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1980 DIGILAW 294 (KER)

RAJAGOPALA KINI v. SREENIVASAN

1980-11-12

M.P.MENON

body1980
Judgment :- 1. Landlord in proceedings under the Rent Control Act (Act 2/65) is the revision petitioner. He filed R. C. O. P. 259/ 72 for evicting the tenant on three grounds: arrears of rent, bona fide need for own occupation, and need to reconstruct. The tenant claimed kudikidappu rights, but on a reference to the Land Tribunal under S.125 of Act I of 1964, that was found against. Thereafter, counsel for the tenant made an endorsement admitting arrears of rent, and the landlord gave up the other grounds. The Rent Control Court thereupon passed an order on 15-2-77, under S.11 (2) (b), holding that rent was in arrears from 1-2-1971 at the rate of Rs. 6/-a month, and directing the tenant to put the landlord in possession of the building. One month's time was also granted to the tenant under S.11 (2) (c), for paying off the arrears. 2. The tenant did not deposit the arrears; instead, he filed an appeal. And the landlord objected to its maintainability on the ground that none could be "aggrieved", within the meaning of S.18, by an order based on consent. The appellate authority over-ruled the objection in the following terms: "Simply because he has endorsed that there is no dispute as regards the rate of rent or the arrears of rent, it cannot be said that he is not an aggrieved party before this Court. Eviction was ordered under S.11 (2) and that order is not set aside. As such he has got the right to come in appeal before this Court." It appears that by that time, the tenant had paid the arrears and part of the "current rent" also. The appellate authority therefore passed an order on 31-1-78 setting aside the Rent Control Court's decision on condition that the tenant paid the balance within another month. 3. The landlord took up the matter under S.20, contending that the appellate authority should not have entertained the appeal at all; but the learned District Judge was not disposed to agree. He dismissed the revision and observed: "Though eviction is ordered on admission regarding arrears of rent, the tenant is still aggrieved by the order if that is not vacated in time and so I agree with the learned appellate authority on the question regarding maintainability of the appeal". He dismissed the revision and observed: "Though eviction is ordered on admission regarding arrears of rent, the tenant is still aggrieved by the order if that is not vacated in time and so I agree with the learned appellate authority on the question regarding maintainability of the appeal". And in the present revision under S.115 C.P.C. the landlord again contends that the appeal, from what he calls a consent order, was not maintainable. 4. S.11 (2) of Act 2/65 reads: "(a) A landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf. (b) If the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him: Provided that an application under this sub-section shall be made only if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at six per cent, per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or of the refusal thereof. (c) The order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow; and if the tenant deposits the arrears of rent with interest and "cost of proceedings within the said period of one month or such further period, as the case may be, it shall vacate that order." Shorn of details, what sub-section 2 (b) says is that when a Rent Control Court finds that the tenant has not been paying the rent due, it shall pass an order for eviction. Sub-section 2 (c) consists of two parts: the first prohibits execution of the order passed under Sub-section 2 (b) before the expiry of one month or such further period as may be fixed by the Rent Control Court; and the second obliges that court to vacate the order if the tenant deposits the arrears within the time granted. Though the prohibition in the first part is primarily against the executing court, it also implies a duty on the part of the Rent Control Court to fix the period during which the prohibition should operate. Probably, the Rent Control Court has to do it in the course of passing the order under Sub-section 2 (b) itself; that, at any rate, was how it was done in the present case. As regards the second part, it contemplates another order, separate from the one under clause (b), in cases where the tenants make the deposit in time. No such order is apparently visualised when nothing is deposited at all. If some deposit is made and its sufficiency is disputed, then also an order resolving that dispute appears to be necessary. 5. Turning to S.18(l)(b) of the Act, any person aggrieved by an order passed by the Rent Control Court can prefer an appeal before the appellate authority. The language seems to be wide: any person can appeal against any order, if he is aggrieved thereby. In proceedings under S.11(2) (b), disputes may arise between the landlord and the tenant about the rate of rent or the date from which it has fallen in arrears; there may be dispute about what has been paid, received or appropriated. The language seems to be wide: any person can appeal against any order, if he is aggrieved thereby. In proceedings under S.11(2) (b), disputes may arise between the landlord and the tenant about the rate of rent or the date from which it has fallen in arrears; there may be dispute about what has been paid, received or appropriated. The tenant may contend that no arrears are due at all or that what is claimed is excessive. In all such cases, the Rent Control Court has to give a decision, and when it decides against the tenant and orders eviction, the tenant can certainly file an appeal under S.18 canvassing its correctness. Such an appeal will be directly against the adjudication made under Sub-s. (2)(b). The tenant may also feel dissatisfied about the time given to clear off the arrears, even if he has no complaint against the finding regarding arrears. Apparently, he can then also file an appeal, the grievance in which case will be against the time granted That also will be an appeal against an order passed under Sub-s. 2(b). if it is correct to think that grant of time under clause (c) has to be made along with and in the order passed under clause (b). Again, if the tenant deposits the arrears within the time granted to him, and the Rent Control Court holds, on the objections of the landlord, that what is deposited is not the full amount due, that holding, presumably under the second part of clause (c), can also be the subject-matter of an appeal under S.18. But suppose the tenant has no dispute about the arrears due or about the time granted for payment. Can he still file an appeal against the Rent Control Court's order for the only reason that he neglected to pay or was unable to pay within the time fixed? 