Lakshmiammal v. V. K. Sivasubramaniam — 1980 DIGILAW 458 (MAD)

ORDER:— This is a revision at the instance of the legal representatives of the deceased tenant” in R.O.C.P. No. 506 of 1976 filed by the respondent herein for an order of eviction under sections 10(2) (1) and 14 (1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960 , as amended by Act XXIII of 1973 thereinafter referred to as the Act). The respondent initiated proceedings for an order of eviction against one K. P. Subramaniam who was originally a tenant in occupation of the premises. During the pendency of the proceeding K. P. Subramaniam was reported to have died on 2nd September, 1978, and the respondent claimed that he became aware of the death of K. P. Subamaniam only on 7th September, 1978, and therefore the respondent filed an application in I.A. No. 254 of 1978 in R.C.O.P No. 506 of 1976 for impleading the petitioners herein as the legal representatives of deceased Subramaniam with a view to further prosecute the proceedings for eviction initiated by him. That application was resisted by the petitioners herein on the ground that K. P. Subramaniam died on 1st September, 1978, and when the application for eviction was posted on 2nd September, 1978, that fact was reported to the court and therefore the respondent had knowledge of the death of Subramaam even then and the application for impleading the petitioners as the legal representatives was filed after the period of limitation was over and that such an application without impleading other heirs of deceased Subramaniam is also not maintainable. 2. The learned District Munsif, Coimbatore who enquired into this application, found that though the death of K. P. Subramaniam. might have been reported before court on 2nd September, 1978, yet, it had not been established that the respondent, who is a permanent resident of Madurai, had become aware of the death of Subramaniam even on that date and therefore there was nothing improbable in the claim of the respondent that he became aware of the death of K. P. Subramaniam only on 7th September, 1978, and the filing of the application on 5th October, 1978, within thirty days from the date of knowledge of the death of K.P. Subramaniam would be quite in order. It was also further found that even on the footing that the respondent came to know of the death of K. P. Subramaniam on 2nd September, 1978, there was only a delay of three days in filing the application to bring on record the legal representatives of deceased Subramaniam and that could be excused having regard to the circumstance that the respondent is a permanent resident of Madurai. As regards the objection that there are other legal representatives who have to be impleaded, the Rent Controller held that they are not shown to be in possession of the demised premises and therefore need not be impleaded as parties to the application for ‘eviction. Consequent to these conclusions, the application filed by the respondent to implead the petitioners as the legal representatives of deceased Subramaniam was Ordered. Aggrieved by this the petitioners preferred an appeal in R.C.A. No. 144 of 1979 before the appellate authority (Sub-Court, Coimbatore). The Appellate Authority held that the Rent Controller was a functionary. under the provisions of the Act with inherent powers and that there was no inordinate delay in bringing on record the legal representatives of deceased Subramaniam and that in such circumstances the Rent Controller had exercised his power in bringing on record the petitioners as legal representatives rightly and therefore no ground for interfering with that order had been made out. On this conclusion, the order of the Rent Controller impleading the petitioners as the legal representatives of deceased Subramaniam was upheld and the appeal was dismissed. It is the correctness of this order that is challenged in this civil revision petition. 3. Mr. S. Palaniswamy, the learned counsel for the petitioners contends that the fact that K. P. Subramaniam the original tenant died was brought to the notice of the court even on 2nd September, 1978, and the application for bringing on record the petitioners as legal representatives was filed on 5th October, 1978 long after the expiry of the period of thirty days provided for that purpose and that application was, therefore, out of time. It is also the further contention of the learned counsel for the petitioners that powers under section 5 of the Limitation Art, 1963 cannot be exercised by the Rent Controller or by the appellate authority and therefore the application filed by the respondent to bring on record the petitioners as the legal representatives of deceased K. P. Subramaniam should have been dismissed by the Courts below. On the other hand, the learned counsel for the respondent contends that it is not in dispute that the respondent is a resident of Madurai and even on the footing that the factum of the death of K. P. Subramaniam was made available to the Court on 2nd September, 1978, that does not mean that the respondent immediately became aware of it and the probabilities are such that only after the counsel for the respondent communicated it to the respondent, he became aware of the same and therefore the respondent became aware of the death of K.P. Subramaniam only on 7th September, 1978 and therefore the application to bring on record the legal representatives filed by the respondent on 5th October, 1978, would be well within time, the same having been filed within thirty days from the date of knowledge of the death of the tenant. 4. It may be that the death of K.P. Subramaniam, the original tenant was brought to the notice of the court even on 2nd September, 1978. But even so, it is not established that the respondent became immediately aware of the death of K. P. Subramaniam. It is not disputed that the respondent is a permanent resident of Madurai. If that is so, in the absence of anything to establish that the respondent was present in court on 2nd September, 1978, and therefore he became aware of the death of the tenant even on that date, it is not improbable that the respondent had known about the death of the tenant only through his counsel some time after the death was reported to court. The definite stand taken by the respondent in the affidavit filed in support of I.A. No. 254 of 1978 is that the death of Subramaniam was reported on 2nd September, 1978 of which he became aware on 7th September, 1978 only. It has not been, in any manner established that the respondent became aware of the death of Subramaniam earlier to 7th September, 1978. It has not been, in any manner established that the respondent became aware of the death of Subramaniam earlier to 7th September, 1978. Rule 25 of the