure Code, to extend the time for payment. The Rent Controller accepted the contention of the petitioner-landlord and held that he had no power to review his order I.A. No. 7 of 1981. He therefore dismissed I.A. No, 39 of 1981.

4. The respondent herein filed an appeal C.M.A. No 18 of 1981 against that order in I.A. No 39 of 1981 to the Appellate Authority and the Appellate Authority set aside the order of the Rent Controller passed in I.A. No 39 of 1981, allowed the appeal and directed the Rent Controller to restore LA. No. 7 of 1981, to his file on condition that the respondent pays the costs of Rs. 50 ordered earlier by the Rent Controller on or before 17th August, 1981. It further directed that, in default, the application in LA. No. 7 of 1981, would stand dismissed.

5. Once again the respondent did not pay the costs as directed by the Appellate Authority on or before 17th August, 1981. The result was I.A. No. 7 of 1981 stood dismissed. Therefore, the respondent filed I.A. No. 579 of 1981 in C.M.A. No. 18 of 1981 on the file of the Appellate Authority which has allowed the same on condition that the respondent paid another sum of Rs. 50 as costs on or before 29th September, 1981. Against the said order of the Appellate Authority C.R.P. No 4327 of 1981 has been filed by the landlord and C.R.P. No. 3314 of 1981 has been filed against the original order of the Appellate Authority.

6. In both these matters the main question urged by the learned Counsel for the petitioner-landlord is that the Rent Controller has no power to review his own order since the power of review has not been specifically conferred by the statute, namely, the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 under which he is functioning and, therefore the orders passed by the Appellate Authority on both the occasions are without jurisdiction. Mohan, J., before whom originally these civil revision petitions came up for disposal felt that the Rent Controller has no power to review his own order, but that a contrary view has been taken in Kolandaisami Gounder v. Chandran : AIR1973Mad430 and hence the matter was referred to a Division Bench.

7. On a due consideration of the matter we are of the view that the Rent Controller has no power to review his own order as the Tamil Nadu Buildings (Lease and Rent Control) Act,, 1960 under which he is functioning does not invest him with a power of review. It is well-established that a power of review is not an inherent power and the power to review must be conferred by law either specifically or by necessary implication. We find that the Tamil Nadu Buildings (Lease, and Rent Control) Act, 1960 nowhere confers a power of review on the Rent Controller. It has been specifically held by the Supreme Court in P.N. Thakersay v. Pradyanamsingh ji : AIR1970SC1273 that the power to review is not an inherent power and that it must be conferred by law either specifically or by necessary implication. In the instant case, the Supreme Court held that the State Government or the Commissioners functioning under powers delegated to them by the Government has no power of review as the Saurashtra Law Reforms Act under which they act has not conferred any power on them in review their own orders. Since the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 do not either specifically or by necessary implication confer the power of review on the Rent Controller, the said decision of the Supreme Court squarely applies to the facts of these cases and the Rent Controller should be held to have no power to review his own orders.

8. The decision in Kolandaisami Gounder v. Chandran : AIR1973Mad430 which has been referred to in the order of reference by Mohan, J. arose on a different set of facts. In that case, the civil Court's power to review under Order 47,. Rule 1, Civil Procedure Code, came up for consideration. The Court held that notwithstanding the fact that the conditional order passed by the Court, has worked itself out, the Court has got the power to review its earlier order and extend the time for compliance with the conditions imposed earlier. That decision, in fact does not deal with or refer to the power of the Rent Controller to review his order. Therefore, it is not necessary to consider the scope of the said decision here.

9. As already stated, since the decision of the Supreme Court in P.N. Thakersay v. Pradyamansing ji : AIR1970SC1273 governs the facts of the present cases, we hold that the orders of the Appellate Authority which are the subject-matter of these two revision petitions should be taken to have been passed without jurisdiction and that the order passed by the Rent Controller holding that he has no power to review his order should be taken to be valid. The Civil Revision petitions are, therefore, allowed. There will be no order as to costs.


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