6. An appeal, no doubt, is a re-hearing of the original cause; but that hearing can only be at the instance of a litigant aggrieved by the decision of the tribunal of first instance. The function of an appellate court is to exercise its powers to find out whether the judgment or order below is wrong; it cannot exercise its powers when the appellant has no case that it is wrong. The function of an appellate court is to exercise its powers to find out whether the judgment or order below is wrong; it cannot exercise its powers when the appellant has no case that it is wrong. An appeal is entertainable only when the appellant is in a position at least to allege that something is wrong with the decision sought to be reversed. As noticed, the tenant herein had no case that the Rent Control Court had entered a wrong finding regarding arrears; he could not have such a case, since the finding was based on consent. There was also no complaint that the time granted (one month) was far too short; at any rate, the appellate authority and the District Court do not refer to such a grievance The appeal was filed after waiting for the expiry of the one-month period and counsel for the tenant would even argue that it would not have been maintainable, if filed earlier. There was also no question of any complaint about sufficiency of deposit since none had been made. Under these circumstances, it is difficult to see what the tenant was complaining about; the orders of the appellate authority and the District Judge do not also show what was wrong with the Rent Control Court's order. There is not, even a passing reference to the tenant voicing any grievance in that regard ' So far as I could see the tenant had no grievance to be urged, bona fide or even frivolous, against the Rent Control Court's order or any part thereof; and the appeal was therefore incompetent. If the tenant in this case had any grievance, that must have been against what he had agreed to. The Rent Control Court had in fact not decided anything by itself; it bad only recorded what the tenant had admitted and declared the statutory consequence of such admission. 7. In Narayanan v Muralidhara Marar (1964 KLT. If the tenant in this case had any grievance, that must have been against what he had agreed to. The Rent Control Court had in fact not decided anything by itself; it bad only recorded what the tenant had admitted and declared the statutory consequence of such admission. 7. In Narayanan v Muralidhara Marar (1964 KLT. 509) a Division Bench of this Court considered the scope of Sub-section (2) and (3) of S.12 of the Act, and said: - "When a court has passed an order directing a party before it to do a particular thing in default of which a certain statutory consequence is to follow, if a party is to be relieved of the consequences of a non-compliance of that order he has to make a specific motion therefor showing sufficient cause for his non-compliance of the order and making the appropriate prayer therein. Otherwise the order would work itself out and the default to comply with it will bring the appointed consequences on the tenant". I think the principle should apply to a case governed by S.11 (2) also. The Rent Control Court directed the tenant, based on his own admission, to deposit the arrears of rent and indicated the consequence of default. The default having been admitted, the complaint could only have been against the statutory consequence from which no court or authority could have relieved him. The view taken in Narayanan's case was of course clarified in Xavier v. Leonard Pappali (1975 KLT. 544) by pointing out that the consequence under S.12(3) would follow only if the tenant failed to show sufficient cause to the contrary; but there is no corresponding provision in S.11(2)(c) forgiving an opportunity to the tenant to show cause. 8. It is argued that an appellate authority can always exercise all the powers of the original authority and extend the time fixed by the latter; it can do so, but only when dealing with a properly constituted appeal. Where an appeal is not maintainable, no occasion arises for the exercise of any of the appellate powers. The doors of an appellate forum will remain closed against a litigant who approaches it without making a grievance of anything said or done by the court of first instance. Where an appeal is not maintainable, no occasion arises for the exercise of any of the appellate powers. The doors of an appellate forum will remain closed against a litigant who approaches it without making a grievance of anything said or done by the court of first instance. Sympathy for the tenant can influence exercise of the appellate power, if at all it can, only when the power is available for being exercised, and not where the appeal itself is not entertainable. The rent control legislation reflects all the sympathy the law-makers have for the tenants; but the primary duty to administer the Act is cast on the Rent Control Court, by the legislature itself. The appellate authority is there to listen to complaints about mistakes allegedly committed by the Rent Control Court. The allegations may all be fanciful, but if they are there, the appeal has to be entertained and disposed of on merits; and while dismissing an appeal, the appellate authority can probably show further sympathy and extend the time for payment But there should be some complaint to be listened to, some mistake which according to the appellant at least, calls for correction. In other words, the correctional jurisdiction should be invoked by a party who at least pretends to be aggrieved. Where even that is not attempted, sympathy alone can be of no avail. If you ask the appellate authority in this case why it set aside the Rent Control Court's order, the answer would conceivably be; "the poor tenant had to be helped, though there was nothing wrong with the order appealed against". Tribunals like the Rent Control Court and the Appellate Authority are but part of the machinery provided by the legislature to adjudicate; they are not part of the machinery for administration. They do not sit there to dispense their own brands of justice in causes not even properly brought before them. For the reasons stated above, I set aside the orders of the appellate authority and the District Court, and restore that of the Rent Control Court. No costs. Allowed.