Rules framed under the Act provides that every application for making the legal representative or representatives of a deceased person, party to a proceeding under the Act, shall be preferred within one month, from the date of the death of the person concerned or the date of having knowledge of the death of the person, concerned. In the instant case as already stated, the petitioner has been preferred within one month from the date of knowledge of the respondent as regards the death of K. P. Subramaniam. Under these circumstances, the application filed by the respondent to bring on record the petitioners as the legal representatives of deceased K. P. Subramaniam was perfectly in time and rightly ordered as well. 5. There is yet another manner in which the matter might be viewed. The application filed by the respondent herein was only to bring on record the petitioners as the legal representatives of deceased K. P. Subramaniam in order to enable the respondent to assist the further prosecution of the petition for eviction now pending and this had been done only with a view to regulate the procedure and hence does not, in any manner, affect any right or liability of the petitioners. In the Central Bank of India Ltd. v. Gokul Chand1the question of the maintainability of an appeal against an interlocutory order under the provisions of Delhi Rent Control Act came up for consideration before the Supreme Court. In that case, in a pending application for eviction, the tenant made an application for the appointment of a commissioner to visit the property in question and also to prepare a plan in relation to the premises. That application was rejected by the Rent Controller against which an appeal was filed to the appropriate appellate authority who rejected the appeal holding that no appeal lay from the order of the Rent Controller under section 38(1) of the Delhi Rent Control Act, 1958. The High Court also agreed with the decision of the Tribunal. On appeal by special leave, the Supreme Court had to consider the question whether an appeal lay to the Tribunal under section 38(1) of the Delhi Rent Control Act. The High Court also agreed with the decision of the Tribunal. On appeal by special leave, the Supreme Court had to consider the question whether an appeal lay to the Tribunal under section 38(1) of the Delhi Rent Control Act. Section 38(1) of that Act read as under: “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”. 6. The Supreme Court, while interpreting section 38(1) of the Act referred to above, was of the view that a right of appeal is given to a party who is aggrieved by some order which affects his right or liability and that in the context of section 38(1), the words ‘every order of the Controller made under this Act’ do not include merely procedural interlocutory orders not affecting the rights or liabilities of the party and therefore they cannot be appealed against. In this connection, the Supreme Court stated thus: “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 pro section of their cases in the pending proceeding; they regulate the procedure only and do not affect any light or liability of the parties. The legislature could not have intended that the parties would be harassed with endless expenses 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. Even 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. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the Controller under the Act. Even 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”. 7. Ultimately, the Supreme Court held that the order refusing to issue a Commission for inspection and preparation of the plan was a mere procedural order not affecting the light or liability of the party and merely constituted a step for assisting the parties to prosecute their case and therefore was not appealable. To similar effect is the decision in Bunt Singh Gill v. Shonti Devi1. The question that arose there was whether the rejection of an application to record the abatement of the suit and the continuance of the suit was an order of such a nature against which an appeal could be filed under section 34 of the Delhi and Ajmer Rent Control Act, 1952. It was contended before the Supreme Court that the word ‘Order’ is used in section 34 without any limitations with the exception that it must be an order of a Court passed under the Act of 1952. Repelling this the Supreme Court referred to the decision in the Central Bank of India Ltd. v. Gokal Chand2and observed as follows: “All that was done by the application presented by the appellant on the 13th March, 1961, was to raise a preliminary issue about the maintainability of the suit on the ground that the suit had abated by virtue of section 50(2) of the Act of 1958. The Court went into that issue and decided it against the appellant. If the decision had been in favour of the appellant and the suit had been dismissed, no doubt there would have been a final order in the suit having the effect of a decree (see the decision of the Full Bench of the Lahore High Court in Ram Gharan Das v. Hira Nand1). If the decision had been in favour of the appellant and the suit had been dismissed, no doubt there would have been a final order in the suit having the effect of a decree (see the decision of the Full Bench of the Lahore High Court in Ram Gharan Das v. Hira Nand1). On the other hand, if as in the present case, it is held that the suit has not abated and its trial is to continue, there is no final order deciding the rights or liabilities of the parties to the suit. The rights and liabilities have yet to be decided after full trial has been gone through. The decision by the Court is only in the nature of a finding on a preliminary issue on which, would depend the maintainability of the suit. Such a finding cannot be held to be an order for purposes of section 34 of the Act of 1952, and, consequently, no appeal against such an order would be maintainable.” 8. The order in the present case is also merely procedural in that it assists the respondent to continue the proceeding for eviction already initiated by him and does not in any manner affect any of the rights of the petitioner. Consequently, it must be held that the appeal filed by the petitioners before the appellate authority was not competent and consequently the civil revision petition would also equally be incompetent. Even so, since it has already been held that the respondent had taken necessary steps to bring on record the petitioners within time, no case for interference with the order of the Rent Controller is made out. The order of he Rent Controller therefore is perfectly correct and does not merit any interference. The civil revision petition fails and is dismissed. No costs. R.S. ----- Petition dismissed.